2nd NATIONAL MOOT COURT COMPETITION, 2019, BAHRA UNIVERSITY

IN THE HON’BLE SUPREME COURT OF INDIANA

PUBLIC INTEREST LITIGATION

PEOPLE FOR THE EDUCATION AND PROTECTION OF

CHILDREN...................................................................................................PETITIONER

VERSUS

UNION OF INDIANA…………………………………………………….RESPONDENT

SAMAR…………………………………………….……………….………PETITIONER

VERSUS

UNION OF INDIANA………………………………………..…………. RESPONDENT

TO THE HON’BLE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF SUPREME

COURT OF INDIANA

-MEMORANDUM ON THE BEHALF OF PETITIONERS-

 2ND NATIONAL MOOT COURT COMPETITION, 2019, BAHRA UNIVERSITY

-INDEX-

LIST OF ABBREVIATIONS ........................................................................................................ III

INDEX OF AUTHORITIES.......................................................................................................... VI

STATEMENT OF JURISDICTION……...……………….…………………………………………………IX

SYNOPSIS OF FACTS .................................................................................................................. XI

STATEMENT OF ISSUES ......................................................................................................... XIII

SUMMARY OF PLEADINGS ....................................................................................................XIV

BODY OF PLEADINGS ................................................................................................................... 1

1. THAT THE PRESENT PIL IS MAINTAINABLE IN THE COURT OF LAW. .............. 1

A. ESTABLISHING THE BONA-FIDE AND PUBLIC-SPIRITED NATURE OF THE PIL. .................... 1

B. THAT A NON-GOVERNMENTAL ORGANIZATION CAN FILE A PIL TO UNDO A PUBLIC

WRONG......................................................................................................................................... 2

2. THAT THE ACT VIOLATES FUNDAMENTAL RIGHTS OF A CHILD. .................... 4

A.VIOLATION OF ARTICLE 14 OF THE CONSTITUTION. .............................................................. 4

I. Test of Intelligible Differentia. .............................................................................................. 5

II. ..No reasonable nexus between differentia and the rational relation to the object sought to
be achieved by the Legislation. ................................................................................................ 9

B. VIOLATION OF ARTICLE 15 (3) OF THE CONSTITUTION. ...................................................... 10

C.VIOLATION OF ARTICLE 20(1) AND ARTICLE 21. ................................................................. 11

3. THAT THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL

CONVENTIONS WITH RESPECT TO JUVENILE DELINQUENCY. ............................... 12

A. THAT THE AGE BAR FOR BEING TRIED AS AN ADULT SHOULD NOT BE BELOW EIGHTEEN AS
ESTABLISHED BY INTERNATIONAL CONVENTIONS. .................................................................. 12

B. THAT A JUVENILE OFFENDER SHOULD NOT BE SUBJECT TO RETRIBUTIVE OR PUNITIVE

CORRECTIVE METHODS. ............................................................................................................ 13

4. EVIDENTIARY VALUE OF THE STATEMENTS MADE TO THE POLICE DURING

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INVESTIGATION. ...................................................................................................................... 15

5. THAT SAMAR IS NOT GUILTY OF MURDER. ............................................................. 17

A. THAT CIRCUMSTANTIAL EVIDENCE IS WEAK AND INCOMPLETE TO PROVE THE GUILT OF

THE ACCUSED. ......................................................................................................................... 18

B. THAT THE LAST SEEN THEORY CREATES REASONABLE DOUBT ON THE GUILT OF THE
ACCUSED. ................................................................................................................................. 20

PRAYER........................................................................................................................................XIV

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-LIST OF ABBREVIATIONS-

Abbreviation Full Form

¶ Paragraph

§ Section

Admn. Administration

A.I.R. All India Reporter

Art. Article

A.P. Andhra Pradesh

Bom. Bombay

Cal. Calcutta

Co. Company

Corpn. Corporation

CriLJ Criminal Rules for Courts of Limited

Jurisdiction

CONST. Constitution

D.B. Division Bench

Del. Delhi

D.L.T. Delhi Law Times

D.R.F. Delhi Reported Judgements

ed. Edition

Gau. Guwahati

Hon’ble Honourable

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H.P. Himachal Pradesh

I.L.R. Indian Law Report

I.P.C. Indian Penal Code

JJB Juvenile Justice Board

Kar. Karnataka

Ker. Kerala

Ltd. Limited

M.P. Madhya Pradesh

N.C.T. National Capital Territory

Nag. Nagpur

Ors. Others

Pg. Page

S.C. Supreme Court

S.C.C. Supreme Court Cases

Supp. Supplementary

T.N. Tamil Nadu

U.N. United Nations

U.N.C.R.C. United Nations Convention

U.N.T.S. United Nations Treaty Services

U.O.I. Union of India

U.P. Uttar Pradesh

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v. Versus

Vol. Volume

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-INDEX OF AUTHORITIES-

-CASES-

Sr. No. Case Page No.

1. Ashwani @ Sonu v. The State (NCT of Delhi), 2013 (l37) D.R.J. 10. 20

2 Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325. 12

3. Baliram Tikaram Marathe v. Emperor, A.I.R. 1945 Nag 1. 17

4. Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161. 12

5. Bangalore Water Supply Sewerage Board v. Kantha Chandra, A.I.R. 3

1989 Kar 1.

6. Bhagat Ram v. State of Punjab, A.I.R. 1954 S.C. 621. 20

7. Bodh Raj v. State of Jammu and Kashmir, A.I.R. 2002 S.C. 316. 19

8. C. Chenga Reddy v. State of A.P., A.I.R. 1996 S.C. 3390. 19

9. C.I. Emden v. State of U.P., A.I.R. 1960 S.C. 548. 6

10. Commissioner of Police, New Delhi v. Narender Singh, A.I.R. 2006 16

SC 1800.

11. Dharam Deo Yadav v. State of U.P., (2014) 5 S.C.C. 509. 18

12. Deepak Chand Sibal v. Punjab University, A.I.R. 1989 S.C. 903. 6

13. Eradu v. State of Hyderabad, A.I.R. 1956 S.C. 316. 20

14. G.P. Nayyar v. State (Delhi Admn.), A.I.R. 1979 S.C. 602. 11

15. Giasuddin v. State of Assam, 1977 CriLJ 1512, 1516 (Gau). 15

16. Hazari Lal v. State (Delhi Admn.), 1980 2 S.C.C. 390. 15

17. Hanumant Govind Nargundkar v. State of Madhya Pradesh, A.I.R. 19

1952 S.C. 343.

18. Hukam Singh v. State of Rajasthan, A.I.R. 1977 S.C. 1063. 19

19. Independent Thought v. Union of India, (2017) 10 S.C.C. 800. 10

20. Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511. 5

21. Khatri v. State of Bihar, (1981) 2 S.C.C. 493. 17

22. Kumari Chitra Ghosh v. Union of India, A.I.R. 1970 S.C. 35. 6

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23. Leelabai Gajanan Pansare v. Oriental Insurance Co. Ltd., (2008) 9 6

S.C.C. 720.

24. Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 S.C.C. 552. 6

25. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597. 6,12

26. Mewa Ram Kanojla v. All India Institute of Medical Sciences, (1989) 5
2 S.C.C. 235.

27. M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212. 8

28. National Legal Services Authority v. Union of India, A.I.R. 2014 12

S.C. 1863.

29. Padala Veera Reddy v. State of Andhra Pradesh and Others, A.I.R. 20
1990 S.C. 79.
People’s Union for Democratic Rights v. Union of India, A.I.R.
30. 2
1982 S.C. 1473.
31. Prem Singh v. State (NCT Of Delhi), A.I.R. 2009 S.C. 3179. 19

32. Rafikul Alam & Others v. The State of West Bengal, (2008) 62 A.I.C. 21
827 (Cal).

33. Ram Niwas v. State, 2013 S.C.C. OnLine Del 3889. 21

34. Ramana Dayaram Shetty v. International Airport Authority of India, 8

A.I.R. 1979 S.C. 1628.

