Full Judgment Text
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PETITIONER:
R. M. D. CHAMARBAUGWALLA
Vs.
RESPONDENT:
THE UNION OF INDIA(with connected petitions)
DATE OF JUDGMENT:
09/04/1957
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
DAS, SUDHI RANJAN (CJ)
SINHA, BHUVNESHWAR P.
DAS, S.K.
GAJENDRAGADKAR, P.B.
CITATION:
1957 AIR 628 1957 SCR 930
ACT:
Prize Competition--Definition-- Construction-- If includes
competition other than of a gambling nature--Validity of
enactment--Principle of severability--Application--Prize
Competitions Act, (42 of 1955), ss. 2(d), 4, 5, rr. 11, 12.
HEADNOTE:
The petitioners, who were promoting ’and conducting prize
competitions in the different States of India, challenged
the constitutionality Of ss. 4 and 5 Of the Prize
Competitions Act (42 of 955) and rr. xi and 12 framed under
S. 20 Of the Act. Their contention was that ’prize
competition’ as defined in S. 2(d) of the Act included not
merely competitions that were of a gambling nature but also
those in which success depended to a substantial degree on
skill and the sections and the rules violated their
fundamental right to carry on business, and were
unsupportable under Art. 19(6) of the Constitution, that
they constituted a single inseverable enactment and,
consequently, must fail entirely. On behalf of the Union of
India this was controverted and it was contended that the
definition, properly construed, meant and included only such
competitions as were of a gambling nature, and even if that
was not so, the impugned provisions, being severable in
their application, were valid as regards gambling
competitions.
Held, that the validity of the restrictions imposed by SS. 4
and 5 and rr. ii and 12 of the Act as regards gambling
competitions was no longer open to challenge under Art.
19(6) of the Constitution in view of the, decision of this
Court that gambling did not fall within the purview of Art.
19(i) (g) of the Constitution.
The State of Bombay v. R. M. D. Chamarbaugwala, (1957)
S.C.R. 874, followed.
On a proper construction there could be no doubt that the
Prize Competitions Act (42 Of 1955), in defining the word
’prize competition’ as it did in S. 2(d), had in view only
such competitions as were of a gambling nature and no
others.
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In interpreting an enactment the Court should ascertain the
intention of the legislature not merely from a literal
meaning of the words used but also from such matters as the
history of the legislation, its purpose and the mischief it
seeks to suppress.
The Bengal Immunity Company Limited v. The State of Bihar
and others, (1955) 2 S.C.R. 603, referred to.
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Even assuming that prize competition as defined by S. 2(d)
of the Act included not merely gambling competitions but
also others in which success depended to a considerable
degree on skill, the restrictions imposed by ss. 4 and 5 and
rr. ii and 12 of the Act were clearly severable in their
application to the two, distinct and separate categories of
competitions and, consequently, could not be void as
regards gambling competitions.
The principle of severability is applicable to laws enacted
by legislatures with limited powers of legislation, such as
those in a Federal Union, which fall partly within and
partly outside their legislative competence, where the
question arises as to whether the valid can be separated
from the invalid parts and that is a question which has to
be decided by the Court on a consideration of the entire
provisions of the Act. There is, however, no basis for the
contention that the principle applies only when the
legislature exceeds its powers as regards the subject-matter
of legislation and not when it contravenes any
constitutional prohibitions.
In re Hindu Women’s Rights to Property Act, (1941) F.C.R.
12, The State of Bombay and another v. F.N. Balsara, (1951)
S.C.R. 682, and The State of Bombay and another v. The
United Motors (India) Ltd. and others, (,953) S.C.R. 106,
relied on.
Punjab Province v. Daulat Singh and others, (1946) F.C.R. 1,
Romesh Thappar v. State of Madras, (1950) S.C.R. 594 and
Chintaman Rao v. State of Madhya Pradesh, (1950) S.C.R. 759,
distinguished.
JUDGMENT:
ORIGINAL JURISDICTION :Writ Petitions Nos. 78-80, 93 and 152
of 1956.
Petitions under Article 32 of the Constitution of India for
the enforcement of Fundamental Rights.
Sir N. P. Engineer, N. A. Palkhivala, R. A. Gagrat and G.
Gopalakrishnan, for the petitioners in Petitions Nos. 78, 79
and 80 of 1956.
Ganpat Rai, for the petitioner in petition No. 93 of 1956.
K. C. Jain and B. P. Maheshwari, for the petitioner in
Petition No. 152 of 1956.
C. K. Daphtary, Solicitor-General of India, Porus A. Mehta
and R. H. Dhebar, for the respondent No. 1 in Petitions
Nos. 78/56 and 152/56 and Respondents in Petitions Nos.
79, 80 and 93 of 1956.
G. R. Ethirajulu Naidu, Advocate-General, Mysore, Porus A.
Mehta and T. M. Sen, for respondent No. 2 in Petition No. 78
of 1956.
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April 9. 1957. The Judgment of the Court was delivered by
VENKATARAMA AIYAR J.-Pursuant to resolutions passed by the’
legislatures of several States under Art. 252, el. (1) of
the Constitution, Parliament enacted Prize Competitions Act,
(42 of 1955), hereinafter referred to as the Act, and by a
notification issued on March 31, 1956, the Central
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Government brought it into force on April 1, 1956. The
petitioners before us are engaged in promoting and
conducting prize competitions in different States of India,
and they have filed the present petitions under Art. 32
questioning the validity of some of the provisions of the
Act and the rules framed thereunder.
