R.M.D. Chamarbaugwalla vs The Union Of India (Uoi)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 April, 1957

Coram: P.B. Gajendragadkar, S.K. Das, B.P. Sinha, Venkatarama Aiyar

In the matter titled R.M.D. Chamarbaugwalla versus The Union of India, decided on 9 April 1957, the Supreme Court recorded that several State legislatures had passed resolutions under article 252, clause (1) of the Constitution, after which Parliament enacted the Prize Competition Act, identified as Act 42 of 1955. The Act was brought into force by a Central Government notification dated 31 March 1956, with effect from 1 April 1956. The petitioners before the Court were individuals who were engaged in the promotion and conduct of prize competitions across various States of India. They filed the present petitions invoking article 32 of the Constitution, seeking to challenge the constitutional validity of certain provisions contained in the Act and of the rules framed under it.

The Court found it helpful to set out the relevant provisions of the Act and of the rules for the purpose of the petitions. The short title and the preamble of the legislation declare that its object is “to provide for the control and regulation of prize competitions.” Section 2(d) of the Act defines the expression “prize competitions” to mean any competition—whether described as a crossword prize competition, a missing‑word prize competition, a picture prize competition, or by any other name—in which prizes are offered for solving a puzzle that involves the construction, arrangement, combination or permutation of letters, words or figures. The provisions that were directly challenged as unconstitutional were sections 4 and 5, which read as follows: “No person shall promote or conduct the 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.” and “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 accordance with the provisions of this Act the rules made thereunder.”

The Act also contains provisions dealing with the issuance of licences, the maintenance of accounts and the imposition of penalties for any breach of its requirements. Section 20 confers upon State Governments the authority to formulate rules for the implementation of the Act’s purpose. Exercising that authority, the Central Government prepared rules applicable to Part C States, and those rules have, in general, been adopted by all States. Two of those rules—specifically rules 11 and 12—were the subject of the petitioners’ constitutional challenge. Rule 11, concerning entry fees, states: “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 1 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.” Rule 12, which deals with the maintenance of a register, requires every licence holder to keep, for each licensed prize competition, a register in Form C and to ensure that no more than two thousand entries are received for scrutiny by taking prescribed steps, including arranging to receive the entries. The petitioners claimed that these provisions violated constitutional protections, thereby prompting the Court’s review.

The regulations stipulate that an entry fee must be paid only in cash and not by any other mode of payment. The fee may not exceed Re. 1 where the total value of the prize or prizes offered lies between five hundred rupees and one thousand rupees. In all other situations the fee is fixed at the following rates: a fee of as. 8 where the total prize value is less than five hundred rupees but not less than two hundred and fifty rupees, and a fee of as. 4 where the total prize value is less than two hundred and fifty rupees. Every licence holder is required to keep, for each prize competition for which a licence has been grated, a register in Form C. The purpose of this register is to ensure that no more than two thousand entries are received for scrutiny for any single competition. To achieve this, the licencee must arrange that all entries are received only at the place of business specified in the licence; must serially number the entries in the order in which they are received; must record the relevant particulars of each entry in the Form C register at the time of receipt and, in any event, no later than the close of business on the day of receipt; and must accept for scrutiny only the first two thousand entries that appear in the Form C register. Any entries beyond this limit are to be ignored where no entry fee has been charged. In cases where an entry fee is charged, the licencee must refund the fee for the entries that exceed the two‑thousand‑entry ceiling, after deducting any cost of refund, to the persons who sent those excess entries. The petitioner’s counsel argued that the definition of “prize competition” in section 2(d) embraces not only contests whose outcome depends on chance but also those where success depends substantially on skill. He contended that the conditions imposed by sections 4 and 5 and rules 11 and 12 are wholly unworkable, rendering it impossible to run any competition, and that they intrude upon the petitioners’ fundamental right to carry on business. He further maintained that the provisions cannot be upheld under article 19(6) of the Constitution because they are unreasonable, effectively constituting a prohibition rather than a mere regulation. Even assuming the provisions might be regarded as reasonable restrictions for gambling‑type competitions, he argued they could not be justified for competitions where skill plays a substantial role. Finally, he submitted that because the impugned law forms a single inseverable enactment, it must be struck down in its entirety with respect to both categories of competition.

