TC-05

B. M. S MEMORIAL 3RD NATIONAL MOOT COURT

COMPETITION

IN THE HONBLE SUPREME COURT OF INDIANA

WRIT PETITION (CIVIL) NO. _____ / 2017

(FILED UNDER ART. 32 OF THE CONSTITUTION OF INDIANA, 1950)

IN THE MATTER OF

SWADESHI SURAKSHA SAMITI & OTHERS . PETITIONERS

VERSUS

UNION OF INDIANA & OTHERS

RESPONDENTS

.
WRITTEN SUBMISSION ON THE BEHALF OF PETITIONERS
 MEMORIAL ON BEHALF OF RESPONDENTS

TABLE OF CONTENTS
INDEX OF AUTHORITIES........................................................................................................... III
LIST OF ABBREVIATIONS............................................................................................................V
STATEMENT OF JURISDICTION.................................................................................................VI
STATEMENT OF FACTS...........................................................................................................VII
ISSUES RAISED...........................................................................................................................X
SUMMARY OF ARGUMENTS.......................................................................................................XI
ARGUMENTS ADVANCED.............................................................................................................1
1. WHETHER THE WRIT OF MANDAMUS UNDER ARTICLE 32 IS MAINTAINABLE OR NOT...........1
1.1 Section 15 of JJ Act follows Article 14............................................................................1
1.1.1 Section 15 of JJ Act 2016 provides for a proper classification............................2
1.1.2 Class separation of teenagers of age 16-18 is reasonable...................................4
1.2 The JJ Act adheres to the procedure of fair trial and due process....................................5
1.2.1 Provisions under JJ Act 2016 are justified............................................................... 5
1.2.2 JJ Board follows due Process................................................................................... 7
2. WHETHER SEC. 15 OF JJ ACT 2016 IS IN ACCORDANCE WITH MEDICAL SCIENCE OR
NOT. 8

Age not a reasonable ground to define

2.1. Maturity ......................................................... 9
2.2. Maturity being interpreted by actions chosen. ..........................................................10
2.2.1 High Risk Taking tendency and its probable remedy. ....................................... 10
2.2.2 Psychological Factors. ...................................................................................... 11
3. WHETHER THE JJ ACT 2015 COMPLIES WITH THE INTERNATIONAL COVENANTS? ......12
3.1 If the UNCRC is open ended enough to include the discretion of the individual
governments. ........................................................................................................................12
3.2 The jj act 2015 is in conformity with the Beijing rule. ............................................. 13
3.2.1 Beijing rules gives a possibility of the penological punishment along-side the
rehabilitation of the juvenile offenders. ...........................................................................14
3.3 The obligations laid down in Convention on the Rights of Child 1990 is followed in
the JJ Act of 2016. ...............................................................................................................15
PRAYER .................................................................................................................................... 17

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INDEX OF AUTHORITIES

I. CONSTITUTION

The Constitution of India, 1950.

II. STATUTES

Juvenile Justice Act, 2016.

III. INTERNATIONAL CONVENTIONS

United Nations Convention on the rights of the child, 1989,

UN Guidelines for Prevention of Juvenile Delinquency (Riyadh Guidelines) 1990

UN Standard Minimum Rules for administration of Juvenile Justice (Beijing Rules)

1985

Guidance for Legislative Reforms on Juvenile Justice (Havana Rules) 1989

IV. LIST OF CASES

INDIAN CASES

Dr. Subramanian Swami and Ors vs Raju Thr. Member Juvenile Justice Board and

Anr. (2014) 8SCC 390................................................pg.02

D S Nakar & Ors.v Union of India, 1983 AIR 0130 SC.....................pg.02

E.V. Chinnaiah vs State of A.P (2005) 1SCC 394...pg.03

Ravji v. State of Rajasthan, (1996) 2 SCC 175...pg.07

State of Karnatka v B.Suvarna Pillai, (2001) 1 SCC 728...pg.02

State of Kerala vs N M Thomas, (1976) 2SCC 310pg.07

State of MP vs Gopal D. Thirthani, AIR 2003 SC 2952.pg.02

Subramanian Swamy v. Raju, (2014) 8 SCC 390...pg.09

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FOREIGN CASES

Leary v. National Union of Vehicle Builders, (1971) Ch. 34, p. 49....pg.19

V. BOOKS REFERRED

Dr. DD Basu, Commentary on the Constitution of India,(LexisNexis).

R N Chaudhary, Law Relating to Juvenile in India, 3rd Ed. (Orient Pub. Company).

