1.

WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE

PRESENT CASE?

1. Article 321 provides right to move the Supreme Court , acting in a bona fide

manner, in case of violation of fundamental right, for the benefit of the society at

large. Thus in the present case, by virtue of power conferred under Article 32 of

the constitution Supreme Court has jurisdiction to entertain the present writ .

2. In present case “TRISCO has cancelled the membership of Mr. Rocky, Ms.

Ruby, Mr. Shresth and Mr. Gopi and rejected the membership of TRISCO trust

and put the life time ban on them to become member of SONDHEIM religion

trust and they are accordingly not allowed to enter in the religious place made by

the trust because they were in practice of the homosexuality and adultery which

is against TRISCO members who are strong believers of the SONDHEIM

culture.”And also the refusal of membership and lifetime ban by TRISCO

violates the fundamental right to equality, Right to life and personal liberty, and

right to freedom of religion. The Hon’ble Supreme Court of Kadia has the power

to entertain proceedings for the enforcement of fundamental rights. A challenge

under Article 32 extends not only to the validity of a law but also to an executive

order or action with or without the authority of law.

3. The Counsel humbly submits that in Romesh Thappar2 the Supreme Court ruled

that such a petition can come straight to the Supreme Court without going to the

High Court first. The Court stated that unlike Art. 226 and Art. 32 confer a

Fundamental Right on the individual and imposes an obligation on the Supreme

Court which it must discharge when a person complains of infringement of a

Fundamental Right. Art. 32 provides a guaranteed remedy for the enforcement of

1
32. Remedies for enforcement of rights conferred by this Part

2
Romesh Thappar vs The State Of Madras 1950 AIR 124, 1950 SCR 594
 the Fundamental Rights and constitutes the Supreme Court as the guarantor and

protector of Fundamental Rights. This proposition has been reiterated by the

Supreme Court in a number of cases.

4. The petitioner has the locus standi in the present case and all the requirements of

instituting Writ Petition have been fulfilled in the present case. The violation of

Fundamental Rights which are the basic structure of The Constitution also makes

this Court competent to decide the question.

5. In Ajay Hasia,3 The Supreme Court laid down the following tests to adjudge whether
a body is an instrumentality of the government or not:
(1) If the entire share capital of the body is held by the government, it goes a long way
towards indicating that the body is an instrumentality of the government.

(2) Where the financial assistance given by the government is so large as to meet almost
entire expenditure of the body, it may indicate that the body is impregnated with
governmental character.

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

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

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

In the present case, it is mentioned in the fact the TRISCO is a public trust and it confers
numerous reimbursements on upon the trustee for financial reimbursements. It is also
mentioned in the facts that TRISCO, established in 1901 gained huge popularity till 1980,
in such a way that Government had to appoint a committee to look after its day to day
running. Therefore, it was controlled in both financial and administrative manner, and
therefore, as per points (1),(2) and (3), therefore, TRISCO is an instrumentality of the
Government and hence, a state.

3
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722.
 The judgment of a seven-judge Constitution Bench of the Supreme Court in Pradeep
Kumar Biswas4 where, after considering the authorities it concluded that the tests
formulated in Ajay Hasia5 were not a rigid set of principles so that if a body falls within
any of those tests, ex hypothesi, it must be considered to be a State within the meaning of
Article 12. The Court suggested a general guideline observing:

“The question in each case would be whether in the light of the cumulative facts as
established, the body is financially, functionally and administratively dominated by or
under the control of the Government. Such control must be particular to the body in
question and must be pervasive. If this is found then the body is a State within Article 12.
On the other hand, when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State.”

As per the facts, TRISCO is funded by the state, as it mentioned in point 18 that it confers
numerous reimbursements upon the trust. Further, a committee by Government is
constituted to look after the day-to-day running of the trust. Therefore, it is functionally
and administratively dominated by the State. Therefore, TRISCO trust is a state, and as
TRISCO is a state, it is bound to protect the Fundamental Rights of the citizens.

Another example of the expansive interpretation of the expression “other authorities” in

Art. 12 is furnished by the recent decision of the Supreme Court in Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology.6 In this case, the Supreme Court has
overruled Sabhajit Tewary and has held that the Council of Scientific and Industrial
Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court has
ruled that “the control of the Government in CSIR is ubiquitous”.

Part III of the Constitution which deals with “Fundamental rights” is regarded as the basic
structure of the Constitution.7

Therefore, in the present case, remedy under Article 32 is itself a fundamental right of the
petitioners.

Where there is a well-founded allegation that fundamental right has been infringed,

4
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 4 JT 146. See also
Steel Authority of India Limited v. Madhusudan Das, (2008) 15 SCC 560. See also State of U.P. v. Radhey Shyam
Rai, (2009) 5 SCC 577 : (2009) 3 JT 393.
5
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487.
6
(2002) 5 SCC 111 : (2002) 4 JT 146.
7
I.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550.
 alternative remedy is no bar for entertaining writ petition and granting relief 8. The mere

existence of an adequate alternative remedy cannot be per se be a good and sufficient

ground for throwing out a petition under Art. 329. Thus, the petitioner submits before

the Hon’ble court that the writ petition is maintainable in the present case.

8
State of Bombay v. United Motors Ltd., AIR 1953 SC 252.
9
K.K Konchinni v. State of Madras, AIR 1959 SC 725.