35. R.D. Upadhyay v. State of A.P., (2019) 17 S.C.C. 561. 10

36. Salil Bali v. Union of India, (2013) 7 S.C.C. 705. 14

37. Sanatan Naskar v. State of West Bengal, A.I.R. 2010 S.C. 3570. 19

38. Satto v. State of U.P., (1979) 2 S.C.C. 628. 11

39. Sewaki v. State of H.P., 1981 CriLJ 919. 15

40. Shamsher Singh v. State of Haryana, (2002) 7 S.C.C. 536. 7

41. Shayara Bano v. Union of India, (2017) 9 S.C.C. 1. 8

42. S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149. 3

43. S. Seshachalam v. Bar Council of T.N., (2014) 16 S.C.C. 72. 5

44. Suresh Chandra Sharma v. Chairman, A.I.R. 2005 S.C. 2021. 12

45. State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318. 6

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46. State of Gujarat v. Ratansingh, (2014) 4 S.C.C. 16. 20

47. State of Punjab v. Balkaran Singh, (2006) 12 S.C.C. 709. 5

48. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 S.C.C. 402. 1

49. State of U.P. v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840. 19

50. State of U.P. v. Ravindra Prakash Mittal, A.I.R. 1992 S.C. 2045. 18

51. State of U.P. v Satish, (2005) 3 S.C.C. 114. 20

52. State of U.P. v. Sukhbasi, A.I.R. 1985 S.C. 1224. 20

53. State v. N. Dev Dass Singha, I.L.R. (2013) 6 Del 4361. 20

54. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 S.C.C. 481. 5

55. Union of India v. Chaffeurs (Class-III) Association, (2007) 143 5

D.L.T. 377 (D.B.).

56. U.P Power Corpn. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 S.C.C. 6
139.

57. Vinoy Kumar v. State of U.P., (2001) 4 S.C.C. 734. 3

58. Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 S.C.C. 15

647.

-BOOKS-

Sr. No. Name of the Book

1. 2 -4, 8,10 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (1st ed.
2014).

2. H.M. SEERVAI, CONSTITUTION LAW OF INDIA (4th ed. 2008).

3. H.W.R.WADE & C.F.FORSYTH, ADMINITRATIVE LAW 293 – 294 (10th ed. 2009).

4. I.P MASSEY, ADMINISTRATIVE LAW (7th ed. 2008).

5. JOHN MUNCIE & GORDON HUGHES, YOUTH JUSTICE CRITICAL READING (3rd ed.
2006).

6. JUSTICE K.G. BALAKRISHNAN (CHIEF JUSTICE OF INDIA), JUVENILE JUSTICE

SYSTEM: ALONG WITH JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT,2000 AND RULES, (4th ed. 2010).

7. MALCOLM N. SHAW, INTERNATIONAL LAW (8th ed. 2017).

8. MAMTA RAO, PUBLIC INTEREST LITIGATION, LEGAL AID AND LOK ADALAT (5th ed.

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2018).

9. MAMTA RAO, CONSTITUTIONAL LAW (1st ed. 2013).

10. RICHARD LAWRENCE & MARIO HESSE, JUVENILE JUSTICE: THE ESSENTIALS
(1st ed.2009).

11. R.V. KELKAR, CRIMINAL PROCEDURE CODE (5th ed. 2008).

12. SAMUEL M. DAVIS, RIGHTS OF JUVENILE 2D: THE JUVENILE JUSTICE SYSTEM
(2nd ed. 2019).

13. STEVEN M. COX & ROBERT D. HANSER, JUVENILE JUSTICE: A GUIDE TO

THEORY, POLICY AND PRACTICE (7th ed. 2013).

-STATUTES-

Sr. No. Name of the Statute

1. Constitution of India, 1950.

2. Code of Criminal Procedure, 1973.

3. Hindu Marriage Act, 1875.

4. Indian Contracts Act, 1872.

5. Indian Evidence Act, 1872.

6. Indian Majority Act, 1875.

7. Indian Penal Code, 1860.

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

-INTERNATIONAL AUTHORITIES-

Sr. No. International Authority

1. United Nations Declaration of the Rights of the Child,1959.

2. United Nations Convention on the Rights of the Child, 1989.

3. United Nations Standard Minimum Rules for the Administration of Juvenile Justice,
1985.

4. Vienna Convention on the Law of Treaties, 1980.

5. Rome Statute of the International Criminal Court, 1998.

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-STATEMENT OF JURISDICTION-

It is humbly submitted that Petitioner 1 has filed the Writ Petition under Article 226 and 227
to the Hon’ble High Court of South Indiana which has been transferred to the Hon’ble Supreme
Court by its own under Article 139A of the Constitution of Indiana. Petitioner 2 has approached
the Hon’ble Supreme Court of Indiana invoking its jurisdiction under Section 372 of Criminal
Procedure Code, 1973.

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-SYNOPSIS OF FACTS-

-ABOUT INDIANA-

I. In 2014, there was a rapid increase in the crime rate in the country, especially among the
vulnerable youth, and the increasing levels of maturity. In order to provide for a solution to
this growing problem, the government of Indiana decided to enact a new legislation.

II. This aforesaid legislation was enacted with the dual purpose of protecting children in need of
care and to deal with children in conflict law.

III. Additionally, the country of Indiana also has a special provision in their Constitution to
protect women and children and make special laws for them.

-BACKGROUND OF THE ACCUSED-

IV. Samar, Aaryan, Subash and Ratan were friends. They grew up in tough circumstances. They
were astray teenagers who consumed alcohol and cheap drugs. They committed petty to fund
their habits and subsequently were known as the “Baccha Gang” by 2015. The Kalaghat
police station in Munga entered them as petty thieves in their roster of known offenders.

V. In early 2016, Sam, who was a twelve-year-old boy, became friends with these four boys.
Sam was facing problems at home due to his parents recent divorce and found comfort in the
company of the four boys. He used to spend the entire day with them neglecting school and
he even learnt how to smoke and drink. He was unaware of their status as petty thieves.

VI. The Baccha Gang asked him to steal money from his mother’s wallet and made him carry
strange looking packets. Soon, Sam felt uncomfortable in their company when he became
aware of the petty offences committed by the four boys and started to distance himself from
them.

-ABOUT THE INCIDENT-

VII. By August 2016, he had distanced himself from the Baccha Gang and rarely saw them. Samar
did not approve of this distancing and he decided that they should teach Sam a lesson so that
he mended his ways.

VIII. Approximately four months later, on 05.01.2017, the Baccha Gang met Sam at Kila tea stall
at 7:00 PM. They left for the woods which were in the outskirts of Munga.

IX. The next morning, 06.01.2017, Sam’s parents filed a missing person report for Sam at the
Kalaghat police station. Sam hadn’t returned home since he left his house at 5:00pm the

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previous day. After two days, the police found Sam’s body in the woods.

X. The autopsy revealed that Sam died because of severe injury to the head caused by blunt force
trauma, his face was disfigured, and he was identified by his school ID card. A stone, which
had Sam’s tissue on it, was recovered from the site. The brutal murder created media outrage.
however, the matter cooled down due to the lack of evidence.

XI. On 21.06.2017, Samar was arrested for robbery. The police searched his residence and found
a few photos and a notebook belonging to Sam. They began questioning him and when they
found out that the Baccha Gang were the last to be seen with Sam, they were booked for
murder. Except for Samar, the other three were below the age of eighteen on the date of the
murder.

-ADJUDICATION BY THE JJB AND THE LOWER COURTS-

XII. They were presented in front of the Juvenile Justice Board ((hereinafter referred to as “JJB”)
in accordance with the Juvenile Justice (Care and Protection of Children) Act (hereinafter
referred to as “Act”). The Board after a preliminary inquiry stated that they were capable of
being tried as adults and the matter was shifted to the Sessions Court. They were held guilty
and sentenced to prison for 8 years.

XIII. Samar was tried as an adult and was sentenced to life imprisonment by the Session’s Court.
Samar filed an appeal to High Court which upheld the decision of the Sessions Court.
Aggrieved by the same he filed an appeal to the Supreme Court.