VI. WEBSITES

www.legallyindia.com
www.livelaw.in
www.themyLaw.netbloghtml
www.legallyindia.com/blog/ Juvenile-Justice-Care-&-Protection-of-Children-Act
2016/
www.prs.india.org/parliamenttrack/report-2628/

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LIST OF ABBREVIATIONS

& And

Paragraph

ALL Allahabad High Court

AIR All India Record

Art. Article

Constitution Constitution of Indica

Honble Honourable

Ors. Others

SCC Supreme Court Cases

SLP Special Leave Petition

Vs / V. Versus

W.P Writ Petition

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STATEMENT OF JURISDICTION

The respondent has the honor of challenging the Special Leave Petition no. /2017 in the
Honble Supreme Court of MANDIA under Article 21 of the Constitution of MANDIA, 1949.

The Respondent humbly submits to the Jurisdiction of this Honble Court. The present
memorandum sets forth the facts, contentions and arguments for the petitioner in the present
case.

Article 136: Special leave to appeal by the Supreme Court:

1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

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STATEMENT OF FACTS

I.

Satya, was a poor boy who lived in the slums in the outskirts city of Golia, State of Maharaj

Pradesh, in the Republic of Indica. He was dropped out of school after Sixth standard, due

to financial constraints. Since then he is employed in the house of Mr. Rajan, who by caste

is a Scheduled Caste.

II.

Satya was employed by Mr.Rajan to look after the household works and allied chores. It had

been six years since Satyas employment, he was given a servant quarter to live in. Two child

named Vansh a boy of age 18 and Vani a girl of age 16 used to mistreat Satya every now and

then, even for trivial matters.

III.

One day Shashi, aged 17 years 11 months, son of Mr. Saxena neighbor of Mr. Rajan was

playing soccer in the society. Vansh and Vani were jogging there as per their daily routine.

While Shashi was playing soccer, the football hit over the head of Vani and gave her a minor

head injury. Over this, Vansh got furious and verbally started abusing Shashi, which in no

time resulted in a heated quarrel between the two

IV.

Another day, Vansh asked him to bring something Satya could not bring it because of its

unavailability in market, subsequently Vansh started abusing him. On this Vansh harshly

abused Satya. Mr. Rajan never did pay heed to the complaints by Satya against Vansh and

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Vani. Shashi witnessed Vansh abusing Satya in the vicinity of the society on another

occasion. Later he spoke to Satya on the same matter and both of them shared same feeling of

hatred towards Vansh and Vani.

V.

As it was Sunday Mrs. Rajni (wife of Mr. Rajan.) had planned to visit a painting exhibition

with her family. But in absence of Mr. Rajan she decided to continue the program with her

children, who were very eager to visit the same. Satya had prior knowledge about the

aforesaid Plans.

VI.

th
At 6:30 p.m. on 6 March, 2016, Mrs. Rajni along with her children reached the venue

which was located in the remote and isolated part of Golia. Meanwhile around 8:30 p.m.

Vansh found out that the sister Vani has gone missing from the place. They looked all over

the place but could not find her. At 10:00 p.m. when guard came to switch off the lights he

found the girl lying unconscious. He immediately informed Vansh and his mother she was

identified by them. They took her back home.

VII.

The other morning, Mr. Rajan reached back home. Vani narrated the entire story to the

family that she was taken away by Shashi and Satya to the basement where they tried to

outrage her modesty. She stated that she was subjected to rape. When shouted for help her

mouth was forcefully shut and in a sudden haste she was strangulated. Thereafter, she fell

unconscious and boys ran away.

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VIII.

th
A FIR was made against Shashi and Satya on the 7 March, in the nearest police station,

which was registered under section 323, 354-B, 366-A, 376, and 37-D read with section 34

of the Indica Penal Code, read with section 3 & 4 of the protection of children from sexual

offences Act, 2012 No. 32 of 2012 and section 3(i)(w) (i), section 3 (i) (w) (ii) and section 3

(2) (v) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2015 ( No. 1 of 2016).

IX.

th
On 8 March 2016, the investigating officer arrested Satya and Shashi. The case was sent to

JJ board as both of them were minor. A preliminary assessment was about to be made under

section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, (2 of 2016), so

that it will be decided that they may be tried under section 18 (3) of the juvenile Justice (Care

and Protection of Children) Act, 2015, (2 of 2016), by the regular Sessions Court or whether

it will be dealt by JJ Board.This apprehended Satya and Shashi that their case might be

committed to the Sessions Court. In addition to that both of them were continuously subject

to harassment by Mr. Rajan and his children so both of them challenged the constitutional

validity of section 15 of the Juvenile Justice Care and Protection of Children) Act, 2015, (2 of

2016), in the Supreme Court of Indica.

