TEAM CODE- A7

IN THE HONBLE SUPREME COURT OF INDIA

PUBLIC INTEREST LITIGATION

IN THE MATTER BETWEEN

SATYA AND SHASHI

(PETITIONER)
VERSUS

UNION OF
INDIA
(RESPONDENT)

To,
THE HONBLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF SUPREME COURT OF INDIA

~ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT~

~MEMORANDUM ON BEHALF OF THE PETITIONER ~
 TABLE OF CONTENTS:
LIST OF ABBREVIATIONS.....3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION.....7
STATEMENT OF FACTS.8
STATEMENT OF ISSUES............10
SUMMARY OF ARGUMENTS.11
ARGUMENTS ADVANCED .13
ISSUE 1:- THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT.13

1.1 Petitioner has a locus standi in the instant case 13

1.2 The petition has been filed in Public Interest and therefor maintainable as Public
Interest Litigation..14
1.3 Alternative Remedy not a bar14
1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to
violation of right alleged in the present matter.14

ISSUE 2: THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)

ACT, 2015 IS UNCONSTITUTIONAL ......................................................................19

..................................................................................................................................................

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PRAYER....33

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 LIST OF ABBREVIATIONS:
AIR All India Reporter
& And
Anr. Another
Art. Article
CrPC Code of Criminal Procedure
Ed. Edition
HC High Court
IPC Indian Penal Code
JJA Juvenile Justice Act
JJB Juvenile Justice Board
NCRB National Crime Records Bureau
Ors. Others
Paragraph
PCM Prohibition of Child Marriage Act
POCSO Protection of Children from Sexual Offence
Act, 2012
Raj. Rajasthan
Section
Sec. Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
UOI Union of India
U.P. Uttar Pradesh
V. Versus

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 INDEX OF AUTHORITIES:
TABLE OF CASES
SL. NO. INDIAN SUPREME COURT CASES PG. NO.
1. Aeltemsh v Union of India, AIR 1988 SC 176 19
2. Binny Ltd. And Anr. V Sadasivan and ors., AIR 2005 SC 320 15
3. Brugdaycay(1987) AC 514 15
4. D.S Nakara v Union of India, 1983 AIR 130 19
5. Deepak Chand Sibal v. Punjab University, AIR 1989 SC 903. 16
6. Guruvayoor Devaswon Managing Committee and other v C.K Rajan and 13
Other, (2003) 1 SCC 546
7. Harbansal Sahnia v Indian civil corporation Ltd, AIR 2003 SC 2120 15
8. I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750 15
9. Indian council for enviro legal action vs Union of India, 2011 Indlaw SC 15
508
10. K.K kouchunni vs State of Madras, AIR 1959 SC 725 15
11. M.C Mehta v. Union of India, (1987) 1 SCC 395 14

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12. Mhajan v J.M.C, (1991) 3 SCC 91 19

13. Rural litigation and Entitlement Kendra v. State of Uttar Pradesh, 1986 14
Supp. SCC 517
14. S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87 14
15. Sachidanand v. State of W.B, AIR 1987 SC 1109 19
16. Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC 14
227
17. Workman v Meenakshi Mills, (1992) 3SCC 336 19

SR.NO BOOKS
1. Steven M. Cox, Robert D. Hanser JUVENILE JUSTICE, A Guide to
Theory, Policy and Practice(7th ed.)
2. Mamta Rao, PUBLIC INTEREST LITIGATION, Legal Aid and Lok Adalat
(3rd ed.)
3. William J. Chambliss, Juvenile Crime and Justice
4. Justice K.G. Balakrishnan(Chief Justice Of India), JUVENILE JUSTICE
SYSTEM
5. Durga Das Basu, Commentry on the constitution of India (8th ed. ) ( Vol. 2 -
4, 8,10)
6. Richard Lawrence & Mario Hesse, JUVENILE JUSTICE
7. Samuel M. Davis, RIGHTS OF JUVENILE 2d, The Juvenile Justice System
(South Asian Edition)
8. H.M. Seervai, Constitution Law of India (4th ed. 2008)
10. John Muncie, Gordon Hughes, YOUTH JUSTICE Critical Reading

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11. Dr. S.K Kapoor, International Law & Human Rights (18th ed.)

