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TABLE OF CONTENTS PAGE | I

1 ST^ MNLUA NHRC NATIONAL MOOT COURT COMPETITION 2024

IN THE HON’BLE SUPREME COURT OF SINDHU

IN S.L.P. (CRIMINAL) NO. 3673/ 2023

HERO …PETITIONER

VERSUS

STATE …RESPONDENT

IN S.L.P. (CRIMINAL) NO. 3927/ 2023

RINGO …PETITIONER

VERSUS STATE …RESPONDENT

IN WRIT PETITION (CRIMINAL) NO. 3968/ 2023

RANGENA COMMISSION FOR PROTECTION OF CHILD RIGHTS … PETITIONER

VERSUS UNION OF SINDHU …RESPONDENT

TO,

THE HON’BLE JUDGES OF SUPREME COURT OF SINDHU

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

TC-XX

TABLE OF CONTENTS PAGE | II

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ II

LIST OF ABBREVIATIONS .......................................................................................................... IV

STATEMENT OF JURISDICTION ................................................................................................... VI

STATEMENT OF FACTS ............................................................................................................ VII

ISSUE RAISED ............................................................................................................................ IX

ARGUMENTS ADVANCED ........................................................................................................ - 1 -

I. WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF

JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF ARTICLE 20(3) OF THE CONSTITUTION?- 1

-

1. CCL not compelled to be a witness .................................................................... - 1 - 2. Guidelines prohibiting abuse of CCL ................................................................. - 2 - 3. Safeguard against Confessional Statements ....................................................... - 3 - 4. Need of enacting a provision related to conducting preliminary assessment ..... - 4 - 5. Preliminary Assessment in compliance with International Conventions ........... - 5 - II. WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF THE SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015 .................................................................................................................... - 5 - 1. NCPCR Guidelines for protection of principles enumerated in Section 3 ......... - 6 -

(A) General Principles laid down by NCPCR to by followed while conducting

Preliminary Assessment ..................................................................................... - 6 -

2. Compliance with Principle of Presumption of Innocence .................................. - 7 -

TABLE OF CONTENTS PAGE | III

(A) Preliminary Assessment is not a Trial ................................................ - 7 -

(B) No guilt can be presumed until mental capacity to constitute such guilty

intention is proved. ............................................................................................. - 8 -

3. Compliance with Principle of equality ............................................................... - 8 -

(A) That the Classification made is reasonable ........................................ - 8 -

PRAYER................................................................................................................................. - 10 -

STATEMENT OF JURISDICTION PAGE | IV

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And ¶ Paragraph % Per cent § Section Sec. Section Act Juvenile Justice Act 2015 AIR All India Reporter Art. Article Anr. Another b/w Between Can’t Cannot Ch. Chapter Const. Constitution of Sindhu C.P.C Code of Civil Procedure, 1908 CrPC Code of Criminal Procedure, 1974

STATEMENT OF JURISDICTION PAGE | V

Govt. Government HC High Court Hon'ble Honourable i.e. That is IPC Indian Penal Code J. Justice Ors. Others R.T.E Right to Education r/w Read with SC Supreme Court of India SCC Supreme Court Cases UOI Union of India U/S Under Section v. Versus

