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TEAM CODE- LA-EQUITY

ST
1 B. PARMZAESHWAR DAYAL MOOT COURT
COMPETITION, 2016

IN THE HON’BLE SUPREME COURT OF INDICA


PUBLIC INTEREST LITIGATION

IN THE MATTER BETWEEN

SATYA AND SHASHI


(PETITIONER)
VERSUS

UNION OF INDICA
(RESPONDENT)

To,
THE HON’BLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF SUPREME COURT OF INDICA

~ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT~


~MEMORANDUM ON BEHALF OF THE PETITIONER ~
1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016
MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS:
LIST OF ABBREVIATIONS………………………………………………………………….....3
INDEX OF AUTHORITIES ……………………………………………………………………4
STATEMENT OF JURISDICTION.....……………………………………………………………7
STATEMENT OF FACTS……………………………………………………………………….8
STATEMENT OF ISSUES………………………………………………………………............10
SUMMARY OF ARGUMENTS………………………………………………………………….11
ARGUMENTS ADVANCED…………………………………………………………………….13
ISSUE 1:- THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDICA IS MAINTAINABLE OR NOT……………………………………….13

1.1 Petitioner has a locus standi in the instant case……………………………………… 13


1.2 The petition has been filed in Public Interest and therefor maintainable as Public
Interest Litigation……………………………………………………………………..14
1.3 Alternative Remedy not a bar…………………………………………………………14
1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to
violation of right alleged in the present matter……………………………………….14
ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ART 14, 21 AND RULE OF LAW ………………………………………………………...…...15
2.1 Arbitrary and capricious act of state are annulled by the provision of Art 14………..15
2.2 The authorities have failed to apply principle of reasonableness……………………..16
2.3 The authorities have failed to apply the principle of reasonableness to the object or
purpose of the legislation ……………………………………………………………………17
2.4 That the implementation of the juvenile justice act, 2015 violates the article 21……....17
2.4.1 Right of fair trial has been violated……………………………………………….…18
2.4.2 Right of opportunity has been violated…………………………………………..…. 18

ISSUE 3: THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)


ACT, 2015 IS UNCONSTITUTIONAL ……………......................................................................19

3.1 That the mental faculty of every of every child cannot be considered equally
..................................................................................................................................................24

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ISSUE 4: THAT THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN

RESPECT OF JUVENILES…………………………………………………………………..…..27

4.1 That the international conventions are in contraventions with the constitution of
Indica........................................................................................................................................28

PRAYER………………………………………………………………….…………………...33

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LIST OF ABBREVIATIONS:
AIR All India Reporter
& And
Anr. Another
Art. Article
CrPC Code of Criminal Procedure
Ed. Edition
HC High Court
IPC Indian Penal Code
JJA Juvenile Justice Act
JJB Juvenile Justice Board
NCRB National Crime Records Bureau
Ors. Others
¶ Paragraph
PCM Prohibition of Child Marriage Act
POCSO Protection of Children from Sexual Offence
Act, 2012
Raj. Rajasthan
§ Section
Sec. Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
UOI Union of India
U.P. Uttar Pradesh
V. Versus

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INDEX OF AUTHORITIES:
TABLE OF CASES
SL. NO. INDIAN SUPREME COURT CASES PG. NO.
1. Aeltemsh v Union of India, AIR 1988 SC 176 15,21
2. Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 17
3. Binny Ltd. And Anr. V Sadasivan and ors., AIR 2005 SC 320 14
4. Brugdaycay(1987) AC 514 14
5. Civil Rights Vigilance Committee, SLSRC College of Law, Bangalore 30
v. Union of India, AIR 1983 Kant. 85
6. Counsel of Civil Services Union v. Minister for the Civil Services, [1985] 16
AC 374
7. D.S Nakara v Union of India, 1983 AIR 130 21
8. Deepak Chand Sibal v. Punjab University, AIR 1989 SC 903. 16
9. Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779 15,18
10. Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 31
667

11. Guruvayoor Devaswon Managing Committee and other v C.K Rajan and 13
Other, (2003) 1 SCC 546
12. Harbansal Sahnia v Indian civil corporation Ltd, AIR 2003 SC 2120 14
13. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514 15,18
14. I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750 14
15. Indian council for enviro legal action vs Union of India, 2011 Indlaw SC 14
508
16. K.K kouchunni vs State of Madras, AIR 1959 SC 725 14
17. Kasturi v. State of J&K, AIR 1980 SC 1992 15,21
18. Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461 29
19. Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (¶ 16
59) : AIR 2002 SC 2914
20. M.C Mehta v. Union of India, (1987) 1 SCC 395 13
21. Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783 30
22. Maneka Gandi vs Union of India, AIR 1978 SC 597 14,16

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23. Mhajan v J.M.C, (1991) 3 SCC 91 15,21


24. Minerva Mills v Union of India, AIR 1980 SC 1789 29
25. Padurangarao v A.P.P.S, AIR 1963 SC 268 16
26. Pratap Singh v. State of Jharkhand. AIR 2005 SC 2731 18,31
27. Re Kerala Education Bill, AIR 1957 SC 956 29
28. Rural litigation and Entitlement Kendra v. State of Uttar Pradesh, 1986 13
Supp. SCC 517
29. S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87 13
30. Sachidanand v. State of W.B, AIR 1987 SC 1109 15,21
31. Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC 13
227
32. State of Bombay vs United Motors Ltd., AIR 1953 SC 252 14
33. Subramanian Swamy v. Raju, (2014) 8 SCC 390 27
34. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021. 17
35. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 32
36. Workman v Meenakshi Mills, (1992) 3SCC 336 15,21

SR.NO BOOKS
1. Steven M. Cox, Robert D. Hanser JUVENILE JUSTICE, A Guide to
Theory, Policy and Practice(7th ed.)
2. Mamta Rao, PUBLIC INTEREST LITIGATION, Legal Aid and Lok Adalat
(3rd ed.)
3. William J. Chambliss, Juvenile Crime and Justice
4. Justice K.G. Balakrishnan(Chief Justice Of India), JUVENILE JUSTICE
SYSTEM
5. Durga Das Basu, Commentry on the constitution of India (8th ed. ) ( Vol. 2 -
4, 8,10)
6. Richard Lawrence & Mario Hesse, JUVENILE JUSTICE
7. Samuel M. Davis, RIGHTS OF JUVENILE 2d, The Juvenile Justice System
(South Asian Edition)
8. H.M. Seervai, Constitution Law of India (4th ed. 2008)
10. John Muncie, Gordon Hughes, YOUTH JUSTICE Critical Reading

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11. Dr. S.K Kapoor, International Law & Human Rights (18th ed.)

