Doctrine of severability or separability

Meaning of Doctrine of severability or separability :

It means that if a part of statute is declared unconstitutional then only that part is void & not the whole o, statute. So, if the defending provision can be separated from that part which is constitutional then only that part is declared void and not the entire statute.

Provision of Law on which Doctrine of severability or separability is based :

• This doctrine is based on Article 13 of The Indian Constitution.
• Article 13 (1) of The Indian Constitution provides that all the laws in force in the territory of India immediately before the commencement of the constitution shall be void to the extent to which they are inconsistent with the part III of The Indian Constitution dealing with fundamental rights.
• It used the words ‘to the extent of such inconsistency’ therefore only such provisions which are repugnant shall be treated by courts as void and not whole statute.

Case Laws :

In AK Gopalan v/s State of Madras AIR 1950 The Supreme Court declared Section 14 of Preventive Detention Act, 1950 and held that the impugned act minus this section can remain unaffected. The omission of this section will not charge the nature or the structure of the subject of the legislation. Hence, Doctrine of Severability was applied.

Exception of Doctrine of Severability :

If the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete remainder, then the court will hold the entire act void.

Doctrine of Eclipse :

Meaning :

It means that any provision which violates fundamental rights is not void-ab-initio from the very beginning but becomes unenforceable due to ‘being shadowed’ and ‘eclipsed’ by fundamental rights. Such provision becomes dormant which would again come into effect and become enforceable after the eclipse of fundamental right is removed. These are merely dormant and not dead.

Features of Provisions under doctrine of eclipse:

• They are merely dormant and not dead.
• Such laws are not wiped out completely from the statute book.
• They exist for all the past transactions and rights acquired before the present constitution came into force and for determination of rights of persons who don’t have fundamental rights that is non citizens in certain cases where some fundamental rights are not available to them.

Case Laws on doctrine of eclipse :

In Bhikaji v/s State of Madhya Pradesh

Facts : A provision of C.P. and Berar Motor Vehicles (Amendment) Act, 1947 authorized the State Government to monopolize the motor transport business of province to the exclusion of motor transport operators. This provision was valid when enacted. It became void when in 1950, The Indian Constitution came into force because it guaranteed under Article 19 (1) (g) the fundamental right to carry on business ,trade. occupation. It again became valid when Constitutional First Amendment Act was passed which added the reasonable restriction that the government may monopolize any business.

Held : The Supreme Court held that the amendment resulted in the removal of shadow (eclipse) and to make the impugned act free from all infirmity. As soon as the eclipse was removed the law began operating from the date of removal of such restriction.

Application of the doctrine of eclipse on the post constitutional laws:

In case of Deep Chand v. State of U.P. AIR 1959, the SC held that a law which contravenes the Fundamental rights is void ab initio as per article 13(2) of the Indian Constitution and hence subsequent amendment can’t revive it.

In case of Mahendra Lal Jain v. state of U.P. AIR 1963, the SC again approved Deep chand case view and held that doctrine of eclipse applies only on pre constitutional laws u/a 13(1) and not on post constitutional laws under article 13(2).

In case of State of Gujarat v. Ambica Mills AIR 1974 the SC modified its view in Deep Chand and Mahendra Lal’s case and held that the laws contrary to article 13(2) are not void ab initio and will operate for such people who are non citizens. Hence doctrine of eclipse is applicable on post constitutional laws also.

Doctrine of Eclipse

It means waiving off ones rights. It deals with the question that fundamental rights of citizens can be waived off (voluntarily abandoned by them) or not.

Case laws;

In Basheshar Nath v. Income Tax commissioner AIR 1959 the petitioner’s case was referred to income tax commissioner u/s 5(1) of the act and he was charged for concealment of large amount of income. He agreed at a settlement in 1954 to pay Rs 3,00,000 monthly as arrears of tax and penalty amount.

However in 1955, another case came to the SC namely Muthiah v. IT commissioner. In this case the SC held section 5(1) of Taxation of Income( investigation commission) Act as void as being ultra vires of article 14 of Indian Constitution.

The petitioner of former case challenged the settlement of Rs 3 lacs as null and void.

However the respondent agreed that when the petitioner agreed for settlement he waived off his Fundamental right u/a 14 of Indian constitution.

Held

The SC with majority held that the doctrine of waiver is a concept of American legal system and can’t be applied to India. The Indian citizens can’t waive their fundamental rights conferred by the part III of the Indian constitution. Fundamental rights are an obligation imposed upon state as a matter of public policy. No person can relieve state of this obligation as most of Indian people are economically poor, politically unconscious and educationally backward. Since they can’t protect their rights, it is the duty of state to protect them

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