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ISSUE :1 : THAT THE COURT HAS REQUISITE JURISDICTION TO MAINTAIN THIS

PETITION

MAINTAINABILITY OF WRIT PETITION

POWER UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

1. THE WRIT JURISDICTION OF SUPREME COURT CAN BE INVOKED UNDER ARTICLE 32 OF THE
CONSTITUTION FOR THE VIOLATION OF FUNDAMENTAL RIGHTS GUARANTEED UNDER PART
– III OF THE CONSTITUTION.

2. The sole objective of Art. 32 is the enforcement of the fundamental rights guaranteed by
the Constitution of India. The original jurisdiction of the Supreme Court can be invoked
in any case of violation of a fundamental right guaranteed by part III of the Constitution
of India as has been observed in the case of Chiranjit Lal Chowdhury v. Union of India1
amongst the many others. The constitution makers conferred on the Supreme Court the
power to issue writs for the speedy enforcement of fundamental rights and made the right
to approach the Supreme Court for such enforcement itself a fundamental right.2
3. THE FUNDAMENTAL RIGHTS PROVIDED IN THE INDIAN CONSTITUTION ARE GUARANTEED

AGAINST ANY EXECUTIVE AND LEGISLATIVE ACTIONS. ANY EXECUTIVE OR LEGISLATIVE

ACTION, WHICH INFRINGES UPON THE FUNDAMENTAL RIGHTS OF ANY PERSON OR ANY

GROUP OF PERSONS, CAN BE DECLARED AS VOID BY THE COURTS UNDER ARTICLE 14 OF THE

CONSTITUTION.

4. DR. B.R.AMBEDKAR DESCRIBED ARTICLE 32 AS THE MOST IMPORTANT ONE, WITHOUT

WHICH THE CONSTITUTION WOULD BE REDUCED TO NULLITY. IT IS ALSO REFERRED TO AS


THE HEART AND SOUL OF THE CONSTITUTION. BY INCLUDING ARTICLE 32 IN THE

FUNDAMENTAL RIGHTS, THE SUPREME COURT HAS BEEN MADE THE PROTECTOR AND

GUARANTOR OF THESE RIGHTS.

1
AIR 1951 SC 41
2
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis
Butterworths Wadhwa 2008).
5. It is humbly submitted that the expression "substantial question of law"3 is not defined in
any legislation. Nevertheless, it has acquired a definite connotation through various
judicial pronouncements. A Constitution Bench of the Apex Court, while explaining the
import of the said expression, observed that:

“The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views.”4

“a question of law would be a substantial question of law if it directly or


indirectly affects the rights of parties and/or there is some doubt or difference of opinion
on the issue". But “if the question is settled by the Apex Court or the general principles to
be applied in determining the question are well-settled, mere application of it to a
particular set of facts would not constitute a substantial question of law"5

6. A question of law will be a substantial of law if it directly and substantially affects the
rights of the parties. In order to be "substantial" it must be such that there may be some
doubt or difference of opinion or there is room for difference of opinion. If the law is
well-settled by the Supreme Court, the mere application of it to particular facts would not
constitute a substantial question of law.6

The Delhi High Court pointed out that the term ``substantial question of law'' has not
been defined. But it has acquired a definite connotation through a catena of judicial
pronouncements.

Test laid down in Sir Chunilal V. Mehta and Sons Ltd. V Century Spinning and
Manufacturing Co. Ltd. To determine whether a substantial question of law is involved
are:

Whether directly or indirectly it affects the substantial rights of the parties;

Whether the question is of general public importance;

3
Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.
4
Chunnilal Mehta v. Century Spinning & M Co. Ltd. , AIR 1962 SC 1314.
5
Krishna Kumar Aggarwal v. Assessing Officer.
6
(M/s Neek Ram Sharma & Co. vs Income Tax Appellate Tribunal and others).
Whether it is an open question in the sense that the issue has not been settled by
pronouncement of the highest court in the land;

The issue is not free from difficulty; or

It calls for a discussion for alternative view.

In Hero Vinoth v. Seshammal, it was laid down that a question of law having a material
bearing on the decision of the case (that is, a question, answer to which affects the rights
of parties to the suit) will be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging from binding precedents,
and, involves a debatable legal issue. A substantial question of law will also arise in a
contrary situation, where the legal position is not clear, either on account of express
provisions of law or binding precedents,

It is humbly submitted to the hon’ble supreme court that under Article 32 of the Indian
constitution is fundamental right which gives the aggrieved the right to move to the supreme
court for the effective remedy for the enforcement of his fundamental rights if it has been
violated. Article 32 (1) guaranteed the right to move to the supreme court by “appropriate
proceeding” for the enforcement of the fundamental right conferred in the part III of the
constitution. Only those proceedings are appropriate which invoke, by original petition, the
jurisdiction of the supreme court to issue, according to the nature of the case, writs or orders or
directions of the types described in clause (2).