SR. NO. CONSTITUTIONAL PROVISION PG. NO


1. ARTICLE 32 passim

SR. NO. STATUTES


1. The Juvenile Justice (Care and Protection of Children) Act. 2015.

2. The Juvenile Justice (Care and Protection of Children) Rule. 2007

3. The Code of Criminal Procedure Act, 1973

SR. NO. TREATIES

1. United Nations Convention on the Rights of the Child, 1990Vienna Convention


on the law of treaties on 23 May 1969
2. Vienna Convention on the law of treaties on 23 May 1969

3. Beijing rules 1985

SR. NO. LEXICONS


1. Garner Bryana, Black’s law Dictionary, 7th Edn.1981, West Group.

2. Collin’s Gem English Thesaurus, 8th Edn. 2016. Collins


3. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Edn. 2006, Oxford
University Press

SR. NO. WEB RESOURCES


1. www.westlaw.india.com(WEST LAW INDIA)
2. www.manupatrafast.com(MANUPATRA)
3. www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)
4. www.jstor.org(JSTOR)
5. www.scconline.com(SCC ONLINE)

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STATEMENT OF JURISDICTION:
The petitioner humbly submits to the jurisdiction of this Honourable Court under Art. 32 of the
Constitution of India. The petitioner has approached this Honourable Court in apprehension of
the violation of rights that inevitably occur should the implementation of The Juvenile Justice
Act, 2015 of the parliament not be stopped. Therefore, the petitioner maintains the jurisdiction
of Art. 32 of The Constitution of India, which protects the citizens of Indica from any violation
of their fundamental rights, is applicable in the present case.

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STATEMENT OF FACTS:
1. Satya was a poor boy who used to live in a slum in the outskirts of the city of Golia, State of
Maharaj Pradesh, in the Republic of Indica. He studied in a government aided school up to
Sixth Standard but then he dropped out of school due to financial constraints and since then,
has been in the employment of Mr. Rajan.

2. Mr Rajan had two children, a boy named Vansh, aged 18 years and a girl named Vani, aged
16 years. Both Vansh and Vani treated Satya in a condescending manner, they insulted him on
trivial matters.

3. One day Shashi, aged 17 years 11 months, son of Mr Saxena, neighbour of Mr Rajan was
playing a soccer in the park of the society and Vansh and Vani were jogging there as per the
daily routine. Shashi and Vansh had animosity since childhood. While playing soccer, the
football hit over the head of the Vani which gave her a minor head injury. Over this Vansh
started verbally abusing Shashi, this lead to quarrel between the two and this provoked Vansh
to give Shashi a blow but suddenly another neighbour came and resolved the quarrel

4. Another day, Satya was bringing some household items, when he reached the vicinity of the
society, he came across Vansh asked Satya that whether he had brought his asked items or not
and Satya replied that “It was not available in the market.” On this Vansh harshly abused Satya
and Vani was also in habit of abusing Satya every now and then. Satya had complained this to
Mr. Rajan but he never paid heed to his such complaints. On another occasion when Vansh
was abusing Satya outside his house, Shashi witnessed the conversation. Later he spoke to
Satya on the matter and both of them shared hatred feelings towards Vansh and Vani.

5. On 5th March 2016, Satya took leave from Mr. Rajan for 3 days from work, for visiting his
village. On the 6th March, 2016, Mr Rajan left to attend some business meeting in another city.
As it was a Sunday Mrs. Rajni (wife of Mr. Rajan) had planned to visit a painting exhibition
with her family. But in absence of Mr. Rajan she decided to continue the programme with her
family. Satya had prior knowledge about the aforesaid plans.

6. At 6:30 pm on 6th March, 2016, Mrs. Rajni along with her children reached the exhibition
venue which was located in the remote and isolated part of the City of Golia, Mrs Rajni got
engaged in works along with her friends. Meanwhile at around 8:30 p.m. Vansh found out that
her sister was missing. At around 10:00 p.m. when the guard came to switch off the light of the

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basement, he found a girl lying unconscious. He immediately informed Vansh and his mother
and she was identified by her family as Vani. They took her back home.

7. The other morning Mr. Rajan reached back home. Vani narrated the story to the family that
she was taken away by Satya and Shashi to the basement where they tried to outage her modesty
by tearing off her clothes. She stated that she was subjected to rape. When she shouted for help,
her mouth was forcefully shut and in a sudden haste she was strangulated. Thereafter she got
unconscious and the boys ran away.

8. A FIR was then made by them against Satya and Shashi on the 7th March in the nearest
Police Station, which was registered under Section 323, 354-B, 366-A, 376, 376-D read with
Section 34 of the Indica Penal Code, read with Section 3 and 4 of The Protection of Children
from Sexual offences Act, 2012, No. 32 of 2012 and Sec. 3(1)(w)(i), Sec 3 (1)(w)(ii)& Sec.
3(2)(v) of The Scheduled Caste and the Scheduled Tribes (Prevention of Actrocities)
Amendment Act, 2015 (No. 1 of 2016)

9. On the 8th March, 2016 the Investing Officer arrested Shashi and Satya. The case was sent
to Juvenile Justice Board as both were minor. A preliminary assessment was about to be made
under Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016),
by the regular Sessions Court or whether it will be dealt by the Juvenile Justice Board. As there
was a large scale media coverage and further the family of Mr. Rajan was very influential. Due
to which, Satya and Shashi apprehended that their case might be committed to the Sessions
Court. Therefore they decided to challenge the validity of the Section 15 of Juvenile Justice
(Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme Court of Indica.

10. As Satya and Shashi were minor and were victims of continuous harassment by Mr. Rajan,
specifically by Vansh and Vani, both challenged the Constitutional Validity of Section 15 of
Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme
Court of Indica.

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STATEMENT OF ISSUES:

[ISSUE 1]
WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION
OF INDICA IS MAINTAINABLE OR NOT?

[ISSUE 2]
WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES ART 14,
21 AND RULE OF LAW OR NOT?

[ISSUE 3]
WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 IS UNCONSTITUTIONAL OR NOT?

[ISSUE 4]
WHETHER THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT
OF JUVENILES OR NOT?

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SUMMARY OF ARGUMENTS:

[ISSUE1] THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32


OF THE CONSTITUION OF INDICA IS MAINTAINABLE.
The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is
maintainable as a Public Interest Litigation, which has been filed with the apprehension of
violation of Fundamental Rights enshrined under Part III of the Constitution. The procedurals
flaw which depict the improper implementation of the Juvenile Justice Act, 2015 of the
Parliament which falls under the ambit of authorities under Art. 12 of the Constitution. Thus,
the petition is maintainable.

[ISSUE 2] THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT,


2015 VIOALTES ART. 14, 21 AND RULE OF LAW.
The petitioner contends that the implementation of the Juvenile Justice Act, 2015 by the
Parliament if found to be arbitrary, thus violates of Art. 14 and Art. 21. Rule of law has also
been violated by the improper implementation of the Juvenile Justice Act, 2015 decision of the
Parliament. This execution is not based on sound reason hence has delivered results that shows
the colourable exercise of power.

[ISSUE 3] THAT SEC. 15 OF THE JUVENILE JUSTICE ACT, 2015 IS


UNCONSTITUIONAL.
All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in
the instant case. First it “Violates the very essence of Juvenile Justice Act”1. Secondly it also
violates various Fundamental Rights2. Third, it does not take consideration of other relevant
factors like social background and psychological issues3. It has been well established by many
neuroscientist that in adolescent period, child faces tremendous physiological, hormonal,
emotional and structural change in the human brain, which subjects the child to great
vulnerability4. Fourth, this act can also open the flood-gate of cases by angry parents who wants
to resist their children from getting into love relationship5.

