MOOT MEMORIAL ON JJ ACT, Assignments of Law

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Before TEAM - 14

THE HON’BLE SUPREME COURT OF INDIA

DISPUTE RELATING TO

CONSTITUTIONALITY OF JUVENILE JUSTICE ACT, 2015

SPECIAL LEAVE PETITION NO.****/2021,

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950

IN THE MATTER OF

CHILD RIGHT AND WE (CRW) AND ANR…………………APPELLANT

V.

UNION OF INDIA……………………………………………RESPONDENT

UPON SUBMISSION TO

THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

OF

THE HON’BLE SUPREME COURT OF INDIA

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MEMORANDUM ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………………..

STATEMENT OF PARTIES……………………………………………………………………..

INDEX OF AUTHORITIES………………………………………………………………………

STATEMENT OF JURISDICTION………………………………………………………………

STATEMENT OF FACTS…………………………………………………………………..…..

STATEMENT OF ISSUES……………………………………………………………………...

SUMMARY OF ARGUMENTS………………………………………………………………...

ARGUMENTS ADVANCED……………………………………………………………….......

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE

I.1 WHETHER THE PETITIONER HAS LOCUS STANDI TO APPROACH THE

HON’BLE SC?..................................................................................................................

I.2 WHETHER THE SC HAS THE JURISDICTION TO HEAR THIS CASE UNDER

ARTICLE 136?..................................................................................................................

II. WHETHER THE IMPUGNED PROVISIONS [S15 & S18(3)] OF THE JUVENILE

JUSTICE ACT, 2015 ARE VIOLATIVE OF THE BASIC STRUCTIRE OF THE

CONSTITUTION?

II.1WHETHER THE IMPUGNED PROVISIONS ARE VIOLATIVE OF ARTICLE 14 OF

THE INDIAN CONSTITUTION?....................................................................................

II.2WHETHER THE IMPUGNED PROVISIONS ARE VIOLATIVE OF ARTICLE 15 OF

THE INDIAN CONSTITITION?......................................................................................

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III. WHETHER THE IMPUGNED PROVISIONS OF THE JUVENILE JUSTICE

ACT, 2015 ARE IN CONTRAVENTION TO THE UNITED NATION

CONVENTION ON RIGHTS OF CHILDREN?

3.1 WHETHER THE IMPUGNED SECTIONS OF THE JJ ACT VIOLATES ART. 37, 39

& 40 OF THE UNCRC?

IV. PRAYER………………………………………………………………………………...

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LIST OF ABBREVIATIONS

& And Anr. Another Art. Article AIR All India Report CRW Child Rights and We Hon’ble Honorable IPC, 1860 Indian Penal Code, 1860 JJ Act, 2015 Juvenile Justice Act, 2015 NGO Non-Governmental Organization Otrs. Others SC Supreme Court SCC Supreme Court Cases SCR Supreme Court Report Sec. Section UN United Nations UNCRC United Nations Convention on Rights of Child UOI Union of India v. Versus

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STATEMENT OF PARTIES

APPELLANTS

1. Child Rights and We (CRW)
2. Moriarty and family V. RESPONDENTS
3. Union Of India (UOI)
4. State of Maharashtra

INDEX OF AUTHORITIES

 - MOOT MASTERS CLUB, 

• 1. S.P. Gupta vs Union Of India & Anr. AIR 1982 SC 149……………………………….. SUPREME COURT CASES
• 2. Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr 1967 AIR,
  • SCR (3) 744……………………………………………………………………………...
• 3. Pritam Singh v. States 1950 AIR 169………………………………………………….
• 4. Tirupati Balaji Developers Pvt. vs State Of Bihar And Ors 2004 Supp(1) SCR 494……
• 5. Smt Ujjam Bai vs State Of U.P 1963(1) SCR 778………………………………………
• 6. Kondiba Dagadu Kadam vs Savitkibai Sopan Gujar An Dors 1999 (2) SCR 728…..….
• 7. Indra Sawhney II v. Union of India, (2000) 1 SCC 168…………………………………
• 8. Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104………….……..…
• 9. Motor General Traders v. State of A.P., (1984) 1 SCC 222, 229, 230…………………..
  • (1979 AIR(SC) 1628 )…………………………………………………………………... 10. In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others

