23R

JUSTICE Y.K. SABHARWAL

CONSTITUTIONAL LAW MOOT COURT COMPETITION 2018

IN THE HON’BLE SUPREME COURT OF INDIA

(APPELLANT)

V.

UNION OF INDIA

(RESPONDENT)

MEMORIAL ON BEHALF OF THE RESPONDENT

 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
COMPETITION 2018
MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS

SERIAL NO. PARTICULARS PAGE NO.

1. INDEX OF AUTHORITIES 1

2. STATEMEMENT OF FACTS 2

3. STATEMENT OF JURISDICTION 4

4. ISSUES RAISED 5

5. SUMMARY OF ARGUMENTS 6

6. PLEADINGS 8

7. PRAYER 16

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INDEX OF AUTHORITIES

CASES

1. A.K. Roy v. Union of India, AIR 1982 SC 710

2. Lakhi Narayan Das v. Province of Bihar, (1950) SCJ 32 (35)
3. R.C. Cooper v. Union of India, AIR 1970 SC 564
4. S.R. Bommai v. Union of India (1994) 3 SCC 268
5. Para 4, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot
Court Competition, 2018
6. Gurudevdatta VKSSS Maryadit v. State of Maharashtra, (2001) 4 SCC 534
7. State of Punjab v. Satya Pal Dang, AIR 1969 SC 903
8. General Clauses Act, 1897
9. Krishna Kumar Sigh v. State of Bihar (2017)3 SCC 18
10.A.K. Royv. Union of India (1982) 1 SCC 14
11.T. Venkata Reddy v. State of Andhra Pradesh, 1985 AIR 724
12.Bikram Darjee v. State of W.B., AIR 2009 SC 2539
13. Ankush Maruti Shinde v. State of Maharashtra AIR 2009 SC 2609
14. State of M.P. v. Sheikh Shahid, AIR 2009 SC 2951
15. State of M.P. v. Kashiram, AIR 2009 SC 1642
16. Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty1996 SCC (1) 490
17.Harmelin v. Michigan, 501 U.S. 957 (1991); R. v. Fergusson, (2008) 1 SCR
96.
18.Panchhi and others v. State of U.P (1998) 7 SCC 171
19. Dattu Ramrao Sakhare v. State of Maharashtra, 1997 5 SCC 341
20.Para 7, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot
Court Competition, 2018.

STATUTES

1. General Clauses Act, 1897

2. The Government of India Act, 1935
3. The Constitution of India, 1950

BOOKS:

1. Henry Campbell, Black’s Law Dictionary, 236 Bryan A Garner, 7th Edition,
1999
2. The Code of Criminal Procedure, 1973 by Ratanlal and Dhirajlal, 22nd edition
2017
3. Introduction to the constitution of India by Durga Das Basu, 22nd edition 2015.
4. The Indian Evidence Act, 1872 (1st edition Manohar and Chitaley)

STATEMENT OF FACTS

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1. Sandesh De is a 35 year old upcoming, struggling painter who lives and works in

Bengaluru. He lives with his aged mother, and to make ends meet, takes drawing

and painting classes for school children of his neighbourhood in the evenings. Ms.

X, a precocious and talented 13 year old girl, was one of Mr. De’s students.

2. Mr. De used to take classes in the living room of his house, while he painted in his

studio on the first floor of his house. After classes in the evenings, he would

sometimes take Ms. X to his studio and show her his works in progress. On the

occasions that Ms. X used to be in Mr. De’s studio, the two carried out wide-

ranging discussions about art and its role in society. The conversation always ended

with Mr. De giving Ms. X a hug and a peck on her cheek. Mr. De made sure that it

was always done in private, in the studio, and not in his living room, where his

mother usually sat.

3. On 1st May 2018, Ms. X returned from her painting class in the evening and told her

parents that she was no longer interested in going for painting classes. Over the next

few days, Ms. X’s mother realised that her daughter was showing some of the

recognised signs that a survivor, of child sexual abuse, would, in the immediate

aftermath of an attack. Ms. X’s parents then decided to take her to a counsellor. Ms.

X gradually opened up to her counsellor and her parents during a session and

informed them that on the last day that she had gone to class, Mr. De had taken her

to his studio as usual. While he was hugging her goodbye in his usual manner, he

slipped his fingers into her underwear and penetrated her vagina. Ms. X stated that

she was very confused about what was happening, managed to unclasp herself from

Mr. De’s embrace, and left for home. Ms. X’s parents confirmed that even in the

days after Ms. X’s final class with him, Mr. De did not make attempts to get in

touch with her or her parents.

4. Meanwhile, on 21st April 2018, when Parliament was not in session, his Excellency

the President of India had promulgated an ordinance amending relevant provisions

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of the Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and the

POCSO Act to inter alia increase the quantum of punishment for crimes involving

sexual violence against minor women.

5. On 14th May 2018, Ms. X filed a complaint against Mr. De, and an FIR was

promptly registered. Trial was completed within fourteen days from the time of

committal, and Mr De was held guilty of commission of offences under s. 376(3) of

the IPC read with ss. 5 & 6 of the POCSO Act. The Presiding Judge of the Special

Court, giving due consideration to applicable law, including the Ordinance and after

hearing prosecution and defense council on the question of sentence, imposed the

mandatory minimum sentence of twenty years imprisonment, in addition to a fine of

Rs. 50,000 to be paid to Ms. X.

6. Aggrieved by this judgement, Mr. De preferred an Appeal before the High Court of

Karnataka. The Appeal was dismissed in the first week of July. Aggrieved by the

decision of the High Court, Mr. De filed an Appeal in the Supreme Court,

challenging the sentence imposed on him and accepting the finding of conviction.

Mr. De additionally filed a writ petition under Article 32 of the Constitution of India

challenging the vires of the Ordinance to the extent it was applicable to his case.

7. Mr.De’s Appeal as well as his Writ Petition were listed for hearing before a three

judge bench in the Supreme Court on the 2 nd of August 2018. The Bench was

satisfied that the issues raised in the Writ Petition were substantial questions of law

as to the interpretation of the Constitution and accordingly referred the same to a 5-

judge Bench. Notice was also issued in the Appeal and the same was directed to be

listed along with the Writ Petition.

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STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of India, which, as per

Article 136(1) of the Constitution of India has jurisdiction, to entertain and hear

appeals by granting special leave, in its discretion, against any kind of judgement or

order, made by any Court or Tribunal, in any proceedings, in the territory of India

where justice and equity so demands. The leave has been granted by this Hon’ble

Court in the said matter.

The Hon’ble Supreme Court of India also has jurisdiction to entertain Writ Petitions

under Article 32 of the Constitution of India. The Appellant has additionally filed

such a writ petition before this Hon’ble Court, challenging the vires of the Criminal

Law (Amendment) Ordinance, 2018.

The Respondent submits to the Jurisdiction of this Hon’ble Court in response to both

the Appeal as well as the Writ Petition filed by the Appellant.

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ISSUES RAISED

I.

WHETHER THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS

ARBITRARY IN NATURE AND IMPOSES AN UNREASONABLE SENTENCE

ON THE APPELLANT?

II.

WHETHER THE STATEMENT OF THE VICTIM, WHICH LED TO THE

CONVICTION OF THE APPELLANT, IS CREDIBLE?

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SUMMARY OF ARGUMENTS

[1]. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS NOT

ARBITRARY IN NATURE AND DOESN’T IMPOSE AN UNREASONABLE

SENTENCE ON THE APPELLANT.

It is most humbly stated that the Criminal Law (Amendment) Ordinance, 2018 is not

arbitrary in nature and doesn’t impose an unreasonable sentence because firstly, the

legislative power given to the President by Article 123, though not a parallel law

making power, still has the same force and effect as a law, till it ceases to operate or

till its disapproved by the House. The general position of law, as established by this

honourable court, with respect to ordinances, is that unless the ordinance infringes

any constitutional safeguards, it cannot be examined nor can the motive for such

promulgation be questioned. The said ordinance doesn’t infringe any such safeguards

and was promulgated to serve a bona-fide purpose, of curbing, increasing amount of

child sexual abuse, at a time when the Parliament was not in session. Secondly, the

finding of conviction and sentencing of the appellant was done following due process

with respect to the provisions of the ordinance, which was the law in force and

thereby its effects would endure for all trials that were completed and status quo ante

can’t be revived in such cases. Thirdly, the crime that is being dealt with here is the

rape of a minor child, the nature being very heinous and serious. The vision of the

state is always to promote the welfare of the people and prevent crimes; therefore, the

severity of the sentence for such a crime must be framed considering its effect on

social order. The rationale behind this touchstone is deterrence, which is the most

important object of such a harsh punishment. The above mentioned events evidently

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prove that the Executive promulgated the said ordinance, to tackle an extraordinary

situation and not to fulfil any political objective as stated by the appellant.

[2]. THE STATEMENT OF THE VICTIM WHICH LED TO THE

CONVICTION OF THE APPELLANT IS COMPLETELY CREDIBLE.

We humbly state that the statement of the victim is undoubtedly credible because

firstly, it is a well settled law that the conviction on the sole evidence of a child

witness is permissible if such witness is found competent to testify. Here, the said

victim is a precocious and intelligent child who is very much competent to understand

and narrate an incident just as it happened. Therefore, the statement can be completely

relied upon. Secondly, there is absolutely no irregularity in the statement of the victim

as contended by the appellant, as the victim clearly states that Mr. De slipped his

fingers into her underwear and penetrated her vagina. The words used are ‘slipped his

fingers’. This act can be done easily even if there is some outer dressing or pants and

therefore the victim didn’t mention about them specifically. Additionally, though in

her statement she says she was very confused about what was happening then,

however, the narration of the said incident happened in presence of a counsellor and

her parents in a comfortable environment, where she could have easily recalled what

happened with her, thus leaving absolutely no room for any doubts or speculation,

thereby proving the statement to be rock solid credible.

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PLEADINGS

[1]. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS NOT

ARBITRARY IN NATURE AND DOESN’T IMPOSE AN UNREASONABLE

SENTENCE ON THE APPELLANT.

1. The Criminal Law (Amendment) Ordinance is not arbitrary in nature and doesn’t

impose an unreasonable sentence on the appellant because firstly, the said ordinance

doesn’t infringe any constitutional safeguards and was promulgated to serve a bona-

fide purpose, of curbing, increasing amount of child sexual abuse, at a time when the

Parliament was not in session, thereby necessitating immediate action from the

President as per Article 123 of our Constitution [1.1]. Secondly, Mr. De was

convicted and sentenced following due process with respect to the provisions of the

ordinance, which has the force and effect of law and thereby its effects would endure

for all trials that were completed and status quo ante can’t be revived in such cases

[1.2]. Thirdly, the gruesome offence of rape, especially of a minor child, being very

heinous and serious in nature must be dealt with an extremely deterrent form of

punishment and thereby the prescribed mandatory punishment of 20 years indubitably

conforms to the fundamental principle of criminal jurisprudence that the punishment

must be proportionate to the offence it seeks to curb [1.3].

[1.1] The Ordinance was promulgated to tackle an extraordinary situation and

not to serve any political objective.

2. Article 123(1) of the Constitution of India, empowers the President to promulgate

an Ordinance, when he is satisfied that circumstances exist which render it necessary

for him to take immediate action. The ‘satisfaction’ referred to in this clause is the

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satisfaction of the President acting on the advice of his Council of Ministers. 1 The

President is not bound to explain the reasons for promulgating an ordinance or even to

prove them in a Court of Law.2 The reason is that the satisfaction under Article 123(1)

is not the personal satisfaction of the President, but, by reason of Article 74, a

satisfaction arrived at the advice of the Council of Ministers.3

4
3. In S R Bommai v. Union of India, the impact of the 44th Amendment was

discussed by the Nine Judge Constitution Bench and the standard of judicial review

was formulated by stating that the truth or correctness of the material cannot be

questioned by the Court nor will it go into the adequacy of the material. It will also

not substitute its opinion for that of the President. Even if some of the material on

which the action is taken is found to be irrelevant, the Court would still not interfere

so long as there is some relevant material sustaining the action. The ground of mala

fides takes in inter alia situations where the proclamation is found to be clear case of

abuse of power, or what is sometimes called fraud on power – cases where this power

is invoked for achieving oblique ends.”

4. In the instant case, between January and April 2018, several state legislatures had

passed Bills introducing harsher punishments for sexual violence against minor girls

by amending relevant provisions of the Indian Penal Code. During the Budget Session

of Parliament, at least twelve such state amendments were pending before the

1 A.K. Roy v. Union of India, AIR 1982 SC 710

2
Lakhi Narayan Das v. Province of Bihar, (1950) SCJ 32 (35)
3
R.C. Cooper v. Union of India, AIR 1970 SC 564

4 S.R. Bommai v. Union of India (1994) 3 SCC 268

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President, for his assent.5 However, on 6th April 2018, the Budget Session of the

Parliament was adjourned sine die. The house not being in session, and taking

cognizance of the legitimate demand raised by several state legislatures for a tougher

law against child sexual abuse, the Executive decided to promulgate the impugned

Ordinance. Unless the ordinance infringes any constitutional safeguards, it cannot be

examined6 nor can the motive for such promulgation be in question. 7 The onus is on

the Appellant to make out a prima facie case that ‘necessary circumstances’ did not

exist, but in the case on hand the appellant has failed to prove it.

