Principle of Severability

Prof. S.P. Srivastava

Department of Law and Governance
 Meaning
• The primary purpose of such a doctrine is to separate that portion of
statutory legislation deemed to be void ab initio (void from the very
inception) from the part or portion considered being of a valid nature.
• The word ‘severe’ has come from the Latin word ‘salvatorious’. It
means ‘to estrange’, ‘separate’, ‘isolate’ or ‘segregate’.
• Doctrine of severability provides that if an enactment cannot be saved
by construing it consistent with its constitutionality, it may be seen
whether it can be partly saved.
• Merriam-Webster’s English dictionary defines severability as “…
invalidation of some sections or clauses in the document (that) will
not affect the validity of the remainder.”
• The doctrine of “severability” permits a court to excise the
unconstitutional portion of a partially unconstitutional statute in order
to preserve the operation of any uncontested or valid remainder
 Continued:
• It is the true nature of the subject-matter of the legislation that
is the determining factor, and while a classification made in the
statute might go far to support a conclusion in favour of
severability, the absence of it does not necessarily preclude it.
• The doctrine of severability rests, on a presumed intention of
the legislature that if a part of a statute turns out to be void,
that should not affect the validity of the rest of it, and that
that intention is to be ascertained from the terms of the
statute.
• the concept of ‘Severability’ or ‘separability’ means that if an
offending and inappropriate provision of statutory legislation
can be separated from that portion of the statute which is
deemed to be of a valid and constitutional nature, then only that
part which is offending and repugnant shall be declared as being
void, and not the entire statute itse
 Continued:
• According to judicial interpretations and various
insights made into the field of constitutional law,
the concept of ‘Severability’ or ‘separability’ means
that if an offending and inappropriate provision of
statutory legislation can be separated from that
portion of the statute which is deemed to be of a
valid and constitutional nature, then only that part
which is offending and repugnant shall be declared
as being void, and not the entire statute itself.
Origin of the Term 
 Origin or Evolution of Rule
• The Doctrine of Severability owes its origins to the Law of
Contracts.
• In the Law of Contracts, this Doctrine has been defined as
“...if parts of the contract are held to be illegal or otherwise
unenforceable, the remainder of the contract should still
apply.”
• However this rule is not an indefeasible or absolute one.
• There are certain limitations/restrictions that have been
placed on such a rule.
• The doctrine traces its origin in Nordenfelt v. Maxim
Nordenfelt Guns and Ammunition Company Ltdiii.
 Continued:
• In this case, a manufacturer (Nordenfelt) was specializing in the making of certain
armaments. He later on sold his business to a certain American inventor, Sir
Hiram Maxim. The agreement between the parties was that Nordfelt would not
make guns or ammunition anywhere else in the world. Neither would he
(Nordfelt) compete or attempt to compete with Maxim for a period of 25 years.
Subsequently, a case was filed before the House of Lords. Two contentious
questions/issues arose before the House of Lords in this case.
• They held that since Nordfelt had already paid a substantial sum amount of
money as “legal” consideration to Maxim in exchange to honor his (Nordfelt’s)
promise to cease- and-desist from manufacturing armaments, the contractual
provisions that sought to ban him from manufacturing armaments and guns
around the world were of a valid legal nature.
• But as far as the second condition of banning competition for a period of 25 years
was imposed, the House of Lords felt it was unfair and fell more into the nature of
a “restraint of trade”—a forbidden commercial practice employed by proponents
of monopoly and subsequently prohibited by the law due to the obvious reasons
of it being violative to the principles of ‘fair’ free trade; a mode of trade practice,
 Why
•  The Courts would accept an interpretation,
which would be in favour of constitutionality
rather than the one which would render the
law unconstitutional.
• The court can resort to reading down a law in
order to save it from being rendered
unconstitutional. But while doing so, it cannot
change the essence of the law and create a
new law which in its opinion is more desirable.
Cooley's Constitutional Limitations
• It states that if the valid and invalid provisions are so
inextricably mixed up that they cannot be separated
from one another, then the invalidity of a portion
must result in the invalidity of the Act in its entirety.
• If they are so distinct and separate that after striking
out what is invalid, what remains is in itself a
complete code independent of the rest, then it will
be upheld notwithstanding that the resthas become
unenforceable.
 Crawford on Statutory Construction Rule

• It states that even when the provisions which

are valid are distinct and separate from those
which are invalid, if they all form part of a
single scheme which is intended to be
operative as a whole, then also the invalidity
of a part will result in the failure of the whole.
 Limitations of the Rule
• If the fundamental principles and grounds of
are likely to be changed, altered, modified,
restructured, rearranged, reshuffled,
destroyed, or amended in any construction of
the constitution, then the Doctrine of
Severability shall not be applicable to such a
construction.
 Guidelines Regarding the question of severability (RMD)
1. The intention of the legislature is the determining factor in determining whether the valid part of
a statute are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from
the another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
3. If they are so distinct and separate that after striking out what is invalid what remains is itself a
complete code independent of the rest, then it will be upheld notwithstanding that the rest had
become unenforceable.
4. Even when the provisions which are valid, are distinct and separate from those which are invalid if
they form part of a single scheme which is intended to be operative as a whole, then also the
invalidity ofa part will result in the failure of the whole.
5. Likewise when the valid and invalid parts of a Statute are independent and do not form part of a
Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of legislature, then also it will be
rejected in its entirety.
6. The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of
the matter that is material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.
7. If after the inval id portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void as otherwise it will amount to judicial legislation.
8. In determining the legislative intent on the question of severability, it will be legitimate to take
into account the history of legislation, its object, the title and preamble of it
 Leading Cases
• Kihoto Hollohan vs Zachillhu And Others,  it was said that the doctrine
of severability envisages that if it is possible to construe a statute so
that its validity can be sustained against a constitutional attack it
should be so construed and that when part of a statute is valid and
part is void, the valid part must be separated from the invalid part.
• D.S. Nakara & Others v. Union of India, the court said that whenever
a classification is held to be impermissible and the measure can be
retained by removing the unconstitutional portion of classification or
by striking down words of limitation, the resultant effect may be of
enlarging the class. In such a situation, the Court can strike down the
words of limitation in an enactment. That is what is called reading
down the measure.
 Continued:
• in the case of A. K. Gopalan v. State of Madras, the
Court observed that what we have to see is, whether the
omission of the impugned portions of the Act
will “change the nature or the structure or the object of
the legislation or not”.
• In State of Bombay v. F.N. Balsara,A.I.R.l.951 S.C. 318 it
was held that the provisions of the Bombay Prohibition
Act, 1949 which were declared as void did not effect the
validity of the entire Act and therefore there was no
necessity for declaring the entire statute as invalid.