Best Memorial Lex Auctor 2016 B Parmeshwar Dayal 1st National Moot Court Competition

TEAM CODE- LA-EQUITY

1ST B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016

IN THE HON’BLE SUPREME COURT OF INDICA PUBLIC INTEREST LITIGATION

IN THE MATTER BETWEEN

SATYA AND SHASHI (PETITIONER) VERSUS

UNION OF INDICA (RESPONDENT)

To, THE HON’BLE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF SUPREME COURT OF INDICA

~ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT~ ~MEMORANDUM ON BEHALF OF THE RESPONDENT ~

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

TABLE OF CONTENTS: LIST OF ABBREVIATIONS……………………………………….……………………………..3 INDEX OF AUTHORITIES …………………………………………….………………………4 STATEMENT OF JURISDICTION.....…………………………………………...………………..7 STATEMENT OF FACTS…………………………………………………………….………….8 STATEMENT OF ISSUES……………………………………………………………………....10 SUMMARY OF ARGUMENTS………………………………………………………………….11 ARGUMENTS ADVANCED……………………………………………………….……………13 ISSUE 1:- THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ARTICLE 32 OF THE CONSTITUION OF INDICA IS MAINTAINABLE OR NOT………………………………………..13 1.1 Petitioner doesn’t have a locus standi in the instant case…………..…….………… 13 1.2 No violation of fundamental rights…………………………………………………...13 1.3 Existence of an alternative remedy …………………………………………………..14 ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES ART 14, 21 AND RULE OF LAW...………...…………………………………………...……..14 2.1 The authority has applied the principle of unarbitrariness ……………………….……….15 2.2 The authorities have applied principle of reasonableness and the impugned act is well within the contours of the procedure established by law ………………..………………………….…..15 2.3 The authorities have applied principle of reasonableness to the object or purpose of the legislation ……………………………………………………………………………….……16 2.4 That the implementation of the juvenile justice act, 2015 violates article 21………….……..17 2.4.1 Right of fair trial has not been vioalted ………………………………………..………..17 2.4.2 Right of opportunity to be heard has not been violated ………………………..…..……..19

ISSUE 3: THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 UNCONSTITUTIONAL .............................................................................................19 3.1

That

the

mental

faculty

of

every

child

can

be

considered

equal

or

not.............................................................................................................................................22

ISSUE 4: THAT

THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN

RESPECT OF JUVENILES

………………………………………………….………………….24

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT 4.1 That the international conventions are not in contravention with the constitution of Indica.................................................................................................................................. 25

4.2 Art.51 as a guide to interpretation…………………………………………….…......26 PRAYER………………………………………………………………….…………………...32

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

LIST OF ABBREVIATIONS: ABBREVIATIONS AIR & Anr.

EXPANSIONS All India Reporter And Another

Art. CrPC Ed. HC IPC JJA JJB NCRB Ors.

Article Code of Criminal Procedure Edition High Court Indian Penal Code Juvenile Justice Act Juvenile Justice Board National Crime Records Bureau Others

¶ PCM POCSO

Paragraph Prohibition of Child Marriage Act Protection of Children from Sexual Offence Act, 2012 Rajasthan Section Section Supreme Court Supreme Court Cases Supreme Court Journal Supreme Court Reporter Union of India Uttar Pradesh Versus

Raj. § Sec. SC SCC SCJ SCR UOI U.P. V.

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

INDEX OF AUTHORITIES: TABLE OF CASES SR.NO

PG.NO

3.

CASES A.D.M., Jabalpur v. Shivakant Shukla Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 Asstt. Collector of Central Excise v. Jainson Hosiery

4. 5. 6. 7. 8. 9. 10. 11. 12.

Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726 Bhat v. Union of India, (1990) 3 SCC 65 Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457 Fertilizer CorpnKamgar Union v. Union of India, (1981) 1 SCC 568, 584 Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1 Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Krishnan v. State of Madras, AIR 1951 SC 301 Magan bhai Ishwar bhai Patel v. Union of India AIR 1969 SC 783

14 26 14 16 15 26 15 17 26

13.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248

14.

26

15. 16.

Mirza Ali Akbar Kashani vs United Arab Republic And Anr, 1966 SCR (1) 319 Moti Lal v. Uttar Pradesh, AIR 195 ALL 257(EB) Namit Sharma v. Union of India, (2013) 1 SCC 745

17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

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

26 15 14 13 14 15 24 15 31 30

1. 2.

Sl. No

COURT DECISIONS AROUND THE WORLD

26 13 14

14,17

26 14

Pg. No

1.

Mortensen v. Peters (1906) 8 Fraser, 93

25

2.

Niboyet v. Niboyet

25

3.

Jolly George verghese and anr. V. The Bank of Cochin, 1980

26

4.

Entertainment Network(I) Ltd. V. Super Cassette Industries

26

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT SR.NO

BOOKS

1)

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

2)

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

3)

William J. Chambliss, Juvenile Crime and Justice

4)

Justice K.G. Balakrishnan(Chief Justice Of India), JUVENILE JUSTICE SYSTEM

5)

Durga Das Basu, Commentry on the constitution of India (8th ed. ) ( Vol. 2 -4, 8,10)

6)

Richard Lawrence & Mario Hesse, JUVENILE JUSTICE

7)

Samuel M. Davis, RIGHTS OF JUVENILE 2d, The Juvenile Justice System (South Asian Edition)

8)

H.M. Seervai, Constitution Law of India (4th ed. 2008)

9)

Cort R. Bartol, Anne M. Bartol, CURRENT PERSPECTIVES in FORENSIC PSYCHOLOGY and CRIMINAL BEHAVIOR (2nd ed.)

