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

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1 ST  B. PARMZAESHWAR 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 ESPONDENT ) (R ESPONDENT

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

EGISTRY OF THE COURT~ ~ON THE SUBMISSION BEFORE THE R EGISTRY ~MEMORANDUM ON BEHALF OF THE PETITIONER ~

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

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 CONSTITUTION OF INDICA IS MAINTAINABLE OR NOT ……………………………………….13

1.1 Petitioner 1.1 Petitioner has a locus standi in the instant case……………………………………… 13 1.2 The petition has been filed in Public Interest and therefor maintainable as Public  Interest Litigation……………………………………………………………………..14 …………………………………………………………14 1.3 Alternative 1.3 Alternative Remedy not a bar …………………………………………………………

1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to ……………………………………….14 violation of right alleged in the present matter ………………………………………. ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES ART 14, 21 AND R ULE ULE OF LAW ………………………………………………………...…...15

2.1 Arbitrary 2.1 Arbitrary and capricious act of state are annulled by the provision provision of Art 14………..15 2.2 The authorities have failed to apply principle of reasonableness ……………………..16 2.3 The authorities have failed to apply the principle of reasonableness to the object or  purpose of the legislation ……………………………………………………………………17 2.4 That the implementation of the juvenile justice act, 2015 violates the article 21…….... 17 ……………………………………………….…18 2.4.1 Right of fair trial has been violated ……………………………………………….…

2.4.2 Right of opportunity has been violated …………………………………………..…. 18

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

IS UNCONSTITUTIONAL

……………............................................ ……………...................... ............................................. ..........................19 ...19

3.1 That the mental faculty of every of every child cannot be considered equally  ...........................................  ..................... ............................................ ............................................ ............................................ ............................................ ..................................... ............... 24

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER ISSUE 4: T HAT

THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN

RESPECT OF JUVENILES …………………………………………………………………..…..27

4.1 That the international conventions are in contraventions with the constitution of .................................................................... ............................................ ............................................ ............................................ ........................28 ..28  Indica.............................................. PRAYER ………………………………………………………………….…………………...33 ………………………………………………………………….…………………...33

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

LIST OF ABBREVIATIONS : AIR  & Anr. Art. CrPC Ed. HC IPC JJA JJB  NCRB Ors.  ¶ PCM POCSO Raj. § Sec. SC SCC SCJ SCR UOI U.P. V.

All India Reporter  And Another Article Code of Criminal Procedure Edition High Court Indian Penal Code Juvenile Justice Act Juvenile Justice Board National Crime Records Bureau Others 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

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

INDEX OF AUTHORITIES: TABLE OF CASES SL. NO.

INDIAN SUPREME COURT CASES

PG. NO.

1.

Aeltemsh v Union of India, AIR 1988 SC 176

2.

Bachan Singh v. State of Punjab, AIR 1982 SC 1325.

17

Binny Ltd. And Anr. V Sadasivan and ors., AIR 2005 SC 320

14

4.

Brugdaycay(1987) AC 514

14

5.

Civil Rights Vigilance Committee, SLSRC College of Law, Bangalore

30

3.

15,21

v. Union of India, AIR 1983 Kant. 85 6.

Counsel of Civil Services Union v. Minister for the Civil Services, [1985]

16

AC 374 7.

D.S Nakara v Union of India, 1983 AIR 130

21

8.

Deepak Chand Sibal v. Punjab University, AIR 1989 SC 903.

16

9.

Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779

10.

Gramophone Co. of India Ltd. v. Birendra Bir endra Bahadur Pandey, AIR 1984 SC 667

31

11.

Guruvayoor Devaswon Managing Committee and other v C.K Raj an and

13

15,18

Other, (2003) 1 SCC 546 12.

Harbansal Sahnia v Indian civil corporation Ltd, AIR 2003 SC 2120

14

13.

Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514

15,18

14.

I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750

14

15.

Indian council for enviro legal action vs Union of India, 2011 Indlaw SC

14

508 16.

K.K kouchunni vs State of Madras, AIR 1959 SC 725

14

17.

Kasturi v. State of J&K, AIR 1980 SC 1992

18.

Kesvananda Bharti v. State of Kerala, AIR 1973 SC 1461

29

19.

Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (¶

16

15,21

59) : AIR 2002 SC 2914 20.

M.C Mehta v. Union of India, (1987) 1 SCC 395

13

21.

Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783

30

22.

Maneka Gandi vs Union of India, AIR 1978 SC 597

14,16

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

23.

Mhajan v J.M.C, (1991) 3 SCC 91

15,21

24.

Minerva Mills v Union of India, AIR 1980 SC 1789

29

25.

Padurangarao v A.P.P.S, AIR 1963 SC 268

16

26.

Pratap Singh v. State of Jharkhand. AIR 2005 SC 2731

27.

Re Kerala Education Bill, AIR 1957 SC 956

29

28.

Rural litigation and Entitlement Kendra v. State of Uttar Pradesh, 1986

13

18,31

Supp. SCC 517 29.

S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87

30.

Sachidanand v. State of W.B, AIR 1987 SC 1109

31.

Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC

13 15,21 13

227 32.

State of Bombay vs United Motors Ltd., AIR 1953 SC 252

14

33.

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

27

34.

Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.

17

35.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

32

36.

Workman v Meenakshi Mills, (1992) 3SCC 336

SR.NO

1.

15,21

BOOKS

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

2.

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

3.

William J. Chambliss, Juvenile Chambliss, Juvenile Crime and Justice

4.

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

5.

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

6.

Richard Lawrence & Mario Hesse, JUVENILE 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 (4 India (4th ed. 2008)

10.

John Muncie, Gordon Hughes, YOUTH JUSTICE Critical Reading 5|Page

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

11.

SR . NO. 1.

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

CONSTITUTIONAL PROVISION

PG. NO

ARTICLE 32

SR . NO.

passim

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

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 Dictionar y Thesaurus, 40th Edn. 2006, Oxford University Press

SR . NO.

WEB R ESOURCES ESOURCES

1.

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

2.

www.manupatrafast.com(MANUPATRA)

3.

