TC-

XIVTH INTERNAL MOOT COURT COMPETITION 2019

BEFORE

THE HON’BLE SUPREME COURT OF KONOHA

IN THE MATTERS CONCERNING APPEALS FILED BEFORE THE

HON’BLE SUPREME COURT OF KONOHA UNDER ARTICLE 32 OF THE
KONOHIAN CONSTITUTION

MRS. Z V. STATE

TIPENDRA V. STATE

NGO V. STATE

WRITTEN SUBMISSION ON BEHALF OF PETITIONERS

FROM THE SIDE OF PETITIONER Page 1

 TABLE OF CONTENT

TABLE OF CONTENT……………………………………………..2

LIST OF ABBREVIATION…………………………………………4-5

INDEX OF AUTHORITIES…………………………………………6-9

STATEMENT OF JURISDICTION…………………………………..10

STATEMENT OF FACT……………………………………………11-12

STATEMENT OF
ISSUE…………………………………………………………......13

SUMMARY OF ARGUMENT………………………………………14-15

ARGUMENTS ADVANCED………………………………………..16-29

ISSUE I:- WHETHER THE PETITIONS FILED BEFORE THE HON’BLE COURT ARE
MAINTAINABLE OR NOT?

A. VIOLATION OF FUNDAMENTAL RIGHTS OF Mrs.Z UNDER ART. 21

B WRIT PETITIONS BY TIPENDRA AND NGO VALID

ISSUE II:- WHETHER THE RELEVANT PROVISIONS UNDER JJ ACT DEALING

WITH TRYING A JUVENILE AS AN ADULT AND THE RELEVANT PROVISIONS
UNDER IPC AND POCSO DEALING WITH AGE OF CONSENT AND THERETO, ARE
VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

A. Violation of right to equality under article 14

B. Violation of right to freedom of speech and expression under art.19

C. Drawbacks of POCSO and IPC w.r.t. age of consent for Consensual Sex

D. AGE OF CONSENT MATTERS

FROM THE SIDE OF PETITIONER Page 2

ISSUE III. WHETHER JUVENILE JUSTICE BOARD HAS EERED IN SENDING
TIPENDRA TO CHILDREN’S COURT AND CAN BE HELD LIABLE UNDER SECTION
376 IPC AND SECTION 3 OF POCSO?

A. Juvenile justice act has erred in sending Tripendra to Children Court which lead to the
violation of his fundamental rights.
B. Tipendra cannot be charged under the provision of IPC and POCSO
C. International convention for age of consent: consensual sex

ISSUE IV: Whether Prohibition on Pornography Act, 2019 is violative of Fundamental

Rights under Article 14, 19 and 21 of the Constitution of Konoha and is Unconstitutional or
not?

A. Infringement of Article 14 – Equality before law

B. Infringement of Article 19(1) – Freedom of Speech and Expression

C. Infringement of article 21 – Liberty to enjoy pornography

PRAYER………………………………....................................................30

FROM THE SIDE OF PETITIONER Page 3

 TABLE OF ABBREVIATIONS

SSC Supreme court cases

SC Supreme court

AIR All India report

HC High Court

SCR Supreme court review

IPC Indian penal code

IEA Indian evidence act

CrLJ Criminal law journal

S. or SS. section or sections

¶ Paragraph

Art. Article

u/s Under section

v. Versus

Ed. Edition

ORS. Others

ANR. Another

HC High Court

Consti. Constitution

JJ Act Juvenile Justice Act

FROM THE SIDE OF PETITIONER Page 4

IT Act Information Technology Act

POCSO Protection of Children from Sexual

Offences
IRW Act Indecent Representation Of Women Act

FROM THE SIDE OF PETITIONER Page 5

 INDEX OF AUTHORITIES

CASES

SERIAL NO. CASE NAME CITATION

1 Avinder Singh v. State of punjab air 1979 SC 321

2 Zahira Habibulla H. Sheikh v. State of 2006 3 SCC 374

Gujarat

3 Mukesh and Another v. State (nct of delhi) (2017) 6 SCC 1

and others

4 Ranjit Udeshi v state of maharashtra AIR 1965 SC 881

6 Independent thought v Union Of India (2017) 10 SCC 800

7 Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257

8 Gobind singh v. State of M.P (1975) 2 SCC 148

9 Sharat Babu Digumarti v. State (NCT of

Delhi)

10 Kamlesh vashwani v. Union of india (2014) 6 SCC 705

11 Satish Kumar Jayanti Lal Dabgar v. State (2015) 7 SCC 359

of Gujarat

12 Sharat Babu Digumarti v. state (NCT of 2016 SCC online

Delhi) SC1464

13 State of Haryana v. Janak Singh & others (2013) SCC online SC

469

14 Maqbool Fida Hussain v. Rajkumar Pundy 2008 CriLJ 4107 (del)

15 Sabarinathan V. The Inspector Of Police 2018 Mad. 490

FROM THE SIDE OF PETITIONER Page 6

16 Sunil Mahadev Patil V. State of Maharahtra 2016 (2) All MR

17 Emperor V. Dharam Prakash AIR 1926(Lahore) 611

18 L.P Agarwal V. U.O.I (1992)3 S.C.C. 526

19 State V. Ram Singh& Ors. (2013) S.C.C.

20 Kalilpur Rahman V. Emperor 1933 Rang 98,101

21 Ajay Goswami V. U.O.I 1 (2007)1 S.C.C. 143

22 Gobind V. State of MP (1975) 2 SCC 148

 Law Journals

 Vallishree Chandra & Gayarthi Ramachandran, The Right to Pornography in

India: An analysis in the Light of Individual Liberty and Public Morality, 4
NUJS L Rev, 323-336 (2011).

 Kailash Jeenger, Excessive protection to juveniles and minors: A Plea for

Legislative Amendments to the Law, 3 SCC J, 15-23 (2015).

 Ved Kumari, Juvenile Justice Bill 2014-A regressive Step, 56 JILI, 303-319
(2014).

 Chitwan Deep Singh, Prashant Pranjal & Sahil Arora, The Protection of
children From the Sexual Offences Act, 2012: A Critique of the Decision to
Raise the Age of Consent for Sexual Relations, 3 JILS, 286-301 (2011-12).

 Geetha Hariharan, Our Unchained Sexual Selves: A Case for the Liberty to
Enjoy Pornography Privately, 7 NUJS L Rev, 89-104 (2014).