10)

John Muncie, Gordon Hughes, YOUTH JUSTICE Critical Reading

11)

Dr. S.K Kapoor, International Law & Human Rights (18th ed.)

SR. NO. 1.

CONSTITUTIONAL PROVISION

PG. NO

ARTICLE 32

passim

SR. NO.

STATUTES

1.

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

2.

The Juvenile Justice (Care and Protection of Children) Rule. 2007

3.

The Code of Criminal Procedure Act, 1973 TREATIES

SR. NO. 1.

United Nations Convention on the Rights of the Child, 1990Vienna Convention on the law of treaties on 23 May 1969

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT 2.

Vienna Convention on the law of treaties on 23 May 1969

3.

Beijing rules 1985

SR. NO.

LEXICONS

1.

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

2.

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

3.

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

SR. NO.

WEB RESOURCES

1.

www.westlaw.india.com(WEST LAW INDIA)

2.

www.manupatrafast.com(MANUPATRA)

3.

www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)

4.

www.jstor.org(JSTOR)

5.

www.scconline.com(SCC ONLINE)

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

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

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

STATEMENT OF FACTS: 1. Satya was a poor boy who used to live in a slum in the outskirts of the city of Golia, State of Maharaj Pradesh, in the Republic of Indica. He studied in a government aided school up to Sixth Standard but then he dropped out of school due to financial constraints and since then, has been in the employment of Mr. Rajan. 2. Mr Rajan had two children, a boy named Vansh, aged 18 years and a girl named Vani, aged 16 years. Both Vansh and Vani treated Satya in a condescending manner, they insulted him on trivial matters. 3. One day Shashi, aged 17 years 11 months, son of Mr Saxena, neighbour of Mr Rajan was playing a soccer in the park of the society and Vansh and Vani were jogging there as per the daily routine. Shashi and Vansh had animosity since childhood. While playing soccer, the football hit over the head of the Vani which gave her a minor head injury. Over this Vansh started verbally abusing Shashi, this lead to quarrel between the two and this provoked Vansh to give Shashi a blow but suddenly another neighbour came and resolved the quarrel 4. Another day, Satya was bringing some household items, when he reached the vicinity of the society, he came across Vansh asked Satya that whether he had brought his asked items or not and Satya replied that “It was not available in the market.” On this Vansh harshly abused Satya and Vani was also in habit of abusing Satya every now and then. Satya had complained this to Mr. Rajan but he never paid heed to his such complaints. On another occasion when Vansh was abusing Satya outside his house, Shashi witnessed the conversation. Later he spoke to Satya on the matter and both of them shared hatred feelings towards Vansh and Vani. 5. On 5th March 2016, Satya took leave from Mr. Rajan for 3 days from work, for visiting his village. On the 6th March, 2016, Mr Rajan left to attend some business meeting in another city. As it was a Sunday Mrs. Rajni (wife of Mr. Rajan) had planned to visit a painting exhibition with her family. But in absence of Mr. Rajan she decided to continue the programme with her family. Satya had prior knowledge about the aforesaid plans. 6. At 6:30 pm on 6th March, 2016, Mrs. Rajni along with her children reached the exhibition venue which was located in the remote and isolated part of the City of Golia, Mrs Rajni got engaged in works along with her friends. Meanwhile at around 8:30 p.m. Vansh found out that her sister was missing. At around 10:00 p.m. when the guard came to switch off the light of the

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT basement, he found a girl lying unconscious. He immediately informed Vansh and his mother and she was identified by her family as Vani. They took her back home. 7. The other morning Mr. Rajan reached back home. Vani narrated the story to the family that she was taken away by Satya and Shashi to the basement where they tried to outage her modesty by tearing off her clothes. She stated that she was subjected to rape. When she shouted for help, her mouth was forcefully shut and in a sudden haste she was strangulated. Thereafter she got unconscious and the boys ran away. 8. A FIR was then made by them against Satya and Shashi on the 7th March in the nearest Police Station, which was registered under Section 323, 354-B, 366-A, 376, 376-D read with Section 34 of the Indica Penal Code, read with Section 3 and 4 of The Protection of Children from Sexual offences Act, 2012, No. 32 of 2012 and Sec. 3(1)(w)(i), Sec 3 (1)(w)(ii)& Sec. 3(2)(v) of The Scheduled Caste and the Scheduled Tribes (Prevention of Actrocities) Amendment Act, 2015 (No. 1 of 2016) 9. On the 8th March, 2016 the Investing Officer arrested Shashi and Satya. The case was sent to Juvenile Justice Board as both were minor. A preliminary assessment was about to be made under Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), by the regular Sessions Court or whether it will be dealt by the Juvenile Justice Board. As there was a large scale media coverage and further the family of Mr. Rajan was very influential. Due to which, Satya and Shashi apprehended that their case might be committed to the Sessions Court. Therefore they decided to challenge the validity of the Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme Court of Indica. 10. As Satya and Shashi were minor and were victims of continuous harassment by Mr. Rajan, specifically by Vansh and Vani, both challenged the Constitutional Validity of Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme Court of Indica.

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

STATEMENT OF ISSUES: [ISSUE 1] WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDIC IS MAINTAINABLE OR NOT?

