April !I v. Federal Union, which fall partly within and partly outside their

" is charged and the entry refund the conditions Now, the contention of Mr. Palkhiwala, who addres sed 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; down in ss. 4 and 5 and rr. 11 and 12 are wholly unworkable and would render it impossible to run the competition, and that they seriously encroached on fundamental right of the petitioners to carry on business; that they could not be supported under Art. 19(6) of the they were unreasonable and amounted, Constitution as in effect, to a prohibition and not merely a regulation if the provisions could be of the business; that even regarded as reasonable restrictions as regards competi they could tions which are in the nature of gambling, not be regards competitions wherein success depended to a substantial extent on skill, and that as the impugned law constituted a single in sever respect abk enactment, oit must fail in its entirety of both classes of competitions.

Mr. Secrvai who the correctness appeared for of these contentions. He argues 'prize competi tion' 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 arc essentially gambling in their character; that gam bling activities are not trade or business within meaning of that expression in Art. 19( 1 )(g), and that accordingly the petitioners are not entitled to invoke if the the protection of Art. 19( 6); and definition of 'prize competition' is wide enough in which success depends to a substantial degree on skill and ss. 4 and 5 the respondent, disputes include competitions supported as in s. 2( d) that even S.C.R. SUPREME COURT REPORTS 935 of the Act and rr. 11 and 12 are to be struck down in respect of such competition as unreasonable restric tions not protected by Art. 19( 6), that would not affect the . validity of the enactment as regards the competi tions which are in the nature of gambling, the Act being severable in its application to such competitions.

1957 R. M. D. Clulinat baugwalla v. Tht Union of InJia In our judgment the present petitions. These petitions were heard along with Civil Appeal the Bombay No. 134 of 1956, wherein the validity of Lotteries and Prize Competitions Control and Tax Act, 1948 was impugned on grounds some of which are raised 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 trading trade but res extra activities, commercium, and that decision, those Articles. Following purview of we must hold that as regards gambling competitions, the petitioners before us cannot seek the protection of Art. 19(1)(g), and.that the question whether the restric in ss. 4 and 5 and rr. 11 and 12 are tions enacted reasonable and the public within Art. 19(6) does not therefore arise for consideration. that it does not fall within that gambling interest of is not lawful public enacted restnct10ns As regards competitions which involve substantial skill, however, different considerations arise.

They are the protection of which is guaran business activities, teed by Art. 19(1)(g), and the question would have to be determined with tl1ose competitions reference whether ss. 4 and 5 and rr. 11 and 12 are reason interest. But Mr. Seervai has fairly conceded. before us that on the materials on record in these proceedings, he could not those pro maintain that the restrictions contained visions are saved by Art. 19(6) as being reasonable and in the public interest. The ground being thus cleared, the only questions for our decision arc that survive (1) whether, on the definition of 'prize competition' in s. 2( d), the Act applies 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. 11 and 12 which are, ex cQ1Jcessi void, as regards the principle of sevcrability such competitions, can. on to competitions which 1957 R. M. D. Cizamar. baugwalla v.

The Union of India V tnkatarama A9-ar ]. 936 SUPREME COURT REPORTS ·be enforced against competitions which are nature of gambling. [1957] is not open to us to read to competitions the words actually used !. If the question whether the Act applies also prize competitions in which success depends to a sul> stantial degree on skill is to be answered solely on a literal construction of s. 2 ( d), it will he difficult to resist it does. The the contention of the petitioners definition of 'prize competition' in s. 2(d) is wide and unqualified in its terms. There is nothing in the word ing of it, which in which limits to any substantial extent on success does not depend It is argued by Mr. Palkhiwala skill but on chance. language of the enactment being clear and that the it a unambiguous, to other and there, bv reference limitation which is not a question considerations. No;.., when extraneous, arises as to the interpretation to be put on an enact ment, what the ·court has to do is to ascertain "the intent of them that make it", and that must of course be gathered from statute.

That, however, does not mean that the deci literal interpretation of the words sion should rest on a used in disregard of all 0ther materials. 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 am! object of the whole Act; to consider, accord the law before the Act ing to Lord Coke: !. What was (2) What was was passed; the mischief or defect for law had not provided; (3) What remedy Parliament has appointed; and ( 4). The reason of the remedy". The reference here ), These are principles well settled, and were applied by this Court in The Bengal Immunity Company Limited v. The State of Bihar and others('). To decide the true therefore, we must have scope of regard to all such factors as can legitimately be taken into account in ascertaining . the intention of the legi,_ lature, such as the history of the legislation and the mischief which it intended purposes (2) (1955) 2 S.C.R. 603, 633 (r) (1584) 3 W. Rep.