BOOKS CITED

SERIAL NO. NAME

1. Durga das basu, introduction to the constitution of india, 1960 (22nd ed.

FROM THE SIDE OF PETITIONER Page 7

 1960)

2. Granville Austin, the indian constitution, 1972 (ed. 1999)

3. V.N. Shukla’s, Constitution of India, 1982 (12th ed. 2013)

4. Justice K.T. Thomas & M.A Rashid, the Indian Penal Code (34th ed.
2013)

5. Justice P. Vreddi, The Indian Penal Code, (3rd ed. 2019)

6. Kumar Askand Pandey, the Indian Penal Code, (4th ed. 2017)

7. Suman Nalwa & Hari Dev Kohli, Commentary on the juvenile justice act,
(2nd ED. 2016)

8. Dr. N. Maheshwara swamy Juvenile Justice (Care and Protection of

Children) Act, 2015, (1st ED. 2017)

9. Dr. Manjula S.R & Deepa T.N, The Children and Laws in India with
Reference to Pocso Act, 2012, (1st ED. 2018)

 STATUTES

1. The Indian Constitution 1950

2. The Indian Penal Code 1860

3. The Indian Evidence Act 1872

4. Juvenile Justice Act 2015

5. Protection of Children From Sexual Offences 2012

6. Information Technology Act 2000

FROM THE SIDE OF PETITIONER Page 8

  DATABASE REFERRED

SERIAL NO. NAME

1. WWW.SCCONLINE.COM

2. WWW.MANUPATRA.COM

3. WWW.WESTLAW.IN

4. WWW.JSTOR.COM

5. WWW.LEXISNEXIS.IN

6. WWW.HOMEAFFAIRS.GOV.AU

FROM THE SIDE OF PETITIONER Page 9

 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Konoha has the jurisdiction in this matter under

Article 32 of the Constitution of Konoha which reads as follows:-

“32 Remedies for enforcement of rights conferred by this part:-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
ceritoriari, whichever maybe appropriate, for the enforcement of any of the rights
conferred by this part.

FROM THE SIDE OF PETITIONER Page 10

 STATEMENT OF FACT

PART A : INTRODUCTION TO REPUBLIC OF KONOHA AND UCHIHAS

[⁋1] The Republic of Konoha is a developing country famous for its democratic set – up,
judicial activism, conservative and traditional based approach and progress in public policies
and administration. It harbours the youngest population worldwide and so in order to protect
them from obscenity the parliament passed an act in 2019 banning all forms of pornographic
material.

[⁋2] Uchihas one of the best schools of the country which gives quality education and
encourages its students to participate in academic as well as co- curricular activities like
national and international competitions and has also won many accolades for the same.

PART B: ALLEGATIONS AGAINST MRS.Z

[⁋3] Mrs Z is one of the most loved biology teachers of the Uchihas who is also the teacher
of the most promising students Tipendra Gada and Sonali Bhide who have won several
national exhibitions. Mrs Z known for her best practical teaching skills taught students to
respect bodily and individual autonomy of both genders by making them understand
reproduction system, safe sex education through plastic models of humans, diagrams and
video graphic materials containing active humans as she had her apprehensions regarding
conservative approach of society.

[⁋4] Hearing this the Principal filed a case against her under Sec. 3 of Prohibition of
Pornography Act 2019 for showing indecent materials in class, aggrieved by which she filed
a writ petition under art. 14, 19 and 21 for violating FRs and challenging constitutional
validity of the act.

PART C: VANDAL NATIONAL DEBATE COMPETITION

[⁋5] Moving on from this incident both the students Tipendra and Sonali chose the same
stream Science in class 11 and also got selected for the prestigious Vandal National Debate
Competition 2019 which was to be held on 12th Feb 2019 and since both of them were
neighbours, so they took benefit of that for their meetings and preparations. During this
period their closeness increased and they started sharing things about each other and also

FROM THE SIDE OF PETITIONER Page 11

discussed how shocking it is to see Mrs Z like this and the orthodox thinking of the society
towards these things.

[⁋6] However, they went to the Vandal National Debate Competition which was held on 12th
Feb. and said in favour of the motion that is ‘Sex Education: A Taboo or Necessity for
Konoha Teenagers’ and won it. Tipendra then confessed his feelings to which Sonali
reciprocated and they both shared some pvt. moments there and on returning happily told to
their friends.

PART D: THE CEREMONY AND THE ALLEGATIONS AGAINST TIPENDRA

[⁋7] A ceremony was organized to medal both of them during which Sonali fainted and when
took to the hospital, the doctors declared her pregnant and so she confessed her feelings
towards Tipendra during the competition.

[⁋8] Sonali’s parents filed an F.I.R against Tipendra on hearing this U/S 15 of Juvenile
Justice Board 2015 which treated Tipendra as an adult and wanted to send him to Children’s
Court as he knowingly had sexual intercourse. On examining the evidences and statement of
Sonali, it was found that Sonali explicitly expressed her feelings towards him and wanted to
keep the child which her parents forced to abort. And so he was convicted under sec. 376 IPC
and sec.3 of POCSO Act 2012.

PART E: CHARGES AND PROCEEDINGS

[⁋9] Tipendra filed a writ petition in S.C U/S 15 of JJ Act, as it is violative of his FRs and
International Conventions and also challenged the provisions of rape under IPC and POCSO.
An NGO also filed a writ petition in S.C challenging provisions under IPC, POCSO and JJ
Act dealing with age of consent to be between 16-18 years and also the constitutional validity
of the Pornography Act as it is violative of FRs under Art. 14, 19(1)(a) and 21and challenged
the increase in punishment or rape of girls below the age of 16 years as it is violative of FRs
of adolescents below the age of 18 years.

[⁋10] Subsequently, S.C merged both the petitions and listed it before the apex court for final
hearing.

FROM THE SIDE OF PETITIONER Page 12

 STATEMENT OF ISSUES

ISSUE I: - WHETHER THE PETITIONS FILED BEFORE THE HON’BLE COURT

ARE MAINTAINABLE OR NOT?

ISSUE II :- WHETHER THE RELEVANT PROVISIONS UNDER JJ ACT DEALING

WITH TRYING A JUVENILE AS AN ADULT AND THE RELEVANT PROVISIONS
UNDER IPC AND POCSO DEALING WITH AGE OF CONSENT AND THERETO, ARE
VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

ISSUE III: - WHETHER JUVENILE JUSTICE BOARD HAS EERED IN SENDING

TIPENDRA TO CHILDREN’S COURT AND CAN BE HELD LIABLE UNDER SECTION
376 IPC AND SECTION 3 OF POCSO?

ISSUE IV:- WHETHER PROHIBITION ON PORNOGRAPHY ACT,2019 IS

VIOLATIVE OF FUNDAMENTAL RIGHTS UNDER ARTICLE 14,19 AND 21 OF THE
CONSTITUTION OF KONOHA AND IS UNCONSTITUTIONAL OR NOT ?

SUMMARY OF ARGUMENTS

I. WHETHER THE PETITIONS FILED BEFORE THE HON’BLE COURT ARE MAINTAINABLE
OR NOT?
The writ petition filed before the Hon’ble Supreme court is maintainable because
it is infringing the fundamental rights of the citizens under art.14,19 and 21,and
as per art.32 if your FR is getting violated one should go to the S.C which
happened in this case because Tipendra’s right to equality and personal liberty
was getting violated and the Pornography act is also violating FR of citizens
under art.19 and 21 of the constitution. Hence, the writ petition shall be
maintainable.

FROM THE SIDE OF PETITIONER Page 13

 II. WHETHER THE RELEVANT PROVISIONS UNDER JJ ACT DEALING WITH TRYING A
JUVENILE AS AN ADULT AND THE RELEVANT PROVISIONS UNDER IPC & POCSO
DEALING WITH AGE OF CONSENT AND PUNISHMENT THERETO, ARE VIOLATIVE OF
FUNDAMENTAL RIGHTS OR NOT?
The acts are violative of FRs because in cases where both teenagers who are in
between the age of ‘16-18’, have the mental capacity to have consensual sexual
intercourse and know what they are doing then why only the male adolescent is
punished. So, the relevant provisions of IPC, POCSO, JJ Act are violating the
FRs of the adolescents.