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

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

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

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

SUMMARY OF ARGUMENTS: [ISSUE 1] THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE INSTANT CASE. The writ Petition is not maintainable in the instant case. The fundamental rights of the petitioner have not been violated. Even so, the fundamental rights are subject to inherent limitations which are imposed by the Constitution itself and an existence of alternative remedy is sufficient to make the petition fail.

[ISSUE 2] THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 DOES NOT VIOALTE ART. 14, 21 AND RULE OF LAW. The respondent contends that the implementation of the JJ Act, 2015 by the Parliament is not found to be arbitrary and also the right to fair trial is also not being violated of the juveniles. Thus there is no violation of Art. 14 and Art. 21. Rule of law has also not been violated by the proper implementation of the JJ Act, 2015 decision of the Parliament. It is made in pursuance of ensuring fairness and transparency and instilling public faith in the examination system. The policy decision has a sound reason behind it. Hence Article 14 and 21 is not violated in the present case. [ISSUE 3.] THAT SEC. 15 OF JJ ACT, 2015 IS CONSTITUIONAL. All the requirements of instituting section 15 of JJ Act, 2015 have been filed in the instant case. First it “does not Violates the very essence of Juvenile Justice Act”1. Secondly it does not violates various Fundamental Rights2. The act committed by Satya and Shashi was done maturely. [ISSUE 4] THAT THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT OF JUVENILES. It is humbly submitted before the Hon’ble Supreme Court that the current Juvenile Justice (Care and Protection of Children) Act. 2015 is very much in consonance with the provisions of the Constitution of Indiana. All the children in the age group of 16-18 years are treated

1 2

Amendment to juvenile justice act criticised, The Hindu, April 25.2015 International Journals of legal development and allied issues written by Sayashi Saha.

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT equally and no two children in the age group of 16-18 years who commit a heinous offence are proposed to be treated differently under the current Act. Hence, there will be not differential treatment of such children on any ground. The Act of 2015, which has replaced the earlier Juvenile Justice Act 2000, has clearly defined and classified offences as petty, serious and heinous, and defined differentiated processes for each category. The present act which has been amended is very well in consonance with the Articles of the Constitution of Indica. The Republic of Indica is a signatory to various conventions which protect the rights of Children. The United Nations Convention on Rights of Child was ratified by the Republic of Indica in 1992 and the 2000 Act was consequently brought in to adhere to the standards set by the Convention. The countries who are a signatory to the convention have certain international commitments. However, by only becoming a mere signatory to the convention does not make any country legally bound to follow the provisions of the convention. It is only when then country has ratified such provisions, it becomes legally bound to abide by them.

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

ARGUMENTS ADVANCED: 1. THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE. A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of Fundamental Rights3, as guaranteed by part III of the Constitution4. In the present case firstly, there has been no violation of the fundamental rights and secondly, the petitioner has failed to exhaust his alternative remedy. The action taken by the State was in furtherance of the principle of social justice and thus cannot be termed as arbitrary or as one which was without the application of the mind. 1.1 Petitioner has no locus standi in the instant case: The respondent submits that the Court has held that only if there is a violation of Fundamental Rights can it step in under the Jurisdiction of Article 325 . The petitioner is raising a mere scholarly objection, without any locus standi. No one has been displaced, there has been no forceful assimilation and no harm has been done to the juveniles. Hence when there is no damnus, the Petitioner cannot seek a remedy. Moreover, the enactment of the Juvenile Justice Act, 2015 has added a new dimension to the existing Juvenile Justice Act, 2000. The Juvenile Justice Board has explicit power to hear the matters concerning the Juvenile Justice Act, 2015. When an authority has been specifically set up to hear the issues pertaining to the nature of this writ petition, the petitioner need not bring up this issue before the Hon’ble Court.

1.2 No violation of fundamental rights: The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated6. It has been held that if a right, other than a fundamental right is claimed to be violated then such questions can be addressed only in the appropriate proceedings and not on an 3

Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III. 4 Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10, Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50, BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333. 5 Romesh Thapar v Union of India, AIR 1950 SC 124 6 Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S Subbramani, Justice B.P Banerjee, 8th Ed. 2008).

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT application under Art. 327 . In the instant case, that there has been no direct and inevitable effect on the fundamental rights8. Further any violation of fundamental right as claimed by the petitioner is illusionary. It is submitted that in the second part of the submission it will be shown that there is no violation of fundamental right under Article 14 and Article 21 of the Constitution9. 1.3 Existence of an alternative remedy:It has been held that Art. 32 confers ‘extraordinary jurisdiction’, the same must be used sparingly and in circumstances where no alternative remedy is available.10Art. 32(1) confers a right to move the Hon’ble Supreme court by ‘appropriate proceedings’. Appropriate proceedings include procedural factors such as res judicata11 , delay in filing the petition and parallel proceedings12 in another court. The petitioner in the instant case had the remedy to approach the Hon’ble High Court13. It is submitted that the petitioner had an alternative remedy to approach the High court under Art. 226. The power of High Court under Art. 226 is wider than the powers of this Court under Art. 32 of the Constitution. It was held this Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson Hosiery14 where there is alternative statutory remedy court should not interfere unless the alternative remedy is too dilatory or cannot grant quick relief. Thus, the respondents humbly submit that the present writ petition is not maintainable on the ground that alternative remedy has not been exhausted. Considering the points raised, it is submitted that the petition must fail. II. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 DOES NOT VIOLATE ARTICLE 14, 21 AND RULE OF LAW It is humbly submitted Art. 14 of the Indica Constitution envisage equal protection or equal treatment in similar circumstances15. Art. 14 is a basic structure.16 The requirement of the validity of a law with reference to Art. 14 is that it should not be arbitrary and classification

7

Ramjilal v. Income Tax Officer, AIR 1951 SC 97. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745. 9 Constitution of Indica, 1950 parimateria to the constitution of India, 1950 10 Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622. 11 Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457. 12 Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001). 13 Article 226 of Constitution of Indica, 1950 parimateria to the constitution of India, 1950 14 AIR 1979 SC 1889 15 Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123. 16 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1. 8

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT should be reasonable17. It is submitted by the respondents that the implementation of the Juvenile Justice Act, 2015 is not violative of Art.14 and the Rule of Law dealt by the juveniles.