-PRESENT PIL-

XIV. People for the Education and Protection of Children filed a Public Interest Litigation
(hereinafter referred to as “PIL”) that alleged that the Act, primarily Section 15 and the
committal proceedings, were unconstitutional and violated Articles 14 and 15 of the
Constitution of Indiana and that the Act itself violated Article 20(1) and 21 of the
Constitution.

XV. The PIL stated that the decision of the Board to try the boys as adults was biased and the state
of mind of the three children cannot be determined three months after the incident. It also
stated that trying anyone below the age of 18 as an adult was unconstitutional. The PIL
contended that the Act was against the United Nations Declaration on the Rights of the Child.

XVI. The Supreme Court, on its own motion, transferred the writ to itself and clubbed the Writ
Petition and Samar’s appeal to be heard together.

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-STATEMENT OF ISSUES-

ISSUE I

WHETHER THE PIL FILED BY PEPC IS MAINTAINABLE IN THE HON’BLE SUPREME COURT?

ISSUE II

WHETHER THE FUNDAMENTAL RIGHTS OF THE CHILD HAVE BEEN VIOLATED BY THE
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2014?

ISSUE III

WHETHER THE ACT IS IN CONSONANCE WITH INTERNATIONAL CONVENTIONS?

ISSUE IV

WHETHER THE EVIDENCE ON WHICH THE CONVICTION IS MADE IS JUST AND SUFFICIENT?

ISSUE V

WHETHER SAMAR IS GUILTY OF MURDER OF SAM UNDER SECTION 302 OF INDIANA PENAL
CODE?

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-SUMMARY OF PLEADINGS-

1. THAT THE PRESENT PIL IS MAINTAINABLE BEFORE THE COURT OF LAW

The Petitioner humbly submits to the Hon’ble Court that the PIL filed by PEPC is maintainable in
the Court of Law. It is argued that:

[A] Firstly, that the Petition is bona fide and is entirely public spirited. The PIL has no extraneous
considerations attached to it and in no way intends to enforce any private oblique motive.

[B] Secondly, that a Non-Governmental Organization can file a PIL to undo a public wrong. PEPC,
being a third party can file a PIL, as it has public interest involved.

2. THAT THE ACT VIOLATES FUNDAMENTAL RIGHTS OF A CHILD.

The Petitioner most respectfully submits that the Act violates the Fundamental Rights of a child. It is
argued that:

[A] Firstly, that the Act violates Article 14 of the Constitution as the classification of children does
not fulfil the criterion of intelligible differentia and is arbitrary and unreasonable.

[B] Secondly, that the Act violates Article 15(3) of the Constitution as the legislation is not
affirmative and positive but a negative one.

[C] Thirdly, that the Act violates Article 20(1) and Article 21 of the Constitution as it infringes upon
the right to life and liberty of a child and inflicts more punishment than required, resulting in gross
violation of Article 20(1).

3. THAT THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL

CONVENTIONS WITH RESPECT TO JUVENILE DELINQUENCY.

The Petitioner humbly submits before the Hon’ble Court that the Act is not in consonance with
International Conventions. It is argued that:

[A] Firstly, that the age bar for being tried as an adult is above the age of eighteen as established by
International Conventions.

[B] Secondly, that a juvenile offender must not be subject to retributive or punitive corrective
methods. It has been established by International Conventions that states should use rehabilitative
methods to reinstate juvenile offenders back into the society.

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4. THAT THE EVIDENTIARY VALUE OF THE STATEMENTS MADE TO THE

POLICE DURING INVESTIGATION.

The Petitioners humbly contend that the grounds on which the conviction of the four accused was
made is both baseless and frivolous. It is argued that:

[A] Firstly, that any statement made to the police cannot be used as evidence in a court of law Section
25 of the Indian Evidence Act, 1872, and Section 162 of the Code of Criminal Procedure, 1973,
explicitly prohibit using statements to police in a court of law.

5. THAT SAMAR IS NOT GUILTY OF MURDER.

The Petitioner most humbly submits before the Hon’ble Court that Samar is not guilty of murder and
should be acquitted. It is argued that:

[A] Firstly, that circumstantial evidence is weak and incomplete to prove the guilt of the accused.

[B] Secondly, that the last seen theory creates reasonable doubt on the guilt of the accused.

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-BODY OF PLEADINGS-

1. THAT THE PRESENT PIL IS MAINTAINABLE IN THE COURT OF LAW.

It is most humbly submitted before the Hon’ble Apex Court that Public Interest Litigation can be
filed under Article 32 of the Constitution of Indiana for enforcement of Fundamental Rights in the
Supreme Court1 as well as under Article 226 which empowers the people in case of violation of
Fundamental Rights and for any other purpose to approach the High Court. The Petitioner filed the
PIL under articles 226 and 227 in the High Court of South Indiana which was later transferred by the
Supreme Court of Indiana by its own motion. Therefore, it is most humbly submitted that the present
PIL is maintainable before the Court of Law.

A. ESTABLISHING THE BONA-FIDE AND PUBLIC-SPIRITED NATURE OF THE PIL.

The Hon’ble Supreme Court, while laying down some basic factors to be considered when accepting
Public Interest Litigation, highlighted the following details:

(1) The Court of Law would admit genuine and bona fide PIL and meritoriously discourage and
restrain the PIL filed for inappropriate considerations.

(2) Each High Court should devise rules and regulations to admit genuine PIL and formulate
guidelines to discourage PIL filed with extraneous motives.

(3) The Courts should prima facie verify the credentials of the petitioner before encouraging a PIL
and be satisfied regarding the correctness of the contents of the petition before entertaining a PIL

(4) The Courts should be fully satisfied that substantial public interest is involved before entertaining
the petition.

(5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine
public harm or public injury and is aimed at public interest at large.

(6) The Court should also ensure that there is no personal gain, private motive or oblique motive
behind filing the public interest litigation.

(7) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior
motives must be discouraged by imposing exemplary costs or by adopting similar novel methods
to curb frivolous petitions and the petitions filed for extraneous considerations 2.

1 INDIA CONST. art. 32, cl. 1.

2 State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 S.C.C. 402.

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It is pertinent to note that the current PIL is filed by a Non-Governmental Organization, PEPC (People
for Education and Protection of Children), which specializes in the field of education and protection
of children and provides representation to the deprived classes of children. It is also submitted that
this organization has filed this PIL for a social issue which involves children of our society and not
for some extraneous considerations. Moreover, this PIL has been filed in public interest and not for
a private issue, thus defeating all the claims against the maintainability of this PIL.

B. THAT A NON-GOVERNMENTAL ORGANIZATION CAN FILE A PIL TO UNDO A PUBLIC WRONG.

Though the Hon’ble Supreme Court on various occasions has agreed that a third party who is not
directly an aggrieved party has no locus standi to file a writ petition, it has also mentioned cases
where exceptions can be made.

The first exception is that a person should have no locus standi to file a writ petition if he is not
personally affected by the disputed order or his Fundamental Rights have not been directly or
substantially invaded. Also, if there is an imminent danger of such rights being infringed or his
acquired interests have been violated ignoring the applicability of rules.3 The relief under Article 226
of the Constitution is based on the existence of a right in favour of the person invoking the
jurisdiction. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases
where legal wrong or legal injuries are caused to a particular person or his Fundamental Rights are
violated, and not to accommodate cases of individual wrong or injury at the instance of third party
where there is an effective legal aid organization which can take care of such cases. 4

Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a
third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened
and such person or determined class of persons is, by reason of poverty, helplessness or disability or
socially or economically disadvantaged position, unable to approach the court for relief.5

According to a 2016 report6, a large number of juveniles (42.4%) (17,543 out of 41,385 juveniles)
belonged to the poor families whose annual income was up to Rs.25,000 only that is less than sixty-
eight rupees on a daily basis. Hence, the Petitioner contends that these children are very well covered
under the poverty reasoning given in Vinoy Kumar v. State of U.P. 7as they are incapable of fighting

3
MAMTA RAO, PUBLIC INTEREST LITIGATION, LEGAL AID AND LOK ADALAT (5th ed. 2018).
4 Vinoy Kumar v. State of U.P., (2001) 4 S.C.C. 734.
5
People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473.
6
Crime in India 2016 Statistics, National Crime Records Bureau (Apr. 10, 2019),
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-
%202016%20Complete%20PDF%20291117.pdf
7
Supra note 4.