1
Amendment to juvenile justice act criticised, The Hindu, April 25.2015
2
International Journals of legal development and allied issues written by Sayashi Saha.
3
Ibid
4
Ibid
5
Ibid

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[ISSUE 4] THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL


PRINCIPLES IN RESPECT OF JUVENILES.
It is respectfully submitted that the impugned Act seeks to punish the child in conflict with law
for the failure of the society at large in providing the child with adequate care and protection.
It is submitted that the impugned Act seeks to create a fictional classification between the
children belonging to age group of 16-18 years on the basis of degree of crime "allegedly"
committed by them.
It is submitted that under the Indian law a person under the age of 18 is not allowed to vote, is
considered minor for entering into a contract, a girl of age less than 18 cannot give consent for
sexual relationships, a child of age less than 18 cannot marry, yet, by the amended act, that
child can be tried as an adult and after a preliminary assessment, the child shall be presumed
to have the knowledge and understanding of the alleged crime he has committed.
The counsel submits that such a scenario would be travesty of Justice. The law of juvenile
justice stands on the principles of restorative and reformative justice and any digression from
the same would be detrimental to the right of the children and in contravention with the
principle as enunciated under Article 15(3) of the Constitution of Indica.
The counsel humbly submits that the impugned amendment is against the UN Convention on
the Rights of the Child (hereinafter as UNCRC) which is a comprehensive and internationally
binding agreement on the rights of children. It was adopted by the United Nations General
Assembly in 1989. The Petitioner submits that our country accepts the international convention
of keeping 18 years as the age of the child and the same is reflected in various laws where the
age of child was kept at 18 years such as Contract Act, Motor Vehicles Act, etc.

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ARGUMENTS ADVANCED:
1. THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE
CONSTITUTION OF INDICA IS MAINTANABLE.
The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is
maintainable as a Public Interest Litigation, which has been filed with the apprehension of
violation of Fundamental Rights enshrined under Part III of the Constitution. The present
petition is maintainable under Art. 32 of the Constitution,6 since it falls within the ambit of
“The State” as enriched under Art. 12 of the Constitution. Public function is one which “seeks
to achieve some collective benefit for the public or a section of the Public”7 further under the
well-established doctrine Parents Patriae, it is the obligation of the state to protect and take into
custody the rights and privilege of its citizen for discharging its obligation.

1.1 Petitioner has a locus standi in the instant case:

It is humbly submitted that the Apex Court in S.P Gupta,8 case held that test for determining
the standing in individual interest cannot be a strictly applied to public interest. The court has
expended the concept of “Affected Party” in case of Public interest. As it is humbly submitted
that the Apex court in Shivaji Rao Nilangeker Partil,9 and also in Guruvajoor Devasean
Managing committee and Another,10 case held that the petitioner might have moved a court in
his private interest and for redressal of the personal grievance the court in furtherance of the
Public interest may treat it necessary to enquire into the state of the affairs of the subject of the
litigation in the interest of justice.

All the requirements of instituting PIL have been filled the instant case. First, there is a violation
of fundamental rights. Second, the petitioner represents the rights of public i.e Juveniles in
Conflict with Laws. Third, the petitioner has come to this Court with clean hands. The
impugned “Juvenile Justice Act, 2015 issue by Parliament there or the Hon’ble Supreme Court
is competent enough to decide legality of the amendment Juvenile Justice, 2015.

6
Consitution of India, Pare materia to constitution of India.
7
Binny Ltd. And Anr. V Sadasivan and ors. AIR 2005 SC 320 (para 11)
8
S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87; M.C Mehta v. Union of India, (1987) 1 SCC 395
; Rural litigation and Entitlement Kendra v. State of Uttar Pradesh 1986 Supp. SCC 517
9
Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC 227
10
Guruvayoor Devaswon Managing Committee and other v C.K Rajan and Other, (2003) 1 SCC 546

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1.2 The petition has been filed in Public Interest and therefor maintainable as Public
Interest Litigation:
It is submitted that part III of the Constitution which deals with “Fundamental Rights” is
regarded as basic structure of the Constitution11. To invoke the writ jurisdiction of the Hon’ble
Supreme Court is not necessary that the fundamentals rights have been actually infringed. A
threat to the same would been sufficient12. Applying the Doctrine of “Reasonable
Apprehension”, this Hon’ble Court may interfere directly in the said case. The most
fundamental rights of an individual is his Right to Life; if an administrative decision may his
life at risk, the basic for decision surely calls for the most anxious scrutiny according the
principle of “ Anxious Scrutiny”13. The petition filed before this court is maintainable.

1.3 Alternative Remedy not a bar:


When there is a well – founded allegations that Fundamental Right has been infringed,
alternative remedy is no bar for entertaining Writ Petition and granting relief,14. The legal
remedy cannot be per se good and sufficient ground for throwing out a petition under Art 32 if
the existence of a Fundamental and a breach, actual or threatened, of such rights is alleged is
Prime Facie establish on the petition15. In spite of availability of alternative remedy, the court
may exercise its writ jurisdiction in its least petition where the petitioner seeks enforcement of
any of the fundamental rights.16 Thus the petitioner humbly submits that PIL is maintainable
as existence of alternative remedy is not a bar.

1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to
violation of right alleged in the present matter:

1.4.1 Violation of the right of the Juvenile:


The Fundamental right to equality,17 enriched under Art. 14 of the constitution have been
violated because of the ambiguous law which has been amended by the State. The law is
arbitrary in nature where every action of the State must be guided by reason for public good
and not by whim, caprice, and abuse of power.18 Also there is a violation of Right to natural

11
I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750
12
Indian council for enviro legal action vs Union of India (2011) 8 sec 161(para 20)
13
Brugdaycay(1987) AC 514, where lord Bridge said at 531 E-G
14
State of Bombay vs United Motors Ltd. AIR 1953 SC 252
15
K.K kouchunni vs State of Madras AIR 1959 SC 725
16
Harbansal Sahnia v Indian civil corporation Ltd. AIR 2003 SC 2120
17
Maneka Gandi vs Union of India AIR 1978 SC 597
18
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779

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justice and Right of opportunity to be heard enriched under Art.21 of the constitution has been
violated on the account of arbitrary action of the state.

It is humbly submitted that the present PIL is maintainable against Union of India.

2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015


VIOLATES ART. 14, 21 AND RULE OF LAW.
The petitioner contends that implementation of the Juvenile Justice Act, 2015 has rendered to
be arbitrary, hence violates of right to equality enriched under Art 14 and rule of law.

2.1 Arbitrary and capricious act of state are annulled by the provision of Art 14:
The petitioner submits that the jurisdiction of Art 14 extends to the prevention of arbitrary and
unreasonable action of the state, which are “antithetical” to the rule of equality. The principle
of Indian law have thrown open the gates of Executive action to Judicial Scrutiny. It is
submitted that under the expanded interpretation of Art 14,19 any Administrative Act , even
though it may inverse policy,20 or that it involved an improper use,21 or the statutory power; or
that the power was exercised by an unfair procedure;22 or that the action taken by the State or
its instrumental is not conductive to the public interest,23.

