The document discusses the doctrine of severability, which refers to separating the valid parts of a statute from any invalid or unconstitutional parts. It provides the Latin and legal definitions of severability. Constitutionally, severability means that if an inappropriate part of a statute can be separated from the valid constitutional parts, then only the inappropriate part will be declared void, not the entire statute. The document then discusses the doctrine of severability in the common law origins of several countries, including key cases. It outlines tests that courts use to determine whether severability applies and whether the valid and invalid parts of a statute can be separated.

1. DOCTRINE OF
SEVERABILITY
KUNAL BASU

2. WHAT DOES SEVERABILITY
MEAN?
Latin Origin: Salvatorious
estrange, separate, isolate or segregate
Legal dictionaries: “...that which is capable
of being separated from other things to
which it is joined and maintaining
nonetheless a complete and independent
existence.”

3. WHAT DOES SEVERABILITY
MEAN?
CONSTITUTIONAL MEANING
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.

4. COURTS ON SEVERABILITY
Common
Law

5. DOCTRINE OF SEVERABILITY IN THE
Originates in the UcKase of Nordfelt v.
Maxim Nordfelt Guns and Ammunition
Company Ltd(1894)
Principle of restrictive trade practices
utilized as against the concept of fair
competition
First recorded case in English history ever
known to apply this judicial doctrine to a
case

6. DOCTRINE OF SEVERABILITY IN
USA
Applied in the case of United States v. Reese(1876) & Reiterated in
Champlin Refining Co. v. Corp. Comm. of Oklahoma(1932)
The concept of successful separation of the void & statutory
legislation from the invalid part without causing the latter(void
statute)from being dependent on the former(valid statute)
Ayotte v. Planned Parenthood of N. New Eng: The court laid down
three principles of severability, “first, we try not to nullify more of a
legislature's work than is necessary . . . . second . . . we restrain
ourselves from rewriting state law to conform it to constitutional
requirements even as we strive to salvage it. Third . . . a court cannot
use its remedial powers to circumvent the intent of the legislature.”

7. DOCTRINE OF SEVERABILITY IN
AUSTRALIA
Doctrine written into law under S. 15A of the Acts Interpretation
Act 1901 limits jurisdiction of courts
Limitation-I: If there are a number of possible ways of reading
down a provision of general application, it will not be so read
down unless the Parliament indicates which supporting heads of
legislative power it is relying on
Limitation-II: A provision of general application will not be read
down unless Parliament indicates an intention that the provision
is to have a distributive operation
Test of reasonability such as restriction(s) on trade

8. DOCTRINE OF SEVERABILITY IN INDIA-I
Art. 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.
Art. 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.
Art. 13(3)(b): Includes ‘laws passed or made by a legislature or other
competent authority in the territory of India before the commencement
of the constitution not previously repealed including customs and
usages and also the laws passed by the British Parliament and applicable
to India like the Fugitive Offenders’ Act 1881.

9. DOCTRINE OF SEVERABILITY IN INDIA-II
RMDC V. UNION OF INDIA
Intention of the legislature will determine whether the valid part of a
statute is severable from the invalid parts
If the valid and invalid provisions are so inextricably mixed up that they
cannot be separated from another, then the invalidity of a portion must
result in the invalidity of the Act in its entirety.
On the other hand, 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.

10. DOCTRINE OF SEVERABILITY IN INDIA-III
R.M.D. Chamarbaugwalla v. The Union of India
Courts would be reluctant to declare a law invalid or ultra
vires on account of unconstitutionality.
Courts would accept an interpretation, which would be in
favor 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.

11. COURTS’ TEST ON
SEVERABILITY
USA UK
Australia Malaysia
India

12. SOME IMPORTANT CASES
CITED
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition
Company Ltd
United States v. Reese
Champlin Refining Co. v. Corp. Commission of Oklahoma Ayotte v. Planned Parenthood of N. New Eng.
Cardegna. V Buckeye Check Cashing Free Enterprise Fund v. Public Co. Accounting
Oversight Board
The King v. Poole; Ex Parte Henry Adamson v New South Wales Rugby League Ltd
Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd Malaysian Bar & Anr. V. Government of Malaysia
Datuk Haji Harun bin Idris v Public Prosecutor Poindexter v Greenhow
Pannalal Binjraj v Union of India Shankri Prasad v Union of Ind
Sajjan Singh v State of Rajasthan L.C. Golaknath v State of Punjab
Kesavananda Bharati v State of Kerala AK Gopalan v State of Madras
RMDC v Union of India Keshavan Madhava Menon v. The State of Bombay
Bhikaji Narain Dhakras and Others v. The State Of Madhya
Deep Chand v State of UP
Pradesh and Anr
Mahendralal Jaini v State State of Gujarat v Shri Ambica Mills
Romesh Thapar v. State of Madras DS Nakara v. Union of India
State of Bombay v. F.N. Balsara R.M.D. Chamarbaugwalla v. The Union of India

13. THANK YOU
Johann Christiaan Kriegler*
If the good is not dependent on the bad and can be separated from
it, one gives effect to the good that remains after the separation if
it still gives effect to the main objective
* Former Constitutional Court and Appeal Court judge from South Africa