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for their own rights due to their not being from a stable economic background.

Similarly, Justice P. N. Bhagwati in a landmark decision8, articulated the concept of PIL as follows,

“Where a legal wrong or a legal injury is caused to a person or to a

determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without
authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons
by reasons of poverty, helplessness or disability or socially or
economically disadvantaged position unable to approach the court
for relief, any member of public can maintain an application for an
appropriate direction, order or writ in the High Court under Article
226 and in case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32 seeking
judicial redress for the legal wrong or legal injury caused to such
person or determinate class of persons.”

The concept of locus standi is being liberalized and the scope of the concept is being expanded day
to day.9 In the present case at hand, People for Education and Protection of Children, though being a
third party to the issue, based on the above case laws the Petitioners contend that the Public Interest
Litigation is admissible in the court of law where the fundamental rights of the children below 18
years and above 16 years of age are being violated. This classification is arbitrary, unconstitutional
and violates the rights of children in conflict with law as recognized by many progressive states of
today.

The Supreme Court has also inferred that a petition may be admitted if it could be filed under Article
226 and would finally come to the Supreme Court under Article 136 or Article 139-A, since similar
matters already stood transferred to the Supreme Court and where the Government didn’t object to
its being admitted. Therefore, the present petition at hand being taken up by the Supreme Court (under
Article 139-A), though being previously filed in the High Court under Article 226 and thus it is
maintainable in the Hon’ble Apex Court.

“This writ petition was filed by the petitioner under Article 32 of the
Constitution and therefore when it came up for admission before a

8. S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149.

9 Bangalore Water Supply Sewerage Board v. Kantha Chandra, A.I.R. 1989 Kar 1.

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Bench of this Court, the Bench asked the petitioner as to how it was
maintainable under Article 32. The Bench was inclined to throw out
the petition summarily on the ground that it did not lie under Article
32, but the Attorney-General of India appearing on behalf of the
Union of India submitted that since the writ petition raised important
questions of law, it may be entertained by the Court, because in any
event, even if this writ petition were rejected on the ground that it
was not maintainable under Article 32, a new writ petition for the
same reliefs could always be filed under Article 226 and then it could
be brought to this Court either by way of transfer under Article 139-A
or by way of an appeal under Article 136. The Bench therefore
decided to admit this writ petition and issued rule nisi.”10

Thus, the Petitioners submit that the PIL is maintainable and should be heard by The Supreme
Court of Indiana based on merits.

2. THAT THE ACT VIOLATES FUNDAMENTAL RIGHTS OF A CHILD.

The Petitioner contends that the Act passed by the government of Indiana violates fundamental rights
of a child. It takes away the basic rights of equality before law, rule of law and right to life, thereby,
violating provisions enshrined under Article 14, Article 15(3), Article 20(1), and Article 21 of
Constitution of Indiana.

A. VIOLATION OF ARTICLE 14 OF THE CONSTITUTION.

It is most humbly submitted that Article 14 of the Constitution of Indiana states:

“Equality before law: —The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.”

Article 14 forbids class legislation but it does not forbid reasonable classification. The classification,
however, must not be ‘arbitrary, artificial or evasive’ but must be based on some real and substantial
bearing, a just and reasonable relation to the object sought to be achieved by the legislation.
Classification is subject to the condition that it is based on an intelligible differentia and that the
differentia must have a rational relation to the object sought to be achieved. The constitutional

10 supra note 8.

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interpretation of legislations varies from statute to statute, fact to fact, situation to situation and
subject matter to subject matter.11

Article 14 applies where equals are treated differently without any reasonable basis. But where equals
and unequals are treated differently, Article 14 does not apply.12 Class legislation is that which makes
an improper discrimination by conferring particular privileges upon a class of persons arbitrarily
selected from a large number of persons all of whom stand in the same relation to the privilege granted
and between those on whom the privilege is conferred and the persons not so favored, no reasonable
distinction or substantial difference can be found justifying the inclusion of one and the exclusion of
the other from such privilege.13

It has been interpreted that unequal treatment may be imparted between different sets of people only
if there is a clear public purpose sought to be achieved by such unequal treatment. 14 Thus, the
principle of treating equals equally15 and unequals unequally has been established. 16

The Petitioner humbly submits that in this particular section there has been a classification between
two different classes of a juvenile. Where juvenile in itself is a class, further classification into a class
that has been done doesn’t establish any reasonable ground. Hence, there is violation of the
fundamental rights under Article 14 of the Constitution of Indiana. This classification of juveniles
lying in the age group of 16-18 under the class of juveniles (children below age of 18) is also not
satisfying the three tests of Article 14 defined by the Supreme Court and that is :-

1. Test of intelligible differentia. 17

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

consideration.18

I. Test of Intelligible Differentia.

Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of
legislation.19 It is submitted that the impugned Act seeks to create a fictional classification between

11
Union of India v. Chaffeurs (Class-III) Association, (2007) 143 D.L.T. 377 (D.B.).
12
Mewa Ram Kanojla v. All India Institute of Medical Sciences, (1989) 2 S.C.C. 235.
13
S. Seshachalam v. Bar Council of T.N., (2014) 16 S.C.C. 72.
14
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 S.C.C. 481.
15
Joginder Nath v. Union of India, A.I.R. 1975 S.C. 511.
16
State of Punjab v. Balkaran Singh, (2006) 12 S.C.C. 709.
17
Kumari Chitra Ghosh v. Union of India, A.I.R. 1970 S.C. 35.
18
Leelabai Gajanan Pansare v. Oriental Insurance Co. Ltd., (2008) 9 S.C.C. 720.
19
C.I. Emden v. State of U.P., A.I.R. 1960 S.C. 548.

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the children belonging to age group of 16-18 years on the basis of degree of crime "allegedly"
committed by them. The correct position will be that class legislation is permissible if the
classification on which it is based is rational and has a nexus with the object sought to be achieved.20
Mere classification is not enough to get over the inhibition of this Article. The classification must be
rational.21 The differentia which is the basis of classification and the object of the Act are distinct
things and what is necessary is that there must be a nexus between them.22

a. Principle of Reasonableness Has Not Been Applied.

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 men. 23 As
Lord Coke observed in Rooke’s case, act which under the facade of prudence creates arbitrariness
can only be described as colorable 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.24

It is submitted that the authorities have acted without following the procedure leading to unequal
treatment violating Article 1425, arbitrariness in an antithesis of rule of law, equity, fair play and
justice.26 The Act creates an unreasonable distinction between two juvenile offenders committing
the same offence based on mental and physical capacity to commit such offence.

b. Distinction based on Mental and Physical Capacity to commit an offence.

The Petitioner humbly submits to the Hon’ble Court that the Act, especially Section 15, creates a
different class of children who have “allegedly” committed heinous crimes and distinguish between
the two children belonging to the same class on a very ambiguous ground of mental and physical
capacity to commit an offence. Under the Act, a juvenile in conflict with law in the age group of 16-
18 years may be tried as adults in certain cases. Any person who is between the ages of 16-18 years
and has committed a heinous offence may be tried as an adult, irrespective of date of apprehension.
(Section 15 of the Act). A Board will be set up and will determine his mental/physical capacity to

20
State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318.
21
SAMUEL M. DAVIS, RIGHTS OF JUVENILE 2D: THE JUVENILE JUSTICE SYSTEM (South Asian Edition) (2019)
22
U.P Power Corpn. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 S.C.C. 139.
23
I.P MASSEY, ADMINISTRATIVE LAW(7th ed. 2008).
24
H.W.R.WADE & C.F.FORSYTH, ADMINISTRATIVE LAW 293 – 294 (10th ed. 2009).
25
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248; Deepak Chand Sibal v. Punjab University, A.I.R. 1989 S.C.
903.
26
Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 S.C.C. 552.

