TEAM CODE - D

MATS LAW SCHOOL, RAIPUR

5th Mangilal Pagaria Memorial National Moot Court Competition 2018

IN THE HON’BLE HIGH COURT OF JAMNAGAR

PUBLIC INTEREST LITIGATION

IN THE MATTER BETWEEN

INDIANA UNION OF CHILD

RIGHTS ……...PETITIONER

Versus

THE STATE OF JAMNAGAR …………RESPONDENT

(UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIANA)

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………… 04

INDEX OF AUTHORITIES…………………………………………………………….. 05-06

STATEMENT OF JURISDICTION.....………………………………………………… 07

STATEMENT OF FACTS.……………………………………………………………… 08-09

ISSUES RAISED…………………………………………………………………………. 10

SUMMARY OF ARGUMENTS...………………………………………………………. 11

ARGUMENTS ADVANCED….………………………………………………………… 12-22

ISSUE 1 :- WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER

ART. 226 OF THE CONSTITUION OF INDIANA IS MAINTAINABLE OR
NOT…………………………………………………………………………………… 12-14
1.1 Petitioner has no locus standi in the instant case…………………12
1.2 No violation of fundamental rights……………………………………. 12-13
1.3 Existence of an alternative remedy…………….………………….. 13-14

ISSUE 2:- WHETHER THE SECTION 15 OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015 IS UNCONSTITUTIONAL OR
NOT…………………………………………………………………………………… 14-17
2.1 That the mental faculty of every child can be considered equal or not…………… 16-17

ISSUE 3 :- WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE

ACT, 2015 VIOLATES ART 14, 21 AND RULE OF LAW…………………….. 17-22
3.1 The authority has applied the principle of unarbitrariness………………… 19-20

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3.2 The authorities have applied principle of reasonableness to the object or purpose of the
legislation……………………………………………………………………… 20

3.3 That the implementation of the JJ act, 2015 does not violates art 21… 20-22

3.3.1 Right of the fair trial has not been violated……………………………21-22

PRAYER…………………………………………………………………………………. 23

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

AIR All India Reporter

& AND
Anr. AnotherArt. Article

CrPC Code of Criminal Procedure

Ed. Edition
HC High Court
IPC Indian Penal Code

JJA Juvenile Justice Act

JJB Juvenile Justice Board

Sec. Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
UOI Union of India
U.P. Uttar Pradesh
V. Versus

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INDEX OF AUTHORITIES:

List of Cases :-

1. Asstt. Collector of Central Excise v. Jainson Hosiery

2. Banerjee and Mohanty(2013)
3. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.
4. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225;
5. Krishnan v. State of Madras, AIR 1951 SC 301
6. Madhya Pradesh v. Income Tax Officer, (1965) 57 ITR 637 SC
7. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
8. Namit Sharma v. Union of India, (2013) 1 SCC 745
9. Praveen Singh v. State Of Punjab, (2000) 8 SCC 633.
10. Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
11. Salil Bali v. Union of India, (2013) 7 SCC 705.
12. Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399
13. Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411
14. State of Tamil Nadu Vs. K. Shyam Sunder1 ( 2011) 8 SCC 737.
15. Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
16. Union of India v. T.R. Varma, AIR 1957 SC 882

WEBSITES REFERRED:-

1. Manupatra (www.manupatra.com) [ Last visited on 04th March, 2018]

2. SCC Online (www.scconline.com) [Last visited on 06th March, 2018]
3. Westlaw (www.westlawindia.com) [Last visited on 27th February, 2018]
4.Supreme Court of India Official (www.judis.nic.in) [Last visited on 06 March, 2018]

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STATUTES :-

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Juvenile Justice (Care and Protection of Children) Rule. 2015

3. The Juvenile Justice (Care And Protection Of Children) Act, 2007

4. The Indian Penal Code, 1860 (Act 45 of 1860)

BOOKS REFERRED:-

1. Steven M. Cox, Robert D. Hanser JUVENILE JUSTICE A Guide to Theory, Policy and
Practice(7th ed.)

2. Mamta Rao, PUBLIC INTEREST LITIGATION, Legal Aid and Lok Adalat (3rd ed.)

3. Durga Das Basu, Commentary On The Constitution Of India (8th ed.)(Vol.-2,4,8,10)

4. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

5. Richard Lawrence And Mario Hessse, JUVENILE JUSTICE

LEXICONS :-

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

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

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

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STATEMENT OF JURISDICTION

The petitioner has filed this writ petition under Article 226 of The Constitution of India for the
violation of fundamental rights enumerated in Part III of the Constitution. The Respondent
maintains that no violation of rights has taken place. Therefore, this Hon’ble court need not
entertain its jurisdiction in this writ petition.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon'ble Court the facts of the present case are
summarized as follows:

