Professional Documents
Culture Documents
ST
UNION OF INDICA
(RESPONDENT)
To,
THE HONBLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF SUPREME COURT OF INDICA
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 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
1.3 Alternative Remedy not a bar14
1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to
violation of right alleged in the present matter.14
ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ART 14, 21 AND RULE OF LAW ......15
2.1 Arbitrary and capricious act of state are annulled by the 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
2.4.1 Right of fair trial has been violated.18
2.4.2 Right of opportunity has been violated... 18
IS UNCONSTITUTIONAL ......................................................................19
3.1 That the mental faculty of every of every child cannot be considered equally
..................................................................................................................................................24
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RESPECT OF JUVENILES....27
4.1 That the international conventions are in contraventions with the constitution of
Indica........................................................................................................................................28
PRAYER....33
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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.
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INDEX OF AUTHORITIES:
TABLE OF CASES
SL. NO.
PG. NO.
1.
2.
17
Binny Ltd. And Anr. V Sadasivan and ors., AIR 2005 SC 320
14
4.
Brugdaycay(1987) AC 514
14
5.
30
3.
15,21
Counsel of Civil Services Union v. Minister for the Civil Services, [1985]
16
AC 374
7.
21
8.
16
9.
10.
31
11.
13
15,18
14
13.
15,18
14.
14
15.
Indian council for enviro legal action vs Union of India, 2011 Indlaw SC
14
508
16.
14
17.
18.
29
19.
Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (
16
15,21
13
21.
30
22.
14,16
4|Page
15,21
24.
29
25.
16
26.
27.
29
28.
13
18,31
30.
31.
13
15,21
13
227
32.
14
33.
27
34.
17
35.
32
36.
SR.NO
1.
15,21
BOOKS
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.
4.
5.
Durga Das Basu, Commentry on the constitution of India (8th ed. ) ( Vol. 2 4, 8,10)
6.
7.
8.
10.
SR. NO.
1.
Dr. S.K Kapoor, International Law & Human Rights (18th ed.)
CONSTITUTIONAL PROVISION
PG. NO
ARTICLE 32
SR. NO.
passim
STATUTES
1.
2.
3.
TREATIES
SR. NO.
1.
2.
3.
SR. NO.
LEXICONS
1.
2.
3.
SR. NO.
WEB RESOURCES
1.
2.
www.manupatrafast.com(MANUPATRA)
3.
4.
5.
www.jstor.org(JSTOR)
www.scconline.com(SCC ONLINE)
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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.
7|Page
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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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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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.
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12 | P a g e
ARGUMENTS ADVANCED:
1.
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 Public7 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 has a locus standi in the instant case:
It is humbly submitted that the Apex Court in S.P 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 Guruvajoor Devasean
Managing committee and 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 to enquire into the state of the affairs 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 Honble Supreme Court
is competent enough to decide legality of the amendment Juvenile Justice, 2015.
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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
14 | P a g e
2.
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 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 14,19 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,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 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 Basus commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S
Subramanni, Justice B.P Banerjee, 8th 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 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109
24
1983 AIR 130
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25
16 | P a g e
32
17 | P a g e
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 constitutional right and at all stages 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 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 Honble 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 has been 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 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 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 of India, 1973
39
Constitution of Indica, 1950, Parimateria to The Constitution of India, 1950
38
18 | P a g e
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 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.
Since a nations 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 Act43. Secondly it also
violates various Fundamental Rights44. Third, it does not take consideration of other relevant
factors like social background and psychological issues45. It has been well established 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 relationship47.
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 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 send to the jail for rest
of the time span48.
40
19 | P a g e
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 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 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 that is established
49
50
20 | P a g e
21 | P a g e
60
22 | P a g e
63
64
23 | P a g e
65
24 | P a g e
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.
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).
25 | P a g e
72
73
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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 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 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 objective 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 1674 of the Act of 2000 had a specific
provision to deal with children between 16-18 years who had committed serious 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 member States to act 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 with
74
75
Section 16, Juvenile Justice Act. (2000) - Order that may not be passed against juvenile.
Subramanian Swamy v. Raju, (2014) 8 SCC 390.
27 | P a g e
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:
Childrens 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 treaties regarding this matter.
Article 51(c) of The Constitution of Indica76 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. the British and American practice). In
76
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29 | P a g e
(b)
(c)
81
30 | P a g e
85
31 | P a g e
90
32 | P a g e
PRAYER:
In the light of the issues raised, arguments advanced and authorities cited, may this Honble
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.
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