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commit an offence and an understanding of its consequences. The Juvenile Justice Board will then
pass an order that recommends:

1. interventions like counseling or community service;

2. staying at an observation home for a temporary or long-term period; or

3. refer the juvenile to a Children’s Court to determine whether to try him as an adult.

To illustrate the implementation of the act, let us take a case of heinous offences wherein juvenile A
and juvenile B have committed the same crime and both lie in the age group of 16-18 years. Juvenile
A may be tried as an adult subject to a preliminary inquiry of the Board, which determines the
mental/physical capacity of the juvenile and ability to understand the consequences of the offence,
etc. and declared him to be fit to understand his consequences and thus to be tried as an adult. On the
other hand, for the same offence, juvenile B will not be tried as an adult based on preliminary enquiry
as the Board determined the mental capacity of juvenile B and declared that he was unable to
understand the consequences of his action.

It is submitted that as per the scheme the Act, the Juvenile Justice Board under section 15 of the Act
will have an arbitrary power to conduct preliminary inquiry to determine whether a juvenile offender
is to be sent for rehabilitation or be tried as an adult. Thus, it is underlined that the Act requires the
JJB to arbitrarily assess culpability prior to even an establishment of guilt of the child in conflict with
law. This assessment is in essence with a condemning decision that is arrived at even before the guilt
is established. This is in complete violation of the presumption of innocence27 - a central tenet of the
juvenile justice as well as the criminal justice system. Further, accurate assessment of “Mental
Capacity” is impossible and will predictably lead to arbitrary transfers.

Here, the expression ―arbitrarily means: in an unreasonable manner, as fixed or done capriciously
or at pleasure, without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgment, depending on the will alone.28

Under the Act, any person who is between the ages of 16-18 years and has committed a serious
(between three to seven years of imprisonment) and if they have committed a heinous offence
(minimum seven years of imprisonment). Nonetheless, this distinction doesn’t fulfil the ground of
intelligible differentia29 as laid down by the Hon’ble Court and also the differentia doesn’t have a
clarity on the rational relation to the object sought to be achieved by the Act.

27
Shamsher Singh v. State of Haryana, (2002) 7 S.C.C. 536.
28
Ramana Dayaram Shetty v. International Airport Authority of India, A.I.R. 1979 S.C. 1628.
29
Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.

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In case of Juvenile C and juvenile D have committed the same offence and C is apprehended at the
age of 14, however, D is apprehended at the age of 17, so D may be tried as an adult subject to a
preliminary inquiry of the Board, which determines the mental/physical capacity of the juvenile and
ability to understand the consequences of the offence, etc. C, however, according to Section 18 of the
Act will be tried without the process of a preliminary inquiry and will be released by imposition of
petty fines, order of community service or direct the child to attend counselling sessions,
notwithstanding the fact that he has committed the same offence. This creates an arbitrary ground of
differentiation between juveniles A and B, and between juveniles C and D, based on the assessment
of the mental capacity and the age. Therefore, this doesn’t satisfy the requirements of Article 14 of
the Constitution.

Consequently, it is humbly submitted by the Petitioners that this difference in the trial process of both
juveniles is in violation with Article 14 as it doesn’t follow the basic principle underlying equality
before law and the law must operate equally on all persons under like circumstances.30 The Act
assumes that an accurate assessment of mental capacity/maturity for the purpose of transfer is
possible when this is in fact not true. In a 2005 paper on “Adolescence, Brain Development and Legal
Culpability”, it was established that, emotionally, an adolescent “is really both part child and part
adult.”31 According to available neuro-scientific data, the frontal lobe, especially the prefrontal
cortex, is among the last parts of the brain to fully mature.

The frontal lobes are responsible for impulse control, in charge of decision-making, judgment and
emotions and therefore crucial when fixing “culpability” in the case of juvenile delinquency.32
Further, we now know conclusively that teenagers tend to be impulsive and prone to mood swings
because the limbic system which processes emotions is still developing.33 The finding herein has
been affirmed in a research paper titled published by the Juvenile Justice Centre of the American Bar
Association.

Latest research shows that individualized assessments of adolescent mental capacity is not possible
and the suggestion that it can be done would mean ―exceeding the limits of science. Evaluation of
mental capacity is a complex process which cannot be done accurately by the JJB even with the help
of experienced psychologists.34 Such assessments will be fraught with errors and arbitrariness and

30
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212.
31
MELVIN LEWIS, CHILD AND ADOLESCENT PSYCHIATRY: A COMPREHENSIVE TEXTBOOK 1120 (3 ed., 2002).
32
Id. at 980.
33
Adam Ortiz, Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain Development and Legal
Culpability, American Bar Association (Apr. 9 2019, 10:20 PM),
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolesc
ence.authcheckdam.pdf.
34
JOHN MUNCIE & GORDON HUGHES, YOUTH JUSTICE CRITICAL READING (3rd ed. 2006).

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will allow inherent biases to determine which child is transferred to an adult court. When psycho-
social maturity or mental capacity cannot be measured or assessed accurately, it will be a travesty of
justice if children alleged to be in conflict with the law are transferred to an adult criminal court and
35
ultimately sent to an adult prison based on such a flawed assessment. Hence, the act creates an
artificial differentiation between children apprehended before 21 years and those apprehended after
21 years of age. There is no underlying rationale in such a categorization.

Consequently, it can be concluded that the classification of children in the age group of 16-18 and
treating them as adults is in itself arbitrary, elusive, and exists without any lawful justification. It
creates an arbitrary and unreasonable division between two juvenile offenders committing the same
offence on the basis of mental and physical capacity to commit such offence and on the basis the date
of apprehension, not fulfilling the ground of intelligible differentia.

II. No reasonable nexus between differentia and the rational relation to the object sought
to be achieved by the Legislation.

The Petitioner submitted that the authorities have acted without following the procedure to unequal
treatment violating of Article 14. The object or the purpose of the 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.36 The object of the Act is not being fulfilled as juveniles are being
treated as 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 they can be accepted into the society
again. Thus, the Petitioner most humbly pleads that if a child commits a heinous crime, then he is not
entitled to the benefit of the provisions of the Act.

As stated in an amicus brief for the American Psychological Association, the American Psychiatric
Association, and the National Association of Social Workers before the Supreme Court of the United
States in Miller v. Alabama, juveniles

“typically outgrow their antisocial behavior as the impetuousness

and recklessness of youth subside in adulthood.”

35
Richard J. Bonnie & Elizabeth S. Scott, The Teenage Brain: Adolescent Brain Research and the Law, 22(2) Current
Directions in Psychological Science, 158, 160-161 (2013).
36
JUSTICE K.G. BALAKRISHNAN (CHIEF JUSTICE OF INDIA), JUVENILE JUSTICE
SYSTEM: ALONG WITH JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND RULES, (4th ed. 2010).

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Accordingly, there is a violation of Article 14 where the two-test laid down by the Hon’ble Supreme
Court has not been satisfied.

B. VIOLATION OF ARTICLE 15 (3) OF THE CONSTITUTION.

It is further submitted that the impugned Act is in violation of Article 15(3) of the Constitution of
Indiana. Article 15(3) of the Constitution of Indiana deals with the power to the state to make special
laws for women and children. It is to be noted that the special laws are to be legislated in favour of
women and children and have to be affirmative in nature.37 It is submitted that the stated object of
the Act is for the welfare of children, however, the Act makes the legislation draconian and in
contradiction of the idea of welfare of children.38 It is submitted that the impression behind treating
a certain age group as children is to protect the most vulnerable section of the society. In case a crime
is committed by the children, the endeavor of the state should be reformative rather than punitive or
worse retributive. Such laws defeat the essence of Article 15(3). The Juvenile Justice Board, a multi-
disciplinary body meant to dispose matters in the best interest of the child, is now empowered to re-
criminalize the child.39

Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of
this field of criminal justice. Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and
the pervasive humanism which bespeaks the super parental concern of the State for its child citizens
including juvenile delinquents. The penal pharmacopoeia of Indiana, in tune with the reformatory
strategy currently prevalent in civilized criminology, has to approach the child offender not as a target
of harsh punishment but of humane nourishment. This is the central problem of sentencing policy
when juveniles are found guilty of delinquency.

