1.WHETHER THE INSTANT PIL IS MAINTAINABLE?

[1]. It is the humble submission on behalf of the Petitioner that, (1.1)The Petitioner has the locus standi in
the instant case, and,(1.2)The law enacted by the Parliament violates fundamental rights and legal rights.

1.1The Petitioner has the locus standi in the instant case.

[2]. A Public Interest Litigation1 can be filed before the SC under Art. 32 of the Constitution2 or before the
High Court of a State under Art. 226 of the Constitution3 under their respective writ jurisdiction4. The
word ‘public interest litigation’ 5means a legal action 6, including all legal7 proceedings8 initiated in a
court of law 9 with the purpose10 of enforcing a right11 of public at large12 or seeking a remedy 13 to a
public injury14. To file a PIL,the petitioner must have a bonafide objective15 and there must be a real16
and genuine infringement17 of fundamental rights18 causing public injury19.
[3]. In People’s Union for Democratic Rights & Others v. Union of India & Others,20the Hon’ble Court
observed that “Public interest litigation is a cooperative or collaborative effort by the petitioner, the
state of public authority and the judiciary to secure observance of constitutional or basic human rights,
benefits and privileges upon poor, downtrodden and vulnerable sections of the society.”
[4]. Art. 22721 determines that every High Court22 shall have superintendence23 over all courts and tribunals
throughout the territories 24 in relation to which it exercises jurisdiction.In the case of Surya Dev Rai v.

1
Bholanath Tripathi v. State of U.P., (1990) Supp. SCC 151
2
R. Varadarajan v. Salem Municipality, AIR 1973 Mad. 55: (1972) 2 Mad LJ 485.
3
Shenoy K. Ramdas v. Chief Officer, Town Municipality Council, Udipi, AIR 1974 SC 2177: (1974) 2 SCC 506
4
Neetu v. State of Punjab, (2007) 10 SCC 614, 619
5
Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:"Public Interest (1) a matter of public or
general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which
a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
6
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36;
7
State of H.P. v. A parent of a student of Medical College, Shimla, AIR 1985 SC 910: (1985) 3 SCC 169
8
Upendra Baxi v. State of U.P., (1981) 3 SCALE 1136 (SC): (1983) 2 SCC 308
9
D.S. Nakara v. Union of India, AIR 1983 SC 130: (1983) 1 SCC 305: 1983 (1) LLJ 104
10
Confederation of Ex Servicemen Association v. Union of India, (2006) 8 SCC 399: AIR 2006 SC 2945
11
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349, 356: AIR 2004 SC 280
12
Dr. B.Singh v. Union of India, (2004) 3 SCC 363, 371: AIR 2004 SC 1923.
13
S.P. Gupta v. Union of India, AIR 1982 SC 149: 1981 Supp. SCC 87
14
Wadhwa v. State of Bihar, AIR 1987 SC 579: (1987) 1 SCC 378
15
Fertilizer Corporation, Kamgar Union v. Union of India, AIR 1981 SC 344: (1981) 1 SCC 658: 1981 (1) LLJ 193
16
People’s Union for Democratic Rights v. Police Commissioner, Delhi, (1989) 4 SCC 730.
17
Sheela Barse v. Union of India, AIR 1986 SC 1773: (1986) 3 SCC 596;;
18
Vincent Panikurlangara v. Union of India, AIR 1987 SC 990: (1987) 2 SCC 165
19
M.C. Mehta v. Union of India, AIR 1987 SC 1086: (1987) 1 SCC 395
20
1982 AIR 1473, 1983 SCR (1) 456
21
Babhutmal Raichand Oswal vs Laxmibai Raghunath Tarte (1972) 74 BOMLR 214
22
Nirmala Kapoor vs Arun Kumar Sharma And Ors 55 (1994) DLT 385, 1994 (30) DRJ 350
23
Yashwant Goyal And Anr vs Jagdish Prasad Garg And Anr CIVIL WRIT PETITION NO.6887/2011
24
Satjit Singh vs Skipper Towers (P) Ltd. & Anr. 1999 IIIAD Delhi 792, 79 (1999) DLT 521, 1999 (50) DRJ 60

1|Page
 Ram Chander Rai & Ors, 25it was held that,“The power may be exercised in cases occasioning grave
injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it
does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a
failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which
tantamount to overstepping the limits of jurisdiction.”
[5]. This article confers vast powers on the High Court 26 to prevent the abuse of the process of law by the
inferior courts 27 and to see that the stream of administration of justice remains clean and pure28. In the
case of Dalmia Jain Airways Ltd.v. Sukumar Mukherjee,29it was observed that,“It is settled law that,
the power of judicial superintendence, under Art. 227, must be exercised sparingly with a view of
keeping subordinate courts and tribunals within the bound of their authority. Further, where the statute
banned the exercise of revisional powers, it would require exceptional circumstances to warrant
interference under Art. 227 of the Constitution, since the power of superintendence was not meant to
circumvent statutory law.”
[6]. It is humbly submitted that, in the present case,there exists the extraordinary situations to invoke the
provisions of Art. 226 and 227. In the instant case, the petitioner, the aforesaid organization namely
“People for the Education and Protection of Children”30 running for the welfare of children, has adequate
locus standi to challenge the vires of the impugned act.The organisation,thus posses a bonafide objective
and has sufficient interest to maintain the public interest litigation.The challenged act i.e., Juvenile
Justice Care and Protection of Children Act, 2012 has been passed by the legislature and comes under
the category of law in force under Art. 13(2) violating fundamental rights.Hence, the constitutional vires
of a statue is in question and no proper procedure has been followed leading the case to grave injustice
and jurisdictional error.Thus,the petition under the Art. 226 and 227 is maintainable.