It will be convenient first to refer to the provisions of
the Act and of the rules, so far as they are material for
the purpose of the present petitions. The object of the
legislation is, as stated in the short title and in the
preamble, " to provide for the control and regulation of
prize competitions ". Section 2(d) of the Act defines "prize
competition" as meaning "any competition (whether called a
cross-word prize competition, a missing-word prize
competition, a picture prize competition or by any other
name), in which prizes are offered for the solution of any
puzzle based upon the building up, arrangement, combination
or permutation of letters, words or figures ". Sections 4
and 5 of the Act are-. the provisions which are impugned as
unconstitutional, and they are as follows:
4. "No person shall promote or conduct any prize
competition or competitions in which the total value of the
prize or prizes (whether in cash or otherwise) to be offered
in any month exceeds one thousand rupees; and in every prize
competition, the number of entries shall not exceed two
thousand.
5. Subject to the provisions of section 4, no person shall
promote any prize competition or competitions in which the
total value of the prize or prizes (whether in cash or
otherwise) to be offered in any month does not exceed one
thousand rupees unless he has obtained in this behalf a
licence granted in
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accordance with the provisions of this Act and the rules
made thereunder. "
Then follow provisions as to licensing, maintaining of
accounts and penalties for violation thereof. Section 20
confers power on the State Governments to frame rules for
carrying out the purpose of the Act. In exercise of the
powers conferred by this section, the Central Government has
framed rules for Part C States, and they have been, in
general, adopted by all the States. Two of these rules,
namely, rules 11 and 12 are impugned by the petitioners as
unconstitutional, and they are as follows:
11. " Entry fee-(1) Where an entry fee is charged in
respect of a prize competition, such fee shall be paid in
money only and not in any other manner.
(2) The maximum amount of an entry fee shall not exceed Re.
I where the total value of the prize or prizes to be offered
is rupees one thousand but not less than rupees five
hundred; and in all other cases the maximum amount of an
entry fee shall be at the following rates, namely-
(a) as 8 where the total value of the prize or prizes
to be offered is less than rupees five hundred but not less
than rupees two hundred and fifty; and
(b) as. 4 where the total value of the prize or prizes to
be offered is less than rupees two hundred and fifty.
12. Maintenance of Register.-Every licensee shall maintain
in respect of each prize competition for which a licence has
been granted a register in Form C and shall, for the purpose
of ensuring that not more than two thousand entries are
received for scrutiny for each such competition, take the
following steps, that is to say,shall-
(a) arrange to receive all the entries only at the place of
business mentioned in the license;
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(b) serially number the entries according to their order of
receipt;
(c) post the relevant particulars of such entries in the
register in Form C as and when the entries are received and
in any case not later than the close of business on each
day; and
120
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(d) accept for scrutiny only the first two thousand.
entries as they appear in the register in Form C and ignore
the remaining entries, if any, in cases where no entry fee
is charged and refund the entry fee received in respect of
the entries in excess of the first two thousand to the
respective senders thereof in cases where an entry fee has
been charged after deducting the, cost (if any) of refund."
Now, the contention of Mr. Palkhiwala, who addressed the
main argument in support of the petitions, is that prize
competition as defined in s. 2(d) would include not only
competitions in which success depends on chance but also
those in which it would depend to a substantial degree on
skill; that the conditions laid down in ss. 4 and 5 and rr.
II and 12 are wholly unworkable and would render it
impossible to run the competition, and that they seriously
encroached on the fundamental right of the petitioners to
carry on business; that they could not be supported under
Art. 19(6) of the Constitution as they were unreasonable
-and amounted, in effect, to a prohibition and not merely a
regulation of the business; that even if the provisions
could be regarded as reasonable restrictions as regards
competitions which are in the nature of gambling, they could
not be supported as regards competitions wherein success
depended to a substantial extent on skill, and that as the
impugned law constituted a single inseverable enactment, it
must fail in its entirety in respect of both classes of
competitions. Mr. Seervai who appeared for the respondent,
disputes the correctness of these contentions. He argues
that ’prize competition’ as defined in s. 2(d) of the Act,
properly construed, means and includes only competitions in
which success does not depend to any substantial degree on
skill and are essentially gambling in their character; that
gambling activities are not trade or business within the
meaning of that expression in Art. 19(1)(g), and that
accordingly the petitioners are not entitled to invoke the
protection of Art. 19(6); and that even if the definition of
’prize competition’ in s. 2(d) is wide enough to include
competitions in which success depends to a substantial
degree on skill and ss. 4 and 5
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of the Act and rr. 11 and 12 are to be struck down in
respect of such competitions as unreasonable restrictions
not protected by Art. 19(6), that would not affect the
validity of the enactment as regards the competitions which
are in the nature of gambling, the Act being severable in
its application to such competitions.
These petitions were heard along with Civil Appeal No. 134
of 1956, wherein the validity of the Bombay Lotteries and
Prize Competitions Control and Tax Act, 1948 was impugned on
grounds some of which are raised in the present petitions.