In the case of D.S Nakara v Union of India,24 a memorandum dated May 25, 1979 the
government of India liberalised the formula for computation of pension in request of employed
governed by central civil service (Pension) Rule said that the liberalisation of the computation
of the pension had been made applicable only to those retiring on or after the date specified
and the benefit of liberalisation had been denied to all those who had retired earlier. Thus Art.
14 strikes at arbitrariness in state action and ensure fairness and equality of treatment. It is
attracted where equals are treated differently without any reasonable basis. The judgement was
held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the
section 2(12) says that a juvenile means a person who has not completed the age of 18 age and

19
Durga Das Basu’s commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S
Subramanni, Justice B.P Banerjee, 8th Ed. 2008)
20
Workman v Meenakshi Mills (1992) 3SCC 336 (para 54)
21
Mhajan v J.M.C (1991) 3 SCC 91
22
Aeltemsh v Union of India, AIR 1988 SC 176 (para 6)
23
Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109
24
1983 AIR 130

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on the other side the Juvenile Justice Act 2015 is contradicting its own law while saying that
16-18 years of age should be tried as an adult criminal.

In the instant case both Satya and Shashi were minors where they are treated differently without
any reasonable basis and thus the Juvenile Justice Act, 2015 is arbitrary in nature similarly in
the fact of Satya and Shashi Art. 14 ensure fairness and equality and treatment which should
be provided.

2.2 The authorities have failed to apply principle of reasonableness:


The petitioner submits that the Rule of Law, derived from the French term, la principle de
legalite, is the foundation of the concept of a state that revolves around the law, and not around
mem.25 As Lord Coke observed in Rooke’s case,26 act which under the guise of discretion can
only be described as colourable exercise of power. The essence of judgement with development
of the common law is that exercise of discretion should be coupled with equality and grounded
in sound reason. 27

It is submitted that the authorities have acted without following the procedure leading to
unequal treatment violating Art. 14,28 arbitrariness in an antithesis of rule of law, equity, fair
play and justice29. The Indian court have followed Wednesbury principle of reasonableness30.
In the instant case, the authorities have wrongly exercised discretion as they have filled to take
into consideration that by the amendment of Juvenile Justice Act, 2015 it should ultimately
affect the fundamental right of a section of the society. In the case of Padurangarao v
A.P.P.S,31. The state of Andhra Pradesh had made certain rules prescribing qualification for
appointment to start judicial service. The court held that one of these rules, which laid down
that only, that only advocate practising before the High Court’s where qualified, discriminated
against Advocates practising in other high court though they belong to same class. The court
rejected the contention that constitutional of the impugned rule should be considered along

25
I.P Massey, Administrative Law, EASTERN BOOK COMPANY 25 (7TH ed,2008)
26
(1598) 5 Co. Rep. 99b “Proceedings ought to be limited and bound by the Rule of Reason, and Law. For
discretion is a science or understanding to discern between falsity and truth, between wrong and right, between
shadows and substance, between equity and colourable glosses and pretences and not to do according to their wills
and private affections, for as one saith, tails discretion discretionemconfundit20.”
27
H.W.R.WADE & C.F.FORSYTH, ADMINISTRATIVE LAW, OXFORD PUBLICATIONS, 293 - 294
(10thed, 2009)
28
Maneka Gandhi v. Union of India (1978) 1 SCC 248; Deepak Chand Sibal v. Punjab University, AIR 1989 SC
903.
29
Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (¶ 59) : AIR 2002 SC 2914
30
Counsel of Civil Services Union v. Minister for the Civil Services [1985] AC 374
31
Pandurangarao v. A.P.P.SC,(1963) 1 SCR 707 (720): AIR 1963 SC 268

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with the other rule which prescribed legitimate qualification eg. : - Age, educational
qualification etc. in the instant case of Satya and Shashi the Juveniles are further being
classified as Juveniles are itself a class and further class cannot be classified so the impugned
act should consider the age of juvenile as 18 years and that ambiguous law which has been
amended should be reconsidered as the act is also not respecting the international treaties which
says that a juvenile is a person who is below the age of 18 years.

2.3 The authorities have failed to apply the principle of reasonableness to the object or
purpose of the legislation:
The petitioner submitted that the authorities have acted without following the procedure to
unequal treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is
to provide care, protection and child friendly approach but child friendly approach suddenly
disappears when the child is between the ages of 16-18 years. Thus the object of Juvenile
Justice Act is not being fulfilled as Juveniles are being treated as an adult criminals where they
would be sent to the prison and due to this the Juvenile would be influenced to be more
hardened criminals so the object or purpose of the Act to protect the juvenile from committing
the crime is not fulfilled rather than the government is trying to convert them into a hardened
criminals and not to reform the juveniles so that the juveniles would be accepted into the
society. Thus there is a violation of Art. 14 where the three test laid down the Supreme Court
are not been satisfied.

2.4 That the implementation of the juvenile justice act, 2015 violates Art. 21 of the
Constitution of Indica:
The petitioner contents that’s the implementation of Juvenile Justice Act 2015 has rendered for
the natural justice enriched under Art. 21 of the constitution32. The Art. 21 of the constitution33
envisages the rights to Natural Justice as a fundamental right. Further in order to establish
violation or Art 21 the Act should be subjected to the equality test of Art. 14. Art. 14 strikes at
arbitrariness because it neglects,34 and permeates the entire fabric of the rule of law,35 therefore
every action of the state must be guided by the reason for public good and not by whim,
Caprice, and abuse of power.36

32
Constitution of Indica, 1950 pari materia to the Constitution of India, 1950
33
Ibid
34
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
35
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
36
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779.

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2.4.1 Right of the Fair Trial has been violated:

The authorities have failed to apply the principle of fair trial and right of opportunity to be
heard. Right to have fair trial of a juvenile is a fundamental right guaranteed under Art 21,
which would include procedural safeguard. The Juvenile has right to get his case disposed of
expeditiously is a statutory as well as constitutional right and at all stages the board or the court
is required to pass appropriate order under Juvenile Justice Act, 2000,37. As per section 15
explanation (1) and (2) of Juvenile Justice Act, 2015 the board shall follow the procedure trial
in summon case under CrPC of Indica, 1973,38. Thus the Juvenile would be tried as an adult in
the session court rather than Juvenile court. In the instant case of Satya and Shashi as there was
a large scale media coverage and also Mr Ranjan the master of Satya was an influential person
due to which there was a mere apprehension that there case might be committed to session
court, to invoke the writ Judriction of Hon’ble Supreme Court is not necessary that the
fundamental right has been actually infringed but a threat to some would be sufficient in the
instant case the Juvenile Satya and Shashi would not be tried under the Children Court by
which the natural Justice is being violated.

It is respectfully submitted that the doctrine of fair trial has been violated.

2.4.2 Right of opportunity has been violated:

The right of opportunity to be heard of Satya and Shashi is also violating because the Juveniles
were arrested by just a mere statement where there was a no Prima Facie evidence and hence
by a mere statement they would be tried in session court. Thus both the juveniles should be
given a chance of proving themselves of not being guilty rather than apprehending them by a
mere statement stated by Vani whose age is 16 years as juvenile also has right to be heard.
Hence there is a violation of Art 21 of the constitution. In the instant case of Shashi and Satya
both of them have a right of fair trial as they have been treated as accused but not Juvenile in
conflict with law according to section (15) of Juvenile Justice Act. The right of opportunity to
be heard has also been violated as no one in the family of the juveniles was been informed.
Thus the petitioner submits that the rights of the juveniles are been violate under article 21 of
the Constitution39.