1.2The law enacted by the Parliament violates fundamental rights and legal rights.

[7]. It is humbly submitted that the main objective of Art. 13 is to secure the paramountcy of the constitution
especially with regard to the fundamental rights.31The term ‘law’ includes any ordinances, order, bye-
laws, rule, regulation, notification, custom or usages having in the territory of Vidula, the force of law .

[8]. The fundamental motive of the second clause of this articleis to safeguard one of the most important
features of the Constitution i.e.,“Fundamental rights”. Art. 13(2), has a sensitive touchstone, not only does
it mandate that the state shall not make any law which takes away or abridges the rights conferred by the

25
Appeal (civil) 6110 of 2003
26
Aasaram Trimbak Bodkhe And Ors vs The State of Maharashtra And Ors WRIT PETITION NO.2403 OF 1995 WITH CIVIL
APPLICATION NO.9643 OF 2011
27
M/S. Estralla Rubber vs Dass Estate (Private) Ltd Appeal (civil) 6327 of 2001
28
Kulwinder Singh And Ors. vs State Of Punjab 2007 (4) CTC 769
29
AIR 1951 Cal 193
30
Moot proposition para- 10
31
Renuv. Districtand Sessions Judge, Tis Hajari,AIR 2014 SC 2175.

2|Page
 Part III of the Constitution but it provides that any law made in contravention of the clause shall, to the
extent ofcontravention, be void.32.The laws made by the state after the constitution is framed is declared
void if those laws are against the fundamental rights.33It was held inMinerva Mills Ltd.& Ors. V. Union
of India,34 that “It is the function of the judges, and their duty, to pronounce upon the validity of laws. If
courts are totally deprived of that power, the fundamental rights conferred on the people will become a
mere adornment. A controlled constitution will then become uncontrolled.”

[9]. In the instant case, the challenged act i.e., Juvenile Justice Care and Protection of Children Act, 2012 is a
piece of legislation enacted on 31st January,201235, thus falls in the category of law in force in the territory
of Vidula.It is humbly submitted that,being a law under Art.13(3), the impugned act vehemently violates
certain fundamental rights of the juvenile offenders above the age of sixteen years such as right to equality,
right to life and personal liberty and right concerning with the state to make special laws for women and
children. Though post-constitutional laws inconsistent with fundamental rights are void ab initio yet a
pronouncement by the court of their invalidity will be necessary. Therefore, it is humbly submitted by the
petitioner before this Hon’ble Court to admit the instant petition.

2.WHETHER SECTION 15 AND THE COMMITTAL PROCEEDINGS ARE UNCONSTITUTIONAL?

[10]. It is humbly contended, that the introduction of Section15 of the Juvenile Justice Care and Protection of
Children Act, 2012 is a blatant violation of fundamental rights enshrined under part III of the Constitution.
The main aim of having a declaration of fundamental rights is that certain elementary rights, such as right
to life, right to equality,right to liberty, right to freedom of speech and so on, should be regarded as
inviolable under all conditions and that the shifting majority in legislature of the country should not have
a free hand in interfering with these fundamental rights. 36
2.1. The impugned section violates Art. 14 of the constitution.
[11]. Art.14 declares that the State 37 shall not deny to any person equality 38 before the law 39 or equal 40
protection of law 41 within the territory of Vidula. 42The right to equality is also recognized 43 as one of

32
Woman Rao and Ors V. Union of India and Ors 1981 2 SCC 362, 1981 2 SCR 1
33
State of Gujrat v. Ambika Mills, 1974 AIR 1300, 1974 SCR (3) 760
34
1980 AIR 1789, 1981 SCR (1) 206
35
Moot Proposition, para 8
36
A.K Gopalanv. Stateof Madras, AIR 1950 SC 27
37
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34: AIR 2002 SC 1533
38
Shrikishan Singh v. State of Rajasthan, 1955 (2) SCR 531: AIR 1955 SC 795
39
Chevtti Venkanna Yadav v. State of Telangana & Ors., (2017) 1 SCC 283.
40
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, 655;
41
Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104
42
D. D. Basu Shorter Constitution of India
43
State of Punjab v. Balkaran Singh, (2006) 12 SCC 709: AIR 2007 SC 641.

3|Page
 the basic features44of Indian constitution45 where the concept implies equality 46 for equals 47 and aims at
striking down48 hostile discrimination49 or oppression of inequality.50

2.1.1The act doesn’t pass the twin test of reasonableness.

[12]. A constitution bench of seven judges of the SC in the case of Budhan Chowdhury v. The State of
Bihar,51explained the meaning and ambit of Art. 14 in the following words: “It is now well establishedthat
while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled,
namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group and, (ii) that the differentia must have
a rational relation to the object sought to be achieved by the statute in question.”