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11. I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors [(1972) 2 SCC 133]………
12. Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477……….……………………….
13. Dr. Subramaniam Swamy & Ors vs, Raju & Other (2014) 8 SCC 390………………….
14. Salil Bali vs. Union of India (2013) 7 SCC 705……………………………………...18,
15. J.S. Luthra Academy v. State of J&K, (2018) 18 SCC 65……………………………….
16. Lakshmi Kant Pandey v. Union of India 1984 AIR 469…………………………………
17. Shilpa Mittal v. State of (NCT of Delhi, (2020) 2 SCC 787……………………………. STATUES
18. Juvenile Justice (Care and Protection of Children) Act, 2015
19. The Constitution of India
20. The United Nations Convention on the Rights of the Child **WEBSITES
21. WWW.MANUPATRA.COM
22. WWW.LIVELAW.COM
23. WWW.SUPREMECOURTCASES.COM
24. HTTPS://WWW.SCCONLINE.COM/BLOG/ BOOKS AND ARTICLES**
25. Indian Constitutional Law by MP Jain
26. Special Leave under Article 136 of the Constitution and keeping the question of law open by Dormaan Jamshid Dalal.
27. Supreme Court says it has sky-high powers to chase injustice by J. Venkatesan.

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4. Bonnie & Scott,̳ The Teenage Brain: Adolescent Research and the Law‘, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.
5. Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill)
6. Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers, 2 April 2012
7. Prof. Ved Kumari on Juvenile Justice Act
8. Are Reforms Really Needed In the Juvenile Justice (Care and Protection of Children) Amendment Act, 2000
9. Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers, 2 April 2012
10. TWO HUNDRED SIXTY FOURTH REPORT Juvenile Justice (Care and Protection of Children) Bill, 2014 Presented to the Rajya Sabha
11. Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg. 4. Available at http://ncrb.gov.in/CD-CII2013/compendium%202013.pdf

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STATEMENT OF JURISDICTION

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

SUPREME COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT UNDER

ARTICLE 136 (SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF INDIA, 1950.

ART. 136 OF THE INDIAN CONSTITUTION STATES THAT:-

Special leave to appeal by the Supreme Court— (1) 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. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE.

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STATEMENT OF FACTS

INDIA

The Union of India is a democratic country. Its demography is diverse in nature. People from various backgrounds live here. The rich live in the bungalows while the poor live in slums. More than 6 million of India’s population comprises slum dwellers who hardly earn their daily livelihood. There are more than 1,00,000 slums in the country which serve as dwelling houses for these poor people. Maharashtra is one of the States in India with a maximum number of slums with more than 10% of the population residing in slums. CHARACTER OF MORIARTY Moriarty is a 15-year-old boy living in the slums of Mumbai, Maharashtra. He lived with his mother who works as a maid in different houses and carries out household chores. His father was an alcoholic and a drug addict who died two years ago due to an overdose. He skipped school for a year due to his father’s death and as a consequence of financial instability. As a young boy, Moriarty mostly used to hang out with his three friends namely, Mycroft, Sherlock, and Watson. They were of the same age and were from a similar background. Therefore, Moriarty shared a special bond with them. MORIARTY’S 16th^ BIRTHDAY