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

4. 5.

www.jstor.org(JSTOR) www.scconline.com(SCC ONLINE)

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

STATEMENT OF JURISDICTION: The petitioner humbly submits to the jurisdiction of this Honourable Court under Art. 32 of the Constitution of India. The petitioner has approached this Honourable Court in apprehension of the violation of rights that inevitably occur should the implementation of The Juvenile Justice Act, 2015 of the parliament not be stopped. Therefore, the petitioner maintains the jurisdiction of Art. 32 of The Constitution of India, which protects the citizens of Indica from any violation of their fundamental rights, is applicable in the present case.

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

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 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 s occer 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 5 th March 2016, Satya took leave from Mr. Rajan for 3 days from work, for visiting his village. On the 6 th 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 6 th 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 OF THE PETITIONER PETITIONER

 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 7 th 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 8 th 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 Court or whether it will be dealt dealt by the Juvenile Justice Board. As there was a large scale media coverage and further the f amily 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, Raja n, 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 OF THE PETITIONER PETITIONER

STATEMENT OF ISSUES:

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

[ISSUE 2] WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES ART 14, 21 AND RULE OF LAW OR NOT ?

[ISSUE 3] WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN ) ACT, 2015  IS UNCONSTITUTIONAL OR NOT ?

[ISSUE 4] WHETHER THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT OF JUVENILES OR NOT ?

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

SUMMARY OF ARGUMENTS : [ISSUE1] THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUION OF INDICA IS MAINTAINABLE.

The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is maintainable as a Public Interest Litigation, which has been filed with the apprehension of violation of Fundamental Rights enshrined under Part III of the Constitution. The procedurals flaw which depict the improper implementation of the Juvenile Justice Act, 2015 of the Parliament which falls under the ambit of authorities under Art. 12 of the Constitution. Thus, the petition is maintainable.

[ISSUE 2] THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOALTES ART. 14, 21 AND RULE OF LAW.

The petitioner contends that the implementation of the Juvenile Justice Act, 2015 by the Parliament if found to be arbitrary, thus violates of Art. 14 and Art. 21. Rule of law has also  been violated by the improper implementation of the Juvenile Justice Act, 2015 decision of the the Parliament. This execution is not based on sound reason hence has delivered results that shows the colourable exercise of power.

[ISSUE 3] THAT SEC. 15 OF THE JUVENILE JUSTICE ACT, 2015 IS UNCONSTITUIONAL.

All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in the instant case. First it “Violates the very essence of Juvenile Justice Act”1. Secondly it also violates various Fundamental Rights 2. Third, it does not take consideration of other relevant factors like social background back ground and psychological issues3. It has been well established e stablished by many neuroscientist that in adolescent period, child faces tremendous physiological, hormonal, emotional and structural change in the human brain, which subjects the child to great vulnerability4. Fourth, this act can also open the flood-gate of cases by angry parents who wants to resist their children from getting into love relationship 5. 1

 Amendment to juvenile justice act criticised, The Hindu, April 25.2015  International Journals of legal development and allied issues written by Sayashi Saha. 3  Ibid  4  Ibid  5  Ibid  2

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER [ISSUE 4] THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES IN RESPECT OF JUVENILES.

It is respectfully submitted that the impugned Act seeks to punish the child in conflict with law for the failure of the society at large in providing the child with adequate care and protection. It is submitted that the impugned Act seeks to create a fictional classification between the children belonging to age group of 16-18 years on the basis of degree of crime "allegedly" committed by them. It is submitted that under the Indian law a person under the age of 18 is not allowed to vote, is considered minor for entering into a contract, a girl of age less than 18 cannot ca nnot give consent for sexual relationships, a child of age less than 18 cannot marry, yet, by the amended act, that child can be tried as an adult and after a preliminary assessment, the child shall be presumed to have the knowledge and understanding of the alleged crime he has committed. The counsel submits that such a scenario would be travesty of Justice. The law of juvenile  justice stands on the principles of restorative and reformative justice and any digression from fr om the same would be detrimental to the right of the children and in contravention with the  principle as enunciated under Article 15(3) of the Constitution of Indica. Indica. The counsel humbly submits that the impugned amendment is against the UN Convention on the Rights of the Child (hereinafter as UNCRC) which is a comprehensive and internationally  binding agreement on the rights of children. It was adopted by the United Nations General Assembly in 1989. The Petitioner submits that our country accepts the i nternational convention of keeping 18 years as the age of the child and the same is reflected in various laws where the age of child was kept at 18 years such as a s Contract Act, Motor Vehicles Act, etc.

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

ARGUMENTS ADVANCED: 1.

THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDICA IS MAINTANABLE.

The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is maintainable as a Public Interest Litigation, which has been filed with the apprehension of violation of Fundamental Rights enshrined under Part III of the Constitution. The present  petition is maintainable under Art. 32 of the Constitution,6 since it falls within the ambit of “The State” as enriched under Art. 12 of the Constitution. Public function is one which “seeks to achieve some collective benefit for the public or a section of the Public”7 further under the well-established doctrine Parents Patriae, it is the obligation of the state to protect and take into custody the rights and privilege of its citizen for discharging its obligation. 1.1 Petitioner 1.1 Petitioner has a locus locus standi in the instant instant case:

It is humbly submitted that the Apex Court in S.P Gupta, Gupta,8 case held that test for determining the standing in individual interest cannot be a strictly applied to public interest. The court has expended the concept of “Affected Party” in case of Public interest. As it is humbly submitted that the Apex court in Shivaji Rao Nilangeker Partil, 9 and also in  in  Guruvajoor Devasean  Managing committee and Another  Another ,10 case held that the petitioner might have moved a court in his private interest and for redressal of the personal grievance the court in furtherance of the Public interest may treat it necessary nec essary to enquire into the state of the affairs af fairs of the subject of the litigation in the interest of justice. All the requirements of instituting PIL have been filled the instant case. First, there is a violation of fundamental rights. Second, the petitioner represents the rights of public i.e Juveniles in Conflict with Laws. Third, the petitioner has come to this Court with clean hands. The impugned “Juvenile Justice Act, 2015 issue by Parliament there or the Hon’ble Supreme Court is competent enough to decide legality of the amendment Juvenile Justice, 2015.