Mr. Seervai, appearing for the respondent, contested the petitioners’ contentions. He maintained that the term “prize competition” as defined in section 2(d) of the Act, when properly construed, refers only to competitions in which success does not depend to any substantial degree on skill and that such competitions are essentially gambling in nature. He further argued that gambling activities are not “trade or business” within the meaning of article 19(1)(g) of the Constitution, and therefore the petitioners cannot invoke the protection of article 19(6). Mr. Seervai added that even if the definition in section 2(d) were interpreted broadly enough to include contests where success depends largely on skill, sections 4 and 5 of the Act and rules 11 and 12 would have to be struck down in respect of those skill‑based contests as unreasonable restrictions not covered by article 19(6). He asserted that such a striking down would not affect the validity of the enactment as it applies to gambling‑type competitions, because the Act is severable in its application to those competitions.

The petitions were heard together with Civil Appeal No. 134 of 1956, in which the validity of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948 was challenged on grounds that overlap with the present petitions. In the judgment on that appeal, the Court held that trade and commerce protected by article 19(1)(g) and article 301 are limited to lawful trading activities, that gambling is not a trade but a “res extra commercium,” and that gambling therefore does not fall within the scope of those constitutional provisions. Applying that precedent, the Court concluded that for gambling competitions the petitioners cannot claim the protection of article 19(1)(g), and consequently the question of whether the restrictions imposed by sections 4 and 5 and rules 11 and 12 are reasonable under article 19(6) does not arise. By contrast, competitions that involve a substantial element of skill are regarded as business activities, which are protected by article 19(1)(g). The reasonableness of sections 4 and 5 and rules 11 and 12 as public‑interest restrictions must therefore be examined in the context of such skill‑based competitions. Mr. Seervai conceded that, based on the material before the Court, he could not sustain that the restrictions in those provisions are saved by article 19(6) as reasonable and in the public interest. With that ground cleared, the remaining issues for determination are (1) whether, under the definition of “prize competition” in section 2(d), the Act applies to competitions that involve substantial skill and are not gambling in nature; and (2) if it does, whether sections 4 and 5 and rules 11 and 12, which are, ex concessi void as to such competitions, can be enforced under the principle of severability.

The Court considered whether the principle of severability could be applied to competitions that are essentially gambling. The first question the Court examined was whether the Act also covered prize competitions in which success depended to a substantial degree on skill. The Court observed that if that question were answered solely by a literal reading of section 2(d), it would be difficult to reject the petitioners’ claim that the Act does apply to such competitions. The definition of “prize competition” in section 2(d) was described as wide and unqualified in its terms. The Court noted that there was nothing in the wording that limited the definition to competitions where success depended only on chance and not on any substantial degree of skill. Counsel for the respondents, Mr Palkhiwala, argued that the language of the enactment was clear and unambiguous and that the Court could not read a limitation into it based on extraneous considerations. The Court explained that when an interpretative question arises, the Court’s task is to ascertain “the intent of them that make it,” and that intention must be gathered from the words actually used in the statute. However, the Court emphasized that this does not require a decision to rest on a literal interpretation of the words in disregard of all other material. Referring to Maxwell’s Interpretation of Statutes (10th edition, p. 19), the Court observed that literal construction enjoys prima facie preference, but that to reach the true meaning it is necessary to obtain an exact conception of the aim, scope and object of the whole Act. In line with Lord Coke’s four‑point canon, the Court listed: (1) the law that existed before the Act was passed; (2) the mischief or defect that the pre‑existing law failed to address; (3) the remedy that Parliament appointed; and (4) the reason for that remedy. The Court identified this reference as stemming from Heydon’s case [(1584) 3 W. Rep. 16; 76 E.R. 637]. Those principles, the Court noted, are well settled and were applied by this Court in The Bengal Immunity Company Limited v. The State of Bihar and others. Consequently, to determine the true scope of the present Act, the Court must consider all legitimate factors that shed light on legislative intention, including the legislative history, the purposes of the legislation, the mischief it intended to suppress, and the other provisions of the statute, and then construe the language of section 2(d) in the light of those indications. Turning to the legislative history, the Court traced the genesis of the legislation to the Bombay Lotteries and Prize Competitions Control and Tax Act (Bombay LIV of 1948). That Act was enacted to control and tax lotteries and prize competitions within the Province of Bombay and, as originally framed, applied only to competitions conducted inside that province. Section 7 of that Act declared that “a prize competition shall be deemed to be an unlawful” competition unless a licence was obtained, thereby establishing the foundational framework for the subsequent statutory scheme.