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ISSUES RAISED

-ISSUE 1-

WHETHER THE SPECIAL LEAVE PETITION UNDER SECTION 136 OF CONSTITUTION OF MANDIA

IS MAINTAINABLE OR NOT.

-ISSUE 2-

WHETHER SEC. 15 OF JJ ACT 2016IS IN ACCORDANCE WITH MEDICAL SCIENCE.

-ISSUE 3-

WHETHER THE JJ ACT 2016 COMPLIES WITH THE INTERNATIONAL COVENANTS.

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SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF CONSTITUTION OF

INDICA IS MAINTAINABLE OR NOT.

The article 32 (1) comes into play only when the fundamental rights are violated here

in this case there is no violation of any particular fundamental rights rather the

legislation thus in question is in conformity with article 14 that is right to equality and

article 21 which discusses the right to life and in this particular situation right free and

fair trial.

2. WHETHER SEC. 15 OF JJ ACT 2016 IS IN ACCORDANCE WITH MEDICAL SCIENCE

NEUROLOGICAL STUDY OF MENTAL DEVELOPMENT .

According to the study of medical Sciences it is evident that logical development of a

juvenile is complete with the age of 16 as is the case that this age group of 16-18 is

the most logical the issue is psychological development which cannot be used as that

is very subjective and different for different people, thus if considered will hamper

administration of justice.

3. WHETHER THE JJ ACT 2016 COMPLIES WITH THE INTERNATIONAL COVENANTS.

International conventions like UNCRC and the reports and guidelines furthering the

rights of children like that of Riyadh guidelines and Beijing rules and also the Havana

convention the individual governments of the signatory states the right to have a

varied interpretation for the same according to and in consonance with the idea of

justice, Societal Norms as prevalent in the country.

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ARGUMENTS ADVANCED

1. WHETHER THE WRIT OF MANDAMUS UNDER ARTICLE 32 IS MAINTAINABLE OR NOT.

It is humbly submitted before the learned bench that the writ petition filed by the rights given

1 2
unde 32(1) under Art. 32(2) of the Constitution of Indica is not maintainable in the Honble

Supreme Court as no known fundamental rights have been violated. Section 15 of JJ Act

specifically the part which give the board constituted under the JJ Act 2016 is given power to

3
send the cases to childrens court under CrPC which is contested here is very much in

accordance with the fundamental rights namely Art. 14, Art. 15, and Art. 21 of the

Constitution of Indica. Art.14 talks about right to equality which says that unreasonable or

4
over classification with in a society is against the very essence of the idea of equality .

Moreover, classification within classes is very much constitutional Article 21 which also

includes right of fair trial is nowhere being violated in as much as the juvenile is subjected to

a provision which is clear and his personal liberty is taken only by due process which may be

discretionary but is not arbitrary.

1.1 SECTION 15 OF JJ ACT FOLLOWS ARTICLE 14.

It is humbly submitted that Art. 14 which talks about right to equality is being furthered by

the JJ Act 2016. Right to equality although prohibits any arbitrary class legislation, it

1 32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
2 32 (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
3 15. (1) In case of a heinous offence alleged to have been committed by a 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
circumustances in which he allegedly committed the offence, and may pass an order in accordance with the
provisions of subsection (3) of section 18: Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or other experts.
4 Dr. Subramanian Swami and Ors vs Raju Thr. Member Juvenile Justice Board and Anr. (2014) 8SCC
390.

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accepts classification based on reasonable grounds. Treatment of un-equals as equals will

defeat the purpose of the provision. Also it is known that classification within class is

5
allowed if it achieves a specific end. On the contrary, an over-classification which fails to

6
establish a direct link with the object intended to achieve links violates equality clause .

It is humbly submitted that if a classification withstands the test of reasonability as

mentioned under Art. 14 of the constitution of Indica then it can be a proper ground for

7
classification. Supreme Court has held that the legislature as well as the executive while

dealing with diverse problems arising out of infinite variety of human reaction must of

8
necessity have the power of making special laws, to attain a particular object.