6

 Consitution of India, Pare materia to constitution of I ndia.  Binny Ltd. And Anr. V Sadasivan and ors. AI R 2005 SC 320 (para 11) 8  S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87; M.C Mehta v. Union of India, (1987) 1 SCC 395 ; Rural litigation and Entitlement Kendra v. State of Uttar Pradesh 1986 1986 Supp. SCC SCC 517 9 Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC 227 10 Guruvayoor Devaswon Managing Committee and other v C.K Rajan and Other, (2003) 1 SCC 546 7

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER 1.2 The petition has been filed in Public Interest and therefor maintainable as Public  Interest Litigation:

It is submitted that part III of the Constitution which deals with “Fundamental Rights” is regarded as basic structure of the Constitution11. To invoke the writ jurisdiction of the Hon’ble Supreme Court is not necessary that the fundamentals rights have been actually infringed. A threat to the same would been sufficient 12. Applying the Doctrine of “Reasonable Apprehension”, this Hon’ble Court may interfere directly in the said case. The most fundamental rights of an individual is his Right to Life; if an administrative decision may his life at risk, the basic for decision surely calls for the most anxious scrutiny according the  principle of “ Anxious Scrutiny”13. The petition filed before this court is maintainable. 1.3 Alternative 1.3 Alternative Remedy not a bar:

When there is a well – founded allegations that Fundamental Right has been infringed, alternative remedy is no bar for entertaining Writ Petition and granting relief,14. The legal remedy cannot be per be per se good se good and sufficient ground for throwing out a petition under Art 32 if the existence of a Fundamental and a breach, actual or threatened, of such rights is alleged is Prime Facie establish on the petition15. In spite of availability of alternative remedy, the court may exercise its writ jurisdiction in its least petition where the petitioner seeks enforcement of any of the fundamental rights. 16 Thus the petitioner humbly submits that PIL is maintainable as existence of alternative remedy is not a bar. 1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to violation of right alleged in the present matter: 1.4.1

Violation of the right of the Juvenile:

The Fundamental right to equality, 17  enriched under Art. 14 of the constitution have been violated because of the ambiguous law which has been amended by the State. The law is arbitrary in nature where every action of the State must be guided by reason for public good and not by whim, caprice, and abuse of power. 18 Also there is a violation of Right to natural

11

 I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750  Indian council for enviro legal action vs Union of I ndia (2011) 8 sec 161(para 20) 13  Brugdaycay(1987) AC 514, where lord Bridge said at 531 E-G 14  State of Bombay vs United Motors Ltd. AIR 1953 SC 252 15  K.K kouchunni vs State of Madras AIR 1959 SC 725 16  Harbansal Sahnia v Indian civil corporation Ltd. AIR 2003 SC 2120 17  Maneka Gandi vs Union of India AIR 1978 SC 597 18  Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779 12

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

 justice and Right of opportunity to be heard enriched under Art.21 Art.21 of the constitution has been violated on the account of arbitrary action of the state. It is humbly submitted that the present PIL is maintainable against Union of India.

2.

THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES ART. 14, 21 AND RULE OF LAW.

The petitioner contends that implementation of the Juvenile Justice Act, 2015 has rendered to  be arbitrary, hence violates of right to equality enriched under Art 14 and rule of law. 2.1 Arbitrary and capricious act of state are annulled by the provision of Art 14:

The petitioner submits that the jurisdiction of Art 14 extends to the prevention of arbitrar y and unreasonable action of the state, which are “antithetical” to the rule of equality. The principle of Indian law have thrown open the gates of Executive action to Judicial Scrutiny. It is submitted that under the expanded interpretation of Art 14, 19 any Administrative Act , even though it may inverse policy, 20 or that it involved an improper use, 21 or the statutory power; or that the power was exercised by an unfair procedure; 22 or that the action taken by the State or its instrumental is not conductive to the public interest, 23. In the case of  D.S Nakara v Union of India, India ,24  a memorandum dated May 25, 1979 the government of India liberalised the formula for computation of pension in request of employed governed by central civil service (Pension) Rule said that the liberalisation of the computation of the pension had been made applicable only to those retiring on or after the date specified and the benefit of liberalisation had been denied to all those who had retired earlier. Thus Art. 14 strikes at arbitrariness in state action and ensure fairness and equality of treatment. It is attracted where equals are treated differently differe ntly without any reasonable basis. The judgement was held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the section 2(12) says that a juvenile means a person who has not completed the age of 18 age and

19

 Durga Das Basu’s commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S Subramanni, Justice B.P Banerjee, 8 th Ed. 2008) 20  Workman v Meenakshi Mills (1992) 3SCC 336 (para 54) 21  Mhajan v J.M.C (1991) 3 SCC 91 22  Aeltemsh v Union of India, AIR 1988 SC 176 (para 6) 23  Kasturi v. State of J&K, AIR 1 980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109 24 1983 AIR 130

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

on the other side the Juvenile Justice Act 2015 is contradicting its own law while saying that 16-18 years of age should be tried as an adult criminal. In the instant case both Sat ya and Shashi were minors where they are treated tre ated differently without any reasonable basis and thus the Juvenile Justice Act, 2015 is arbitrary in nature similarly in the fact of Satya and Shashi Art. 14 ensure fairness and equality and treatment which should  be provided. 2.2 The authorities have failed to apply principle of reasonableness:

The petitioner submits that the Rule of Law, derived from the French term, la principle de legalite, is the foundation of the concept of a state that revolves around the law, and not around mem.25 As Lord Coke observed in Rooke’s in  Rooke’s case, case,26 act which under the guise of discretion can only be described as colourable exercise of power. The essence of judgement with development of the common law is that exercise of discretion should be coupled with equality and grounded in sound reason.

27

It is submitted that the authorities have acted without following the procedure leading to unequal treatment violating Art. 14, 28 arbitrariness in an antithesis of rule of law, equity, fair  play and justice 29. The Indian court have followed Wednesbury principle Wednesbury  principle of reasonableness 30. In the instant case, the authorities have wrongly exercised discretion as they have filled to ta ke into consideration that by the amendment of Juvenile Justice Act, 2015 it should ultimately affect the fundamental right of a section of the society. In the case of  Padurangarao v  A.P.P.S ,31. The state of Andhra Pradesh had made certain rules prescribing qualification for appointment to start judicial service. The court held that one of these rules, which laid down that only, that only advocate practising before the High Court’s where qualified, discriminated against Advocates practising in other high court though they belong to same class. The court rejected the contention that constitutional of the impugned rule should be considered along