• The practice is not based on intelligible differentia.

[13]. The expression“Intelligible Differentia” means difference based on reasons which is capable of being
understood.Reasonable classification 52 is based upon some real53 and substantial distinction54 bearing a
reasonable nexus55 with the object sought56 to be attained without being arbitrary 57.

[14]. In the present case, the Sec. 15 of the act treats, without any justifications, the 16 year-olds and above
juveniles as adults. According to Sec. 2(12) & 2(35) of the Juvenile Justice Care and Protection of Children
Act, 2012, child or juvenile is a person below 18 years of age. The setting of a distinct age group of 16-
18 years is purely arbitrary as there is little to no difference between a juvenile of 14 or 15 years with a
juvenile of 16-18 years. Any person below the age of 18 years is considered as a child so creating a
separate group on the basis of their age is purely discriminatory in nature.In M. Nagaraj v. Union of
India,58the SC has repeatedly endorsed as part of the Art. 14 mandate that, “The principle that injustice
arises not only when equals are treated unequally, but also when unequals are treated equally.”

44
Govt. of A.P. v. Maharshi Publishers Pvt. Ltd., (2003) 1 SCC 95
45
Amita v. Union of India, (2005) 13 SCC 721
46
Chiranjeet Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869.
47
State of U.P. v. Maqbool Ahmed, (2006) 7 SCC 521
48
Soma Chakravarty v.State, (2007) 5 SCC 403, 411: AIR 2007 SC 2149.
49
M. Nagaraj v. Union of India, (2006) 8 SCC 212: (2006) 8 SLT 1.
50
Indra Sawhney Etc. Etc vs Union of India And Others, Etc., AIR 1993 SC 477, 1992 Supp 2 SCR 454
51
(1955) 1 S.C.R. 1045
52
State of Rajasthan v. Shankar Lal Parmar, AIR 2012 SC 1913 (1917): (2001) 11 SCR 762: 2011 (14) SCC 235;
53
B.Manmad Reddy v. Chandra Prakash Reddy, 2010 3 SCC 314 (320): AIR 2010 SC 1001;
54
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467: (2001) 2 SCC 259.
55
National Council for Teacher Education v. Shri Shyam Shikha Prakashan Sansthan, (2011) 3 SCC 238 (255)
56
Re Special Courts Bill, 1978, AIR 1979 SC 478: (1979) 1 SCC 380.
57
State of Haryana v. Jai Singh, (2003) 9 SCC 114: AIR 2003 SC 1696
58
AIR 2007 SC 71

4|Page
 [15]. The act states that, as far as heinous offences are concerned, if the child is below 16 years then the
procedure prescribed for serious offences is to be followed; but if the child is above 16 years then
assessment in terms of Sec. 15 has to be made59.Right to equality implies that law is equal for all who
are placed in the same class and they are eligible for equal protection of law.This differentiation of
juveniles into sixteen years above and sixteen years below age groups, create an arbitrary differentiation
as all the juveniles are considered to be placed in a single class.A different class with in a same class is
the antithesis of right to equality.Hence,the classification can not be made.
[16]. Moreover, the crime has been committed four years back 60 and the assessment of their brains has been
done now and further it was determined that they were well aware of their actions61.This is completely
arbitrary because within a span of four years, their brains must have matured and it can no where be
compared to the brain, they were having on the day of commission of the crime. Hence, the intelligible
differentia failed.

• There is no rational nexus between theclassification and theobjective sought to be achieved.

[17]. The differentia which is adopted as the basis of the classification 62 must have a rational63 or reasonable
nexus64 with the object65 sought to be achieved by the statute in question. There is no underlying logic
behind enacting this differentiation on the basis of their age and nature of offence,hence, there is no
reasonable nexus in fixing a certain age group i.e 16-18, to be tried as adults.
[18]. Further, the section states that, for the offences which are not heinous in nature, a juvenile above the age
of sixteen, need not be tried as an adult. 66 As per the section, if a juvenile commits a heinous offence, he
will be tried as an adult. This concept makes the law arbitrary and ambiguous. It is humbly submitted
before this Hon'ble court that the status of juvenility is an universal standard set by the law,but as the act
determines juvenility on the basis of the gravity of offence committed which in turn violates the equal
protection of law. Thus,it is vague and arbitrary.

[19]. A system which establishes a link between the gravity of the offence committed and the maturity of the
child, defeats the principles of juvenile justice law as it lets the crime overshadow the child. Children
cannot be held to the same level of culpability as adults because of their immaturity and their scope of
rehabilitation. This act consists of opaque age determination system, and has introduced a system of
judicial waiver. Through the judicial waiver, it gives a fair opportunity to consider a child as a criminal

59
Shilpa Mittal vs State Of Nct Of Delhi on 9 January, 2020
60
Moot Proposition, para 10
61
Moot Proposition, para 8
62
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873,891: (1981) 2 SCC 600
63
Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057.
64
Welfare Asson, ARP v. Ranjit P. Gohil, (2003) 9 SCC 358
65
Sunita Bugga v. Director of Education, 2010 (7) AD (Del) 727: 2010 (5) SLR 535 (Del-DB).
66
Rajiv Kumar vs. The State of Bihar, 2020(1)PLJR 662

5|Page
 between the age group of 16-18 years which keeps his reformation at bay. This is a very subjective process
which creates scope for an enormous amount of arbitrariness.

