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1ST SHRI NIRMALA DEVI BAM MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2019

IN THE SUPREME COURT OF KADIA

WRIT PETITION____/2019

UNDER ARTICLE 32 OF THE CONSTITUTION OF KADIA

MR. ROCKY AND ORS. ………………………………………PETITIONERS

VERSUS

TRISCO CORPORATION SOCIETY TRUST ……………......RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONERS

 ADVANCED ARGUMENTS

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
the Fundamental Rights and constitutes the Supreme Court as the guarantor and
protector of Fundamental Rights. This proposition has been reiterated by the

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
 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:
a. 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.
b. 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.
c. It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state.
d. Existence of deep and pervasive state control may afford an indication that
the body is a state instrumentality.
e. 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.

6. The judgment of a seven-judge Constitution Bench of the Supreme Court in Pradeep

3
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 : (1981) 1 SCC 722
 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.

7. 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.

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