In our judgment in that appeal, we have held that trade and
commerce protected by Art. 19(1)(g) and Art. 301 are only
those activities which could be regarded as lawful trading
activities, that gambling is not trade but res extra
commercium, and that it does not fall within the purview of
those Articles. Following that decision, we must hold that
as regards gambling competitions, the petitioners before us
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cannot seek the protection of Art. 19(1)(g), and that the
question whether the restrictions enacted in ss. 4 and 5 and
rr. 11 and 12 are reasonable and in the interest of the
public within Art. 19(6) does not therefore arise for
consideration.
As regards competitions which involve substantial skill,
however, different considerations arise. They are business
activities, the protection of which is guaranteed by Art.
19(1)(g), and the question would have to be determined with
reference to those competitions whether ss. 4 and 5 and rr.
1 1 and 12 are reasonable restrictions enacted in public
interest. But Mr. Seervai has fairly conceded before us
that on the materials on record in these proceedings, he
could not maintain that the restrictions contained in those
provisions are saved by Art. 19(6) as being reasonable and
in the public interest. The ground being thus cleared, the
only questions that survive for our decision are (1) whether,
on the definition of ’prize competition’ in s.2(d), the Act
applies to competitions which involve substantial skill and
are not in the nature of gambling; and (2) if it does,
whether the provisions of ss. 4 and 5 and rr. II and 12
which are, ex concessi void, as regards such competitions,
can on the principle of severability
936
be enforced against competitions which are in the nature of
gambling.
1. If the question whether the Act applies also to prize
competitions in which success depends to a sub stantial
degree on skill is to be answered solely on a literal
construction of s. 2(d), it will be difficult to resist the
contention of the petitioners that it does. The definition
of ’prize competition’ in s. 2(d) is wide and unqualified in
its terms. There is nothing in the wording, of it, which
limits it to competitions in which success does not depend
to any substantial extent on skill but on chance. It is
argued by Mr. Palkhiwala that the language of the enactment
being clear and unambiguous, it is not open to us to read
into it a limitation which is not there, by reference to
other and extraneous considerations. Now, when a question
arises as to the interpretation to be put on an enactment,
what the court has to do is to ascertain " the intent of
them that make it", and that must of course be gathered from
the words actually used in the statute. That, however, does
not mean that the decision should rest on a literal
interpretation of the words used in disregard of all other
materials. " The literal construction then", says Maxwell
on Interpretation of Statutes, 10th Edn., p. 19, "has, in
general, but prima facie preference. To arrive at the real
meaning, it is always necessary to get an exact conception
of the aim, scope and object of the whole Act; to consider,
according to Lord Coke: 1. What was the law before the Act
was passed; (2) What was the mischief or defect for which
the law had not provided; (3) What remedy Parliament has
appointed; and (4). The reason of the remedy." The
reference here is to Heydon’s case (1). These are
principles well settled, and were applied by this Court in
The Bengal Immunity Company Limited v. The State of Bihar
and others (2 ). To decide the true scope of the present
Act, therefore, we must have regard to all such factors as
can legitimately be taken into account in ascertaining the
intention of the legislature, such as the history of the
legislation and the purposes thereof, the mischief which it
intended to
(1) (1584) 3 W. Rep. 16; 76 E.R. 637.
(2) (1955) 2 S.C.R. 603, 633.
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937
suppress and the other provisions of the statute, and
construe the language of s. 2(d) in the light of the
indications furnished by them.
Turning first to the history of the legislation, its genesis
is to be found in the Bombay Lotteries and, Prize
Competitions Control and Tax Act (Bom. LIV of 1948). That
Act was passed with the object of controlling and taxing
lotteries and prize competitions within the Province of
Bombay, and as originally enacted, it applied only to
competitions conducted within the Province of Bombay.
Section 7 of the Act provided that "a prize competition
shall be deemed to be an unlawful prize competition unless a
licence in respect of such competition has been obtained by
the promoter thereof." Section 12 imposed a tax on the
amounts received in respect of competitions which had been
licensed under the Act. With a view to avoid the operation
of the taxing provisions of this enactment, persons who had
there to before been conducting prize competitions within
the Province of Bombay shifted the venue of their activities
to neighbouring States like Mysore, and from there continued
to receive entries and remittances of money therefor from
the residents of Bombay State. In order to prevent evasion
of the Act and for effectually carrying out its object, the
legislature of Bombay passed Act XXX of 1952 extending the
provisions of the Act of 1948 to competitions conducted
outside the State of Bombay but operating inside it, the tax
however being limited to the amounts remitted or due on the
entries sent from the State of Bombay. The validity of this
enactment was impugned by a number of promoters of prize
competitions in proceedings by way of writ in the High Court
of Bombay, and dealing with the contentions raised by them,
Chagla C.J. and Dixit J. who heard the appeals arising from
those proceedings, held that the competitions in question
were gambling in character, and that the licensing
provisions were according valid but that the taxes imposed
by ss. 12 and 12-A of the Act were really taxes on the
carrying on of the business of running prize competitions,
and were hit by Art. 301 of the Constitution, and were
therefore bad. it is
938
against this decision that Civil Appeal No. 134 of 1956,
already referred to, was directed.