25

 I.P Massey, Administrative Law, E ASTERN BOOK COMPANY 25 (7 TH ed,2008) 26   (1598) 5 Co. Rep. 99b “Proceedings ought to be limited and bound by the Rule of Reason, and Law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences and not to do according to their wills and private affections, for as one saith, tails discretion discretionemconfundit20.” 27   H.W.R.WADE & C.F.FORSYTH, ADMINISTRATIVE LAW, OXFORD PUBLICATIONS, 293 - 294 (10thed, 2009) 28  Maneka Gandhi v. Union of India (1978) 1 SCC 248; Deepak Chand Sibal v. Punjab University, AIR 1989 SC 903. 29  Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (¶ 59) : AIR 2002 SC 2914 30  Counsel of Civil Services Union v. Minister for the Civil Services [1985] AC 374 31  Pandurangarao v. A.P.P.SC,(1963) 1 SCR 707 (720): AIR 1963 SC 268

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with the other rule which prescribed legitimate qualification eg. : - Age, educational qualification etc. in the instant case of Satya and Shashi the Juveniles are further being classified as Juveniles are itself a class and further class cannot be classified so the impugned act should consider the age of juvenile as 18 years and that ambiguous law which has been amended should be reconsidered as the act is also not respecting the international treaties which says that a juvenile is a person who is below the age of 18 years. 2.3 The authorities have failed to apply the principle of reasonableness to the object or  purpose of the legislation :

The petitioner submitted that the authorities have acted without following the procedure to unequal treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is to provide care, protection and child friendly approach but child friendly approach suddenly disappears when the child is between the ages of 16-18 years. Thus the object of Juvenile Justice Act is not being fulfilled fulfilled as Juveniles are being treated as an adult criminals where they would be sent to the prison and due to this the Juvenile would be influenced to be more hardened criminals so the object or purpose of the Act to protect the juvenile from fr om committing the crime is not fulfilled rather than the government is trying to convert them into a hardened criminals and not to reform the juveniles so that the juveniles would be accepted into the society. Thus there is a violation of Art. 14 where the three test laid down the Supreme Court are not been satisfied. 2.4 That the implementation of the juvenile justice act, 2015 violates Art. 21 of the Constitution of Indica:

The petitioner contents that’s the implementation of Juvenile Justice Act 2015 has rendered for the natural justice enriched under Art. 21 of the c onstitution32. The Art. 21 of the constitution 33 envisages the rights to Natural Justice as a fundamental right. Further in order to establish violation or Art 21 the Act should be subjected to the equality test of Art. 14. Art. 14 strikes at arbitrariness because it neglects,34 and permeates the entire fabric of the rule of law,35 therefore every action of the state must be guided by the reason for public good and not by whim, Caprice, and abuse of power. 36

32

 Constitution of Indica, 1950 pari materia to the Constitution of India, 1950  Ibid 34 Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021. 35  Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 36  Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2 005) 9 SCC 779. 33

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER 2.4.1  Right of the Fair Trial has has been violated: violated:

The authorities have failed to apply the principle of fair trial and right of opportunity to be heard. Right to have fair trial of a juvenile is a fundamental right guaranteed under Art 21, which would include procedural safeguard. The Juvenile has right to get his case disposed of expeditiously is a statutory as well as a s constitutional right and at all stages s tages the board or the court is required to pass appropriate order under Juvenile Justice Act, 2000, 37. As per section 15 explanation (1) and (2) of Juvenile Justice Act, 2015 the board shall follow the procedure trial in summon case under CrPC of Indica, 1973, 38. Thus the Juvenile would be tried as an adult in the session court rather than Juvenile court. In the instant case of Satya and Shashi as there was a large scale media coverage c overage and also Mr Ranjan the master of Satya was an influential person due to which there was a mere apprehension that there case might be committed to session court, to invoke the writ Judriction of Hon’ble Supreme Court is not necessary that the fundamental right has been actually infringed but a threat to some would be sufficient in the instant case the Juvenile Satya and Shashi would not be tried under the Children Court by which the natural Justice is being violated. It is respectfully submitted that the doctrine of fair trial has been violated. 2.4.2 Right of opportunity opportunity has has been violated: violated:

The right of opportunity to be heard of Satya Sat ya and Shashi is also violating because the Juveniles were arrested by just a mere statement where there was a no Prima no Prima Facie evidence and hence  by a mere statement they would be tried in session court. Thus both the juveniles should be given a chance of proving themselves of not being guilty rather than apprehending them by a mere statement stated by Vani whose age is 16 years as juvenile also has right to be heard. Hence there is a violation of Art 21 of the constitution. In the instant case of Shashi and Satya  both of them have a right of fair trial as they have been treated as accused but not Juvenile in conflict with law according to section (15) of Juvenile Justice Act. The right of opportunity to  be heard has also been violated as no one in the family of o f the juveniles was been informed. Thus the petitioner submits that the rights of the juveniles are been violate under article 21 of the Constitution39.

37

 Pratap Singh v. State of Jharkhand. AIR 2005 SC 2731: (2005) 3 SCC 551 Parimateria to CrPC CrPC of India, 1973 39  Constitution of Indica, 1950, Parimateria to The Constitution of India, 1950 38

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER 3.

THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015 IS UNCONSTITUTIONAL.

According to several statutes in operation in or country, a juvenile has been defined in several statutes: § 2(k)40 a “juvenile” or “Child” is a person who has not completed eighteenth year of age. § 2(12)41, “Child” means a person who has not completed the ei ghteen 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. 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 excellence42. All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in the instant case. First it “Violates the very essence of Juvenile Justice Act”43. Secondly it also violates various Fundamental Rights44. Third, it does not take consideration of other relevant factors like social background and psychological issues 45. It has been well established establis hed by many neuroscientist that in adolescent period, child faces tremendous physiological, hormonal, emotional and structural change in the human brain, which subjects the child to great vulnerability46. Fourth, this act can also open the flood-gate of cases by angry parents who wants to resist their children from getting into love relationship 47. The prologue of The New Juvenile Justice (Care and Protection of Children), Act 2015, has introduced some of the remarkable changes in the existing Juvenile Law. One such major changes is, juvenile of age group of of 16-18 years are to be tried like an adult criminal. Also the  person who has attained the age of twenty one while in sentence will be be send to the jail for rest of the time span48.