III. WHETHER JUVENILE JUSTICE BOARD HAS ERRED IN SENDING TIPENDRA TO

CHILDREN’S COURT AND CAN BE HELD LIABLE UNDER SECTION 376 IPC AND
SECTION 3 OF POCSO OR NOT?

It is humbly contended that Juvenile Justice Board has erred in sending Tipendra to
Children’s Court and cannot be held liable under section 376 IPC and section 3 of
POCSO because it is very unfair to deal differently in these cases where consent was
given. This is an archaic conception in which teenagers get trapped for the crime which
they have not committed and creates the penalising effect which leads to the violation of
rights.

IV. WHETHER PROHIBITION ON PORNOGRAPHY ACT, 2019 IS VIOLATIVE OF

FUNDAMENTAL RIGHTS UNDER ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF
KONOHA AND IS UNCONSTITUTIONAL OR NOT?

The Prohibition on Pornography act shall be banned under the writ of Prohibition as it
is in violation of the FR of the citizens of India under art.19(1)(a) freedom of speech and
expression art.21 protection of life and liberty. So, the act should be held unconstitutuional.

FROM THE SIDE OF PETITIONER Page 14

 ARGUMENTS ADVANCED
ISSUE I:- WHETHER THE PETITIONS FILED BEFORE THE HON’BLE COURT
ARE MAINTAINABLE OF NOT?

[⁋I.1] It is humbly submitted before the Hon’ble Apex Court of Konoha that all the three writ
petitions filed by Mrs.Z, Tipendra Gada and the NGO shall be maintainable before the
Hon’ble Apex Court under art.32 of the Constitution as they are violative of Fundamental
Rights under art. 14,19 and 21.

[⁋I.2] Art. 321 of the Constitution provides the Constitutional remedies which gives a person
the right to move to S.C under art. 32 in order to protect their Fundamental Rights. In the
following cases also the same has happened. Firstly, taking the case of Mrs. Z V. The State of
Konoha in this case they are challenging the constitutional validity of the act as they are in
violation of the fundamental rights under art. 14, 19 and 21 and also her fundamental right
under art. 19(g) of the Const.

A. VIOLATION OF FUNDAMENTAL RIGHTS OF Mrs.Z UNDER ART. 21

[⁋I.3] It is humbly contended before the Hon’ble Apex Court of Konoha that the petitioner
has not shown any pornographic material and should not be charged under sec.3 of
Prohibition of Pornography Act 2019.

A.1 THAT THE PETITIONER CANNOT BE PUNISHED UNDER THIS ACT AS IT IS

RETROSPECTIVE TO THE LAW

[⁋I.4] Firstly it is very imp. to understand that this act came in the year 2019 in April which
means that the act or offence was already committed in the past because at that time all the
students were in class X and also from the fact that the competition commenced on 12th Feb
2019 when they were in class XI and hence if the plaintiff is getting any punishment for the
act committed in the past then retrospective laws are being applied.

[⁋I.5] Now, Clause (1) of the Article 202 of the Indian Constitution guarantees rights against
ex-post facto laws. It provides that “ no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act charged as an offence, nor
be subjected to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.” The American Constitution also
constitutes a similar provision prohibiting ex-post facto laws both by the Central and State
legislatures. Now, from this we can conclude that firstly the case should not even be filed as
retrospective laws are being applied as it is violating the FRs of Mrs.Z under art. 20 and
art.21 which is protection of life and personal liberty.

1
INDIA CONST. art. 32.
2
INDIA CONST. art. 20, cl.1.

FROM THE SIDE OF PETITIONER Page 15

[⁋I.6] As we know that art.20 protects citizens from ex post facto laws now, the question is
how is it violating FRs under art.21, one of the most important components of art. 21 is
deprivation of life and procedure established by law3 it is said that procedure must not be
established by law it should also be just, fair and reasonable. Subsequent judicial
pronouncements have spelt out the operation of this principle in varying situations. Not, only
that it is also violating the rights of adolescents as it is their right to know these things for
safe sexual intercourses in future. Sec. 292 IPC exception 2 in which it is clearly stated that
publication of any book, paper, pamphlet, writing, drawing, painting, representation or
figure is justified when it is in the interest, science, literature, art or learning or other objects
of general concern4. In this case it will violate art.19(g)5 to practice any profession, or to
carry on any occupation, trade or business.

Another thing to be taken in consideration is that ban on watching porn or any other obscene
things is violating the FR of the citizens under art.21 ‘deprivation of personal liberty’ as such
laws lead to the violation of individual liberty and moral independence of a person who
wishes to enjoy pornography as his right to view, read or enjoy pornography (that could be
read into his freedom of speech and expression, and/or the right to privacy under the Indian
constitution) is curtailed.

[⁋I.8] Hence this writ petition shall be valid in the eyes of Supreme Court under art.32 as it
is violating the fundamental rights of Mrs. Z and all the other citizens under art. 14, 19 and 21
because the whole act of Prohibition of Pornography Act 2019, is only talking about the
protection of women and children but not about men so here we can see the biasness and not
only that in sec.3 of the JJ Act it is clearly mentioned that all human beings should be treated
equally in dignity and rights so here we can say that there FR under art.14 is getting
infringed. Coming to art.19(1)(a)6 which talks about freedom of speech and expression the
court went to the extent of laying some guidelines for the censors, for example sex and
obscenity are not always synonymous, and it is wrong to classify sex as essentially obscene
or even indecent or immoral and expressing once feeling to other is not in way disturbing
public morality or decency. Because of such things people’s life are getting deprived and
their personal liberty is getting deprived, hence the writ petition filed before the S.C shall be
maintainable under art.32.

B WRIT PETITIONS BY TIPENDRA AND NGO VALID

Writ petitions by Tipendra and NGO are maintainable in the apex court of Konoha under art
14, 19 and 21 of the constitution

B.1 WRIT PETITION OF TIPENDRA IS MAINTAINABLE

[⁋I.9]It was observed in this case that because of the faulty allegations levied against young
male adolescents their right to life under art. 21 is being violated as they are getting punished

3
INDIA CONST. art.21.
4
Indian Penal Code, 1860. Sec.292
5
INDIA CONST. art.19, cl.g.
6
INDIA CONST. art.19, cl.a.

FROM THE SIDE OF PETITIONER Page 16

for the same offence in which the girl was also a part and the opposite gender is not getting
punished so in case of ‘Sabarinathan V. The Inspector Of Police’7 also the Mahila court
gave him rigorous punishment of 10 years along with some fine of Rs 3000. Now according
to the definition of child in sec.2(d) a child is anybody who is less than the age of 18 so why
in these cases where it is a consensual relationship only the male adolescents get targeted this
is where their right to be treated equally under art. 14 is violated which further violates art 21
which is protection of life and personal liberty because according to procedure established by
law, law applies differently depending upon the case so here also the same should happen
because here because of old conservative mind-sets young boys are getting punished and
their life is spoilt. It is clearly mentioned in art.21 of the Const. that “procedure must not only
be established by law but that it must be just, fair and reasonable”.