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On the eve of Moriarty’s 16th^ birthday, his friends decided to do something special for him since he was the first among them to turn 16. They agreed that they would throw Moriarty a birthday party. In order to execute the plan, they were in need of money. Consequently, they decided to work for different people, fishermen, shopkeepers, cleaners, etc. but they could hardly manage to collect around one hundred rupees. Due to the paucity of time and money, Sherlock came up with an alternative plan to acquire some quick cash. KIDNAPPING FOR RANSOM Sherlock and the others agreed to kidnap Lestrade. This idea came to him as a double opportunity; to threaten Lestrade as well as ask for ransom from his parents since he and Moriarty had had several feuds in the past. The boys started planning the kidnapping of Lestrade. They had planned to kidnap Lestrade before he boarded his school bus at 7 AM since the street he lived in remained uninhabited during that time. Additionally, it would also give enough time for the boys to move Lestrade to a place where no one would find out since his parents would assume that he had gone to school. Therefore, they decided to first keep Lestrade in Moriarty’s house because it was only Moriarty whose house was empty at that time. After nightfall, they decided to move him to a boat on the seashore. Meanwhile, Lestrade’s parents had already filed a complaint with the police. The only task left was to call his parents and ask for the ransom amount. When Mycroft placed a call to his parents, the call was traced by the police. In no time, the police figured out the location where Lestrade had been taken, hostage. As a result, all four friends were arrested. COURT TRIAL The four kids were, therefore, charged with kidnapping for ransom under Sec. 364A of IPC,

1860. Sherlock, Mycroft, and Watson were tried before the Juvenile Justice Board because of their minor age. They confessed to their crimes and the Board had convicted them of kidnapping for ransom. They ordered that the boys be sent to an NGO named CRW, a special home under Sec. 48 of the JJ Act, 2015 for a period of three months. On the other hand, Moriarty was subjected to the preliminary assessment by Juvenile Justice Board under Sec. 15 of the JJ Act, 2015 and sent for trial by the Special Court under Section 18(3) of the JJ Act, 2015 as an adult

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on the count of kidnapping for ransom and sentenced to 5 years of imprisonment. SPECIAL LEAVE PETITION Moriarty’s parents felt completely helpless, and they had no alternative remedy. Coincidentally, the director of CRW, Ms. Enola became privy to all the events that lead to the imprisonment of Moriarty. Therefore, with the consent of Moriarty’s parents, she decided to appeal before the Hon’ble SC of India on the grounds that certain provisions which differentiate children on the basis of their age were unconstitutional in nature. The SC accepted to hear the special leave petition filed by Ms. Enola and her organization. STATEMENT OF ISSUES -I- WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS MAINTAINABLE? -II- WHETHER THE IMPUGNED PROVISIONS [S15 & S18(3)] OF THE JUVENILE JUSTICE ACT, 2015 ARE VIOLATIVE OF THE BASIC STRUCTIRE OF THE CONSTITUTION? -III- WHETHER THE IMPUGNED PROVISIONS OF THE JUVENILE JUSTICE ACT, 2015 ARE IN CONTRAVENTION TO THE UNITED NATION CONVENTION ON RIGHTS OF CHILDREN?

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SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE.

It is humbly submitted to this Hon’ble Court that under Article 136 of the Constitution of India, any person, aggrieved by any order or decision of any court in India can approach the Supreme Court through a Petition for Special Leave. The Petitioner has the locus standi to approach the Hon’ble Supreme Court under Article 136. Furthermore, the jurisdiction of Supreme Court can always be invoked when a question of law of general public importance arises. Also, in case at hand the ‘substantial’ questions of law are involved. The jurisdiction conferred under Art. 136 on the SC is a corrective one and not a restrictive one. The questions of unconstitutionality of Juvenile Justice Act, 2015, Provision of the Act violates article 14 and 15 of the Indian constitution, are substantial question of law and of general public importance. Hence Article 136 can be invoked for the same.

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II. WHETHER THE IMPUGNED PROVISIONS [S15 & S18(3)] OF THE JUVENILE

JUSTICE ACT, 2015 ARE VIOLATIVE OF THE BASIC STRUCTIRE OF THE

CONSTITUTION?