The position created by this judgment was that though the
States could regulate the business of running competitions
within their respective borders, to the extent that it had
ramifications in other States they could deal with it
effectively only by joint and concerted action among
themselves. That precisely is the situation for which Art.
252(1) provides. Accordingly, following on the judgment of
the Bombay High Court, the States of Andhra, Bombay, Madras,
Orissa, Uttar Pradesh, Hyderabad, Madhya Bharat, Patiala and
East Punjab States Union and Saurashtra passed resolutions
under Art. 252(1) of the Constitution authorising Parliament
to enact the requisite legislation for the control and
regulation of prize competitions. Typical of such
resolutions is the one passed by the legislature of Bombay,
which is in these terms:
" This Assembly do resolve that it is desirable that
control and regulation of -prize puzzle competitions and all
other matters consequential and incidental thereto in so far
as these matters are concerned with respect ,to which
Parliament has no power to make laws for the States, should
be regulated by Parliament by law." It was to give effect to
these resolutions that Parliament passed the Act now under
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consideration, and that fact is recited in the preamble to
the Act.
Having regard to the circumstances under which the
resolutions came to be passed, there cannot be any
reasonable doubt that the law which the State legislatures
moved Parliament to enact under Art. 252(1) was one to
control and -regulate prize competitions of a gambling
character. Competitions in which success depended
substantially on skill could not have been in the minds of
the legislatures which passed those resolutions. Those
competitions had not been the subject of any controversy in
court. They had done no harm to the public and bad
presented no problems to the States, and at no time had
there been any legislation directed to regulating them. And
if the State legislatures felt that there was any need to
regulate even those competitions, they could have themselves
effectively done
939
so without resort to the special jurisdiction under Art.
252(1). It should further be observed that the language of
the resolutions is that it is desirable to control com-
petitions. If it was intended that Parliament should
legislate also on competitions involving skill, the word,
,control’ would seem to be not appropriate. While control
and regulation would be requisite in the case of gambling,
mere regulation would have been sufficient as regards
competitions involving skill. The use of the word control’
which is to be found not only in the resolution but also in
the short title and the preamble to the Act appears to us to
clearly indicate that it was only competitions of the
character dealt with in the Bombay judgment, that were
within the contemplation of the legislature.
Our attention was invited by Mr. Seervai to the statement
of objects and reasons in the Bill introducing the
enactment. It is therein stated that the proposed
legislation falls under Entry 34 of the State List, viz.,
"Betting and gambling". If we could legitimately rely on
this, that would be conclusive against the petitioners. But
Mr. Palkhiwala contends, and rightly, that the Parliamentary
history of the enactment is not admissible to construe its
meaning, and Mr. seervai also disclaims any intention on his
part to use the statement of objects and reasons to explain
s. 2(d). We must accordingly exclude it from our
consideration. But even apart from it, having regard to the
history of the legislation, the declared object thereof and
the wording of the statute, we are of opinion that the
competitions which are sought to be controlled and regulated
by the Act are only those competitions in which success does
not depend to any substantial degree on skill.
(2) Assuming, however, that prize competitions as
defined in s. 2(d) include those in which success depends to
a substantial degree on skill as well as those in which it
does not so depend, the question then arises for
determination whether ss. 4 and 5 of the Act and rr. 11 and
12 are void not merely in their application to the former-as
to which there is no dispute-, but also the latter. Mr.
Palkhiwala contends that they are, because, he argues, the
rule as to severability of
940
statutes can apply only when the impugned legislation is in
excess of legislative competence as regards subjectmatter
and not when it is in violation of constitutional
prohibitions, and further because the impugned provisions
are one and indivisible. On the other hand, Mr. Seervai for
the respondent contends that the principle of severability
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is applicable when a statute is partially void for whatever
reason that might be, and that the impugned provisions are
severable and therefore enforceable as against competitions
which are of a gambling character. It is on the correctness
of these contentions that we have to pronounce.
The question whether a statute which is void in part is to
be treated as void in toto, or whether it is capable of
enforcement as to that part which is valid is one which can
arise only with reference to laws enacted by bodies which do
not possess unlimited powers of legislation, as, for
example, the legislatures in a Federal Union. The
limitation on their powers may be of two kinds: It may be
with reference to the subject-matter on which they could
legislate, as, for example, the topics enumerated in the
Lists in the Seventh Schedule in the Indian Constitution,
ss. 91 and 92 of the Canadian Constitution, and s. 51 of the
Australian Constitution; or it may be with reference to the
character of the legislation which they could enact in
respect of subjects assigned to them, as for example, in
relation to the fundamental rights guaranteed in Part III of
the Constitution and similar constitutionally protected
rights in the American and other Constitutions. When a
legislature whose authority is subject to limitations
aforesaid enacts a law which is wholly in excess of its
powers, it is entirely void and must be completely ignored.
But where the legislation falls in part within the area
allotted to it and in part outside it, it is undoubtedly
void as to the latter; but does it on that account become
necessarily void in its entirety? The answer to this
question must depend on whether what is valid could be
separated from what is invalid, and that is a question which
has to be decided by the court on a consideration of the
provisions of the Act. This is a principle well
941
established in American Jurisprudence, Vide Cooley’s
Constitutional Limitations, Vol. 1, Chap. VII, Crawford on
Statutory Construction, Chap. 16 and Sutherland on Statutory
Construction, 3rd Edn, Vol. 2, Chap. 24. It has also been
applied ’by the Privy Council in deciding on the validity,
of laws enacted by the legislatures of Australia and Canada,
Vide Attorney-General for the Commonwealth of Australia v.