SR. NO. CONSTITUTIONAL PROVISION PG. NO

1. ARTICLE 32 passim

SR. NO. STATUTES

1. The Juvenile Justice (Care and Protection of Children) Act. 2015.

2. The Juvenile Justice (Care and Protection of Children) Rule. 2007

3. The Code of Criminal Procedure Act, 1973

SR. NO. TREATIES

1. United Nations Convention on the Rights of the Child, 1990Vienna Convention

on the law of treaties on 23 May 1969
2. Vienna Convention on the law of treaties on 23 May 1969

3. Beijing rules 1985

SR. NO. LEXICONS

1. Garner Bryana, Blacks law Dictionary, 7th Edn.1981, West Group.

2. Collins Gem English Thesaurus, 8th Edn. 2016. Collins

3. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Edn. 2006, Oxford
University Press

SR. NO. WEB RESOURCES

1. www.westlaw.india.com(WEST LAW INDIA)
2. www.manupatrafast.com(MANUPATRA)
3. www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)
4. www.jstor.org(JSTOR)
5. www.scconline.com(SCC ONLINE)

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STATEMENT OF JURISDICTION:
The petitioner humbly submits to the jurisdiction of this Honourable Court under Art. 32 of the
Constitution of India. The petitioner has approached this Honourable Court in apprehension of
the violation of rights that inevitably occur should the implementation of The Juvenile Justice
Act, 2015 of the parliament not be stopped. Therefore, the petitioner maintains the jurisdiction
of Art. 32 of The Constitution of India, which protects the citizens of INDIA from any
violation of their fundamental rights, is applicable in the present case.

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 STATEMENT OF FACTS:
1. Satya was a poor boy who used to live in a slum in the outskirts of the city of Gwalior, State
of Madhya Pradesh, in the Republic of INDIA. He studied in a government aided school up to
Sixth Standard but then he dropped out of school due to financial constraints and since then,
has been in the employment of Mr. Rajan.

2. Mr Rajan had two children, a boy named Vansh, aged 18 years and a girl named Vani, aged
16 years. Both Vansh and Vani treated Satya in a condescending manner, they insulted him on
trivial matters.

3. One day Shashi, aged 17 years 11 months, son of Mr Saxena, neighbour of Mr Rajan was
playing a soccer in the park of the society and Vansh and Vani were jogging there as per the
daily routine. Shashi and Vansh had animosity since childhood. While playing soccer, the
football hit over the head of the Vani which gave her a minor head injury. Over this Vansh
started verbally abusing Shashi, this lead to quarrel between the two and this provoked Vansh
to give Shashi a blow but suddenly another neighbour came and resolved the quarrel

4. Another day, Satya was bringing some household items, when he reached the vicinity of the
society, he came across Vansh asked Satya that whether he had brought his asked items or not
and Satya replied that It was not available in the market. On this Vansh harshly abused Satya
and Vani was also in habit of abusing Satya every now and then. Satya had complained this to
Mr. Rajan but he never paid heed to his such complaints. On another occasion when Vansh
was abusing Satya outside his house, Shashi witnessed the conversation. Later he spoke to
Satya on the matter and both of them shared hatred feelings towards Vansh and Vani.

5. On 5th March 2016, Satya took leave from Mr. Rajan for 3 days from work, for visiting his
village. On the 6th March, 2016, Mr Rajan left to attend some business meeting in another city.
As it was a Sunday Mrs. Rajni (wife of Mr. Rajan) had planned to visit a painting exhibition
with her family. But in absence of Mr. Rajan she decided to continue the programme with her
family. Satya had prior knowledge about the aforesaid plans.

6. At 6:30 pm on 6th March, 2016, Mrs. Rajni along with her children reached the exhibition
venue which was located in the remote and isolated part of the City, Mrs Rajni got engaged
in works along with her friends. Meanwhile at around 8:30 p.m. Vansh found out that her
sister was missing. At around 10:00 p.m. when the guard came to switch off the light of the

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basement, he found a girl lying unconscious. He immediately informed Vansh and his mother
and she was identified by her family as Vani. They took her back home.