It is humbly contended before the Hon’ble Court that Sec 15 and Sec 18(3) of the JJ Act, 2015 which states that children of 16-18 years of age who are in conflict with law and have committed a heinous offence should undergo trial as an adult is violative of the basic structure of the constitution. While the act does not lower the age of a child in conflict with law from 18 years to 16 years, the effect is the same. The JJ Act, therefore, adopts a retributive approach to heinous crimes committed by children of 16-18 years of age and rehabilitation of that age group who are in conflict with law is hindered. The JJ Act also fails to consider that the children of 16-18 years who are in conflict with law who are vulnerable and sensitive require the most protection because of their deeply flawed ability to make decisions. Moreover, the impugned sections fail to adhere to the basic principles that have been laid out to formulate the provisions which states that all the acts carried out should be in the best interest of the child who is in conflict with law and to help the child to develop full potential. Therefore, the impugned sections of the act clearly and distinctively violate Art. 14 which ensures equality before law and Art. 15 which ensures prohibition of discrimination. III.WHETHER THE IMPUGNED PROVISIONS OF THE JUVENILE JUSTICE ACT, 2015 ARE IN CONTRAVENTION TO THE UNITED NATION CONVENTION ON RIGHTS OF CHILD? It is humbly contended before the Hon’ble Court that the impugned provisions of the JJ Act, 2015 violates the United Nations Convention on rights of child which was adopted and open for signature in 1989 in the United Nations General Assembly. India ratified UNCRC on 11th December 1992 and agreed on all the principles and articles other than those of child labor. The convention recalls the proclamation by the UN in the United Declaration of Human Rights that childhood is entitled to special care and assistance. The convention also recognizes the fact that children need to be in a loving and understanding environment for their full and harmonious

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development. India, by introducing an amendment that a child of 16-18 years of age who has committed a heinous crime is to be tried as an adult contravenes the convention by its principles. ARGUMENTS ADVANCED I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS MAINTAINABLE

1. It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High Court is maintainable under Article 136 of the Constitution of India. Article 136 empowers the Supreme Court to grant in discretion Special leave to Appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.^1 It is humbly submitted that powers under Article 136 can be exercised against any kind of judgement or order which is causing injustice to any party, and to serve the need, the power under Article 136 is (^1) Indian Constitution Act, 1950

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unfettered.^2 I.1 This SLP is maintainable as, firstly the petitioner has locus standi to approach the Hon’ble SC. I.2 Secondly, the matter involves question of general public importance involving a substantial question of law. I.1 WHETHER THE PETITIONER HAS LOCUS STANDI TO APPROACH THE HON’BLE SC?

2. It is humbly submitted before this Hon’ble SC that the appellant has locus standi to approach the Hon’ble SC in the present case. Article 136 of the Constitution is couched in the widest phraseology.^3 This Court's jurisdiction is limited only by its discretion.^4 Article 136 is very broad-based & confers discretion on the court to hear “in any cause or matter”. In Pritam Singh v. States ,^5 the Supreme Court laid down the broad principles within which it would exercise its jurisdiction in granting special leave under this Article. The Court observed on a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. I.2 WHETHER THE SC HAS THE JURISDICTION TO HEAR THIS CASE UNDER (^2) Special Leave under Article 136 of the Constitution and keeping the question of law open by Dormaan Jamshid Dalal (^3) S.P. Gupta vs Union Of India & Anr. AIR 1982 SC 149 (^4) Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr 1967 AIR, 1 1966 SCR (3) 744 (^5) Pritam Singh v. States 1950 AIR 169

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ARTICLE 136?

3. The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one.^6 A duty is enjoined upon the SC to exercise its power by setting right the illegality in the judgments 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 .It has been held in plethora of cases that when the question of law of general public importance arises, the jurisdiction of SC can be invoked by filing special leave petition. In the present case, the issue involves matter of General Public Importance [1] and substantial question of law [2]. I.2.1 The Matter Involves Question of Law of General Public Importance and Hence, entitled to be Maintainable. 4. It has been held by this Hon’ble Court that when a question of law of general public importance arises, or a decision shocks the conscience of the court, its jurisdiction can always be invoked. Article 136 is the residuary power of SC to do justice where the court is satisfied that there is injustice.^7 The principle is that this court would never do injustice nor allow injustice being perpetrated for the sake of upholding technicalities. In any case, special leave would be granted from a second appellant decision only where the judgment raises issue of law of general public importance. In the case at hand, Unconstitutionality of Juvenile Justice Act, 2015 is in question. Also, the Act is violative of article 14 and 15 of constitution, which has an impact on public at large. Hence, it is humbly submitted before this court that the matters involve question of law of general public importance and therefore, the appeal is maintainable under article 136 of the Constitution of India. I.2.2 The Matter Involves Substantial Question of Law and Hence Entitled to Be Maintainable. (^6) Tirupati Balaji Developers Pvt. vs State Of Bihar And Ors 2004 Supp(1) SCR 494 (^7) Supreme Court says it has sky-high powers to chase injustice by J. Venkatesan