Colonial Sugar Refining Company Limited (1) and Attorney-
General for Alberta v. Attorney-General for Canada(1). It
was approved by the Federal Court in In re Hindu Women’s
Rights to Property Act (3 ) and adopted by this Court in The
State of Bombay and another v. F. N. Balsara (4) and The
State of Bombay v. The United Motors (India) Ltd., and
others(1). These decisions are relied on by Mr. Seervai as
being decisive in his favour. Mr. Palkhiwala disputes this
position, and maintains that on the decision of the Privy
Council in Punjab Province v. Daulat Singh and others (6)
and of the decisions of this Court in Romesh Thappar v.
State of Madras(7 ) and Chintaman Rao v. State of Madhya
Pradesh (8), the question must be answered in his favour.
We must now examine the precise scope of these decisions.
In In re Hindu Women’s Rights to property Act (3), the
question arose with reference to the Hindu Women’s Rights to
Property Act XVIII of 1937. That was an Act passed by the
Central Legislature, and had conferred on Hindu widows.
certain rights over properties which devolved by intestate
succession and survivorship. While the subject of
devolution was within the competence of the Centre under
Entry 7 in List III, that was limited to property other than
agricultural land, which was a subject within the, exclusive
competence of the Provinces under Entry 21 in List 11. Act
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No. XVIII of 1937, dealt generally with property, and the
contention raised was that being admittedly incompetent and
ultra vires as regards agricultural lands, it was void in
its entirety.
(1) [1914] A.C. 237. (5) [1953] S.C.R. 1069.
(2) L.R. [1947] A.C. 503. (6) [1946] F.C.R. 1.
(3) [1941] F.C.R. 12. (7) [1950] S.C.R. 594.
(4) [1951] S.C.R. 682. (8) [1950] S.C.R. 759.
121
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It was held by the Federal Court that the Central
Legislature must, on the principle laid down in Macleod v.
Attorney-General for New, South Wales (1), be presumed to
have known its own limitations and must be held to have
intended to enact only laws within its competence, that
accordingly the word I property’ in Act No. XVIII of 1937
must be construed as property other than agricultural land,
and that, in that view, the legislation was wholly intra
vires. It is contended by Mr. Palkhiwala that this decision
does not proceed on the basis that the Act is in part ultra
vires and that the remainder however could be separated
therefrom, but on the footing that the Act is in its
entirety intra vires, and that thus, no question of
severability was decided. That is true; but that the
principle of severability had the approval of that Court
clearly appears from the following observations of Sir
Maurice Gwyer C. J.:
"It should not however be thought that the Court has
overlooked cases cited to it in which the same words have
been applied in an Act to a number of purposes, some within
and some without the power of the Legislature, and the whole
Act hag been held to be bad. If the restriction of
thegeneral words to purposes within the power of the
Legislature would be to leave an Act with nothing or next to
nothing in it, or an Act different in kind, and not merely
in degree, from an Act in which the general words were given
the wider meaning, then it is plain that the Act as a whole
must be ’held invalid, because in such circumstances it is
impossible to assert with any confidence that the
Legislature intended the general words which it has used to
be construed only in the narrower sense. If the Act -is to
be upheld, it’ must remain, even when a narrower meaning is
given to the general words, an Act which is complete,
intelligible and valid and which can be executed by itself;’
Wynes: Legislative and Executive Powers in, Australia, p.
51, citing Presser v. Illinois (2). "
There is nothing in these observations to. support the
contention of the petitioners that the doctrine of
severability applies only when the legislation is in
(1) [1891] A.C. 455. (2) (1886) 116 U.S. 252.
943
excess of the competence of the legislature quoad its
subject-matter, and not when it infringes some
constitutional prohibitions.
In The State of Bombay and another v. F. N. Balsara(1) the
question was as to the validity of the Bombay Prohibition
Act. Sections 12 and 13 of the Act imposed restrictions on
the possession, consumption and sale of liquor, which had
been defined in s. 2(24) of the Act as including " (a)
spirits of wine, methylated spirits, wine, beer, toddy and
all liquids consisting of or containing alcohol, and (b) any
other intoxicating substance which the Provincial Government
may, by notification in the Official Gazette, declare to be
liquor for the purposes of this Act ". Certain medicinal and
toilet preparations had been declared liquor by notification
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issued by the Government under s. 2(24) (b). The Act was
attacked in its entirety as violative of the rights
protected by Art. 19(1) (f) ; but this Court held that the
impugned provisions were unreasonable and therefore void in
so far as medicinal and toilet preparations were concerned,
but valid as to the rest. Then, the contention was raised
that " as the law purports to authorise the imposition of a
restriction on a fundamental right in language wide enough
to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting
such right, it is not possible to uphold it even so -far as
it may be applied within the constitutional limits, as it is
not severable ". In rejecting this contention, the Court
observed (at pp. 717-718):
" These items being thus treated separately by the
legislature itself and being severable, and it not being
contended, in view of the directive principles of State
policy regarding prohibition, that the restrictions imposed
upon the right to possess or sell or buy or consume or use
those categories of properties are unreasonable, the
impugned sections must be held valid so far as these
categories are concerned."