16; 76 E.R. 637. to Heydon's case( 1 the present Act, thereof, 'The S.C.R. SUPREME COURT REPORTS 937 the . R. M. D. Chamar 1957 baug<sa/la v. Thl Union of India V enkatarama. Al)lar ]. suppress and the other provisions of the statute, construe the language of s. 2 ( d) in light of indications furnished by them. their activities to compettttons it applied only the Province of Bombay, and Turning first to the history of the legislation, genesis to be found in the Bombay Lotteries and Prize Competitions Control and Tax Act (Born. LIV of 1948). That Act was passed with the object of con lotteries and prize competitions trolling and taxing as originally within enacted, 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 li.:ence respect of such competition has been obtained by promoter' thereof.

" Section 12 imposed a tax on 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 thereto before been conducting prize competitions within the Province of Bombay shifted to neighbouring States the venue of like Mysore, and from there continued to receive entries therefor from the residents and remittances of money of Bombay State. Act and for effectually carrying out legislature of Bombay passed Act XXX of 1952 extend ing 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 proceedings by way of writ 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 competi- · tions in question were gambling in character, and that licensing provisions were accordingly valid, but that the taxes imposed by ss.

12 and 12-A bf the Act were really taxes on the carrying on of the business of running prize competitions, and were hit by Art .. 301 It is In order to prevent evasion of its objrct, the Constitution, and were therefore bad. 1957 R.M.D. Clumwr baugwalla v. The Union of India V tnkatl11'm1UJ A(Yar J. 938 SUPREME COURT REPORTS (1957) against this decision 1956, already referred to, was directed. that Civil Appeal No. 134 of respective borders, The position created by judgment was that the business of run though the States could regulate ning competitions within their the extent that it had ramifications in other States they could deal with it effectively only by joint and con certed 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 East Punjab States Union and Saurashtra passed the Constitution resolutions under Art.

252 ( l) of authorising Parliament to enact the requisite legislation regulation of prize competitions. for the control and Typical of such resolutions · is legislature of Bombay, which is in these terms : the one passed by "Th.is 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 that Parlia ment passed the Act now under consideration, and that fact is- recited in the preamble to the Act. to give effect to these resolutions to control and Having regard to the circumstances under which the resolutions came to be passed, there cannot be any reasonable doubt that the law wh.ich the State legis latures moved Parliament to enact under Art.

252(1) was regulate prize competitions of a gambling character. Competitions success depended substantially on skill could not have been in the minds of the legislatures which passed those resolu tions. Those competitions had not been the subject of any controver!!V in court. They had done no harm the public . and had 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 com petitions, they could have · themselves effectively done in which S.C.R. SUPREME COURT REPORTS 939 If it was so withut 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. 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 requi~ite in the case of gambling, mere regulation would have been sufficient as regards competitions involving skill. The use of the in the word 'control' which 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. is to be found not only 1957 R.M.D.C,._ baugwallo v. Tlr4 Union ef I..tio VenkOIOtatM Avor J. If we could legitimately rely . Our attention was invited by Mr. Seervai to the statement of objects and reasons in the Bill introducing It is therein stated that the proposed the enactment. legislation falls under Entry 34 of the State List, viz., "Betting and gambling". on this, that would be conclusive against the petitioners. But Mr. Palkhiwala contends, and Parliamentary history of the enactment is not admis sible to construe its meaning, and Mr.

Seervai also dis claims any intention on his part to use the statement ·must of objects and reasons 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. to explain s. 2(d). We rightly, (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 which it does not so depend, the question then ai:ises 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, to sev:erability of the rules as because, he .argues, 1957 R.M.D. Ch.,,.,,,. baugwalla v.

The Union of India VenA:atatama Atyar J. SUPREME COURT REPORTS [1957] statutes can apply only when the impugned legislation is in excess of legislative competence as regards subject matter and not when it is in violation of constitutional prohibitions, and further because the impugned provi the other hand, sions are one and Mr. Seervai principle of severability is applicable when a statute is partially void for whatever reason that might be, and that the impugned provisions are severable and there fore enforceable as against competitions which are of a gambling character. the correctness of these contentions that we have to pronounce. indivisible. On respondent It is on contends the Lists Indian Constitution, The question whether a statute which is void in part is to be treated as void in toto, or whether it is that part which is valid capable of enforcement as is one which can arise only with reference 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, example, the topics enumerated in Seventh Schedule in ~s. 91 and 92 of the Canadian Constitution, and s. 51 of the it may be with reference Australian Constitution; or they could to the character of the enact in respect of subjects assigned to them, as example, rights guaranted in Part III of the Constitution and similar constitutionally protected rights the American and other Constitutions. When a legislature, whose autho 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 a principle well provisions of the Act. legislation which fundamental is subject relation This 1s 1957 R.M.D. Chamar baugwalla! ... Tiii Unitm of lndi.ai V,•nJ;atarama Avar J. S. C.R. SUPREME COURTS REPORTS 941 established in American Jurisprudence, Vide Cooley's Constitutional Limitations, Vol.

I, 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 deciding on the validity of laws enacted by the legis latures of Australia and Canada, Vide Attorney-General for the Commonwealth of Australia v. Colonial Sugar and Attorney-General Refining Company Limited( 1 ) for Alberta v. Attorney-General for Canada ( 2 ). 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( 5). These decisions are relied on by Mr. Seervai as being decisive in his favour. Mr. Palkhi wala disputes this position, and maintains that on the decision of in Punjab Province v. Daulat Singh and other( 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. the Privy Council reference arose with survivorship. While In In re Hindu Women's Rights to Property Act('), the Hindu the question to Property Act XVIII of 1937 Women's Rights That was an Act passed by the Central Legislautre, and had conferred on Hindu widows certain rights over properties which devolved by intestate succession subject of devolution was within the competence of the Centre under Entry 7 in List III, that was litnited to property other than agricultural land; which 'w~s a exclusive competence of the Provinces· under Entry 21 in List II. Act No. XVIII of 1937 dealt generally with property, and the beirtg admittedly regards a~riculiura~ lantls, it was void \n its entirety. incompetent and ultra contention raised was subject within {1) [1914] A. C. 237.

(2) L. R. [1947] A. C. 503• (3) fi941] F. c. R. 12. (4) [1951l S. C. R.· 682. (5) [1953] S. C. R. ro69. (6) [1946) F. C. R. 1. (i'J [1950] '8. c. R. 954; (8) [1950] .S. C,. R. 759· - 1957 R.M.D. Clra1orJr. bau87:f!alla "· "Tiu Union of India Venkatarama AV•ar J. 942 SUPREME COURT REPORTS [1957] 'property' true; but that should not however be It was held by the Central the Federal Court Legislature must, on the principle laid down in Macleod v. Attorney-General for New South Wales('), 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 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 severability was vires, and that thus, no question of decided.

That is ·the principle of severability had the approval of that Court clearly appears from the following observations of Sir Maurice Gwyer C. J.: "It Court has overlooked cases cited 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 has been held to be bad. purposes within the power of the Legislature would be co leave an Act with nothing or next to nothing in it, or an Act different in kind, and not merely in degr~e, 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 circum stances it is impossible to assert with any confidence that the Legislature intended the general words which it has used to be construed only the narrower sense. If the Act it must remain, even when a narrower meaning is given to the general words, intelligible and valid and which can be executed by itself;' 'Wynes: Legislative and Executive Powers in Australia, p.

51, citing Presser v. lllinois(2)." There contention of is nothing . in these observations the petitioners to support the the doctrine of in which the general words 'an Act which to be upheld, restriction of is complete, thought If the to it (1) [1891] A. C. 455. (2) (1886) 116 U. S. 250. 1957 fl.M.D. Chamar• baugwa/la v. The Umon of Indio V enkataram" Aiyar J. S.C.R. SUPREME COURT REPORTS 943 severability applies- only when excess of the competence of the legislature quoad its subject-matter, constitutional prohibitions. and not when the legislation infringes the validity of In The State of Bombay and another v. F. N. Balsara( 1 ) the question was as 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 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 imposition of a restriction on a fundamental to cover restrictions both in language wide enough limits of constitutionally within 'the permissible to uphold it even so far as it may be is not possible it is not the constitutional applied within In rejecting severable". the Court observed (at pp. 717-718) : legislative action affecting such right, law purports to authorise this contention, and without limits, as that "as regarding prohibition, ''These items being thus treated separately by legislature itself and being severable, and it not being contended, in view of the directive principles of State policy restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are impugned sections must be held unreasonable, valid so far as these categories .are concerned.

" This decision is clear authority severability the principle of the partial applicable even when (\) [.1951) S. C. R· 682. J957 R.M.D. Chanallf"• baugwa/la v. TM Union of India Venkatarama Aryar J. 944 SUPREME COURT REPORTS [ 195'1] intention rest of it, and invalidity of the Act arises by reason of its contraven tion 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 them as severable, thus evinced an intention to treat 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 sever ability 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 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 fac~r, and while a classification made in the statute might go far to support a conclusion in the absence of favour of severability, it does not necessarily preclude It is a feature usual in latter it. legislation in America to enact a clause that the invalidity of any part of the law shall not render rest of it void, and it has been held that such a clause furnishes only prima· severability, which must in the last resort be decided on an examina tion of the provisions of the statute. In discussing the effect of a severability clause, Brandies J. observed in Dorchy v. State of Kansas(') that it "provides a rule of construction, which may sometimes aid in determining that intent. But is an aid merely; not an inexor to a able command". The weight itself classification of subjects made cannot, that of a If the decision in The State of severability clause.