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5. Where findings are entered without considering relevant materials and without following proper legal procedure, the interference of the Supreme Court is called for.^8 The expression "substantial question of law" is not defined in any legislation. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. A Constitution Bench of the Apex Court, while explaining the import of the said expression, observed that: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.”^9 In the present case, the question of law involved in appeal is regarding Unconstitutionality of Juvenile Justice Act, 2015 and the Act is violative of article 14 and 15 of constitution. The questions raised by the Appellants involve substantial questions of law, as would be shown in the subsequent submissions, and the same requires to be adjudicated by this Hon’ble Court. 6. Hence, the case involves the matter of general public importance and it directly and substantially affects the rights of the parties as the order is erroneous and prejudicial to the interest of the petitioners. It is humbly submitted that substantial and grave injustice has been done to the rights of the petitioner and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. II. WHETHER THE IMPUGNED PROVISIONS [S15 & S18(3)] OF THE JUVENILE JUSTICE ACT, 2015 ARE VIOLATIVE OF THE BASIC STRUCTIRE OF THE CONSTITUTION? (^8) Smt Ujjam Bai vs State Of U.P 1963(1) SCR 778 (^9) Kondiba Dagadu Kadam vs Savitkibai Sopan Gujar An Dors 1999 (2) SCR 728

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7. It is humbly contended before this Hon’ble Court that:-  Section 15 of the JJ Act, 2015 which states that ‘ In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:’ violates the basic structure of the Constitution.^10  Section 18(3) of the JJ Act, 2015 which states that ‘Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.’^11 violates the basic structure of the Constitution. The arguments advanced are two folded: II.1The impugned sections of JJ Act, 2015 violates Article 14 of the Indian Constitution. II.2The impugned sections of JJ Act, 2015 violates Article 15 of the Indian Constitution. 2.1 Whether the impugned sections of the JJ Act, 2015 violates Article 14 of Indian Constitution? 8. Article 14 of the Indian Constitution runs as follows ‘ The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ 12 Article 14 outlaws discrimination in a general way and guarantees equality before law and equal protection of laws to all persons and therefore, constitutes as the basic structure of the Indian Constitution.^13 (^10) Juvenile Justice Act, 2015 (^11) Juvenile Justice Act, 2015 (^12) Indian Constitution Act, 1950 (^13) I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors [(1972) 2 SCC 133]

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9. In 2013, in Salil Bali vs. GOI^14 , the Supreme Court, while upholding the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, 2000 had observed that the Act of 2000 was in tune with the provisions of the Constitution and the various declarations and conventions adopted by the world community represented by the United Nations. Recognising children's vulnerability in the same judgement, the Supreme Court had held that children were amongst the most vulnerable sections in any society. Upholding 18 years as the age of juvenility, it was also observed that the age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioral pattern and that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. 10. The petitioner also observes that in Dr. Subramaniam Swamy & Ors vs, Raju & Other^15 case also, the Supreme Court had observed that there was a considerable body of world opinion that all persons under 18 ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons were concerned. The avowed object was to ensure their rehabilitation in the society and to enable the young offenders to become useful members of the society in later years. Further in order to elaborate the arguments and reasoning in detail, the arguments advanced are three folded: 2.1.1 Equality is the basic structure of the Indian Constitution. 2.1.2 The classification of children in the JJ Act, 2015 is valid under Art. 14. 2.1.3 The classification lacks intelligible differentia. 2.1.1 Whether equality forms the basic structure of the Indian Constitution? 11. Equality is considered as one of the magnificent corner-stones of Indian Democracy.^16 In (^14) Salil Bali vs. Union of India (2013) 7 SCC 705 (^15) Dr. Subramaniam Swamy & Ors vs, Raju & Other (2014) 8 SCC 390 (^16) Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477

