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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. 931 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. 932 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 933 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 120 934 (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 5 935 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. 121 942 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