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TEAM CODE- LA-EQUITY

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

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
CONSTITUION OF INDICA IS MAINTAINABLE OR NOT………………………………………..13

1.1 Petitioner doesn’t have a locus standi in the instant case…………..…….………… 13


1.2 No violation of fundamental rights…………………………………………………...13
1.3 Existence of an alternative remedy …………………………………………………..14

ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ART 14, 21 AND RULE OF LAW...………...…………………………………………...……..14
2.1 The authority has applied the principle of unarbitrariness ……………………….……….15
2.2 The authorities have applied principle of reasonableness and the impugned act is well within
the contours of the procedure established by law ………………..………………………….…..15

2.3 The authorities have applied principle of reasonableness to the object or purpose of the
legislation ……………………………………………………………………………….……16

2.4 That the implementation of the juvenile justice act, 2015 violates article 21………….……..17
2.4.1 Right of fair trial has not been vioalted ………………………………………..………..17
2.4.2 Right of opportunity to be heard has not been violated ………………………..…..……..19

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


ACT, 2015 UNCONSTITUTIONAL .............................................................................................19

3.1 That the mental faculty of every child can be considered equal or
not.............................................................................................................................................22

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

RESPECT OF JUVENILES ………………………………………………….………………….24

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4.1 That the international conventions are not in contravention with the constitution of
Indica.................................................................................................................................. 25
4.2 Art.51 as a guide to interpretation…………………………………………….…......26

PRAYER………………………………………………………………….…………………...32

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LIST OF ABBREVIATIONS:
ABBREVIATIONS EXPANSIONS
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
SR.NO CASES PG.NO
1. A.D.M., Jabalpur v. Shivakant Shukla 26
2. Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 13
SC 1539
3. Asstt. Collector of Central Excise v. Jainson Hosiery 14
4. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726 14
5. Bhat v. Union of India, (1990) 3 SCC 65 26
6. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457 14
7. Fertilizer CorpnKamgar Union v. Union of India, (1981) 1 SCC 568, 584 16
8. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1 15
9. Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 26
10. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 15
11. Krishnan v. State of Madras, AIR 1951 SC 301 17
12. Magan bhai Ishwar bhai Patel v. Union of India AIR 1969 SC 783 26
13. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 14,17
14. Mirza Ali Akbar Kashani vs United Arab Republic And Anr, 1966 SCR (1) 26
319
15. Moti Lal v. Uttar Pradesh, AIR 195 ALL 257(EB) 26
16. Namit Sharma v. Union of India, (2013) 1 SCC 745 14

17. People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568 26
18. Praveen Singh v. State Of Punjab, (2000) 8 SCC 633 15
19. Ramjilal v. Income Tax Officer, AIR 1951 SC 97. 14
20. RomeshThapar v Union of India, AIR 1950 SC 124 13
21. Secretary, Govt. of India v. AlkaSubhashGadia, 1990 SCR, Supl. (3) 583 14
22. Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411 15
23. Subramanian Swamy v. Raju, (2014) 8 SCC 390 24
24. Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123 15
25. Union of India v. Azadi BachaoAndolan, AIR 2004 SC 1107 31
26. Vishaka v. State of Rajasthan, AIR 1997 SC 3011 30

Sl. No COURT DECISIONS AROUND THE WORLD Pg. No


1. Mortensen v. Peters (1906) 8 Fraser, 93 25
2. Niboyet v. Niboyet 25
3. Jolly George verghese and anr. V. The Bank of Cochin, 1980 26
4. Entertainment Network(I) Ltd. V. Super Cassette Industries 26

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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)

9) Cort R. Bartol, Anne M. Bartol, CURRENT PERSPECTIVES in FORENSIC


PSYCHOLOGY and CRIMINAL BEHAVIOR (2nd ed.)

10) John Muncie, Gordon Hughes, YOUTH JUSTICE Critical Reading

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

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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 has filed this writ petition under Article 32 of The Constitution of India for the
violation of fundamental rights enumerated in Part III of the Constitution. The Respondent
maintains that no violation of rights has taken place. Therefore, this Hon’ble court need not
entertain its jurisdiction in this writ petition.

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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 INDIC IS MAINTAINABLE OR NOT?

[ISSUE 2]
WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ARTICLE 14, 21 AND RULE OF LAW?

[ISSUE 3]
WHETHER THE SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION FOR
CHILDREN) ACT, 2015 UNCONSTITUTIONAL?

[ISSUE 4]
WHETHER THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLE IN RESPECT
OF JUVENILES?

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SUMMARY OF ARGUMENTS:
[ISSUE 1] THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE
INSTANT CASE.

The writ Petition is not maintainable in the instant case. The fundamental rights of the petitioner
have not been violated. Even so, the fundamental rights are subject to inherent limitations
which are imposed by the Constitution itself and an existence of alternative remedy is sufficient
to make the petition fail.

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


2015 DOES NOT VIOALTE ART. 14, 21 AND RULE OF LAW.

The respondent contends that the implementation of the JJ Act, 2015 by the Parliament is not
found to be arbitrary and also the right to fair trial is also not being violated of the juveniles.
Thus there is no violation of Art. 14 and Art. 21. Rule of law has also not been violated by the
proper implementation of the JJ Act, 2015 decision of the Parliament. It is made in pursuance
of ensuring fairness and transparency and instilling public faith in the examination system. The
policy decision has a sound reason behind it. Hence Article 14 and 21 is not violated in the
present case.