This decision is clear authority that the principle of
severability is applicable even when the partial
(1) [1951] S.C.R. 682.
944
invalidity of the Act arises by reason of its contravention
of constitutional limitations. It is argued for the
petitioners that in that case the legislature had through
the rules framed under the statute classified medicinal and
toilet preparations as a separate category, and had thus
evinced an intention to treat them as severable, that no
similar classification had been made in the present Act, and
that therefore the decision in question does not help the
respondent. But this is to take too narrow a view of the
decision. The doctrine of severability rests, as will
presently be shown, on a presumed intention of the
legislature that if a part of a statute turns out to be
void, that should not affect the validity of the rest of it,
and that that intention is to be ascertained from the terms
of the statute. It is the true nature of the subject-matter
of the legislation that is the determining factor, and while
a classification made in the statute might go far to support
a conclusion in favour of severability, the absence of it
does not necessarily preclude it. It is a feature usual in
latterday legislation in America to enact a clause that the
invalidity of any part of the law shall -not render the rest
of it void, and it has been held that such a clause
furnishes only prima facie evidence of severability, which
must in the last resort be decided on an examination of the
provisions of the statute. In discussing the effect of a
severability clause, Brandies J. observed in Dorchy v. State
of Kansas (1) that it "provides, a rule of construction,
which may sometimes aid in determining that intent. But it
is an aid merely; not an inexorable command". The weight to
be attached to a classification of subjects made in the
statute itself cannot, in our opinion, be greater than that
of a severability clause. If the decision in The State of
Bombay and another v. F. N. Balsara(2) is examined in the
light of the above discussion, it will be seen that while
there is a reference in the judgment to the fact that
Medicinal and toilet preparations are treated separately by
the legislature, that is followed by an independent finding
that they are severable. In other words, the decision as to
severability was reached on
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(1) [1924] 264 U.S. 286; 68 L. Ed. 686, 690.
(2) [1951] S.C.R. 682.
945
the separability in fact of the subjects dealt with by the
legislation and the classification made in the rule merely
furnished support to it.
Then, there are the observations of Patanjali Sastri C.J.
in The State of Bombay v. The United Motors (India) Ltd.(1).
Dealing with the contention that a law authorising the
imposition of a tax on sales must be declared to be wholly
void because it was bad in part as transgressing
constitutional limits, the learned Chief Justice observed
(at p. 1099):
"It is a sound rule to extend severability to include
separability in enforcement in such cases, and we are of
opinion that the principle should be applied in dealing with
taxing statutes in this country. "
The petitioners contend that the rule of severability in
enforcement laid down in the above passage following the
decision in Bowman v. Continental Co.(2) is confined in
American law to taxing statutes, that it is really in the
nature of an exception to the rule against severability of
laws which are partially unconstitutional, and that it has
no application to the present statute. We are unable to
find any basis for this argument in the American
authorities. That the decision in Bowman’s case (2 )
related to a taxing statute is no ground for limiting the
principle enunciated therein to taxing statutes. On the
other hand, the discussion of the law as to severability in
the authoritative text-books shows that no distinction is
made in American Jurisprudence between taxing statutes and
other statutes. Corpus Juris Secundum, Vol. 82, dealing
with the subject of severability, states first the
principles applicable generally and to all statutes, and
then proceeds to consider those principles with reference to
different topics, and taxation laws form one of those
topics.
We have now to consider the decisions in Punjab Province
v. Daulat Singh and others (3), Romesh Thappar v. State of
Madras (4) and chintaman Rao v. State of Madhya Pradesh (5)
relied on by the petitioners. In Punjab Province v. Daulat
Singh and others (3), the
(1) [1953] S.C.R. 1069 at 1098-99. (3) [1946] F.C.R. 1.
(2) [1921] 256 U.S. 642 ; 65 L. Ed. II37. (4) [1950]
S.C.R. 594.
(5)[1950] S.C.R. 759.
946
challenge was on the validity of s. 13A which had been
introduced into the Punjab Alienation of Land Act XIII of
1900 by an Amendment Act X of 1938. That section enacted
that an alienation of land by a member of an agricultural
tribe in Punjab in favour of another member of the tribe
made either before or after the commencement of the
amendment Act was void for all purposes, when the real
beneficiary under the transaction was not a member of the
tribe. Section 4 of the Act had empowered the local
Government to determine by notification the body or group of
persons who are to be declared to be agricultural tribes for
the purpose of the Act. A notification dated April 18, 1904
issued under that section provided that,
" In each district of the Punjab mentioned in column I of
the Schedule attached to this notification, all persons
either holding land or ordinarily residing in such district
and belonging to any one of the tribes mentioned opposite
the name of such district, in column 2, shall be deemed to
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be an ’agricultural tribe’ within the district".
The question was whether s. 13A was void as contravening s.
298(1) of the Government of India Act, 1935, which provided
inter alia that no subject of His Majesty domiciled in India
shall on grounds only of descent be prohibited from
acquiring, holding or disposing of property. It was held by
the Federal Court that s. 13A was void as infringing s.