7. The other morning Mr. Rajan reached back home. Vani narrated the story to the family that
she was taken away by Satya and Shashi to the basement where they tried to outage her modesty
by tearing off her clothes. She stated that she was subjected to rape. When she shouted for help,
her mouth was forcefully shut and in a sudden haste she was strangulated. Thereafter she got
unconscious and the boys ran away.

8. A FIR was then made by them against Satya and Shashi on the 7th March in the nearest
Police Station, which was registered under Section 323, 354-B, 366-A, 376, 376-D read with
Section 34 of the INDIA Penal Code, read with Section 3 and 4 of The Protection of Children
from Sexual offences Act, 2012.

9. On the 8th March, 2016 the Investing Officer arrested Shashi and Satya. The case was sent
to Juvenile Justice Board as both were minor. A preliminary assessment was about to be made
under Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016),
by the regular Sessions Court or whether it will be dealt by the Juvenile Justice Board. As there
was a large scale media coverage and further the family of Mr. Rajan was very influential. Due
to which, Satya and Shashi apprehended that their case might be committed to the Sessions
Court. Therefore they decided to challenge the validity of the Section 15 of Juvenile Justice
(Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme Court of INDIA.

10. As Satya and Shashi were minor and were victims of continuous harassment by Mr. Rajan,
specifically by Vansh and Vani, both challenged the Constitutional Validity of Section 15 of
Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) before the Supreme
court of India.

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 STATEMENT OF ISSUES:

[ISSUE 1]
WHETHER THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE CONSTITUTION
OF INDIA IS MAINTAINABLE OR NOT?

[ISSUE 2]
WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 IS UNCONSTITUTIONAL OR NOT?

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 SUMMARY OF ARGUMENTS:

[ISSUE1] THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32

OF THE CONSTITUION OF INDIA IS MAINTAINABLE.
The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is
maintainable as a Public Interest Litigation, which has been filed with the apprehension of
violation of Fundamental Rights enshrined under Part III of the Constitution. The procedurals
flaw which depict the improper implementation of the Juvenile Justice Act, 2015 of the
Parliament which falls under the ambit of authorities under Art. 12 of the Constitution. Thus,
the petition is maintainable.

[ISSUE 2] THAT SEC. 15 OF THE JUVENILE JUSTICE ACT, 2015 IS

UNCONSTITUIONAL.
All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in
the instant case. First it Violates the very essence of Juvenile Justice Act1. Secondly it also
violates various Fundamental Rights2. Third, it does not take consideration of other relevant
factors like social background and psychological issues3. It has been well established by many
neuroscientist that in adolescent period, child faces tremendous physiological, hormonal,
emotional and structural change in the human brain, which subjects the child to great
vulnerability4. Fourth, this act can also open the flood-gate of cases by angry parents who wants
to resist their children from getting into love relationship5.

1
Amendment to juvenile justice act criticised, The Hindu, April 25.2015
2
International Journals of legal development and allied issues written by Sayashi Saha.
3
Ibid
4
Ibid
5
Ibid

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 ARGUMENTS ADVANCED:
1. THAT THE PUBLIC INTEREST LITIGATION FILED UNDER ART. 32 OF THE
CONSTITUTION OF INDIA IS MAINTANABLE.
The petitioner most humbly submits that the petition filed under Art. 32 of the Constitution is
maintainable as a Public Interest Litigation, which has been filed with the apprehension of
violation of Fundamental Rights enshrined under Part III of the Constitution. The present
petition is maintainable under Art. 32 of the Constitution,6 since it falls within the ambit of
The State as enriched under Art. 12 of the Constitution. Public function is one which seeks
to achieve some collective benefit for the public or a section of the Public7 further under the
well-established doctrine Parents Patriae, it is the obligation of the state to protect and take into
custody the rights and privilege of its citizen for discharging its obligation.

1.1 Petitioner has a locus standi in the instant case:

It is humbly submitted that the Apex Court in S.P Gupta,8 case held that test for determining
the standing in individual interest cannot be a strictly applied to public interest. The court has
expended the concept of Affected Party in case of Public interest. As it is humbly submitted
that the Apex court in Shivaji Rao Nilangeker Partil,9 case held that the petitioner might
have moved a court in his private interest and for redressal of the personal grievance the court
in furtherance of the Public interest may treat it necessary to enquire into the state of the
affairs of the subject of the litigation in the interest of justice.