[ISSUE 3.] THAT SEC. 15 OF JJ ACT, 2015 IS CONSTITUIONAL.

All the requirements of instituting section 15 of JJ Act, 2015 have been filed in the instant case.
First it “does not Violates the very essence of Juvenile Justice Act”1. Secondly it does not
violates various Fundamental Rights2. The act committed by Satya and Shashi was done
maturely.

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


PRINCIPLES IN RESPECT OF JUVENILES.

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice
(Care and Protection of Children) Act. 2015 is very much in consonance with the provisions
of the Constitution of Indiana. All the children in the age group of 16-18 years are treated

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.

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equally and no two children in the age group of 16-18 years who commit a heinous offence are
proposed to be treated differently under the current Act. Hence, there will be not differential
treatment of such children on any ground.

The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly defined
and classified offences as petty, serious and heinous, and defined differentiated processes for
each category. The present act which has been amended is very well in consonance with the
Articles of the Constitution of Indica. The Republic of Indica is a signatory to various
conventions which protect the rights of Children.

The United Nations Convention on Rights of Child was ratified by the Republic of Indica in
1992 and the 2000 Act was consequently brought in to adhere to the standards set by the
Convention. The countries who are a signatory to the convention have certain international
commitments. However, by only becoming a mere signatory to the convention does not make
any country legally bound to follow the provisions of the convention. It is only when then
country has ratified such provisions, it becomes legally bound to abide by them.

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ARGUMENTS ADVANCED:

1. THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF


THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE.
A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement
of Fundamental Rights3, as guaranteed by part III of the Constitution4.

In the present case firstly, there has been no violation of the fundamental rights and secondly,
the petitioner has failed to exhaust his alternative remedy. The action taken by the State was in
furtherance of the principle of social justice and thus cannot be termed as arbitrary or as one
which was without the application of the mind.

1.1 Petitioner has no locus standi in the instant case:

The respondent submits that the Court has held that only if there is a violation of
Fundamental Rights can it step in under the Jurisdiction of Article 325 . The petitioner is
raising a mere scholarly objection, without any locus standi. No one has been displaced,
there has been no forceful assimilation and no harm has been done to the juveniles. Hence
when there is no damnus, the Petitioner cannot seek a remedy. Moreover, the enactment of
the Juvenile Justice Act, 2015 has added a new dimension to the existing Juvenile Justice
Act, 2000. The Juvenile Justice Board has explicit power to hear the matters concerning
the Juvenile Justice Act, 2015. When an authority has been specifically set up to hear the
issues pertaining to the nature of this writ petition, the petitioner need not bring up this
issue before the Hon’ble Court.

1.2 No violation of fundamental rights:


The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated6.
It has been held that if a right, other than a fundamental right is claimed to be violated then
such questions can be addressed only in the appropriate proceedings and not on an

3
Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as
guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.
4
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.
5
Romesh Thapar v Union of India, AIR 1950 SC 124
6
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).

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application under Art. 327 . In the instant case, that there has been no direct and inevitable
effect on the fundamental rights8. Further any violation of fundamental right as claimed by
the petitioner is illusionary. 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 and Article 21 of
the Constitution9.
1.3 Existence of an alternative remedy:-
It has been held that Art. 32 confers ‘extraordinary jurisdiction’, the same must be used
sparingly and in circumstances where no alternative remedy is available.10Art. 32(1)
confers a right to move the Hon’ble Supreme court by ‘appropriate proceedings’.
Appropriate proceedings include procedural factors such as res judicata11 , delay in filing
the petition and parallel proceedings12 in another court. The petitioner in the instant case
had the remedy to approach the Hon’ble High Court13. 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. It was held this Hon’ble apex court in Asstt. Collector of Central Excise v.
Jainson Hosiery14 where there is alternative statutory remedy court should not interfere
unless the alternative remedy is too dilatory or cannot grant quick relief. Thus, the
respondents humbly submit that the present writ petition is not maintainable on the ground
that alternative remedy has not been exhausted. Considering the points raised, it is
submitted that the petition must fail.

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


DOES NOT VIOLATE ARTICLE 14, 21 AND RULE OF LAW
It is humbly submitted Art. 14 of the Indica Constitution envisage equal protection or equal
treatment in similar circumstances15. Art. 14 is a basic structure.16 The requirement of the
validity of a law with reference to Art. 14 is that it should not be arbitrary and classification

7
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
8
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745.
9
Constitution of Indica, 1950 parimateria to the constitution of India, 1950
10
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.
11
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
12
Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001).
13
Article 226 of Constitution of Indica, 1950 parimateria to the constitution of India, 1950
14
AIR 1979 SC 1889
15
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
16
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.

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should be reasonable17. It is submitted by the respondents that the implementation of the


Juvenile Justice Act, 2015 is not violative of Art.14 and the Rule of Law dealt by the juveniles.

