Chapter-14 Authorities on Doctrine of reading Down-part-8

The technique of reading down has been adopted in numerous cases to sustain the validity of the provision. In Jagdish Pandey v. The Chancellor, University of Bihar & Anr.[1], Supreme Court of India made resort to section 4 of the Bihar State Universities Act, 1962. It was observed that section 4 so read literally it did appear to give uncanalised powers to the Chancellordo what he liked on the recommendation of the Commission with respect to teachers covered by it. But this Court was of the opinion that the legislature did not intend to give such an arbitrary power to the Chancellor and was of the opinion that s. 4 should be read down and if it is readdown, there was no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor and that power cannot be struck down ,as discriminatory under Article 14 of the Constitution[2].

Krishna Iyer, J, speaking for this Court at p. 511, para 34, of the report observed that the Court does not 'rush in' to demolish provisions where judicial endeavour, amelioratively interpretational, may achieve both constitutionality and compassionate resurrection. This salutary strategy, It was also observed that of sustaining the validity of the law and softening its application was of lovely dexterity. The semantic technique of updating the living sense of a dated legislation is, in our view, perfectly legitimate. Semantic readjustments are necessary to obviate a logicidal sequel and a validation-oriented approach becomes the philosophy of statutory construction sometimes[3].

In Charan Lal Sahu & Ors. v. Union of India[4], , at pages 53 and 54, paras101 as well as p. 61, para 114, it was observed thatthis principle of reading down has been adopted in U.S. Supreme Court in several cases.[5]. The principle as enunciated in Rumely's case (supra) has been approved by this Court in Shah & Co. v. State of Maharashtra[6], This principle of reading down or placing limited construction has been adopted by courts in England in deciding the validity of bye-laws and regulations[7].

In the case of Jagdish Pandey v. The Chancellor University of Bihar & Anr., the challenge was to the constitutionality of s. 4 of Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) (Amendment) Act 13 of 1962 as discriminatory and violative of Art. 14 of the Constitution. It has been urged that s. 4 confers uncana- lised powers on the Chancellor without indicating any criterion on the basis of which the power under s. 4 can be exercised. It has been observed that:

" ...... There is no doubt that if one reads s. 4 literally it does appear to give uncanalised powers to the Chancellor to do what he likes on the recommendations of theCommission with respect to teachers covered by it. We do not, however, think that the Legislature intended to give such an arbitrary power to the Chancellor. We are of opinion that s.4 must be read down and if we read it down there is no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor[8]."

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[1] In Jagdish Pandey v. The Chancellor, University of Bihar & Anr., [1968] 1 SCR 23 1, at pages 236-37

[2] [See the observations of this Court in Sunil Batra v. Delhi Administration & Ors.,.There the constitutionality of s. 30, sub-section (2) and section 56 of the Prisons Act, 1894 was in question.]

[3] Sunil Batra,Ibid[[ Similar observations were made in N.C. Dalwadi v State of Gujarat, (supra). In Tinsukhia Electric Supply Co. Ltd. v. State of Assam & Ors[3]., [1989] 3 SCC 709, this Court upheld the validity of sections 9 and 10 of the Act by reading in several matters by necessary implication in order to sustain the validity of the sections. ]

[4] Charan Lal Sahu & Ors. v. Union of India, [1989] Supp. SCALE 1page53,54

[5] See also United States of America v. Edward A. Rumely, 97 Lawyers Edition 770 at 775

[6] Shah & Co. v. State of Maharashtra, [1967] 3 SCR466 at 477-78.

[7] See Reg. v. Sadlers Co., 10 H.L.C. 404, at 460 and463 and Faramus v. Film Artists Association, 1962 QB 527 at542 The courts must iron out the creases, as saidLord Denning in Seaford Court Estates, [1949] 2 KB 481. This Court has also on numerous occasions followed this practice. See the observations of this Court in M. Pentiah and Ors. v. Veera Mallappa and Ors., [1961] 2 SCR 295; Bangalore Water

Supply and Sewerage Board etc. v. A. Rajappa & Ors., [1978] 3 SCR 207. See also H.M. Seervai's 'Constitutional Law of India', 3rd Edn. Vol. I, pages 119-120.

[8] Jagdish Pandey v. The Chancellor University of Bihar & Anr., [1968] 1 SCR 23 1

Chapter-5 The Doctrine of Severance Part-3

Chapter-5

The Doctrine of Severance

Part-3

In the Industrial Relations Act Case[91][1], this Court summarised the principles applicable in determining whether to sever the partially invalid provisions of an enactment from the rest of the enactment. In a joint judgment, the Court said:

"Section 15A of the Interpretation Act [1901 (Cth), relevantly similar to the Queensland provision] may fall for application in two distinct situations. It may fall for application inrelation to 'particular clauses, provisos and qualifications, separately expressed, which are beyond legislative power'. It may also fall for application in relation to general words or expressions. It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless 'the operation of the remaining parts of the law remains unchanged'.Nor can it be applied to a law expressed in general terms if it appears that 'the law was intended to operate fully and completely according to its terms, or not at all'.

Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation. And there is an additional difficulty if it 'can be reduced to validity by adopting any one or more of a number of several possible limitations'. It has been said that if, in a case of that kind, 'no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid'.

The limitation by reference to which a law is to be read down may appear from the terms of the law or from its subject matter. Thus, a law which is 'clearly made with the intention of exercising the power to make laws with respect to trade and commerce' can be read down 'so as to limit its application to inter-State and foreign trade and commerce'. Similarly, where a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation." (footnotes omitted)

Only offending portion of Statute to be declared to be of no Force

The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or "reading down". Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.[2]

Severance as a Technique to save the Rest of the statute

Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.

‘The Examples of Overbreadth and Vagueness"[3], it is logical to expect that severance would be a more prominent technique under the Charter than it has been in division of powers cases. In division of powers cases the question of constitutional validity often turns on an overall examination of the pith and substance of the legislation rather than on an examination of the effects of particular portions of the legislation on individual rights. Where a statute violates the division of powers, it tends to do so as a whole. This is not so of violations of the Charter where the offending portion tends to be more limited’.

Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realized. However, there are some cases in which to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are. This concern is reflected in the classic statement of the test for severance in Attorney-General for Alberta v. Attorney-General for Canada,[4] at p. 518:

‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.’

This test recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have passed the constitutionally sound part of the scheme without the unsound part. In some cases this assumption will not be a safe one. In those cases it will be necessary to go further and declare inoperative portions of the legislation which are not themselves unsound.

Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative

(a) the inconsistent portion, and

(b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.

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[1] Industrial Relations Act Case Victoria v The Commonwealth (1996) 187 CLR 416 at 502-503 per BRENNAN CJ, TOOHEY, GAURDON, McHUGH and GUMMOW JJ

[2] Schachter [supra]

[3] in Sharpe, ed., Charter Litigation (1987) at pp. 250-52)

[4] Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503, at p. 518: