NMCC-201_P

2nd NATIONAL MOOT COURT COMPETETION, 2019

BAHRA UNIVERSITY

IN THE HON’BLE SUPREME COURT

OF
INDIANA

Criminal Appeal No. …/2019

IN THE MATTER OF:

Samar…………………………………………………………….......……Appellant
v.
State of Indiana…………………………..………………………………..Respondent

With

Writ Petition No. (C) …/2019

People for Education and Protection of

Children………………………………………………………….…...…..Petitioner
v.
State of Indian………………………………………………..……….….Respondent

MEMORIAL ON BEHALF OF THE APPELLANT/PETITIONER

INDEX
 LIST OF ABBREVIATIONS

S. No. ABBREVIATIONS FULL FORM

1. & And

2. AIR All India Reporter

3. Art Article

4. CRC Convention
on the Rights
of the Child
5. FIR First
Information
Report

6. FSL Forensic
Science
Laboratory

7. HC High Court

8. Hon’ble Honorable

9. Ors Others

10. ¶ Paragraph

11. r/w Read with

12. SC Supreme Court

13. SCC Supreme Court Cases

14. SCJ Supreme Court Journal

15. SCR Supreme Court Reporter

16. Sec, § Section

17. UNCRC United

Nations
Convention
 on the Rights
of the Child

18. u/s Under Section

19. v. Versus
INDEX OF AUTHORITIES

STATUTES
 CASES

CONVENTIONS

BOOKS
 STATEMENT OF JURISDICTION

The Appellant/Petitioner has invoked the jurisdiction of the Honourable Supreme Court of
Indiana under Articles 136 and 139A of the Constitution of Indiana.

The Relevant Excerpt of Article 136 reads as follows:

“136. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India.”

And relevant portion of Article 139A reads as follows:

139A. “Transfer of certain cases.—(1) Where cases involving the same or substantially the
same questions of law are pending before the Supreme Court and one or more High Courts or
before two or more High Courts and the Supreme Court is satisfied on its own motion or an
application made by the Attorney-General for India or by a party to any such case that such
questions are substantial questions of general importance, the Supreme Court may withdraw
the case or cases pending before the High Court or the High Courts and dispose of all the
cases itself.
 SYNOPSIS OF FACTS
I
----------------------------BACKDROP OF THE CASE--------------------------
1. Samar, Aaryan, Subhash and Ratan are residents of the Munga district of South
Indiana whose laws are in pari materia with the laws of India. Samar and Subhash
have never known their fathers. Aaryan comes from an abusive household and
Ratan is an orphan. They became friends in their early teens by regularly meeting
in the playground.
2. In 2015, by the time they were 14, they gained notoriety as the “Bachcha Gang”
who were engaged in several petty offences such as shop lifting, pick-pocketing,
etc. They were caught a few times but never arrested owing to their age, but had
their names mentioned in a ‘roster of petty thieves’ maintained by the Kalaghat
police station in Munga.
3. In early 2016, Sam, a 12 year old boy befriended and joined the Bachcha Gang.
He stopped going to school and was involved in the wrongful activities of the
Bachcha Gang. Sometimes he used to steal money from his mother’s purse to fund
the four boys. They also made him carry strange looking paper bags in his school
bag.
4. By June 2016, realising the full extent of the gang’s criminal activities he began
distancing himself from them and began focusing on school activities. By August
2016, Sam rarely saw the Bachcha Gang. Samar told before his friends to teach
him a lesson.
II
---------------------------THE GRUESOME MURDER OF SAM-------------------------------
5. On the night of 5th Jan. 2017, at around 7 PM, the Bachcha Gang met Sam at Kila
tea stall and later headed towards the woods on the outskirts of Munga.
6. On the morning of 6th, a missing report was lodged by Sam’s parents at the
Kalaghat police station.
7. A manhunt followed and after two days the body of Sam was recovered from the
woods surrounding Munga.
8. Marks of bruises discovered on the body were significatory of struggles of
defence by the deceased at the time of his murder. The entire face was badly
disfigured.
9. The body was identified by clothes and a school ID in the pant pocket. A stone
with blood and tissue matching Sam was recovered by the Forensic experts at the
crime scene.
III
-------------------------------THE AUTOPSY REPORT----------------------------------
10. The autopsy report revealed the cause of the death to be a severe injury to the
head, primarily the result of blunt force trauma caused by repeated beating with a
hard blunt object on the skull as well as internal haemorrhage and profuse blood
loss.
 IV
-------------------------------SUBSEQUENT EVENTS-----------------------------------
11. The brutal murder instigated public outrage demanding instantaneous arrest of
culprits and the same was immediately picked up by the media creating mass
hysteria. Unfortunately, owing to the paucity of sufficient evidences, no suspects
were arrested and the matter cooled down.
12. On June 21st, 2017, Samar was arrested on charge of robbery.
13. During a search that followed, a notebook and few photographs belonging to Sam
were recovered from his residence.
14. He, being a prime suspect in the case, was subjected to a hard line of questioning
by the police on the grounds of the abovementioned recovery.
15. All the four (Samar, Aryan, Subhash and Ratan) were arrested and booked for
murder.
V
----------------DECISION OF THE JUVENILE JUSTICE BOARD-----------------
16. The documents revealed that on the date of murder Samar was18 years 12 days,
Aaryan was 17 years 320 days, Subhash was 17 years 5 days and Ratan was 16
years 200 days old. But their medical reports showed that they were all over the
age of 20 on the date of arrest.
17. In accordance with the JJ Act, 2014, Aaryan, Subhash and Ratan were sent before
the JJ Board which, with the help of eminent psychologists and psychiatrists
determined that the boys were capable of being tried as adults and accordingly
committed the matter to the Sessions Court at Munga since no special Children’s
Court had been established.
VI
-------VERDICT GIVEN BY THE SESSIONS COURT AND THE HIGH COURT-------
18. Based on the evidences before it, the Court of Session having found all the three
boys (Aaryan, Subhash and Ratan) guilty of murder of Sam, sentenced them to 8
years of rigorous imprisonment each.
19. Samar, on the other hand was tried as an adult by the Session Court since he was
above the age of 18 on the date of murder and was sentenced to life imprisonment.
20. He subsequently filed an appeal in HC which upheld the decision of the Sessions
Court.
VII
-------------APPEAL AND PETITION FILED IN THE SUPREME COURT---------------
21. Samar filed an appeal in the SC.
22. Immediately thereafter, a PIL was also filed by an NGO named PEPC before the
HC of South Indiana challenging the JJ Act and the subjective and biased
committal proceedings of the boys.
23. The SC , suo moto transferred the writ to itself and clubbed the same with the
appeal pled by Samar.
 STATEMENT OF ISSUES

