Petitioner M 2

35th BAR COUNCIL OF INDIA (TRUST)

ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2019

- MEMORIAL ON BEHALF OF PETITIONERS-

TEAM CODE: 34

IN THE HON'BLE SUPREME COURT

OF THE DEMOCRATIC REPUBLIC OF INDIA
WRIT PETITION NO. ****/2019, WRIT PETITION NO. ****/2019 UNDER

ARTICLE 32 OF CONSTITUTION OF INDIA, 1950
IN THE CLUBBED MATTERS OF
RAMAN ADHURI............................................................................................PETITIONER
Vs.
UNION OF INDIA...........................................................................................RESPONDENT
WITH
NCT of Delhi.......................................................................................................PETITIONER
Vs.
UNION OF INDIA...........................................................................................RESPONDENT
-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

Table of Contents
LIST OF ABBREVIATIONS ...................................... Error! Bookmark not defined.
INDEX OF AUTHORITIES .................................................................................. 4
STATEMENT OF JURISDICTION ........................................................................ 6
STATEMENT OF FACTS .................................................................................... 7
STATEMENT OF ISSUES ................................................................................... 9
SUMMARY OF ARGUMENTS ............................................................................ 10
ARGUMENTS ADVANCED ............................................................................... 122
1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE ACT, 2015

VIOLATES THE FUNDAMENTAL RIGHTS OF THE CONSTITUTION? ........... Error!
Bookmark not defined.2
A. That the implementation of Juvenile Justice Act, 2015 violates Art. 14,
15(3), 19(1)(a) & 21 And Rule of law ....................................................... 122
B. That Section 15 of juvenile justice (care and protection of children) act

2015 is unconstitutional- ............................................................................. 14
C. RULE OF LAW……………………………………………………………………………………14
2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES OF

CONSENSUAL INTERCOURSE BETWEEN ADOLESCENTS? Error! Bookmark not
defined.
PRAYER ............................................................................................................ 17

LIST OF ABBREVIATIONS
AIR ALL INDIA REPORTER
All ALLAHABAD
SCC SUPREME COURT CASES
BOM BOMBAY
ORS. OTHERS
V./Vs. VERSUS
ANR. ANOTHER
HON’BLE HONOURABLE
EDN. EDITION
AP ANDHRA PRADESH
ILR INDIAN LAW REPORTER
J&K JAMMU & KASHMIR
LR LAW REPORTER
SC SUPREME COURT
UP UTTAR PRADESH
IND INDIAN
I.C. INDIAN CASES
WP WRIT PETITION
ART. ARTICLE

W.B. WEST BENGAL
PARA PARAGRAPH
I.E. In essence of
LIST OF AUTHORITIES
A. CASES
1. Maneka Gandi vs Union of India AIR 1978 SC 597

2. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v.
Chairman Jee, (2005)9 SCC 779
3. State v. Aas Mohammad
4. Workman v Meenakshi Mills (1992) 3SCC 336 (para 54)
5. Mhajan v J.M.C (1991) 3 SCC 91
6. Aeltemsh v Union of India, AIR 1988 SC 176 (para 6)
7. Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ;
8. Sachidanand v. State of W.B., AIR 1987 SC 1109
9. Putappa vs. State of Karnataka
B. BOOKS
1. DR. J.N. PANDEY, CONSTITUTION LAW OF INDIA

2. INDIAN PENAL CODE, 1860- RATAN LAL & DHIRAJLA
C. STATUTES
1. CONSTITUTION OF INDIA, 1950

2. THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT,
2012.
3. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

D. ARTICLES& BLOGS
1. BAR & BENCH

2. LIVE LAW
3. ECONOMICS TIMES
4. THE HINDU
5. IPLEADERS
6. SCRIBD.COM
7. LEGAL SERVICES INDIA
E. DYNAMIC LINKS
1. www.scconline.com
2. www.indiankanoon.com
3. www.manupatra.com
4. www.lawteacher.net
5. www.advoketkhoj.com

STATEMENT OF JURISDICTION
THE PETITIONER HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIA, THE MEMORANDUM FOR THE RESPONDENT UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA
ARTICLE 32 OF INDIAN CONSTITUTION-
Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (
2 ), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

