Doctrine of Detachment

To ensure a decent life and comprehensive development of a person, fundamental rights play an important role. To ensure this, Part III of the Indian Constitution institutionalised Fundamental rights that apply to all Indian citizens. It is just as crucial to include them in the lawmaking process to understand when any of the laws are violated. 

It is quite justified to wonder whether the entire law or a piece of it becomes void if any component of it is judged to be unconstitutional. The idea of severability, as defined in Article 13 of the Indian Constitution, functions as a protector in preventing violations of basic rights. 

Origin of the Doctrine of Severability

The Doctrine of Severability was developed in England. It was later accepted by the Indian Courts. The issue in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd. was related to trade constraint, and this case is often discussed in origin.  

The court found a clause in the contested agreement to be severable and declared it void. However, it wasn’t exactly the doctrine of severability in this dispute; it was the ‘doctrine of blue pencil’. This was later modified in the course of developments of this doctrine. 

The basis of the Doctrine of Severability

The doctrine of severability asserts that any section or element of law in a statute or an act that is incongruous or obnoxious to the Indian Constitution’s fundamental rights shall be ruled invalid, rather than the entire statute or act. 

To answer the conundrum, the Doctrine of Severability was established. The courts used this doctrine to remove the contentious clause from the act and nullify only that section. As a result, the entire law will not be deemed meaningless. Article 66A of the Information Technology Act of 2000 was contested, the Supreme Court agreed to hear the appeal to nullify only the disputed provision, but upheld the IT Act’s validity. 

According to Article 13, the idea of severability states that a law is ruled unlawful only to the degree that it is incompatible with or breaches the Indian Constitution’s Fundamental Rights. 

The following clause 2 of Article 13 prohibits the state from implementing any legislation that violates Part III of the Constitution’s rights. As a result, the purpose of this article is to protect the authority of the Constitution while also preventing violations of fundamental rights. Clause 3 clarifies the meaning of the word “law” as used in the former clause 2.

What is Article 13 and its relation with the Doctrine of Severability?

Article 13 of the Indian Constitution states that when a specific part of law infringes the fundamental rights of the Constitution and that the disputed part can be cut off from the rest of the law, then the judiciary will act upon it and declare that part as unlawful.

It also states that if the violative and the ethical part of the law can be distinguished to the point that the ethical provision can subsist without the aggressive violative part, then the ethical non-violative part will be accepted by the court and will be legally enforceable. 

The idea of severability is subjected to specific circumstances set down in Article 13 of the Indian Constitution, which is as follows:

• A provision contrary to fundamental rights should be included. That is, you have to show the disputed part of the law that is violating the fundamental rights.

• Then, the provision should be detachable from the law.

• The rest of the law in question should be unaltered.

The Doctrine of Severability acts like the filter

It’s more of a filter for laws that existed before the legalisation of the Constitution. Any section of a law that is incompatible with fundamental rights and whose absence does not impact the statute’s cardinal functionality will be blocked by the filter that is the Doctrine of Severability, which will allow the entire statute to get by. If such a section is essential to the operation of the entire statute, the filter will prevent the entire statute from being passed.

The noteworthy features of the Doctrine of Severability: 

• The Doctrine of Severability allows the Supreme Court and the High Court to use a modern approach to analyse statutes and evaluate existing pre-constitutional law in contemporary scenarios. Amid a raging debate about the legality of judicial action in constitutional concerns, Judicial Review has been expanded in several cases to defend the fundamental rights provided in Part III of the Indian Constitution.

• Article 13 of the Indian Constitution establishes the doctrine of severability, which empowers judicial review of any statute that is deemed to be unlawful or infringing on basic rights.

• It provides security to the individuals because unless the amendments are made, the law is deemed to be ineffective. 

Consequences if the Doctrine of Severability comes into force

According to Article 141, the Supreme Court holds together all the courts. If the Supreme Court of India declares a law or a provision unconstitutional, then all the Indian courts will rule the law invalid. When the supreme court of India, using the doctrine of severability, judges a legislative provision invalid, the same rule applies. 

Few cases related to the Doctrine of Severability:

• The court concluded in the matter of the state of Bombay vs FN Balsara, AIR 1951 SC 318, that the portions of the Bombay prohibition act 1949 that were deemed illegal and unconstitutional had no bearing on the constitutionality and goals of the entire statute. As a result, there was no need to declare the entire act null and void.

• Kihoto Hollahan v. Zachillu (1965) is a well-known defection case. Under the 52nd Amendment Act, 1985, the Indian judiciary ruled that Para 7 of the 10th Schedule of the Indian Constitution was unconstitutional because it breached the stipulations of Article 368. (2). The court, however, only deemed Paragraph 7 void, leaving the rest of the 10th Schedule provisions in place.

Conclusion

The Doctrine of Severability, also known as the Doctrine of Separability, functions as a sieve, removing impurities from law rather than discarding the entire rule. It aids in gaining a firm grasp on pre-constitutional laws to make more effective modifications.