ISSUE I
WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN
LAW, THE APPEAL FILED BY SAMAR BEFORE THIS HON’BLE COURT IS
MAINTAINABLE?

ISSUE II
WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2014 IS CONSTITUTIONAL?

ISSUE III
WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN
LAW, THE ORDER OF THE JUVENILE JUSTICE BOARD TO TRY SUBHASH,
AARYAN AND RATAN AS ADULTS IS JUSTIFIED?

ISSUE IV
WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN
LAW, THE HIGH COURT WAS RIGHT IN UPHOLDING THE DECISION OF THE
SESSIONS COURT?
 SUMMARY OF ARGUMENTS
CONTENTION 1. THAT THE APPEAL FILED BY SAMAR BEFORE THE HON’BLE SC IS
MAINTAINABLE.
It is humbly submitted that the appeal filed by Samar before the Hon’ble SC is maintainable
as the matter involves a substantial question of law of general public importance and
grave injustice has been done by acquitting Samar u/s 302 of IPC. The arbitrary judgment of
the HC of South Indiana upholding the decision of the Sessions Court of Munga has resulted
in miscarriage of justice as there were lacunae of evidences in support of the findings of the
facts, thus shocking the conscience of the Court.

CONTENTION 2. THAT THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2014 IS UNCONSITUTIONAL.
The Act in consideration is by and large a legislation with arbitrary provisions which does not
serve its objectives as welfare legislation. It is contrary to the reasonableness test laid down
under Art. 21 of Constitution of Indiana and has led to the treatment of equals unequally and
is violative of Art.14 per se. Instead of providing reformation to the delinquent juveniles it
has led to a retributive treatment to their activities.
Indiana is a signatory to various convention which protects the right of the children. The UN
Declaration on the Rights of Children was adopted by agreeing to the articles laid down in the
Declaration but the JJA 2014, did not consequently bring in to adhere to the standards set by
the declaration. It is observed that the JJA 2014 is in violation of UN Declaration on the
Rights of Children and other international treaties as it differentiates between children below
18 years of age and the other juveniles.
 BODY OF ARGUMENTS

1. THAT THE APPEAL FILED BY SAMAR IS MAINTAINABLE.

1.1 The matter involves Question of Law of General Public Importance.
It is humbly submitted before the Hon’ble Court that the jurisdiction conferred under
Art. 136 on the SC is corrective one and not a restrictive one1 and can be invoked
when a question of law of general public importance arises,2 by filing Special Leave
Petition.
It is well-settled that illegality must not be allowed to be perpetrated and failure by the
SC to interfere with the same would amount to allowing the illegality to be
perpetuated,3 therefore a duty is enjoined upon the SC to exercise its power by setting
right the illegality in the judgments.
Art. 136 provides residuary power to the SC to do justice where the court is satisfied
that injustice has been done.4
In the instant matter, the accused has been charged for murder for which there is no
direct evidence in support and that the provisions of the new Act5 are severely
affecting the provisions of the Constitution of Indiana which is a matter of general
public importance and therefore, calls for intervention by the SC.