[20]. Thus, if a classification is not proved on the touchstone of the principle whether the classification is
reasonable, having an intelligible differentia and a rational basis germane to the purpose, the classification
has to be held as arbitrary and discriminatory.67Therefore in light of the foregoing arguments, it is humbly
submitted that thesec. 15 of the Juvenile Justice Care and Protection Act, 2012doesn’t possess the essential
elements of both the stages and thus, violates Art. 14 of the Constitution.

2.2 The impugned section violates Art. 15(3) of the constitution.

[21]. Section 15 of the Juvenile Justice Care and Protection Act, 2012 mandates the Juvenile Justice Board 68 to
conduct the assessment 69 only in matters of “heinous crimes” 70 and when the board with the help of
eminent psychiatrist confirms that the children were well aware of their actions and consequences while
committing the offence then only, they are considered to be tried as adults.The inclusion of Art. 15(3) has
affixed under the concept of “Protective Discrimination” in theConstitution and has strengthened the
vulnerable sections of the society that has been discriminated a lot. It also permits the state to make
provisions for children thereby understanding that the children are the mainstay of the country.
[22]. In the case of Salil Bali V. Union Of India,71it was observed that,“The essence of the Juvenile Justice Act
and rules made therein is restorative, not retributive,providing for rehabilitation and reintegration of
children in conflict with law into mainstream society. The age has been fixed on account of experts of
child psychology and behavioural patterns that till such an age the children in conflict with the law could
still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future.”
[23]. The“Doctrine ofParens Patriae” plays a vital role while making legislation for the juvenile. In the
dictionary of “Words and Phrases”72, it is stated that Parens Patriae is the inherent power and authority of
a legislature to provide protection to the person and property ofpersons non sui juris, such as minor,
insane, and incompetent person.It is crystal clear that the sole objective of the Juvenile Justice (Care and
Protection of Children) Act, 2012is the “welfare of the children”.The scheme of this Act is that children
should be protected73 .
[24]. However, the amendment passed is draconian and against the main objective itself, because punishments
can never pave the way for welfare of a child. In case,if a crime is committed by a child, then the approach
of the state should be reformative rather than punitive or retributive. The law of juvenilejustice stands on
the principle of restorative justice and any infraction from the same would be in conflict with the rights of
the children and would be in transgression with the principle under Art. 15(3) of the constitution. In the

67
Sube Singh v. State of Haryana, (2001) 7 S.C.C. 54
68
Durga v/s. State of Rajasthan- 2019 CriLJ 2720
69
Sachin Vs. State of U.P. and Another MANU/UP/0554/2020
70
Bholu vs. C.B.I. 2019(1)RCR(Criminal)603
71
AIR 2013 SC 3743
72
Permanent Edition, Vol. 33 at page 99
73 Shilpa Mittal vs State Of NCT Of Delhi Arising out of Special Leave Petition (Crl.) No. 7678 of 2019

6|Page
 present case, the three juveniles have been sentenced to eight years of rigorous imprisonment each 74,
which is not restorative and would certainly confiscate their vital years of intellectual growth.

2.3. The impugned section is in violation of Art. 21 of the Constitution.

[25]. “The right to life”75 guaranteed by Art. 21 of the constitution includes “the right to livelihood” 76. In the
case of Olga Tellis & Ors v. Bombay Municipal Corporation,77” a five-judge bench of the Court implied
that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living.
That the court, in this case, observed that: “The sweep of the right to life conferred by Art.21 is wide and
far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by
the imposition and execution of death sentence, except according to procedure established by law. That
is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”

[26]. In the present case, the juveniles have been sentenced to eight years of rigorous imprisonment when they
were determined to be well aware of their actions by the juvenile justice board but the whole procedure of
examining their mind by the board is a very subjective process and attracts arbitrariness on which life of
the juveniles can’t rely upon. Furthermore, the main essence of the Juvenile Justice care and protection
Act, 2012 is welfare of the children but in the instant case, they have been sentenced eight years of rigorous
punishment which takes away the most vital years of growing and learning which directly infringes their
right to livelihood.

3.WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)ACT,

2012 IS CONSTITUTIONAL?

[27]. It is humbly submitted that,the challenged act violates the principles of constitution and lacks
constitutional validity.As: (3.1) It is vague andarbitrary in nature. (3.2)Juvenile Justice Care and Protection
of Children Act, 2012 isviolativeofArt. 21 (3.3) Violates the essence of Art. 20(1).

3.1The act is vague and arbitrary in nature.

[28]. Art. 14 of the constitution guarantees right to equality before law. The SC has invoked the Rule of Law
several times to protect constitutional principlesagainst the arbitrary power.If a law is vague or
arbitrary,there would be a direct encroachment on the rights and liberties protected by the
constitution.Thus,it is humbly submitted before this Hon’ble court that, the challenged statute fall in the
category of vague and arbitrary law.
3.1.1The act is arbitrary in nature.