2.1 The authority has applied the principle of unarbitrariness: There is no cut through strait jacket formula to evolve objectively, what amounts to arbitrariness but can only be culled out from circumstances and facts18. The respondent submits that the Juvenile Justice Act, 2015 has not been framed arbitrarily. The decision has been taken in consonance with various provisions of various acts in the interests of social justice. Art. 14 secures all persons within the territory of India against arbitrary law as well as arbitrary application of laws19. In the instant case the Juvenile Justice Act, 2015, as precautionary step, is issued in order to curb the heinous offences which are been dealt by the juvenile and the crime committed by the children between the ages of 16-18 years is 67%20. Considering the fact that the Executive has taken steps to implement measures to insure the safety of women in public transport21. In the view of the Justice Verma Committee the protests are clearly a call to modern India to renounce old ways of thinking, looking and acting towards women and are strong, positive move towards true empowerment22. As we are also of the opinion that the rape of Nirbhaya and the sacrifice of her life only reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of arcane, misogynist traditions and practices which are at variance with the Constitution, which seeks to debilitate and handicap women23. Thus the impugned act24 passes the test of arbitrariness and is well within the prescribed realm of Art. 14. 2.2 The authorities have applied principle of reasonableness and the impugned act is well within the contours of the procedure established by law:

It is submitted that Art. 14 as including the principles of reasonableness only requires the government to act on reasonable grounds25. The court function is to check whether the decision 17

Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411. Praveen Singh v. State Of Punjab, (2000) 8 SCC 633. 19 JUSTICE VERMA COMMITTEE report (para 15) Pg. No. 29 20 National Crime Report Bureau (2013), The Handbook Of Juvenile and its Delinquency. Pg. No.55 21 Orders go out for CCTVs, bus checks, petrol vans, Indian Express, Delhi January 10,2013., JUSTICE VERMA COMMITTEE report (para 37) 22 JUSTICE VERMA COMMITTEE report (para 39) 23 JUSTICE VERMA COMMITTEE report (para 34) 24 Juvenile Justice( Care and Protection of children), 2015 18

25

Durga Das Basu's Commentary on the Constitution of India, 1360 (Justice Y.V Chandrachud, Justice S.S Subbramani, Justice B.P Banerjee, 8th Ed. 2008).

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT taken is fair and free from the taint of unreasonableness and has substantially complied with the norm of procedure26. The impugned act is no way takes away Fundamental Rights or vitiates any procedure established by law. In fact, in “Sarkar” it was noted that “classification implies discrimination between persons classified and those who are not members of that class. ….. Atchison, 30 Topeka & Santa Fe R. Co. v. Matthews, that upon the class or caste duties and burdens different from those resting upon the general public …… indeed the very idea of classification is that of equality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality”27. The Juvenile Justice Act, 2015 is reasonable because the crime committed by the juveniles has increased a lot and due to this the women are not entitled for the equal protection of laws. Any offences which are committed to them should not be tried in a facially compliant manner, but in an effective manner, so that there is honesty of purpose, integrity of prosecution as well as successful conviction of such offences, for which the state must evolve a dynamic review mechanism. Thus the impugned act passes the test of reasonableness. 2.3 The authorities have applied principle of reasonableness to the object or purpose of the legislation:

The object or the purpose of the Juvenile Justice Act, 2015 is being fulfilled and it has not been drafted hastily or arbitrarily. The object of the act28 is being fulfilled as there are various heinous offences such as rape, murder, kidnapping, burglary which has been increased day by day by the juveniles between the age of 16-18 years29. In the case of Nirbhaya the sacrifice of her life only reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of arcane, misogynist traditions and practices which are at variance with the Constitution, which seeks to debilitate and handicap women30. Also in the case of Banerjee and Mohanty, 2013 the girl was brutally raped by the juvenile. Thus the object of the Juvenile is being fulfilled of treating the juveniles as an adult criminals who is between the age group of 16-18 years. It is respectfully submitted that as the crimes are being increased by the juveniles hence the tougher laws are to be implemented. The logical reasoning to crime as a rational behaviour is tougher punishment as a deterrent. Specific Deterrence discourages offenders from repeating their crimes by threatening to punish them more harshly the next time. 26