1.2 The matter involves Substantial Question of Law and Gross Injustice has been
done.
 It is humbly submitted by the petitioner before this Hon’ble Court that, the matter
involves substantial question of law as it concerns the violation of the provisions
of the Constitution of Indiana by the newly enacted JJ Act, 2014 and gross
injustice has been meted out by the decision of the HC of South Indiana which
arbitrarily upheld the decision of the Sessions Court.

1.2.1 Substantial Question of Law is Involved

 It is humbly submitted that where findings are entered without considering
relevant materials and without following proper legal procedure, interference of
SC is called for.6 In the instant case, the Hon’ble HC has erred in deciding a
very substantial question of law, related to the wrongful life imprisonment of
an innocent. Whether a matter involves substantial question of law, depends on
whether it is of general public importance, which directly or substantially

1
Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359.
2
Pritam Singh v. State, AIR 1950 SC 169.
3
Pawan Kumar v. State of Haryana, (2003)11 SCC 241; See also, H.M. Seervai, Constitutional Law of India,
Vol. 1, 832 (4th ed., Universal Law Publishing, New Delhi, 2010); See also, Halsbury’s Laws of India, Vol. 35,
564 (2nd ed., Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007).
4
C.C.E v. Standard Motor Products, AIR 1989 SC 1298; See also, H.M. Seervai, Constitutional Law of India,
Vol. 2, 845 (4th ed., Universal Law Publishing, New Delhi, 2010).
5
Juvenile Justice ( Care and Protection of Children) Act, 2014.
6
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.
 affects the rights of the parties, or it has already been decided by the highest
Court.7 It will, therefore, depend on the facts and circumstance of each case
whether a substantial question of law is involved in the case.8
 It is submitted that, the present case involves a matter of general public
importance as it directly and substantially convicts an innocent for a heinous
crime.

[1.2.2] Gross Miscarriage in Justice has been done

 The judgment of the Sessions Court is flawed in the eyes of law because the
findings are unsupportable from evidence on record, resulting in miscarriage of
justice. Since the same has been upheld by the HC, the SC can interfere.9

[1.2.3] Finding of Facts May Give Rise to Substantial Question of Law

 The SC is not precluded from going into the question of facts under Art. 136, if
it considers it necessary to do so.10 Art. 136 uses the words ‘in any cause or
matter’. This gives widest power to this court to deal with any cause or
matter.11 It is plain that when the SC reaches the conclusion that a person has
been dealt with arbitrarily or that a court or tribunal has not given a fair deal to
a litigant, then no technical hurdles of any kind like the finality of finding of
facts, or otherwise can stand in the way of the exercise of this power.12

7
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.
8
Sumati Dayal v. CIT, (1995) 214 ITR 801.
9
Nizam v. State of Rajasthan, (2016)4 SCC 357 : AIR 2016 SC 1160
10
Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC 123, See also, Achyut Adhicary v. West
Bengal, AIR 1963 SC 1039.
11
Pritam Singh v. The State, AIR 1950 SC 169.
12
Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520; See also, Om Prakash Sood v. Union of
India, Civil Appeal No. 9169 of 1996
 2. THAT THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2014 IS UNCONSITUTIONAL.
In the instant case, it is also pertinent to mention that the constitutional validity of JJ Act
which is against the provision of Art 1413 is also challenged so that every object and the
target of the legislation for the welfare of the country be achieved. The minor who is not
culpable of any act or omission but is within the ambit of the age group of 16-18 yrs. is
treated as an adult and its right of Equal protection and Equality before the law is violated.
No person shall be deprived of such right. The class distinction so made and the classification
done is merely on the basis of the “heinousness” which is determined on the basis of the scale
of punishment. It is also contended that this ambit is arbitrary and inconsistent with Art.14 of
the Constitution.14 It also refrains the juvenile to use its right as provided.
The Juvenile Justice (Care and Protection) Act, 2014 (hereinafter, JJ Act) provides for the
creation of a Transfer System, wherein a child between the ages of 16-18, upon being
accused of a crime of heinous nature15, would undergo a preliminary assessment16 by a
Juvenile Justice Board17 to decide whether he or she possessed the mental and physical
capacity to commit the crime and if the result is found to be affirmative, the child is sent for
trial as an adult,18 and consequently, if found guilty, be sent to a jail.19 Appellant submits that
the Transfer System under the Juvenile Justice (Care and Protection) Act, 201420 violates the
following: [1] Doctrine of reasonable classification under Article 14 is violated; [2] The test
of procedural fairness under Article 21 is violated; [3] It violates various international
instruments which the Union of Indiana is a party to.
[2.1] Doctrine of Reasonable Classification under Article 14 is Violated
The foundation of the Transfer System under the JJ Act, 2015 is that children in conflict with
the law can be discriminated against based on their age and the nature of the offence. In doing
so, these system groups together children alleged or found to be in conflict with the law and
adult accused persons or adult offenders as one class. Whereas, research21 in developmental
psychology explains the difference in cognitive capacity and psychosocial maturity between
children including adolescents and adults that influence their decision-making in antisocial
situations.22
In order to be reasonable, the classification should be based on intelligible differentia and the
differentia must have a rational or reasonable nexus23 with the object sought to be achieved