[⁋I.10]And in this case the same has happened every case is different and it should be dealt
differently in order to be free, fair and reasonable what happened in Nirbhaya8 case is totally
different than what happened in this case here both were teenagers, in fact girl was older to
the boy than two months and both had consensual sexual relationship.

B.2 AGE OF CONSENT MATTERS

[⁋I.11] Consent is defined in IPC in sec.3759 explanation 2:- ‘Consent means an unequivocal
voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific sexual act.’ Here the
definition of consent is being followed because not only once but Sonali has also accepted
her relationship in The Children’s Court and has explicitly expressed her feelings towards
him and wanted to live with him and even wanted his child but her parents were forcing her
to abort the same.

[⁋I.12] Also as his rights are getting violated under art. 14, 19 and 21 because in The
Juvenile Justice (Care and Protection of Children) Act, 2015 in sec.2 (12)10 “child” means a
person who has not completed 18 years of age, so here both of them should be considered as
a child but what happening is just the opposite, further validating the point of violation of
right to equality it is clearly mentioned in sec.3(x)11 of the act Principle of equality and non-
discrimination: There shall be no discrimination against a child on any grounds including
sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and
treatment shall be provided to every child. Not only that in (xvi) principles of natural justice
the procedural standards of fairness shall be adhered to, including the right to a fair hearing,
rule against bias and right to review, by all persons or bodies, acting in a judicial capacity
under this Act. And in its(ii) Principle of dignity and worth: All human beings are to be
treated as equal in dignity and rights. Hence, from these points we can say that his right to
equality under art. 14 of the Indian Const. has been violated as it is said that they conducted

7
Sabrinath V. The Inspector of Police, (2018) MAD. 490 (India)
8
State V. Ram Singh & Ors. (2013) S.C.C.
9
Indian Penal Code 1860, sec.375
10
Juvenile Justice Act 2015, No.2, Act of Parliament, 2015 (India). Sec.2, cl.12.
11
Juvenile Justice Act 201, No.2, Act of Parliament, 2015 (India). Sec.3

FROM THE SIDE OF PETITIONER Page 17

preliminary assessment under sec.15 which says to test whether these juveniles who are
above 16 had this much mental capacity to know whatever decisions they are making are
correct or not and what would be its after effects. In this case also his right is getting violated
as Tipendra is the one who is getting punished and on the other hand Sonali was not punished
even though she affirmed and reaffirmed in the court of law that she loved him and wanted to
live with him, not only that she even wanted to have her child. Hence, concluding the whole
point there is biasness in law.

[⁋I.13] This point is also violating his rights under art.21 which is Protection of life and
personal liberty in this its second and fourth components are very important which is (ii)
deprivation of life and (iv) procedure established by law and here both of them are getting
violated since he got punishment of rape which is minimum 10 yrs. and max. is life
imprisonment and death penalty hence deprivation of life can be proved it should also be
taken in consideration that procedure must not only be established by law but that it must be
just, fair and reasonable and in sec1512 and 1813 of the JJ Act clearly mentions that the
adolescent should not be sent to jail but should be taken to a safe place till he attains the age
of 21 and so art.21 is being violated. Now, coming to art.19 as we know that natural justice
flows from Art.19 so it’s an element in considering the reasonableness of a restriction under
art. 19(1)(a) here he is just expressing his views personally to Sonali which is his natural right
so the restrictions are not reasonable as it is in no way disturbing public morality and decency
of the society here Tipendra and Sonali were in there private sphere. So, here these
restrictions are violating his FR under art.19. And as mentioned in art.21 that the procedure
must be such that it is in conformity with justice, fairness and reasonableness. Subsequent
judicial pronouncements have spelt out the operation of this principle in varying situations it
commences as soon as interference with personal liberty commences and ends only when the
interference ceases. Hence, it is proved that his personal liberty is violated. In Nirbhaya case
the juvenile was sent to remand home after doing such an heinous crime and now has
changed his identity and is living a normal life. And after that the law changed and age of
consent changed so we have to keep in that both the cases are different and should be dealt
differently and this is not a heinous crime so it is concluded that his rights got violated under
art. 14, 19(1)(a)and 21.And so it is right of NGO and Tipendra to file a case in S.C under
art.32 of the Constitution and it should be maintainable.

ISSUE II. WHETHER THE RELEVANT PROVISIONS UNDER JJ ACT DEALING

WITH TRYING JUVENILE AS AN ADULT AND THE RELEVANT PROVISIONS
UNDER IPC & POCSO DEALING WITH AGE OF CONSENT AND PUNISHMENT
THERETO, ARE VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

[⁋II.1] Juvenile Justice (care and protection) Act, 2015 is a special legislation that strives
come to aid of children whose purpose is to protect the rights of children rather than to be of
a detrimental nature. In Justice JS Verma Committee, which gave its detailed report on
12
Juvenile Justice Act, 2015, No. 2, Act of Parliament, 2015 (India). Sec.15
13
Juvenile Justice Act, 2015, No. 2, Acts of Parliament, 2015(India). Sec.18

FROM THE SIDE OF PETITIONER Page 18

amendments in the criminal law to tackle sexual offences in 2013 had cited that: “our jails do
not have reformatory and rehabilitation policies. We do not engage with inmates as human
beings. We do not bring about transformation. We therefore, breed more criminals including
juveniles in our prison and reformatory system by getting them in juvenile homes and
protective homes where they are told that the state will protect and provide for them, but
which promise is a fruitless one.

A.1 Violation of right to equality under article 14

[⁋II.2] Section 15 of JJ act violates right to equality enshrined under Art. 14 of the
Constitution because as mentioned there should be a preliminary assessment which was
conducted in this case to understand whether both of them had the mental capacity or not to
understand the offence and its aftermaths and as per the factsheet para15 Sonali understood
the circumstances as she affirmed and reaffirmed that she had feelings for Tipendra and
wanted to live with him and even wanted his child but here preliminary assessment of Sonali
was not even done so we can see that inequality started from the beginning itself violating
art.21 fair trial and equality under sec.3 of JJ Act. But what happened is that only Tipendra
was punished under sec.376 IPC and sec.4 of POCSO14 Act so here we can say that his right
has been violated under POCSO and IPC Act.

[⁋II.3] Section 3(x) of the JJ Act clearly says principle of equality and non-discrimination in
which it says that there should not be discrimination against a child on the basis of sex, caste,
ethnicity etc. then why is it punishing only Tipendra. Hence, from this point we conclude that
Tipendra’s fundamental rights are getting violated under art.14.

[⁋II.4] In any scenario where similarly situated persons are treated differently, the question
of violation of equality and discrimination arises. Article 14 guarantees equality before law
and equal protection of laws. “The principle of equal protection does not take away from the
state the power of classifying persons for the legitimate purpose”. “But the doctrine of
Reasonable Classification must not be over emphasized as it is only a subsidiary rule
involved to give practical content to the doctrine of Equality and therefore the doctrine of
equality should remain superior to doctrine of classification”15.

B.1 Violation of right to freedom of speech and expression under art.19

[⁋II.5] Article 1916 states freedom of speech and expression and expression means right to
express one’s convictions and opinions freely by word – spoken or written, painting, printing,
feelings, gestures or in any mode17. In this it is clearly written that has the option to express
his feeling and taking case into consideration then adolescents have the right to express their
feeling and depriving them is the clear violation of article 19.