40

Juvenile Justice (Care and and Protection of Children) Act, 2000  Juvenile Justice (Care and Protection of Children) Act, 2015 42  Legal papers and comments, Juvenile justice in India, Friday 17 th March, 2016. 43  Amendment to juvenile justice act criticised, The Hindu, April 25 .2015 44  International Journals of legal development and allied issues written by Sayashi Saha. 45  Ibid  46  Ibid  47  Ibid  48  International Journals of legal development and allied issues written by Sayashi 41

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

The petitioner humbly submits that in this particular section there has been a classification  between two different classes of a juvenile. Where juvenile is itself a class and further classification into a class cannot be done and hence there is a violation of the fundamental rights under Article 14 and Article 21 of The Constitution of Indica 49. It is also not satisfying the three tests of Article 1450 defined by the Supreme Court and that is:1.

Test of intelligible Differentia.

2.

There must be a nexus between the basis of classification and the object of the act under consideration.

3.

Arbitrariness

As these three tests are not satisfying the reasonability of section 15 of Juvenile Justice Act, 2015. The first test that is the Intelligible Differentia is unreasonable due to the logic and the reasons  because on one hand it replaces the word juvenile with child in conflict with law which is supposedly more humane. But this very child in conflict with law is meant to be tried for adult offences and is inhumane idea conceived by the Government. Also there is a flaw with the terms child alleged to be in conflict with law and child found to be in conflict with the law are not defined clearly and are used interchangeably in the act. Even though there is an alleged difference between alleged to be and found to be. It is respectfully submitted that the authorities have acted without following the procedure to unequal treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is to provide care, protection and child friendly approach but child friendly approach suddenly disappears when the child is between the ages of 16-18 years. Thus the object of Juvenile Justice Act is not being fulfilled fulfilled as Juveniles are being treated as an adult criminals where they would be sent to the prison and due to this the Juvenile would be influenced to be more hardened criminals so the object or purpose of the Act to protect the juvenile from fr om committing the crime is not fulfilled rather than the government is trying to convert them into a hardened criminals and not to reform the juveniles so that the juveniles would be accepted into the society. There are many international examples such as there is a U.S. study s tudy that is established

49

 Pari materia to the constitution of India  Ibid 

50

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80% of the juveniles released from prison go on to commit more serious offences. Hence this condition might be of India due to this Law which amended 51. The petitioner humbly submits that juveniles commits a tiny portion of crime in India and far less other than other nations such as United Stat es data52 that although there were 33,000 crimes committed by juveniles in India in 2012 there has not been a large increase 53. Art 14 extends to the prevention of arbitrary and unreasonable action of the state, which are “antithetical” to the rule of equality. The principle of Indian law have thrown open the gates of Executive action to Judicial Scrutiny. It is submitted that under the expanded interpretation of Art 14,54 any Administrative Act , even though it may inverse policy, 55 or that it involved an improper use,56  or the statutory power; or that the power was exercised by an unfair  procedure;57 or that the action taken by the State or its instrumental is not conductive to the  public interest,58. In the case of  D.S Nakara v Union of India, India ,59  a memorandum dated May 25, 1979 the government of India liberalised the formula for computation of pension in request of employed governed by central civil service (Pension) Rule said that the liberalisation of the computation of the pension had been made applicable only to those retiring on or after the date specified and the benefit of liberalisation had been denied to all those who had retired earlier. Thus Art. 14 strikes at arbitrariness in state action and ensure fairness and equality of treatment. It is attracted where equals are treated differently differe ntly without any reasonable basis. The judgement was held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the section 2(12) says that a juvenile means a person who has not completed the age of 18 age and on the other side the Juvenile Justice Act 2015 is contradicting its own law while saying that 16-18 years of age should be tried as an adult criminal. It is respectfully submitted that there is also a violation of fundamental right under art. 21. There is a violation of Right of opportunity to be heard and right of fair trial. The Juvenile 51

 Juvfenile Justice by Richard Lawrence And Mario Hesse  National Crime Bureau Report (2012-2013) 53  Ibid. 54  Durga Das Basu’s commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S Subramanni, Justice B.P Banerjee, 8 th edition 2008) 55  Workman v Meenakshi Mills (1992) 3SCC 336 (para 54) 56  Mhajan v J.M.C (1991) 3 SCC 91 57  Aeltemsh v Union of India, AIR 1988 SC 176 (para 6) 58  Kasturi v. State of J&K, AIR 1 980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109 59  1983 AIR 130 52

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would be tried as an adult in the session court rather than Juvenile court. In the instant case of Satya and Shashi as there was a large scale media coverage and also Mr Ranjan the employer of Satya was an influential person due to which there was a mere apprehension that there case might be committed to session court, to invoke the writ Judriction of Hon’ble Supreme Court is not necessary that the fundamental right has been actually infringed but a threat to some would be sufficient in the instant case the Juvenile Satya and Shashi would not be tried under the Children Court by which the fair trial of the juvenile is being violated. The right of opportunity to be heard of Satya and Shashi is also violating because the Juveniles were arrested by just a mere statement where there was a no Prima no Prima Facie evidence and hence  by a mere statement they would be tried in session court. Thus both the juveniles should be given a chance of proving themselves of not being guilty rather than apprehending them by a mere statement stated by Vani whose age is 16 years as juvenile also has right to be heard. Hence there is a violation of Art 21 of the constitution. It is respectfully submitted that in practice, Session Court have been given the additional changes of acting as a children’s court, however not many special court having child friendly environment has been created. It is further submitted that the child should have to face the ignominy of being called as “Accused” even though he may or may not have committed the said offence. Further, the child shall be forced to face fair trial which will have a negative effect on the psychology of mind. As this law will be highly misused if teenagers are found for consensual sex then the male would be charged for rape and will be sent in the prison. As there is an old established principle in law that lex iniusta non est lex that says unjust law is not a law. This act can also open the flood-gate of cases by angry parents who wants to resist their c hildren from getting into love relationship. First of all the POCSO Act states the age of consent is 18 years60 and if any crime committed by a juvenile under the POCSO Act it will be dealt as per the provision of Juvenile Justice Act 2000 (Now as per the new amendment act) 61. Again, the PCM Act states that the child marriages are voidable but not void62. In such a situation, many Juvenile who are involved in a love relation ca n marry each other and can enter in ‘consensual’