Section 2(d) of the Bombay Lotteries and Prize Competitions Control and Tax Act declared that a prize competition would be unlawful unless the promoter had first obtained a licence for that competition. Section 12 of the same Act imposed a tax on the amounts received with respect to competitions that had been licensed under the statute. In order to escape the operation of the taxing provisions, a number of persons who had previously conducted prize competitions inside the Province of Bombay relocated the venue of their activities to neighbouring States such as Mysore. From those external locations they continued to accept entries and to receive monetary remittances from residents of Bombay State, thereby avoiding the tax that would have been payable had the competitions been carried out within Bombay itself.

To prevent such evasion and to give effect to the purpose of the legislation, the Bombay legislature enacted Act XXX of 1952. This amendment extended the reach of the 1948 Act so that its provisions applied to competitions that were conducted outside the geographical limits of Bombay but that operated inside the State. The tax imposed under the amendment, however, was confined to the amounts that were remitted or that became due on entries that had been sent from the State of Bombay. The validity of this amendment was challenged by several promoters of prize competitions who approached the High Court of Bombay by filing writ petitions. The matter came before Chief Justice Chagla and Justice Dixit, who heard the appeals that arose from those writ proceedings. In their judgment they held that the competitions in question were of a gambling character and that, accordingly, the licensing provisions of the Act were constitutionally valid. Nevertheless, they concluded that the taxes imposed by sections 12 and 12‑A were essentially taxes on the conduct of the business of running prize competitions. Because such taxes interfered with the freedom of trade guaranteed by Article 301 of the Constitution, the Court declared those taxing provisions to be unconstitutional and therefore void.

The decision of the Bombay High Court was the subject of Civil Appeal No. 134 of 1956, which was instituted against the judgment described above. The effect of that judgment was to create a legal position whereby a State could regulate the business of conducting prize competitions within its own territorial limits, but if the activity had consequences in other States, the State could only address it effectively through coordinated action with the other States. Article 252(1) of the Constitution provides precisely for such cooperative legislation. Consequently, following the High Court’s ruling, the legislatures of several States—including Andhra, Bombay, Madras, Orissa, Uttar Pradesh, Hyderabad, Madhya Bharat, Patiala and East Punjab States Union, and Saurashtra—adopted resolutions under Article 252(1) that authorised Parliament to enact the necessary legislation for the control and regulation of prize competitions.

A typical resolution adopted by the Bombay legislature read 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 on the basis of such resolutions that Parliament enacted the statute presently before the Court, a fact that is expressly recited in the pre‑amble to the Act.

In this case the Court observed that, because of the circumstances under which the State legislatures passed the resolutions that invited Parliament to legislate under Article 252(1), there was no reasonable doubt that the legislation Parliament was asked to enact was intended to control and regulate prize competitions of a gambling nature. The Court noted that competitions whose success depended largely on skill could not have been contemplated by the legislatures that adopted those resolutions, since such skill‑based contests had never been the subject of any judicial controversy, had caused no harm to the public, had presented no problems to the States, and had never been the target of any regulatory statute. Moreover, the Court pointed out that if the State legislatures had considered it necessary to regulate even those skill‑based competitions, they possessed the power to do so directly without resorting to the special jurisdiction provided by Article 252(1). The Court further remarked that the language of the resolutions expressed that it was “desirable to control” the competitions; if Parliament were also meant to legislate on contests involving skill, the term “control” would have been inappropriate. While “control and regulation” would be required for gambling contests, mere “regulation” would suffice for skill‑based contests. The recurring use of the word “control” in the resolution, the short title, and the preamble of the Act, the Court held, clearly indicated that only the type of competitions discussed in the Bombay judgment were intended to fall within the legislature’s contemplation. The Court then turned to the statement of objects and reasons in the Bill that introduced the enactment, which identified the proposed legislation as falling under Entry 34 of the State List, “Betting and gambling.” Although reliance on that statement might have been conclusive against the petitioners, the Court accepted the counsel’s argument that parliamentary history cannot be used to interpret the meaning of the statute, and the counsel for the petitioner also disclaimed any intention to use the statement of objects and reasons to explain section 2(d). Consequently, the Court excluded that material from consideration. Nonetheless, based on the legislative history, the declared purpose of the Act, and the wording of the statute, the Court was of the opinion that the competitions the Act sought to control and regulate were only those in which success did not depend substantially on skill. Assuming, however, that section 2(d) defined prize competitions to include both skill‑dependent and skill‑independent contests, the Court identified the remaining issue: whether sections 4 and 5 of the Act and rules 11 and 12 would be void not only as applied to the gambling contests—an aspect that was undisputed—but also as applied to the skill‑based contests. The counsel for the respondent argued that these provisions were void in respect of the skill‑based contests, contending that the provisions should be struck down in that context.

The petitioner argued that the rule of severability may be invoked only when the challenged enactment exceeds the legislature’s subject‑matter competence, and not when it conflicts with constitutional prohibitions, especially because the provisions under challenge were described as a single, indivisible whole. In contrast, counsel for the respondent maintained that the doctrine of severability applies whenever a statute is partially void for any reason, and therefore the contested provisions could be separated and enforced against competitions of a gambling nature. The Court observed that it must now determine which of these contentions is correct.

The issue before the Court concerned whether a statute that is void in part must be treated as void in its entirety, or whether the valid portion may still be enforceable. This question arises only in relation to laws made by bodies that do not enjoy unlimited legislative authority, such as the legislatures of a federal union. Their powers may be limited in two respects. First, the limitation may relate to the subject‑matter on which they are authorised to legislate, for example the matters listed in the Seventh Schedule of the Indian Constitution, sections 91 and 92 of the Canadian Constitution, or section 51 of the Australian Constitution. Second, the limitation may concern the character of the legislation they may enact with respect to subjects assigned to them, for instance the protection of fundamental rights guaranteed in Part III of the Indian Constitution and comparable rights in the American and other constitutions.

When a legislature whose authority is subject to such limitations enacts a law that is wholly beyond its competence, that law is entirely void and must be disregarded. However, where the legislation is partly within the legislature’s jurisdiction and partly outside it, the portion that exceeds its competence is unquestionably void; the remaining question is whether the void portion automatically renders the entire Act invalid. The answer depends on whether the valid and invalid sections can be severed from each other, a determination that the Court must make by examining the provisions of the Act.

This principle of partial validity and severability is well established in American jurisprudence, as noted in Cooley’s Constitutional Limitations (Vol. I, Chap. VII), Crawford on Statutory Construction (Chap. 16) and Sutherland on Statutory Construction (3rd Ed., Vol. 2, Chap. 24). The Privy Council has applied the principle in assessing the validity of statutes enacted by the legislatures of Australia and Canada, for example in Attorney‑General for the Commonwealth of Australia v. Colonial Sugar Refining Company Limited ([1914] A.C. 237) and Attorney‑General for Alberta v. Attorney‑General for Canada ([1947] A.C. 503). The Federal Court approved the approach in In re Hindu Women’s Rights to Property Act ([1941] F.C.R. 12), and this Court has adopted it in cases such as The State of Bombay and another.

In the earlier cases of The State of Bombay v. F. N. Balsara reported in 1951 SCR 682 and The State of Bombay v. The United Motors (India) Ltd., and others reported in 1953 SCR 1069, the Court examined the validity of statutory provisions. Mr. Seervai relied upon those decisions, arguing that the authority of those judgments was decisive in support of his position. Mr. Palkhiwala challenged that reliance, contending that the authority of the Privy Council in Punjab Province v. Daulat Singh and others reported in 1946 FCR 1, together with the Supreme Court’s own decisions in Romesh Thappar v. State of Madras reported in 1950 SCR 594 and Chintaman Rao v. State of Madhya Pradesh reported in 1950 SCR 759, required the matter to be decided in his favour. The Court therefore indicated that it must carefully scrutinise the precise scope of each of those authorities before arriving at a conclusion on the question presented.

