One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

Rohan Desai was a postgraduate law student from Nagpur, preparing a constitutional challenge paper for a national seminar hosted by a prominent law institution in Pune during early March 2025. He’d spent several months researching a structural contradiction that sits, quietly and uncomfortably, at the very heart of Indian constitutional jurisprudence. His earlier submissions to faculty advisors and two senior advocates he consulted had been dismissed as academically interesting but “procedurally impractical.” He was told, essentially, to let it go.

He didn’t. He reached out to Advocate Sudhir Rao after reading a published commentary on constitutional interpretation. The brief he brought was specific: Article 13(2) of the Constitution declares that any law made in contravention of Part III fundamental rights “shall be void.” Not voidable. Void. Yet trial courts across India — from Sessions Courts in Lucknow to Magistrate Courts in Bhopal — continue to apply laws of doubtful constitutionality every single day, citing the doctrine from L. Chandra Kumar v. Union of India, 1997, which holds that only superior courts may adjudicate constitutional validity. And here’s the thing: that doctrine is itself a judicial creation. It cannot, as a matter of constitutional logic, override the text of Article 13(2). Nothing can except a constitutional amendment. Working through this argument with structured constitutional case law, including Kesavananda Bharati v. State of Kerala, 1973 and Minerva Mills Ltd. v. Union of India, 1980, the matter was developed into a formidable constitutional challenge that the seminar panel found impossible to ignore. The outcome: Rohan’s paper was selected for publication in the institution’s constitutional law journal.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Constitutional law challenges, particularly those grounded in Article 13(2), require an advocate who’s genuinely familiar with writ jurisdiction, constitutional interpretation principles, and the specific body of Supreme Court precedent on legislative voidness. This isn’t a matter for a general practitioner. The procedural and evidentiary nuances are real, they’re technical, and getting them wrong at the first hearing can set your case back by months.

Document your legal reasoning carefully. Every constitutional challenge should be supported by a written brief that tracks the textual argument, the specific fundamental rights alleged to be violated, and the line of case law you rely on. Vague arguments don’t survive judicial scrutiny. They just don’t.

File petitions in the appropriate court with jurisdiction over constitutional questions. High Courts under Article 226 and the Supreme Court under Article 32 are the proper fora. Trial courts can’t strike down legislation, and that limitation must be factored into your strategy from day one — not discovered after you’ve already filed in the wrong court.

Applicable Sections of Law

The primary constitutional provisions governing this type of challenge are:

• Article 13(2) of the Constitution of India: Prohibits the State from making any law that takes away or abridges fundamental rights; declares any such law void to the extent of the contravention.
• Article 32 of the Constitution of India: Guarantees the right to move the Supreme Court for enforcement of fundamental rights; empowers the Court to issue writs including habeas corpus, mandamus, and certiorari.
• Article 226 of the Constitution of India: Grants High Courts the power to issue writs for enforcement of fundamental rights and for any other purpose, making them the primary forum for constitutional challenges at the State level.
• Article 13(1) of the Constitution of India: Renders pre-constitutional laws void to the extent they are inconsistent with Part III, establishing the principle of constitutional supremacy over all existing and future legislation.

Punishment and Penalties

This matter is constitutional and civil in nature. No criminal offence, no prosecution, no penal consequence under the Bharatiya Nyaya Sanhita. Where, however, a constitutional challenge arises from a criminal prosecution under a statute alleged to be void — such as a prosecution under the NDPS Act or UAPA — the consequences being challenged include imprisonment, fines, and forfeiture as prescribed under those specific statutes. The constitutional argument targets the validity of those penal provisions, not any standalone offence. So this section is not applicable in the conventional criminal sense, though the stakes can be just as serious.