5. The vision of the state is always to promote the welfare of the people and prevent

crimes and it is very evidently clear from the above facts that extenuating

circumstances did exist which prompted the Executive to promulgate the said

ordinance distinctly ruling out even a slightest mala fide intention on part of the

Executive as stated by the appellant.

[1.2] Status quo ante can’t be revived.

6. Section 6(c) of the General Clauses Act 8 states that the repeal of an enactment

doesn’t affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against any enactment so repealed.” If an ordinance ceases to operate, any

action taken under the ordinance would be valid during the currency of the ordinance

5Para 4, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018

6 Gurudevdatta VKSSS Maryadit v. State of Maharashtra, (2001) 4 SCC 534

7 State of Punjab v. Satya Pal Dang, AIR 1969 SC 903

8 General Clauses Act, 1897

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since it has the force and effect of a law. The force and effect of law cannot depend on

uncertainty, unless the law itself provides. 9 In A. K. Roy v. Union of India, it was

held that the Constitution makes no distinction in principle between a law made by

the legislature and an ordinance issued by the President. Both equally, are products of

the exercise of legislative power, and therefore, both are equally subject to the

limitations which the Constitution has placed upon that power.10

7. When the Constitution says that Ordinance-making power is a legislative power

and an ordinance shall have the same force as an Act, an ordinance should be clothed

with all the attributes of the legislature carrying with it all its incidents, immunities

and limitations under the Constitution and it cannot be treated as an executive action

or administrative decision. An ordinance is effective till it ceases to operate on the

happening of the events mentioned in clause (2) of Article 213 or 123. Even if it

ceased to operate, the effect of the ordinance is irreversible except by express

litigation.11

8. Mr. De was arrested, tried, convicted and sentenced following due process,

according to the law in force and constitute a completed transaction which cannot be

undone just because the ordinance doesn’t exist anymore. Even if the test of public

interest and constitutional necessity is applied, the crime Mr. De committed is rape of

a minor child, which in no way is pardonable. Thus, it is submitted that the status quo

ante must not be revived by this Hon’ble Court and the appeal must be dismissed.

9 Krishna Kumar Sigh v. State of Bihar (2017)3 SCC 18

10 A.K. Royv. Union of India (1982) 1 SCC 14

11 T. Venkata Reddy v. State of Andhra Pradesh, 1985 AIR 724

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[1.3] Punishment prescribed by the Ordinance is proportional to the offence it

seeks to curb.

9. This Hon’ble Court has observed that undue sympathy in imposing inadequate

sentence does more harm to the justice system. Punishment should be such as it

matches social expectations for justice in dealing with criminals. 12 Social impact of
13
crime is relevant to deciding sentence. Undue leniency may undermine public

confidence.14 The punishment to be awarded for a crime must not be irrelevant. It

should confirm to and be consistent with the atrocity and brutality with which the

crime has been perpetrated and enormity of the crime creating public abhorrence. It

should respond to the society’s cry for justice in dealing with criminals.15

10. In the present case, it is submitted that due to the gravity of the offence committed

by Mr. De there should not be any leniency in sentencing or the punishment. Sexual

violence apart from being a dehumanizing act is an unlawful intrusion on the right of

privacy and sanctity of a female. It is a serious blow to her supreme honor and offends

her self-esteem and dignity it degrades and humiliates the victim and where the victim

is a helpless innocent child or a minor, it leaves behind a traumatic experience. A

rapist not only causes physical injuries but more indelibly leaves a scar on the most

cherished possession of a woman i.e. her dignity, honor, reputation and not the least

her chastity. Rape is not only a crime against the person of a woman, it is a crime

12 BikramDarjee v. State of W.B., AIR 2009 SC 2539

13
AnkushMarutiShinde v. State of Maharashtra AIR 2009 SC 2609
14
State of M.P. v. Sheikh Shahid, AIR 2009 SC 2951
15
State of M.P. v. Kashiram, AIR 2009 SC 1642

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against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa

Gautam v. Miss Subhra Chakraborty16 the entire psychology of a woman and pushes

her into deep emotional crisis.

11. Additionally, a variety of justifications, such as incapacitation, deterrence,

retribution, or rehabilitation may play a role in a State’s sentencing scheme.The

principles of sentencing do not require strict proportionality between crime and

sentencing. Rather, only extreme sentences that are ‘grossly disproportionate’ are

forbidden.17 Here, the said ordinance introduced a harsher punishment for child rape,

which is a very serious and cruel crime and thereby the prescribed mandatory

minimum sentence of 20 years is absolutely conforms to the fundamental principle of

criminal jurisprudence that the punishment must be proportionate to the offence it

seeks to curb.