14
Protection of Children from Sexual Offences Act, 2012, No, 32, Acts of Parliament, 2012 (India).

15
Abhinav Benjamin, Juvenile Justice, CNLU LJ (8) [2018-2019] 182
16
INDIA CONST. art. 19, cl. 1
17
1 MAMTA RAO, Constitutional Law (1st ed. 2013)

FROM THE SIDE OF PETITIONER Page 19

[⁋II.6] Under art.21 of the constitution whose main essential deprivation of personal liberty18
is taking place. Many a time false allegations are levied against the boys by the families of
the girls to protect their daughter from the society that she was involved in any sexual
relationship before the marriage. So, they charge the boy with a rape case without thinking of
him and his family. One such case is the case of Pawan Gupta V. The State19 in this case also
both of them had consensual sexual relationship with each other but due to some family
problem he couldn’t marry her and even said the same to her after few months then the
prosecutrix filed a case of rape against him because of which his fiancé left him, her mother
had heart ache and died after a few days, he even had societal problems as people looked at
him as a rapist so he had problems in his job as well then in this case he was acquitted and the
S.C gave order that there is a difference between consensual sexual relationship and rape and
that in such cases rape cannot be invoked if boy doesn’t want to get married. In Deepak
Gulati V. State Of Haryana20 the court explained the difference between the two and that it
was the duty of the court to examine the intention of the boy. There were many cases like this
like Raju V. State of Madhya Pradesh21 which talked about false allegation of rape and it’s
after effects. So, it is concluded that there was violation of FR under art. 19 of the Konohian
Constitution because of such laws as mentioned in IPC and POCSO. And in such cases the
name of the accused also should not be disclosed along with the name of the prosecutrix as
this also violative of art.14 which is right to equality.

B.1 Violation of art.21 through VIOLATION OF JJ Act

[⁋II.7] Article 21 of the Indian Constitution guarantees right to free and fair trial however
under Section 15 read with Section 18(3) of the Act, on commission of the same heinous
offence, any two persons, between the age group of 16-18, can be tried in two different
courts. Thus when the two Juveniles being treated differently for committing same heinous
crime it infringes Right to fair trial in Article 21. In Zahira Habibulla H. Sheikh v. State of
Gujarat22 Hon’ble Supreme Court defines fair trial as a trial in which there is no prejudice for
or against the accused, or the cause it is being tried.

In sec.19(323) of the JJ Act it is mentioned that the Children’s Court shall ensure that the
child who is found to be in conflict with law is sent to a place of safety till he attains the age
of twenty-one years and thereafter the person shall be sent to jail. Provided that the
reformative services including educational services, skill development, alternative therapy,
behavior and psychiatric support shall be given to the child at the place of safety.

[⁋II.8] But in this case what happened is that he is being punished under sec.376 of IPC in
which minimum punishment is 10 years in jail. So, here his right is getting violated under
Art.21 of the constitution under (ii) deprivation of life and (iv) procedure established by law.
Deprivation of life because firstly he is getting defamed as per art. 19 of the constitution

18
INDIA CONST. art.21
19
Pawan Gupta V. The State of NCT, (2019) S.C
20
Deepak Gulati V State of Haryana, (2010) S.C (INDIA)
21
Raju V. State of Madhya Pradesh, (1995)
22
Zahira Habibullah Sheikh & Anr. v. State of Gujarat and Ors. [(2004) 4 SCC 158]
23
Juvenile Justice Act 2015, No.2, Acts Of Parliament, 2015 (India), sec.19 cl.3.

FROM THE SIDE OF PETITIONER Page 20

because he has been filed under the false case of rape although it was a consensual physical
relation as there was no force involved in this process but still a false allegation was filed
leading to the defamation of the boy as everybody will see him as a rapist, his career will be
finished even before starting and secondly he is punished under sec.376 of IPC which cannot
be implemented because there is a special provision which is POCSO under which the
punishment shall be given but here that is also getting violated as he is getting more
punishment under IPC which is of 10 years instead of 7 years such circumstances are
affecting his personal liberty which is not even legal as per art 19 (3) of the JJ Act 2015. So,
his rights are getting violated or infringed under art.21 of the constitution.

[⁋II.9] Though the new Act has considerably provided for the better protection of children,
the provisions of Sections 15 and 18 which provide for the assessment of 16-18 year olds and
sending them for trial to the Children's Court or the Sessions Court is both bad in law as well
as bad in justice. It is bad in law as it blatantly violates the Fundamental Rights of Equality
and Fair Trial. It is bad in justice as it goes against the principles of Juvenile Justice which
advocate that children below the age of 18 are to be treated separately from adults as they are
a vulnerable part of society.24

C.1 Drawbacks of POCSO and IPC w.r.t. age of consent for Consensual Sex

[⁋II.10] The primary issue with the POCSO Act, 2012 is that it criminalizes
all consensual sexual activity below the age of 18.While the age limit for consensual sex was
set up by the National Commission for the Protection of Child Rights in draft bill was 16
which was further raised by standing committee constituted by parliament to 18 years. This
amendment came after the Nirbhaya Rape case. This rather rigid definition is in strict
contrast to the psychological constructs of childhood, theories of which highlight that once
the final stages of development are reached, there is little to distinguish the more
psychologically mature minor from adults25.

[⁋II.11] Learned A.S.J Kamini Lau aptly described the provision as being, “regressive and
draconian.”26 This was followed by A.S.J Bhat's observation that “such a move would open
the floodgates for prosecution of boys for offences of rape on the basis of complaints by girls'
parents irrespective of whether the girl was a consenting party” 27. Shanta Sinha, chairperson,
National Commission for the Protection of Child Rights was quoted as saying that, “there are
high chances of this Act being misused. Youngsters who are 16 or 17 may want to explore
and enter into sexual relationships. They could end up being criminalized.”28

D.1 AGE OF CONSENT MATTERS

24
Abhinav Benjamin, Juvenile Justice, CNLU LJ (8) [2018-2019] 182, INDIA CONST. art. 19, cl. 1

25
Chitwan Deep Singh, Prashant Pranjal &Sahil Arora, The Protection of Child From the Sexual Offences, 2012:
A Critique of the Decision to Raise the Age of Consent for Sexual Relations, 3 JILS, 286-301 (2011-12)
26
State V. Sandeep Paswan, S.C. No. 08/12
27
Id. at 25
28
Id. At 25

FROM THE SIDE OF PETITIONER Page 21

[⁋II.12] Another important thing to take into consideration is that in sec.375 IPC 186029 it is
said in the exception that sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape. Firstly the legal age of marriage for a
girl is 18 years so if she is married before that then it is an illegal act and now this law is
validating another illegal act of rape if she is married and is 15 or more. The question is why
doesn’t the then here follow the age of consent so this is one of the major drawbacks of IPC
and second is that in this changing and fast growing society law should also develop and the
provision of statutory rape should come in place.

[⁋II.13] Madras H.C gave a suggestion to bring the concept of statutory rape in Konoha as
many adolescents now a days are more progressive and get involved in these things at a very
early stage and these are called Romeo-Juliet cases where the gap years between the two
lovers should not be more than 3,4 or 5 years it varies in different countries. Because of such
cases the real rape cases are not given speedy trial.