60

 The POCSO Act 2012 sec 2d  The stakeholder opined that this provision was worrying as needed to be looked at in relation to section 23 of POCSO Act see HUNDRED the juvenile justice (care and protection of children) PARLIAMENT OF INDIA RAJYA SABHA TWO HUNDRED SIXTY FOURTH REPORT, supra., at 16 62  The Prohibition of Child Marriage Act, 2006 sec 3 61

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sexual act. In such situation the consented sexual act may attract the provision of POCSO Act and the Juvenile Justice Act, 2015 and they may be tried as adult offender. In a hypothetical situation, when both the guy and girl are involved in a consensual sexual relation, then the male child shall be treated children in conflict with law and the female will be treated as children in need of care and protection. This situation may arise because in section 3, ‘Penetrative sexual assault’ starts with ‘he’, and it excludes the women from its periphery. It utters a girl can only  be abettor in the penetrative sexual assault not an active criminal. Such a harsh law against juveniles can be a weapon in hand of angry angr y parents in child elopement cases. If we look into the crime report of 2013, we can observe about 1388 cases are reported of rape which is only 4.18% of the total crimes committed by the juveniles between the age group of 16-18 years 63 and from them many cases are relating elopements where the parents come complaining to police that their children were sexually abused or kidnapped and lodge FIR against the boy. Under the existing law of a child in conflict with law between the age of sixteen - eighteen years were found to have committed an offence by b y Juvenile Justice Board, there was a arrange of rehabilitation supposition that could be passed by Juvenile Justice Board. These rehabilitation disposition includes admonition community service imposition of a fine,  probation group counselling and an extreme measure of deprivation of liberty by way of  placement of the child in the special home for three years. Also there has been no such alternative remedy which has been proposed like shelter homes, observation homes and rehabilitation homes. In the landmark case Sheela Barse and Anrs. v. Union of India 64  the  judgement delivered in the Supreme Court by the bench Bhagwati J. in which it was emphasised that a central act is needed for ensuring social economic and psychological rehabilitation of the children who are either accused or are abandoned or destitute or lost. If further stressed, then need not only of having a legislation but to enforce it with all earnestness and plea like financial constraints would not serve our purpose in binding up of powerful human resource who are to taken reins of nation in forward march. This act has basically been just saying about the juveniles who are to be tried as an adult criminals and it is sadly to be said that a majority of children in conflict with law comes from illiterate family, poor homes or even homeless. 77.5% arrested children in 2013 comes from

63

 National Crime Record Bureau, Crime in India 2013 statistics 513.  (1986) 3 SCC 596

64

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families with a monthly household of income of less than Rupees four thousand two hundred only. That’s how these poor the children’s are 87% have not received Higher Secondary Education65. These are the ones that the government are trying to punish instead of providing them with the education or give them an opportunity to integrate into our societ y66. As Delhi alone has around eighty thousand street children and when children are living on the streets or in pitiable condition they can easily come under the influence of criminal minded adults hence it is better to educate them rather than throwing them to a jail. 3.1 That the mental faculty of every child cannot be considered equally.

The petitioner humbly submits that the impugned Act seeks to repeal and replace the existing Juvenile Justice Act, 2002 with a draconian and unconstitutional amendment which instead of  providing care and protection protection to the the children deems them as an adult in cases where the the alleged commission of crime by them is heinous in nature. It is respectfully submitted that the impugned Act seeks to punish the child in conflict with the law for the failure of the society at large in providing the child with adequate care and protection. The petitioner herby completely submits that the brain of the teenager is not completely developed and he/she is incapable of fully understanding the consequences of his act or omission. It is to be submitted that in 2007 a study conducted at Researchers at Harvard Medical School, the National Institute of Mental Health (NIHM), US scanned the brains of nearby thousand healthy children between ages three to eighteen years 67. Child and Adolescent  psychiatrist Jay Geidd, who conducted the Magnetic Resonance Imaging (MRI) scans and followed the actual physical changes in the brain, believes that brain maturation peaks around the age of twenty-five years68. In 2005, Dr. Geidd quoted that during adolescence the “part of the brain that is helping organization, planning and strategizing is not done being built yet…. It’s sort of unfair to expect [adolescents] to have adult levels of organizational skills or decision making before their brain is finished being built69”. Deborah Yurgelun-Todd, Yurgelun-Todd, PhD Brain Brain Imaging Laboratory, Laboratory, McClean

65

 National Crime Bureau Report (2012-2013)  Relation of Juvenile with Jurisprudence, PG NO.29-30 67  American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain Development and Legal Culpability, January 2004. 68  Brain development in children and adolescents: Ins ights from anatomical magnetic resonance imaging Rhoshel K. Lenroot, Jay N. Giedd in 2006. 69   PBS Frontline, Inside the Teen Brain. See Interview with Jay Giedd, online at www.pbs.org/wgbh/pages/frontline/shows/teenbrain/,2004 last accessed on 12 th September at 7.00PM. 66

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Hospital Harvard University Medical School quoted that “Just because they're physically mature, they may not appreciate the consequences or weigh information the sa me way as adults do. So, [although] somebody looks physically mature, their brain may in fact not be mature 70.” Emotionally, an adolescent “is really both part child and part adult,” explains Melvin Lewis, an expert in child psychiatry and paediatrics at Yale University School of Medicine. Normal development at this time includes self-searching, sel f-searching, during which the adolescent tries to grow out of his or her childlike self. This change is complicated by the conflict between an adolescent’s new sense of adult identity and remaining juvenile insecuritie s71. As in the case Lakshmi case Lakshmi Kant Pandey v. Union of India and others , The Apex Court in its first Judgment in 1984 itself on the child jurisprudence said that: 1.

The children by reason of their physical and mental immaturity needs special safeguards and care, including the appropriate legal protection before as well as after birth and that the mankind owes to the children the best it has to give and formulate some principles mainly that “children have a right to love and be loved, grow up in an atmosphere of love and affection with moral and material security which is possible only if they are brought up in family care”.

2.

It is universally accepted that proper development of a child-emotionally, physically, intellectually and morally-can be best ensured with the family, or where it is not possible, then in family surroundings and in a family atmosphere. The responsibility for providing care and protection to children, including those who are orphaned, abandoned, neglected and abused rests primarily with the family, fa mily, the community and the society at large’.