[2]. THE STATEMENT OF THE VICTIM WHICH LED TO THE

CONVICTION OF THE APPELLANT IS COMPLETELY CREDIBLE.

12. The statement of the victim is undoubtedly credible because firstlythe said victim

is a precocious and intelligent child who is very much competent to understand and

narrate an incident just as it happened [2.1]. Secondly, there is absolutely no

irregularity in the statement of the victim or any confusion in recalling the incident as

the narration of the said incident happened in presence of a counsellor and her parents

in a comfortable environment, where she could have easily recalled what happened

with her, thus leaving absolutely no room for any doubts or speculation [2.2].

16
ShriBodhisattwaGautam v. Miss SubhraChakraborty1996 SCC (1) 490

17 Harmelin v. Michigan, 501 U.S. 957 (1991); R. v. Fergusson, (2008) 1 SCR 96.

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[2.1] Absolute reliance could be placed on the statement of the child victim as she

is precocious, intelligent and very much competent to testify.

13. It is not the law that if a witness is a child his evidence shall be rejected, even if it

is found reliable. The law is that evidence of a child witness must be evaluated more

carefully and with greater circumspection because a child is susceptible to be swayed

by what others tell them and thus a child is an easy prey to tutoring. 18 Here, the child

is not merely a witness but a victim of the crime herself. The facts clearly state that

she is a very precocious and intelligent 13 year old girl. Additionally, the facts also

state she spoke at length, with Mr. De about nude paintings as an important means of

propagating the virtues of sexual autonomy, which clearly concludes she was mature

enough to understand what sexuality is about. The Court has to take into

consideration the mental capacity of the child to recollect what had happened or is the

child in a position to say about the sexual act committed on her, when the child is not

aware of such acts. Here, because she is well versed with the said topic, the chances

of tutoring or not being able to recollect or narrate properly doesn’t exist.

14. In the case of Dattu Ramrao Sakhare v. State of Maharashtra,19 the Court held that

“A child witness if found competent to depose to the facts and reliable one, such

evidence could be the basis of conviction.” Here, the facts point out to several

situations where Mr. De has clearly acted in a mala fide manner by trying to groom

her by talking about sexual autonomy, showing nude pictures under the pretext of it

being famous paintings and then the act of her kissing and hugging her when no one’s

18 Panchhi and others v. State of U.P (1998) 7 SCC 171

19
Dattu Ramrao Sakhare v. State of Maharashtra, 1997 5 SCC 341

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around, etc. gives rise to a logical presumption that Mr. De was waiting for the right

time to make a move and such an act was in a way expected.

15. Therefore, in light of the above facts it is evidently clear that Ms. X is very much

competent to give the statement and there is absolutely no chance nor need of any

tutoring in this particular case.

[2.2] There is no irregularity in her statement nor any confusion recollecting the

incident.

16. The victim says that on the last day of her painting class with Mr. De, he took her

to his studio as usual. While he was hugging her goodbye in his usual manner, he

slipped his fingers into her underwear and penetrated her vagina. She stated that she

was very confused about what was happening, managed to unclasp herself from Mr.

De’s embrace, and left for home. Mr. De apparently tried to apologise to Ms. X, but

seeing that she was distressed, did not stop her from leaving.20

17. A bare perusal of this will certainly make one thing clear that the confusion part

that the victim mentioned is with respect to her bewilderment when the sudden totally

unexpected and grossly unwarranted move by Mr. De might have shook her belief in

him and might have got shocked as to what to do next or fearing what might happen

next, which is the most natural expectation from any child of like 13 year old when

subjected to such an embarrassing and scary situation.

20
Para 7, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court

Competition, 2018

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18. With regard to the clarity and truthness part, Ms. X clearly stated the part where

Mr. De tried to apologise to her and didn’t in any manner try to apply force or restrain

her. If the statement was a deliberate lie or a confused statement then no victim would

try to say such a part in their statement and rather would just simply accuse the person

of the said act of penetration. Moreover, with regard to the outer dressing or pants

issue raised by the appellant, the words Ms. X used are ‘slipped his fingers inside’

which means irrespective of whatever she was wearing, Mr. De managed to slip his

fingers through it into the underwear finally reaching her vagina and penetrating her.

19. This shows clearly that there is absolutely no irregularity in her statement and it is

indubitably credible.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,

it is humbly prayed that this Hon’ble Court may be pleased to adjudge and declare

that:

1) The said Ordinance is not arbitrary in nature, and the punishment imposed by

it would survive.

2) That the statement of the victim is credible and the conviction must stand.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in

the interest of justice, equity and good conscience.

All of which is humbly prayed,

23R,

Counsels for the Respondent.

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