Doctrine of severability says that all those pre-constitutional laws that are not inconsistent with the post constitutional laws will not be legally valid according to this doctrine. the case will help us in understanding this concept in a better way.
STATE OF BOMBAY AND ORS. Vs. F.N. BALSARA
Citation – AIR 1951 SC 318, (1951) IIMLJ141, 2SCR682
Saiyid Fazl Ali, M. Pantanjali Sastri, B K. Mukherjea, Sudhi Rajan Das and Vivian Bose.
Balsara filed petition in the Bombay High Court. He requested for passing an order for forbidding the state and the prohibition commissioner from enforcing the provisions of the Bombay prohibition act,1949. He prayed for granting him the assent to (a) allow him to have the right to consume, possess and use and import and export through the customs certain goods like whisky, brandy, wine and other alcoholic products and medical preparations using these products. (b) to not interfere and restrain him from exercising his rights and he should not be penalised for the same. The petitioner requested for passing an order under the specific relief act.
1) whether keeping and selling the alcohol mixed medicines and other products can be prohibited or not?
2) whether the act fell under Entry List II of the Government of India Act, 1935 namely, “intoxicating liquors, that includes, the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors”, or under Entry 19 of List I namely, “import and export of liquors across customs frontier”, which is a Central subject?
3) whether the act as a whole must be declared void or only the provisions that are unconstitutional must be declared void?
Arguments of Parties:
The petitioner Balsara requested the Court to pass an order to allow him to have the right to consume, possess and use and import and export through the customs certain goods like whisky, brandy, wine and other alcoholic products and medical preparations using these products and to not interfere and restrain him from exercising his rights and thus wanted the government not to object under the Prohibition act in the use of his personal rights and may not take any action against them.
But the respondent opposed it as the right to consume or possess alcoholic products is prohibited by the Bombay Prohibition Act.
This case was challenged on the ground that it incidentally encroached upon import and export of liquors across custom frontier- a Central subject. It was contended that the prohibition, purchase, use, possession and sale of liquor will affect its import
Decision in High Court:
The High Court, agreeing with some of the Petitioner’s allegations and not agreeing with some others, declared some provisions of the Bombay Prohibition Act as legal while some others as illegal. Aggrieved with the decision of High Court both the State Government as well as Balsara, with the permission of High Court, file appeals before the Supreme Court, against the Decision.
Decision of Supreme Court:
The Supreme Court held that if any act passed by the State Legislature, prohibits or controls the export of the things mentioned in Entry 27 or 29 of List (II) outside the boundaries of the State, then the Act is illegal, but that Act has been passed on the basis of the Entry 31 of the List, Section 297(1)(a), therefore does not apply to it. It also held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the entire act and therefore there was no necessity for declaring the entire statute as invalid. The Supreme Court gave weight to Article 47 which directs the State to bring about prohibition of consumption of intoxicating drink except for medical purposes- to support its decision that the restriction imposed by the Bombay Prohibition Act was a reasonable restriction on the right to engage in ant profession or carry on ant Trade.
The Supreme Court declared illegal those provisions of the Bombay Prohibition Act which were regarding keeping alcohol-mixed medicines and toilet goods, selling and buying them and also using them etc as violation of Article 19(1)(g) of the Constitution and the rest of the provisions, legal. It was also decided that an Act, by declaring certain provisions thereof as illegal, cannot be wholly declared as illegal. Hence, selling and keeping of alcohol mixed medicines and other products are not prohibited and are legal.
This case explains that the law is void only to the extent of the inconsistency or any action which offends against a law (contravention). The word “to the extent of the inconsistency or contravention” makes it clear that when some of the provision of a statue when some of the provisions of a statute becomes unconstitutional on account of inconsistency with fundamental rights, only to the contradictory or conflicting provision of the law in question shall be treated by the courts as void, and not the whole statute. This Separation of provisions that are unconstitutional is called as Doctrine of Severability. In this case, it was held that the provision of the Bombay Prohibition Act, 1949 the provisions which are unconstitutional are declared as void and it did not affect the rest of the part hence, the whole statue is not declared as void. The Doctrine used in this case is Doctrine of Severability.