BACKGROUND

1) State of Indiana is a constitutional republic consisting of 29 states, each with a substantial

degree of control over its own affairs. The constitution of Indiana and all the laws are same as
the constitution and laws of India.

2) Rahul, Manish, and Suresh are three children who have been grown up in adverse situations as
Rahul and Manish were the abandoned children and were not known to their parentage while
Suresh was an orphan and was living his life by roaming on the streets and fighting for food each
day with the passage of his life.

3) With the passage of time all the three boys met each other and developed a deep friendship.
They developed a sense of brotherhood amongst themselves and became the partners in their
usual day to day activities. They started consuming alcohol, taking drugs together. They were
collective responsible for many petty offences for the sake of their livelihood and enjoyment and
gradually formed a notorious gang named “Devils Party”.

4) In 2014 the Devils party raised its arm and included another guy named “Kamlesh” of 13
years age. Kamlesh belonged to an affluent family and used to fulfill all the monetary demands
of the Devils Party but however after sometime he started realizing his involvement in the gang
as a wrong step taken by him. Gradually Kamlesh started maintaining distance from the gang and
hardly involved in any further activities.

5) The other members of Devils party now decided to make Kamlesh learn a lesson for his non
involvement and called him for a cordial chat on a tea stall on July 5, 2017. Kamlesh came to

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meet the gang members on Mahmood tea stall and then never retuned his place. At that time
Rahul was16 years 8 days, Manish was 16 years 4 months and Suresh was of 17 years 2 months.

6) After an extensive search for Kamlesh for two days, when the whereabouts of Kamlesh were
not discovered, the parents of Kamlesh came to Ramnagar Police station on the next day on 08th
July 2017 for registering an FIR for his disappearance. Ramnagar is a district under the province
of Jamnagar and of the state of Indiana. Kamlesh used to live with his parents in Ramnagar.

7) After two days, a dead body was found which was later recognized as the body of Kamlesh by
the forensic reports of his blood and tissue which was found near his dead body. The Autopsy
also showed the signs of struggle, footmarks, and brain haemmorrhage.

8) On 11 August 2017 Suresh was arrested on the charge of theft. On a search of the house of
Suresh, conducted by the Ramnagar Police, a diary written by Kamlesh was recovered. On strict
questions round with Kamlesh, the police came to know that the Devils party was last to meet
Kamlesh before his disappearance and they went together with Kamlesh at the Bank of river
Somti. After that, all the three collegues of Devils party was arrested for murder, by following all
the procedures of criminal law of the state of Indiana.

JUDICIAL PROCEEDINGS

10) The boys denied any involvement in, and knowledge of Kamlesh’s murder, but the board
with the help of expert psychologists came to a conclusion that the boys were well versed with
the murder of Kamlesh and can be tried as adults. Consequently the case was committed to the
sessions court of Ramnagar as there was no special courts in Ramnagar. With the help of
available evidence before it, the sessions court found the boys guilty of murder and awarded the
sentence of life imprisonment.

11) A public interest litigation was filed in the High Court of Jamnagar (The state of which
Ramnagar was a District) under Article 226 and 227 of The Constitution of Indiana by Indiana
Union for Child Rights (IUCR) an organization working for protection of child rights in the state
of Jamnagar, alleging that sec 15 of the Juvenile Justice (care and protection of children) Act

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2012 is unconstitutional and violative of Article 14, 15 of the Constitution of Indiana and the Act
itself violated Article 20 (1) of the constitution.

13) Now the High Court of Jamnagar will hear the matter.

STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER ART.226 OF THE

CONSTITUTION OF INDIANA IS MAINTAINABLE OR NOT ?

ISSUE 2

WHETHER THE SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015 IS UNCONSTITUTIONAL OR NOT ?