All the requirements of instituting PIL have been filled the instant case. First, there is a violation
of fundamental rights. Second, the petitioner represents the rights of public i.e Juveniles in
Conflict with Laws. Third, the petitioner has come to this Court with clean hands. The
impugned Juvenile Justice Act, 2015 issue by Parliament there or the Honble Supreme Court
is competent enough to decide legality of the amendment Juvenile Justice, 2015.

6
Consitution of India, Pare materia to constitution of India.
7
Binny Ltd. And Anr. V Sadasivan and ors. AIR 2005 SC 320 (para 11)
8
S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87; M.C Mehta v. Union of India, (1987) 1 SCC 395
; Rural litigation and Entitlement Kendra v. State of Uttar Pradesh 1986 Supp. SCC 517
9
Shivaji Rao Nilangeker Partil v. Mahesh Madhav Gosavi, 1987 1 SCC 227

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1.2 The petition has been filed in Public Interest and therefor maintainable as Public
Interest Litigation:
It is submitted that part III of the Constitution which deals with Fundamental Rights is
regarded as basic structure of the Constitution11. To invoke the writ jurisdiction of the Honble
Supreme Court is not necessary that the fundamentals rights have been actually infringed. A
threat to the same would been sufficient12. Applying the Doctrine of Reasonable
Apprehension, this Honble Court may interfere directly in the said case. The most
fundamental rights of an individual is his Right to Life; if an administrative decision may his
life at risk, the basic for decision surely calls for the most anxious scrutiny according the
principle of Anxious Scrutiny13. The petition filed before this court is maintainable.

1.3 Alternative Remedy not a bar:

When there is a well founded allegations that Fundamental Right has been infringed,
alternative remedy is no bar for entertaining Writ Petition and granting relief,14. The legal
remedy cannot be per se good and sufficient ground for throwing out a petition under Art 32 if
the existence of a Fundamental and a breach, actual or threatened, of such rights is alleged is
Prime Facie establish on the petition15. In spite of availability of alternative remedy, the court
may exercise its writ jurisdiction in its least petition where the petitioner seeks enforcement of
any of the fundamental rights.16 Thus the petitioner humbly submits that PIL is maintainable
as existence of alternative remedy is not a bar.

1.4 The jurisdiction of the Supreme Court under Art 32 of the constitution extend to
violation of right alleged in the present matter:

1.4.1 Violation of the right of the Juvenile:

The Fundamental right to equality,17 enriched under Art. 14 of the constitution have been
violated because of the ambiguous law which has been amended by the State. The law is
arbitrary in nature where every action of the State must be guided by reason for public good
and not by whim, caprice, and abuse of power.18 Also there is a violation of Right to natural

11
I.R Colho vs State of Tamil Nadu, (1998) 7 SCC 750
12
Indian council for enviro legal action vs Union of India (2011) 8 sec 161(para 20)
13
Brugdaycay(1987) AC 514, where lord Bridge said at 531 E-G
14
State of Bombay vs United Motors Ltd. AIR 1953 SC 252
15
K.K kouchunni vs State of Madras AIR 1959 SC 725
16
Harbansal Sahnia v Indian civil corporation Ltd. AIR 2003 SC 2120
17
Maneka Gandi vs Union of India AIR 1978 SC 597
18
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779

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justice and Right of opportunity to be heard enriched under Art.21 of the constitution has been
violated on the account of arbitrary action of the state.

It is humbly submitted that the present PIL is maintainable against Union of India.

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\
2.THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION
OF CHILDREN) ACT 2015 IS UNCONSTITUTIONAL.
According to several statutes in operation in or country, a juvenile has been defined in several
statutes:
2(k)40 a juvenile or Child is a person who has not completed eighteenth year of age.
2(12)41, Child means a person who has not completed the eighteen years of age.

