:: Rule of Severability & Doctrine of Eclipse ::

Introduction :
Constitution of India is the supreme and fundamental law of our country. Statutes passed or made by legislature must abide by the constitutional provisions. The Judiciary performs its chief function of administration of justice by way of interpretation of statutes as well as constitution. The interpretation of statutes is done while keeping in view the law making powers conferred on the legislature in the various Lists under the constitution. Whereas the interpretation of constitution is done while keeping in view the ideals, objectives and values of the constitution. Hence, the principles of interpretation of statutes and of constitution are different. Some of the principles of interpretation of statutes are : a. Rule of Literal Interpretation b. Mischief Rule c. Golden Rule etc. Some of the principles of interpretation of constitution are : a. Principle of Harmonious Construction b. Doctrine of Pith and Substance c. Doctrine of Colourable Legislation d. Rule of Severability e. Doctrine of Eclipse etc. The exclusive power of interpreting the constitution vests in the Supreme Court.

Rule of Severability :
This rule serves as an aid for determining the constitutionality of a law as defined in Article 13 of the Constitution. The term sever has its origin in the latin term separare which means to separate, to disjoin or to divide. This rule is based on the ability of some provisions of a law to be separated from other provisions of that law. Article 13 does not make the whole Act inoperative, it makes inoperative only such provisions of it as are inconsistent with or violative of the Part III of the Constitution. In A. K. Gopalan v. State of Madras [AIR 1950 SC 27], the Supreme Court considered this doctrine and held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective. In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], the Supreme Court held that 8 sections of the Bombay Prohibition Act, 1949 were ultra vires and so void on the ground that they infringed the fundamental rights of the citizens, but did not affect the validity of the entire Act and therefore there was no necessity for declaring the entire statute as invalid. In R.M.D.C. v. Union of India [AIR 1957 SC 628], the Supreme Court has elaborately restated the doctrine of severability as follows : 1. The intention of the legislature is the determining factor in determining whether the valid parts of a statute are severable from the invalid parts. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from the other, then the invalidity of a portion must result in the invalidity of the Act in its

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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. Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Likewise when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety. The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein. If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation. In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it.

In Cf. Ramkrishna Dalmia v. Tendolkar, S. R. [AIR 1958 SC 538], the Supreme Court held that the principle is applicable where, though an enactment as a whole is within the legislative competence of a Legislature, particular provisions of the enactment got outside the scope of the legislative Entry under which the Legislature enacted the law. Thus the rule operates as follows : Where the valid and invalid parts of the Act are severable : If the valid part can survive independently according to the intention of Legislature, the valid part of the Act remains operative. If the valid part cannot survive independently, the whole Act is declared invalid. If the valid and invalid part form a part of single scheme intended to be operative as a whole, the entire Act is declared invalid. If the valid and invalid part do not form a part of single scheme and the valid part is so thin and truncated as to be different in substance than earlier, the entire Act is declared invalid. If the valid portion cannot be enforced without alteration or modifications therein, the whole Act is declared invalid. Where the valid and invalid parts of the Act are not severable : The whole Act is declared invalid. This process is known as doctrine of severability or reparability. The power of the court to strike out invalid provisions of an Act must not be exercised beyond the necessity of the case.

Doctrine of Eclipse :
This doctrine serves as an aid for determining the constitutionality of a law as defined in Article 13 of the Constitution i.e. an existing law. The term eclipse means to cast a shadow upon something or to surpass in importance, power etc. The doctrine of Eclipse is based on the ability of the void existing laws to be operative again. A legal provision was enacted in 1948, authorizing the State Government to exclude all private motor transport business. It became inconsistent with Art. 19(1)(g) when the Constitution came into force in 1950.

In 1951, Art. 19(1)(g) was amended to permit the State Government to monopolize any business. Due to it, these questions were raised : What was the effect of the constitutional amendment of 1951 on the law of 1948 ? Whether the law having become void was dead once for all and so could not be revitalized by a subsequent constitutional amendment without being re-enacted, or whether it was revived automatically ? To solve this this problem, in Bhikaji Narain Dhakras v. State of Madhya Pradesh [AIR 1955 SC 781], the Supreme Court enunciated the doctrine of eclipse and held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal. The doctrine envisages that an existing law inconsistent with a fundamental right though becomes inoperative from the date of the commencement of the Constitution, is not dead altogether. It is just overshadowed by the fundamental right and remains dormant for citizens but functional for non-citizens. In Saghir v. State of Uttar Pradesh [AIR 1954 SC 728], the Supreme Court held that the doctrine of eclipse cannot apply to the post-Constitution law as Art. 13(2) explicitly prohibits the making of an inconsistent law and is thus void ab-initio and it cannot revive even if the relevant Fundamental Right is amended later to remove hurdle in the way of such a law. In State of Gujarat v. Shri Ambica Mills Ltd. [AIR 1974 SC 1300], Justice Deshpande argued cogently favouring the doctrine of eclipse be extended to the post-Constitution laws also and mere amendment of the law be sufficient to revivify it. Thus the doctrine of eclipse seeks to just overshadow an invalid law or provisions of a law for the time period until the shadow of fundamental right is lifted by any subsequent amendment, but does not abolish the law.

Opinions, comments and suggestions :

Article 13(2) which applies to post-Constitution laws prohibits the making of a law abridging Fundamental Rights and so the inconsistent law is void since its inception and hence no operation of the above doctrines is needed in that case. Article 13(1) which applies to the pre-Constitution laws have no such prohibition and hence the operation of the pre-Constitution laws remains unaffected until the commencement of the Constitution. Hence the doctrines of severability and eclipse apply largely to Art. 13(1). The existing Act declared unconstitutional may be operative for those who have not been given Fundamental Rights i.e. non-citizens but after the relevant amendment in the Constitution, it becomes again operative for all. An Act declared unconstitutional under Art. 14, 19 and 31(2) is revived when it is put in the IXth Schedule as Art. 31B cures the defect in such an Act with retrospective operation. Where the doctrine of severability seeks to invalidate an inconsistent law, the doctrine of eclipse tries to save the law from getting destroyed by keeping it in a dormant state. These doctrines of interpretation do not apply to uncodified personal laws or unwritten laws as they are not passed or made by legislative authorities in view of the words passed or made by legislature or other competent authority used in Art. 13(3) of the Constitution. The legislative overreach is questioned and these doctrines of interpretation act as a check and control of the legislative powers conferred under the Constitution. These doctrines not only act as the principles of interpretation of Constitution, but also operate as general rules of interpretation.