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Indra Sawhney II v. Union of India^17 , this Hon’ble Court held that the Indian Constitution is wedded to the concept of equality which is the basic feature of the Constitution. The concept of equality and equal protection of laws guaranteed by Article 14 in its spectrum encompasses social and economic justice in a political democracy.^18 Therefore, the State while making laws should keep in mind that it should follow the basic principle that is enshrined in our Constitution through Art. 14 i.e., any treatment of equals unequally or unequal as equals will be a violation of basic structure of the Constitution of India according to the decision of this Hon’ble Court in Motor General Traders v. State of A.P.^19 This Hon’ble Court has also reiterated several times this principle in several different cases.

12. The State by introducing the JJ Act, 2015 and by allowing the Courts for trial of children of age 16 and above who have committed a heinous offence has disregarded the basic principles enshrined in the Constitution. Art. 14 enunciates that treatment of equals unequally is unconstitutional. The State should treat all children who have committed a heinous offence equally and the children should not be treated as an adult in certain cases. They ought to treat all children subjected to any legislation alike under like circumstances and conditions. 2.1.2 Whether the classification in JJ Act, 2015 is valid under Art. 14? 13. A valid classification is truly a valid discrimination based on a just objective. For a classification to be valid, it must be unarbitrary, rational and reasonably fair in nature. non-discriminatory. In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others^20 the expression ―arbitrarily means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or (^17) Indra Sawhney II v. Union of India, (2000) 1 SCC 168. (^18) Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104 (^19) Motor General Traders v. State of A.P., (1984) 1 SCC 222, 229, 230. (^20) In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979 AIR(SC) 1628 )

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judgment, depending on the will alone.

14. This Hon’ble Court laid out a test for determination of arbitrariness in J.S. Luthra Academy v. State of J&K.^21 Whether an action was arbitrary or not depends upon facts of each case. Tests to determine it are (i) whether there is any discernible principle emerging from impugned act; and (ii) if yes, does it satisfy test of reasonableness. Where a mode is prescribed for performance of an act and there is no impediment in following that procedure, performance of that act otherwise and in manner which does not disclose any discernible principle which is reasonable, may attract arbitrariness. Executive action would not be arbitrary merely because action was not explicitly stated to have been taken for particular reason or based on particular principle which itself is reasonable. It would be open for courts to see whether such reasonable principle is discernible from facts of case. As courts can examine whether executive action is motivated by extraneous reasons so also courts can examine whether executive action led to germane objective by examining surrounding facts leading to that action. 15. It is submitted before this Hon’ble Court that although the State by introducing the provisions for trial of a child as an adult has provided principles, it is arbitrary in nature as it fails to provide valid reasons to implement such actions. The petitioners submit before this Court the downsides of this classification.  The primary objective of the JJ Act, 2015 is to provide a safe and understanding environment for children who are in conflict with law regardless of their age. A child who commits a heinous crime has to be dealt with utmost care and sensitivity as his reasoning and decision-making is highly flawed. He should be provided an environment where rehabilitation could be possible. This impugned act does not provide such opportunities for children to grow. If tried and convicted as an adult, the child would have to go through rigorous imprisonment which could scar him mentally and physically. (^21) J.S. Luthra Academy v. State of J&K, (2018) 18 SCC 65.