13
The Constitution Of Indian Act 1949, Article 14.
14
Id.
15
Juvenile Justice Act, No. 2 of 2016, §2(33), (2015).
16
Juvenile Justice Act, No. 2 of 2016, § 15, (2015).
17
Juvenile Justice Act, No. 2 of 2016, § 4 (2015).
18
Juvenile Justice Act, No. 2 of 2016, § 18(3) (2015).
19
Juvenile Justice Act, No. 2 of 2016, § 15, (2015).
20
Hereinafter, “JJ Act, 2014”.
21
Ruben C. Gur, American Bar Association, DECLARATION OF RUBEN C. GUR, Ph.D. 15 (2016).
22
Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents
May Be Less Culpable Than Adults,”Behav. Sci. Law 18: 741 at742-743 (2000)
23
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873
by the legislation.24 The object25 of the JJ Act gives primary importance to the best interest of
the child, and aims at the rehabilitation of a child, rather than retribution.
Equality is a basic feature of the constitution and any treatment of equals unequally or
unequals as equals will be violation of the basic structure of the constitution.26 Article 14
thus, means that ‘equals should be treated alike’; it does not mean that ‘unequals ought to be
treated equally.’ ... where persons or groups of persons are not situated equally, to treat them
as equals would itself be violative of Article 14 as this would itself result in inequality. As all
the persons are not equal by nature, or circumstances, the varying needs of different classes
or sections of people require differential treatment. This leads to classification among
different groups of persons and differentiation between such classes.27 In Ashutosh Gupta v.
State of Rajasthan,28 it was held that test of permissible classification must fulfil two
conditions:
1) Classification found must be on an intelligible differentia which distinguishes
persons or things that are grouped together from others who are left out of the group.
2) The differential so made have rational relations to the object sought to be achieved.
In Om Kumar v. Union of India29 it was held that on statute being discriminatory
proportionality principle is applied and on arbitrariness, Wednesbury principle is
applied.
In case30, Wednesbury Principle was laid down and held that the court can interfere when one
of the following principles is satisfied:
a. the decision is contrary to law; or
b. relevant factors have not been considered; or
c. Irrelevant factors have been considered; or d. The decision is one which no
reasonable authority or person would have taken.
Evidently, this does not satisfy the test for reasonable classification, as it holds children to the
same standards of culpability as adults despite their developmental immaturity and their
amenability to rehabilitative interventions.
[2.2] The Test of Procedural Fairness under Article 21 is Violated
The arbitrary and irrational procedure provided under the Act contravenes the fundamental
rights guaranteed under Article 21 of the Constitution. The Supreme Court of India has
categorically held that procedural fairness is an integral part of due process.31 The Court in
Maneka Gandhi v. Union of India32 held that:

24
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
25
STATEMENT OF OBJECTS, Juvenile Justice (Care and Protection) Act, 2015
26
M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260 at pp 264
27
Ashutosh Gupta v. State of Rajasthan (2002) 4 SCC 34
28
(2002) 4 SCC 34
29
Om Kumar v. Union of India, AIR 2002 SC 3689
30
Associated Provincial Picture House Ltd. v. Wednesburry Corporation, (1948) 1 K.B. 223.
31
Maneka Gandhi v. Union of India, 1978 AIR SC 597
32
Id.
“The mere prescription of some kind of procedure cannot even meet the mandate of Article
21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful,
oppressive or arbitrary.”
Transfer system requires JJBs to conduct a preliminary inquiry of the mental capacity of the
child,33 for which they can take the assistance of experienced psychologists, psycho-social
workers and other experts. It assumes that an accurate assessment of mental
capacity/maturity for the purpose of transfer is possible. It is humbly contended that this is in
fact not true. Neither does it lay a uniform procedure to ascertain mental maturity, nor can a
uniform procedure accurately assess it, since it is reiterated by experts that it is not possible to
distinguish incipient psychopaths from youths whose crimes reflect transient immaturity.34
Evaluation of mental capacity is a complex process which cannot be done accurately by the
JJB even with the help of experienced psychologists. Such assessments will be fraught with
errors and arbitrariness and will allow inherent biases to determine which child is transferred
to an adult court, leading to a travesty of justice.
The preliminary assessment stands in complete contradiction to the Supreme Court mandate
by requiring the JJB to arbitrarily inquire into the culpability prior to even an establishment
of guilt. Neither a preliminary inquiry nor a final inquiry can be the basis for depriving a
person of his or her rights under the juvenile justice system as both will fail the tests of
procedural fairness under the Indianan Constitution.
[2.3] No Direct Nexus sought to be Achieved
If a person who is similarly situated in relation to the object of the impugned legislation can
be made subject to the procedure which is substantially different from the ordinary procedure
at the option of the Executive, the law which authorises special procedure must be held to be
discriminatory.35 The expression arbitrary means, in an unreasonable manner, as fixed or
done capriciously or at pleasure without adequate determining principle, not found on the
nature of things, depending on the will alone.36
It is submitted that the Act does not provide blanket immunity to juvenile offenders, as
contended. What the Act contemplates is a different procedure to deal with such offenders. If
found guilty, they are subjected to a different scheme of punishment. While supporting the
contentions advanced, the appellant has further submitted that the United Nations Convention
on the Rights of the Child, 1990 53 read with the concluding Resolution of the Committee on
Child Rights (constituted under the UN Convention) of the year 200037 qua India and the
General Resolution of the year 2007 clearly contemplate the MACR as 18 years and
mandates member States to act accordingly the strength of the elaborate academic and
research work placed on record has tried to persuade the Court to take the view.
The Act is an expression of legislative wisdom to treat all persons below 18 as juveniles and
to have an alternate system of dealing with such juveniles who come into conflict with the

33
Juvenile Justice Act, No. 2 of 2016, § 16(1), (2015).
34
Elizabeth S. Scott and Laurence Steinberg, “Adolescent Development and the Regulation of Youth Crime”,
The Future of Children, Vol. 18 No. 2, FALL 2008, p.15 at 24-25.
35
Suraj Mall v. I.T. Investigation Commission, AIR 1954 SC 545.
36
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
37
The United Nations Convention on the Rights of the Child, 1990, Article 40 (1).
law. It is submitted that the constitutional validity of the Act has been upheld by a Coordinate
Bench in Salil Bali.38 It is also submitted that psychological/mental, intellectual and
emotional maturity of a person below 18 years cannot be objectively determined on an
individual or case to case basis and the fixation of the Minimum Age of Criminal
Responsibility (MACR) under the Act is a policy decision taken to give effect to the
country’s international commitments. At the very outset, two initial hurdles to the present
adjudication, the first is that prior to the amendment the constitutional validity of the Act has
been upheld in Salil Bali and it is not necessary to revisit the said decision even if it is by way
of a reference to a larger Bench. To have a look at the international conventions, holding the
field, to which Indiana has been a signatory.
Determination of the age of the juvenile is required to be made on the basis of documentary
evidence (such as birth certificate, matriculation certificate, or Medical Board examination).
Also, that the Act is a beneficial piece of legislation and must, therefore, receive its due
interpretation as a legislation belonging to the said category has been laid down by a
Constitution Bench of this Court in Pratap Singh vs. State of Jharkhand and Anr.39In a
constitutional bench judgement DTC v. Mazdoor Congress, it was held Courts must read the
legislation literally in the first instance. If such an intendment can be reasonably implied
without undertaking what, unmistakably, would be a legislative exercise, the Act may be read
down to save it from unconstitutionality. The above is a fairly well established and well
accepted principle of interpretation which having been reiterated by this Court time and again
would obviate the necessity of any recall of the huge number of precedents available.40
From the above in-depth discussion and arguments put forth, it is a crystal that there has been
discrimination on equal treatment and had no reasonable reaction to the object sought to be
achieved by law.41 A person setting up grievance of denial of equal treatment by law must
establish that between persons similarly circumstanced, some were treated to their prejudice
and the different treatment had no reasonable relation to the object sought to be achieved by
law.42 The classification or differentia must have a rational or reasonable nexus43 with the
object44 to be achieved.45 Classification or categorization need not be the outcome of a
mathematical or arithmetical precision in the similarities46 of the persons included in a class
and there may be differences amongst the members included within a particular class.47 So
long as the broad features of the categorization are identifiable and distinguishable and the
categorization made is reasonably connected with the object targeted, Article 1448 will not