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT Tougher laws and sanctions are effective as deterrents against crime and also the effectiveness of punishment as a deterrent to crime depends on three factors that is creativity, speed and severity31. Thus the harsher laws on the juveniles are been implemented so that the heinous offence committed by the juveniles stops with a good effect. The object of the act32 is to provide equality to women as women are entitled not only to equality under Article 14 but are also entitled to the equal protection of the laws. The State is responsible to live and administer the Constitution. As far as the rights of women are concerned, the State has failed to fulfil its tryst and pledge with the Constitution to create both, atmospheric climatic and ground conditions for their welfare and benefit. Thus to fulfil the rights and to protect women and children the act has been amended and hence the impugned act passes the principle of reasonableness and object or purpose to the legislation. 2.4 That the implementation of the juvenile justice act, 2015 violates article 21? It is humbly submitted Art. 21 of the Indica Constitution envisage the protection of life and personal liberty. In the instant case of Satya and Shashi the right of opportunity to be heard and the right of natural justice has not been infringed because in the act33 . ‘Procedure established by Law’ in Art. 21 means the law prescribed by Parliament at any given point of time. Parliament has the power to change the procedure by enacting a law by amending it and when the procedure is so changed, it becomes ‘Procedure established by law’34. Further in order to establish violation of Art. 21 the act should be subjected to the equality test of Art. 14 and test of reasonableness under Article 1935. The Art. 14 does not strike at arbitrariness and also the test of reasonableness is also not been satisfied. It is submitted by the respondents that the implementation of the Juvenile Justice Act, 2015 is not violative of Art. 21. 2.4.1 Right of fair trial has not been violated: The term “Natural Justice” is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem)36. Conducting a fair trial for those who are accused of criminal offences is the cornerstone of democracy. Conducting a fair trial is beneficial for both that is to the society as well as to the accused. Right to fair trial is

31

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT enriched in Art. 21. In the act37 it has not been said that a 16 or a 18 year old child goes to a jail. It says that suppose a child has committed a crime in the heinous category38 the juvenile will go before a Juvenile Justice Board the board does not have a police, lawyer but it has psychologist, social worker and also it has experts39. Their job is not to condemn them rather they will just decide that whether the crime committed by the juvenile was committed in an adult mind or in a childish mind. If Juvenile Justice Board gives a decision that the child has committed the crime with an adult mind then the juvenile will not be sent to the jail and kept with the hardened criminals but rather the juveniles in conflict with law would be kept for 3 years in the Borstals School which is known as place of safety and the psychologists and the experts would be giving the treatment to the Juveniles in conflict with law and they would be checking up the mental capacity and once they are reformed the juveniles in conflict with law would be released and would not be sent to the jail for rest of the time span but if they are not reformed then the juveniles in conflict with law will be staying at the Borstals School till the age of 21 years and then for the rest of the time span would be sent to the jail. The juveniles in conflict with law are provided with the same access to justice as the adults are accessed. The juvenile in conflict with law would be appearing before the court and then the Children’s Court will decide whether the juveniles would be punished under an adult system or into a juvenile system. Thus if the juveniles in conflict with law are not satisfied with the judgment they are provided with another chance where they can approach the Hon’ble High Court or the Hon’ble Supreme Court. Thus by this act40 a large number of heinous crimes committed by the juveniles between the age of 16-18 years would be stopped and the juvenile crime is the fastest rising and hence to stop it some of the harsher laws are to be made. In the instant case of Satya and Shashi both of them are minors and their right to natural justice has not been violated as the case was sent to the Juvenile Justice Board and a preliminary assessment was about to be made under section 15 of Juvenile Justice Act, 2015 and the preliminary assessment is not a trial period but it is an enquiry period where both of them would be tested by the psychologists and the experts whether the crime committed by them is done in an adult mind or a childish mind. By a mere apprehension they approached the Hon’ble

37

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT Supreme Court that their fundamental right under Art.21 that is right to natural justice has been violated and they would be tried as adult and the case would be dealt by the Sessions Court. Thus there has been no violation of Art.21 as there has been just a mere apprehension and assumption by the minors but there has been no verdict which has been passed by the Juvenile Justice Board. 2.4.2 Right of opportunity to be heard has not been violated:The right of opportunity is enriched under Art.21 of the Constitution41 has not been violated because the case of the juveniles has been sent to the Juvenile Justice Board and there is a preliminary assessment which is about to be made under section 1542. The trial period has not been started due to which right of opportunity has not been violated and if Satya and Shashi would be tried as an adult criminal then they would be appeared before the court where they would be given a chance to give their justification as there is a rule in la that both the parties are to be heard in the court when trial period starts. The respondent humbly submits that there has been no violation of Ar. 21 of the Constitution. 3. THAT THE SECTION 15 OF JUVENILE JUSTICE (Care and Protection for Children) ACT, 2015 IS CONSTITUIONAL. Before delving deeper into the facts of the case it is important for us to understand with clarity the concept of a juvenile. In common usage the term juvenile is used to refer to a person who has not attained the age of majority i.e. not completed the 18th year of his birth. The various statues in operation in our countries have defined the idea a juvenile in several statutes. § 2(k)43 a “juvenile” or “Child” is a person who has not completed eighteenth year of age. § 2(12)44, “Child” means a person who has not completed the eighteen years of age. As provided in the facts of the case and as the problem requires we hereby adhere to the definition provided by Juvenile Justice (Care and Protection of children) Act, 2015.

