1. No violation of fundamental rights.

2. Alternate remedy
3. Not a state.

1. No violation of fundamental rights.

It is humbly submitted that a Writ Petition can be filed under Article 321 for
enforcement of Fundamental Rights, as guaranteed by part III of the
Constitution.2 In the instant case, firstly, there has been no violation of any
fundamental rights and secondly, the petitioner has failed to exhaust his
alternative remedy.

The jurisdiction under Art. 32 can be invoked only when Fundamental Rights

are violated3. In the instant case, that there has been no direct and inevitable

effect on the fundamental rights4. It is submitted that in the second part of the

submission it will be shown that there is no violation of fundamental right

under Article 14 ,Article 15,Article 19,Article 21 and Article 25 of the Kadia

constitution.

In the case of Bandhua Mukti Morcha v. Union Of India & Others5, supreme

court explained the scope of article 32. Clause (1) of Article 32 confers the

right to move the Supreme Court for enforcement of any of the fundamental

rights, but it does not say as to who shall have this right to move the Supreme

Court nor does it say by what proceedings the Supreme Court may be so

1
Article 32, Constitution of India.
2
Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10; Guruvayur
Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50; BALCO Employees
Union (Regd.) v. Union of India, (2002) 2 SCC 333.
3
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
4
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745.
5
Bandhua Mukti Morcha v. Union Of India & Others, (1997) 10 SCC 549
 moved.

Therefore, as in the present case, there is no violation of fundamental rights,

the writ petition under Article 32 is not maintainable in this Hon’ble Court.

2. Existence of an alternate remedy – It has been held that Art. 32 confers ‘extra-

ordinary jurisdiction’, the same must be used sparingly and in circumstances

where no alternative remedy is available 6. Art. 32(1) confers a right to move the

SC by ‘appropriate proceedings’. Appropriate proceedings include procedural

factors such as res judicata7, delay in filing the petition and parallel

proceedings8 in another court. The petitioner in the instant case had the alternate

remedy to approach the Hon’ble HC9.

In P.N. Kumar and Anr. v. Municipal Corporation of Delhi10, the writ petition

of petitioners was dismissed by the apex court the petitioner was asked to file

the same writ jurisdiction in the respective High Court because the High Court

has a wider ambit in Article 226.

It is submitted that the petitioner had an alternative remedy to approach the

High court under Art. 226. The power of High Court under Art. 226 is wider

than the powers of this Court under Art. 32 of the Constitution. Considering

the points raised, it is submitted that the petition must fail.

3. Not a state –

In Sabhajit Tewari v. Union of India11, the Supreme Court ruled that the Indian

6
Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of
Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
7
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
8
Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001).
9
Article 226, Constitution of India.
10
P.N. Kumar and Anr. v. Municipal Corporation of Delhi, 1987 SCC (4) 609

11
Sabhajit Tewari v. Union of India, AIR 1975 SC 1329 : (1975) 1 SCC 485.
 Council of Scientific Research, a body registered under the Societies

Registration Act (thus a non-statutory body), but under a good deal of

governmental control and funding, was not a ‘state’.

In Ajay Hasia,12 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, entire capital is not funded by Government as it is mentioned in the facts
that the Government confers numerous reimbursements upon the trust for financial
assistance. Numerous reimbursements cannot be interpreted to be such as to meet almost
entire expenditure of the trust. In the present cases, there might be many more trusts like
TRISCO, which are based on religious denominations. Further, Government has merely
constituted a committee to look after the day-to-day running of the trust, but deep and
pervasive state control are far wide terms. Further, the functions performed by the trust are
not related to Government functions.

Another example of the expansive interpretation of the expression “other authorities” in Art.
12 is furnished by the decision of the Supreme Court in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology.13 The Court suggested a general guideline observing :

12
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722.
13
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : (2002) 4 JT 146.
“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.”

In the present case, TRISCO is not functionally dominated by the Government, therefore,
according to this decision of the Hon’ble Supreme Court, TRISCO is not a state under Article
12, and therefore, it can make reasonable restrictions based on its religious beliefs.