[⁋II.14] In a judgment given by Justice V. Parthiban in a similar case in Madras he has

given a suggestion that in such cases where there is a consensual relation between both the
adolescents who are of 16yrs or above the amount of punishment should be decreased and
these cases should be dealt differently like in the case of “Sabrinathan V. The Inspector Of
Police”30 this case was also the case of elopement of young teenagers who were classmates in
this case also the girl turned hostile and said that she eloped consensually. This case was filed
by her grandparents in this case the Justice Parthiban said that in such cases of Romeo- Juliet
love the age gap between the teenage lovers should not be more than 5 years. So, here right to
equality is getting violated under sec.3 of JJ Act as it clearly mentions that there should be no
discrimination on the basis of sex or gender and here we can see that it is getting violated as
under sec.15 it is also mentioned that the child who is above 16 should know the consequence
of his/her act and here we can see that Sonali is able to understand the consequence but still
she is not punished and on the other hand Tipendra is punished which is violating his FR
under art. 14 which is also infringing his rights under art. 21 through deprivation of life and
procedure established by life since all cases are different and should be dealt differently and
because of punishment of rape which is of min.10 years there is deprivation of life.

[⁋II.15] Though the new Act has considerably provided for the better protection of children
but it blatantly violates the fundamental rights of life and liberty of teenagers and puts young
boys in danger irrespective the girl was a consenting party or not. It is bad in justice as it goes
against the principles of POCSO which advocate the rights of minors irrespective of gender
and rather infringes their fundamental rights of equality, life and liberty under sections 14,19
and 21.

Issue III. WHETHER JUVENILE JUSTICE BOARD HAS ERRED IN SENDING

TIPENDRA TO CHILFREN’S COURT AND CAN BE HELD LIABLE UNDER
SECTION 376 IPC AND SECTION 3 OF POCSO OR NOT?

29
Indian Penal Code, 1860, Sec.375
30
Sabrinath V. The Inspector of Police, (2018) MAD. 490 (India)

FROM THE SIDE OF PETITIONER Page 22

[⁋III.1] It is humbly contended before the Hon’ble court that Juvenile Justice Board has erred
in sending Tipendra to children’s court and he cannot be held liable under §376 KPC and §4
of POCSO. As it is conservative and archaic conceptions of the valid age of consent have the
effect of harassing and penalizing adolescent31 for victimless crimes.

A. Juvenile justice act has erred in sending Tripendra to Children Court which lead to
the violation of his fundamental rights.

[⁋III.2] Firstly, the question arises is that according to the law who is child. As per juvenile
justice act section 2(12) and (35)32 “child is one who has not attain eighteen years of age”.
It is the responsibility of the court that there should be no biasness among different genders.
As here in this case Tripendra was sent to children’s court and was tried as adult. It should
always be taken into consideration that what consequence will it have sending young minds
behind the bars. It was said in the case that “very young children’s should not be send to
prison33”. A juvenile under JJ Act, 1986 means “a boy who has not completed the age of
sixteen years and a girl who has not completed age of eighteen years”. But after repealing this
act Juvenile Justice (Care & Protection) Act 2000, the difference of age of male and female
child has been removed and a uniform age pattern was provided that is 18 year of age for
both.

[⁋III.3] As far as uniform age for both boys and girls are concerned, there is some issue that
arises where only boys are punished though they are juvenile which is totally in violation. It
is clearly mentioned in section 3(x)34 of the act Principle of equality and non-discrimination:
There shall be no discrimination against a child on any grounds including sex, caste,
ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be
provided to every child. And in section 3(xvi)35 in principle of natural justice: Basic
procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule
against bias and right to review, by all persons or bodies, acting in a judicial capacity under
this act. Moreover, the clauses that are provided under this section it is very clearly
mentioned that all human beings are to be treated as equal in dignity and rights. In the present
case Tripendra right has been violated because he also comes in the category of child but he
has been treated differently by the court. Now day’s teenagers are more exposed to different
thing online and in fact more sex related issue and lot of material is also available for girls
and boys to know about sexual relationship36.

31
As per black law dictionary: That age which follows puberty and precedes the age of majority. It commences
for males at 14, and for females at 12 years completed, and continues till 21 years complete.
32
Juvenile Justice Act 2015, No.2, Acts Of Parliament, 2015 (India), sec.2 cl.12
33
Emperor v. DharamParkash AIR 1926 (Lahore) 611 AIR 1921 (Oudh) 190.

35
Juvenile Justice Act 2015, No.2, Acts Of Parliament, 2015 (India), sec. 3 cl.16
36
Sunil Mahadev Patil V. State of Maharastra , 2016(2) All MR

FROM THE SIDE OF PETITIONER Page 23

[⁋III.4] And talking about Tipendra and Sonali it is very clearly written in the fact sheet37
that Tipendra confessed his feeling to Sonali for which she reciprocated. It is kind of the
expression that was because of affection and making only Tripendra liable would not be
justice for him. As law always believe that every person has fundamental right so it is the
duty of law to make certain provision.

[⁋III.5] In this case, Juvenile Justice after conducting preliminary assessment tried Tripendra
in children court under §15 of the act for which Juvenile Justice has totally erred in sending
him because §15 of the act states: In case of a heinous offences alleged to have been
committed by the child, who has completed or is above the age of sixteen years, the board
shall conduct a preliminary assessment with regard to his mental and physical capacity to
commit such offence ability to understand the consequences of the offence and the
circumstances in which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18 which state: Where the Board
after preliminary assessment under §15 pass an order that there is a need for trial of the said
child as an adult, then the Board may order transfer of the trial of the case to the Children’s
Court having jurisdiction to try such offences.

[⁋III.6] But looking into the sub section (1) of the §18 in that it is clearly written that
different measure has to be taken and along with that only 3 years imprisonment that is
maximum that is given to any child. Taking into consideration that in sub section (3) it
written to refer to §19 of the same which clearly state different measures that are to be
provided by the court so that there is no infringement of any fundamental right but here in
this case Tipendra was held liable and was charged for committing rape.

[⁋III.7] Section 15 of the Juvenile Justice Act violates the Right to Equality enshrined under
Article 14 of the Constitution in two aspects: Firstly, the treatment of juveniles or children in
the age group of 16-18 differently from juveniles or children below 16 years of age. It is clear
that there is no reasonable basis to differentiate juveniles or children in the age group of 16-
18 from the other ages of juveniles thereby resulting in a blatant form of inequality for the
juveniles and children above the age of 16. Secondly, the arbitrary power given to the
Juvenile Justice Board under Sections 15 and 18(3) of the Act to decide the case or transfer it
to the Children's or Sessions Court. The Standing Committee which was constituted prior to
the passing of the Juvenile Justice (Care and Protection of Children) Bill, 2014 in the Rajya
Sabha stated that the various stakeholders who were consulted by the Committee were in
agreement that then proposed legislation seeking to bring major changes in juvenile justice
system were in contravention of the Constitutional Provisions of Article 14.

