If you are stuck in such a situation, here is what to do.
Mr. Sameer Kumar, an entrepreneur based in the city of Anandgarh, founded a promising online gaming startup, “VirtuPlay Studios,” a few years ago. His company was growing steadily until the state government of Aryavarta passed the “Aryavarta Online Gaming Control Act, 2024.” This new legislation imposed what Sameer believed were arbitrary and excessive regulations, including a prohibitive 40% tax on all revenue and a complete ban on certain popular game formats, which were the backbone of his business. The act threatened to bankrupt his company and the livelihoods of his 50 employees. Distressed, Sameer began exploring his legal options, wondering if this new state law could be challenged and struck down by the higher courts for being unconstitutional.
Advice in such cases
When faced with a new law or regulation that adversely affects your rights or business, it is crucial to act methodically and strategically.
Understand the Law: Obtain a complete copy of the new act and all associated rules. Read it carefully to understand its specific provisions, compliance requirements, and penalties.
Assess the Impact: Document precisely how the new law affects you or your business. This could include financial projections showing loss of revenue, operational challenges, or infringement on fundamental rights.
Identify Grounds for Challenge: A law can be challenged on several grounds, such as being violative of fundamental rights (e.g., right to equality, right to trade), being beyond the legislative competence of the government that passed it, or being manifestly arbitrary.
Preserve Records: Keep all business records, communications with authorities, and any notices received under the new act. This documentation is vital for building a strong case.
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 of 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
Applicable Sections of Law
The validity of a law is challenged based on the provisions of the Constitution of India, not criminal codes like the Bharatiya Nyaya Sanhita (BNS). The primary legal provisions for such a challenge include:
Article 14 of the Constitution of India: This guarantees the right to equality. If the law treats similar businesses or individuals differently without a rational basis, it can be challenged as discriminatory and arbitrary.
Article 19(1)(g) of the Constitution of India: This guarantees the right to practice any profession, or to carry on any occupation, trade or business. While this right is not absolute, any restriction imposed by the state must be reasonable and in the public interest. An excessively harsh law can be challenged as an unreasonable restriction.
Article 245 & 246 of the Constitution of India (Legislative Competence): The Constitution divides law-making powers between the Union and the States. If a state legislates on a subject reserved for the Union (or vice versa), the law can be struck down for lack of legislative competence.
Article 32 & 226 of the Constitution of India: These articles empower the Supreme Court and High Courts, respectively, to issue writs. A person whose fundamental rights are violated can file a writ petition directly in these courts to challenge the law’s constitutionality.
If you are the complainant
If you are the one challenging the law (the petitioner), your role is to prove to the court that the legislation is unconstitutional.
Filing a Writ Petition: Your lawyer will draft and file a writ petition in the appropriate High Court (under Article 226) or, in exceptional cases, the Supreme Court (under Article 32).
Build a Strong Case: You must clearly articulate the grounds for your challenge. This involves demonstrating how the law violates specific constitutional provisions and adversely impacts you.
Pray for Interim Relief: You can request the court to grant a “stay” on the implementation of the law while the case is being heard. This can provide immediate, temporary relief from the law’s harsh effects.
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 of 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
If you are the victim
As a victim of a potentially unconstitutional law, your focus should be on seeking legal remedy to protect your rights and interests.
Act Promptly: Delay in challenging a law can sometimes weaken your case. It is important to seek legal advice as soon as you become aware of the adverse impact.
Join a Collective Action: Often, new laws affect an entire industry or group of people. You can consider joining with other affected parties to file a joint petition. This can strengthen the case and distribute the legal costs.
Follow Legal Advice: Constitutional litigation is complex. It is essential to follow the guidance of your legal counsel regarding compliance with the law while the challenge is pending.
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 of 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
How the police behave in such cases
In cases involving a constitutional challenge to a law, the primary respondents are the government departments that enacted and are responsible for implementing the law, not typically the police. However, police or other enforcement agencies may get involved in implementing the provisions of the new act. If the law has penal provisions, the police would be obligated to enforce them until and unless a court grants a stay or strikes down the law. They will act based on the letter of the law as it stands. If you have a stay order from a court, you must present it to any enforcement agency that tries to take action against you under that law.
FAQs people normally have
On what grounds can a law be challenged in court?
A law can be challenged primarily on three grounds: 1) It violates the fundamental rights guaranteed by the Constitution. 2) The legislature that passed the law did not have the authority (competence) to do so. 3) It is manifestly arbitrary and irrational.
Should I file the case in the High Court or the Supreme Court?
The general practice is to first approach the High Court under Article 226. The Supreme Court under Article 32 is typically approached only when a case involves a significant question of law affecting the entire country or when there is an extraordinary urgency.
Can the court stop the government from implementing the law while my case is going on?
Yes, you can request the court for interim relief in the form of a stay order. If the court is convinced that you have a strong prima facie case and that you will suffer irreparable harm if the law is enforced, it may grant a stay on its operation until the final judgment.
What evidence is required?
Proving a constitutional challenge does not rely on evidence in the traditional sense (like in a criminal case). The primary evidence is the law itself. Other crucial documents include:
The official gazette notification of the Act and its rules.
Documents demonstrating your standing (locus standi) to challenge the law, such as your company’s registration and business records.
Data, reports, and financial statements that show the adverse and unreasonable impact of the law on your business or rights.
Legal precedents (judgments from past cases) that support your arguments.
How long will the investigation take?
There is no “investigation” in a constitutional challenge. The process is one of litigation before a court. The duration of such cases can vary significantly. A case in the High Court can take several months to a few years for a final decision. If the matter goes in appeal to the Supreme Court, it can take several more years. The timeline depends on the complexity of the legal issues, the court’s caseload, and the urgency of the matter.
Advocate Sudhir Rao, Supreme Court of India