1.1.1 Section 15 of JJ Act 2016 provides for a proper classification.

It is humbly submitted that the rationale behind providing distinct class called juvenile

and their protection was with an intention to safeguard a class of individuals not based

on age specific but on mental capacity and ability to form mens rea. It was contested in

9
Nirbhaya Gang Rape case that, the court has to read down to understand true test of

juvenility as not being age but mental maturity.

The medical science accepts that mental development is not in any set generalised

manner. Therefore it could easily be possible that a kid of 14 could have the avility to

understand the gravity of an act as opposed to another of 16 years. The notion of Doli

incpax ends after the age of 12. The only reason for giving special treatment to juveniles

between 12 to 18 was their mental capacity having said that the learned bench has to

analyse that a class of juveniles is made based upon their mental maturity and thus a

5 State of MP vs Gopal D. Thirthani AIR 2003 SC 2952

6 2 DD Basu Commentary on Constitution of India pg. 1402
7 D S Nakar & Ors.v Union of India, 1983 AIR 0130 SC
8 State of Karnatka v B.Suvarna Pillai, (2001) 1 SCC 728.
9 Dr. Subramanian Swami and Ors vs Raju Thr. Member Juvenile Justice Board and Anr. (2014) 8SCC 390.

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blanket age classification is against legislative intent. Thus the learned bench needs to

read down this intent of legislature while making a different class for juveniles.

It is humbly submitted that mental intent required in any criminal act is decided by the

facts and circumstances of the case. Mens rea is the intention with which a person does

any act which is wrong in case of an offence, the end of doing any act is its motive the

course chosen by a person to achieve this motive shows what he was willing to do and

10
his mental state or maturity in the present case.

In the present case the juveniles were aggrieved from the victim and in order to manifest

their anger or plainly to give it back to her, which was the motive, they chose the act of

rape. They fully had the intention to inflict harm over the victim in this particular

manner itself as they were able to understand what is sanctity for a woman. A proper

planning and choosing this particular act to take revenge shows clear intention and

knowledge of consequences of their act. They could have chosen any other normal way

of manifesting their anger like a verbal argument, physical fight but rape and the nature

of harm it brings to a girl was well analysed and then executed by them.

It is under situations like these that the maturity of the mind and ability to understand the

nature and consequences of the act show an elevated mental state capable enough of

forming guilty mind. The entire essence of JJ System is to safeguard juveniles on the

plea that they have limited maturity to understand what is right and wrong. Coldblooded

and pre-planned acts like these show a mental state equal to any adult and thus demands

a special attention.

10 P S A Pillai Criminal Law pg. 44 12th edition

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1.1.2 Class separation of teenagers of age 16-18 is reasonable

It is humbly submitted before the learned bench that the classification is required and fits

the test laid down by the court. It will be a mistake to assume a priori that there can be

no class within a class, if there are intelligible differentia which separate a group from

within that class from rest and that classification has a nexus with the object there can be

11
no objection of the same. The test for such classificartion is the true principles

menationed above, any umbrella classification without any concrete ground for such will

fail to establish intelligible differentia. The court has held that a distinction made only on

12
the basis of caste will not form a proper class. In a similar manner classification made

on age lacks concrete grounds while that with age as well as mental state assessment

makes a concrete ground to form intelligible differentia because of medical facts telling

that mental maturity is different for different individuals. The second point of

establishing a nexus with the object to attain is also properly fulfilled by the new

provisions of JJ Act 2016. The object of classification was never based on age per se but

on culpability and mental state. The frontal lobe attains the logicality and comparative

analysing capacity enough within this time to form mens rea.

Thus it is humbly submitted that this classification not only provides the proper

scientific and concrete ground for distinction but the object to be attained is also clear

inasmuch as those juveniles having less mental maturity will be safe-guarded but others

will have a regular trial which is required for public interest. Supreme court of India has

said that the legislature which has to deal with diverse problems arising out of infinite

variety of human relations must of the necessity have the power of making special laws

to attain particular objects; and for that purpose it must have large powers of selection or

11 State of Kerala vs N M Thomas, (1976) 2SCC 310

12 E.V. Chinnaiah vs State of A.P (2005) 1SCC 394

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classification of persons and things upon which such laws are to operate. Therefore

classification and sub classification are not per se bad in the eyes of law.

It is humbly submitted that hence treating juveniles between 16 to 18 years in case of

heinous crimes after medical assessment out of JJ system is in accordance with Art.14 of

the constitution of Indica.