A scientific approach may insist on a search for fuller material sufficient to individuate the therapy
to suit the criminal malady.40The law of juvenile justice stands on the principles of restorative justice
and any digression from 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. It is
respectfully submitted that the impugned Act seeks to punish the child in conflict with law for the

37
Independent Thought v. Union of India, (2017) 10 S.C.C. 800.
38
R.D. Upadhyay v. State of A.P., (2019) 17 S.C.C. 561.
39
Kimberly Larson & Thomas Grisso, Developing Statutes for Competence to Stand Trial in Juvenile Delinquency
Proceedings: A Guide for Lawmakers, NATIONAL JUVENILE JUSTICE NETWORK ( Apr. 9, 2019, 09:00
AM),http://www.njjn.org/uploads/digital-
library/Developing_Statutes_for_Competence_to_Stand_Trial_in_Juvenile_Delinquency_Proceedings_A_Guide_for_L
awmakers-MfC-3_1.30.12_1.pdf.
40
Satto v. State of U.P., (1979) 2 S.C.C. 628.

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failure of the society at large in providing the child with adequate care and Protection.

C. VIOLATION OF ARTICLE 20(1) AND ARTICLE 21.

It is most humbly submitted before the Hon’ble Apex Court Article 20(1) of the Constitution states
that a person cannot be subjected to a penalty greater than that which could be inflicted at the time
when the offence had been committed.41

Clause 21 of the Act, which allows the Children's Court to transfer a child in conflict with law on
attaining 21 years of age from a place of safety to jail, is also violative of not only Article 20(1) but
also of established principle of juvenile justice which prohibits co-mingling of a child offender with
hardened criminals. It is also pertinent to note that introducing children into the criminal justice
system amounts to violation of Article 21 as the procedures contained therein are not commensurate
with the requirements of children. The juvenile justice system has to hold child appropriate
procedures keeping in mind the best interest of the child and introducing them to the criminal system
is not a measure in consonance with his principle.

The Petitioner humbly contends that the implementation of the Act has rendered for the Natural
Justice enriched under Article 21 of the Constitution. Article 21 states that no person can be deprived
of their right to life or personal liberty, except according to procedure established by law. The Court
has given Article 21 an expanded interpretation. It has stated that this right to live with human dignity
enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42.42 Therefore, it encompasses
within its ambit the protection of the health and strength of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of freedom
and dignity, educational facilities, just and humane conditions of work and maternity relief.43

Courts have interpreted this to say that any law or procedure established should be fair and
reasonable.44 The Article 21 of the Constitution envisages the rights to Natural Justice as a
Fundamental Right.45 Furthermore, in order to establish violation of Article 21 the Act should be
subjected to the equality test of Article 14. Article 14 strikes at arbitrariness because it neglects, 46

41
G.P. Nayyar v. State (Delhi Admn.), A.I.R. 1979 S.C. 602.
42
H.M. SEERVAI, CONSTITUTION LAW OF INDIA (4th ed. 2008).
43
Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161.
44
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
45 10 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (1st ed. 2014).
46
Suresh Chandra Sharma v. Chairman, A.I.R. 2005 S.C. 2021.

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and permeates the entire fabric of the Rule of Law.47 The differentiation based on the date of
apprehension may fail this standard.

Thus, in view of the aforesaid argument, it is most humbly submitted before the Hon’ble Court that
the Act in dispute blatantly violates the Fundamental Rights of juveniles at large.

3. THAT THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL CONVENTIONS

WITH RESPECT TO JUVENILE DELINQUENCY.

It is submitted before the Hon’ble Apex Court that Article 51(c) of the Constitution of Indiana states
that the state should foster respect for international law and treaty obligations. Indiana’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. Article 253 is in conformity with the object declared
by Article 51(c). Treaty-making and the implementation of these treaties, agreements and
conventions is a subject of Union legislation, under Entry 14 of the Union List. The Supreme Court
in several cases has accepted international conventions are enforceable when they elucidate and
effectuate the fundamental rights under the Constitution. They have also been read as part of domestic
law, in so far as there is no inconsistency between the convention and domestic law. 48

In the instant case, Article 15(3) states that specific laws can be legislated for the benefit of children.
A system for dealing with juvenile offenders ought to be established in the state of Indiana which is
in consonance with International Conventions. The Petitioner respectfully submits before the Hon’ble
Court that the Act is not in consonance with these conventions and does not prioritize the welfare of
children.49

A. THAT THE AGE BAR FOR BEING TRIED AS AN ADULT SHOULD NOT BE BELOW EIGHTEEN AS
ESTABLISHED BY INTERNATIONAL CONVENTIONS.

The country of Indiana is a signatory to and has adopted the United Nations Declaration on the Rights
of the Child. The Declaration recognized various child rights which also included that the delinquent
child must be reclaimed. It states that the child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as well as after birth.
This was succeeded by the United Nations Convention on the Rights of the Child (hereinafter as

47
Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.
48
National Legal Services Authority v. Union of India, A.I.R. 2014 S.C. 1863.
49
supra note 34.

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“UNCRC”), a comprehensive, internationally binding agreement on the rights of children, which

was adopted by the United Nations General Assembly in 1989. The UNCRC was ratified by Indiana
in December 1992, thus binding Indiana to define a juvenile to be under the age of 18. By the virtue
of this, the Act, has to be in consonance with the principles of the Convention while dealing with
juvenile offenders. According to Article 1 of the UNCRC:

“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.”

In Indiana, a person under the age of 18 is not allowed to vote 50, is considered minor for entering
into a contract51, a girl of age less than 18 cannot give consent for sexual relationships52, a child of
age less than 18 cannot marry53 and the age of majority is attained at the age of 18 and not before.54
In contrast to these laws which are in consonance with International Conventions, the age of juveniles
being tried as adults for heinous crimes that they have “allegedly” committed under Section 15(1)
of the Act has been set at 16 and not 18.

This is a blatant violation of the UNCRC as it differentiates between children below 18 years of age.
The Juvenile Justice Board, a body meant to dispose cases in the best interest of children, was being
obligated to decide whether a child should be pushed into the adult system on the basis of a
preliminary inquiry. The Petitioner humbly contends that the legislation is draconian and against the
idea of the welfare of the children as well as against the practice of Customary International Law. It
is not in tune with the UNCRC which emphasizes on the best interest of the child to be a priority
under all circumstances.

B. THAT A JUVENILE OFFENDER SHOULD NOT BE SUBJECT TO RETRIBUTIVE OR PUNITIVE

CORRECTIVE METHODS.

According to Article 26 of the Rome Statute of the International Criminal Court:

“The Court shall have no jurisdiction over any person who was under
the age of 18 at the time of the alleged commission of a crime.”

Article 37 of UNCRC specifically states that a child below the age of eighteen years should not be

50
INDIA CONST. art. 326.
51
§11, The Indian Contract Act, Act no. 9 of 1872.
52
§375, The Indian Penal Code Act no. 45 of 1860.
53
§5, The Hindu Marriage Act, Act No. 25 of 1955.
54
§3(1), Indian Majority Act, Act No. 9 of 1875.

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punished in a cruel or harmful way and should not be held behind the bars along with adults and the
present act duly follows the same. The Petitioner humbly submits before the Hon’ble Court that it
has been established by international judicial bodies and conventions that a person below the age of
eighteen cannot be tried as an adult in the court of law.

The Government of Indiana is bound to fulfil the duties set out in various rules and guidelines adopted
by the United Nations General Assembly. The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (hereinafter referred to as “The Beijing Rules”) is one such
resolution that states the relevance of states recognizing the age of criminal responsibility in juvenile
offenders. Section 4 of the Beijing Rules stated that the age of criminal responsibility for juveniles
in legal systems that accept the age of criminal responsibility

“shall not be fixed at too low an age level, bearing in mind the facts
of emotional, mental and intellectual maturity.”