74
Moot Proposition, para 8
75
P.C. Mishra vs Secretary To Govt. Of India2007 (2) SLJ 156 CAT
76
State Of U.P vs Charan SinghCIVIL APPEAL NO. 2381 OF 2007
77
1986 AIR 180, 1985 SCR Supl. (2) 51

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 [29]. A law may be considered as discriminatory 78 and violative of art. 14 only if the standard79 laid down by
law is arbitrary80. Each piece of legislation 81 must be in conformity82 with reasons83 and should be free
from arbitrariness.84 When a statute is impugned under Art. 14, other statute upon the similar subject
deriving its authority from another legitimate source can be referred, to find out the extent to which it does
not go beyond the constitution 85.In Shayara Bano v. Union of India &Ors.,86 the Hon’ble Court held: “The
expression ‘arbitrarily’ means; in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in the nature of things, non-rational,
not done or acting according to reason or judgment, depending on the will done.” The distinction made
is completely arbitrary as it doesn’t take into consideration the immaturity of a child and focuses on only
gravity of the offence.

[30]. Further under Sec. 15 of the Juvenile Justice Care and Protection of Children Act, 2012, the word "may"
has been used.In its' proviso part,it has been provided that for such an assessment, the board may take the
assistance of experienced psychologists or psycho-social workers or other experts. The word "may" does
not make it mandatory or obligatory for the board to take the assistance of psychologists to determine the
mental capacity of the juvenile,thus it solely depends on the discretion of the board, hence it is arbitrary
in nature.

3.1.2The sections of the act are vague.

[31]. In the absence 87 of any guidance 88 , the statute 89 is considered 90 vague91 . The need 92 of crimes 93 to be
defined94 with appropriate definiteness95 is regarded as a fundamental concept 96 in criminal law and is
regarded as the part and parcel of Constitutional 97 value98 since the decision in Maneka Gandhi V. Union

78
A.P. Grains & Seeds merchants Association v. Union of India
79
Nandlal v. State of Punjab, AIR 1981 SSC 2041
80
AIR 1971 SC 1986
81
Sita Ram v. State of Uttar Pradesh, AIR 1979 SC 745
82
Jolly v. Bank of Cochin, AIR 1980 SC 470 (para. 10)
83
Sunil Batra (I) v. Delhi Administration I (1978) SC 1675
84
Netai Baig v. State of W.B., ( 2000) 8 SCC
85
Javed v. State of Haryana, AIR 2003 SC 3057
86
(2017) 9 SCC 1
87
Collector of Custom v. Nathella Sampathu Chetty, AIR 1962 SC 316
88
P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226
89
Harakchand v. Union of India, AIR 1970 SC 1453
90
State of A.P. v. Shree Ramarao, AIR 1963 SC 1723
91
K.A. Abbas v. Union of India, AIR 1973 SC 123
92
Dr. Ram Krishna Bharadwaj v. State of Delhi, AIR 1953 SC 318
93
Kathi Raning v. State of Saurashtra, 1952 SCR 435
94
Nandlal v. State of Haryana, AIR 1980 SC 2097
95
Lakshmanrao v. Judicial Magistrate, AIR 1971 SC 186
96
Sawai Singh v. State of Rajasthan, AIR 1986 SC 995
97
Surath Chandra Chakraborthy v. State of West Bengal, AIR 1971 SC 752
98
Naresh Chandra Ganguly v. State of W.B., AIR 1959 SC 133

8|Page
 of India, 99 where it was observed that“When a statute vests unguided and unrestricted power in an
authority to affect the rights of person without laying down any policy or principle which is to guide the
authority in exercise of this power, it would be affected by the vice of discrimination since it would leave
it open to authority to discriminate between persons and things similarly situated.” The underlying
principle is that the life and liberty of a person cannot be put in the bed ambiguity.This indicates that the
law should be definite and clearly explained.In the case of Kartar Singh V. State of Punjab,100it was held
that “Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates
basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory application.” The SC has laid down the
applicable principle in the case of Naraindas v. State of Madhya Pradesh, 101
in the words,“If power
conferred by statute on any authority of the State if vagrant and unconstitutional and no standards or
principles are laid down by the statute to guide and control the exercise of such power, the statute would
be violative of the equality clause.”

[32]. Under Sec. 15 (2), it has been stated that where the board is satisfied on preliminary assessment that the
matter should bedisposed of by the board, then the board shall follow the procedure, as far as may be,
fortrial in summons case under the CrPC, 1973.Here, the requirements regarding the satisfaction of the
board is a subjective and discretionary condition,which can not attract the protection of art.14.There is
no proper procedure or any expressed provision to fulfill the essential elements of satisfaction.This
amounts to the absence of any guidance at all.It is humbly submitted that in the absence of any expressed
requirements,the manner of preliminary assessment and the satisfaction of the board may differ from
board to board,thus the act is vague and arbitrary.
3.1.3 Falls under the category of sham legislation.
[33]. In the case of Snook V. London & West Riding Investments, 102 the Hon’ble Court defined a sham
legislation and held that, “acts done or documents executed by the parties to the “sham” which are
intended by them to give to third parties or to the court the appearance of creating between the parties,
legal rights and obligations, different from the actual legal rights and obligations (if any) which the parties
intend to create.”A sham exists where the parties act one thing intending another.
[34]. In the present case, the said provision and the intention of the state is not clear, as the act envisages to
protect the rights of the juveniles but the impugned sections reverses the whole scenario and eventually
turns against the rights of the juveniles. Hence,the law falls under the category of sham legislation, making
it void.
3.2 Juvenile Justice Care and Protection of Children Act, 2012 isviolativeofArt. 21.

