Severability Clause: Meaning, Sample & Drafting Tips (India)
A severability clause says that if a court finds one provision invalid or unenforceable, the rest of the contract continues and the offending part is removed or narrowed. In India it helps courts apply the principle in section 24 and section 58 of the Indian Contract Act, 1872 that a lawful part can stand if it can be separated.
How it works under Indian law
Section 24 of the Indian Contract Act, 1872 provides that where any part of a single consideration for one or more objects, or any one of several considerations for a single object, is unlawful, the agreement is void. Where the lawful and unlawful parts can be separated, section 57 and section 58 allow the lawful part to be enforced.
A severability clause records the parties' intention that the contract should survive if one term fails — for example, a post-termination non-compete struck down under section 27 or an unenforceable penalty. Courts treat the clause as evidence of intention, but it cannot save a contract whose main purpose is unlawful.
Indian courts have generally applied a "blue pencil" approach — striking out the offending words where the remainder still makes sense — rather than rewriting a clause. A replacement provision asking the parties to negotiate a valid substitute is common, but is only an agreement to negotiate.
Drafting checklist
- Allow both modification to the minimum extent and deletion.
- Make clear the remaining provisions survive.
- Decide whether to add a good-faith replacement obligation.
- Do not rely on severability to save clauses that are central to the bargain.
- Draft risky clauses (restrictive covenants, penalties) as separate, severable sub-clauses.
Sample severability clause
Two versions: a standard position and an alternative you can offer in negotiation. Replace every [placeholder] before use.
Standard severability clause
Standard positionIf any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
Version with good-faith replacement
Balanced — adds an obligation to agree a valid substituteIf any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect. The Parties shall negotiate in good faith to agree a valid and enforceable replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. If the invalid provision is fundamental to the commercial basis of this Agreement and the Parties cannot agree a replacement within [30] days, either Party may refer the matter to Clause [Dispute Resolution].
Who pushes for what
Typical negotiating positions on each side of the table.
Party relying on aggressive clauses
Wants a strong modification-and-deletion clause and step-down drafting for covenants.
Counterparty
Usually accepts the standard clause, but may want a right to terminate if a fundamental provision fails.
Common middle ground
Standard clause plus good-faith replacement; termination right only for fundamental provisions.
Common mistakes
- Assuming severability will rescue an over-broad restrictive covenant — courts may strike it out rather than narrow it.
- Combining several restrictions in one sentence so they cannot be separated.
- A replacement-negotiation obligation with no fallback if agreement fails.
Frequently asked questions
Will a severability clause save an unenforceable non-compete in India?
It can preserve the rest of the contract, but it will not make a post-termination restraint enforceable if section 27 voids it. Courts generally strike out the offending words rather than rewrite the clause.
Is a severability clause necessary?
It is not mandatory, but it records the parties' intention that the contract should survive a defect in one term, which helps a court apply sections 57 and 58.
What is the blue-pencil test?
It is an approach under which a court deletes the offending words of a clause and enforces what remains, provided the remainder makes sense without rewriting. Courts will not add words to make a clause valid.
Related tools, formats and guides
Build a clause library with approved fallbacks in CaseDocker
Store your approved clause language and pre-agreed fallback positions in CaseDocker's Contract Management module, and use Playbooks to route any deviation to the right approver before the contract goes out for signature.