The case In re Hindu Women’s Rights to Property Act reported in 1941 FCR 12 concerned the Hindu Women’s Rights to Property Act XVIII of 1937, an enactment of the Central Legislature that granted Hindu widows certain rights over property that descended by intestate succession and survivorship. Although the subject of succession lay within the Centre’s competence under Entry 7 of List III, that competence was limited to property other than agricultural land, while agricultural land fell exclusively within provincial authority under Entry 21 of List II. The Act dealt generally with “property,” and it was argued that, because the legislation was plainly incompetent and ultra vires with respect to agricultural land, the entire Act must be declared void. The Federal Court, applying the principle articulated in Macleod v. Attorney‑General for New South Wales (1891 AC 455), presumed that the Central Legislature knew its own constitutional limits and intended to legislate only within its competence; consequently it construed the word “property” in the 1937 Act as referring to non‑agricultural property and held the enactment wholly intra‑vires. Mr. Palkhiwala submitted that this judgment did not rest on a finding that part of the Act was ultra vires and could be severed, but rather on a conclusion that the whole Act was intra‑vires, and therefore no issue of severability arose. While that observation is correct, the Court also noted that the principle of severability received explicit endorsement from Sir Maurice Gwyer C.J., who remarked that the Court had not ignored cases in which identical wording served multiple purposes, some within and some beyond legislative power, and where the entire Act was declared void. He warned that if limiting the general words to only the purposes within legislative authority would leave the Act with nothing or essentially a different Act, then the whole enactment must be held invalid, because it would be impossible to be confident that the Legislature intended the general words to be confined to a narrower meaning.

In the judgment, the Court explained that when the general words of a statute were interpreted in their broader sense, it became evident that the entire Act had to be declared invalid. The Court reasoned that under such circumstances it was impossible to be confident that the Legislature had intended those general words to be read only in a narrower sense. The Court further stated that for the Act to survive, even after a narrower construction of the general words, it needed to remain “an Act which is complete, intelligible and valid and which can be executed by itself,” as quoted from Wynes, Legislative and Executive Powers in Australia, page 51, citing Presser v. Illinois [(1886) 116 U.S. 252]. The Court observed that none of these remarks supported the petitioners’ claim that the doctrine of severability applied solely when legislation exceeded the Legislature’s competence regarding its subject‑matter and not when it contravened constitutional prohibitions.

The Court then referred to the earlier decision in The State of Bombay and another v. F. N. Balsara [[1951] S.C.R. 682]. In that case the validity of the Bombay Prohibition Act was examined. Sections 12 and 13 of that Act imposed restrictions on the possession, consumption and sale of liquor, which the Act defined in section 2(24) as comprising (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance that the Provincial Government could, by a notification in the Official Gazette, declare to be liquor for the purposes of the Act. The Government, exercising the power under clause 2(24)(b), had by notification classified certain medicinal and toilet preparations as liquor. The entire Act was challenged on the ground that it violated the rights protected by Article 19(1)(f). The Court held that the provisions affecting medicinal and toilet preparations were unreasonable and therefore void, while the remaining provisions of the Act were valid.

The petitioners further argued that because the law used language broad enough to authorize restrictions both within and outside the limits of constitutionally permissible legislative action, the Act could not be upheld even to the extent that it fell within constitutional limits, asserting that it was not severable. The Court rejected this contention. In its observation at pages 717‑718, the Court noted that the legislature had treated the items in question separately and that they were severable. Moreover, it was not contended, considering the directive principles of State policy on prohibition, that the restrictions on the right to possess, sell, buy, consume or use those categories of property were unreasonable. Consequently, the Court held that the impugned sections remained valid insofar as those specific categories were concerned.

The Court concluded that the State of Bombay decision constituted clear authority that the principle of severability applies even when a portion of an Act is invalid because it conflicts with constitutional limitations. The petitioners contended that in the Bombay case the legislature had, through the