Jurisdiction — Where to File the Case

Constitutional challenges to the validity of legislation must be filed before courts with competent jurisdiction over constitutional questions. Trial courts — Magistrate Courts, Sessions Courts, and Civil District Courts — do not have jurisdiction to declare a Central or State law unconstitutional, as confirmed in L. Chandra Kumar v. Union of India, 1997. The appropriate fora are:

• High Court: Under Article 226, for writ petitions challenging legislation as violative of fundamental rights. Territorial jurisdiction follows the location of the cause of action or the respondent authority.
• Supreme Court of India: Under Article 32, when the matter involves enforcement of fundamental rights and warrants direct constitutional adjudication at the apex level.

Choosing the right forum at the outset is critical. Filing at the wrong level wastes time and can weaken the constitutional record. Frankly, I’ve seen well-reasoned challenges lose momentum simply because counsel filed in the wrong court and had to start over.

Interim Reliefs Available

In constitutional writ proceedings, interim relief is frequently the most urgent requirement. Courts entertaining Article 226 and Article 32 petitions may grant:

• Stay of prosecution or criminal proceedings: Where the underlying statute is being challenged as void under Article 13(2), the High Court may stay further proceedings in the trial court pending final determination.
• Status quo orders: Preventing the State from taking further coercive action under the impugned law while the constitutional question is being examined.
• Interim injunctions under Order 39 Rule 1 CPC: Applicable in civil writ matters where balance of convenience, irreparable harm, and a prima facie case for constitutional voidness are demonstrated.
• Release from detention: Through a writ of habeas corpus if the detention itself rests on a law being challenged as constitutionally void.

Now, before you act, understand this: securing interim relief early in a constitutional challenge can make all the difference to someone who’d otherwise spend months under prosecution or detention while their writ crawls through the docket. Push hard for it at the first hearing.

Limitation Period

No fixed deadline. Constitutional writ petitions under Article 226 and Article 32 don’t carry a statutory limitation period under the Limitation Act, 1963. But courts apply the doctrine of laches — unreasonable delay without satisfactory explanation can get your petition dismissed even if the constitutional ground is otherwise strong, as observed in State of Madhya Pradesh v. Bhailal Bhai, 1964. Where the challenge arises from an ongoing prosecution or continuing violation, limitation is less likely to be fatal. But for historical convictions or completed proceedings, delay becomes a serious factor. Don’t wait. File as soon as the constitutional ground crystallises, because a delayed petition signals weak urgency to the court and can undermine an otherwise sound argument.

If You Are the Victim

If you believe you’ve been prosecuted, convicted, or detained under a law that violates your fundamental rights and should be void under Article 13(2), here are the steps you should take:

• Immediately engage an advocate with specific experience in constitutional writ matters before the High Court or Supreme Court — not a general trial court practitioner.
• Preserve all documents relating to your arrest, prosecution, or detention: FIR copies, charge sheets, bail orders, and any court orders passed in your case.
• Identify precisely which fundamental rights are being violated by the impugned law — Article 14 (equality), Article 19 (freedom of expression and personal liberty), Article 21 (right to life and personal liberty), or others as applicable.
• File a writ petition before the appropriate High Court or the Supreme Court at the earliest opportunity, with a prayer for stay of the impugned proceedings.
• If detention is involved, seek a writ of habeas corpus immediately — delay in this step directly extends unlawful confinement.

Documents You Must Keep Ready

• Aadhaar card and PAN card (identity proof for all petitioners)
• Copy of the FIR, charge sheet, or show cause notice issued under the challenged law
• All court orders passed in the underlying trial or criminal proceedings
• Certified copy of the impugned statute or the specific provisions being challenged
• Any judicial or executive communication that applies the impugned law to your case
• Written legal brief or opinion prepared by the constitutional law advocate
• Precedent judgments relied upon (certified or published copies for court use)
• Affidavit of the petitioner sworn before a notary or oath commissioner

What Evidence Is Required?

