Published On: April 23. 2026
Authored By: Parul raj
Amity University Jharkhand
Abstract
The Doctrine of Severability is a constitutional principle enshrined under Article 13 of the Constitution of India, which provides that a law violating fundamental rights is void only to the extent of such inconsistency, and not in its entirety. Its purpose is to preserve the valid parts of a statute while excising the unconstitutional portions.
Courts apply this doctrine by examining whether the invalid provisions can be separated from the remainder of the law without affecting its overall purpose. If the remaining part is independent and workable, it is upheld; otherwise, the whole statute may be struck down.
The Supreme Court of India has elaborated the contours of this doctrine in several landmark judgments. In R.M.D. Chamarbaugwala v. Union of India,[1] the Court laid down the foundational tests for severability, emphasising that the intention of the legislature and the separability of provisions are the crucial determinants. Numerous subsequent decisions underscore the judiciary’s role in balancing constitutional guarantees with legislative competence.
This article finds that the Doctrine of Severability functions as a pragmatic tool that balances constitutional supremacy with due respect for legislative intent. It enables courts to preserve valid laws while protecting fundamental rights, thereby promoting legal stability. However, its application requires judicial restraint, as excessive or unprincipled use may lead to indirect judicial law-making.
I. Introduction
Chief Justice John Marshall, in the celebrated case of Marbury v. Madison (1803),[2] famously declared, when establishing the doctrine of judicial review, that it is “the province and duty of the judicial department to say what the law is.” Yet saying what the law is inevitably requires saying what the law is not.
When a part of a statute is declared unconstitutional, a question immediately arises: must the whole statute be declared void, or only that part which is unconstitutional? To resolve this problem, the Supreme Court of India has developed the Doctrine of Severability (also referred to as the Doctrine of Separability). This doctrine holds that if an offending provision can be separated from the constitutional remainder of a statute, only the offending part is to be declared void, the rest of the statute survives.
In simple terms, this doctrine acts as a shield for Fundamental Rights by providing that any law, whether old or new, that violates Fundamental Rights shall be struck down and considered void only to the extent of that violation. Article 13 of the Constitution of India gives express textual foundation to this principle through the phrase “to the extent of such inconsistency be void,” which means that when some provisions of a law are held to be unconstitutional, only those repugnant provisions shall be treated as void, not the whole statute.
The Doctrine of Severability may be understood through the analogy of a strainer. Imagine placing a law into a strainer, where the mesh represents the fundamental rights guaranteed under Article 13 of the Constitution. As the law is filtered, only those provisions that conform to fundamental rights pass through and remain valid. Any provision that violates or is inconsistent with those rights is caught in the strainer and removed, thereby being declared unconstitutional. This analogy captures the essence of the doctrine: it does not discard the entire law merely because a part of it is invalid. Instead, it carefully separates the constitutional from the unconstitutional, functioning as a filtering mechanism that preserves legislative intent while ensuring that all laws remain consistent with constitutional guarantees.
II. The Tests for Severability
In India, the Doctrine of Severability is shaped by constitutional text, legislative practice, and judicial interpretation. In R.M.D. Chamarbaugwala v. Union of India,[3] the Supreme Court articulated the three foundational tests governing the doctrine’s application:
Test 1 – Legislative Intent: In determining whether the valid parts of a statute are separable from the invalid parts, the intention of the legislature is the determining factor. The test to be applied is whether the legislature would have enacted the valid part had it known that the rest of the statute was invalid.
Test 2 – Inextricable Connection: If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one 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 in itself a complete code independent of the rest, it will be upheld notwithstanding that the invalid remainder has become unenforceable.
Test 3 – Single Legislative Scheme: Even where the provisions that are valid are distinct and separate from those that are invalid, if all of them form part of a single scheme intended to be operative as a whole, the invalidity of one part will result in the failure of the whole.
The Doctrine of Severability is thus applied primarily by examining the intention of the legislature. If the valid and invalid parts of a statute are so closely connected that they cannot be separated, the entire law is rendered void. Where the valid provisions are distinct, independent, and capable of functioning on their own, however, they may be upheld even after the invalid portions are removed. Nevertheless, if all provisions form part of a single, inseparable legislative scheme, the invalidity of one part may lead to the failure of the whole statute.
III. Landmark Judicial Interpretations
1. A.K. Gopalan v. State of Madras, AIR 1950 SC 27[4]
In this landmark judgment, the Supreme Court, while declaring Section 14 of the Preventive Detention Act, 1950 to be ultra vires the Constitution, observed: “The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act.” This decision represents one of the earliest and clearest applications of the severability doctrine in independent India.
2. State of Bombay v. Balsara, AIR 1951 SC 318[5]
In a case arising under the Bombay Prohibition Act, 1949, the Supreme Court observed that the provisions declared void did not affect the entire statute, and therefore there was no necessity for declaring the statute as a whole to be void. The Court recognised, however, that this principle admits of one exception: if the valid part is so closely intertwined with the invalid part that separating them would leave behind an incomplete or significantly distorted remainder, the courts may declare the entire Act void. The primary test is whether the remaining portion is so inseparably connected with the invalid part that it cannot function independently.
3. Romesh Thappar v. State of Madras, AIR 1950 SC 124[6]
The Court stated that “where a law purports to authorise the imposition of restrictions on a Fundamental Right in language wide enough to cover restrictions both within and without the limits provided by the Constitution, and where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” This case illustrates the limits of severability where legislative language is constitutionally overbroad and inseverable.
4. Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412[7]
The Supreme Court held that the Tenth Schedule of the Constitution, minus Paragraph 7, is constitutional. Paragraph 7, which provided that the Speaker’s decision regarding disqualification would be final and beyond judicial review, was held to be unconstitutional. The Court found that Paragraph 7 was severable from the main provisions of the Tenth Schedule, and that the remaining provisions, being independent, complete in themselves, and workable, could stand without it. This case is a definitive illustration of the doctrine’s application to constitutional amendments themselves.
5. Association of Unified Telecom Service Providers of India v. Union of India, (2020) 3 SCC 525[8]
In this case concerning telecom licensing, the Supreme Court applied the Doctrine of Severability to hold that certain provisions of the relevant telecom agreements and regulatory framework that were found to be unconstitutional and arbitrary could be severed from the remainder. The provisions not affected by the invalidity continued to remain enforceable. The case reaffirmed the principle that courts must endeavour to preserve valid contractual and statutory obligations while striking down only those provisions that fail constitutional scrutiny.
6. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1[9]
In this historic judgment, the Supreme Court decriminalised consensual same-sex relations between adults. The Court declared those provisions of Section 377 of the Indian Penal Code, 1860 that criminalised consensual adult same-sex conduct to be unconstitutional, while upholding the remaining provisions of Section 377, which criminalise non-consensual acts and acts involving minors, as valid and enforceable. This case demonstrates the doctrine’s applicability in the context of the decriminalisation of personal conduct and the protection of individual rights under Part III of the Constitution.
7. Shayara Bano v. Union of India, (2017) 9 SCC 1[10]
The Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) among Muslims to be unconstitutional and void, finding it to be manifestly arbitrary and violative of the fundamental rights of Muslim women. The Court held that the specific provision permitting instant triple talaq could be severed from the broader body of Muslim personal law, leaving the remainder of that personal law unaffected and enforceable. This case is a significant illustration of the doctrine’s application within the domain of personal laws and its role in safeguarding the constitutional rights of women.
IV. Criticisms of the Doctrine
1. The Problem of Inferring Legislative Intent: Courts applying the doctrine are required to discern what the legislature intended, specifically, whether it would have enacted the statute had it known that some provisions were constitutionally invalid. Legislatures do not pass statutes with the anticipation of constitutional objections, which leaves courts with the essentially fictional task of reconstructing a hypothetical legislative intent that never actually existed.
2. Risk of Judicial Encroachment on the Legislative Domain: The doctrine empowers courts to modify the effective scope of a statute by excising certain provisions, potentially crossing the boundary between constitutional adjudication and legislative function. When courts sever provisions and reshape a statutory scheme, they may inadvertently assume a quasi-legislative role that is difficult to reconcile with the principle of separation of powers.
3. Expansion of the Scope of Constitutional Challenge: The doctrine can broaden the scope of litigation in ways that may be procedurally unfair. A petitioner challenging a specific provision may, through the application of severability analysis, inadvertently subject the entire statute to judicial scrutiny.
4. Concerns Regarding Locus Standi: This expansion of judicial review becomes particularly problematic when a petitioner lacks standing to challenge the entire statute. The doctrine may thus allow courts to examine legislative provisions that no party before the court has been granted standing to contest, deviating from the general principle that locus standi must be independently established for each provision challenged.
5. Risk of Inconsistency in Application: Because the doctrine’s application is inherently evaluative and turns on contextual judgments about legislative intent and the functional interdependence of statutory provisions, there is an inherent risk of inconsistency across decisions. Different benches may reach different conclusions on materially similar facts, undermining predictability and the rule of law.
V. Conclusion
The Doctrine of Severability is a cornerstone of Indian constitutional law, serving as a crucial mechanism to balance the supremacy of Fundamental Rights with due respect for legislative intent. By enabling courts to invalidate only the unconstitutional portions of a statute while preserving the valid remainder, the doctrine ensures that laws are not unnecessarily struck down in their entirety. This approach promotes legal continuity, institutional stability, and judicial restraint. Landmark judicial decisions — from A.K. Gopalan v. State of Madras to Navtej Singh Johar v. Union of India, clearly demonstrate the doctrine’s enduring relevance and its central role in shaping constitutional adjudication in India.
At the same time, the doctrine presents significant challenges. Its application often requires courts to infer legislative intent, a process that is inherently subjective and susceptible to uncertainty. This raises legitimate concerns about inconsistency in judicial reasoning. Additionally, by severing parts of statutes, courts may unintentionally alter the structure or purpose of the law as a whole, giving rise to criticism of judicial overreach and encroachment upon the legislative domain. Procedural complexities also arise, as the doctrine may broaden the scope of constitutional challenges, allowing courts to examine entire statutes even when only specific provisions have been questioned.
Despite these limitations, the Doctrine of Severability remains an indispensable tool in constitutional interpretation. It reflects a pragmatic and balanced approach, ensuring that constitutional guarantees are protected without dismantling the legislative framework entirely. Its continued effectiveness, however, depends upon cautious and principled application by the judiciary. Courts must exercise restraint and clarity in reasoning, ensuring that the doctrine strengthens constitutional governance while preserving the democratic legitimacy of the law-making process.
References
[1] R.M.D. Chamarbaugwala v. Union of India, AIR 1957 SC 628, 1957 SCR 930 (India).
[2] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[3] R.M.D. Chamarbaugwala v. Union of India, AIR 1957 SC 628, 1957 SCR 930 (India).
[4] A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (India).
[5] State of Bombay v. Balsara, AIR 1951 SC 318 (India).
[6] Romesh Thappar v. State of Madras, AIR 1950 SC 124 (India).
[7] Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 (India).
[8] Association of Unified Telecom Service Providers of India v. Union of India, (2020) 3 SCC 525 (India).
[9] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
[10] Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
Secondary Sources:
Dr. J.N. Pandey, The Constitutional Law of India (Central Law Agency, latest edition).