Hence it has to be noted that a child should be treated in a good atmosphere and proper care and love should be given because they might be physically mature but mentally they might need support of the others. Similarly, in the case of Satya and Shashi, Satya was a poor boy who was a dropout due to financial conditions and has struggled a lot in his life where he has never got love and affection from his family and neither from Vansh and Vani who were the children of his master Mr. Rajan where they used to ill-treat him and misbehave with him and

70

 American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain Development and Legal Culpability, January 2004. 71  Lewis, Melvin. Child and Adolescent Psychiatry: A comprehensive textbook, Lippincott Williams and Wilkins (2002).

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during his bad times Shashi was the only witness where Vansh and Vani abused him as the  product was not available in the market. As in the Indian Context: Dr. Rajat Mitra, clinical psychologist and director of Swanchetan, a non-governmental organisation based in New Delhi providing support to juvenile delinquents among others - says that “complete rehabilitation is very rare”. “It is almost next to nil. Rehabilitation is a well-defined scientific process. The idea is to help the convict gain back his original psychological, physical and social capacity which is impaired as a result of the crime committed,” he says. 72 Juveniles in conflict with the law are more capable of change given the fact that their brains are still learning. Honest efforts made towards rehabilitation — including visits by a mental health professional three-four times a month — will have a s ignificant positive impact on them. Unfortunately, there is no psychiatric screening in Indian prisons. No mental health  professional has met the juvenile convicted in i n the gang-rape case c ase yet; neither when he was in a reform home for three years nor after release. “That’s no way to look at rehabilitation,” says Dr. Mitra73. The petitioner humbly submits that there are many circumstances under the I ndian law a person under the age is not allowed to vote, is considered minor for entering into a contract, a girl of age less than eighteen years cannot give consent for sexual relationships, a child of age less than eighteen years cannot marry. Yet by the amended act that child can be tried as an adult after a preliminary assessment, the child shall be presumed to have the knowledge and understanding of the alleged crime he has committed. The petitioner submits that such a scenario would be travesty of justice. It is submitted that the idea behind treating a certain age group as children is to protect the most vulnerable section of the society. Where the government analysed in such matters that they are not mature enough to deal with these things. Thus it is humbly submitted that section 15 of juvenile Justice Act, 2015 has been violated.

72

 Neuroscience and the Juvenile Legislation Report 2005  Ibid.

73

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1st  B. PARMAESHWAR DAYAL MOOT COURT COMPETITION, 2016  MEMORANDUM ON BEHALF OF OF THE PETITIONER PETITIONER 4. THAT THE ACT IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLES

IN RESPECT OF JUVENILES.

The counsel humbly submits that the impugned amendment is against the UN Convention on the Rights of the Child (hereinafter  as  as UNCRC) which is a comprehensive and internationally  binding agreement on the rights of children. It was adopted by the United Nations General Assembly in 1989. The definition of child as envisaged in Article-1 states: "For the purposes of the present Convention, a child means every human being below the  Age of eighteen years unless under the law applicable applicable to the child, majority is attained earlier." The object clause of the present amendment states thus: "And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of child." The counsel submits that the mention of UNCRC in the object ive of the impugned amendment is a mere eye wash as the amendment seeks to erode the very definition of child as envisaged in the UNCRC. The counsel further submits that section 16 74 of the Act of 2000 had a specific  provision to deal with children between 16-18 years who had committed serious offences offences which was well within the existing juvenile system and that there was no need to push juvenile offenders into adult criminal system. The counsel submits that our country accepts the international convention of keeping 18 years as the age of the child and the same is reflected in various laws where the age of child was kept at 18 years such as Contract Act, Motor Vehicles Act, etc. In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level,  bearing in mind the facts of emotional, mental and intellectual maturity75. United Nations Convention on the Rights of the Child, 1990 read with the concluding Resolution of the Committee on Child Rights mandates me mber States to act a ct accordingly. The UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”) were adopted by the General Assembly of the United Nations in 1985. Rule 2.2(a) defines a  juvenile as a child or young person who, under the respective legal system, may be dealt wit h

74

 Section 16, Juvenile Justice Act. (2000) - Order that may not be passed against juvenile.  Subramanian Swamy v. Raju, (2014) 8 SCC 390.

75

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for an offence differently than an adult. Rule 4.1 set out below mandates Member States to refrain from fixing a minimum age of criminal responsibility that is too low, bearing in mind the facts of emotional, mental and intellectual maturity.

4.1 That the International Conventions are 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 Juvenile Justice Act, 2015 did not consequently bring in in to adhere to the standards set by the convention. As Indica is a ratified member Indica is required to undertake all appropriate measures to ensure that rights of the children with regards to the juvenile justice, care, protection and adoption. The standing committee observes that the Juvenile Justice Act, 2015 violates UNCRC and other international treaties as it differentiates between children below 18 years of age. The UNCRC also states that the ratified country should treat every child under the age of 18 years in the same manner and not to try them as an adult. Art. 40 of UN Convention on the rights of the child defines juvenile justice as: “Children’s who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. The government are required to set a minimum age below which children cannot be held criminally responsible and to provide minimum guarantees for the fairness and quick resolution of judicial or alternative  proceedings.” In the instant case the children are not been treated as a juvenile even when they are ratified members of UNCRC and they are still not abiding the tre aties regarding this matter. Article 51(c) of The Constitution of Indica 76  states that the State shall endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. It may be said that the distinction in article 51(c) between ‘international law’ and ‘treaty obligations’ is that the term ‘international law’ refers to international customary law. The acceptance of such an approach would mean that customary international law is not incorporated into Indian municipal law ipso facto (cf. facto (cf. the British and American practice). In

