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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
CONSTITUION OF INDICA IS MAINTAINABLE OR NOT..13
1.1 Petitioner doesnt have a locus standi in the instant case... 13
1.2 No violation of fundamental rights...13
1.3 Existence of an alternative remedy ..14
ISSUE 2. THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ART 14, 21 AND RULE OF LAW...........14
2.1 The authority has applied the principle of unarbitrariness ..15
2.2 The authorities have applied principle of reasonableness and the impugned act is well within
the contours of the procedure established by law .....15
2.3 The authorities have applied principle of reasonableness to the object or purpose of the
legislation .16
2.4 That the implementation of the juvenile justice act, 2015 violates article 21...17
2.4.1 Right of fair trial has not been vioalted ....17
2.4.2 Right of opportunity to be heard has not been violated ......19
That
the
mental
faculty
of
every
child
can
be
considered
equal
or
not.............................................................................................................................................22
ISSUE 4: THAT
RESPECT OF JUVENILES
..24
1|Page
2|Page
LIST OF ABBREVIATIONS:
ABBREVIATIONS
AIR
&
Anr.
EXPANSIONS
All India Reporter
And
Another
Art.
CrPC
Ed.
HC
IPC
JJA
JJB
NCRB
Ors.
Article
Code of Criminal Procedure
Edition
High Court
Indian Penal Code
Juvenile Justice Act
Juvenile Justice Board
National Crime Records Bureau
Others
PCM
POCSO
Paragraph
Prohibition of Child Marriage Act
Protection of Children from Sexual Offence
Act, 2012
Rajasthan
Section
Section
Supreme Court
Supreme Court Cases
Supreme Court Journal
Supreme Court Reporter
Union of India
Uttar Pradesh
Versus
Raj.
Sec.
SC
SCC
SCJ
SCR
UOI
U.P.
V.
3|Page
INDEX OF AUTHORITIES:
TABLE OF CASES
SR.NO
PG.NO
3.
CASES
A.D.M., Jabalpur v. Shivakant Shukla
Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974
SC 1539
Asstt. Collector of Central Excise v. Jainson Hosiery
4.
5.
6.
7.
8.
9.
10.
11.
12.
14
26
14
16
15
26
15
17
26
13.
14.
26
15.
16.
Mirza Ali Akbar Kashani vs United Arab Republic And Anr, 1966 SCR (1)
319
Moti Lal v. Uttar Pradesh, AIR 195 ALL 257(EB)
Namit Sharma v. Union of India, (2013) 1 SCC 745
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568
Praveen Singh v. State Of Punjab, (2000) 8 SCC 633
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
RomeshThapar v Union of India, AIR 1950 SC 124
Secretary, Govt. of India v. AlkaSubhashGadia, 1990 SCR, Supl. (3) 583
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411
Subramanian Swamy v. Raju, (2014) 8 SCC 390
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123
Union of India v. Azadi BachaoAndolan, AIR 2004 SC 1107
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
26
15
14
13
14
15
24
15
31
30
1.
2.
Sl. No
26
13
14
14,17
26
14
Pg. No
1.
25
2.
Niboyet v. Niboyet
25
3.
26
4.
26
4|Page
BOOKS
1)
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)
Samuel M. Davis, RIGHTS OF JUVENILE 2d, The Juvenile Justice System (South
Asian Edition)
8)
9)
10)
11)
Dr. S.K Kapoor, International Law & Human Rights (18th ed.)
SR. NO.
1.
CONSTITUTIONAL PROVISION
PG. NO
ARTICLE 32
passim
SR. NO.
STATUTES
1.
2.
3.
SR. NO.
1.
5|Page
3.
SR. NO.
LEXICONS
1.
2.
3.
SR. NO.
WEB RESOURCES
1.
2.
www.manupatrafast.com(MANUPATRA)
3.
4.
www.jstor.org(JSTOR)
5.
www.scconline.com(SCC ONLINE)
6|Page
STATEMENT OF JURISDICTION:
The petitioner has filed this writ petition under Article 32 of The Constitution of India for the
violation of fundamental rights enumerated in Part III of the Constitution. The Respondent
maintains that no violation of rights has taken place. Therefore, this Honble court need not
entertain its jurisdiction in this writ petition.
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
8|Page
9|Page
STATEMENT OF ISSUES:
[ISSUE 1]
WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION
OF INDIC IS MAINTAINABLE OR NOT?
