Explain the rule of severability with reference to clauses (1) and (2) of Article 13 of the Constitution.

The Text of Article 13(1) and (2)

Article 13(1) declares that all laws in force in India immediately before the commencement of the Constitution "shall, to the extent of such inconsistency, be void," insofar as they are inconsistent with Part III. Article 13(2), which governs post-Constitution laws, prohibits the State from making "any law which takes away or abridges" a Fundamental Right, and provides that any law made in contravention of this clause shall, "to the extent of the contravention, be void." The common thread running through both clauses is the phrase "to the extent," which is the textual anchor of the severability doctrine — the framers deliberately chose partial invalidation over wholesale annulment, ensuring that one repugnant provision does not bring down an entire statute if the rest can meaningfully survive on its own.

The Distinction Between the Two Clauses

Though the severability principle applies uniformly, the consequence of invalidity differs between the two clauses. A pre-Constitution law caught by Article 13(1) was validly enacted when made and only becomes void from 26 January 1950 onward, to the extent of the inconsistency; it remains fully effective for the period before the Constitution commenced, and can even be revived later — through the doctrine of eclipse — if the corresponding Fundamental Right is subsequently amended to remove the conflict, since the law was never a nullity but merely overshadowed. A post-Constitution law caught by Article 13(2), by contrast, is void ab initio to the extent of the contravention — it is "still-born" from the moment of its enactment, and the Supreme Court in Deep Chand v. State of U.P. and Mahendra Lal Jain v. State of U.P. held that the doctrine of eclipse does not apply to such laws, precisely because there was never a valid law in existence for it to be revived. Severability, however, operates on both categories in the same manner once the offending provision is identified: the void portion is cut away, and the remainder is examined to see whether it can stand as an independent, workable piece of legislation.

The Governing Test: R.M.D.C. v. Union of India

The classic formulation of the severability test came in R.M.D. Chamarbaugwala v. Union of India, arising under the Prize Competitions Act, 1955. Section 2(d) of the Act defined "prize competition" broadly enough to cover both gambling-type competitions and competitions substantially dependent on skill, such as crossword puzzles. Since Parliament could validly restrict the former under Article 19(6) but had no power to restrict the latter, being outside any permissible restriction on the freedom of trade and business under Article 19(1)(g), the Court held that the two categories were clearly distinguishable and confined the operation of the Act to competitions of a gambling character alone, holding the rest severable and valid. The Court laid down the guiding principles: first, whether the legislature would have enacted the valid part alone had it known the remainder was invalid; second, whether the valid and invalid parts are so distinct that after excising the invalid portion, what remains is a complete code capable of independent existence; and third, that if the valid and invalid parts together form a single indivisible scheme, or if the surviving portion becomes so truncated as to be substantially different from the original enactment, the whole statute must fall, since selective preservation in such a case would amount to impermissible judicial legislation.

Illustrations Applying the Test

In Chintaman Rao v. State of Madhya Pradesh, a provision empowering the prohibition of bidi manufacturing in certain areas swept within it both permissible and impermissible restrictions on the right to trade without any clear demarcation, and since the Court could not separate the valid application from the invalid without effectively rewriting the provision, it struck down the entire clause. By contrast, in A.K. Gopalan v. State of Madras, the Court found that Section 14 of the Preventive Detention Act, 1950, which barred disclosure of detention grounds even before a court, violated Article 22, but severed only that section, holding the rest of the preventive detention scheme to be complete, workable, and independent of the excised provision. Similarly, in State of Bombay v. F.N. Balsara, arising under the Bombay Prohibition Act, 1949, the Court clarified that "void to the extent of such inconsistency" in Article 13 means only the repugnant provisions are treated as void, and a law can even be valid as against one class of persons, such as non-citizens who possess no fundamental right under Article 19, while being void as against citizens, since voidness under Article 13 is not voidness in rem but only to the extent of the actual contravention of the right conferred on a particular class.

Extension to Constitutional Amendments

The doctrine's application is not confined to ordinary statutes but extends to constitutional amendments as well. In Minerva Mills Ltd. v. Union of India, the Supreme Court struck down clauses (4) and (5) inserted into Article 368 by the Forty-Second Amendment as exceeding the amending power and destructive of the basic structure, while leaving the rest of that Amendment Act intact and operative. Likewise, in Kihota Hollohan v. Zachilhu, the Court held that paragraph 7 of the Tenth Schedule, which excluded judicial review of the Speaker's decision on disqualification, could be severed from the remaining provisions of the Tenth Schedule, since the surviving portion formed a complete and workable anti-defection scheme independent of the excised clause requiring State ratification separately from the rest.

Comparative Snapshot

These decisions confirm that while Article 13(1) and 13(2) address different categories of law and carry different consequences regarding revival, the underlying severability technique — identifying the offending part with precision and asking whether the residue can function as an independent, complete, and workable law without judicial rewriting — remains the single unifying principle governing both clauses.