The Beijing Rules guide States to protect children’s rights and respect their needs during the
development of separate and particular system of juvenile justice. It also favors of meeting the best
interests of the child while conducting any proceedings before any authority. Section 19 of the Beijing
Rules say that depriving a child/juvenile of his liberty should be used as the last resort and that too,
for the shortest period. These rules direct the juvenile justice system to be fair and humane,
emphasizing the well-being of the child and the importance of rehabilitation has been highlighted.
The Petitioner pleads that the legal system to deal with juvenile offenders in Indiana should be in
consonance with these guidelines.

The age of eighteen has been fixed on account of the understanding of experts in child psychology
and behavioral patterns that till such an age the children in conflict with law could still be redeemed
and restored to mainstream society, instead of becoming hardened criminals in future.55

It is humbly submitted before this Hon’ble Court that the brain of the teenager is not completely
developed and he/she is incapable of fully understanding the consequences of his/her actions or
omissions. It is also submitted that in 2007, the National Institute of Mental Health (NIMH), United
States of America, used Magnetic Resonance Imaging (MRI) scans to study the brains of children
between ages 3 and 18. The study followed the actual physical changes in the adolescent brain, and
concluded that brain maturation peaks around the age of 25. 56

55
Salil Bali v. Union of India, (2013) 7 S.C.C. 705.
56
Jay N Giedd et al, Child Psychiatry Branch of the National Institute of Mental Health Longitudinal Structural
Magnetic Resonance Imaging Study of Human Brain Development, National Center for Biotechnology Information(
Apr. 2, 2019, 02:00 AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4262916/.

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The Supreme Court of Indiana held that an accepted proposition of law that the rules of customary
international law which are not contrary to the municipal law shall be deemed to have been
incorporated in the domestic law.57 It is respectfully submitted that the Act is not in consonance with
customary international law, while legislations like the age for voting is in parity with customary
international law.

Therefore, in light of the arguments, the Petitioner most respectfully submits before the Hon’ble
Court that the Act is not in consonance with customary international law as well as the domestic laws
of the country and should be repealed.

4. EVIDENTIARY VALUE OF THE STATEMENTS MADE TO THE POLICE

DURING INVESTIGATION.

The Petitioner humbly submits that the grounds on which the juveniles were booked for murder were
baseless and frivolous. Apart from a notebook and a few photos belonging to Sam, the entire
conviction was based on a statement given to police after questioning, the legality of which is
discussed below. Even the existence of such a material in Samar’s possession does not prove anything
substantial enough to convict him for murder. Hence, the only evidence left with the police is a
statement given by Samar.

“A statement recorded by police officer during investigation is

neither given on oath nor is it tested by cross examination. According
to the law of evidence such statement is not evidence of the facts
stated therein and therefore it is not considered as substantive
evidence.”58

In another case it was reiterated that-

“The correctness or otherwise of the statement contained in Ext. PW

8-A has also not been disputed. The Tribunal, therefore, was not
correct in its view that the confession made by the respondent herein
had not been proved in accordance with law. So far as the
evidentiary value of the said confession is concerned, we may notice
that Section 25 of the Evidence Act and Section 162 of the Code of
Criminal Procedure provides for an embargo as regards

57
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.
58 Sewaki v. State of H.P., 1980 S.C.C. OnLine H.P. 42.; Hazari Lal v. State (Delhi Admn.), (1980) 2 S.C.C. 390.;
Giasuddin v. State of Assam, 1977 CriLJ 1512, 1516 (Gau).

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admissibility of a confession in a criminal trial. The said provisions

have per se no application in a departmental proceeding.” 59

Section 25 of the Evidence Act and Section 162(1) of the Code of Criminal Procedure read thus:

“25. Confession to police officer not to be proved.—No confession

made to a police officer, shall be proved as against a person accused
of any offence.”

In the present case, the police without any substantive evidence, arrested all the juveniles based on a
confession which they obtained after questioning the accused. This confession is used by the police
as the only source of evidence is both against the law and against the basic judicial principles of this
country.

Section 162 in The Code of Criminal Procedure, 1973 reads as

“162. Statements to police not to be signed: Use of statements in

evidence.

(1) No statement made by any person to a police officer in the course

of an investigation under this Chapter, shall, if reduced to writing, be
signed by the person making it; nor shall any such statement or any
record thereof, whether in a police diary or otherwise, or any part of
such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence
under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by
the accused, and with the permission of the Court, by the prosecution,
to contradict such witness in the manner provided by section 145 of
the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of
such statement is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of explaining
any matter referred to in his cross- examination.”

Hence, both the Evidence Act and the Code of Criminal Procedure raises serious concerns over the

59 Commissioner of Police, New Delhi v. Narender Singh, A.I.R. 2006 SC 1800.

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admission of a statement to the police in a court of law.

As it is already known that the police officers used a hard line of questioning against Samar in the
present case, the following statement holds a significant position -

The object of the section is to protect the accused both against overzealous officers and untruthful
witnesses.60

Statements recorded by the police during investigation are often taken down in a haphazard manner
in a midst of a crowd. If the statement is not reliable for its accuracy and should not therefore be used
for corroboration, by the same logic it is equally unreliable and should not be used for contradiction.
However, as observed by the Law Commission:

“there is material difference between contradiction and

corroboration and what is good enough for contradicting a witness is
not always good enough for corroborating him. The policy of law in
permitting a witness to be contradicted by a police statement and not
permitting him to be corroborated by the same statement is basically
sound and sensible.”61

Hence, it is clear by the above arguments that any statement given to the police cannot be used as an
evidence in a Court of Law as it is unreliable and taken in midst of confusion. There are also chances
of use of force to get a statement out of the accused. The Petitioner, therefore, submits that the only
evidence after which all the children were arrested is not admissible and is against several statutes,
hence, ultra vires.

5. THAT SAMAR IS NOT GUILTY OF MURDER.

It is most humbly submitted to the Hon’ble Apex Court that in the instant case, Samar who was an
adult has been convicted for the murder of Sam and sentenced to life imprisonment under Section
302, Indiana Penal Code. Along with him, Aaryan, Subhash and Ratan, who were also found guilty
of Sam’s murder have been sentenced to eight years of imprisonment each.

The Petitioner pleads that in the given case, Samar and the three juveniles are not guilty of murder.
It is pertinent to note that no direct evidence has been found by the Police in the given case, the
accused have not confessed their crime and their conviction was merely on the basis circumstantial

60 Khatri v. State of Bihar, (1981) 2 S.C.C. 493.; Baliram Tikaram Marathe v. Emperor, A.I.R. 1945 Nag 1.
61 Forty-First Report, LAW COMMISSION OF INDIA (Apr. 3, 2019, 08:10 AM), http://lawcommissionofindia.nic.in/1-
50/Report41.pdf.

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evidence.

In the given case, the victim, Sam was a friend of the four accused boys out of which three were
below the age of eighteen, and they used to spend a lot of time together. There was a drift between
Sam and the accused group, and they intended to teach Sam a lesson so that he mended his ways.
Assuming this to be mens rea to kill Sam would be incorrect.

The intention of the accused could be interpreted to get Sam back in their group as they were
benefitting from the money that Sam stole from his mother. They used this money to sustain their
drug habit. The puerile behavior of the juveniles to decide that they will teach him a lesson clearly
shows that these boys did not have criminal propensity to kill Sam.

A. THAT CIRCUMSTANTIAL EVIDENCE IS WEAK AND INCOMPLETE TO PROVE THE GUILT OF THE
ACCUSED.

On the day of the “alleged” crime committed by the accused met Sam at Kila tea shop at 7:00 PM.
The circumstantial evidence in this case is not concrete enough to prove the guilt of the four accused
and they are to be perceived as innocent until proven guilty. Samar was booked on the basis of few
notebooks and photographs found that belonged to Sam. However, the fact that Sam and the four
boys were close friend and his belongings can be there with his friends, is a common and natural fact
has been completely neglected. Belongings have been made the sole foundation of their accusation.