298(1) to the extent that it prohibited alienation on ground
of descent, but that it was valid in so far as it related to
a prohibition of the transaction in favour of a person who
belonged to the tribe but did not hold land or ordinarily
reside in the district, as a prohibition on that ground was
not within s. 298(1) and that accordingly an enquiry should
be made as to the validity of the impugned alienation with
reference to the qualifications of the alienee. (Vide Punjab
Province v. Daulat Singh (1).
Before the Privy Council, Mr. Privy, counsel for the
appellant, " conceded that membership of a tribe was
generally a question of descent ", and the Board accordingly
held that s. 13A wag repugnant to a. 298(1)
(1) [1942] F.C. R. 67.
947
and was void. Dealing next with the enquiry which was
directed by the Federal Court as to the qualifications of
the alienee, the Privy Council observed as follows (at p.
20):
" The majority of the Federal Court appear have contemplated
another form of severability namely, by a classification of
the particular cases or which the impugned Act may happen to
operate, involving an inquiry into the circumstances of each
individual case. There are no words in the Act capable of
being so construed, and such a course would in effect
involve an amendment of the Act by the court, course which
is beyond the competency of the court, as has long been well
established."
It will be noticed that, in the above case, there was no
question of the application of the Act to different
categories which were distinct and severable either in fact
or under the provisions of the Act. The notification issued
under s. 4 on which the judgment of the Federal Court was
based did not classify those who did’ not belong to the
tribe and those who did not hold property or reside in the
district as two distinct groups. It described only one
category, and that had to satisfy both the conditions. To
break up that category into two ’distinct groups was to go
against the express language of the enactment and to
substitute the word " for "and". The Privy Council held
that that could not be done, and it also observed that the
severability contemplated in the judgment of the Federal
Court was an ad hoc determination with reference to
qualifications of each alienee as distinguished from a
distinct category with reference to the subject-matter.
This is not an authority for the position that if the
subject-matter of what is valid is severable from that of
what is invalid, even then, the Act must be held to be
wholly void. More to the point are the following
observations (at pp. 19-20) on a question which was also
raised in that case whether s. 13A which avoided the
alienations made both before and after the Act, having been
held to be void in so far as it was retrospective, was void
in toto:
"....If the retrospective element were not severable from
the rest of the provisions, it is established beyond
948
controversy that the whole Act would have to be declared
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ultra vires and void. But, happily, the retrospective
element in the impugned Act is easily Severable and by the
deletion of the words ’either before or’ from the early part
of sub-s. (1) of the new 3. 13A, enacted by s. 5 of the
impugned Act, the rest ,if the provisions of the impugned
Act may be left to operate validly."
Discussing this decision in The State of Bombay v. The
United Motors (India) Ltd.(1), Patanjali Sastri C.J.
observed (at p. 1098):
" The subject of the constitutional prohibition was single
and indivisible, namely, disposition of property on grounds
only of (among other things) descent and if, in its actual
operation, the impugned statute was found to transgress the
constitutional mandate, the whole Act had to be held void as
the words used covered both what was constitutionally
permissible and what was not."
That is to say, the notification issued under s. 4 was
single and indivisible, and therefore it was not severable.
Agreeing with this opinion, we are of opinion that the
decision in Punjab Province v. Daulat Singh(2) cannot, in
view of the decision of this Court in The State of Bombay v.
P. N. Balsara (3), be accepted as authority for the position
that there could be no severability, even if the subject-
matters are, in fact, distinct and severable.
In Romesh Thappar v. State of Madras (4), the question was
as to the validity of s. 9 (1-A) of the Madras Maintenance
of Public Order Act XXIII of 1949. That section authorised
the Provincial Government to prohibit the entry and
circulation within the State of a newspaper "for the purpose
of securing the public safety or the maintenance of public
order". Subsequent to the enactment of this statute, the
Constitution came into force, and the validity of the
impugned provision depended on whether it was protected by
Art. 19(2) which saved " existing law in so far as it
relates to any matter which undermines the security
(1) [1953] S.C.R. 1069. (3) [1951] S.C.R. 682.
(2) [1946] F.C.R. 1. (4) [1950] S.C.R. 594.
949
of or tends to overthrow the State." It was held by this
Court that as the purposes mentioned in s. 9(1-A) of the
Madras Act were wider in amplitude than those specified in
Art. 19(2), and as it was not possible to split up s. 9(1-A)
into what was within and what was without the protection of
Art. 19(2), the provision must fail in its entirety. That
is really a decision that the impugned provision was on its
own contents inseverable. It is not an authority for the
position that even when a provision is severable, it must be
struck down on the ground that the principle of severability
is inadmissible when the invalidity of a statute arises by
reason of its contravening constitutional prohibitions. It
should be mentioned that the decision in Romesh Thappar v.
State of Madras (1) was referred to in The State of Bombay
v. F. N. Balsara (2 ) and The State of Bombay v. The United
Motors (India) Ltd. (3) and distinguished.