[ISSUE 2]
WHETHER THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT, 2015 VIOLATES
ARTICLE 14, 21 AND RULE OF LAW?
[ISSUE 3]
WHETHER THE SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION FOR
CHILDREN) ACT, 2015 UNCONSTITUTIONAL?
[ISSUE 4]
WHETHER THE ACT IS IN CONSONANCE WITH THE INTERNATIONAL PRINCIPLE IN RESPECT
OF JUVENILES?
10 | P a g e
SUMMARY OF ARGUMENTS:
[ISSUE 1] THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE
INSTANT CASE.
The writ Petition is not maintainable in the instant case. The fundamental rights of the petitioner
have not been violated. Even so, the fundamental rights are subject to inherent limitations
which are imposed by the Constitution itself and an existence of alternative remedy is sufficient
to make the petition fail.
1
2
11 | P a g e
12 | P a g e
ARGUMENTS ADVANCED:
1. THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF
THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE.
A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement
of Fundamental Rights3, as guaranteed by part III of the Constitution4.
In the present case firstly, there has been no violation of the fundamental rights and secondly,
the petitioner has failed to exhaust his alternative remedy. The action taken by the State was in
furtherance of the principle of social justice and thus cannot be termed as arbitrary or as one
which was without the application of the mind.
1.1 Petitioner has no locus standi in the instant case:
The respondent submits that the Court has held that only if there is a violation of
Fundamental Rights can it step in under the Jurisdiction of Article 325 . The petitioner is
raising a mere scholarly objection, without any locus standi. No one has been displaced,
there has been no forceful assimilation and no harm has been done to the juveniles. Hence
when there is no damnus, the Petitioner cannot seek a remedy. Moreover, the enactment of
the Juvenile Justice Act, 2015 has added a new dimension to the existing Juvenile Justice
Act, 2000. The Juvenile Justice Board has explicit power to hear the matters concerning
the Juvenile Justice Act, 2015. When an authority has been specifically set up to hear the
issues pertaining to the nature of this writ petition, the petitioner need not bring up this
issue before the Honble Court.
Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as
guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.
4
Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 10, Guruvayur Devaswom
Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 50, BALCO Employees Union (Regd.) v. Union
of India (2002) 2 SCC 333.
5
Romesh Thapar v Union of India, AIR 1950 SC 124
6
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
13 | P a g e
14 | P a g e
It is submitted that Art. 14 as including the principles of reasonableness only requires the
government to act on reasonable grounds25. The court function is to check whether the decision
17
25
Durga Das Basu's Commentary on the Constitution of India, 1360 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
15 | P a g e
The object or the purpose of the Juvenile Justice Act, 2015 is being fulfilled and it has not been
drafted hastily or arbitrarily. The object of the act28 is being fulfilled as there are various
heinous offences such as rape, murder, kidnapping, burglary which has been increased day by
day by the juveniles between the age of 16-18 years29. In the case of Nirbhaya the sacrifice of
her life only reinforces that India requires De Facto equality, freedom from superstition,
renunciation of arcane, misogynist traditions and practices which are at variance with the
Constitution, which seeks to debilitate and handicap women30. Also in the case of Banerjee
and Mohanty, 2013 the girl was brutally raped by the juvenile. Thus the object of the Juvenile
is being fulfilled of treating the juveniles as an adult criminals who is between the age group
of 16-18 years. It is respectfully submitted that as the crimes are being increased by the
juveniles hence the tougher laws are to be implemented. The logical reasoning to crime as a
rational behaviour is tougher punishment as a deterrent. Specific Deterrence discourages
offenders from repeating their crimes by threatening to punish them more harshly the next time.
26
Fertilizer Corpn Kamgar Union v. Union of India, (1981) 1 SCC 568, 584.
JUSTICE VERMA COMMITTEE report (para 16)Pg. No. 29
28
Juvenile Justice (Care and Protection of Children), 2015
29
National crime Report Bureau (2013), The Handbook of Delinquency and Juvenile Justice, Pg. No. 55,56,57.
30
JUSTICE VERMA COMMITTEE report (para 34)
27
16 | P a g e
31
Juvenile Justice by Richard Lawrence & Mario Hesse( Pg. No. 30)
Juvenile Justice (Care and Protection of Children), 2015
33
Ibid.