37
Pratap Singh v. State of Jharkhand. AIR 2005 SC 2731: (2005) 3 SCC 551
38
Parimateria to CrPC of India, 1973
39
Constitution of Indica, 1950, Parimateria to The Constitution of India, 1950

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3. THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF


CHILDREN) ACT 2015 IS UNCONSTITUTIONAL.

According to several statutes in operation in or country, a juvenile has been defined in several
statutes:
§ 2(k)40 a “juvenile” or “Child” is a person who has not completed eighteenth year of age.
§ 2(12)41, “Child” means a person who has not completed the eighteen years of age.

As provided in the facts of the case and as the problem requires we hereby adhere to the
definition provided by Juvenile Justice (Care and Protection of children) Act, 2015.
Since a nation’s future depends upon the young generation, the children deserves compassion
and bestowal of the best care to protect this burgeoning human resource. A child is born
innocent and if nourished with tender, care and attention he or she will blossom with the
facilities physical, mental, moral and spiritual into a person of stature and excellence42.

All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in
the instant case. First it “Violates the very essence of Juvenile Justice Act”43. Secondly it also
violates various Fundamental Rights44. Third, it does not take consideration of other relevant
factors like social background and psychological issues45. It has been well established by many
neuroscientist that in adolescent period, child faces tremendous physiological, hormonal,
emotional and structural change in the human brain, which subjects the child to great
vulnerability46. Fourth, this act can also open the flood-gate of cases by angry parents who
wants to resist their children from getting into love relationship47.

The prologue of The New Juvenile Justice (Care and Protection of Children), Act 2015, has
introduced some of the remarkable changes in the existing Juvenile Law. One such major
changes is, juvenile of age group of 16-18 years are to be tried like an adult criminal. Also the
person who has attained the age of twenty one while in sentence will be send to the jail for rest
of the time span48.

40
Juvenile Justice (Care and Protection of Children) Act, 2000
41
Juvenile Justice (Care and Protection of Children) Act, 2015
42
Legal papers and comments, Juvenile justice in India, Friday 17th March, 2016.
43
Amendment to juvenile justice act criticised, The Hindu, April 25.2015
44
International Journals of legal development and allied issues written by Sayashi Saha.
45
Ibid
46
Ibid
47
Ibid
48
International Journals of legal development and allied issues written by Sayashi

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The petitioner humbly submits that in this particular section there has been a classification
between two different classes of a juvenile. Where juvenile is itself a class and further
classification into a class cannot be done and hence there is a violation of the fundamental
rights under Article 14 and Article 21 of The Constitution of Indica49. It is also not satisfying
the three tests of Article 1450 defined by the Supreme Court and that is:-

1. Test of intelligible Differentia.


2. There must be a nexus between the basis of classification and the object of the act under
consideration.
3. Arbitrariness

As these three tests are not satisfying the reasonability of section 15 of Juvenile Justice Act,
2015.

The first test that is the Intelligible Differentia is unreasonable due to the logic and the reasons
because on one hand it replaces the word juvenile with child in conflict with law which is
supposedly more humane. But this very child in conflict with law is meant to be tried for adult
offences and is inhumane idea conceived by the Government. Also there is a flaw with the
terms child alleged to be in conflict with law and child found to be in conflict with the law are
not defined clearly and are used interchangeably in the act. Even though there is an alleged
difference between alleged to be and found to be.

It is respectfully submitted that the authorities have acted without following the procedure to
unequal treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is
to provide care, protection and child friendly approach but child friendly approach suddenly
disappears when the child is between the ages of 16-18 years. Thus the object of Juvenile
Justice Act is not being fulfilled as Juveniles are being treated as an adult criminals where they
would be sent to the prison and due to this the Juvenile would be influenced to be more
hardened criminals so the object or purpose of the Act to protect the juvenile from committing
the crime is not fulfilled rather than the government is trying to convert them into a hardened
criminals and not to reform the juveniles so that the juveniles would be accepted into the
society. There are many international examples such as there is a U.S. study that is established

49
Pari materia to the constitution of India
50
Ibid

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80% of the juveniles released from prison go on to commit more serious offences. Hence this
condition might be of India due to this Law which amended51.

The petitioner humbly submits that juveniles commits a tiny portion of crime in India and far
less other than other nations such as United States data52 that although there were 33,000 crimes
committed by juveniles in India in 2012 there has not been a large increase53.

Art 14 extends to the prevention of arbitrary and unreasonable action of the state, which are
“antithetical” to the rule of equality. The principle of Indian law have thrown open the gates of
Executive action to Judicial Scrutiny. It is submitted that under the expanded interpretation of
Art 14,54 any Administrative Act , even though it may inverse policy,55 or that it involved an
improper use,56 or the statutory power; or that the power was exercised by an unfair
procedure;57 or that the action taken by the State or its instrumental is not conductive to the
public interest,58.

In the case of D.S Nakara v Union of India,59 a memorandum dated May 25, 1979 the
government of India liberalised the formula for computation of pension in request of employed
governed by central civil service (Pension) Rule said that the liberalisation of the computation
of the pension had been made applicable only to those retiring on or after the date specified
and the benefit of liberalisation had been denied to all those who had retired earlier. Thus Art.
14 strikes at arbitrariness in state action and ensure fairness and equality of treatment. It is
attracted where equals are treated differently without any reasonable basis. The judgement was
held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the
section 2(12) says that a juvenile means a person who has not completed the age of 18 age and
on the other side the Juvenile Justice Act 2015 is contradicting its own law while saying that
16-18 years of age should be tried as an adult criminal.

It is respectfully submitted that there is also a violation of fundamental right under art. 21.
There is a violation of Right of opportunity to be heard and right of fair trial. The Juvenile

51
Juvfenile Justice by Richard Lawrence And Mario Hesse
52
National Crime Bureau Report (2012-2013)
53
Ibid.
54
Durga Das Basu’s commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S
Subramanni, Justice B.P Banerjee, 8th edition 2008)
55
Workman v Meenakshi Mills (1992) 3SCC 336 (para 54)
56
Mhajan v J.M.C (1991) 3 SCC 91
57
Aeltemsh v Union of India, AIR 1988 SC 176 (para 6)
58
Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109
59
1983 AIR 130

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would be tried as an adult in the session court rather than Juvenile court. In the instant case of
Satya and Shashi as there was a large scale media coverage and also Mr Ranjan the employer
of Satya was an influential person due to which there was a mere apprehension that there case
might be committed to session court, to invoke the writ Judriction of Hon’ble Supreme Court
is not necessary that the fundamental right has been actually infringed but a threat to some
would be sufficient in the instant case the Juvenile Satya and Shashi would not be tried under
the Children Court by which the fair trial of the juvenile is being violated.