41

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT More than a century ago ‘Abraham Lincoln’ said “a child is a person who is going to carry bon what you have started. He is going to sit where you are sitting, and when you are gone attend to those things which you think are important”45. Since a nation’s future depends upon the young generation, the children deserves compassion and bestowal of the best care to protect this burgeoning human resource. A child is born innocent and if nourished with tender, care and attention he or she will blossom with the facilities physical, mental, moral and spiritual into a person of stature and excellence46. Almost all the countries have developed Juvenile Justice System to deal with young offenders. In India scene for the children has changed a lot and their problems and related issues have been given attention and are being discussed at various forums. A good number of our children on account of socio economic reasons have adding themselves in the list of delinquent child. There is need to give specific importance to children in society. Importance of child is well recognised since ages. Nowadays children are under tremendous social pressure due to new changing social perceptions and due to this they try to commit crimes.47 Sec. 15 of JJ Act, 2015 says that suppose a child commits a crime in the heinous category section 2(k) he will then go before a Juvenile Justice Board and the Board does not have a police, a lawyer, it has psychologists, social workers and it has experts. Their job is not to condemn the children’s. As the board will just decide that whether the child has committed the crime in an adult mind or in a childish mind. Sec. 15 of JJ Act, 2015 is constitutional as nowhere in the Juvenile Justice (Care and Protection of Children) Act, 2015 says that once they are tried as an adult criminal they will be sent to the jail but they will be provided with the lawyers or their respected parents can also hire a lawyer. They are provided with the same access of justice as adults are and hence the children will be appearing before the Children’s Court where it will be decided that whether they will be tried as an adults or a juvenile where they get a second chance. Even it says that they are tried as an adults they have the power to appeal like anyone else like in High Court and Supreme Court where no fundamental rights of the juvenile are been violated where they get an opportunity to be heard and also their right of natural justice is not been violated. If the juveniles are been

45

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT tried as an adults they will be put into the children’s jail that is a Borstals Schools or also known as place of safety. In a recent rape case48 the court sentenced a teenager to 3 years in a detention centre. Although in response to public rage, the government fast tracked tougher laws against sex crimes, it resisted calls to change the juvenile law and return the adult age from 16-18. The trial was held behind closed doors to protect his identity and media were barred from reporting on any details of proceedings. During the trial the juvenile had been held at detention facility for violent young offenders in Delhi and kept away from other inmates. As we are also of the opinion that the rape of Nirbhaya and the sacrifice of her life only reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of arcane, misogynist traditions and practices which are at variance with the Constitution, which seeks to debilitate and handicap women49. India’s juvenile is undergoing what the USA went through during 1980-90. During this period USA felt that there was an “impending doom” due to a rapid increase in violent crimes by juvenile. Such fear and perception induced major changes in laws and resulting in imposing tougher sanctions on juveniles across the country. Public fear and outrage, convinced policy makers to take “tough” and “drastic measures” such as trying juveniles as adults, making it easier to transfer juveniles to adult court, using blended sentences reducing confidentially protection for juveniles and putting public safety and accountability ahead of the best interest of the child( Torbet and Szymanski 1998). Similarly in India an increase in violent crimes especially sexual assault, rape, murder has caused public outrage and canons for policy makers to reconsider juvenile law. The call has been taken to reduce the juvenile age from 18 years to 16 years and to try juvenile as an adult. The Hon’ble Supreme Court should consider and assess a young offenders “emotional, intellectual and mental maturity as a juvenile rather than being the decision of the age”. It is respectfully submitted that the present data on juvenile crime by IPC and special and local laws in 2012 by age and gender, the number of crimes are committed in three age groups i.e. 7-12 years, 12-16 years and 16-18 years. According to the NCRB report (2013) only 2% of the

48 49

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT juvenile crime is committed by the children below the age of 12 years, 31% by the children between the ages of 12-16 years and 67% by children between the ages of 16-18 years50. The logical response to crime as rational behaviour is tougher punishment as a deterrent. Deterrence theory holds that punishment has a general effect, discouraging the general public from engaging in criminal activity by striking fear in them with threat of punishment. Specific deterrence discourages offenders from repeating their crimes by threating to punish them more harshly the next time. Tougher laws and sanctions are effective as deterrents against crime: Most persons after all do obey most of the laws most of the times. The effectiveness of punishment as deterrent to crime, however, depends on three factors: certainty, speed and severity. Offenders will be deterred from crime only if they believe they are likely to be caught, convicted and punished. Furthermore, punishment is more effective if it is administered soon after the violation, and if it is sufficiently severe. Thus it is respectfully submitted that sec. 15 of JJ Act, 2015 is constitutional. 3.1 That the mental faculty of every child can be considered equal or not:In the instant case the two minors Satya and Shashi has committed rape which is a heinous offence. According to sec. 15 of JJ Act, 2015 states that young offender’s mental maturity, emotional and intellectual maturity has to be checked. In the instant case both the juveniles were found mentally matured. According to Cesare Beccaria (1738-1794) and Jeremy Bentham (1748-1832) their primary concern was not to explain criminal behaviour but to develop a legal system by which the punishment would fit into the crime. According to “Classical Theory” person commits crime simply because they have made a rational decision to do so. Classical theory has thus been referred as utilitarian approach to crime. Lawrence Cohen and Marcus Felson developed a version of rational theory known as “Routine activity theory”. They concluded that crime is closely related to interaction of three variables associated with the “routine activities” they are: the availability of suitable targets of crime; the absence of capable guardians and the presence of motivated offenders51. In the instant case as Satya and Shashi had suitable crime targets in front of their eyes as both of them shared their feelings of hatred towards Vansh and Vani and when Vansh had abused to Satya in front of the society and Shashi