38
Salil Bali v. Union of India, (2013) 7 SCC 705.
39
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551.
40
DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600.
41
U.P. Steels Ltd v. State of U.P, 2003 AIHC 1413(All).
42
State of U.P. Kamala Palace, AIR 2000 SC 633.
43
Kunjulal Yadav v. Parasram Sharma, AIR 2000 MP 235.
44
Surat Surveyors Planners Association v. State of Gujrat, AIR 2002 Guj. 344.
45
Laxmi Khandsari v. State of U.P. AIR 1981 SC 873.
46
Murthy Match Works v. CCE, (1974) 4 SCC 428.
47
Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116.
48
The Constitution Of Indian Act 1949, Article 14
forbid such a course of action.49 Samar who has been the victim of such arbitrary procedure
and law laid down by the legislature shall be reviewed by the Hon’ble Court.
From the very inception, the 2000 amendment made in the act was for the welfare of the child
which has been violated now and the object of rehabilitation has deviated.

[2.4] Trial of Juveniles as Adults is in Contravention of International Instruments to

which Indiana is a Signatory.
It is humbly submitted that the Transfer System under the JJ Act violates various
international instruments which the Union of Indiana is a party to. They include the United
Nations Declaration of the Rights of the Child and the United Nations Convention on the
Rights of the Child; The United Nations Standard Minimum Rules For The Administration
Of Juvenile Justice (Beijing Rules).
The Supreme Court quoted Halsbury's Laws of England (Vol.36 page 414) where it is stated
that there is a presumption that Parliament does not assert or assume jurisdiction which goes
beyond the limits established by the common consent of nations and statutes are to be
interpreted provided that their language permits, so as not to be inconsistent with the comity
of nations or with the established principles of International Law. The comity of nations
requires that Rules of International Law may be accommodated in the Municipal Law even
without express legislative sanction provided they do not run into conflict with Acts of
Parliament.50 India is now a signatory to this Covenant and Art. 51(c) of the Constitution51
obligates the States to “foster respect for international law and treaty obligations in the
dealings of organized peoples with one another”. Even so, until the municipal law is changed
to accommodate the Government what binds the court is the former, not the latter.52
The UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing
Rules”) were adopted by the General Assembly of the United Nations in 1985. Rule 2.2(a)
defines a juvenile as a child or young person who, under the respective legal system, may be
dealt with for an offence differently than an adult. Rule 4.1 set out below mandates Member
States to refrain from fixing a minimum age of criminal responsibility that is too low, bearing
in mind the facts of emotional, mental and intellectual maturity.
In those legal systems recognizing the concept of the age of criminal responsibility for
juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind
the facts of emotional, mental and intellectual maturity. The Beijing Rules take into account
penological objectives in addition to rehabilitation of the offender.

49
Transport & Dock Workers Union v. Mumbai Port Trust and Anr.(2011) 2 SCC 575.
50
Gramophone Company of India Limited v. Birendra Bahadur Pandey & Ors. , AIR 1984 SC 667.
51
The Constitution of Indian Act 1949, Article 51 (c).
52
Jolly Verghese v. Bank of Cochin, AIR 1980 SC 470.
 [2.4.1] It Violates the United Nations Convention on the Rights of the Child.
The Petitioner submits that the United Nations Convention on the Rights of Child, 198953lays
down certain rights and standards which are to be observed by states in the best interest of
children.
Article 2 requires that, “States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination …”
Through General Comment No. 10 on Children’s rights in juvenile justice, the Committee on
the Rights of the Child has emphasized that all State Parties must adhere to Article 40 of the
Convention which stipulates rights of children accused of, or recognized as having infringed
penal law. It stated that:54
“…every person under the age of 18 years at the time of the alleged commission of an
offence must be treated in accordance with the rules of juvenile justice. The
Committee, therefore, recommends that those States parties which limit the
applicability of their juvenile justice rules to children under the age of 16 (or lower)
years, or which allow by way of exception that 16 or 17-year-old children are treated
as adult criminals, change their laws with a view to achieving a non-discriminatory
full application of their juvenile justice rules to all persons under the age of 18
years.”
The present system in Indiana treats a juvenile and an adult at par by prescribing them the
same standards of culpability, thus violating Article 2 of the UN CRC.
Article 40 also requires that, “Every child alleged as or accused of having infringed the penal
law has at least the following guarantees… To be presumed innocent until proven guilty
according to law;”
The JJ Act, 201455 requires the JJB to assess whether a child who has committed a heinous
offence has the physical and mental capability to commit the offence, along with the
‘circumstances in which he has committed the offence’ which implies an assumption that the
child has already committed the alleged offence. This inquiry is in essence a sentencing
decision that is arrived at even before the guilt is established. This is in complete violation of
the presumption of innocence - a central tenet of the juvenile justice as well as the criminal
jurisprudence.
The Convention on the Rights of the Child, 1990 (“CRC”), in Article 1, adopts a
chronological definition of a “child”, viz. less than 18 years old, unless majority under the
national legislation is attained earlier:
“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, the majority is attained earlier.”
Article 37(a) of the CRC prohibits the imposition of capital punishment and life
imprisonment without possibility of release on offenders below 18 years of age. The CRC