Bombay and another v. F. N. Balsara( 2 ) is examined in the light of the above discussion, it will be seen that the judgment to the fact while there is a reference in treated that medicinal and separately by is followed by an independent finding that they are severable. In other words, the decision as to severability was reached on in our opinion, be greater to be attached the statute toilet preparations are legislature, . that evidence of (1) (1924] 264 U. S. 286; 68 L. Ed. 686, 690. (2) [1951] S. C.R. 6820 1957 R.M.D. Ciuunar baugr.aalla v. Tiii Union of India Venkatararna A!1ar ]. S.C.R. SUPREME COURT REPORTS 945 · "It to extend severability the separability in fact of the subjects dealt with by the legislation and the classification made in the rules merely furnished support to it. the observations of Patanjali there are Then, in The State of Bombay v. The United Sastri C.J. 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) : is a sound rule 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 sever ability of laws. which are partially unconstitutional, and that it has no application to the present statute. We are unable to find anv basis for this argument in the American authorities ... That the decision in Bowman's is no ground for case(2) related taxing statute taxing therein· to the principle. enunciated limiting 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 statute~. ·and other statutes, Corpus Juris Secundurri, Vol.

82, dealing with the · subject of applicable severability, · states generally . and consider those principles with to different topics, and taxation laws from one of those topics. to all statutes, and· then . proceeds principles reference taxing to a We have now to consider the decisions in Punjab . Province v. Daulat Singh and others( 3 ), Ramesh Thappar ) and Chintarnan Rao v. State. of v; State of Madras( 4 Madhya Pradesh( 5 In relied on by Punjab Province.· v. Daulat Singh and others(3), the the petitioners. ) (1) [1953] S. C.R. 1069 at 1098-99. (2) (1921] 256 U.S. 642; 65 L. Ed. 1137. (3) [1946] F. C.R. 1. (4) 1950 S. C. R.-594. (5) (1950] S. C. R. 759. . 1957 fl.M.D. Chamar haugwalla v. ·r lu: Union of India V en. (:atarama Aryar ]. 946 SUPREME COURT REPORTS [1957) challenge was on the validity of s. BA 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 the trans purposes, when the real beneficiary under action 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 issued the Act. A notification dated April 18, 1904 under that section provided that, inter alia "In each district of the Punjab mentioned column 1 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 such district, mentioned opposite the name of column 2, shall be deemed to be an agricultural tribe' within the district''.

The question was whether s. BA was void as contra vening s. 298 ( 1) of the Government of India Act, 1935, which provided that no subject of His Majesty domiciled · in India shall on grounds on! y of descent be prohibited from acquiring, holding or dis posing of property. It was held by the Federal Court that s. BA 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 ~ made as to the validity of the impugned alienation with reference to the qualifications of the alienee. (Vide Punjab Province v. Daul.at Singh( 1 ). Before the Privy Council, Mr. Pritt, counsel for the appellant, "conceded that membership of a tribe was generally a question of descent", and the Board accordingly held that s.

BA was repugnant to s. 298(1) (I) [1942) F. C. R. 67. 1957 R.M.D. Chamar baugwalla v. Tht Union of India Venkatarama AiJ'ar J. ; S.C.R. SUPREME COURT REPORTS 947 and was void. Dealing next with the enquiry which was directed by the Federal Court as to the qualifica the Privy Council observed as tions of the alienee, follows (at p. 20) : the Federal Court appear impugned Act may happen "The majority of contemplated severability, another the particular cases on namely, by a classification of to operate, involving an inquiry 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 the court, a involve an amendment of course which is beyond the competency of the court, as has long been well established. " the Act by reside to go against the district as two distinct groups was It described only one category, and It will be noticed that, in the above case, there was no question of the application of the Act to dilferef't categories which were distinct and severable either i:l fact or under the provisions of the Act.

The notifica tion issued under s. 4 on which the judgment of Federal Court was based did not classify those who did tho:e who did not hold not belong to the tribe and two distinct property or that had groups. to satisfy both the conditions. To break up that category the express language of the enactment and to substitute the word that could "or" for "and". The Privy Council held not be done, and it also observed that the severability contemplated in the judgment of the Federal Court was an ad /zoc determination with reference to qualifications of each alienee as distinguished from a distinct category with reference to is not an authority for the position that if the subject-matter of what is valid is severable from that of what is invalid, the Act must be held to be wholly void. even then, More to the point are the following observations (at pp. 19-20) on a question which was also raised in that case whether s.