50

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

51

Juvenile justice Richard Lawrence and Mario Hesse

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT was the only witness. Thus Shashi was a motivated offender for Satya and both of them decided to take revenge from them. According to cultural deviance theory by Walter Miller (1958), number of “focal errors” that dominate lower class cultures and often run counter to lawful, middle class behaviour52: 1. Trouble: getting into trouble and being able to handle trouble are valued, so trouble making behaviour such as fighting, drinking, and sexual misconduct are quite accepted. 2. Toughness: surviving in lower-class subcultures requires toughness, so physical strength, fighting ability, and mental toughness are valued over being soft and sentimental. 3. Smartness: formal education is not valued as much as being “street smart” and able to outsmart or “out-con” one’s opponent, 4. Excitement: similar to “trouble”; members of the lower class seek to enliven their tough life through excitement such as gambling, fighting, getting drunk, and sexual activity. 5. Fate: members of the lower class believe there is little they can do to change their course in life, and that any good that may come their way is simply through luck and good fortune 6. Autonomy: lower-class youth learn to value being independent, and not depend on anyone else, particularly authority figures such as police, parents, and teachers. In the instant case Satya belongs to a poor family where according to Walter Miller those who belongs to lower class has the toughness and smartness where they can easily control their emotions and they have the physical strength and the mental capability which are valued over the sentiments and kindness. In the instant case it was very nicely planned by both of the minors. On 5th March 2016, Satya took leave from Mr. Rajan for 3 days from work from visiting his village and on the very next day 6th March 2016 Mr. Rajan left to attend some business meeting in another city. As it was Sunday Mrs. Rajni had planned to visit an exhibition with her family but in the absence of her husband she decided to continue the programme with her children. Satya had prior knowledge about the aforesaid plans. At 6:30 p.m. Mrs. Rajni along with her children reached the exhibition and she was busy with her friends and both the children’s of her were together. At 8:30 p.m. Vansh noticed that her sister was missing but could not find her anywhere. At around

52

Ibid.

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT 10:00 p.m. when the guard came to switch off the lights of the basement he found a girl lying unconscious. Thus the maturity level of understanding is that the intention of the crime is deciding factor. In the instant case there was a proper plotting and planning done by the minors as it is shown by the act that they decided to take revenge from Vani and not Vansh as both of them had hatred feelings towards Vansh to a greater extent rather than Vani. The conduct of the minors clearly shows that both of them are matured enough because after the crime committed by them when Vani started shouting for help they strangulated her and when she was unconscious both of them ran away as per the statement of Vani. Thus the respondents humbly submits that sec 15 of JJ Act, 2015 is constitutional and also both Satya and Shashi are mature enough to commit the crime.

4. THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT OF JUVENILES The Republic of Indica is a signatory to various conventions which protect the rights of Children. The United Nations Convention on Rights of Child (hereinafter as UNCRC) was ratified by the Republic of Indiana in 1992 and the 2000 Act was consequently brought in to adhere to the standards set by the Convention. Specifically, it is pointed out that the practice of statutory exclusion which ensures that perpetrators of certain grave offences are prosecuted as adults; ‘judicial waiver’, granting discretion to special juvenile courts to waive jurisdiction and transfer the juvenile’s case to an ordinary court of law and also the policy of concurrent jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor to initiate proceedings in the more suitable court are followed in foreign jurisdictions53. The Act. Of 2015 maintains this aim and seeks to improve implementation and procedural delays experienced by the 2000 Act. The UNCRC states that signatory countries should treat every child under the age of 18 years in the same manner and not try them as adults. However, many other countries who have also ratified the Convention try juveniles as adults, in case of certain crimes. These countries include the UK, France, Germany, etc. The United States is not a signatory to the UNCRC and also treats juveniles as adults in case of certain crimes.

53

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT The provisions of various countries cannot be overlooked while dealing with such a sensitive issue. In United Kingdom, “Extended” custodial sentences are given to young persons if their crime is so serious that no other alternative is suitable, or if the young person is a habitual offender, or if the Judge thinks the person is a risk to public safety. In United States of America, the majority age is 18 years, but persons older than 14 years may be tried as adults if they commit serious crimes (rape, robbery, murder etc.). The state of New York pegs the age of juvenility at 16 years, and permits the prosecution of persons aged between 13-16 years as adults in case of serious crimes. In Nepal, the minimum age of criminal responsibility is 10 years. A child is a person below 16 years. A person between 16-18 years are charged and tried as adults under the judicial system of Nepal. Also, Countries like U.K. Canada and USA have departed from the obligations under the UN Convention. The countries who are a signatory to the convention have certain international commitments. However, by only becoming a mere signatory to the convention does not make any country legally bound to follow the provisions of the convention. It is only when then country has ratified such provisions, it becomes legally bound to abide by them. In England if an act of Parliament is clearly in conflict with law the municipal courts are bound to enforce that Act54 and that rule of international law shall have no validity in England. 4.1 That the international conventions are not in contravention with the constitution of Indica. The republic of Indica is a signatory to a various convention which protects the right of a children. The UNCRC was ratified by Republic of Indica agreeing in principles all articles except with certain reservation on issue on relating to a child labour and the JJ Act, 2105 did not consequently brought in in to adhere to the standards set by the convention. Art. 51(a): Promotion of international peace 1. This art. embodies the object of India in the international sphere. But it does not lay down that international treaties or agreements entered into by India shall have the force of municipal law without appropriate legislation.55 2. In order to be binding on the municipal courts legislation would be required if a treaty-

54 55

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

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

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

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

56

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT domestic/municipal laws, the Court has extensively made use of international law, inter alia, for the following purposes: (i)

As a means of interpretation;

(ii)

Justification or fortification of a stance taken;

(iii)

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

(iv)

To reflect international changes and reflect the wider civilization;

(v)

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

(vi)

