Exercising fundamental rights are essential for individuals’ existence and their holistic development. These rights are guaranteed to every citizen irrespective of their race, religion, caste, creed, or gender. Rights are essential to living a decent life and preserving human dignity. The Fundamental rights are incorporated under part III of the Indian constitution ranging from article 12 to 35.
The rights are enforceable against the state as well as against individuals (in some cases). However, it is seen that certain laws end up violating these fundamental rights. In accordance with the Indian Constitution, these rights cannot be violated as these are parts of the basic structure. Hence the judiciary protects the citizen’s fundamental rights from the arbitrary actions of the state through judicial review.
For this purpose, Judiciary applies two doctrines namely the Doctrine of Severability and the Doctrine of Eclipse derived from article 13 of the constitution.
Article 13 deals with the laws that are inconsistent with the provision of part III.
13(1) – “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”
13(2) – “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
Clause 1 of article 13 applies to pre-constitutional laws and clause 2 applies to post-constitutional laws. The Doctrine of Severability and the Doctrine of Eclipse are applicable to pre-constitutional laws as well as post-constitutional laws.
Doctrine of Severability
The Doctrine of severability/separability means if some parts of an Act/Statute are inconsistent with the fundamental rights, that shall be void or ultra-vires and will be severed from the rest part and the rest valid part may continue to operate and be enforceable. The Act may not be void as a whole.
However, in Romesh Thapar v. State of Madras [AIR 1950 SC 124], the Supreme court held that an invalid portion of the Act will only be eliminated if it is severable, meaning that it must be able to carry out the legislative intent for the remaining portion to survive; otherwise, the court would find the entire legislation to be invalid. Separability thus plays a significant role in overturning the unconstitutional provision of the Act.
In the case of A.K. Gopalan v. the State of Madras [AIR 1950 SC 27], A.K. Gopalan was detained under the Preventive Detention Act, 1950 who challenged his detention and called it a violation of his fundamental rights under Article 19(1)(d) and Article 21 which is, the right to freedom of movement and the right to life and personal liberty respectevily. While hearing, the Supreme court held that Section 14 of the Preventive Detention Act, 1950 was inconsistent with fundamental rights and held unconstitutionally. Applying the doctrine of severability, only Section 14 was removed and the whole Act remained valid.
Again, in State of Bombay v. F.N. Balsara [AIR 1951 SC 318], only the Section 13(b) of Bombay Prohibition Act, 1949, which has been declared void as it violated Article 19(1)(f) and did not affect the entire statute. Later, The Supreme Court invalidated sections 4 and 55 of the 42nd Amendment Act of 1976 in the case of Minerva Mills v. Union of India [AIR 1951 SC 318]. The court stated that certain portions were not subject to parliamentary amendment. The other act was still legal. Similarly, In Kihoto Hollohan v. Zachillu, the Court affirmed the Tenth Schedule’s legality while invalidating its seventh paragraph for failing to comply with Article 368(2).
The Supreme court, in R.M.D.C. v. Union of India [AIR 1980 SC 1789] reiterated the following basic nuance of doctrine.
- The legislature’s intention is the determining factor.
- If the Valid and Invalid provisions cannot be segregated from one another, the Act must be nullified in its whole if any part of it is found to be invalid.
- The entire statute must be declared void if, once the invalid element is removed, what is left cannot be implemented without changes and modifications, as doing so would amount to judicial legislation.
The severability doctrine functions as a filter to get rid of a law’s impurities. Any law that violates fundamental rights, regardless of whether it was passed by the current Parliament and Legislative Assembly or during the pre-constitutional era, must pass this crucial test. The protection of each and every resident’s fundamental rights is a key concept of this doctrine. The doctrine has its own relevance for the governance of a welfare state.