• The statutory text itself: A certified copy of the impugned law showing the provision alleged to violate fundamental rights — this is primary evidence of the constitutional infirmity.
• The official record of application: Court orders, FIRs, detention orders, or government notifications showing that the law was actually applied to the petitioner.
• Constitutional provisions: The relevant articles from the Constitution of India, cited in the petition with the specific rights said to be violated.
• Binding precedent: Judgments of the Supreme Court and relevant High Courts on the constitutional point — particularly Maneka Gandhi v. Union of India, 1978 on Article 21, and State of Madras v. V.G. Row, 1952 on the standard of reasonableness in restriction of rights.
• Legislative history and statement of objects: Official documents showing the legislative intent behind the impugned law — relevant to the proportionality argument.
• Expert affidavits: In complex constitutional matters, affidavits from constitutional scholars may be placed on record to assist the court.

How Courts Typically Approach Such Cases

Make no mistake, constitutional challenges to legislation are treated with considerable gravity by High Courts and the Supreme Court. Courts generally look for a clear prima facie case establishing that the impugned law directly abridges a specified fundamental right, and that no reasonable restriction under Articles 19(2) to 19(6) or other saving clauses applies. As held in R.C. Cooper v. Union of India, 1970, courts look at the direct effect of the law on rights, not merely its object. But courts are simultaneously cautious about declaring laws void, given the systemic consequences. Expect initial hearings to focus on framing the constitutional question precisely before any stay or substantive relief is considered. Procedural discipline at this stage is non-negotiable.

Timeline of Legal Process

• Week 1-2: Drafting and filing of writ petition before High Court (Article 226) or Supreme Court (Article 32); submission of brief synopsis and advance copy to respondents.
• Week 2-4: First hearing — admission, consideration of interim stay or status quo relief; court may issue notice to the State or Union of India.
• Month 1-3: Counter affidavit filed by respondent State/Union defending the constitutionality of the impugned law.
• Month 3-6: Rejoinder affidavit by petitioner; court frames the precise constitutional question for adjudication.
• Month 6-12: Final arguments — both sides argue on constitutional validity, fundamental rights, and competing precedents.
• Month 12-24: Judgment pronounced; if constitutional question is substantial, matter may be referred to a Constitution Bench under Article 145(3).
• Post-judgment: If adverse, appeal to Supreme Court; if favourable, consequences of voidness to be determined in ancillary proceedings.

Estimated Costs Involved

• Court fees: Writ petitions before High Courts carry a fixed court fee, typically ranging from Rs. 500 to Rs. 2,000 depending on the State. Supreme Court writ petitions carry a nominal fixed fee.
• Advocate consultation fee: Rs. 10,000 to Rs. 50,000 for initial constitutional brief and opinion.
• Drafting and filing fee: Rs. 25,000 to Rs. 1,00,000 for preparation and filing of a writ petition, depending on complexity and the forum.
• Appearance fees: Rs. 15,000 to Rs. 75,000 per hearing at High Court level; higher at Supreme Court depending on seniority of counsel.
• Certified copies and documentation: Rs. 2,000 to Rs. 10,000 for certified copies of relevant orders and statutory provisions.
• Miscellaneous: Travel, notarization of affidavits, and printing of paper-book — approximately Rs. 5,000 to Rs. 20,000.

Can the Matter Be Settled Out of Court?

Constitutional challenges to the validity of legislation aren’t amenable to private settlement in the conventional sense. A law is either void or it isn’t — that question is answered by the court, not by the parties. However, where the constitutional challenge arises from an underlying criminal prosecution, the State may in exceptional cases agree to drop the prosecution or grant pardon through executive action. In civil matters arising from void legislation (such as wrongful detention leading to a compensation claim), Section 89 CPC read with the court’s inherent powers permits reference to mediation for the quantum of compensation, even where the constitutional question itself must be adjudicated. Lok Adalats under the Legal Services Authorities Act, 1987 are not the appropriate forum for constitutional questions, though associated compensation disputes may

Advocate Sudhir Rao, Supreme Court of India