ISSUE 3

WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES

ART 14, 21 AND RULE OF LAW OR NOT ?

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SUMMARY OF ARGUMENTS

[ISSUE 1] THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 226 OF
THE CONSTITUION OF INDIANA IS NOT MAINTAINABLE

The writ petition filed in the High Court is not maintainable as: firstly, there existed an
efficacious alternative remedy and secondly, the writ is not maintainable on account of non-
contravention of any fundamental right. The fundamental rights of the petitioner have not been
violated. Even so, the fundamental rights are subject to inherent limitations which are imposed
by the Constitution itself and an existence of alternative remedy is sufficient to make the petition
fail.

[ISSUE 2] THAT THE SECTION 15 OF JUVENILE JUSTICE ( CARE AND

PROTECTION OF CHILDREN) ACT, 2015 IS CONSTITUTIONAL

All the requirements of instituting section 15 of JJ Act, 2015 have been filed in the instant case.
First it “does not Violates the very essence of Juvenile Justice Act”1. Secondly it does not
violates various Fundamental Rights 2. The act committed by Rahul , Manish and Suresh was
done maturely.

[ISSUE 3] THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015

DOES NOT VIOLATES ART 14, 15 AND RULE OF LAW

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

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The policy decision has a sound reason behind it. Hence Art 14 and Art 21 are not violated in
this case.

ARGUMENTS ADVANCED

1. THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 226 OF THE

CONSTITUION OF INDIANA IS NOT MAINTAINABLE

The writ petition filed in the High Court is not maintainable as: firstly, there existed an
efficacious alternative remedy and secondly, the writ is not maintainable on account of non-
contravention of any fundamental right. The fundamental rights of the petitioner have not been
violated. Even so, the fundamental rights are subject to inherent limitations which are imposed
by the Constitution itself and an existence of alternative remedy is sufficient to make the petition
fail.

1.1 Petitioner has no locus standi in the instant case:

The respondent submits that the Court has held that only if there is a violation of Fundamental
Rights can it step in under the Jurisdiction of Article 2262 . The petitioner is raising a mere
scholarly objection, without any locus standi. No one has been displaced, there has been no
forceful assimilation and no harm has been done to the juveniles. Hence when there is no
damnus, the Petitioner cannot seek a remedy. Moreover, the enactment of the Juvenile Justice
Act, 2015 has added a new dimension to the existing Juvenile Justice Act, 2000. The Juvenile
Justice Board has explicit power to hear the matters concerning the Juvenile Justice Act, 2015.
When an authority has been specifically set up to hear the issues pertaining to the nature of this
writ petition, the petitioner need not bring up this issue before the Hon’ble Court.

2
Article 226(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs for the enforcement of any of the rights
conferred by Part III and for any other purpose.

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1.2 No violation of fundamental rights: The jurisdiction under Art. 226 can be invoked only
when Fundamental Rights are violated3. It has been held that if a right, other than a fundamental
right is claimed to be violated then such questions can be addressed only in the appropriate
proceedings and not on an application under Art. 324. In the instant case, that there has been no
direct and inevitable effect on the fundamental rights5. Further any violation of fundamental right
as claimed by the petitioner is illusionary. It is submitted that in the second part of the
submission it will be shown that there is no violation of fundamental right under Article 14 and
Article 21 of the Constitution6.

1.3 Existence of an alternative remedy:-

It is submitted before this Hon’ble court that a HC does not ordinarily issue a writ when an
alternative efficacious remedy is available. Under article 226, the HC does not decide disputes
for which remedy is available under general law. The principle has been stated by SC as
follows7:

“It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he
should be required to pursue that remedy and not invoke the special jurisdiction of the HC to
issue a prerogative writ. The existence of an adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs…”

Furthermore, it is submitted that when a right or liability is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that
particular statutory remedy and not the discretionary remedy under Article 226 of the
Constitution8. In the case of Madhya Pradesh v. Income Tax Officer9the Supreme Court has held
that, when there existed an adequate alternative remedy, then the writ petition would be

3
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice
S.SSubbramani, Justice B.P Banerjee, 8th Ed. 2008).
4
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
5
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745.
6
Constitution of Indiana, 1950 parimateria to the constitution of India, 1950
7
Union of India v. T.R. Varma, AIR 1957 SC 882
8
Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399.
9
Madhya Pradesh v. Income Tax Officer, (1965) 57 ITR 637 SC.