STATEMENT OF FACTS
For the sake of brevity and the convenience of this Hon’ble Court the facts of the present
case are summarized as follows:
1. Raman Adhuri is a student of 11th grade science stream of St. Andrews Higher
Secondary School, Delhi. He was a promising student and had always been the class
topper. Ms. Susan Sebastian was a grade 12th art student in the same school. They both
fell in love with each other but naturally as they used to live together as a neighbor since
childhood.
2. They both met at an unofficial school party where Susan proposed him and he
reciprocated gracefully. The school principal was informed about this incident by the
fellow teachers and their parent were immediately called for the meeting. Thereafter the
parents imposed restrictions on both of them from meeting each other which made them
distracted from studies.
3. Both of them finally met at School Annual Debate where Susan suggested Raman to get
away from everyone and also get married at the earliest so that they cannot be separated.
Raman tried to convince her but due to her insistence agreed to her proposal. They both
ran away by boarding off the train to south.
4. After the period of 8 months, their parents find that they were living in Chennai and with
the help of Delhi police they both were forcibly brought back. And it was found that
Susan was pregnant and an FIR was registered against Raman for rape as Susan was 17
years and 4 month old at that time.
5. Raman was sent to a juvenile home and an order under Section 18(3) of the Act was
passed that Raman need to be tried as an adult and transferred the case for trial before
the Children’s Court. At the time of investigation Susan reaffirmed that she was the one
who insisted and forced raman to run away from home. Further, Raman was charged for
committing rape under S.376 of IPC and for committing ‘penetrative sexual assault’
under S.3 of Prevention of Children from Sexual Offences Act, 2012.
6. During the trial, Susan gave birth to the baby boy and prosecution demanded for a DNA
test on the infant to determine the paternity and therefore establish the sexual intercourse

but after being objected by the defense on the ground that it’s against the fundamental
right.
7. Raman filed a writ petition before the Supreme Court challenging the relevant
provisions of IPC, POCSO and JJ Act as violated of his fundamental rights. Association
for Privacy Rights (APR), a public spirited NGO also filed a writ petition challenging
the 2018 amendment to the IPC which enhances the punishment of rape on girls below
16 years and argued that as consent is made irrelevant in charges of rape, consensual
sexual intercourse between adolescents is unreasonably penalized and therefore violates
right to life and personal liberty of adolescents aged less than 18 also argued that
prohibiting sexual activity between consenting persons, both being in the age group of
16 – 18 is grossly arbitrary and violates Article 14 read with Article 19(1) (a) and Article
21 of the Indian Constitution.

STATEMENT OF ISSUES
1. WHETHER THE IMPLEMENTATION OF JUVENILE

JUSTICE ACT, 2015 VIOLATES THE FUNDAMENTAL
RIGHTS?
2. WHETHER THE CONSENT IS IMMATERIAL IN THE

CHARGES OF CONSENSUAL INTERCOURSE BETWEEN
ADOLESCENTS?

SUMMARY OF ARGUMENTS
1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE ACT, 2015

VIOLATES THE FUNDAMENTAL RIGHTS?
It is humbly submitted before the Hon’ble Supreme Court that the

implementation of juvenile justice (care and Protection of Children) Act, 2015
Violates article 14, 15(3), 19(1) (a) & 21 of the Indian Constitution because it
is rendered to be arbitrary. It also violates the basic structure of constitution of
India.
Section 15 of the Juvenile Justice (care and protection) Act, 2015 violate
Article 14 and also violate the basic structure of Indian constitution.
It is further submitted that the new amendment made in section 375 of Indian
Penal Code, 1860 is unconstitutional because it violates the fundamental rights
of Indian constitution and also violates the concept of Rule of Law in Indian
Constitution.
The New Amendment in the Juvenile Justice Act and Indian Penal code is
discriminatory and it is contrary to the constitution of India.
2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES OF

CONSENSUAL SEXUAL INTERCOURSE BETWEEN
ADOLESCENTS?
It is Furtherly submitted that the consent is immaterial in the charges of

consensual Sexual Intercourse between adolescents. In the present case, the
accused and the victim love each other by knowing them. They did the act with
the consensus-ad-idem. The Maturity level of the adolescents is as good as an

adults. In the present case there is no matter of consent whereas the matter is
only Age. It is further submitted that the accused is not liable to that offences
as the victim gave the consent with their sound mind and have the right to live
with her own choice.

ARGUMENTS ADVANCED
1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE

ACT, 2015 VIOLATES THE FUNDAMENTAL RIGHTS?
It is humbly submitted that the Raman Adhuri & NCT Delhi filed Writ Petition under Article
32 of the Constitution of India with a view to draw attention to the violation of the fundamental
rights of the adolescents aged less than 18 years. The writ is maintainable on account of
contravention of fundamental right.
A) THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT,