The petitioners argued that the earlier decision was of no assistance because the rules made under the earlier statute had expressly classified medicinal and toilet preparations as a separate category, thereby showing a legislative intention to treat those categories as severable, whereas the present Act contained no comparable classification. The Court observed that such an argument adopted an unduly narrow view of the precedent. It explained that the doctrine of severability rests on a presumed legislative intent that, should any part of a statute be declared void, the remainder should continue to operate, and that this intent is to be discerned from the language of the statute itself. The Court further clarified that the essential character of the subject‑matter of the legislation is the decisive factor; while a statutory classification may strongly support a conclusion of severability, the absence of such a classification does not automatically exclude the possibility of severability. The Court noted that in modern legislation, particularly in the United States, it is common to include a clause stating that the invalidity of any provision shall not render the whole law void. Such a severability clause, the Court said, provides only prima facie evidence of the legislature’s intention and must ultimately be resolved by a careful examination of the statute’s provisions. Referring to the view expressed by Brandies J. in Dorchy v. State of Kansas, the Court quoted that a severability clause “provides a rule of construction, which may sometimes aid in determining that intent. But it is an aid merely; not an inexorable command.” Accordingly, the Court held that the weight to be given to a classification made within the statute cannot exceed the weight given to a severability clause itself. In assessing the decision in The State of Bombay and another v. F. N. Balsara, the Court observed that although the judgment mentioned that medicinal and toilet preparations were treated separately by the legislature, this observation was followed by an independent finding that those categories were severable. In other words, the determination of severability was based on the factual separability of the subjects dealt with by the legislation, and the statutory classification merely provided supporting evidence. The Court then turned to the observations of Patanjali Sastri C.J. in The State of Bombay v. The United Motors (India) Ltd., where, while dealing with a challenge to a tax law, the learned Chief Justice held that “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 the dealing with taxing statutes in this country.” This passage was cited to illustrate that the principle of severability, including its application to the enforcement of statutes, is not confined to any particular category of law.

The petitioners argued that the rule of severability in enforcement, which was set out in the earlier passage and was based on the United States decision in Bowman v. Continental Co. (1921) 256 U.S. 642, applied only to tax statutes. They claimed that this rule was essentially an exception to the general principle that a law cannot be partially unconstitutional and that it could not be used in relation to the present statute. The Court found no support for this contention in the American cases cited. The fact that the Bowman decision concerned a taxing statute does not limit the principle articulated in that decision to tax laws alone. Moreover, the Court noted that leading American legal textbooks do not distinguish between tax statutes and other statutes when discussing severability. For example, Corpus Juris Secundum, volume 82, first outlines the general principles of severability that apply to all statutes and then examines those principles in various contexts, with taxation presented merely as one of many topics.

The Court then turned to the authorities relied upon by the petitioners, namely 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. In the Punjab Province case, the challenge concerned the validity of section 13A, which had been added to the Punjab Alienation of Land Act XIII of 1900 by an amendment enacted in 1938. Section 13A declared that any alienation of land by a member of an agricultural tribe in Punjab in favor of another member of the same tribe would be void for all purposes if the real beneficiary of the transaction was not a member of the tribe, regardless of whether the transaction occurred before or after the amendment. Section 4 of the original Act authorized the provincial government to define, by notification, the persons who would be deemed agricultural tribes for the purposes of the Act. A notification dated 18 April 1904, issued under that authority, specified that in each district listed in column 1 of the attached schedule, all persons who either held land or ordinarily resided in that district and who belonged to any of the tribes named opposite the district in column 2 would be considered an “agricultural tribe” within that district.

The principal question in that case was whether section 13A violated section 298(1) of the Government of India Act, 1935, which expressly provided that no person domiciled in India could be barred from acquiring, holding, or disposing of property solely on the basis of descent. The Court was required to determine whether the provision in section 13A was unconstitutional because it imposed a restriction based only on descent, or whether it could be upheld insofar as it prohibited transactions with persons who, although belonging to the tribe, did not hold land or ordinarily reside in the relevant district—a restriction that did not fall within the prohibition of section 298(1).

The Court observed that the provision was invalid only to the degree that it barred alienation on the basis of descent, but it remained valid where it forbade a transaction in favour of a tribal member who neither possessed land nor ordinarily resided in the relevant district, because such a restriction did not fall within the scope of section 298(1). Consequently, the Court directed that the validity of the contested alienation should be examined with reference to the qualifications of the alienee, as expressly noted in Punjab Province v. Daulat Singh [1942] F.C.R. 67. Before the Privy Council, counsel for the appellant conceded that tribal membership was generally determined by descent, and the Board consequently held that section 13A conflicted with section 298(1) and therefore was void. The Privy Council then turned to the inquiry ordered by the Federal Court concerning the alienee’s qualifications and remarked at page 20 that the majority of the Federal Court seemed to propose a different form of severability by classifying each individual case on which the impugned Act might operate, thereby requiring an inquiry into the specific circumstances of every case. The Privy Council emphasized that the Act contained no language permitting such an interpretation, and that adopting this approach would effectively amount to amending the statute, a power beyond the court’s competence and long‑established limits.