2.1 The authority has applied the principle of unarbitrariness:

There is no cut through strait jacket formula to evolve objectively, what amounts to
arbitrariness but can only be culled out from circumstances and facts18. The respondent submits
that the Juvenile Justice Act, 2015 has not been framed arbitrarily. The decision has been taken
in consonance with various provisions of various acts in the interests of social justice. Art. 14
secures all persons within the territory of India against arbitrary law as well as arbitrary
application of laws19. In the instant case the Juvenile Justice Act, 2015, as precautionary step,
is issued in order to curb the heinous offences which are been dealt by the juvenile and the
crime committed by the children between the ages of 16-18 years is 67%20. Considering the
fact that the Executive has taken steps to implement measures to insure the safety of women in
public transport21. In the view of the Justice Verma Committee the protests are clearly a call to
modern India to renounce old ways of thinking, looking and acting towards women and are
strong, positive move towards true empowerment22.

As we are also of the opinion that the rape of Nirbhaya and the sacrifice of her life only
reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of
arcane, misogynist traditions and practices which are at variance with the Constitution, which
seeks to debilitate and handicap women23. Thus the impugned act24 passes the test of
arbitrariness and is well within the prescribed realm of Art. 14.

2.2 The authorities have applied principle of reasonableness and the impugned act is well within the
contours of the procedure established by law:

It is submitted that Art. 14 as including the principles of reasonableness only requires the
government to act on reasonable grounds25. The court function is to check whether the decision

17
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411.
18
Praveen Singh v. State Of Punjab, (2000) 8 SCC 633.
19
JUSTICE VERMA COMMITTEE report (para 15) Pg. No. 29
20
National Crime Report Bureau (2013), The Handbook Of Juvenile and its Delinquency. Pg. No.55
21
Orders go out for CCTVs, bus checks, petrol vans, Indian Express, Delhi January 10,2013., JUSTICE VERMA
COMMITTEE report (para 37)
22
JUSTICE VERMA COMMITTEE report (para 39)
23
JUSTICE VERMA COMMITTEE report (para 34)
24
Juvenile Justice( Care and Protection of children), 2015
25
Durga Das Basu's Commentary on the Constitution of India, 1360 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).

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taken is fair and free from the taint of unreasonableness and has substantially complied with
the norm of procedure26. The impugned act is no way takes away Fundamental Rights or
vitiates any procedure established by law. In fact, in “Sarkar” it was noted that “classification
implies discrimination between persons classified and those who are not members of that class.
….. Atchison, 30 Topeka & Santa Fe R. Co. v. Matthews, that upon the class or caste duties
and burdens different from those resting upon the general public …… indeed the very idea of
classification is that of equality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality”27. The Juvenile Justice Act, 2015 is
reasonable because the crime committed by the juveniles has increased a lot and due to this the
women are not entitled for the equal protection of laws. Any offences which are committed to
them should not be tried in a facially compliant manner, but in an effective manner, so that
there is honesty of purpose, integrity of prosecution as well as successful conviction of such
offences, for which the state must evolve a dynamic review mechanism. Thus the impugned
act passes the test of reasonableness.

2.3 The authorities have applied principle of reasonableness to the object or purpose of the
legislation:

The object or the purpose of the Juvenile Justice Act, 2015 is being fulfilled and it has not been
drafted hastily or arbitrarily. The object of the act28 is being fulfilled as there are various
heinous offences such as rape, murder, kidnapping, burglary which has been increased day by
day by the juveniles between the age of 16-18 years29. In the case of Nirbhaya the sacrifice of
her life only reinforces that India requires “De Facto” equality, freedom from superstition,
renunciation of arcane, misogynist traditions and practices which are at variance with the
Constitution, which seeks to debilitate and handicap women30. Also in the case of Banerjee
and Mohanty, 2013 the girl was brutally raped by the juvenile. Thus the object of the Juvenile
is being fulfilled of treating the juveniles as an adult criminals who is between the age group
of 16-18 years. It is respectfully submitted that as the crimes are being increased by the
juveniles hence the tougher laws are to be implemented. The logical reasoning to crime as a
rational behaviour is tougher punishment as a deterrent. Specific Deterrence discourages
offenders from repeating their crimes by threatening to punish them more harshly the next time.

26
Fertilizer Corpn Kamgar Union v. Union of India, (1981) 1 SCC 568, 584.
27
JUSTICE VERMA COMMITTEE report (para 16)Pg. No. 29
28
Juvenile Justice (Care and Protection of Children), 2015
29
National crime Report Bureau (2013), The Handbook of Delinquency and Juvenile Justice, Pg. No. 55,56,57.
30
JUSTICE VERMA COMMITTEE report (para 34)

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Tougher laws and sanctions are effective as deterrents against crime and also the effectiveness
of punishment as a deterrent to crime depends on three factors that is creativity, speed and
severity31. Thus the harsher laws on the juveniles are been implemented so that the heinous
offence committed by the juveniles stops with a good effect. The object of the act32 is to
provide equality to women as women are entitled not only to equality under Article 14 but are
also entitled to the equal protection of the laws. The State is responsible to live and administer
the Constitution. As far as the rights of women are concerned, the State has failed to fulfil its
tryst and pledge with the Constitution to create both, atmospheric climatic and ground
conditions for their welfare and benefit. Thus to fulfil the rights and to protect women and
children the act has been amended and hence the impugned act passes the principle of
reasonableness and object or purpose to the legislation.