As provided in the facts of the case and as the problem requires we hereby adhere to the
definition provided by Juvenile Justice (Care and Protection of children) Act, 2015.
Since a nations future depends upon the young generation, the children deserves compassion
and bestowal of the best care to protect this burgeoning human resource. A child is born
innocent and if nourished with tender, care and attention he or she will blossom with the
facilities physical, mental, moral and spiritual into a person of stature and excellence42.

All the requirements of instituting section 15 of Juvenile Justice Act, 2015 have been filed in
the instant case. First it Violates the very essence of Juvenile Justice Act43. Secondly it also
violates various Fundamental Rights44. Third, it does not take consideration of other relevant
factors like social background and psychological issues45. It has been well established by many
neuroscientist that in adolescent period, child faces tremendous physiological, hormonal,
emotional and structural change in the human brain, which subjects the child to great
vulnerability46. Fourth, this act can also open the flood-gate of cases by angry parents who
wants to resist their children from getting into love relationship47.

The prologue of The New Juvenile Justice (Care and Protection of Children), Act 2015, has
introduced some of the remarkable changes in the existing Juvenile Law. One such major
changes is, juvenile of age group of 16-18 years are to be tried like an adult criminal. Also the
person who has attained the age of twenty one while in sentence will be send to the jail for rest
of the time span48.

40
Juvenile Justice (Care and Protection of Children) Act, 2000
41
Juvenile Justice (Care and Protection of Children) Act, 2015
42
Legal papers and comments, Juvenile justice in India, Friday 17th March, 2016.
43
Amendment to juvenile justice act criticised, The Hindu, April 25.2015
44
International Journals of legal development and allied issues written by Sayashi Saha.
45
Ibid
46
Ibid
47
Ibid
48
International Journals of legal development and allied issues written by Sayashi

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The petitioner humbly submits that in this particular section there has been a classification
between two different classes of a juvenile. Where juvenile is itself a class and further
classification into a class cannot be done and hence there is a violation of the fundamental
rights under Article 14 and Article 21 of The Constitution of INDIA49. It is also not satisfying
the three tests of Article 1450 defined by the Supreme Court and that is:-

1. Test of intelligible Differentia.

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

As these three tests are not satisfying the reasonability of section 15 of Juvenile Justice Act,
2015.

The first test that is the Intelligible Differentia is unreasonable due to the logic and the reasons
because on one hand it replaces the word juvenile with child in conflict with law which is
supposedly more humane. But this very child in conflict with law is meant to be tried for adult
offences and is inhumane idea conceived by the Government. Also there is a flaw with the
terms child alleged to be in conflict with law and child found to be in conflict with the law are
not defined clearly and are used interchangeably in the act. Even though there is an alleged
difference between alleged to be and found to be.

It is respectfully submitted that the authorities have acted without following the procedure to
unequal treatment violating of Art 14. The object or the purpose of the Juvenile Justice Act is
to provide care, protection and child friendly approach but child friendly approach suddenly
disappears when the child is between the ages of 16-18 years. Thus the object of Juvenile
Justice Act is not being fulfilled as Juveniles are being treated as an adult criminals where they
would be sent to the prison and due to this the Juvenile would be influenced to be more
hardened criminals so the object or purpose of the Act to protect the juvenile from committing
the crime is not fulfilled rather than the government is trying to convert them into a hardened
criminals and not to reform the juveniles so that the juveniles would be accepted into the
society. There are many international examples such as there is a U.S. study that is established

49
Pari materia to the constitution of India
50
Ibid

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80% of the juveniles released from prison go on to commit more serious offences. Hence this
condition might be of India due to this Law which amended51.

The petitioner humbly submits that juveniles commits a tiny portion of crime in India and far
less other than other nations such as United States data52 that although there were 33,000 crimes
committed by juveniles in India in 2012 there has not been a large increase53.

Art 14 extends to the prevention of arbitrary and unreasonable action of the state, which are
antithetical to the rule of equality. The principle of Indian law have thrown open the gates of
Executive action to Judicial Scrutiny. It is submitted that under the expanded interpretation of
Art 14,54 any Administrative Act , even though it may inverse policy,55 or that it involved an
improper use,56 or the statutory power; or that the power was exercised by an unfair
procedure;57 or that the action taken by the State or its instrumental is not conductive to the
public interest,58.