The right of opportunity to be heard of Satya and Shashi is also violating because the Juveniles
were arrested by just a mere statement where there was a no Prima Facie evidence and hence
by a mere statement they would be tried in session court. Thus both the juveniles should be
given a chance of proving themselves of not being guilty rather than apprehending them by a
mere statement stated by Vani whose age is 16 years as juvenile also has right to be heard.
Hence there is a violation of Art 21 of the constitution.

It is respectfully submitted that in practice, Session Court have been given the additional
changes of acting as a children’s court, however not many special court having child friendly
environment has been created. It is further submitted that the child should have to face the
ignominy of being called as “Accused” even though he may or may not have committed the
said offence. Further, the child shall be forced to face fair trial which will have a negative effect
on the psychology of mind. As this law will be highly misused if teenagers are found for
consensual sex then the male would be charged for rape and will be sent in the prison. As there
is an old established principle in law that lex iniusta non est lex that says unjust law is not a
law.

This act can also open the flood-gate of cases by angry parents who wants to resist their children
from getting into love relationship. First of all the POCSO Act states the age of consent is 18
years60 and if any crime committed by a juvenile under the POCSO Act it will be dealt as per
the provision of Juvenile Justice Act 2000 (Now as per the new amendment act)61. Again, the
PCM Act states that the child marriages are voidable but not void62. In such a situation, many
Juvenile who are involved in a love relation can marry each other and can enter in ‘consensual’

60
The POCSO Act 2012 sec 2d
61
The stakeholder opined that this provision was worrying as needed to be looked at in relation to section 23 of
POCSO Act see HUNDRED the juvenile justice (care and protection of children) PARLIAMENT OF INDIA
RAJYA SABHA TWO HUNDRED SIXTY FOURTH REPORT, supra., at 16
62
The Prohibition of Child Marriage Act, 2006 sec 3

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sexual act. In such situation the consented sexual act may attract the provision of POCSO Act
and the Juvenile Justice Act, 2015 and they may be tried as adult offender. In a hypothetical
situation, when both the guy and girl are involved in a consensual sexual relation, then the male
child shall be treated children in conflict with law and the female will be treated as children in
need of care and protection. This situation may arise because in section 3, ‘Penetrative sexual
assault’ starts with ‘he’, and it excludes the women from its periphery. It utters a girl can only
be abettor in the penetrative sexual assault not an active criminal.

Such a harsh law against juveniles can be a weapon in hand of angry parents in child elopement
cases. If we look into the crime report of 2013, we can observe about 1388 cases are reported
of rape which is only 4.18% of the total crimes committed by the juveniles between the age
group of 16-18 years63 and from them many cases are relating elopements where the parents
come complaining to police that their children were sexually abused or kidnapped and lodge
FIR against the boy.

Under the existing law of a child in conflict with law between the age of sixteen - eighteen
years were found to have committed an offence by Juvenile Justice Board, there was a arrange
of rehabilitation supposition that could be passed by Juvenile Justice Board. These
rehabilitation disposition includes admonition community service imposition of a fine,
probation group counselling and an extreme measure of deprivation of liberty by way of
placement of the child in the special home for three years. Also there has been no such
alternative remedy which has been proposed like shelter homes, observation homes and
rehabilitation homes. In the landmark case Sheela Barse and Anrs. v. Union of India64 the
judgement delivered in the Supreme Court by the bench Bhagwati J. in which it was
emphasised that a central act is needed for ensuring social economic and psychological
rehabilitation of the children who are either accused or are abandoned or destitute or lost. If
further stressed, then need not only of having a legislation but to enforce it with all earnestness
and plea like financial constraints would not serve our purpose in binding up of powerful
human resource who are to taken reins of nation in forward march.

This act has basically been just saying about the juveniles who are to be tried as an adult
criminals and it is sadly to be said that a majority of children in conflict with law comes from
illiterate family, poor homes or even homeless. 77.5% arrested children in 2013 comes from

63
National Crime Record Bureau, Crime in India 2013 statistics 513.
64
(1986) 3 SCC 596

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families with a monthly household of income of less than Rupees four thousand two hundred
only. That’s how these poor the children’s are 87% have not received Higher Secondary
Education65. These are the ones that the government are trying to punish instead of providing
them with the education or give them an opportunity to integrate into our society66.

As Delhi alone has around eighty thousand street children and when children are living on the
streets or in pitiable condition they can easily come under the influence of criminal minded
adults hence it is better to educate them rather than throwing them to a jail.

3.1 That the mental faculty of every child cannot be considered equally.

The petitioner humbly submits that the impugned Act seeks to repeal and replace the existing
Juvenile Justice Act, 2002 with a draconian and unconstitutional amendment which instead of
providing care and protection to the children deems them as an adult in cases where the alleged
commission of crime by them is heinous in nature. It is respectfully submitted that the
impugned Act seeks to punish the child in conflict with the law for the failure of the society at
large in providing the child with adequate care and protection.

The petitioner herby completely submits that the brain of the teenager is not completely
developed and he/she is incapable of fully understanding the consequences of his act or
omission. It is to be submitted that in 2007 a study conducted at Researchers at Harvard
Medical School, the National Institute of Mental Health (NIHM), US scanned the brains of
nearby thousand healthy children between ages three to eighteen years67. Child and Adolescent
psychiatrist Jay Geidd, who conducted the Magnetic Resonance Imaging (MRI) scans and
followed the actual physical changes in the brain, believes that brain maturation peaks around
the age of twenty-five years68.

In 2005, Dr. Geidd quoted that during adolescence the “part of the brain that is helping
organization, planning and strategizing is not done being built yet…. It’s sort of unfair to expect
[adolescents] to have adult levels of organizational skills or decision making before their brain
is finished being built69”. Deborah Yurgelun-Todd, PhD Brain Imaging Laboratory, McClean

65
National Crime Bureau Report (2012-2013)
66
Relation of Juvenile with Jurisprudence, PG NO.29-30
67
American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
Development and Legal Culpability, January 2004.
68
Brain development in children and adolescents: Insights from anatomical magnetic resonance imaging Rhoshel
K. Lenroot, Jay N. Giedd in 2006.
69
PBS Frontline, Inside the Teen Brain. See Interview with Jay Giedd, online at
www.pbs.org/wgbh/pages/frontline/shows/teenbrain/,2004 last accessed on 12th September at 7.00PM.

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Hospital Harvard University Medical School quoted that “Just because they're physically
mature, they may not appreciate the consequences or weigh information the same way as adults
do. So, [although] somebody looks physically mature, their brain may in fact not be mature70.”

Emotionally, an adolescent “is really both part child and part adult,” explains Melvin Lewis,
an expert in child psychiatry and paediatrics at Yale University School of Medicine. Normal
development at this time includes self-searching, during which the adolescent tries to grow out
of his or her childlike self. This change is complicated by the conflict between an adolescent’s
new sense of adult identity and remaining juvenile insecurities71.

As in the case Lakshmi Kant Pandey v. Union of India and others, The Apex Court in its first
Judgment in 1984 itself on the child jurisprudence said that:

1. The children by reason of their physical and mental immaturity needs special safeguards
and care, including the appropriate legal protection before as well as after birth and that the
mankind owes to the children the best it has to give and formulate some principles mainly
that “children have a right to love and be loved, grow up in an atmosphere of love and
affection with moral and material security which is possible only if they are brought up in
family care”.
2. It is universally accepted that proper development of a child-emotionally, physically,
intellectually and morally-can be best ensured with the family, or where it is not possible,
then in family surroundings and in a family atmosphere. The responsibility for providing
care and protection to children, including those who are orphaned, abandoned, neglected
and abused rests primarily with the family, the community and the society at large’.