BA 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 fro~ ti1e rest of the provisions, it is established bevond 8-80 S.C.Ind;a/59. the subject-matter. This 1957 R.M.D. Chamar· baugwalla y. The Union of l'lldia v,nkatarama AiJar J. 948 SUPREME COURT REPORTS [1957] and void. the whole Act would have controversy that to be declared ultra vires happily, the retrospective element is easily severable, and by the deletion of 'either before or' from the early part of sub-s. ( 1) of the new s. BA, enacted by s. 5 of the impugned Act, the rest of the provisions of the impugned Act may be left to operate validly. " But, impugned Act the words Discussing this decision in The State of Bombay v. The United Motors (India) Ltd. (') Patanjali Sastri C.J. observed (at p.

1098): constitutional mandate, "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 to transgress whole Act had to be held void as the words used covered both what was constitutionally permissible and what was not. " to say, the notification issued under s. 4 was That is single and indivisible, and therefore it was not sever able. Agreeing with this opinion, we are of opinion that the decision in Punjab Province v. Daulat Singh(") cannot, in view of the decision of this Court in The State of Bombay v. F. N. Balsara,t), be accepted as authority for be no severabilitr, even in fact, distinct and severable. that there the subject-matters the position are, authorised the Provincial Government In Romesh Tlwppar \'. State of Madras(•), the ques tion was as to the validitv of s.

9 (1-A) of the Madras Maintenance of Public Order Act XXIII of 1949. That section prohibit the entry and circulation within the State of a newspaper "for the public safety or the maintenance of public order". Subsequent the Constitution to the enactment of impugned into force, and it was protected by provision depended on whether Art. 19(2) which saved "exist\ng law in so far as the security relates to any matter which undermines the purpme of securing the validity of statute, (<) ["J53] s. c. R. •069. (2) [1940] l.F. C.R. I. (3) [•os•[ S.C.R. 68•. (4 (q~o] S.C.R. 504. 1957 R.M.D. Chamar baugwa/la v. The Union of India Venkatarama Aryar ], S.C.R. SUPREME COURT REPORTS 949 It was held by of or tends to overthrow the State. " '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 in sever It is not an authority for the position that even able. when a provision is severable, it must be struck down on the · ground that the principle of inadmissible when the invalidity of a statute arises by constitutional prohibitions. contravening reason if· its in Romeslz It should be mentioned that the decision I happar v. State of Madras( 1 ) was referred to in The State of Bombay v. F. N. Balsara(2) arid The State of Bombay v. The United Motors distinguished. (India) Ltd. ( 3 severability ) 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 Manu facturers 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 agri cultural season engage himself the manufacture of bidis, and no manufacturer shall during the said season employ any person for the. manufacture of biclis".

This Court ht.:ld that the restrictions imposed by s. 4(2) were in excess of what was requisite for achiC\·ing the pur pm.e of the Act, which was "to provide measures for the labour for agricultural purposes in supply of adequate purpose could areas", hidi manufacturing have been achieved by limiting tc, agri cultural labour and to defined hours, and that, as stood, the impugned provision could not be upheld as a reasonable restriction within Art. 19(1) (g). Dealing the Court. next with observed (at p. 765) .that, the question of the restrictions severability, "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· (2) [1951] S. C.R. 682. 9-8,) S. C. Jndia/';9, (3) [1953] S. C.R. 1o69. (4) [1950] S. C.R. 759. 1957 R.M.D. Chamar· baugwalla v. The Union of India Venkata,-ama Arya, J. 950 SUPREME COURT REPORTS [1957] legislative action affecting the right.

" labour cannot be held valid because agricultural language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible Now,. it should be noted that the impugned provision, s. 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 impugned therein, the particular provision which was and it is open to the same comment as the decision in Ramesh Thappa,- v. State of Madras( 1 ). That was also one of the decisions distinguished in T lie 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. the purpose of this rule whether the invalidity of the statute arises by the compe reason of its subject-matter being outside tence of the legislature or by reason of its provisions contravening constitutional prohibitions.

It is immaterial their application That being the position in law, it is now necessary to consider whether the impugned provisions are severable to competitions of a gambling character, assuming of course the definition of '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 qne.tion to refer to certain rules of construction laid down by the American Courts, where the question of severability has been in numerous the subject of consideration authorities. They may be summarised as follows :