In the case of D.S Nakara v Union of India,59 a memorandum dated May 25, 1979 the
government of India liberalised the formula for computation of pension in request of employed
governed by central civil service (Pension) Rule said that the liberalisation of the computation
of the pension had been made applicable only to those retiring on or after the date specified
and the benefit of liberalisation had been denied to all those who had retired earlier. Thus Art.
14 strikes at arbitrariness in state action and ensure fairness and equality of treatment. It is
attracted where equals are treated differently without any reasonable basis. The judgement was
held that each and every one will be allowed the pension. The Juvenile Justice Act itself in the
section 2(12) says that a juvenile means a person who has not completed the age of 18 age and
on the other side the Juvenile Justice Act 2015 is contradicting its own law while saying that
16-18 years of age should be tried as an adult criminal.

It is respectfully submitted that there is also a violation of fundamental right under art. 21.
There is a violation of Right of opportunity to be heard and right of fair trial. The Juvenile

51
Juvfenile Justice by Richard Lawrence And Mario Hesse
52
National Crime Bureau Report (2012-2013)
53
Ibid.
54
Durga Das Basus commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S
Subramanni, Justice B.P Banerjee, 8th edition 2008)
55
Workman v Meenakshi Mills (1992) 3SCC 336 (para 54)
56
Mhajan v J.M.C (1991) 3 SCC 91
57
Aeltemsh v Union of India, AIR 1988 SC 176 (para 6)
58
Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109
59
1983 AIR 130

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would be tried as an adult in the session court rather than Juvenile court. In the instant case of
Satya and Shashi as there was a large scale media coverage and also Mr Ranjan the employer
of Satya was an influential person due to which there was a mere apprehension that there case
might be committed to session court, to invoke the writ Judriction of Honble Supreme Court
is not necessary that the fundamental right has been actually infringed but a threat to some
would be sufficient in the instant case the Juvenile Satya and Shashi would not be tried under
the Children Court by which the fair trial of the juvenile is being violated.

The right of opportunity to be heard of Satya and Shashi is also violating because the Juveniles
were arrested by just a mere statement where there was a no Prima Facie evidence and hence
by a mere statement they would be tried in session court. Thus both the juveniles should be
given a chance of proving themselves of not being guilty rather than apprehending them by a
mere statement stated by Vani whose age is 16 years as juvenile also has right to be heard.
Hence there is a violation of Art 21 of the constitution.

It is respectfully submitted that in practice, Session Court have been given the additional
changes of acting as a childrens court, however not many special court having child friendly
environment has been created. It is further submitted that the child should have to face the
ignominy of being called as Accused even though he may or may not have committed the
said offence. Further, the child shall be forced to face fair trial which will have a negative effect
on the psychology of mind. As this law will be highly misused if teenagers are found for
consensual sex then the male would be charged for rape and will be sent in the prison. As there
is an old established principle in law that lex iniusta non est lex that says unjust law is not a
law.

This act can also open the flood-gate of cases by angry parents who wants to resist their children
from getting into love relationship. First of all the POCSO Act states the age of consent is 18
years60 and if any crime committed by a juvenile under the POCSO Act it will be dealt as per
the provision of Juvenile Justice Act 2000 (Now as per the new amendment act)61. Again, the
PCM Act states that the child marriages are voidable but not void62. In such a situation, many
Juvenile who are involved in a love relation can marry each other and can enter in consensual

60
The POCSO Act 2012 sec 2d
61
The stakeholder opined that this provision was worrying as needed to be looked at in relation to section 23 of
POCSO Act see HUNDRED the juvenile justice (care and protection of children) PARLIAMENT OF INDIA
RAJYA SABHA TWO HUNDRED SIXTY FOURTH REPORT, supra., at 16
62
The Prohibition of Child Marriage Act, 2006 sec 3

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sexual act. In such situation the consented sexual act may attract the provision of POCSO Act
and the Juvenile Justice Act, 2015 and they may be tried as adult offender. In a hypothetical
situation, when both the guy and girl are involved in a consensual sexual relation, then the male
child shall be treated children in conflict with law and the female will be treated as children in
need of care and protection. This situation may arise because in section 3, Penetrative sexual
assault starts with he, and it excludes the women from its periphery. It utters a girl can only
be abettor in the penetrative sexual assault not an active criminal.