Hence it has to be noted that a child should be treated in a good atmosphere and proper care
and love should be given because they might be physically mature but mentally they might
need support of the others. Similarly, in the case of Satya and Shashi, Satya was a poor boy
who was a dropout due to financial conditions and has struggled a lot in his life where he has
never got love and affection from his family and neither from Vansh and Vani who were the
children of his master Mr. Rajan where they used to ill-treat him and misbehave with him and

70
American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
Development and Legal Culpability, January 2004.
71
Lewis, Melvin. Child and Adolescent Psychiatry: A comprehensive textbook, Lippincott Williams and
Wilkins (2002).

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during his bad times Shashi was the only witness where Vansh and Vani abused him as the
product was not available in the market.

As in the Indian Context: Dr. Rajat Mitra, clinical psychologist and director of Swanchetan, a
non-governmental organisation based in New Delhi providing support to juvenile delinquents
among others - says that “complete rehabilitation is very rare”. “It is almost next to nil.
Rehabilitation is a well-defined scientific process. The idea is to help the convict gain back his
original psychological, physical and social capacity which is impaired as a result of the crime
committed,” he says.72

Juveniles in conflict with the law are more capable of change given the fact that their brains
are still learning. Honest efforts made towards rehabilitation — including visits by a mental
health professional three-four times a month — will have a significant positive impact on them.
Unfortunately, there is no psychiatric screening in Indian prisons. No mental health
professional has met the juvenile convicted in the gang-rape case yet; neither when he was in
a reform home for three years nor after release. “That’s no way to look at rehabilitation,” says
Dr. Mitra73.

The petitioner humbly submits that there are many circumstances under the Indian law a person
under the age is not allowed to vote, is considered minor for entering into a contract, a girl of
age less than eighteen years cannot give consent for sexual relationships, a child of age less
than eighteen years cannot marry. Yet by the amended act that child can be tried as an adult
after a preliminary assessment, the child shall be presumed to have the knowledge and
understanding of the alleged crime he has committed. The petitioner submits that such a
scenario would be travesty of justice. It is submitted that the idea behind treating a certain age
group as children is to protect the most vulnerable section of the society. Where the government
analysed in such matters that they are not mature enough to deal with these things. Thus it is
humbly submitted that section 15 of juvenile Justice Act, 2015 has been violated.

72
Neuroscience and the Juvenile Legislation Report 2005
73
Ibid.

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4. THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES


IN RESPECT OF JUVENILES.

The counsel humbly submits that the impugned amendment is against the UN Convention on
the Rights of the Child (hereinafter as UNCRC) which is a comprehensive and internationally
binding agreement on the rights of children. It was adopted by the United Nations General
Assembly in 1989. The definition of child as envisaged in Article-1 states:

"For the purposes of the present Convention, a child means every human being below the
Age of eighteen years unless under the law applicable to the child, majority is attained
earlier."
The object clause of the present amendment states thus:
"And whereas, the Government of India has acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of United Nations
which has prescribed a set of standards to be adhered to by all State parties in securing the
best interest of child."
The counsel submits that the mention of UNCRC in the objective of the impugned amendment
is a mere eye wash as the amendment seeks to erode the very definition of child as envisaged
in the UNCRC. The counsel further submits that section 1674 of the Act of 2000 had a specific
provision to deal with children between 16-18 years who had committed serious offences which
was well within the existing juvenile system and that there was no need to push juvenile
offenders into adult criminal system. The counsel submits that our country accepts the
international convention of keeping 18 years as the age of the child and the same is reflected
in various laws where the age of child was kept at 18 years such as Contract Act, Motor
Vehicles Act, etc. In those legal systems recognizing the concept of the age of criminal
responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level,
bearing in mind the facts of emotional, mental and intellectual maturity75.

United Nations Convention on the Rights of the Child, 1990 read with the concluding
Resolution of the Committee on Child Rights mandates member States to act accordingly. The
UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”)
were adopted by the General Assembly of the United Nations in 1985. Rule 2.2(a) defines a
juvenile as a child or young person who, under the respective legal system, may be dealt with

74
Section 16, Juvenile Justice Act. (2000) - Order that may not be passed against juvenile.
75
Subramanian Swamy v. Raju, (2014) 8 SCC 390.

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for an offence differently than an adult. Rule 4.1 set out below mandates Member States to
refrain from fixing a minimum age of criminal responsibility that is too low, bearing in mind
the facts of emotional, mental and intellectual maturity.

4.1 That the International Conventions are in contravention with the constitution of Indica.

The republic of Indica is a signatory to a various convention which protects the right of a
children. The UNCRC was ratified by Republic of Indica agreeing in principles all articles
except with certain reservation on issue on relating to a child labour and the Juvenile Justice
Act, 2015 did not consequently bring in in to adhere to the standards set by the convention.

As Indica is a ratified member Indica is required to undertake all appropriate measures to ensure
that rights of the children with regards to the juvenile justice, care, protection and adoption.
The standing committee observes that the Juvenile Justice Act, 2015 violates UNCRC and
other international treaties as it differentiates between children below 18 years of age. The
UNCRC also states that the ratified country should treat every child under the age of 18 years
in the same manner and not to try them as an adult. Art. 40 of UN Convention on the rights of
the child defines juvenile justice as:

“Children’s who are accused of breaking the law have the right to legal help and fair
treatment in a justice system that respects their rights. The government are required to set a
minimum age below which children cannot be held criminally responsible and to provide
minimum guarantees for the fairness and quick resolution of judicial or alternative
proceedings.”

In the instant case the children are not been treated as a juvenile even when they are ratified
members of UNCRC and they are still not abiding the treaties regarding this matter.

Article 51(c) of The Constitution of Indica76 states that the State shall endeavour to “foster
respect for international law and treaty obligations in the dealings of organized peoples with
one another”. It may be said that the distinction in article 51(c) between ‘international law’ and
‘treaty obligations’ is that the term ‘international law’ refers to international customary law.
The acceptance of such an approach would mean that customary international law is not
incorporated into Indian municipal law ipso facto (cf. the British and American practice). In

76
parimateria to The Constitution of India, 1950

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league with this approach is the contention that article 51(c) reduces the position of
international law in India to a mere directive principle.

In several cases Directive principles are given status of fundamental rights as new dimension.
In Re Kerala Education Bill,77 “The Supreme Court observed that though the Directive
Principle cannot override the fundamental right, nevertheless, in determining the scope and
ambit of fundamental rights the court may not entirely ignore the directive principles but should
adopt the principles of harmonious construction and should attempt to give effect to both as
much as possible”.

There is no antithesis between the Fundamentals Rights and the Directive Principles. They are
meant to supplement one another. Granville Austin,78 has described the fundamentals rights
and the directive principles as the “Conscience of our Constitution”.