99
Maneka Gandhi v. Union of India (1978) 2 SCJ at 350
100
1994 SCC (3) 569, JT 1994 (2) 423
101
Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232
102
[1967] 2 Q.B. 786 (17 January 1967)

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 [35]. Art. 21 states that “ No person shall be deprived of his life or personal liberty except according to
procedure established by law.”In the landmark case of Maneka Gandhi v. Union of India, the court laid
down that “law should be just, fair and reasonable.”

3.2.1. Right of Fair Trial has been violated.

[36]. Right to free and fair trial 103 is a sine qua non 104 of Art. 21 of the Constitution. 105 Right to get
a fair trial is not only a basic fundamental right106, but also a human right107. In Asha Ranjan V. State
of Bihar & Ors.,108 wherein it was held that “Fair trial is a concept that in its ambit and sweep covers
the interest of the accused, prosecution, victim and in certain circumstances community interest as
well.”

[37]. The term ‘Natural justice’ 109 is concerned with two primary rules. These are ‘Nemo Judex In Causa
Sua’i.e., rule against bias and ‘Audi Alteram Partem’110i.e., rule of fair hearing. In J. Jayalalithaa & Ors
v. State of Karnataka & Ors,111 the Court held that, “Fair trial is the main object of criminal procedure
and such fairness should not be hampered or threatened in any manner.Fair trial must be accorded to
every accused in the spirit of the right to life and personal liberty and the accused must get a free
and fair, just and reasonable trial on the charge imputed in a criminal case.” The court further laid
down that,“Denial of a fair trial is as much injustice to the accused as is to the victim and the society.”
It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial
calm.

[38]. Presumption of innocence is a cardinal rule of fair trial.If a child is decided to be tried as an adult by the
juvenile justice board, there is a high chance of assumption regarding that offence having been committed
in 'mens rea'In present case, the assessment test aims to figure out the fact that whether a Juvenile posses
capacity to commit that offence or not.In such cases,a juveline above the age of 16 is considered to be
capable unless proven otherwise,hence the doctrine of fresh start as well as presumption of innocence is
being violated.

3.2.2 Right of opportunity to be heard has been violated.

103
Sudevanand vs State CRIMINAL APPEAL NO. 174 OF 2012
104
Mohd. Hussain Julfikar Ali V. The State of NCT Delhi, CRIMINAL APPEAL NO. 1091 OF 2006
105
Asha Ranjan vs State Of Bihar And Ors WRIT PETITION (CRIMINAL) NO. 132 OF 2016 with WRIT PETITION (CRIMINAL)NO.
147 OF 2016
106
Maneka Sanjay Gandhi And Anr vs Rani Jethmalani 1979 AIR 468, 1979 SCR (2) 378
107
Abdul Rehman Antulay & Ors vs R.S. Nayak & Anr 833 of 1990
108
AIR 2010 SC 1079
109
Akhtar Hussain vs State Of Maharashtra And Anr 1999 CriLJ 4754
110
page 1513 in Constitutional Law of India (4th Edition) by Seervai
111
WRIT PETITION (CRIMINAL) NO. 154 OF 2013 with WRIT PETITION (CRIMINAL) NO. 166 OF 2013

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 [39]. One of the rules112 which constitutes 113 a part of the principles 114 of natural justice115 is the rule of “Audi
alteram partem”116which requires that no man117 should be condemned118unheard119.In the case of Charan
Lal Sahu V. Union of India,120 the SC emphasised that, “The principles of natural justice consist, inter
alia, of the requirement that no man should be condemned unheard.”
[40]. The right of opportunity to be heard has been violated in the instant case as the boys were arrested and
booked for murder on the mere fact that they were the last to meet Sam. Moreover, the boys vehemently
denied any involvement in the murder of Sam and claimed no knowledge of his whereabouts after they
returned from the woods.121They were not given a single benefit of doubt and were tried in the Sessions
Court where they were sentenced eight years of rigorous imprisonment without any strong and particular
evidence. Thus, the petitioner respectfully submits that the rights of the juveniles are being violated under
Art. 21 of the Constitution.
3.3 Violates the essence of Art. 20(1)
[41]. Art. 20(1) is divided into two parts 122;According to the first part, no person shall be convicted 123 of any
offence124 except for violation125 of the law in force126 at the time of the commission127 of the act charged
as an offence128.The second part of Art. 20(1) protects any person from a penalty129 greater than that which
might have been inflicted under the law in force at the time of the commission130 of the offence.131
[42]. In 2005, a Constitution Bench of the SC-------_______(case name), while determining the age of a juvenile
and the resulting penalty ,held that the date on which the offence is committed matters, and not the date
of apprehension.Art. 20(1) of the Constitution states that a person cannot be subjected to a penalty greater
than what would have been applicable to him, under a law in force at the time of commission of the
offence. Under the challenged act, if a juvenile above the age of sixteen commits an offence and is
apprehended at a later date at an older age for preliminary assessment test as prescribed under Sec. 15 of
the act, he may face a higher penalty than what would be applicable to him if he had been apprehended at