STATEMENT OF JURISDICTION PAGE | VI

STATEMENT OF JURISDICTION

The Petitioners in the present matter of Regina Commission for Protection of Child Rights v. Union of Sindhu has approached the Hon’ble Supreme Court under Art. 321 The hon’ble Apex Court has referred the case to a special larger bench under Order VI Rule 2 of Supreme Court Rules 2013^2. The Counsel for Respondent challenges the jurisdiction of Petitioners as Art. 32 is a remedy for individuals and not for Corporations, Commissions and Companies. Moreover the petitioners have not exhausted alternative remedies. The power to grant writs under Art. 32 is a discretionary power vested in the hands of this Hon'ble Court.^3 It is a well settled proposition of law that existence of an alternative adequate remedy is a factor taken into consideration in a writ Petition.^4 The same has been upheld in a plethora of judgments rendered by this Hon'ble Court. In the instant case, the respondent has approached the Hon’ble Apex Court directly under Art. 32 Petition in spite of having an alternative remedy available in Art. 226 of the Constitution. It has been held that since Art. 32 confers “extraordinary” jurisdiction, the same must be used sparingly^5 and in circumstances where no alternate efficacious^6 remedy is available.^7 The present memorial sets forth the facts, contentions, & arguments in the present case. (^1) India Const. art. 32 ., 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 clauses (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. (^2) Order VI., Constitution of Division bench and power of Single Judge.,

2. Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it. (^3) K.D. Sharma v. SAIL, (2008) 12 SCC 481; Dalip Singh v. State of Uttar Pradesh, (2010) 2 SCC 114; Sunil Poddar v. Union Bank of India, (2008) 2 SCC 3262; R. v. Kensington IT Commissioner, (1917) 1 KB 486; Abhudhya Sanstha v. Union of India, (2011) 6 SCC 145. (^4) Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163. (^5) Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726. (^6) Union of India v. Paul Manickam, AIR 2003 SC 4622. (^7) Secretary, Govt. of Indiana v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583

STATEMENT OF FACTS PAGE|VII

STATEMENT OF FACTS

— THE COUNTRY OF SINDHU —

Sindhu is a developing economy in South East Asia. It is signatory to several treaties and conventions, pertaining to human rights. It has recently hosted the G-20 Summit in its capital city, Rangena. The Constitution of Sindhu is the lengthiest constitution in the world. DATE EVENTS 16th Dec 2012 Gang-Rape of 23yr old woman (The Unfortunate Nirbhaya rape Case) 29th Dec 2012 Victim succumbed to death 01st Sept 2015 Enforcement of Juvenile Justice Act 2015 2023 RCPCR’s Petition 2023 Initial Hearing and reference of case to Special larger Bench 28 Dec 2023 Day of Final hearing — BACKDROP OF NEW JUVENILE JUSTICE ACT — On 16th December, 2012, a brutal crime shocked the city of Rengena, when a 23-year-old girl, was beaten, gang-raped, and tortured in a private bus by six persons. She was rushed to Hospital in Rangena for treatment and transferred to Singapore where she succumbed to her injuries The incident generated widespread national and international coverage and was widely condemned. Subsequently, public protests against the state and central governments for failing to provide adequate security for women took place in Rangena. — INCORPORATION OF CHANGES AFTER THE INCIDENCE — In the backdrop of this incident, important changes were brought in the Juvenile Justice System Juvenile Justice Act, 2015 was passes which repealed the earlier act of 2000 and came into force on 01st Sept, 2015, Sec 15 of 2015 created a category of children committing heinous offences within 16-18 age group and provided for the preliminary assessment to ascertain that treatment as adult in Children’s Court or Child in Juvenile Justice Board.

STATEMENT OF FACTS PAGE|VIII

— PETITION OF RAGENA COMMISSION OF CHILD RIGHTS —

Meanwhile, Rangena Commission for Protection of Child Rights, moved Hon‟ble Supreme Court under Article 32 in Writ Petition (Criminal) No. 3968/2023 challenging the vires of Preliminary Assessment‟ under Section 15 of the Juvenile Justice Act, on the ground that the preliminary assessment is more of a tool of extracting confession by the child, and therefore, is antithetical to the right against self-incrimination guaranteed under Article 20(3) of the Constitution of Sindhu. — VERSION OF UNION OF SINDHU — On the request of Court, Solicitor general apprised the court that the need for ‘Preliminary Assessment’ arose after the involvement of 16 years old Juvenile in the brutal gangrape and murder of ‘Nirbhaya’, and that it has been done after due consultation with the different stakeholders including Police, Department of Prosecution, coupled with the recommendations of a Committee formed in the aftermath of Nirbhaya gangrape case. Supreme Court Constituted a special bench for the hearing of the petition and the hearing is due today before this bench.

