Doctrine Of Severability And A.k. Gopalan Case
The doctrine of severability, also known as separability, states that if a portion of a statute is declared unconstitutional, the unconstitutional portion is to be removed, while the remaining valid portion remains in effect. The idea is to keep the Act or legislation in effect by removing only the void portions and keeping the rest. It is not the entire Act that would be declared invalid for violating Part III of the Constitution, but only those provisions that violate fundamental rights, provided that the part that violates fundamental rights is separable from the part that does not isolate them. The court will declare the entire Act void if the valid portion is so closely mixed up with the invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder. The doctrine of Severability or Separability is the name given to this process.
In A.K. Gopalan v. State of Madras, the Supreme Court held that preventive detention without Section 14 was valid because the omission of Section 14 from the Act did not change the nature or object of the Act, and thus the rest of the Act remained valid and effective. In D.S. Nakara v. Union of India, the doctrine was applied, with the Act remaining valid while the invalid portion was declared invalid because it was severable from the rest of the Act. The Supreme Court of India held in State of Bombay v. F.N. Balsara that the provisions of the Bombay Prohibition Act, 1949 that were declared void did not affect the validity of the entire Act, and thus there was no need to declare the entire statute invalid.
The Supreme Court has given careful consideration to the doctrine of severability, and has established the following rules regarding severability:
(1) When determining whether the valid parts of a statute are severable from the invalid parts, the legislature's intent is the determining factor.
(2) If the valid and invalid provisions are so inextricably intertwined that they cannot be separated, then the invalidity of one portion must result in the invalidity of the entire Act. On the other hand, if they are sufficiently distinct and separate that what remains after striking out what is invalid is a complete code unto itself, it will be upheld even if the rest has become unenforceable.
(3) Even if the valid provisions are distinct and distinct from the invalid provisions, if they are part of a single scheme intended to operate as a whole, the invalidity of one part will result in the failure of the whole.
(4) Similarly, if the valid and invalid parts of a statute are separate and do not form part of a Scheme, but what remains after removing the invalid portion is so thin and truncated that it is in substance different from what it was when it was enacted, it will be rejected in its entirety.
(5) The severability of a Statute's valid and invalid provisions is not determined by whether they are enacted in the same section or a different section; it is the substance of the matter, not the form, that is important, and that must be determined by examining the Act as a whole and the setting of the relevant provisions therein.
(6) If, after the invalid portion of the Statute is removed, what remains cannot be enforced without significant changes and modifications, the entire Statute must be declared null and void, as it would otherwise be judicial legislation.
(7) It will be permissible to consider the legislative history, object, title, and preamble in determining the legislative intent on the issue of severability.