112
People Insurance Co. Ltd. vs Sardar Sardul Singh Caveeshar AIR 1962 P H 101, 1962 32 CompCas 125 P H
113
Girineni Srinivasa Rao And Ors. vs Girineni Radhamma And Anr 1975 CriLJ 1287
114
Union Of India And Another vs Tulsiram Patel 1985 AIR 1416, 1985 SCR Supl. (2) 131
115
D.K. Yadav vs J.M.A. Industries Ltd 1993 SCR (3) 930, 1993 SCC (3) 259
116
Tirupati Industries vs Punjab State Electricity Board (2000) 125 PLR 356
117
Suresh Koshy George v. The University of Kerala & Ors. [1969] 1 S.C.R. 317.
118
Sheikh Mohammed Sayeed vs Assistant Collector Of Customs AIR 1970 Cal 134
119
Russel v. Duke of Norfolk and Ors [1949] 1 All. England Reports 108.
120
1990 AIR 1480, 1989 SCR Supl. (2) 597
121
Moot Proposition, para 8
122
Constitutional Law ,J.N Pandey ,2020 year edition
123
Phillips v. Eyre [(1870) 6 Q.B.D. 1, at 23 and 25.]
124
Oxford English Dictionary, an offence is "a breach of law, rules, duty, propriety, etiquette, an illegal act, a transgression, sin,
wrong,misdemeanour, misdeed, fault"
125
R.K. Chawla And Anr. vs Goa Antibiotics2006 (1) ALD Cri 62, II (2007) BC 111, 2006 CriLJ 193
126
Raghunandan Prasad Mohan Lal, V. The Income Tax Appellate Tribunal AIR 1970 All 620, 1970 75 ITR 741 All
127
Calder v. Bull [3 Dallas 386; 1 Law. Edition 648 at 649.]
128
Concise Oxford English Dictionary, it means, "an act or instance of offending
129
Cement Distributors Private Ltd. V. Inspecting Assistant 1973 87 ITR 163 Mad
130
Keshavan Madhava Menon v. State of Bombay, [1951] 2 SCR
131
MP Jain,Indian Constitutional Law,8th edition 2018

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 the time of commission of the offence.
[43]. In the present case, the murder was committed on 5th Jan,2013 and the juvenile offenders were arrested
on June 21st, 2017. Subsequent to their arrest,the board conducted their preliminary assessment test as
prescribed under Sec. 15.The board, with the help of eminentpsychologists and psychiatrists, determined
that the boys were well aware of their actions and capable of being tried as adults and accordingly
committed the matter to the Sessions Court, since no special children’s court had been established 132as
per Sec. 2(20) of the act.Hence, it is obvious from the factsheet that, this assessment test has been
conducted at a much later stage after the crime has been committed and the time gap between these two
stages is sufficient for the mental capacity of a person to be developed. One may not be subjected to a
greater penalty, if it is inflicted at the time of committing the offence.Thus, it violates Art. 20(1) of the
constitution.
[44]. According to Sec. 20(1) of the Juvenile Justice Care and Protection Act, 2012, if a juvenile sentenced
under the law completes 21 years of age but has not completed the full period of his sentence,he may be
sent to jail in the default of his adaptation to reformative changes.It is humbly contended that, if such
juvenile is sent to jail on the basis of his previous record of criminal conduct, then it might be an extra-
deterrent on him violating the essence of Art. 20(1) of the constitution.Further,keeping a 21 years old with
hardened criminals will not serve the purpose of reformative theory and will hurt the soul of Art. 20(1) of
the Constitution.

4.WHETHER THE ACT IS INCONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN

RESPECT OF JUVENILES?

[45]. The counsel humbly submits that the impugned act goes against the letter and spirit of the UN Convention
on the Rights of the Child (UNCRC), a declaration to which Vidula is a signatory. The definition of child
as stated in Art. 1 goes as follows:“For the purposes of the present Convention, a child means every
human being below the age of eighteen years unless under the law applicable to the child, majority is
attained earlier.”The preamble133 of the present act states:“AND WHEREAS, the Government of Vidula
has acceded on the 11th December, 1992 tothe Convention on the Rights of the Child, adopted by the
General Assembly of UnitedNations, which has prescribed a set of standards to be adhered to by all State
parties insecuring the best interest of the child.”
[46]. The objective clause in the preamble of the act where the government has been directed to adhere by the
convention to secure the best interest of the child is utterly disregarded. As per the amendment, the
Juvenile Justice Board, under Sec. 15of the act, will have an arbitrary power to try the 16-18 year olds as
adults. Thus, the counsel submits that the amendment which seeks to push juvenile offenders into the adult
criminal system is completely erroneous and the same is not in consonance with the UNCRC.