34
Krishnan v. State of Madras, AIR 1951 SC 301
35
Maneka Gandhi v. Union of India.AIR 1978 SC 597
36
Black law Dictionary
32
17 | P a g e
37
18 | P a g e
41
19 | P a g e
45
20 | P a g e
48
49
21 | P a g e
50
The Handbook of Juvenile Delinquency and Juvenile Justice, edited by Marvin D. Krohn, Jodi Lane
51
22 | P a g e
52
Ibid.
23 | P a g e
53
24 | P a g e
54
55
25 | P a g e
56
Ibid.
Maganbhai Ishwarbhai Patel v. Union of India AIR 1969 SC 783
58
Moti Lai v. U.P , AIR 195 ALL 257(EB)
59
Ibid.
60
Mirza Ali Akbar Kashani vs United Arab Republic And Anr, 1966 SCR (1) 319
61
A.D.M., Jabalpur v. Shivakant Shukla AIR 1976 SC 1207, 1291
62
Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 568
63
Bhat v. Union of India, (1990) 3 SCC 65
64
2008 (9) SCALE 69
57
26 | P a g e
As a means of interpretation;
(ii)
(iii)
To fulfil spirit of international obligations which India has entered into, when they are
not in conflict with the existing domestic law;
(iv)
(v)
(vi)
The Supreme Court also observed that the courts should not be loath to refer to the International
Conventions, where the protection of human rights, environment, ecology and other secondgeneration or third-generation rights are involved.66 Anzilotti propounded a different approach.
In his view, international law is conditioned by the principle pacta sunt servanda, that is,
agreements between states are to be respected, while national law is conditioned by the
fundamental principle or norm that state legislation is to be obeyed. The two legal systems are
accordingly entirely distinct.
In the instant case the rights of the women and children are to be protected as it is a duty of
the state to do so thus the international law is not taken into consideration because the act is
being committed in the territory of India therefor municipal law will prevail over international
law. There is a respect between the international treaties by the municipal law but international
treaties are not Supreme law of land hence municipal law will prevail over the other.
The interpretation of international treaties and convention is governed by Art 31 and 32 of the
Vienna Convention on the Law of Treaties of 1969. When Statutes are enacted to give effect
to any treaty of Convention, Art 31 and 32 of the Vienna Convention becomes relevant for the
interpretation of such Statutes. Art 31 and 32 of the convention read thus.
Art 31: (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and purpose.
65
66
Ibid., p. 92
Ibid., p. 94
27 | P a g e
28 | P a g e
69
70
Study in this Paper is limited to the practice of India, the U.K. and the U.S.
Oppenheims International Law, (1992), Vol. I, p. 54
29 | P a g e
the subjects of national law are individuals, while the subjects of international
law are states solely and exclusively;
(ii)
Juridical origins of the two legal systems are different: the source of national
law is the will of the state itself, while the source of international law is the
common will (Gemeinwille) of states.
(iii)
Another distinction between the two is: national law is a law of sovereign over
individuals; international law is a law, not above, but between sovereign states.
In the instant case municipal law should prevail over international law because the crime rate
of the juveniles has been increased and it is within the territory of Indica and also municipal
law takes care of an individual and if any wrong happens within the territory of Indica then it
is the duty of the state to protect the citizens rather than following the international treaties. If
the municipal law is ambiguous in nature then the international law can be taken into
consideration or else not.
Though a legislation must be interpreted in conformity with international principles, it is a
different thing to say that treaty must be given effect to without a law or in the absence of the
municipal laws71. It was held that doctrine of monism as prevailing in European countries
does not prevail in India. It was held that doctrine of dualism is applicable. A treaty entered
by Indica cannot become a law of the land and it cannot be implemented unless Parliament
passes a law under Art. 253. But making the law under that authority is necessary when the
treaty or agreement operates to restrict the rights of the citizen or others or modifies the laws
of the State. If the rights of the citizens or others which are justiciable are not affected, no
legislative measure is needed to give effect to the treaty or agreement72.
The respondent humbly submits that in the present case the act in question is not in
contravention with the Constitutional Provisions of the Constitution of Indica as well as it is
also in consonance with the principle of UNCRC and also there is respect for the international
treaties.
71
72
30 | 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. DISMISS THE WRIT PETITION.
2. TO HOLD THAT THERE HAS BEEN NO BREACH OF FUNDAMENTAL RIGHTS.
3. TO HOLD THAT SECTION 15 OF JJ ACT 2015, IS CONSTITUTIONAL.
All of which is respectfully submitted and for such act of kindness the Respondent shall be
duty bound as ever pray.
31 | P a g e