Doctrine of Severability

Doctrine of Severability

Doctrine of Severability It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the fundamental rights is separable from that which does not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. This process is known as doctrine of severability or separability.

Doctrine of Severability

In layman language, it is more like a filter, through which Pre-Constitutional Laws goes through. Any provision of a Law which is inconsistent with Fundamental Right and its absence would not affect the cardinal functioning of the Statute; the filter will stop that provision and let the whole Statute pass through it. If such provision is cardinal to the functioning of the whole Statute; consequently the Filter will stop the whole Statute all together from passing off.

Doctrine of Severability

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 and held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra rites and that his detention was therefore illegal:.

Doctrine of Severability

In the case of A.K. Gopalan v. the State of Madras, it was held by the majority judges that punitive and preventive detention were outside the ambit of Article 19 ( Right of freedom )of the Constitution of India and hence the Preventive Detention Act, 1950 had not violated it. It was also contended by the court that the said article which provides protection to citizens who are free, therefore not the citizen whose freedom is restrained by law, and the question of enforcing Article 19(1) does not arise.

The Preventive Detention Act, 1950 has followed the valid procedure as in the form enacted by the state’s law and therefore the Apex court came upon the argument that it does not infringe upon the rights under Article 21 of the Indian Constitution. Article 21 reads as: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

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