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The State could come up with different ways to create a deterrent for other children in the society rather than treating the children in conflict with law under Sec. 15 and Sec 18(3) of the JJ Act, 2015 as an adult.  Further, accurate assessment of mental Capacity is impossible and will inevitably lead to arbitrary transfers. The Bill assumes that an accurate assessment of mental capacity/maturity for the purpose of transfer is possible when this is in fact not true. Latest research shows that individualized assessments of adolescent mental capacity is not possible and the suggestion that it can be done would mean ―exceeding the limits of science. Evaluation of mental capacity is a complex process which cannot be done accurately by the JJB even with the help of experienced psychologists. Such assessments will be fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. When psycho-social maturity or mental capacity cannot be measured or assessed accurately, it will be a travesty of justice if children alleged to be in conflict with the law are transferred to an adult criminal court and ultimately sent to an adult prison based on such a flawed assessment.^22  The most significant flaw is that this provision required JJB to assess whether a child above sixteen years of age who has committed a heinous offence has the physical and mental capability to commit the offence, along with circumstances in which he has committed the offence. In other words, it implies an assumption that the child has already committed the alleged offence. This enquiry in an essence would be a sentencing decision that is arrived at even before the guilt is established. It was emphasized that such an action would denote complete violation of the presumption of innocence, a central tenet of the juvenile justice as well as the criminal justice system. Also, such an arbitrary and irrational procedure clearly contravenes the fundamental guarantees made under Articles 14 of the Constitution.  The petitioners also humbly request this Hon’ble Court to take note that the fact that this (^22) Bonnie & Scott,̳ The Teenage Brain: Adolescent Research and the Law‘, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.

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clause binds Juvenile Justice Board (JJB) to conduct a ‘preliminary enquiry within one month in respect of heinous offences committed by children above 16 years regarding their mental and physical capacity and understanding of consequences, etc. and pass orders including, transferring the child for trial by children’s court or the sessions court in the absence of children’s court. The petitioner would like to point out that considering the fact that large number of innocent children are being involved in crimes, which was evident from the decisions of JJBs across the country, it is impossible to conduct such a complex enquiry within a period of one month. Such a provision will amount to complete denial of fundamental rights, justice, fair and discriminate proceedings and also the negation of basic principles and provisions of Juvenile Justice (Care and Protection) Act, 2015 itself.  Lastly, the petitioner also observes that the clause envisages that the Juvenile Justice Boards shall conduct a preliminary inquiry with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence, with the assistance of experienced psychologists, psycho-social workers and other experts. One can not ignore the fact that there is a severe shortage of competent psychologists, psycho-social workers and other experts and this will adversely affect the quality of inquiry and timely disposal of cases. The petitioners humbly request this Hon’ble Court to deem the impugned sections unreasonable, unfair and thereby, arbitrary. 2.1.3 Whether the classification lacks intelligible differentia?

16. Article 14 forbids class legislation but does not forbid reasonable classification for the Purpose of legislation. It is submitted that the impugned Act seeks to create a fictional classification between the children belonging to age group of 16-18 years on the basis of degree of crime "allegedly" committed by them. The correct position will be that class legislation is permissible if the classification on which it is based is rational and has a nexus with the object sought to be achieved. Mere classification is not enough to get over

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the inhibition of this Article. The classification must be rational. The differentia which is the basis of classification and the subject of the Act are distinct things and what is necessary is that there must be a nexus between them. The legislation is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives that judicial interference becomes necessary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.

17. The Preamble to the JJ Bill, 2014 states that it seeks ―to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established. None of these objectives can be met by sending children alleged and found to be in conflict with the law to̳ places of safety‘ and/or an adult criminal justice system. Transfer will deprive these juveniles not only of protection and treatment and would amount to sentencing them to physical and sexual abuse by adult under-trials and convicts and leaving them with no option but to pursue a career in crime.^23 18. The petitioner would like to draw the attention of this Hon’ble Court to the Salil Bali vs. Union of India^24 where this Court has very aptly observed "There are, of course, exceptions where a child in the age-group of 16 to 18 may have developed criminal propensities, which would make it virtually impossible for him/her to be re-integrated into mainstream society, but such examples are not of such proportions as to warrant any charge in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, 29 rather than to allow them to develop into hardened criminals, which does not augur well for the future." One must not forget that (^23) Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill) (^24) Salil Bali vs. Union of India (2013) 7 SCC 705