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dismissed by the court in limine. The petitioners, in the case at hand, did not exercise the proper
course of action provided by the alternative remedies before filing the writ petition.

It is humbly submitted that the constitutional validity of Juvenile Justice (Care and Protection of
Children) Act, 2000 was upheld in the case of Salil bali v. Union of India10, therefore the act is
well within the ambit of constitution and is not violative of any Fundamental right. It was held
this Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson Hosiery11 where there is
alternative statutory remedy court should not interfere unless the alternative remedy is too
dilatory or cannot grant quick relief. Thus, the respondents humbly submit that the present writ
petition is not maintainable on the ground that alternative remedy has not been exhausted. Hence,
the writ petition to this regard cannot be maintainable.

2. SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN)ACT, 2015 IS CONSTITUTIONAL

Before delving deeper into the facts of the case it is important for us to understand with clarity
the concept of a juvenile. In common usage the term juvenile is used to refer to a person who has
not attained the age of majority i.e. not completed the 18th year of his birth. The various statues
in operation in our countries have defined the idea a juvenile in several statutes Sec 2(k)12a
“juvenile” or “Child” is a person who has not completed eighteenth year of age. Sec 2(12) 13,
“Child” means a person who has not completed the eighteen years of age.

As provided in the facts of the case and as the problem requires we hereby adhere to the
definition provided by Juvenile Justice (Care and Protection of children) Act, 2015.

More than a century ago ‘Abraham Lincoln’ said “a child is a person who is going to carry on
what you have started. He is going to sit where you are sitting, and when you are gone attend to

10
Salil Bali v. Union of India, (2013) 7 SCC 705.
11
AIR 1979 SC 1889
12
Juvenile Justice (Care and Protection of Children) Act, 2000
13
Juvenile Justice (Care and Protection of Children) Act, 2015

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those things which you think are important”14.Since a nation’s future depends upon the young
generation, the children deserves compassion and bestowal of the best care to protect this
burgeoning human resource. A child is born innocent and if nourished with tender, care and
attention he or she will blossom with the facilities physical, mental, moral and spiritual into a
person of stature and excellence15.Almost all the countries have developed Juvenile Justice
System to deal with young offenders. Importance of child is well recognized since ages.
Nowadays children are under tremendous social pressure due to new changing social perceptions
and due to this they try to commit crimes16.

Sec. 15 of JJ Act, 2015 says that suppose a child commits a crime in the heinous category section
2(k) he will then go before a Juvenile Justice Board and the Board
has psychologists, social workers and it has experts. Their job is not to condemn the children’s.
As the board will just decide that whether the child has committed the crime in an adult mind or
in a childish mind. Sec. 15 of JJ Act, 2015 is constitutional as nowhere in the Juvenile Justice
(Care and Protection of Children) Act, 2015 says that once they are tried as an adult criminal
they will be sent to the jail but they will be provided with the lawyers or their respected parents
can also hire a lawyer. They are provided with the same access of justice as adults are and hence
the children will be appearing before the Children’s Court where it will be decided that whether
they will be tried as an adults or a juvenile where they get a second chance. Even it says that they
are tried as an adults they have the power to appeal like anyone else like in High Court and
Supreme Court where no fundamental rights of the juvenile are been violated where they get an
opportunity to be heard and also their right of natural justice is not been violated. If the juveniles
are been tried as an adults they will be put into the children’s jail that is a Borstals Schools or
also known as place of safety.

In a recent rape case17 the court sentenced a teenager to 3 years in a detention centre. Although in
response to public rage, the government fast tracked tougher laws against sex crimes, it resisted
calls to change the juvenile law and return the adult age from 16-18. The trial was held behind

14
Juvenile justice system and delinquency in India
15
Legal papers and comments, Juvenile justice in India, Friday 17th March, 2016
16
Conclusions and suggestions of Juvenile Justice, Chapter V
17
Banerjee and Mohanty(2013)

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closed doors to protect his identity and media were barred from reporting on any details of
proceedings. During the trial the juvenile had been held at detention facility for violent young
offenders in Delhi and kept away from other inmates. As we are also of the opinion that the rape
of Nirbhaya and the sacrifice of her life only reinforces that India requires “De Facto” equality,
freedom from superstition, renunciation of arcane, misogynist traditions and practices which are
at variance with the Constitution, which seeks to debilitate and handicap women18