53
Hereinafter, “UN CRC”.
54
General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras 37-38
55
Juvenile Justice Act, No. 2 of 2016
further obliges State Parties to establish a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law.
Rule 1.2 of the Havana Rules provide that a juvenile should be deprived of his/her liberty
only as a measure of the last resort limited to exceptional cases and for the minimum
necessary period. Even then, detention should be in such a manner and in conditions that
respect the human rights of juveniles (Rule 12).
Rule 11(a) of the Havana Rules, 1990 defines a juvenile as every person under the age of 18,
and allows national laws to determine a minimum age below which such person will not be
detained.
Under Article 43 of the CRC56 , constitution of a Committee for the purpose of examining the
progress made by the State parties on the rights of the child is contemplated. The first
meeting of the Committee under Article 44 was to be within 2 years of the coming into force
of the convention so far as a particular State party, in respect of whom review of the progress
is made, is concerned. Thereafter, the Committee is required to meet every 5 years.

[2.5] The Convention on the Rights of the Child, 1990 (CRC) Report on India
In January, 2000, the Committee considered the initial report of India submitted on
19.03.1997 and adopted certain “concluding observations” the relevant part of which are
extracted hereinbelow:
The Committee is concerned over the administration of juvenile justice in India and
its incompatibility with articles 37, 40 and 3957 of the Convention and other relevant
international standards. The Committee is also concerned at the very young age of
criminal responsibility – 7 years – and the possibility of trying boys between 16 and
18 years of age as adults. Noting that the death penalty is de facto not applied to
persons under 18, the Committee is very concerned that de jure, this possibility exists.
The Committee is further concerned at the overcrowded and unsanitary conditions of
detention of children, including detention with adults; lack of application and
enforcement of existing juvenile justice legislation; lack of training for professionals,
including the judiciary, lawyers and law enforcement officers, in relation to the
Convention, other existing international standards and the 1986 Juvenile Justice Act;
and the lack of measures and enforcement thereof to prosecute officials who violate
these provisions.
The Committee recommends that the State party review its laws in the administration
of juvenile justice to ensure that they are in accordance with the Convention,
especially Articles 37, 40 and 39, and other relevant international standards such as
the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the

56
The Convention on the Rights of the Child, 1990 (“CRC”), Article 43.
57
Id. Article 37, 40, and 39.
 Protection of Juveniles Deprived of their Liberty and the Vienna Guidelines for
Action on Children in the Criminal Justice System.
The Committee recommends that the State party abolish by law the imposition of the
death penalty on persons under 18. The Committee also recommends that the State
party consider raising the age of criminal responsibility and ensure that persons under
18 years are not tried as adults. In accordance with the principle of non-discrimination
contained in article 2 of the Convention, the Committee recommends article 29(h) of
the 1986 Juvenile Justice Act be amended to ensure that boys under 18 years are
covered by the definition of juvenile, as girls already are. The Committee
recommends that the 1986 Juvenile Justice Act be fully enforced and that the
judiciary and lawyers be trained and made aware of it. The Committee further
recommends that measures be taken to reduce overcrowding, to release those who
cannot be given a speedy trial and to improve prison facilities as quickly as possible.
The Committee recommends that the State party ensure regular, frequent and
independent monitoring of institutions for juvenile offenders.” It is pursuant to the
aforesaid concluding observations of the Committee made in the year 2000 that the JJ
Act was amended in the latter part of that year by having a uniform age of 18 for both
male and female juveniles.
It needs to be clarified that the concluding observations of the Committee under
Article 45 of the UN Convention (CRC)58 are qua a particular State party whereas
general comments of the Committee under the same Article are authoritative
interpretations addressed to all State parties. The above distinction between
“concluding observations” and “general comments” is highlighted to draw attention to
the fact that in the meeting of the Committee held in Geneva in the year 2007 certain
general observations with regard to MCAR of 18 years were made which would be
applicable to State parties other than India as the law had already been amended in
our country pursuant to the concluding observations made by the Committee in the
year 2000 specifically qua India. The views of the Committee in respect of other
member States may be usefully taken note at this stage by extracting the
recommendations in the nature of general comments in paras 36, 37 and 38 of the
Report:
 The Committee also wishes to draw the attention of States parties to the upper
age limit for the application of the rules of juvenile justice. These special rules -
in terms both of special procedural rules and of rules for diversion and special
measures - should apply, starting at the MACR set in the country, for all
children who, at the time of their alleged commission of an offence (or act
punishable under the criminal law), have not yet reached the age of 18 years.