The Court further noted that, in the case under discussion, there was no issue of the Act applying to separate categories that were distinct and severable either in fact or under the statutory scheme. The notification issued under section 4, which formed the basis of the Federal Court’s judgment, did not segregate persons who were not tribal members from those who neither owned property nor resided in the district; instead it defined a single category that required satisfaction of both conditions simultaneously. To split that single category into two separate groups would contravene the explicit wording of the enactment and would replace the word “and” with “or”, an alteration the Privy Council ruled impermissible. Moreover, the Council observed that the severability suggested by the Federal Court represented an ad‑hoc determination focused on the qualifications of each alienee, rather than a clear division based on a distinct subject‑matter category. Accordingly, the decision could not be treated as authority for the proposition that, even if the valid portion of a statute is severable from the invalid portion, the entire Act must nonetheless be declared void. Finally, the Court referred to observations on pages 19‑20 concerning a related question raised in that case: whether section 13A, which sought to prevent alienations made both before and after the Act and had been held void insofar as it operated retrospectively, could be partially saved by severing its retrospective element.

In the case under consideration, the Court observed that the whole Act would have to be declared ultra vires and void if the retrospective element were not severable from the remaining provisions. However, the Court found that the retrospective element in the impugned Act was readily severable. By removing the words “either before or” from the early part of sub‑section (1) of the new section 13A, which was enacted by section 5 of the impugned Act, the remainder of the Act could continue to operate validly. While discussing this decision in The State of Bombay v. The United Motors (India) Ltd. [[1953] S.C.R. 1069], Chief Justice Patanjali Sastri observed at page 1098 that the subject of the constitutional prohibition was single and indivisible, namely the disposition of property on the basis of descent and other grounds. He stated that if, in its actual operation, the impugned statute transgressed the constitutional mandate, the entire Act had to be held void because its language covered both constitutionally permissible and impermissible matters. Accordingly, the notification issued under section 4 was regarded as single and indivisible and therefore not severable. The Court agreed with this view and held that the decision in Punjab Province v. Daulat Singh [[1946] F.C.R. 1] could not be taken as authority for the proposition that severability is impossible, even when the subject matters are distinct and severable, in view of the earlier judgment in The State of Bombay v. F. N. Balsara [[1951] S.C.R. 682]. The Court then considered the case of Romesh Thappar v. State of Madras [[1950] S.C.R. 594], which concerned the validity of section 9(I‑A) of the Madras Maintenance of Public Order Act XXIII of 1949. That provision authorised the provincial government to prohibit the entry and circulation of a newspaper within the State “for the purpose of securing public safety or the maintenance of public order”. After the Constitution came into force, the question was whether the provision fell within the protection of Article 19(2), which saves existing law that relates to any matter that undermines the security of or tends to overthrow the State. The Court held that the purposes mentioned in section 9(I‑A) were broader than those contemplated by Article 19(2) and that it was not possible to separate the provision into parts that were within and outside the protection of Article 19(2). Consequently, the provision was held to be inseverable and had to fail in its entirety. The Court clarified that this decision does not establish a principle that a severable provision must be struck down merely because the principle of severability is inapplicable when a statute is invalid for contravening constitutional prohibitions.

In this passage the Court observed that the decision rendered in Romesh Thappar v. State of Madras [[1950] S.C.R. 594] had been cited and subsequently distinguished in both The State of Bombay v. F.N. Balsara [[1951] S.C.R. 682] and The State of Bombay v. The United Motors (India) Ltd. [[1953] S.C.R. 1069]. The Court then turned to the earlier case of Chintaman Rao v. State of Madhya Pradesh [[1950] S.C.R. 759], which dealt with the constitutionality of section 4(2) of the Central Provinces and Berar Regulation of Manufacturers of Bidis (Agricultural Purposes) Act No. LXIV of 1948. That provision prohibited any person residing in a village identified by order from manufacturing bidis during the agricultural season and also barred any manufacturer from employing persons for bidi production in the same period. The Court held that the restrictions imposed by section 4(2) exceeded what was necessary to achieve the statutory purpose of ensuring adequate agricultural labour in bidi‑manufacturing areas, noting that the objective could have been met by limiting the restrictions to agricultural labour and to specified hours, and therefore the provision could not be sustained as a reasonable restriction under Article 19(1)(g). Addressing the issue of severability, the Court remarked at page 765 that even to the extent the law might authorize restrictions concerning agricultural labour, it could not be deemed valid because its language was so broad as to encompass restrictions both within and beyond constitutionally permissible legislative action affecting the right. The Court further emphasized that section 4(2) was inherently inseverable and could not be enforced without rewriting it, and that the earlier observation must be read in the specific context of the provision under consideration. This analysis was likened to the decision in Romesh Thappar v. State of Madras, which had also been distinguished in The State of Bombay v. F.N. Balsara. Consequently, the Court articulated the general rule that when a statute is partly void, the remaining portion may be enforced if it is severable from the invalid part, irrespective of whether the invalidity arises from a jurisdictional defect or a breach of constitutional prohibition. Applying this principle, the Court indicated that it now needed to examine whether the impugned provisions could be severed in relation to gambling‑type competitions, assuming that the definition of “prize competition” in section 2(d) was sufficiently wide to encompass competitions involving a substantial degree of skill.