132
Moot Proposition, para 8
133
Preamble of The Juvenile Justice (Care and Protection of Children) Act, 2015

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 4.1 International perspective in the determination of Juvenility.
[47]. General Comment No.10, Children’s rights in juvenile justice (2007), observes that children differ from
adults in their physical and psychological development and their emotional andeducational needs, which
constitute the foundation for their lesser culpability. These and other differences are the reasons for a
separate juvenile justice system and require a different treatment for children. In the instant case, the
impugned act punished the juvenile offenders Akbar, Anthony and Surjeet retributively under the adult
criminal system 134 which goes against the very essence of UNCRC. Art. 25 of the UN Declaration
specifically provides special care and assistance to a child. The amendment takes away the very basic
human rights of a certain category of juveniles which is not justified.
[48]. Under Art. 40 (3)(a) of UNCRC, the state parties are further obliged to establish a minimum age, below
which children shall be presumed not to have the capacity to infringe the penal law. The impugned act
contravenes the convention because a certain class of children could be held capable like an adult.
Moreover, the United Nations Convention on the Rights of the Child, 1990 read with the concluding
Resolution of the Committee on Child RightsandThe General Resolution of the year, 2007 clearly
contemplate the Minimum Age of Criminal Responsibility (MACR) as 18 years and mandates member
states to act accordingly. Every person under the age of 18 years have the right to be treated as a child and
be subjected to a separate juvenile system other than the adult criminal system. In the instant case, it was
unreasonable to try the 3 boys below the age of 18 years as adults135, as Vidula is a signatory to the
declaration .

[49]. In theJuvenile Justice Care and Protection Act, 2012, Sec. 2(12) and 2(35) defines child or juvenile, as
any person below the age of 18 years. The same is reflected in various other laws such as Contract Act,
Motor Vehicles Act, Majority Act, etc. In those legal systems recognizing the concept of the age of
criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level,
bearing in mind the facts of emotional, mental and intellectual maturity.136 Therefore, it is discriminatory
in nature to fictionally classify between the children belonging to the age group of 16-18 years on the basis
of the crime ‘allegedly’ committed by them. Such classification does not have any reasonable nexus with
the objective sought to be achieved. This kind of discrimination based on their age and nature of the
offence is in contravention with the Art. 2 of UNCRC which protects children from any kind of
discrimination.
[50]. Giving its observation on the Juvenile Justice (Care and Protection of Children) Bill, the Parliamentary
Standing Committee on HRD said “The question of envisaging a differential treatment for children above
16 years of age should not arise. Such a move would lead to contravention of international law and also
the stated purpose of the bill."In Pratap Singh V. State of Jharkhand,137 the SC observed that “The courts
can refer to and follow international treaties, covenants and conventions to which India is a party

134
Moot Proposition, para 8
135
Moot Proposition
136
Subramanian Swamy v. Raju, (2014) 8 SCC 390
137
Pratap Singh v. State of Jharkhand (2005) 3 SCC 551.

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 although they may not be a part of our municipal law. A contextual meaning to a statute is required to be
assigned having regard to not only the constitution but also international law operating in the field.”
4.2 Directive Principles is inconsonance with the International Agreements.
[51]. Art. 51(c) of The Constitution of Vidula states that the State shall endeavour to, “foster respect for
international law and treaty obligations in the dealings of organised people with oneanother.”As Vidula
is a ratified member, it has an obligation to take congruous steps to ensure the rights of the children. In
Sheela Barse v. Secretary Children’s Aid Society,138 while issuing directions to the state of Maharashtra,
the SC held that “The conventions which had been ratified by India, and elucidate norms for the protection
of children, cast an obligation on the state to implement their principles.” Thus the court in a break from
its earlier judgments came to the conclusion that treaties, even if unincorporated into national law, have
binding effect.An international treaty and law of the land should go hand in hand as both of them are
equally important.
4.3 Doctrine of Harmonious Construction.
[52]. It is well-established that in case of conflict between international treaties & clear and unambiguous statute
law, courts will give effect to the latter. If statute law is ambiguous, the courts adopt the ‘doctrine of
harmonious construction’ so as to avoid conflict between international treaties and statute law. In other
words, courts construe ambiguous statute law in the context of international treaties. In the present case,
theJuvenile Justice Care and Protection of Children Act, 2012 is ambiguous in nature as sec. 2(35) states
“juvenile means a child below the age of eighteen years.” whereas under sec. 15, the juveniles who commit
heinous offences can be tried as adults. Therefore, the law is ambiguous as juveniles themselves create a
distinctive category and no further differential treatment could be done between them. As a conflict arises
between the international treaty and the national law, the doctrine of harmonious construction should be
followed.
[53]. It is respectfully submitted before this Hon’ble Court that the impugned act is against the UN Convention
on the Rights of the Child as the amendment seeks to take away the rights of a substantial class of children.
Such a scenario is travesty of justice. As Vidula is a ratified member of the UN Convention on the Rights
of the Child, it has an obligation to abide by the standard provisions of the international treaty.

138
Sheela Barse v. Secretary Children’s Aid Society 1987 AIR 656, 1990 SC1480 (52)

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