1.2 THE JJ ACT ADHERES TO THE PROCEDURE OF FAIR TRIAL AND DUE PROCESS

It is humbly submitted before the Honble Court that right to free and fair trial form one of

the main objectives of Art. 21 which talks of right to life and personal liberty. Also no law is

supreme to the principles guided by the Constitution. Every person, therefore, has a right to a

fair trial by a competent court in the spirit of the right to life and personal liberty. The object

and purpose of providing competent legal aid to undefended and unrepresented accused

persons are to see that the accused gets free and fair, just and reasonable trial of charge in a

criminal case. Articles 10 of the UDHR declares that everyone entitle in full equality to a fair

and public hearing by an independent and impartial tribunal, in the determination of his legal

14
rights and obligation and of any criminal charges against him . India being a signatory to the

UDHR abides by the principle of fair trial. Here in this matter where the procedure of trial

under JJ Act is being questioned, it is imperative to mention that JJ Act explicitly finds

mention of a fair trial of the child when sent to the childrens court after the assessment.

1.2.1 Provisions under JJ Act 2016 are justified

It is humbly submitted before the court that under section 15 of the JJ Act 2015, in case of a

heinous offence alleged to have been committed by a 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

13 Ameeroonissa vs Mahboob, 1953 SCR404 (414)

14 Article 10, United Nations Declarations for Human Rights (UDHR)

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of the offence and the circumstances in which he allegedly committed the offence, and may

15
pass an order in accordance with the provisions of subsection (3) of section 18 . In an

explanation, for the purposes of this section, it is clarified that preliminary assessment is not a

trial, but is to assess the capacity of such child to commit and understand the consequences of

the alleged offence. The explanation of this section that assessment of the child under this

section is not trial instead an assessment which indicates that the very principle of

considering the innocence is held high. The principle says that everyone should be

considered innocent before the guilt has been proved.

In section 14(5) (c) of JJ Act it has been mentioned that every child brought before the Board

shall be given the opportunity of being heard and participate in the inquiry; in section 14(5)

(d) cases of petty offences, shall be disposed of by the Board through summary proceedings,

as per the procedure prescribed under the Code of Criminal Procedure, 1973; in section 14(5)

(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure,

for trial in summons cases under the Code of Criminal Procedure, 1973; in section 14(5) (f) )

inquiry of heinous offences, (i) for child below the age of sixteen years as on the date of

commission of an offence shall be disposed of by the Board under clause (e); (ii) for child

above the age of sixteen years as on the date of commission of an offence shall be dealt with

in the manner prescribed under section 15.

It is humbly submitted that when the child after the decision of the JJ Board is transferred to

childrens court the childrens court gives the child proper assistance for his representation

and he goes under fair trial as childrens court follow the procedure of fair trial under section

304 of Cr.P.C. The Cr.P.C. provides that in all criminal prosecutions, the accused has a right

to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases,

where the accused is unable to engage counsel, to appoint a counsel for him at the

15
Section 15 Juvenile Justice (care and protection) Act 2015
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expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is

until convicted, presumed to be innocent.

1.2.2 Juvenile Justice Board follows due Process

It is humbly submitted before the learned bench that the legislation and the procedures

established by the JJ Act 2016 are within the purview of due process. Due process is

16
conveniently understood means of procedural regularity and fairness. Our supreme court has

laid down the principles for determining the reasonableness of restriction imposed by Law

17
upon the exercise of fundamental right, broadly following the lines of American Decisions ,

even though we have no due process in our constitution. The JJ Act is in compliance to both

the procedural and substantive due process as it follows the procedures established through

the Act and also the law is not vague but reasonable within its meaning and does not restrict

excessively. In the realm of criminal proceedings due process is a concept in which no man

18
can be punished for the violation of the Law which is Vague and not definite in its meaning.

A statute is vague within its meaning if a man of common intelligence is unable to determine

19
whether or not he is committing the offence . In this aspect the JJ Act is very clear and far

away from being vague and it leaves no ambiguity in order to construe whether he is

committing an offence or not.