The Court observed that the question of severability could be understood by referring to certain rules of construction that American courts have articulated in many cases. These rules may be summarized as follows. First, when deciding whether the valid portions of a statute can be separated from the invalid portions, the decisive factor is the intention of the legislature. The test is whether the legislature would have passed the valid portion if it had known that the remainder of the statute was invalid. This principle is found in Corpus Juris Secundum, volume 82, page 156, and in Sutherland on Statutory Construction, volume 2, pages 176‑177. Second, if the valid and invalid provisions are so tightly interwoven that they cannot be disentangled, the invalidity of one part renders the entire Act invalid. Conversely, if the provisions are clearly distinct and after striking out the invalid part the remainder constitutes a complete and independent code, the surviving portion may be upheld despite the unenforceability of the rest. This rule is discussed in Cooley’s Constitutional Limitations, volume 1, pages 360‑361, and in Crawford on Statutory Construction, pages 217‑218. Third, even when the valid provisions are separate from the invalid ones, if they all belong to a single scheme that the legislature intended to operate as a whole, the invalidity of any part defeats the whole scheme. Crawford on Statutory Construction, pages 218‑219, supports this view. Fourth, when the remaining valid provisions, after the invalid portion is removed, are so reduced and fragmented that they no longer represent the substance that the legislature originally enacted, the whole statute must be rejected. Fifth, the separability of provisions does not depend on whether they appear in the same section or in different sections; the substance, not the form, is material. This principle is set out in Cooley’s Constitutional Limitations, volume 1, pages 361‑362, and requires an examination of the Act as a whole and the context of the relevant provisions. Sixth, if after deleting the invalid part the remaining sections cannot be enforced without further alteration or modification, the entire statute must be struck down as void, otherwise the court would be engaging in judicial legislation. This is explained in Sutherland on Statutory Construction, volume 2, page 194. Seventh, in determining legislative intent on separability, it is proper to consider the legislative history, the object of the law, its title and its preamble. This approach is also found in Sutherland on Statutory Construction, volume 2, pages 177‑178. The Court then indicated that, after applying these principles to the present Act, the issue of severability would be resolved accordingly.

The Court observed that competitions in which success depends largely on skill and competitions in which success does not depend substantially on skill constitute two separate and distinct categories. It said that the contrast between these two classes of competitions is as sharp as the contrast between commercial contracts and wagering contracts. The Court acknowledged that, based on the facts, there could be difficulty in classifying a particular competition, but it held that once the true nature of the competition is determined, it must belong to either one category or the other. The Court further noted that the distinction between skill‑based competitions and chance‑based competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and that the courts have repeatedly identified the characteristic features that differentiate the two. The Court then asked whether Parliament would have enacted the impugned law if it had known that the law would fail with respect to competitions involving skill, and concluded that, considering the history of the legislation, Parliament would not have done so. The Court added that limiting the challenged provisions to competitions of a gambling character does not alter either the texture or the colour of the Act, and that the provisions do not require modification or rewriting before they can be applied. It explained that the provisions will apply squarely to the relevant competitions on their own terms, in their true spirit, and that they constitute a complete code with respect to the subject matter. Accordingly, the Court held that the impugned provisions, assuming they are applicable by virtue of the definition in section 2(d) to all kinds of competitions, are severable when applied to competitions in which success does not depend substantially on skill. In the result, the Court found both of the petitioners’ contentions to be untenable, ordered the petitions to be dismissed, and directed that costs be awarded. The Court further directed that only one set of counsel’s fees be payable, and finally recorded that the petitions were dismissed.