ISSUES RAISED PAGE |IX

ISSUE RAISED

- Issue I – WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF ARTICLE 20(3) OF THE CONSTITUTION? - Issue II - WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF SECTION 3 OF THE ACT?

ARGUMENTS ADVANCED PAGE | - 1 -

ARGUMENTS ADVANCED

I. WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF

JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF ARTICLE 20(3) OF THE CONSTITUTION?

¶[1]. It is humbly submitted that the preliminary assessment conducted under Section 15 of Juvenile Justice Act, 2015 is not violative of Article 20(3) of the Constitution. The provisions relating to conducting preliminary assessment is completely in consonance with the provisions of Article 20(3) of the Constitution of Sindhu.

1. CCL not compelled to be a witness ¶[2]. It is very humbly submitted that the right against self-incrimination finds its earliest embodiment in the medieval law of the Roman church in the Latin maxim ‘ Nemon tenetur seipsum accusare ’ which means that ‘No man is obliged to accuse himself’. The right gradually evolved in common law through protests against the inquisitorial and manifestly unjust methods of interrogation of accused persons, back in the middles ages in England.^8 The Indian Constitution provides for protection to an accused against self-incrimination under compulsion through Article 20(3) – “No person accused of an offence shall be compelled to be a witness against himself.”^9 ¶[3]. This provision contains the following ingredients: (i) It is a right available to a person “accused of an offence”. (ii) It is a protection against ‘compulsion to be a witness’. (iii) It is a protection against such ‘compulsion' resulting in his giving evidence against himself. ¶[4]. In case of State of Bombay v. Kathikalu Oghad,^10 “it must be shown that the accused was compelled to make statement likely to be incriminative of himself. Compulsion means duress, which includes threatening, beating or imprisonment of wife, parent or child of person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply.” (^8) 180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence, 3, (2002). (^9) The Constitution of India, Art. 20(3). (^10) State of Bombay v. Kathikalu Oghad,

ARGUMENTS ADVANCED PAGE | - 2 - ¶[5]. The cornerstone of the protection against self-incrimination is best stated by the Court in Saunders v. United Kingdom.^11 This case explained that the right lies for the protection of the accused from the improper compulsion of the authorities, thereby contributing to the avoidance of the miscarriages of justice. ¶[6]. Very recently, the Hon'ble Supreme Court of India in Shilpa Mittal v. State of NCT of Delhi and Another^12 , has underlined the importance of such provision and held, “18. The Children's Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr. PC and pass appropriate orders in this regard. The Children's Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child- friendly atmosphere. The Court can also hold that there is no need to try the child as an adult.” ¶[7]. According to Preamble and other provisions of the Juvenile Justice Act, 2015, a child in conflict with law must be treated in a child-friendly manner which is in best interest of the child. Usage of no form of compulsion is expressly provided in any provision of the Act neither in general nor specifically with respect to Preliminary Assessment.

2. Guidelines prohibiting abuse of CCL ¶[8]. It is humbly stated before the Hon'ble Supreme Court that this Hon’ble Court has passed a Judgment dated 13.07.2022 in Barun Chandra Thakur v/s Master Bholu & Anr.^13 while examining the proceedings arising out of preliminary assessment made under Section 15 of the Juvenile Justice (Care and Protection of Children) Act (JJ Act), 2015. The Hon’ble Court indicated that the task of preliminary assessment under Section 15 of the JJ Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of the case. The Central Government, NCPCR and SCPCRs have been directed by the Hon’ble Court to consider formulating guidelines for the procedure to be adopted by the authorities while conducting the assessment under Section 15 of the JJ Act, 2015. ¶[9]. In view of the Hon’ble Supreme Court’s directions, the National Commission for Protection of Child Rights (NCPCR) has framed guidelines describing the key procedures that will enable the Juvenile Justice Board (JJB) to conduct the preliminary assessment in consonance with the guiding principles and other provisions of the Act. (^11) Saunders v. United Kingdom, (19187/91) [1997] B.C.C. 872. (^12) Shilpa Mittal v. State of NCT of Delhi and Another, AIR 2020 SC 40. (^13) Barun Chandra Thakur v/s Master Bholu & Anr., Crl. Appeal No. 950/2022.