It is humbly submitted before the court that the principles of Rule of Law and Equality are

imperative to have a ''fair trial" in criminal proceedings in India, because, "when there is a

goose on the trial side there ought not be a fox on the jury." Fair trial in criminal proceedings

seems to be a highly intellectual, comprehensive system of thought conveying that the

affected person need not carry the impression that he ought to be satisfied with an unjust trial

16 Constitutional Interpretation by CRAIG R DUCAT, 8th edition 2002, pg.475

17 Elaborate discussions in authors Tagores Law Lectures on Limited Government and Judicial Review
18 3 D.D Basu, 8th edition 2008 pg. 3093
19 ibid

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and a fair appeal. Thus, fairness of justice in theory as well as practice is the core of fair trial

in criminal justice process inasmuch as that "it is the nature and the gravity of the crime but

not the criminal, which are germane for consideration of appropriate punishment in a

criminal trial. The court will be failing in its duty if appropriate punishment is not awarded

for a crime which has been committed not only against the individual victim but also against

the society to which the criminal and the victim belong . . . . and it should respond to the

21
society's cry for justice against the criminal."

It is humbly submitted before the honble bench that the JJ Board assess them and the

childrens court which tries them does not violate the right to free and fair trial instead it

gives them a fair chance of defence and follows due process. The trial is done and the

punishment in relation to the crime committed is to reform the juvenile and not to punish

him. So that the public order is maintained. Everything in this Act from assessment till trial is

child-friendly, and is in nowhere violation to the right to free and fair trial.

2. WHETHER SEC. 15 OF JUVENILE JUSTICE ACT 2016 IS IN ACCORDANCE WITH MEDICAL

SCIENCE OR NOT.

It is humbly submitted before the Honble bench that the grounds of medical differences in

the case of adults and that of juveniles as is not a very valid ground to differentiate between

the adults and juveniles as the teenagers of age 16-18 are mature enough to differentiate

between the wrongs and right and also medical grounds are very strict on the fact of the

logical development is mature enough in the level of these adolescent and in the case of

physiological development, it is different for different people. Systematic research does not

support the stereotype of adolescents as irrational individuals who believe they are

20 Leary v. National Union of Vehicle Builders, (1971) Ch. 34, p. 49

21 Ravji v. State of Rajasthan, (1996) 2 SCC 175

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invulnerable and who are unaware, inattentive to, or unconcerned about the potential harms

of risky behavior. In fact, the logical-reasoning abilities of 15-year-olds are comparable to

those of adults, adolescents are no worse than adults at perceiving risk or estimating their

vulnerability to it (Reyna & Farley, 2006), and increasing the salience of the risks associated

with making a potentially dangerous decision has comparable effects on ado lescents and

adults (Millstein & Halpern-Felsher, 2002)

2.1. AGE NOT A REASONABLE GROUND TO DEFINE MATURITY

It is humbly submitted that medical facts cannot be argued as they being facts but the

22
analogy or the deduction drawn from them is what needs to be justified. Brain science

accept that a childs brain works in a different manner than that of adults but to what

extent of it can be considered in decreasing the culpability is what is contested. The brain

of child is still in developing phase and the frontal lobe is the place which is last to attain

23
full maturity. But this maturity and ability to understand the nature of any action in real

world scenario is not entirely dependent on biological grounds. Sociological,

24
psychological and some inherent differences overall decide the process. Though a vague

age group can be given, in which few mental similarity could be found but medical

science till now is not able to give exact state on mind or such generalized state of mind

based on age group.

What is meant is that medical science itself, accepts that this brain mechanism is a very

subjective sphere and differ from person to person vividly. So while science could provide

tangible amount of myelin change or pruning, it could not say as to given figures of these

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

23 Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain Development and Legal
Culpability,
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_A
dolescence.authcheckdam.pdf.
24 Sara B. Johnson, Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience
Research in Adolescent Health Policy, http://www.jahonline.org/article/S1054-139X(09)00251-1/abstract.

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tangible changes in the brain how an entire age group will act. The only way to find it out

is by personally analyzing each case keeping in mind the environment in which the mind

has developed, its nutritional capability and the psychology of that brain. These and the

circumstances help in bringing a picture of what is within a mind. Therefore it is evident

that age based mind setup is very vague and too generalized a term to frame a policy of

25
blanket protection to all and thus will defeat Art. 14.

2.2. MATURITY BEING INTERPRETED BY ACTIONS CHOSEN.

The reason for change in juvenile brain is because of certain changes in frontal lobe of

the brain. Brain science never says that juveniles lack logicality or understanding of

26
the real world situation . They can reasonably understand the situations and derive

logical analogies out of it. What they lack is the power to relate it with the actions

they want to do. They can interpret any action and can understand what probable

reactions could be given. But out of given options of reaction that they can give,

choosing one over other is what decides their mental capacity. As in present case, the

juveniles could have hit Vani, could have indulged in verbal fight but planning and

executing rape to a girl meant that they understood the gravity of pain that act will

inflict on enemy. Thus this shows their maturity. This is where medical science brings

subjective on which every case is unique in itself and age abased classification is too

vague.