 The Committee wishes to remind States parties that they have recognized the
right of every child alleged as, accused of, or recognized as having infringed
the penal law to be treated in accordance with the provisions of article 40 of
CRC.59 This means that every person under the age of 18 years at the time of

58
The Convention on the Rights of the Child, 1990 (“CRC”), Article 45.
59
Id. Article 40.
 the alleged commission of an offence must be treated in accordance with the
rules of juvenile justice.

 The Committee, therefore, recommends that those States parties which limit the
applicability of their juvenile justice rules to children under the age of 16 (or
lower) years, or which allow by way of exception that 16 or 17-year-old
children are treated as adult criminals, change their laws with a view to
achieving a non- discriminatory full application of their juvenile justice rules to
all persons under the age of 18 years. The Committee notes with appreciation
that some States parties allow for the application of the rules and regulations of
juvenile justice to persons aged 18 and older, usually till the age of 21, either as
a general rule or by way of exception.

In a landmark case, in his minority judgement held that, while dealing with the provision of
the Constitution, the court should adopt such a construction as would, if possible not bring it
in conflict with the provisions of international law.60
In Madhav Rao Jivaji Rao Scindia v. Union of India, eleven judges bench, it was held It may
be readily admitted that, according to a well-established principle of international law, the
Beamtenabkommen, being an international agreement, cannot, as such, create direct rights
and obligations for private individuals. But it cannot be disputed that the very object of an
international agreement, according to the intention of the contracting parties, maybe the
adoption by the parties of some definite rules, creating individual rights and obligations and
enforceable by the national Courts.61
In constitutional bench case62 it was observed India is a signatory to various international
treaties and covenants and being a party to WTO and GATT, it is obligated to fulfil its
transnational obligations. The constitution bench of seven judges has held, “The statute
should be so interpreted as not to be inconsistent with the comity of nations or with the
established rules of international law.”63
In Keshavnanda Bharti v. State of Kerela, 13 judges bench gave their view “It is only in cases
of doubt or ambiguity that the courts would interpret a statute as not to make it inconsistent
with the comity of nations or established rules of international law, but if the language of the
statute is clear, it must be followed notwithstanding the conflict between municipal law and
international law which results.”64 Furthermore, In India, the provisions of the Geneva
Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1960).
The principle of primacy of Community law over the national was accepted in six countries
of the European Communities. Three of them, namely, Netherlands, Luxembourg and
Belgium specifically amended their written Constitutions to secure, as far as possible, the
principle of the primacy of the Community law. In National Legal Services Authority v Union

60
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
61
Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85.
62
State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201.
63
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
64
Keshavanad Bharti v. State of Kerela, 1973 SC 1463.
of India65 (“NALSA”), a Bench of two judges, while dealing with the rights of transgenders,
adverted to international conventions acceded to by India including the UDHR and ICCPR.
International law has to be construed as a part of domestic law in the absence of legislation to
the contrary and, perhaps more significantly, the meaning of constitutional guarantees must
be illuminated by the content of international conventions to which India is a party. The
human rights embodied in the aforesaid covenants stand substantially protected by the
Constitution.66
In nine judges bench, it was held that “We have cared about neighbours and have strived to
be a welfare State. We have constructed a great many things and achieved many more. We
have advanced on scientific fronts and reached distances in the universe which were
unfathomable five decades back. We have earned a respectable name in the international
scenario. We have produced great artists, many leaders and great men. We were not scared so
easily by any adverse situation. The first step in solving any problem troubling the present is
recognizing that there is one India but India as a Union of States. States being independent
entities under the Constitution require a resource to perform their duties under the
Constitution. Furthermore, it was also held notwithstanding anything contained in the earlier
provisions of The non obstante provision of Article 25367 operates in relation to Articles 245
to 252.68 Hence, the legislative powers of the States including in the area of taxation may be
eclipsed where Parliament has enacted a law to effectuate India's international obligations in
pursuance of Article 253.”69
Here lies no doubt what the object and target of the legislature should. In the present case all
of which is violated and thus the legal and fundamental right of Aaryan, Subhash and Ratan
has been violated. Therefore, there is a violation of International obligations of which the
country is a signatory.

65
National Legal Services Authority v. Union of India (“NALSA”), Writ Petition (Civil) No.400 Of 2012.
66
K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No 494 Of 2012.
67
The Constitution of India, Article 253.
68
The Constitution of India, Art, 245 to 252.
69
Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC1.