For conviction based on circumstantial evidence, reiterated, chain of circumstance must be so

complete that there must be a reasonable inference regarding the guilt of the accused and no
possibility of any inference regarding innocence of accused.62 In the following case there is no
evidence that at the meeting at the tea stall there was any conflict between them which led to this
brutal murder. After this meeting, they were seen going towards the woods and they peacefully
decided to go to the woods, there was no sign of contention and violence between the boys. There is
no direct indication that the boys killed him in the woods and the whole incident doesn’t directly
establish the ‘motive to kill’.

Additionally, even after the hard line of questioning the boys vehemently denied any involvement in
Sam’s murder and asserted that they didn’t have any knowledge of his whereabouts after they left
woods, which implies that he was alive when they left the woods. However, they were charged for
his murder on the basis of the circumstantial evidence.

62
Dharam Deo Yadav v. State of U.P., (2014) 5 S.C.C. 509.

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“Nonetheless, the circumstance from which the guilt is established

should be proven:

• That each one the facts should be according to the hypothesis of the
guilt of the accused;

• That the circumstances should be conclusive in nature and tendency;

• That the circumstances ought to, to an ethical certainty, truly exclude

each hypothesis except the one projected to be evidenced.

• The evidence should prove the guilt of the culprit beyond a

reasonable doubt”.63

Sam’s body was recovered two days after the date of his missing, therefore, there was a reasonable
time gap between the meeting of boys and the discovery of body, this automatically raises a question
on the ethical certainty of the crime.

It is important to highlight that the circumstances from where conclusion of guilt is to be drawn ought
to be established.64 The circumstances involved ‘must’ or ‘should’ and not ‘may be’ established.65
However, in the instant case there is only ‘may be’ factor and no certainty can be established about
the guilt of the accused.

Henceforth, the Petitioner humbly pleads to convict a person of murder, the details should establish
complete sequence of proof so as to not leave any affordable ground for the conclusion in line
with the innocence of the accused.66 In other words, the chain of evidence must be so complete that
it doesn’t leave any reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability, the act must have been done by the
accused67 and should be proved through cogent evidence.68

In this case, there are gaps in the chain that establishes the guilt of the accused and the fact that Sam
could have been murdered by any person except boys as well becomes stronger. Therefore, the fact
that the conclusion of guilt has to be continuous and lucid69 is absent. There is a reasonable doubt
about the culpability of the boys as apart from the incomplete link of events, no tangible evidence
has been found against the boys. It is significant to note, that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one

63
State of U.P. v. Ravindra Prakash Mittal, A.I.R. 1992 S.C. 2045.
64
Hukam Singh v. State of Rajasthan, A.I.R. 1977 S.C. 1063.
65
Bodh Raj v. State of Jammu and Kashmir, A.I.R. 2002 S.C. 316.
66
Sanatan Naskar v. State of West Bengal, A.I.R. 2010 S.C. 3570.
67
Hanumant Govind Nargundkar v. State of Madhya Pradesh, A.I.R. 1952 S.C. 343.
68
Prem Singh v. State (NCT Of Delhi), A.I.R. 2009 S.C. 3179.
69
C. Chenga Reddy v. State of A.P., A.I.R. 1996 S.C. 3390.

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in favor of the accused must be accepted.70 The Petitioner pleads that in the instant case the
circumstances relied upon aren’t found to have been fully established and the cumulative effect of all
the facts so established is not consistent with the hypothesis of guilt.

B. THAT THE LAST SEEN THEORY CREATES REASONABLE DOUBT ON THE GUILT OF THE
ACCUSED.

The last seen theory comes into play where the time-gap between the point of time when the accused
and the deceased were seen last alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased was last seen with the accused when
there is a long gap and possibility of other persons coming in between exists. In the absence of any
other positive evidence to conclude that the accused and the deceased were last seen together, it
would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive
evidence that the deceased and the accused were seen together by witnesses. 71

There is no eye witness to the murder of Sam, so it can’t be concretely established that the boys have
killed Sam. Moreover, Sam’s body was found two days after the boys met. The time-lag between the
two events- the boys meeting and the body being found, creates reasonable doubt on the accusations
that the boys are charged with.

A case of circumstantial evidence is primarily dependent upon the prosecution story being
established by coherent, reliable and admissible evidence.72 Each circumstance must be proved like
any other fact which will, upon its composite reading, completely demonstrate how and by whom the
offence has been committed.73

It is an underlined principle that each and every incriminating circumstance must be clearly
established by reliable and clinching evidence74 and the circumstances so proved must form a chain
of events in collaboration to the last seen theory through which the only irresistible conclusion about
the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.75

The Hon’ble Court in mindful of caution by the settled principles of law and the decisions rendered

70
State of U.P. v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840.
71
State of U.P. v Satish, (2005) 3 S.C.C. 114.
72
Eradu v. State of Hyderabad, A.I.R. 1956 S.C. 316.
73
Ashwani @ Sonu v. The State (NCT of Delhi), 2013 (l37) D.R.J. 10.
74
State of Gujarat v Ratansingh, (2014) 4 S.C.C. 16.
75
State v. N. Dev Dass Singha, I.L.R. (2013) 6 Del 4361.

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that in a given case like this, where the prosecution rests on the circumstantial evidence, the
prosecution must place and prove all the necessary circumstances, which would constitute a complete
chain without a snap and pointing to the hypothesis that except the accused, no one had committed
the offence76, which in the present case, the prosecution has failed to prove.

Each fact must be proved individually and only thereafter the Court should consider the total
cumulative effect77 of all the proved facts, each one of which reinforces the conclusion of guilt. 78 If
the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused,
the conviction would be justified even though it may be that one or more of these facts by themselves,
are not decisive.79 Hence, in the absence of any other material evidence, the accused could not be
convicted solely on the basis of evidence of last seen together with the deceased.80

Nonetheless, it is humbly pleaded before the Hon’ble Court that this is a case that rests squarely on
circumstantial evidence and inference of guilt cannot be justified as all the incriminating facts and
circumstances are not found to be compatible with the culpability of the accused. The circumstances
from which an inference as to the guilt of the accused is drawn are not proficient enough to prove
beyond reasonable doubt and show that the acts of accused the situations are closely connected with
the principal fact sought to be inferred from those circumstances.

In the instant case the circumstances from which the conclusion of guilt is not conclusive in nature.
Moreover, all the circumstances are not complete and there are several fissures left in the chain of
evidence. Correspondingly, the circumstantial evidence found is scanty weak and incomplete,
consequently the conviction of four boys is not in consonance with the procedure established by law
and the circumstances from which the conclusion of guilt is not conclusive in nature. There are
several fissures left in the chain of evidence.

76
Padala Veera Reddy v. State of Andhra Pradesh & Ors., A.I.R. 1990 S.C. 79.
77
Bhagat Ram v. State of Punjab, A.I.R. 1954 S.C. 621.
78
State of U.P. v. Sukhbasi. A.I.R. 1985 S.C. 1224.
79
Ram Niwas v State, 2013 S.C.C. OnLine Del 3889.
80
Rafikul Alam & Ors. v. The State of West Bengal, (2008) 62 A.I.C. 827 (Cal).

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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble Supreme Court, that it may be
graciously pleased to adjudge and declare that:

1. THE PRESENT PIL IS MAINTAINABLE IN THE COURT OF LAW.

2. SECTION 15 OF THE JUVENILE JUSTICE (CARE AND PROTECTION ACT),2014 IS

UNCONSTITUTIONAL.

3. THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL CONVENTIONS.

4. SAMAR IS GUILTY OF MURDER.

And/or, pass any other order that it may deem fit in the interest of Justice, Equity and
Good Conscience.

For this act of kindness, the Respondent shall duty bound forever pray.

Place: s/d

Counsels on behalf of the Petitioner

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