76

 parimateria to The Constitution of India, 1950

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

league with this approach is the contention that article 51(c) reduces the position of international law in India to a mere directive principle. In several cases Directive principles are given status of fundamental rights as new dimension. In  Re Kerala Education Bill,77  “The  The  Supreme Court observed that though the Directive Principle cannot override the fundamental right, nevertheless, in determining the scope and ambit of fundamental rights the court may not entirely ignore the dire ctive principles but should adopt the principles of harmonious construction and should attempt to give effect to both as much as possible”. There is no antithesis between the Fundamentals Rights and the Directive Principles. They are meant to supplement one another. Granville Austin, 78 has described the fundamentals rights and the directive principles as the “Conscience of our Constitution”. In  Kesvananda Bharti v. State of Kerala, Kerala ,79  the Hon’ble Supreme Court has said that “Fundamental Rights and Directive Principles aim at the same goal of bringing about a social revolution and establishment of a Welfare State and they can be interpreted and applied together. They are supplementary and complementary to eac h other. It can be well be said s aid that directive principles prescribed the goal to be attain and the fundamental rights lay down the means by which that goal is to be achieved. In the case of  Minerva Mills’ v Union of India80 the Hon’ble Supreme Court by 4 to 1 majority struck down Art 31-C as amended by 42 nd Amendment as unconstitutional on the ground that it destroys the “basic feature” of the Constitution. The majority observed that the constitution is founded on the bed rock of the  balance between part III and part IV to give absolute primacy to one over the other is to disturb the harmony of the Constitution which I the essential feature of the basic structure the goal set out in part IV have to be achieved without the abrogation of the means provided for by part III. In number of decisions the Hon’ble Supreme Court has given many directive principles of state st ate Policy the status of fundamental rights. Thus both Directive Principles and Fundamentals Rights should go hand in hand similarly the International Law as well as the Municipal Law should go hand in hand. It is respectfully submitted that 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 77

 AIR 1957 SC 956  Cornerstone of a Nation (Indian Constitution) by Granville Austin, Pg no. 75 79  AIR 1973 SC 1461 80  AIR 1980 SC 1789 78

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

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. 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. Hon’ble Supreme Court has followed the above principle and has interpreted municipal laws so as to give effect to the International Convention or Treaties. Article 5181 of The Constitution embodies the object of Indica in the international arena, but it does not lay down that international treaties or agreements or agreements entered into by Indica shall have the force of municipal municipal law without appropriate legislation. In other words, words, Indica’s obligations under an international treaty cannot be enforced, unless such obligations are made part of the law of this country by means of appropriate legislation.82 Article 253 is in conformity with the object declared by article 51(c). 51(c). Treaty-making, implementing of treaties, etc., is a subject of Union legislation, under Entry 14 of the Union List. Legislation would be required to give effect to a treaty: (a)

where it provides for payment of money to a foreign power 83;

(b)

where justifiable rights of the citizens or others are restricted or infringed84;

(c)

Where laws of the State are modified.

81

“The State shall endeavour endeavour to – (a)  promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration.” 82 Civil Rights Vigilance Committee, SLSRC College of Law, Bangalore v. Union of India , AIR 1983 Kant. 85 83  Ibid. 84  Maganbhai Ishwarbhai Patel v. Union of India AIR India  AIR 1969 SC 783

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

In the instant case there has been a violation of the justif iable rights of the citizens and the state has also modified the laws due to which the juvenile in conflict with law has to suffer at large. Municipal courts may however use the Covenants a s an aid to the interpretation interpreta tion of Statutes, by applying the doctrine of harmonisation 85. Thus the petitioner humbly submits that the municipal law and the international law should not be in contravention to each other and should go hand in hand as both of the laws are equally important.  International treaties vis-à-vis vis-à-vis Statute law:

 Hersch Lauterpacht, once Lauterpacht, once a judge of the International Court of Justice, regarded international law as superior to national law because, in his view, international law furnished the best guarantee for protection of the human rights of individuals. International law was said to control or override national law because the latter could be less trusted to protect individuals. It is well-established in India that in case of conflict between international treaties and clear and unambiguous statute law, courts will give effect to statute la w. If statute law is ambiguous, the courts adopt the doctrine of harmonious construction so as to avoid conflict between international treaties and statute law. In other words, Indian courts construe ambiguous statute law in the context of international treaties.86 In the instant case the Juvenile Justice Act, 2015 is ambiguous in nature because sec. 2(12) 87 defines juvenile below the age of 18 years whereas, in sec.15 88  the juveniles who commits serious offence are to be treated as an adult criminals. Thus the law is ambiguous where the  juveniles are not being treated equally where juveniles are itself a class and it cannot further be classified. As there is a conflict between the International Law and the Municipal Law there should be harmonious construction to avoid the conflicts between them. In Pratap In Pratap Singh v. State of Jharkhand 89, the Supreme Court observed that the courts can refer to and follow international treaties, covenants and conventions to which India is a party although they may not be a part of our municipal law. A contextual meaning to a statute is required to be assigned having regard to not only the Constitution but also international law operating in the field. The Court held that the Juvenile Justice (Care and Protection of Children) Act, 2000 should be interpreted in the light of the Universal Declaration of Human Rights as

85

 Cf.Kubic v. Union of India, AIR 1990 SC 605 (614-615) Gramophone Co. of India Ltd. v. Birendra B ahadur Pandey, Pandey , AIR 1984 SC 667 87 Juvenile Justice (Care and Protection of Children) Act, 2015 88  Ibid  89  (2005) 3 SCC 551, pp. 578-579 86

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

well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules). According to the delegation theory, various national legal systems are derived by way of delegation from the international legal system. Constitutional rules of international law have delegated to each state constitution the right to decide when the provisions of a treaty or convention are to come into force and the manner in which they are to be embodied in the internal law. There is no fresh creation of rules of municipal law, but merely a prolongation of one single act of creation.

There is no specific adoption of international law by by the distinct

municipal law. Since international law is essentially a part of the same l egal order as municipal law, and as superior in nature, it can be deemed as incorporated in municipal law. The doctrine of incorporation stipulates that international law becomes part of national law without the need for express adoption by the national legal institutions. In Vellore Citizens Welfare Forum v. Union v. Union of India 90 , the Supreme Court held that “it is almost accepted proposition of law that the rules of customar y international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law. Monism is the idea or the monist theory assumes that international law and national l aw 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.  grundnorm. Mediately or immediately, both are aimed at regulating the conduct of individuals. It is respectfully submitted that the Juvenile Justice Act has been adopted from the UNCRC and Indica is a ratified member of it so the state has adopted this theory and hence the International Law and the Municipal Law should be harmonious in nature and should go hand in hand. In the case of international law derived from treaties, there must be a transformation of the treaties into national law.

90

AIR 1996 SC 2715

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

PRAYER :

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to: 1) TO ISSUE THE WRIT OF PIL. 2) TO COMPENSATE FOR A BREACH OF FUNDAMENTAL RIGHTS. 3) TO HOLD THAT SECTION 15 OF THE JUVENILE JUSTICE ACT (2015) IS UNCONSTITUTIONAL.

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

Sd/(COUNSEL FOR PETITIONER)

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