[⁋III.8] The Committee Report38 concluded at that time that “the existing juvenile system is
not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years
is an extremely sensitive and critical age requiring greater protection. Hence, there is no need
to subject them to different or adult judicial system”. Essential that missing under this
provision: 1. The Lack of any Reasonable Classification to treat juveniles and children above

37
Moot proposition, Para 11
38
Abhinav Benjamin, Juvenile Justice, CNLU LJ (8) [2018-2019] 182, INDIA CONST. art. 19, cl. 1

FROM THE SIDE OF PETITIONER Page 24

the age of 16 differently. In any scenario where similarly situated persons are treated
differently, the question of violation of equality and discrimination arises39.2. Arbitrary
power of the Board under §15 of the Juvenile Justice Act, 2015 16-18 year olds itself being
arbitrary, the manner in which the Juvenile Board makes this classification is also of the same
degree of arbitrariness. Fair trial includes that all citizens of the country be dealt with by the
same procedure of law in the conduction of trial with no discrimination on any basis.

[⁋III.9] However under Section 15 read with Section 18(3) of the Act, on commission of the
same heinous offence, any two persons, between the age group of 16-18, can be tried in two
different courts and thereby be liable for two different forms of punishment, for committing
the same heinous offence, based only on the preliminary investigation by the Juvenile Justice
Board. Thus when two juveniles are being tried and punished differently for committing the
same heinous offence, it results in a clear violation of a fair trial and therefore infringes the
Right to fair trial under Article 21.

[⁋III.10] Here if we see there was not heinous offence that was committed by Tipendra
because the very essential of heinous offence is Mens rea that is guilty mind that was not
present in this case because it is mentioned in the fact sheet that when Tipendra confessed his
feeling to sonali, which she reciprocated. Because heinous crime was committed in Nirbhaya
rape case40 after which strict laws was made and juvenile was the one who committed the
rape more brutally has not been punished for the offence. But what about the after effect the
strict laws many teenagers face the problem. In the case of “Sabrinathan v. The inspector of
police41” in the judgement given by Justice V. Parthiban gave the suggestion that in these
kind of cases where there is a consensual relation between both the adolescents who are of 16
years or above the amount of punishment should be decreased and these cases could be held
differently. Here in this case of Tripendra should have dealt differently.

B. Tipendra cannot be charged under the provision of IPC and POCSO

[⁋III.11] Here it is contended that Tipendra cannot be charged under these provisions as
there was consent of Sonali. Consent is defined by the court on the part of a women as a
defence to an allegation of rape, requires voluntary participation, not only after the exercise
of intelligence, based on the knowledge, of the significance and moral quality of the act42.
§375 IPC states: Explanation 2.—Consent means an unequivocal voluntary agreement when
the woman by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act. In this case Sonali is
giving consent willingly to participate because it is written that Sonali reciprocated and
whatever happened between them was consensual as there was no mens rea and for any
criminal act guilty mind is very essential. There was no threat or coercion present or undue
influence present in this case. Lacuna that arises from such prudish policies is that sexual
intercourse between two consenting teenagers may lead one of them being charged for rape

39
L.P Agarwal v. Union of India, (1992) 3 SCC 526 : AIR 1992 SC 1872.
40
State V. Ram Singh & Ors. (2013) S.C.C.
41
Sabrinathan V. The Inspector of Police, (2018) MAD. 490 (India)
42
Kalilur Rahman v Emperor, 1993 Rang 98, 101 (FB)

FROM THE SIDE OF PETITIONER Page 25

even if the age difference between two is negligible. The latter would obviously be punished
for rape even if two children’s involved were friends for long time and were mature enough
to consent to the sexual intercourse43.

[⁋III.12] In the case of “Sabrinathan v. The inspector of police44” Justice Prathiban very
clearly said that we need to take consensual sex into consideration and there is the need to
change the age of consent and also we need to treat this case differently. Similarly dealing
under §3 POCSO Tripendra cannot be held liable because law does not take into
consideration weather it’s written him or her in the provision because law is not gender
biased. But in this case he was held liable under §4 of POCSO. That is also in violation of his
fundamental right treating him differently where there was not criminal intention as such and
the age difference was almost negligible between them though Sonali was 2 months older
than Tipendra then to he was held liable. And it is very clearly written in this provision that
“makes to” here there was no force that was applied on Sonali. It is of utmost importance that
the country’s criminal law should strikes an appropriate balance between protecting children
from sexual abuse and exploitation on the one hand and permitting the sexual expression of
young persons as they proceed to adulthood on the other45.

C. International convention for age of consent: consensual sex

[⁋III.13] The essential justification of the said definition of “child” is that the obligations
arising out of the CRC provide for the definition of “child” to be “any person who is under
the age of eighteen years46. A close analysis of the said convention as discussed earlier would
suggest that the definition is in no way a stipulation of the age of consent for sexual activities.
Furthermore, there are, an overwhelming majority of countries, who are also parties to the
CRC and have adopted an age of consent that is below 18 years. It was therefore argued that
in determining the age of consent, several cues from international examples should be
examined keeping in mind the trends in different countries. In many country there these cases
are termed under Romeo and Juliet. The age gap between teenagers lovers should not be
more than 5 years. The same is in many countries weather taking the example of Texas, US,
Europe, Africa, Swiss law etc. in all these they have the provisions where the age of consent
is 16 years and they treat the cases of sexual abuse in differently rather and consensual sex
differently.

[⁋III.14] Hence, we can contend that there is need to change according to the society why it
is always a presumption that boys only do these kind of wrong. If this continues to happen
then our society will never develop.

ISSUE IV: WHETHER PROHIBITION ON PORNOGRAPHY ACT, 2019 IS VIOLATIVE OF

FUNDAMENTAL RIGHTS UNDER ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF KONOHA
AND IS UNCONSTITUTIONAL OR NOT?

43
Id at 6
44
Id at 42
45
Arfan Khan, Comment-Sexual Offence Act, 2003, 68 CrLJ 220, 221 (2004)
46
Convention on the Right of the Child, Article 1

FROM THE SIDE OF PETITIONER Page 26

[⁋IV.1] This is humbly submitted before the Hon’ble Supreme Court of Konoha that
Prohibition on Pornography Act, 2019 is in violation of Article 14, 19 and 21 of Konohian
Constitution. Firstly, it is gendered biased in nature as it is violating article 14 Secondly, it
infringes freedom of speech and expression and thirdly, it violates right to privacy.
Prohibition on Pornography Act, 2019 contain sheer vagueness and is arbitrary in nature and
keeping this in mind and rights of adolescents Mrs.Z and NGO for protection fundamental
rights of citizens of konoha filed writ petition in the Court.

A.1 Infringement of Article 14 – Equality before law

[⁋IV.2] The §2 of Prohibition on Pornography Act, 2019 which defines Pornography is

gender-biased in nature. §2 of the act47 states that: “Notwithstanding anything contained in
laws for time being in force, any virtual or any other representation which contain sexually
explicit acts, representation of human genitals, indecent representation of women and
children. Representation can be in the form of both electronic and non-electronic.”

[⁋IV.3] The question arise that why it is always women related laws are made why not for
men. In many cases we have seen that false allegations are made on man that they have
committed these offences but it can also happen that man are the true victim in these cases. It
is very clearly mentioned in the above provision that indecent representation of women why
the law is so presumptive that every time women are the true victim sometime it can be men
too which actually hamper their right to dignity.