Any case is maintainable before the Supreme Court under article 32 of the constitution, only:

a)If the petitioner has exhausted all the remedy provided by law and has not obtained proper
redress:

It is humbly submitted that under the provision of the Art. 32, there is the existence of the
provision for alternative remedy.The court is bound to take into cognizance the petition of the
petitioner if his fundamental rights have been violated and only after he has exhausted all his
alternative remedy provided by the law and has not obtained proper redress. In case of P.n.kumar
v. Municipal Corporation,7, two bench judges said that a petition than the Supreme Court in the
first instance. The reason given by the Supreme Court was that there was a huge backlog of cases
pending before the Supreme Court. The same decision was reiterated in the case of K.K.Kochuni
v. State of Madras8 the court held that Art.32 itself being a fundamental right the court will have
to give relief notwithstanding the existence of an alternative remedy and in Kanubhai
Brahmabhatt v. V.G. Rao9 that in order to enforce fundamental right judicial review of
administration, legislation and government action of any legislation or an administrative action
or non -action is permissible. But article 32 cannot be invoked simply to adjudge the validity of
any legislation or an administrative action unless adversary affects Petitioner’s Fundamental
rights. The same decision was reiterated in Kharak Singh v. Union of India10 the petitioner has
the existence of provision of alternative remedy. The court is bound to take cognizance of the
petition if his fundamental rights have been infringed, only after he has exhausted all his remedy
provided by law and has not obtained any proper redress. But in this case the petitioner has
exhausted his means of legal aid and same for redress of his disputes, directly to Supreme Court.

In the present case of Andolan Pandey v. Tikram Bhatia, the petitioner has not exhausted of the
legal aid provided by the law and has directly filed his petition in the Hon’ble supreme court.
hence it can be inferred from the various case laws that Andolan Pandey and others have no
ground of filing there petition in the Hon’ble supreme court of India. Hence the present petition
is not maintainable before the supreme court of India.

b) If the petition is filed against the “state”:

It is humbly submitted that the term ‘state’ has been defined under Art. 12 that the state include
the govt. and parliament of India and the govt. of the legislature of each of the states and all local
or other authorities within the territory of India or under the control of govt. of India. By and
large fundamental rights enforced against the state.

7
AIR 1987 (4)SCC 609
8
AIR 1960 SCC 1080
9
AIR 1987 SCC 1159
10
AIR 1963 SCC 1295
In the case of Ajay Hasia v. Khalid Mujib11, Supreme Court laid down the following test to
adjudge whether a body is an instrumentality of the govt. or not:

i) If the entire share capital of the body is held by the govt. , it along way towards indicating that
the body is an instrumentality of the govt.
ii)Whether the financial assistance given by the govt. is so large as to meet almost entire
expenditure of the body, it may indicate that the body is pregnant with governmental character.

iii) It is a relevant factor if the body enjoys monopoly status which is conferred or protected by
the state.

iv)Existence of the deep and pervasive state control may afford an indication that the body is a
state instrumentality.

v)If the functions performed by the body are the importance and closely relaed to governmental
functions, it is a relevant factor to treat the body as an instrumentality of the government.

Hence it is inferred from the given case that since the Vikral Vidhi College does not complies
with any of the criteria of becoming a body of governmental authority so it does not comes in the
jurisdiction, control or authority of state, and since any writ petition filed under article 32 should
be filed against the ‘state’ only. Hence the writ petition is not maintainable before the Hon’ble
Supreme Court.

c)If the petitioner has locus standi

It is humbly submitted that under Art. 32 do not prescribe the persons or classes of persons who
can invoke the Supreme Court’s jurisdiction for redress of their grievances. The matter of
‘standing’ thus lies within the realm of the Supreme Court. A person’s whose fundamental right
has been infringed has locus standi to move to Supreme Court under Art.32 for the enforcement
of his right.

11
AIR 1981 SC 487
The fundamental rights to be enforced under article 32 must ordinarily to be right of the
petitioner himself. It is not competent to a person to seek to enforce the rights of another except
when the law permits him to do so. This principle emanates from the theory that the remedies
and rights are correlative and, therefore, only a person whose own right is in jeopardy is entitled
to seek a remedy.

Since the petitioner Andolan Pandey has not complied with any of the requirements which are
essential for maintainability of the writ petition in the Hon’ble Supreme Court:

i) The petitioner has filed the writ petition in the Hon’ble Supreme Court directly, rather
exhausting all the alternative redress provided by law.
ii) The petition is not filed against the ‘state’ but against a private individual Tikram
Bhatia, who is an entrepreneur.
iii) The petitioner has filed the case on behalf of the citizens of Prakritipura and has not
exhausted any of the alternative remedy provided by law rather has filed the petition
directly in the Hon’ble supreme court.

On the pretext of not complying with any of the requisites, the petition does not come under
the purview of article 32. Hence the petition is not maintainable before the supreme court in
prima facie.

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