In Chintaman Rao v. State of Madhya Pradesh (4), the
question related to the constitutionality of s. 4(2) of the
Central Provinces and Berar Regulation of Manufacturers of
Bidis (Agricultural Purposes) Act No. LXIV of 1948, which
provided that, " No person residing in a village specified
in such order shall during the agricultural season engage
himself in the manufacture of bidis, and no manufacturer
shall during the said season employ any person for the
manufacture of bidis ". This Court held that the
restrictions imposed by s. 4(2) were in excess of what was
requisite for achieving the purpose of the Act, which was "
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to provide measures for the supply of adequate labour for
agricultural purposes in bidi manufacturing areas ", that
that purpose could have been achieved by limiting the
restrictions to agricultural labour and to defined hours,
and that, as it stood, the impugned provision could not be
upheld as a reasonable restriction within Art. 19(1) (g).
Dealing next with the question of severability, the Court
observed (at p. 765) that,
" The law even to the extent that it could be said to
authorise the imposition of restrictions in regard to
(1) [1950] S.C.R. 594. (3) [1953] S.C.R. 1069.
(2) [1951] S.C.R. 682. (4) [1950] S.C.R. 759.
1222
950
agricultural labour cannot be held valid because the
language employed is wide enough to cover restrictions both
within and without the limits of constitutionally
permissible legislative action affecting the right."
Now, it should be noted that the impugned provision, a.
4(2), is by its very nature inseverable, and it could not be
enforced without re-writing it. The observation aforesaid
must be read in the context of the particular provision
which was under consideration. This really is nothing more
than a decision on the severability of the particular
provision which was impugned therein, and it is open to the
same comment as the decision in Romesh Thappar v. State of
Madras (1). That was also one of the decisions
distinguished in The, State, of Bombay v. F. N. Balsara (2).
The resulting position may thus be stated: When a statute is
in part void, it will be enforced as regards the rest, if
that is severable from what is invalid. It is immaterial
for the purpose of this rule whether the invalidity of the
statute arises by reason of its subject-matter being outside
the competence of the legislature or by reason of its
provisions contravening constitutional prohibitions.
That being the position in law, it is now necessary to
consider whether the impugned provisions are severable in
their application to competitions of a gambling character,
assuming of course that the definition of 1 prize
competition’ in s. 2(d) is wide enough to include also
competitions involving skill to a substantial degree, It
will be useful for the determination of this question to
refer to certain rules of construction laid down by the
American Courts, where the question of severability has been
the subject of consideration in numerous authorities. They
may be summarised as follows:
1.In determining whether the valid parts of a statute are
separable from the invalid parts thereof, it is the
intention of the legislature that is the determining factor.
The test to be applied is whether the legislature would have
enacted the valid part if it had known that the rest of the
statute was invalid. Vide Corpus Juris Secundum, Vol. 82,
p. 156; Sutherland on Statutory Construction, Vol. 2, pp.
176-177.
(1) [1950] S.C.R. 594. (2) [1951] S.C.R. 682.
951
2.If the valid and invalid provisions are so inextricably
mixed up that they cannot be separated from one another,
then the invalidity of a portion must result in the
invalidity of the Act in its entirety. On the other hand,
if they are so distinct and separate that after striking out
what is invalid, what remains is in itself a complete code
independent of the rest, then it will be upheld
notwithstanding that the rest has become unenforceable.
Vide Cooley’s Constitutional Limitations, Vol. 1 at pp.
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360-361; Crawford on Statutory Construction, pp. 217-218.
3.Even when the provisions which are valid are distinct
and separate from those which are invalid, if they all 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. Vide Crawford on Statutory
Construction, pp. 218-219.
4.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 the legislature, then also it will be
rejected in its entirety.
5.The separability of the valid and invalid provisions of
a statute does not depend on whether the law is enacted in
the same section or different sections; (Vide Cooley’s
Constitutional Limitations, Vol. 1, pp. 361-362); 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.
6.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. Vide Sutherland on Statutory
Construction, Vol. 2, p. 194.
7.In determining the legislative intent on the question of
separability, it will be legitimate to take into account the
history of the legislation, its object,
952
the title and the preamble to it. Vide. Sutherland on
Statutory Construction, Vol. 2, pp. 177-178.
Applying these principles to the present Act, it will not
be questioned that competitions in which success depends to
a substantial extent on skill and competitions in which it
does not so depend, form two distinct and separate
categories. The difference between the two classes of
competitions is as clear-cut as that between commercial and
wagering contracts. On the facts, there might be difficulty
in deciding whether a given competition falls within one
category or not ; but when its true character is determined,
it must fall either under the one or the other. The
distinction between the two classes of competitions has long
been recognised in the legislative practice of both the
United Kingdom and this country, and the courts have, time
and again, pointed out the characteristic features which
differentiate them. And if we are now to ask ourselves the
question, would Parliament have enacted the law in question
if it had known that it would fail as regards competitions
involving skill, there can be no doubt, having regard to the
history of the legislation, as to what our answer would be.
Nor does the restriction of the impugned
provisions to competitions of a gambling character affect
either the texture or the colour of the Act; nor do the
provisions require to be touched and re-written before they
could be applied to them. They will squarely apply to them
on their own terms and in their true spirit, and form a code
complete in themselves with reference to the subject. The
conclusion is therefore inescapable that the impugned
provisions, assuming that they apply by virtue -of the
definition in s. 2(d) to all kinds of competitions, are
severable in their application to competitions in which
success does not depend to any substantial extent on skill.
In the result, both the contentions must be found against
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the petitioners, and these petitions must be dismissed with
costs. There will be only one set of counsel’s fee.
Petitions dismissed.
953