Such a harsh law against juveniles can be a weapon in hand of angry parents in child elopement
cases. If we look into the crime report of 2013, we can observe about 1388 cases are reported
of rape which is only 4.18% of the total crimes committed by the juveniles between the age
group of 16-18 years63 and from them many cases are relating elopements where the parents
come complaining to police that their children were sexually abused or kidnapped and lodge
FIR against the boy.

Under the existing law of a child in conflict with law between the age of sixteen - eighteen
years were found to have committed an offence by Juvenile Justice Board, there was a arrange
of rehabilitation supposition that could be passed by Juvenile Justice Board. These
rehabilitation disposition includes admonition community service imposition of a fine,
probation group counselling and an extreme measure of deprivation of liberty by way of
placement of the child in the special home for three years. Also there has been no such
alternative remedy which has been proposed like shelter homes, observation homes and
rehabilitation homes. In the landmark case Sheela Barse and Anrs. v. Union of India64 the
judgement delivered in the Supreme Court by the bench Bhagwati J. in which it was
emphasised that a central act is needed for ensuring social economic and psychological
rehabilitation of the children who are either accused or are abandoned or destitute or lost. If
further stressed, then need not only of having a legislation but to enforce it with all earnestness
and plea like financial constraints would not serve our purpose in binding up of powerful
human resource who are to taken reins of nation in forward march.

This act has basically been just saying about the juveniles who are to be tried as an adult
criminals and it is sadly to be said that a majority of children in conflict with law comes from
illiterate family, poor homes or even homeless. 77.5% arrested children in 2013 comes from

63
National Crime Record Bureau, Crime in India 2013 statistics 513.
64
(1986) 3 SCC 596

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families with a monthly household of income of less than Rupees four thousand two hundred
only. Thats how these poor the childrens are 87% have not received Higher Secondary
Education65. These are the ones that the government are trying to punish instead of providing
them with the education or give them an opportunity to integrate into our society66.

As Delhi alone has around eighty thousand street children and when children are living on the
streets or in pitiable condition they can easily come under the influence of criminal minded
adults hence it is better to educate them rather than throwing them to a jail.

2.1 That the mental faculty of every child cannot be considered equally.

The petitioner humbly submits that the impugned Act seeks to repeal and replace the existing
Juvenile Justice Act, 2002 with a draconian and unconstitutional amendment which instead of
providing care and protection to the children deems them as an adult in cases where the alleged
commission of crime by them is heinous in nature. It is respectfully submitted that the
impugned Act seeks to punish the child in conflict with the law for the failure of the society at
large in providing the child with adequate care and protection.

The petitioner herby completely submits that the brain of the teenager is not completely
developed and he/she is incapable of fully understanding the consequences of his act or
omission. It is to be submitted that in 2007 a study conducted at Researchers at Harvard
Medical School, the National Institute of Mental Health (NIHM), US scanned the brains of
nearby thousand healthy children between ages three to eighteen years67. Child and Adolescent
psychiatrist Jay Geidd, who conducted the Magnetic Resonance Imaging (MRI) scans and
followed the actual physical changes in the brain, believes that brain maturation peaks around
the age of twenty-five years68.

In 2005, Dr. Geidd quoted that during adolescence the part of the brain that is helping
organization, planning and strategizing is not done being built yet. Its sort of unfair to expect
[adolescents] to have adult levels of organizational skills or decision making before their brain
is finished being built69. Deborah Yurgelun-Todd, PhD Brain Imaging Laboratory, McClean

65
National Crime Bureau Report (2012-2013)
66
Relation of Juvenile with Jurisprudence, PG NO.29-30
67
American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
Development and Legal Culpability, January 2004.
68
Brain development in children and adolescents: Insights from anatomical magnetic resonance imaging Rhoshel
K. Lenroot, Jay N. Giedd in 2006.
69
PBS Frontline, Inside the Teen Brain. See Interview with Jay Giedd, online at
www.pbs.org/wgbh/pages/frontline/shows/teenbrain/,2004 last accessed on 12th September at 7.00PM.