It is respectfully submitted that the present data on juvenile crime by IPC and special and local
laws in 2012 by age and gender, the number of crimes are committed in three age groups i.e.7-12
years, 12-16 years and 16-18 years. According to the NCRB report (2013) only 2% of the
juvenile crime is committed by the children below the age of 12 years, 31% by
the children between the ages of 12-16 years and 67% by children between the ages of 16-18
years19. The logical response to crime as rational behavior is tougher punishment as a deterrent.
Deterrence theory holds that punishment has a general effect, discouraging the general public
from engaging in criminal activity by striking fear in them with threat of punishment.
Furthermore, punishment is more effective if it is administered soon after the violation, and if it
is sufficiently severe.

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

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

In the instant case the three minors Rahul Manish and Suresh has committed murder which is a
heinous offence. According to sec. 15 of JJ Act, 2015 states that young offender’s mental
maturity, emotional and intellectual maturity has to be checked. In the instant case both the
juveniles were found mentally matured. According to Cesare Beccaria (1738-1794) and Jeremy
Bentham(1748-1832) their primary concern was not to explain criminal behavior but to develop
a legal system by which the punishment would fit into the crime. According to “Classical
Theory” person commits crime simply because they have made a rational decision to do
so. Classical theory has thus been referred as utilitarian approach to crime. Lawrence Cohen and

18
JUSTICE VERMA COMMITTEE report (para 34)
19
The Handbook of Juvenile Delinquency and Juvenile Justice, edited by Marvin D. Krohn, Jodi Lane

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Marcus Felson developed a version of rational theory known as “Routine activity theory”. They
concluded that crime is closely related to interaction of three variables associated with the
“routine activities” they are: the availability of suitable targets of crime; the absence of capable
guardians and the presence of motivated offenders20. In this case as the three juveniles Rahul
Manish and Suresh had suitable crime target (Kamlesh) in front of their eyes as all three of them
shared their feelings of hatred towards Kamlesh and when Kamlesh left the Devils party for his
own good and showed them his back, all three of them shared common hatred for Kamlesh and
they decided to take revenge for it.

In the instant case it was very nicely planned by all three of the minors. They called Kamlesh for
a cordial chat on a tea stall on July 5, 2017. After this meeting on Mahmood tea stall Kamlesh
then never retuned back his place. Thus the maturity level of understanding is that the intention
of the crime is deciding factor. In the instant case there was a proper plotting and planning done
by the minors as it is shown by the act that they decided to take revenge from Kamlesh. The
conduct of the minors clearly shows that all of them are matured enough as shown from the way
they executed the plan. After two days, Ramnagar Police founded Kamlesh dead on the bank of
river “Somti” as recognized by the forensic reports of his blood and tissue which was found near
his dead body. The Autopsy also showed the signs of struggle, footmarks, and brain hemorrhage.
And since police proved that the members of the devils party were the last to meet Kamlesh it is
but obvious that they are the ones to kill him because of their grudge against him.

Thus the respondents humbly submits that sec 15 of JJ Act, 2015 is constitutional and also all
three Rahul, Manish and Suresh are mature enough to commit the crime.

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

DOES NOT VIOLATE ARTICLE 14, 21 AND RULE OF LAW

It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice (Care
and Protection of Children) Act. 2015 (hereinafter as Act.) is very much in consonance with the

20
Juvenile justice Richard Lawrence and Mario Hesse

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

The Supreme Court strongly emphasized for a development in the current legislation of relating
to juvenile offender in the case of Gaurav Kumar v. The State of Haryana21. The court observed
that,

“The rate of crime and the nature of crime in which the juvenile are getting involved for which
the Union of India and the State Governments are compelled to file cases before this Court to
which the learned Attorney General does not disagree, have increased. A time has come to think
of an effective law to deal with the situation, we would request the learned Attorney General to
bring it to the notice of the concerned authorities so that the relevant provisions under the Act
can be re-looked, re-scrutinize and re-visited, at least in respect of offences which are heinous in
nature”.