2015 VIOLATES ART. 14, 15(3), 19(1)(a) & 21 AND RULE OF LAW
i) It is humbly submitted that the present PIL is maintainable against Union of India because
the New Amendment in the Juvenile Justice Act, 20151 Violates article 14, 15(3), 19(1)(a)
& 21 of the Indian Constitution2. It also violates the basic structure of constitution of India.
ii) The petitioner contends that implementation of the Juvenile Justice Act, 2015 has rendered
to be arbitrary, hence violates of right to equality enriched under Art 14, 15(3), 19(1)(a) &
21 and rule of law.
iii) The Fundamental right to equality3, 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 power4. Also there is a violation of Right to natural
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.
1
The Juvenile Justice (amendment) Act,2015
2
Constitution Of India, 1949
3
Maneka Gandi vs Union of India AIR 1978 SC 597
4
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)9
SCC 779

iv) In State v. Aas Mohammad5, a 14-year-old girl was in a sexual relationship with her
landlord. A complaint was filed by the mother on discovering that the girl was six months
pregnant. In court, the girl admitted that the matter was reported only because the man had
refused to marry her. During the proceedings, the accused offered to marry the girl, deposit
a sum of Rs 30,000 in her name, and provide shelter to her mother. The couple got married
when he was released on bail. The judge ensured compliance with the undertaking and
acquitted the accused as the girl and her mother retracted their statements.
v) It is submitted that Section 375 of the IPC prescribes the age of consent for sexual
intercourse as 18 years meaning thereby that any person having sexual intercourse with a
girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity
was with her consent. Almost every statute in India recognizes that a girl below 18 years of
age is a child and it is for this reason that the law penalizes sexual intercourse with a girl
who is below 18 years of age. Unfortunately, by virtue of Exception 2 to Section 375 of the
IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-
consensual sexual intercourse with her, without being penalized under the IPC, only because
she is married to him and for no other reason. The right of such a girl child to bodily integrity
and to decline to have sexual intercourse with her husband has been statutorily taken away
and non-consensual sexual intercourse with her husband is not an offence under the IPC. So
it is submitted that the POCSO6 act in the present scenario is violate of Article 15(3) of
Indian constitution.
vi) In the present Case the Raman tried to convince her and tried to reason with Susan, but
eventually on Susan’s insistence agreed to her proposal. Both of them was adolescents at
that time.
vii) It is submitted that the above pleadings give rise to conflicting questions – can an
adolescent’s right to bodily integrity, privacy, and life be disregarded if she is not married?
Will marriage disentitle a girl from being protected from sexual offences? Is the marital rape
exception being implicitly applied by the judges in POCSO cases?
5
State v. Aas Mohammad
6
PROTECTION OF CHILD FROM SEXUAL OFFENCE ACT,2012

The National Commission for Protection of Child Right (NCPCR) had stressed on the need for
the law to recognize consensual sexual exploration among adolescents by decriminalizing it
when it is between:
 Children above 12 years when the age-gap was less than two years and7
 Children above 14 years when the age-gap was less than three years.8
B) THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT 2015 IS UNCONSTITUTIONAL
It is humbly submitted that Section 15 of Juvenile Justice (Care and Protection) ACT, 2015 is
unconstitutional. Article 14 of the constitution 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 14,9 any Administrative Act, even though it may
inverse policy,10 or that it involved an improper use,11 or the statutory power; or that the power
was exercised by an unfair procedure;12 or that the action taken by the State or its instrumental
is not conductive to the public interest.13
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 would be tried as an adult in the session court rather than Juvenile court.
C) RULE OF LAW
The Rule of Law is English Origin describes by A.B. Dicey and which has been adopted in our
constitution under Article 14. It has three terms- Equality before Law, Supremacy of Law &
Predominance of Legal sprit. Therefore it is submitted that the Implementation of Juvenile
7
NCPCR Report on Sexual exploration among adolescents
8
NCPCR Report on Sexual exploration among adolescents
9
Durga Das Basu’s commentary on the Consttution of India, 1361( Justice Y.V Chandrachud, Justice S.S.
Subramanni, Justice B.P Banerjee, 8th edition 2008)
10
Workman v Meenakshi Mills (1992) 3SCC 336 (para 54)
11
Mhajan v J.M.C (1991) 3 SCC 91
12
Aeltemsh v Union of India, AIR 1988 SC 176 (para 6)
13
Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109

Justice Act, 2015 clearly violates the basic structure (i.e. Rule of law) of the constitution of
India.
2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES

OF CONSENSUAL INTERCOURSE BETWEEN
ADOLESCENTS?
It is submitted that in the present case, the accused and the victim love each other by knowing
them. They did the act with the consensus-ad-idem. They had a physical relationship with the
consent however it should not be considered as offence.
Though consent of minor is immaterial in a rape case, it can be considered while granting bail,
said by the Bombay High Court, while granting bail to a 20 year old man charged with raping
a 15 year old girl. The bail granted in light of love between accused and victim, while the
accused in that case was guilty of rape and the FIR alleging rape was lodged after the girl got
pregnant and delivered a child. From the tenor of FIR, it is apparent that the accused and
victim were in love with each other. In that process, they had physical relationship and as a
result of it, the victim got pregnant and delivered a child.
It is further said by the Justice Prakash Naik, although the consent of the victim is immaterial
as she is minor, the admitted facts remains that the relationship was consensual and this factor
can be considered for grant of the bail.
Another case Putappa vs. State of Karnataka14 of Karnataka High Court of single judge
bench decided a petition, where the court released the accused on bail in light of lack of prima
facie case against him.
The accused was booked for offence punishable under Section 4 15 and 6 16 of Prevention of
Children from Sexual Offences (POCSO)17 Act along with section 363 18 and 376 IPC. The
14
Putappa vs. State of Karnataka
15
Punishment of penetrative sexual assault- imprisonment either description for a term no less than seven yrs
but may extend to imprisonment of life, and shall also be liable to fine.
16
Aggravated form of sexual Assault
17
State By Suddaguntepalya Police vs Nos. 1 A1: Syed Mujamil on 19 April, 2018
18
Section 363 IPC. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful
guardianship, shall be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

complaint was filed by mother of victim girl. The girl was traced and her statement was
recorded under section 164 of Criminal Procedure Code, 1973 19 and in her statement the girl
stated that she was in love with the accused. Therefore the petition was allowed and the
accused was enlarge on bail subject to the conditions imposed.
Another ruling of the Punjab and Haryana High Court of Justice Anita Chaudhary is that in a
consensual sex if the girl is below 16 years of age, the other partner in sexual act is criminally
liable and term ‘consensual sex’ in such a situation as void. But there is no explanation of the
matter where the girl is above 16 and has the developed brain in the case.
It is further submitted that the accused is not liable to that offences as the victim gave the
consent with their sound mind and have the right to live with her own choice
19
Section 164 of the Code of Criminal Procedure, 1973- Recording of confessions and statements

PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS

GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO:
To Hold

 THAT THE SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015 SHOULD BE UNCONSTITUTIONAL.
 THAT THE 2015 AMENDMENT OF SECTION 375 OF INDIAN PENAL CODE SHOULD
BE STUCK DOWN
 THAT THE SECTION 4 & 6 OF POCSO ACT, 2012 SHOULD BE UNCONSTITUTIONAL.
MI S C E L L A N E O U S
AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
COUNSELS FOR THE PETITIONER

Petitioner M 2

Uploaded by

Copyright:

Available Formats

Petitioner M 2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Petitioner M 2

Uploaded by

Copyright:

Available Formats

35th BAR COUNCIL OF INDIA (TRUST)

ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2019

- MEMORIAL ON BEHALF OF PETITIONERS-

35th BAR COUNCIL OF INDIA (TRUST)

IN THE HON'BLE SUPREME COURT

WRIT PETITION NO. ****/2019, WRIT PETITION NO. ****/2019 UNDER

IN THE CLUBBED MATTERS OF

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS ...................................... Error! Bookmark not defined.

INDEX OF AUTHORITIES .................................................................................. 4

STATEMENT OF JURISDICTION ........................................................................ 6

STATEMENT OF FACTS .................................................................................... 7

STATEMENT OF ISSUES ................................................................................... 9

SUMMARY OF ARGUMENTS ............................................................................ 10

ARGUMENTS ADVANCED ............................................................................... 122

1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE ACT, 2015

B. That Section 15 of juvenile justice (care and protection of children) act

2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES OF

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

AIR ALL INDIA REPORTER

SCC SUPREME COURT CASES

ILR INDIAN LAW REPORTER

J&K JAMMU & KASHMIR

I.C. INDIAN CASES

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

W.B. WEST BENGAL

1. Maneka Gandi vs Union of India AIR 1978 SC 597

1. DR. J.N. PANDEY, CONSTITUTION LAW OF INDIA

1. CONSTITUTION OF INDIA, 1950

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

1. BAR & BENCH

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

THE PETITIONER HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

ARTICLE 32 OF INDIAN CONSTITUTION-

Remedies for enforcement of rights conferred by this Part

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

1. WHETHER THE IMPLEMENTATION OF JUVENILE

2. WHETHER THE CONSENT IS IMMATERIAL IN THE

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE ACT, 2015

It is humbly submitted before the Hon’ble Supreme Court that the

2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES OF

It is Furtherly submitted that the consent is immaterial in the charges of

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

1. WHETHER THE IMPLEMENTATION OF JUVENILE JUSTICE

A) THAT THE IMPLEMENTATION OF THE JUVENILE JUSTICE ACT,

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

B) THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

2. WHETHER THE CONSENT IS IMMATERIAL IN THE CHARGES

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS

 THAT THE SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF

 THAT THE SECTION 4 & 6 OF POCSO ACT, 2012 SHOULD BE UNCONSTITUTIONAL.

WRIT PETITION NO. /2019, WRIT PETITION NO. /2019 UNDER