To fill gaps in law.”65

The Supreme Court also observed that the courts should not be loath to refer to the International Conventions, where the protection of human rights, environment, ecology and other secondgeneration or third-generation rights are involved.66 Anzilotti propounded a different approach. In his view, international law is conditioned by the principle ‘pacta sunt servanda’, that is, agreements between states are to be respected, while national law is conditioned by the fundamental principle or norm that state legislation is to be obeyed. The two legal systems are accordingly entirely distinct. In the instant case the rights of the women and children are to be protected as it is a duty of the state to do so thus the international law is not taken into consideration because the act is being committed in the territory of India therefor municipal law will prevail over international law. There is a respect between the international treaties by the municipal law but international treaties are not “Supreme law of land” hence municipal law will prevail over the other. The interpretation of international treaties and convention is governed by Art 31 and 32 of the Vienna Convention on the Law of Treaties of 1969. When Statutes are enacted to give effect to any treaty of Convention, Art 31 and 32 of the Vienna Convention becomes relevant for the interpretation of such Statutes. Art 31 and 32 of the convention read thus. Art 31: (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

65 66

Ibid., p. 92 Ibid., p. 94

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT Art 32: “Recourse may be had to supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art. 31, or to determine the meaning when the interpretation according to Art 31; (a) Leaves the meaning ambiguous or obscure; (or) (b) Leads to a result which is manifestly absurd or unreasonable. International legal obligations are not always enforceable in the national jurisdictions of England, the U.S. and India; national courts give effect to international law only if it does not conflict with clear and unambiguous internal law of the nation concerned. Non-self-executing treaties in particular require legislative action, that is, specific adoption of their provisions into municipal law. In the instant case the treaty has been interpreted in the good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose as there is a respect for the international treaties but as the crimes committed by the juveniles between the age of 16-18 years have increased a lot due to which the laws made by the parliaments for the juveniles are harsher and tougher sanctions are implemented for the benefit of the society at large specially to women. The object of the act67 is to provide equality to women as women are entitled not only to equality under Article 14 but are also entitled to the equal protection of the laws. The State is responsible to live and administer the Constitution. As far as the rights of women are concerned, the State has failed to fulfil its tryst and pledge with the Constitution to create both, atmospheric climatic and ground conditions for their welfare and benefit. Thus to fulfil the rights and to protect women and children the act has been amended and hence the impugned act passes the principle of reasonableness and object or purpose to the legislation. In the instant case Juvenile Justice Act, 2015 is not ambiguous in nature neither it is manifestly absurd or unreasonable because In the case of Nirbhaya the sacrifice of her life only reinforces that India requires “De Facto” equality, freedom from superstition, renunciation of arcane, misogynist traditions and practices which are at variance with the Constitution, which seeks to debilitate and handicap women68. Also in the case of Banerjee and Mohanty, 2013 the girl was brutally raped by the juvenile. Thus the object of the Juvenile is being fulfilled of treating the 67 68

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT juveniles as an adult criminal who is between the age group of 16-18 years. It is respectfully submitted that as the crimes are being increased by the juveniles hence the tougher laws are to be implemented. It is necessary to study the practice of states69 to understand as to how they, within the framework of their internal legal order, apply the rules of international law and resolve the conflict, if any, between a rule of international law and a rule of national law. States generally give effect to the rules of international law, though the procedures vary and are considerably flexible. The doctrinal dispute to this extent is sans practical consequences. A distinction is made between customary international law and treaty rules of international law in the practice of states. International law or the law of nations is primarily a system governing the relationship of nations inter se, and for its apt appreciation it is significant to know as to how international legal obligations are enforced in national jurisdictions, more so in today’s flat world. In close relationship with this subject is the relationship between international law and national law or municipal law or domestic or internal law of nations (“states”), described by reference to two contending concepts: monism and dualism. Monism is the idea or the monist theory assumes that international law and national law are simply two components of a single legal system or body of knowledge, and regards ‘law’ as one entity. Both are interrelated parts of the one single legal structure and form a unity. It is believed that both originate from a single grundnorm. There is also an alternative theory which, being monistic, asserts the supremacy not of international law but of municipal law; see, for example, Wenzel’s work.70 Dualism is the position or the dualist theory assumes that international law and internal law of states are two separate and distinct legal systems. Being different legal orders, international law would not as such form part of the internal law of a state. Where, in particular cases, rules of international law apply within a state, they do so as a result of their adoption by the internal law of the state. They apply as part of the internal law of the state and not as international law. Dualism refrains from any controversy as to supremacy of the one legal system over the other. Each one is considered supreme in one’s own sphere and operates on a different level. The

69 70

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

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1st B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016 MEMORANDUM ON BEHALF OF THE RESPONDENT positivist writers, Triepel and Anzilotti lead the exponents of dualism. According to Triepel, there are two distinctions between national law and international law: (i)

the subjects of national law are individuals, while the subjects of international law are states solely and exclusively;

(ii)

Juridical origins of the two legal systems are different: the source of national law is the will of the state itself, while the source of international law is the common will (Gemeinwille) of states.

(iii)

Another distinction between the two is: national law is a law of sovereign over individuals; international law is a law, not above, but between sovereign states.

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

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

71 72

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

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

PRAYER: In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to: 1. DISMISS THE WRIT PETITION. 2. TO HOLD THAT THERE HAS BEEN NO BREACH OF FUNDAMENTAL RIGHTS. 3. TO HOLD THAT SECTION 15 OF JJ ACT 2015, IS CONSTITUTIONAL.

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

Sd/(COUNSEL FOR PETITIONER)

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