2.2.1 High Risk Taking tendency and its probable remedy.

It is humbly submitted that the reason juveniles get swayed away is because of

increased risk taking factor coming within them as peer pressure and hormonal

25 Moot Memorial pg.1

26 Aronson J. Brain imaging, culpability and the juvenile death penalty. Psychol Public Pol Law. 2007;13:115
42.

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 MEMORIAL ON BEHALF OF RESPONDENTS

27
change increase the ability and tendency to do risky acts . The question here is that

would any reformative measure will be able to curb this. The counsel believes in the

negative as it is a biological process and the way of stopping it is preventive measure

where one prevents them from taking those risk or prevent the society from coming in

contact with such individuals with a different mindset. Risk taking comes with low

28
level of opportunity cost attached to it. It is seen that when in a class a lenient

teacher is present, discipline is undermined as children indulge in activities which

they wont in any class of strict teacher. The high risk taking factor is because of

lenient laws and thus a degree on increased opportunity cost is required to deter any

probable juvenile to come in conflict with law if he is able to understand the nature of

act.

2.2.2 Psychological Factors.

Lastly the psychological factors are well known to be subjective varying from person

to person and thus a selective process as in Sec. 15 of JJ Act further this cause. It is

seen that while some children are dull from childhood, others are active, some very

unruly and others excessive obedient. This analysis is required while prescribing any

remedy in cases of juveniles. There is no point reforming a person who is inherently

violent as reformation and reasoning will not work and after a short term beyond

which JJB cannot detain a juvenile(3 years in previous JJ Act 2000), that juvenile will

be out with any reformation. But the new JJ Act provides for this assessment and an

incentive or punishment of not being release after the age of 21 will act as incentive

for reformation to them as well as will protect the public interest at large.

27 Giedd JN. The teen brain: Insights from neuroimaging. J Adolesc Health. 2008;42:33543.
28 K.D. Gaur, Criminal Law and Criminlogy, pg no 690. (Deep & Deep Pub.).

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3. WHETHER THE JJ ACT 2015 COMPLIES WITH THE INTERNATIONAL COVENANTS?

It is humbly submitted before the honble bench that the Juvenile justice act 2015 enacted by

the government of Indica, is in no way in contravention of the international conventions or

treaties. The international convention especially the UNCRC were enacted for the well-being

of the Juveniles but these convention never took away the power from the government to try

29
juveniles under penal law if the law & order of the country is at stake .

It is humbly submitted as the Government of Indica has a power to interpret treaties and

conventions as it may be enacted in the country if the convention is open ended which is very

much the case in the case of UNCRC so if the interpretation is changed by the act brought

forth by the legislation it should not be considered violating the convention rather it should be

considered very much valid.

It is also submitted that the Beijing Guidelines give the countries the right to make the rules

according to the laws prevalent in the country even in the case of juvenile justice

administration in order to maintain law and order situation in the country. Thus in no way the

law thus enacted by the legislation against the international convention.

3.1 IF THE UNCRC IS OPEN ENDED ENOUGH TO INCLUDE THE DISCRETION OF THE

INDIVIDUAL GOVERNMENTS.

It is humbly submitted before then bench that the UNCRC is no restrictive convention

which gives hard bound guidelines which must be followed as is. UNCRC give the

individual discretion to the government in order to set up the age of majority for the

particular country. For the purposes of the present Convention, a child means every

human being below the age of 18 years unless under the law applicable to the child,

29
Article 45 of UNCRC
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30
majority is attained earlier here it is important to understand and focus the

attention on the phrase unless under the law applicable to the child majority is
attained earlier making it the countrys which enacts it to decide.

It must also considered by the learned bench that UNCRC also goes on to give right

to the signatory states the option to restrict the freedom of the juvenile in the manner

31
it deems fit if it is harmful for the welfare of state and against law and order these

rights under the article 13(2) is very important factor in keeping in regard which

legislation of jj act 2015 is made, and thus does not violates UNCRC in any

particular manner.

It is also important to submit before the bench that the age of 16 18 is a valid

ground of difference UNCRC in itself differentiate between children of 15 and below

32
and 16 and above .