2.4 That the implementation of the juvenile justice act, 2015 violates article 21?
It is humbly submitted Art. 21 of the Indica Constitution envisage the protection of life and
personal liberty. In the instant case of Satya and Shashi the right of opportunity to be heard and
the right of natural justice has not been infringed because in the act33 . ‘Procedure established
by Law’ in Art. 21 means the law prescribed by Parliament at any given point of time.
Parliament has the power to change the procedure by enacting a law by amending it and when
the procedure is so changed, it becomes ‘Procedure established by law’34. Further in order to
establish violation of Art. 21 the act should be subjected to the equality test of Art. 14 and test
of reasonableness under Article 1935. The Art. 14 does not strike at arbitrariness and also the
test of reasonableness is also not been satisfied. It is submitted by the respondents that the
implementation of the Juvenile Justice Act, 2015 is not violative of Art. 21.

2.4.1 Right of fair trial has not been violated:

The term “Natural Justice” is technical terminology for the rule against bias (nemo iudex in
causa sua) and the right to a fair hearing (audi alteram partem)36. Conducting a fair trial for
those who are accused of criminal offences is the cornerstone of democracy. Conducting a fair
trial is beneficial for both that is to the society as well as to the accused. Right to fair trial is

31
Juvenile Justice by Richard Lawrence & Mario Hesse( Pg. No. 30)
32
Juvenile Justice (Care and Protection of Children), 2015
33
Ibid.
34
Krishnan v. State of Madras, AIR 1951 SC 301
35
Maneka Gandhi v. Union of India.AIR 1978 SC 597
36
Black law Dictionary

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enriched in Art. 21. In the act37 it has not been said that a 16 or a 18 year old child goes to a
jail. It says that suppose a child has committed a crime in the heinous category38 the juvenile
will go before a Juvenile Justice Board the board does not have a police, lawyer but it has
psychologist, social worker and also it has experts39. Their job is not to condemn them rather
they will just decide that whether the crime committed by the juvenile was committed in an
adult mind or in a childish mind.

If Juvenile Justice Board gives a decision that the child has committed the crime with an adult
mind then the juvenile will not be sent to the jail and kept with the hardened criminals but
rather the juveniles in conflict with law would be kept for 3 years in the Borstals School which
is known as place of safety and the psychologists and the experts would be giving the treatment
to the Juveniles in conflict with law and they would be checking up the mental capacity and
once they are reformed the juveniles in conflict with law would be released and would not be
sent to the jail for rest of the time span but if they are not reformed then the juveniles in conflict
with law will be staying at the Borstals School till the age of 21 years and then for the rest of
the time span would be sent to the jail. The juveniles in conflict with law are provided with the
same access to justice as the adults are accessed. The juvenile in conflict with law would be
appearing before the court and then the Children’s Court will decide whether the juveniles
would be punished under an adult system or into a juvenile system. Thus if the juveniles in
conflict with law are not satisfied with the judgment they are provided with another chance
where they can approach the Hon’ble High Court or the Hon’ble Supreme Court. Thus by this
act40 a large number of heinous crimes committed by the juveniles between the age of 16-18
years would be stopped and the juvenile crime is the fastest rising and hence to stop it some of
the harsher laws are to be made.

In the instant case of Satya and Shashi both of them are minors and their right to natural justice
has not been violated as the case was sent to the Juvenile Justice Board and a preliminary
assessment was about to be made under section 15 of Juvenile Justice Act, 2015 and the
preliminary assessment is not a trial period but it is an enquiry period where both of them would
be tested by the psychologists and the experts whether the crime committed by them is done in
an adult mind or a childish mind. By a mere apprehension they approached the Hon’ble

37
Juvenile Justice (Care and Protection of Children), 2015
38
Juvenile Justice (Care and Protection of Children), 2015 (sec.2(k))
39
According to section 15 of Juvenile Justice (Care and Protection of Children), 2015
40
Juvenile Justice (Care and Protection of Children), 2015

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Supreme Court that their fundamental right under Art.21 that is right to natural justice has been
violated and they would be tried as adult and the case would be dealt by the Sessions Court.

Thus there has been no violation of Art.21 as there has been just a mere apprehension and
assumption by the minors but there has been no verdict which has been passed by the Juvenile
Justice Board.

2.4.2 Right of opportunity to be heard has not been violated:-

The right of opportunity is enriched under Art.21 of the Constitution41 has not been violated
because the case of the juveniles has been sent to the Juvenile Justice Board and there is a
preliminary assessment which is about to be made under section 1542. The trial period has not
been started due to which right of opportunity has not been violated and if Satya and Shashi
would be tried as an adult criminal then they would be appeared before the court where they
would be given a chance to give their justification as there is a rule in la that both the parties
are to be heard in the court when trial period starts.

The respondent humbly submits that there has been no violation of Ar. 21 of the Constitution.

3. THAT THE SECTION 15 OF JUVENILE JUSTICE (Care and Protection for


Children) ACT, 2015 IS CONSTITUIONAL.
Before delving deeper into the facts of the case it is important for us to understand with clarity
the concept of a juvenile. In common usage the term juvenile is used to refer to a person who
has not attained the age of majority i.e. not completed the 18th year of his birth. The various
statues in operation in our countries have defined the idea a juvenile in several statutes.

§ 2(k)43 a “juvenile” or “Child” is a person who has not completed eighteenth year of age.

§ 2(12)44, “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.