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Hospital Harvard University Medical School quoted that Just because they're physically
mature, they may not appreciate the consequences or weigh information the same way as adults
do. So, [although] somebody looks physically mature, their brain may in fact not be mature70.

Emotionally, an adolescent is really both part child and part adult, explains Melvin Lewis,
an expert in child psychiatry and pediatrics at Yale University School of Medicine. Normal
development at this time includes self-searching, during which the adolescent tries to grow out
of his or her childlike self. This change is complicated by the conflict between an adolescents
new sense of adult identity and remaining juvenile insecurities71.

As in the case Lakshmi Kant Pandey v. Union of India and others, The Apex Court in its first
Judgment in 1984 itself on the child jurisprudence said that:

1. The children by reason of their physical and mental immaturity needs special safeguards
and care, including the appropriate legal protection before as well as after birth and that the
mankind owes to the children the best it has to give and formulate some principles mainly
that children have a right to love and be loved, grow up in an atmosphere of love and
affection with moral and material security which is possible only if they are brought up in
family care.
2. It is universally accepted that proper development of a child-emotionally, physically,
intellectually and morally-can be best ensured with the family, or where it is not possible,
then in family surroundings and in a family atmosphere. The responsibility for providing
care and protection to children, including those who are orphaned, abandoned, neglected
and abused rests primarily with the family, the community and the society at large.

Hence it has to be noted that a child should be treated in a good atmosphere and proper care
and love should be given because they might be physically mature but mentally they might
need support of the others. Similarly, in the case of Satya and Shashi, Satya was a poor boy
who was a dropout due to financial conditions and has struggled a lot in his life where he has
never got love and affection from his family and neither from Vansh and Vani who were the
children of his master Mr. Rajan where they used to ill-treat him and misbehave with him and

70
American Bar Association Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
Development and Legal Culpability, January 2004.
71
Lewis, Melvin. Child and Adolescent Psychiatry: A comprehensive textbook, Lippincott Williams and
Wilkins (2002).

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during his bad times Shashi was the only witness where Vansh and Vani abused him as the
product was not available in the market.

As in the Indian Context: Dr. Rajat Mitra, clinical psychologist and director of Swanchetan, a
non-governmental organisation based in New Delhi providing support to juvenile delinquents
among others - says that complete rehabilitation is very rare. It is almost next to nil.
Rehabilitation is a well-defined scientific process. The idea is to help the convict gain back his
original psychological, physical and social capacity which is impaired as a result of the crime
committed, he says.72

Juveniles in conflict with the law are more capable of change given the fact that their brains
are still learning. Honest efforts made towards rehabilitation including visits by a mental
health professional three-four times a month will have a significant positive impact on them.
Unfortunately, there is no psychiatric screening in Indian prisons. No mental health
professional has met the juvenile convicted in the gang-rape case yet; neither when he was in
a reform home for three years nor after release. Thats no way to look at rehabilitation, says
Dr. Mitra73.

The petitioner humbly submits that there are many circumstances under the Indian law a person
under the age is not allowed to vote, is considered minor for entering into a contract, a girl of
age less than eighteen years cannot give consent for sexual relationships, a child of age less
than eighteen years cannot marry. Yet by the amended act that child can be tried as an adult
after a preliminary assessment, the child shall be presumed to have the knowledge and
understanding of the alleged crime he has committed. The petitioner submits that such a
scenario would be travesty of justice. It is submitted that the idea behind treating a certain age
group as children is to protect the most vulnerable section of the society. Where the government
analysed in such matters that they are not mature enough to deal with these things. Thus it is
humbly submitted that section 15 of juvenile Justice Act, 2015 has been violated.

72
Neuroscience and the Juvenile Legislation Report 2005
73
Ibid.

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 PRAYER:

In the light of the issues raised, arguments advanced and authorities cited, may this Honble
Court be pleased to:

1) TO ISSUE THE WRIT OF PIL.

2) TO HOLD THAT SECTION 15 OF THE JUVENILE JUSTICE ACT (2015) IS
UNCONSTITUTIONAL.

All of which is respectfully submitted and for such act of kindness the Petitioner shall be duty
bound as ever pray.

Sd/-

(COUNSEL FOR PETITIONER)

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