The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly defined
and classified offences as petty, serious and heinous, and defined differentiated processes for
each category. Keeping in view the increasing number of serious offences being committed by
persons in the age group of 16-18 years and recognizing the rights of the victims as being equally
important as the rights of juveniles, special provisions have been made in the new Act to tackle
heinous offences committed by individuals in this age group22.

In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles, as
the materials produced before us show23. In the case of State of Tamil Nadu Vs. K. Shyam
Sunder24, the court emphasized that,

“Merely because the law causes hardships or sometimes results in adverse consequences, it
cannot be held to be ultra vires the Constitution, nor can it be struck down”.

21
2015 (4) SCALE5 31.
22
Press Note of Union Ministry of Women and Child Development, Press Information Bureau, 2014.
23
Salil Bali v. Union of India & Anr., (2013) 7 SCC 705.
24
( 2011) 8 SCC 737.

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It is humbly submitted Art. 14 of the Indiana Constitution envisage equal protection or equal
treatment in similar circumstances25. Art. 14 is a basic structure26. The requirement of the
validity of a law with reference to Art. 14 is that it should not be arbitrary and classification
should be reasonable27. It is submitted by the respondents that the implementation of the Juvenile
Justice Act, 2015 is not violative of Art.14 and the Rule of Law dealt by the juveniles.

3.1 The authority has applied the principle of unarbitrariness:

There is no cut through strait jacket formula to evolve objectively, what amounts to arbitrariness
but can only be culled out from circumstances and facts28. The respondent submits that the
Juvenile Justice Act, 2015 has not been framed arbitrarily. The decision has been taken in
consonance with various provisions of various acts in the interests of social justice. Art.
14secures all persons within the territory of India against arbitrary law as well as arbitrary
application of laws29. In the instant case the Juvenile Justice Act, 2015, as precautionary step, is
issued in order to curb the heinous offences which are been dealt by the juvenile and the crime
committed by the children between the ages of 16-18 years is 67% 30. Considering the fact that
the Executive has taken steps to implement measures to insure the safety of women in public
transport31. In the view of the Justice Verma Committee the protests are clearly a call to modern
India to renounce old ways of thinking, looking and acting towards women and are strong,
positive move towards true empowerment 32.As we are also of the opinion that the rape of
Nirbhaya and the sacrifice of her life only reinforces that India requires “De Facto” equality,
freedom from superstition, renunciation of arcane, misogynist traditions and practices which are

25
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
26
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975Supp. SCC 1.
27
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411
28
Praveen Singh v. State Of Punjab, (2000) 8 SCC 633.
29
JUSTICE VERMA COMMITTEE report (para 15) Pg. No. 29
30
National Crime Report Bureau (2013), The Handbook Of Juvenile and its Delinquency. Pg. No.55
31
Orders go out for CCTVs, bus checks, petrol vans, Indian Express, Delhi January 10,2013., JUSTICE
VERMACOMMITTEE report (para 37)
32
JUSTICE VERMA COMMITTEE report (para 39)

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at variance with the Constitution, which seeks to debilitate and handicap women33. Thus the
impugned act34 passes the test of arbitrariness and is well within the prescribed realm of Art. 14.

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

The object of the Juvenile is being fulfilled of treating the juveniles as an adult criminals who is
between the age group of 16-18 years. It is respectfully submitted that as the crimes are being
increased by the juveniles hence the tougher laws are to be implemented. The logical reasoning
to crime as a rational behavior is tougher punishment as a deterrent. Specific Deterrence
discourages offenders from repeating their crimes by threatening to punish them more harshly
the next time. Tougher laws and sanctions are effective as deterrents against crime and also the
effectiveness of punishment as a deterrent to crime depends on three factors that is creativity,
speed and severity35. Thus the harsher laws on the juveniles are been implemented so that the
heinous offence committed by the juveniles stops with a good effect. The object of the act 36 is
to provide equality to women as women are entitled not only to equality under Article 14 but are
also entitled to the equal protection of the laws. The State is responsible to live and administer
the Constitution.