41
Constitution of Indica, 1950 parimateria to the constitution of India, 1950
42
Juvenile Justice (Care and Protection of Children), 2015
43
Juvenile Justice (Care and Protection of Children) Act, 2000
44
Juvenile Justice (Care and Protection of Children) Act, 2015

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More than a century ago ‘Abraham Lincoln’ said “a child is a person who is going to carry bon
what you have started. He is going to sit where you are sitting, and when you are gone attend
to those things which you think are important”45.

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 excellence46.

Almost all the countries have developed Juvenile Justice System to deal with young offenders.
In India scene for the children has changed a lot and their problems and related issues have
been given attention and are being discussed at various forums. A good number of our children
on account of socio economic reasons have adding themselves in the list of delinquent child.
There is need to give specific importance to children in society. Importance of child is well
recognised since ages. Nowadays children are under tremendous social pressure due to new
changing social perceptions and due to this they try to commit crimes.47

Sec. 15 of JJ Act, 2015 says that suppose a child commits a crime in the heinous category
section 2(k) he will then go before a Juvenile Justice Board and the Board does not have a
police, a lawyer, it has psychologists, social workers and it has experts. Their job is not to
condemn the children’s. As the board will just decide that whether the child has committed the
crime in an adult mind or in a childish mind.

Sec. 15 of JJ Act, 2015 is constitutional as nowhere in the Juvenile Justice (Care and Protection
of Children) Act, 2015 says that once they are tried as an adult criminal they will be sent to the
jail but they will be provided with the lawyers or their respected parents can also hire a lawyer.
They are provided with the same access of justice as adults are and hence the children will be
appearing before the Children’s Court where it will be decided that whether they will be tried
as an adults or a juvenile where they get a second chance. Even it says that they are tried as an
adults they have the power to appeal like anyone else like in High Court and Supreme Court
where no fundamental rights of the juvenile are been violated where they get an opportunity to
be heard and also their right of natural justice is not been violated. If the juveniles are been

45
Juvenile justice system and delinquency in India
46
Legal papers and comments, Juvenile justice in India, Friday 17th March, 2016.
47
Conclusions and suggestions of Juvenile Justice, Chapter VI

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tried as an adults they will be put into the children’s jail that is a Borstals Schools or also known
as place of safety.

In a recent rape case48 the court sentenced a teenager to 3 years in a detention centre. Although
in response to public rage, the government fast tracked tougher laws against sex crimes, it
resisted calls to change the juvenile law and return the adult age from 16-18. The trial was held
behind closed doors to protect his identity and media were barred from reporting on any details
of proceedings. During the trial the juvenile had been held at detention facility for violent young
offenders in Delhi and kept away from other inmates.

As we are also of the opinion that the rape of Nirbhaya and the sacrifice of her life only
reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of
arcane, misogynist traditions and practices which are at variance with the Constitution, which
seeks to debilitate and handicap women49.

India’s juvenile is undergoing what the USA went through during 1980-90. During this period
USA felt that there was an “impending doom” due to a rapid increase in violent crimes by
juvenile. Such fear and perception induced major changes in laws and resulting in imposing
tougher sanctions on juveniles across the country. Public fear and outrage, convinced policy
makers to take “tough” and “drastic measures” such as trying juveniles as adults, making it
easier to transfer juveniles to adult court, using blended sentences reducing confidentially
protection for juveniles and putting public safety and accountability ahead of the best interest
of the child( Torbet and Szymanski 1998). Similarly in India an increase in violent crimes
especially sexual assault, rape, murder has caused public outrage and canons for policy makers
to reconsider juvenile law. The call has been taken to reduce the juvenile age from 18 years to
16 years and to try juvenile as an adult. The Hon’ble Supreme Court should consider and assess
a young offenders “emotional, intellectual and mental maturity as a juvenile rather than being
the decision of the age”.

It is respectfully submitted that the present data on juvenile crime by IPC and special and local
laws in 2012 by age and gender, the number of crimes are committed in three age groups i.e.
7-12 years, 12-16 years and 16-18 years. According to the NCRB report (2013) only 2% of the

48
Banerjee and Mohanty(2013)
49
JUSTICE VERMA COMMITTEE report (para 34)

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juvenile crime is committed by the children below the age of 12 years, 31% by the children
between the ages of 12-16 years and 67% by children between the ages of 16-18 years50.

The logical response to crime as rational behaviour is tougher punishment as a deterrent.


Deterrence theory holds that punishment has a general effect, discouraging the general public
from engaging in criminal activity by striking fear in them with threat of punishment. Specific
deterrence discourages offenders from repeating their crimes by threating to punish them more
harshly the next time. Tougher laws and sanctions are effective as deterrents against crime:
Most persons after all do obey most of the laws most of the times. The effectiveness of
punishment as deterrent to crime, however, depends on three factors: certainty, speed and
severity. Offenders will be deterred from crime only if they believe they are likely to be caught,
convicted and punished. Furthermore, punishment is more effective if it is administered soon
after the violation, and if it is sufficiently severe.

Thus it is respectfully submitted that sec. 15 of JJ Act, 2015 is constitutional.

3.1 That the mental faculty of every child can be considered equal or not:-

In the instant case the two minors Satya and Shashi has committed rape which is a heinous
offence. According to sec. 15 of JJ Act, 2015 states that young offender’s mental maturity,
emotional and intellectual maturity has to be checked. In the instant case both the juveniles
were found mentally matured. According to Cesare Beccaria (1738-1794) and Jeremy Bentham
(1748-1832) their primary concern was not to explain criminal behaviour but to develop a legal
system by which the punishment would fit into the crime. According to “Classical Theory”
person commits crime simply because they have made a rational decision to do so. Classical
theory has thus been referred as utilitarian approach to crime. Lawrence Cohen and Marcus
Felson developed a version of rational theory known as “Routine activity theory”. They
concluded that crime is closely related to interaction of three variables associated with the
“routine activities” they are: the availability of suitable targets of crime; the absence of capable
guardians and the presence of motivated offenders51. In the instant case as Satya and Shashi
had suitable crime targets in front of their eyes as both of them shared their feelings of hatred
towards Vansh and Vani and when Vansh had abused to Satya in front of the society and Shashi

50
The Handbook of Juvenile Delinquency and Juvenile Justice, edited by Marvin D. Krohn, Jodi Lane

51
Juvenile justice Richard Lawrence and Mario Hesse

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was the only witness. Thus Shashi was a motivated offender for Satya and both of them decided
to take revenge from them.

According to cultural deviance theory by Walter Miller (1958), number of “focal errors” that
dominate lower class cultures and often run counter to lawful, middle class behaviour52:

1. Trouble: getting into trouble and being able to handle trouble are valued, so trouble
making behaviour such as fighting, drinking, and sexual misconduct are quite accepted.
2. Toughness: surviving in lower-class subcultures requires toughness, so physical
strength, fighting ability, and mental toughness are valued over being soft and
sentimental.
3. Smartness: formal education is not valued as much as being “street smart” and able to
outsmart or “out-con” one’s opponent,
4. Excitement: similar to “trouble”; members of the lower class seek to enliven their tough
life through excitement such as gambling, fighting, getting drunk, and sexual activity.
5. Fate: members of the lower class believe there is little they can do to change their
course in life, and that any good that may come their way is simply through luck and
good fortune
6. Autonomy: lower-class youth learn to value being independent, and not depend on
anyone else, particularly authority figures such as police, parents, and teachers.
In the instant case Satya belongs to a poor family where according to Walter Miller those who
belongs to lower class has the toughness and smartness where they can easily control their
emotions and they have the physical strength and the mental capability which are valued over
the sentiments and kindness.

In the instant case it was very nicely planned by both of the minors. On 5th March 2016, Satya
took leave from Mr. Rajan for 3 days from work from visiting his village and on the very next
day 6th March 2016 Mr. Rajan left to attend some business meeting in another city. As it was
Sunday Mrs. Rajni had planned to visit an exhibition with her family but in the absence of her
husband she decided to continue the programme with her children. Satya had prior knowledge
about the aforesaid plans. At 6:30 p.m. Mrs. Rajni along with her children reached the
exhibition and she was busy with her friends and both the children’s of her were together. At
8:30 p.m. Vansh noticed that her sister was missing but could not find her anywhere. At around

52
Ibid.

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10:00 p.m. when the guard came to switch off the lights of the basement he found a girl lying
unconscious.

Thus the maturity level of understanding is that the intention of the crime is deciding factor. In
the instant case there was a proper plotting and planning done by the minors as it is shown by
the act that they decided to take revenge from Vani and not Vansh as both of them had hatred
feelings towards Vansh to a greater extent rather than Vani.

The conduct of the minors clearly shows that both of them are matured enough because after
the crime committed by them when Vani started shouting for help they strangulated her and
when she was unconscious both of them ran away as per the statement of Vani.

Thus the respondents humbly submits that sec 15 of JJ Act, 2015 is constitutional and also both
Satya and Shashi are mature enough to commit the crime.

4. THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL


PRINCIPLES IN RESPECT OF JUVENILES

The Republic of Indica is a signatory to various conventions which protect the rights of
Children. The United Nations Convention on Rights of Child (hereinafter as UNCRC) was
ratified by the Republic of Indiana in 1992 and the 2000 Act was consequently brought in to
adhere to the standards set by the Convention. Specifically, it is pointed out that the practice of
statutory exclusion which ensures that perpetrators of certain grave offences are prosecuted as
adults; ‘judicial waiver’, granting discretion to special juvenile courts to waive jurisdiction and
transfer the juvenile’s case to an ordinary court of law and also the policy of concurrent
jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor to
initiate proceedings in the more suitable court are followed in foreign jurisdictions53.

The Act. Of 2015 maintains this aim and seeks to improve implementation and procedural
delays experienced by the 2000 Act. The UNCRC states that signatory countries should treat
every child under the age of 18 years in the same manner and not try them as adults. However,
many other countries who have also ratified the Convention try juveniles as adults, in case of
certain crimes. These countries include the UK, France, Germany, etc. The United States is not
a signatory to the UNCRC and also treats juveniles as adults in case of certain crimes.

53
Subramanian Swamy v. Raju, (2014) 8 SCC 390.

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The provisions of various countries cannot be overlooked while dealing with such a sensitive
issue. In United Kingdom, “Extended” custodial sentences are given to young persons if their
crime is so serious that no other alternative is suitable, or if the young person is a habitual
offender, or if the Judge thinks the person is a risk to public safety. In United States of America,
the majority age is 18 years, but persons older than 14 years may be tried as adults if they
commit serious crimes (rape, robbery, murder etc.). The state of New York pegs the age of
juvenility at 16 years, and permits the prosecution of persons aged between 13-16 years as
adults in case of serious crimes.

