Tenets of severability doctrine

September 5, 2023
Statue of Lady Justice

Preservation of Valid Portions: Whenever possible, the theory seeks to maintain the elements of a law or contract that are legitimate and constitutional. It acknowledges that not all clauses in a legal document are necessarily connected to one another and that the invalidity of one clause need not imply that the entire document is invalid.

In some circumstances, a statute or contract may contain a separability or severability language that expressly states that if one part is held to be illegal, the remaining clauses shall still be upheld. Such phrases facilitate a court’s use of the concept.

Case-by-Case review: To decide whether the Doctrine of Severability should be applied, courts frequently conduct a case-by-case review. They determine if the invalid provision may be eliminated without having an impact.

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This article is written by Shivani Singh faculty at Jyoti Judiciary.

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