3.3 That the implementation of the Juvenile Justice act, 2015 does not violates article 21

It is humbly submitted Art. 21 of the Indiana Constitution envisage the protection of life
and personal liberty. In the instant case the right of opportunity to be heard and the right of
natural justice has not been infringed because in the act37 ‘Procedure established by Law’ in Art.
21 means the law prescribed by Parliament at any given point of time. Parliament has the power
to change the procedure by enacting a law by amending it and when the procedure is so changed,
it becomes ‘Procedure established by law’ 38. Further in order to establish violation of Art. 21
the act should be subjected to the equality test of Art. 14 and test of reasonableness under Article

33
JUSTICE VERMA COMMITTEE report (para 34)
34
Juvenile Justice( Care and Protection of children), 2015
35
Juvenile Justice by Richard Lawrence & Mario Hesse( Pg. No. 30)
36
Juvenile Justice (Care and Protection of Children), 2015
37
Ibid
38
Krishnan v. State of Madras, AIR 1951 SC 301

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19 39. The Art. 14 does not strike at arbitrariness and also the test of reasonableness is also not
been satisfied. It is submitted by the respondents that the implementation of the Juvenile Justice
Act, 2015 is not violative of Art. 21.

3.3.1Right of fair trial has not been violated:

The term “Natural Justice” is technical terminology for the rule against bias (nemo iudex incausa
sua) and the right to a fair hearing (audi alteram partem)40.Conducting a fair trial for those who
are accused of criminal offences is the cornerstone of democracy. Conducting a fair trial is
beneficial for both that is to the society as well as to the accused. Right to fair trial is enriched in
Art. 21. In the act 41 it has not been said that a 16 or a 18 year old child goes to a jail. It says
that suppose a child has committed a crime in the heinous category 42 the juvenile will go before
a Juvenile Justice Board the board does not have a police, lawyer but it has psychologist, social
worker and also it has experts43. Their job is not to condemn them rather they will just decide
that whether the crime committed by the juvenile was committed in an adult mind or in a
childish mind. If Juvenile Justice Board gives a decision that the child has committed the crime
with an adult mind then the juvenile will not be sent to the jail and kept with the hardened
criminals but rather the juveniles in conflict with law would be kept for 3 years in the Borstals
School which is known as place of safety and the psychologists and the experts would be giving
the treatment to the Juveniles in conflict with law and they would be checking up the mental
capacity and once they are reformed the juveniles in conflict with law would be released and
would not be sent to the jail for rest of the time span but if they are not reformed then the
juveniles in conflict with law will be staying at the Borstals School till the age of 21 years and
then for the rest of the time span would be sent to the jail. The juveniles in conflict with law are
provided with the same access to justice as the adults are accessed. The juvenile in conflict with
law would be appearing before the court and then the Children’s Court will decide whether the
juveniles would be punished under an adult system or into a juvenile system. Thus if the

39
Maneka Gandhi v. Union of India.AIR 1978 SC 597
40
Black law Dictionary
41
Juvenile Justice (Care and Protection of Children), 2015
42
Juvenile Justice (Care and Protection of Children), 2015(sec.2(k))
43
According to section 15 of Juvenile Justice (Care and Protection of Children), 2015

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juveniles in conflict with law are not satisfied with the judgment they are provided with another
chance where they can approach the Hon’ble High Court or the Hon’ble Supreme Court. Thus by
this act 44 a large number of heinous crimes committed by the juveniles between the age of 16-18
years would be stopped and the juvenile crime is the fastest rising and hence to stop it some of
the harsher laws are to be made. In the instant case all three of them(Rahul, Manish and Suresh)
are minors and their right to natural justice has not been violated as the case was sent to the
Juvenile Justice Board and a preliminary assessment was about to be made under section 15 of
Juvenile Justice Act, 2015 and the preliminary assessment is not a trial period but it is an
enquiry period where both of them would be tested by the psychologists and the experts whether
the crime committed by them is done in an adult mind or a childish mind. By a mere
apprehension they approached the Hon’ble. Supreme Court that their fundamental right under
Art.21 that is right to natural justice has been violated and they would be tried as adult and the
case would be dealt by the Sessions Court.

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

44
Juvenile Justice (Care and Protection of Children), 2015

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced, it

is most humbly prayed & implored before the Hon’ble Court, that it may be graciously pleased

to:

1. Dismiss the writ petition

2. Hold that the procedure of assessment adopted by the juvenile justice board by the virtue
of 2015 amendment is in consonance with the spirit of welfare legislation and
constitutional values.
3. To hold that there has been no breach of fundamental rights.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE RESPONDENT

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