In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person below 16
years. A person between 16-18 years are charged and tried as adults under the judicial system
of Nepal.

Also, Countries like U.K. Canada and USA have departed from the obligations under the UN
Convention. The countries who are a signatory to the convention have certain international
commitments. However, by only becoming a mere signatory to the convention does not make
any country legally bound to follow the provisions of the convention. It is only when then
country has ratified such provisions, it becomes legally bound to abide by them. In England if
an act of Parliament is clearly in conflict with law the municipal courts are bound to enforce
that Act54 and that rule of international law shall have no validity in England.

4.1 That the international conventions are not 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 JJ Act, 2105 did
not consequently brought in in to adhere to the standards set by the convention.

Art. 51(a): Promotion of international peace

1. This art. embodies the object of India in the international sphere. But it does not lay
down that international treaties or agreements entered into by India shall have the force
of municipal law without appropriate legislation.55
2. In order to be binding on the municipal courts legislation would be required if a treaty-

54
Mortensen v. Peters, (1906) 8 Fraser, 93; Niboyet v. Niboyet, (1879) 4 PD 1(24)
55
Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 SCR (2) 913

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a. where it provides for payment of money to a foreign power56;


b. where justifiable rights of the citizens or others are restricted or infringed57;
c. Where laws of the State are modified.
In the instant case no such rights of the juvenile are been violated and the laws of the JJ Act,
2015 has been modified by the Parliament for the benefit of the society at large specially for
the security and protection of women and children’s. Thus the respondent submits that
international law should not prevail over municipal law until and unless it is ambiguous in
nature.
Art.51 as a guide to interpretation:
In the absence of contrary legislation, municipal courts in India58 would respect rules of
international law59, but if there is any express legislation contrary to a rule of International
Law, Indian Courts are bound to give effects to the Indian Law.60
In A.D.M., Jabalpur v. Shivakant Shukla61; the dissenting judgment of Justice Khanna rightly
held the view that if there is a conflict between the municipal law on the one side and the
international law or the provision of any treaty obligation on the other, court will give effect to
municipal law. Similarly in People’s Union for Civil Liberties v. Union of India,62 the Hon’ble
Supreme Court severely regulated telephone tapping which is permitted under sec 5(2) of The
Telegraph Act. The court took into consideration the right to privacy implicit in art. 21 and
recognised by art. 12 of UDHR, 1948, and art. 17 of ICCPR 1966. The foregoing principles
should extend to Art. 51 as well. Hence though the court cannot make directly make a law
which is the function of the Legislature63 or even to apply a law on its view as it should be,
which involves a question of policy, it may apply Art. 51 when there is no contrary authority
binding on the court. In the case of Entertainment Network (I) Ltd. v. Super Cassette
Industries64, the Supreme Court observed that the Court has in number of cases applied the
norms of international law, in particular, the International Covenants to interpret domestic
legislation if by reason thereof the tenor of domestic law is not breached and in case of any
inconsistency the domestic legislation should prevail, and further noted that in interpreting the

56
Ibid.
57
Maganbhai Ishwarbhai Patel v. Union of India AIR 1969 SC 783
58
Moti Lai v. U.P , AIR 195 ALL 257(EB)
59
Ibid.
60
Mirza Ali Akbar Kashani vs United Arab Republic And Anr, 1966 SCR (1) 319
61
A.D.M., Jabalpur v. Shivakant Shukla AIR 1976 SC 1207, 1291
62
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
63
Bhat v. Union of India, (1990) 3 SCC 65
64
2008 (9) SCALE 69

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domestic/municipal laws, the Court has extensively made use of international law, inter alia,
for the following purposes:
(i) As a means of interpretation;

(ii) Justification or fortification of a stance taken;

(iii) To fulfil spirit of international obligations which India has entered into, when they are
not in conflict with the existing domestic law;

(iv) To reflect international changes and reflect the wider civilization;

(v) To provide a relief contained in a covenant, but not in a national law;

(vi) To fill gaps in law.”65

The Supreme Court also observed that the courts should not be loath to refer to the International
Conventions, where the protection of human rights, environment, ecology and other second-
generation or third-generation rights are involved.66 Anzilotti propounded a different approach.
In his view, international law is conditioned by the principle ‘pacta sunt servanda’, that is,
agreements between states are to be respected, while national law is conditioned by the
fundamental principle or norm that state legislation is to be obeyed. The two legal systems are
accordingly entirely distinct.

In the instant case the rights of the women and children are to be protected as it is a duty of
the state to do so thus the international law is not taken into consideration because the act is
being committed in the territory of India therefor municipal law will prevail over international
law. There is a respect between the international treaties by the municipal law but international
treaties are not “Supreme law of land” hence municipal law will prevail over the other.

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 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.

65
Ibid., p. 92
66
Ibid., p. 94

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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.

International legal obligations are not always enforceable in the national jurisdictions of
England, the U.S. and India; national courts give effect to international law only if it does not
conflict with clear and unambiguous internal law of the nation concerned. Non-self-executing
treaties in particular require legislative action, that is, specific adoption of their provisions into
municipal law.