[⁋IV.4] The mere provision mainly aim at protecting the rights of women. Whenever these
kind of stuff is uploaded on internet or published it’s not always the dignity of women that
hampers but also the man involved is affected. In this case as the NGO has filed the case for
protecting the rights of adolescents, we see how the Pornography Act is violating their rights.
It’s high time to understand that the law should be changed because society is developing and
now girls understand what are the consequence of the act committed.

[⁋IV.5] The whole Prohibition on Pornography Act, 2019 is based on wrong presumption
that “pornography addiction is basis of unequal treatment of women”48. NGO and Mrs. Z
aggrieved by present pornography law which violates Right to Equality enshrined in Article
14 submit that it should be made gender neutral and does not violate any fundamental right .

B.1 Infringement of Article 19(1) – Freedom of Speech and Expression

[⁋IV.6] Prohibition on pornography raises a question can state prohibits its citizens from
viewing pornography or would this be an unjustified act because Ideally, two issues should
be examined by courts when dealing with the issue of pornography: I. whether pornography
should be construed as speech intending to communicate ideas49. Article 19(1) (a) deals with
freedom of speech and expression when it comes to India approach towards sex changed over
decades. The Court has continually upheld the importance of the guarantee in Article 19(1)

47
Prohibition on Pornography Act , 2019, No.20, Acts of Parliament, 2019 (India)
48
Id at 48
49
Vallishree Chandra & Gayarthi Ramachandran, The Right to Pornography in India (2011)

FROM THE SIDE OF PETITIONER Page 27

(a) for those who are gifted with the ability to think ‘out of the box’50, and also peppered its
memory with Indian art's liberal sexual perspectives.

[⁋IV.7] Blanket ban on pornography is violative of fundamental rights of citizens and the
legislations is abrogating freedom of speech and expression. As in the article it is mentioned
that person have the right to express his view and pornography act is violating the right
because if the person is viewing those material within four then if we put ban on those things
will violate article 19 as there is no reasonable restriction that have been violated like public
morality. And also it is violating Right to privacy.

[⁋IV.8] Prohibition on Pornography act, 2019 contain sheer vagueness, ambiguity and
arbitrary in nature as it fails to explains the valid exceptions codified under §292(2) of KPC
which explains what to consider obscene and have valid exceptions. Exceptions of §292(2)
states: [Exception— This section does not extend to—(a) Any book, pamphlet, paper,
writing, drawing, painting, representation or figure— (I) the publication of which is proved to
be justified as being for the public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, representation or figure is in the interest of science, literature, art
or learning or other objects of general concern, or (II) Which is kept or used bona fide for
religious purposes;

[⁋IV.9] And hence, Mrs. Z has performed her act under the ambit of §292 of KPC and cannot
be held liable. Mrs. Z has exercised his fundamental right of freedom of speech and
expression enshrined under article 19(1) (a) of Konohian Constitution to make her students
understand human reproduction and provide safe sex education. Therefore it is clear that
Prohibition on Pornography Act, 2019 is arbitrary in nature.

[⁋IV.10] In Aveek Sarkar v. State of West Bengal51 the Supreme Court established
community standard test and held that nudity is not per se obscene. The concept of
contemporary community test was first acknowleged in Indian scenario in the Indian
Supreme Court decision, Ajay Goswami v Union of India52 in this case the court held that the
test of ‘community mores and standard’ is outdated in the context of the internet age which
has broken down traditional barriers and made publications from across the globe available
with a click of the mouse and hence in judging whether a particular work is obscene regard
must be had to contemporary mores and standard.

C.1 Infringement of article 21 – Liberty to enjoy pornography

[⁋IV.11] The Right to Privacy falls within the ambit of Article 21 i.e. Right to life and
personal liberty is no longer res integra. Keeping this in mind and rights of citizens Mrs. Z
and Association for Protection of rights of adolescents (NGO) filed writ petition challenging
constitutional validity of the act.

50
Maqbool Fida Hussain v Rajkumar Pandey, 2008 CrLJ 4107
51
Aveek Sarkar V. State Of West Bengal, (2014) 4 S.C.C. 257 (2014)
52
Ajay Goswami V. U.O.I, 1 (2007) 1 SCC 143

FROM THE SIDE OF PETITIONER Page 28

[⁋IV.12] These legislations is abrogating individual freedom and liberty by covering almost
everything under the overreaching umbrella without showing any type of concern related to
differentiate between public or private consumption of such material, as well as a the degree
of content which varies sexual eroticism to child pornography. To use the terms “obscene and
“pornographic” interchangeably, is to beg the essentially fundamental and controversial
question of whether any or all pornographic materials are really obscene.53

[⁋IV.13] In Gobind v. State of M.P.54, law of privacy was developed by learned Mathew J. It
was held that “Privacy-dignity claims deserves to be examined with care and to be denied
only when an important countervailing interest is shown to be superior. Privacy should be
maintained if the person is watching under four walls so it is not violating or causing any
serious harm in to the public. If the court find that a claimed right is entitled to protection as a
fundamental privacy right, a law infringing it must satisfy the compelling state interest test.
Therefore Supreme Court refused to consider whether enforcement of morality is a function
of state.55

[⁋IV.14] Hence, Public morality cannot restrict the freedom to enjoy pornography and does
not support the restrictive approach in the light of public morality. Article 21 guarantees the
freedom, ensconced in the garb of privacy and personal liberty, to choose all manners of
pursuit of consensual sexual pleasure, free of impositions of governmental or societal
viewpoints56. Prohibiting private consumption of pornography is violating Right to Privacy
enshrined under Article 21 of the Constitution and therefore, Pornography Act, 2019 should
be held unconstitutional.

Hence, the act shall be held unconstitutional under the writ of Prohibition as it is in violation
of the FRs of the citizen under art.14, 19(1)(a) and article 21 of the Konohian Constitution.

53
Abhinav Benjamin & Ananth KamathM., Juvenile Justice: A Criique on the Constitutionality of Deeming 16-18
Year Old Juveniles as adults under the Juvenile Justice (Care and Protection of Children Act, 2015, CNLU LJ (8),
182-196 (2018-19)
54
Gobind V. State of Madhya Pradesh, (1975) 2 SCC 148
55
ID.at 53
56
Id at 50

FROM THE SIDE OF PETITIONER Page 29

 PRAYER

Therefore, in the light of facts presented, issues raised, argument advanced and authorities
cited, it is most humbly prayed before the Hon’ble Supreme Court of Konoha that it may be
pleased to adjudge and declare that:

ISSUE I:- The writ petition shall be maintainable in the eyes of law as it is in violation with
FRs under article 14,19 and 21, as article 32 of the Constitution deals with violation of F.R.
in S.C.

ISSUE II:- That the age of consent in such cases should be removed as they are in violation
of FR of the adolescents.

ISSUE III:- That Tipendra shall not be punished under IPC and POCSO as there was no free
and fair trial conducted.

ISSUE IV: That the Hon’ble Supreme Court shall ban the Pornography Act 2019 and, shall
be held unconstitutional under the writ of Prohibition as it is in violation of article 19 and 21
of the Konohian Constitution.

And pass any other appropriate order as the Honourable Court may deem fit in the interest of
equity, justice and good conscience.

And for this act of Kindness, the petitioner as in duty bound shall forever pray.

Respectfully Submitted

Sd/-

Counsel for the petitioner

FROM THE SIDE OF PETITIONER Page 30

FROM THE SIDE OF PETITIONER Page 31