3.2 THE JJ ACT 2015 IS IN CONFORMITY WITH THE BEIJING RULE.

It is humbly submitted before the bench that The UN Standard Minimum Rules for the

Administration of Juvenile Justice here after referred as Beijing rules has given the right

to the different countries the right to set a age of juvenility below which the criminal

liability will be dealt differently than that of adults with the only mandate that this age

should not be to low and the idea of criminal maturity in lieu with mental emotional and

33
intellectual growth and development . It thus gives the right to

30 Article 1 UNCRC
31 Article 132.The exercise of this right may be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or
(b) For the protection of national security or of public order (order public), or of public health or morals.
32 Article 38 (3)those persons who have attained the age of 15 years but who have not attained the
age of eighteen years, States Parties shall endeavor to give priority to those who are oldest.
33 Beijing rules4.1 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.

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 MEMORIAL ON BEHALF OF RESPONDENTS

the country that in situation where it may access there it may tie the criminal liability

of similar manner that leads to adult trial for the matters relating to children.

3.2.1 Beijing rules gives a possibility of the penological punishment along-side the

rehabilitation of the juvenile offenders.

It is humbly submitted before the Honble bench that the Beijing rules in itself a very

subjective and leaves a scope of multiple interpretations. The idea of Beijing rule has

been left open and for interpretation by different countries. Thus on this ground if the

government of Indica has decided a change in the interpretation then it is very much

in the constitutionally valid.

Under the Rule 17.1 of Beijing rule, the guiding principles of adjudicating matters

involving juveniles are enlisted: (a) The reaction shall always be proportional to not

only the circumstances and the gravity of the offence, but also to the circumstances

and needs of the juvenile as well as to the needs of society; This would mean that the

gravity of offence will be a factor to change the gravity of penalty even in the case of

juveniles and need of society would be a very preemptive to the change the penalty.

Thus Beijing rules gives liberty to the government for changes in regards of the same.

(c) Deprivation of personal liberty shall not be imposed unless the juvenile is

adjudicated of a serious act involving violence against another person or of

persistence in committing other serious offences and unless there is no other

appropriate response; As regards to the change in statutes then if there is a strict

punishment which will deter the juvenile in to act a certain manner and done with

bona fide intention without any harm to the juvenile and also helps

(d) The well-being of the juvenile shall be the guiding factor while considering his

case. It is clear that the Beijing Rules do not prohibit detention of a juvenile if he

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 MEMORIAL ON BEHALF OF RESPONDENTS

is proved to have committed a violent, serious offence, or to have repeatedly

committed such serious offences though Rule 17.2 of the Beijing Rules prohibits

the imposition of capital punishment of juveniles. Thus, the Rules do not advocate

leniency in dealing with such offenders but only contemplate that detention be

limited to the most serious cases where no other alternative is found appropriate

after careful consideration.

Thus proving the point that under no condition the international conventions make it

imperative on the legislation of Indica that age of adult like treatment for juvenile is

not a valid one. Still to keep the juveniles one high regard the jj act of 2015 keeps the

wellbeing of children to foremost.

3.3 THE OBLIGATIONS LAID DOWN IN CONVENTION ON THE RIGHTS OF CHILD 1990 IS

FOLLOWED IN THE JJ ACT OF 2016.

34
Article 37(a) of the CRC prohibits the imposition of capital punishment and life

imprisonment without possibility of release on offenders below 18 years of age. Here

in this particular case section 15 when read in consonance with section 18 gives the

option that if at age of 21 when the position comes to it that juvenile is to be

transferred to the adult jail then there will be another mental assessment which will

be a possibility of release in case the juvenile has reformed from the mental state the

juvenile was in. Thus the obligatory provision of second chance as mentioned under

Art. 37(a) of UNCRC has been taken care of in section 15 of JJ Act 2015 when read

with section 18. It says that after attaining the age of 21 there will be another

assessment as to whether reformation occurred in the juvenile or not if it is found that

the mental state still remains same as of a probable criminal then and only then will

34 Article 37 States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons below eighteen years of age

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 MEMORIAL ON BEHALF OF RESPONDENTS

he be transferred to adult jail. Therefore a proper second chance is being given except

in those select cases where reformation went in vain.

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 MEMORIAL ON BEHALF OF RESPONDENTS

PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited, it is humbly

prayed that this Honble Court may be pleased to adjudge and declare that:

The petition under Art. 32 is not maintable.

Sec 15 of Juvenile Justice (Care and Protection) Act, 2016 be upheld.

The removal of petition is legal.

And any other order that this Honble court may deem fit in the interest of justice, equity and

good conscience.

Sd/-

(Counsel for Respondent)

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