In Kesvananda Bharti v. State of Kerala,79 the Hon’ble Supreme Court has said that
“Fundamental Rights and Directive Principles aim at the same goal of bringing about a social
revolution and establishment of a Welfare State and they can be interpreted and applied
together. They are supplementary and complementary to each other. It can be well be said that
directive principles prescribed the goal to be attain and the fundamental rights lay down the
means by which that goal is to be achieved. In the case of Minerva Mills’ v Union of India80
the Hon’ble Supreme Court by 4 to 1 majority struck down Art 31-C as amended by 42nd
Amendment as unconstitutional on the ground that it destroys the “basic feature” of the
Constitution. The majority observed that the constitution is founded on the bed rock of the
balance between part III and part IV to give absolute primacy to one over the other is to disturb
the harmony of the Constitution which I the essential feature of the basic structure the goal set
out in part IV have to be achieved without the abrogation of the means provided for by part III.
In number of decisions the Hon’ble Supreme Court has given many directive principles of state
Policy the status of fundamental rights. Thus both Directive Principles and Fundamentals
Rights should go hand in hand similarly the International Law as well as the Municipal Law
should go hand in hand.

It is respectfully submitted that the interpretation of international treaties and convention is


governed by Art 31 and 32 of the Vienna Convention on the Law of Treaties of 1969. When

77
AIR 1957 SC 956
78
Cornerstone of a Nation (Indian Constitution) by Granville Austin, Pg no. 75
79
AIR 1973 SC 1461
80
AIR 1980 SC 1789

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Statutes are enacted to give effect to any treaty of Convention, Art 31 and 32 of the Vienna
Convention becomes relevant for the interpretation of such Statutes. Art 31 and 32 of the
convention read thus.

Art 31: (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and purpose.

Art 32: “Recourse may be had to supplementary means of interpretation including the
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of Art. 31, or to determine the meaning when the
interpretation according to Art 31;

(a) Leaves the meaning ambiguous or obscure; (or)


(b) Leads to a result which is manifestly absurd or unreasonable.

Hon’ble Supreme Court has followed the above principle and has interpreted municipal laws
so as to give effect to the International Convention or Treaties.

Article 5181 of The Constitution embodies the object of Indica in the international arena, but it
does not lay down that international treaties or agreements entered into by Indica shall have the
force of municipal law without appropriate legislation. In other words, Indica’s obligations
under an international treaty cannot be enforced, unless such obligations are made part of the
law of this country by means of appropriate legislation.82 Article 253 is in conformity with the
object declared by article 51(c). Treaty-making, implementing of treaties, etc., is a subject of
Union legislation, under Entry 14 of the Union List.

Legislation would be required to give effect to a treaty:

(a) where it provides for payment of money to a foreign power83;


(b) where justifiable rights of the citizens or others are restricted or infringed84;
(c) Where laws of the State are modified.

81
“The State shall endeavour to –
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one
another; and
(d) encourage settlement of international disputes by arbitration.”
82
Civil Rights Vigilance Committee, SLSRC College of Law, Bangalore v. Union of India, AIR 1983 Kant. 85
83
Ibid.
84
Maganbhai Ishwarbhai Patel v. Union of India AIR 1969 SC 783

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In the instant case there has been a violation of the justifiable rights of the citizens and the state
has also modified the laws due to which the juvenile in conflict with law has to suffer at large.
Municipal courts may however use the Covenants as an aid to the interpretation of Statutes, by
applying the doctrine of harmonisation85. Thus the petitioner humbly submits that the
municipal law and the international law should not be in contravention to each other and should
go hand in hand as both of the laws are equally important.
International treaties vis-à-vis Statute law:

Hersch Lauterpacht, once a judge of the International Court of Justice, regarded international
law as superior to national law because, in his view, international law furnished the best
guarantee for protection of the human rights of individuals. International law was said to
control or override national law because the latter could be less trusted to protect individuals.
It is well-established in India that in case of conflict between international treaties and clear
and unambiguous statute law, courts will give effect to statute law. If statute law is ambiguous,
the courts adopt the doctrine of harmonious construction so as to avoid conflict between
international treaties and statute law. In other words, Indian courts construe ambiguous statute
law in the context of international treaties.86

In the instant case the Juvenile Justice Act, 2015 is ambiguous in nature because sec. 2(12)87
defines juvenile below the age of 18 years whereas, in sec.1588 the juveniles who commits
serious offence are to be treated as an adult criminals. Thus the law is ambiguous where the
juveniles are not being treated equally where juveniles are itself a class and it cannot further be
classified. As there is a conflict between the International Law and the Municipal Law there
should be harmonious construction to avoid the conflicts between them.

In Pratap Singh v. State of Jharkhand89, the Supreme Court observed that the courts can refer
to and follow international treaties, covenants and conventions to which India is a party
although they may not be a part of our municipal law. A contextual meaning to a statute is
required to be assigned having regard to not only the Constitution but also international law
operating in the field. The Court held that the Juvenile Justice (Care and Protection of Children)
Act, 2000 should be interpreted in the light of the Universal Declaration of Human Rights as

85
Cf.Kubic v. Union of India, AIR 1990 SC 605 (614-615)
86
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667
87
Juvenile Justice (Care and Protection of Children) Act, 2015
88
Ibid
89
(2005) 3 SCC 551, pp. 578-579

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well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice
1985 (Beijing Rules).

According to the delegation theory, various national legal systems are derived by way of
delegation from the international legal system. Constitutional rules of international law have
delegated to each state constitution the right to decide when the provisions of a treaty or
convention are to come into force and the manner in which they are to be embodied in the
internal law. There is no fresh creation of rules of municipal law, but merely a prolongation of
one single act of creation. There is no specific adoption of international law by the distinct
municipal law. Since international law is essentially a part of the same legal order as municipal
law, and as superior in nature, it can be deemed as incorporated in municipal law. The doctrine
of incorporation stipulates that international law becomes part of national law without the need
for express adoption by the national legal institutions.

In Vellore Citizens Welfare Forum v. Union of India90, the Supreme Court held that “it is almost
accepted proposition of law that the rules of customary international law which are not contrary
to the municipal law shall be deemed to have been incorporated in the domestic law. Monism
is the idea or the monist theory assumes that international law and national law are simply two
components of a single legal system or body of knowledge, and regards ‘law’ as one entity.
Both are interrelated parts of the one single legal structure and form a unity. It is believed that
both originate from a single grundnorm. Mediately or immediately, both are aimed at
regulating the conduct of individuals.

It is respectfully submitted that the Juvenile Justice Act has been adopted from the UNCRC
and Indica is a ratified member of it so the state has adopted this theory and hence the
International Law and the Municipal Law should be harmonious in nature and should go hand
in hand. In the case of international law derived from treaties, there must be a transformation
of the treaties into national law.

90
AIR 1996 SC 2715

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PRAYER:

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1) TO ISSUE THE WRIT OF PIL.


2) TO COMPENSATE FOR A BREACH OF FUNDAMENTAL RIGHTS.
3) TO HOLD THAT SECTION 15 OF THE JUVENILE JUSTICE ACT (2015) IS
UNCONSTITUTIONAL.

All of which is respectfully submitted and for such act of kindness the Petitioner shall be duty
bound as ever pray.

Sd/-

(COUNSEL FOR PETITIONER)

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