In the instant case the treaty has been interpreted in the 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 as there is a respect for the international treaties but as the crimes committed
by the juveniles between the age of 16-18 years have increased a lot due to which the laws
made by the parliaments for the juveniles are harsher and tougher sanctions are implemented
for the benefit of the society at large specially to women. The object of the act67 is to provide
equality to women as women are entitled not only to equality under Article 14 but are also
entitled to the equal protection of the laws. The State is responsible to live and administer the
Constitution. As far as the rights of women are concerned, the State has failed to fulfil its tryst
and pledge with the Constitution to create both, atmospheric climatic and ground conditions
for their welfare and benefit. Thus to fulfil the rights and to protect women and children the act
has been amended and hence the impugned act passes the principle of reasonableness and
object or purpose to the legislation.

In the instant case Juvenile Justice Act, 2015 is not ambiguous in nature neither it is manifestly
absurd or unreasonable because In the case of Nirbhaya the sacrifice of her life only reinforces
that India requires “De Facto” equality, freedom from superstition, renunciation of arcane,
misogynist traditions and practices which are at variance with the Constitution, which seeks to
debilitate and handicap women68. Also in the case of Banerjee and Mohanty, 2013 the girl was
brutally raped by the juvenile. Thus the object of the Juvenile is being fulfilled of treating the

67
Juvenile Justice (Care and Protection of Children), 2015
68
JUSTICE VERMA COMMITTEE report (para 34)

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juveniles as an adult criminal who is between the age group of 16-18 years. It is respectfully
submitted that as the crimes are being increased by the juveniles hence the tougher laws are to
be implemented.

It is necessary to study the practice of states69 to understand as to how they, within the
framework of their internal legal order, apply the rules of international law and resolve the
conflict, if any, between a rule of international law and a rule of national law. States generally
give effect to the rules of international law, though the procedures vary and are considerably
flexible. The doctrinal dispute to this extent is sans practical consequences. A distinction is
made between customary international law and treaty rules of international law in the practice
of states.

International law or the law of nations is primarily a system governing the relationship of
nations inter se, and for its apt appreciation it is significant to know as to how international
legal obligations are enforced in national jurisdictions, more so in today’s flat world. In close
relationship with this subject is the relationship between international law and national law or
municipal law or domestic or internal law of nations (“states”), described by reference to two
contending concepts: monism and dualism.

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. There is also an alternative theory which,
being monistic, asserts the supremacy not of international law but of municipal law; see, for
example, Wenzel’s work.70

Dualism is the position or the dualist theory assumes that international law and internal law of
states are two separate and distinct legal systems. Being different legal orders, international
law would not as such form part of the internal law of a state. Where, in particular cases, rules
of international law apply within a state, they do so as a result of their adoption by the internal
law of the state. They apply as part of the internal law of the state and not as international law.
Dualism refrains from any controversy as to supremacy of the one legal system over the other.
Each one is considered supreme in one’s own sphere and operates on a different level. The

69
Study in this Paper is limited to the practice of India, the U.K. and the U.S.
70
Oppenheim’s International Law, (1992), Vol. I, p. 54

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

positivist writers, Triepel and Anzilotti lead the exponents of dualism. According to Triepel,
there are two distinctions between national law and international law:

(i) the subjects of national law are individuals, while the subjects of international
law are states solely and exclusively;
(ii) Juridical origins of the two legal systems are different: the source of national
law is the will of the state itself, while the source of international law is the
common will (Gemeinwille) of states.
(iii) Another distinction between the two is: national law is a law of sovereign over
individuals; international law is a law, not above, but between sovereign states.

In the instant case municipal law should prevail over international law because the crime rate
of the juveniles has been increased and it is within the territory of Indica and also municipal
law takes care of an individual and if any wrong happens within the territory of Indica then it
is the duty of the state to protect the citizens rather than following the international treaties. If
the municipal law is ambiguous in nature then the international law can be taken into
consideration or else not.
Though a legislation must be interpreted in conformity with international principles, it is a
different thing to say that treaty must be given effect to without a law or in the absence of the
municipal laws71. It was held that doctrine of “monism” as prevailing in European countries
does not prevail in India. It was held that doctrine of “dualism” is applicable. A treaty entered
by Indica cannot become a law of the land and it cannot be implemented unless Parliament
passes a law under Art. 253. But making the law under that authority is necessary when the
treaty or agreement operates to restrict the rights of the citizen or others or modifies the laws
of the State. If the rights of the citizens or others which are justiciable are not affected, no
legislative measure is needed to give effect to the treaty or agreement72.

The respondent humbly submits that in the present case the act in question is not in
contravention with the Constitutional Provisions of the Constitution of Indica as well as it is
also in consonance with the principle of UNCRC and also there is respect for the international
treaties.

71
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
72
Union of India v. Azadi Bachao Andolan, AIR 2004 SC 1107

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

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

1. DISMISS THE WRIT PETITION.


2. TO HOLD THAT THERE HAS BEEN NO BREACH OF FUNDAMENTAL RIGHTS.
3. TO HOLD THAT SECTION 15 OF JJ ACT 2015, IS CONSTITUTIONAL.

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

Sd/-

(COUNSEL FOR PETITIONER)

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