ARGUMENTS ADVANCED PAGE | - 3 - “ Principle of safety : All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.”

3. Safeguard against Confessional Statements ¶[10]. While stating the aim of preliminary assessment, NCPCR mentioned it its report that, “Aim of the preliminary assessment is not to seek confession from the child nor to reach at a conclusion of any sort.” “Any confessional statement from SIR must not be taken into consideration while conducting preliminary assessment.”^14 ¶[11]. Moreover, any incriminating statement if made by the child in conflict with law, shall not be used against himself. “The final report should not include any kind of statement or document that could be incriminating in nature.”^15 ¶[12]. Principles required to be followed by the preliminary assessment is being conducted includes a principle of privacy and confidentiality of information given by child in conflict with law. “ Principle of right to privacy and confidentiality : Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.”^16 ¶[13]. Even the guidelines given by Delhi Commission for Protection of child Rights dispelled the myth around the preliminary assessment^17 , “ 5.1 Preliminary Assessment is Not A Tool or Process to Extract Confession: Preliminary assessment is neither meant to seek confession from the child nor to reach a conclusion with respect to the guilt of the child regardless of the information the child may or may not have supplied as part of the Social Investigation Report or any other interaction. This means a complete prohibition on reliance of any material, in any format whatsoever, consciously or (^14) Child in Conflict with Law v. State of Gujarat, 2023 SCC OnLine Guj 3119. (^15) Guidelines by National Commission for Protection of child rights, 2023, https://ncpcr.gov.in/uploads/16813797786437d1c2bea2a_guidelines-for-conducting-preliminary-assessment.pdf (^16) Id. (^17) Guidelines by Delhi Commission for Protection of Child Rights, 2023, https://dcpcr.delhi.gov.in/sites/default/files/DCPCR/marquee-files/draft_guidlines.pdf

ARGUMENTS ADVANCED PAGE | - 4 - inadvertently is placed before the Juvenile Justice Board. The same has been observed by the High Court of Delhi in order dated 19 September 2022 passed in Vikas Sangwan vs State .”^18 Therefore, the preliminary assessment in no way means to seek out confession or compel the child in conflict with law to be a witness against himself.

4. Need of enacting a provision related to conducting preliminary assessment ¶[14]. The highest Court of the land, in an order passed on 6th April, 2015 in Gaurav Kumar v. State of Haryana^19 in recognition of the fact that the rate of crime in which the juveniles and the nature of crime in which they are involved have increased, has explicitly remarked that: “Time has come to think of an effective law to deal with the situation, we would request the learned Attorney General to bring it to the notice of the concerned authorities so that the relevant provisions under the Act can be re-looked, re-scrutinized and re-visited, at least in respect of offences which are heinous in nature .” ¶[15]. The Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter JJ Act, 2015), as passed by Parliament, received the assent of the President of India, on December 13, 2015 and is applicable to the whole of India. The gruesome rape in the Nirbhaya case, where one of the offenders was 17 years old, just 3 months short from attaining majority, fueled the concern that the Juvenile Justice Act, 2000 was ill-equipped to deal with this new breed of delinquents, the so-called juvenile super predators.^20 ¶[16]. This data provides for cases of juveniles in conflict with law reported under various SLL (Special and Local laws) crimes have increased by 21.8% in 2014 as compared to 2013, as 4,136 cases of juveniles in conflict with law under SLL reported in 2013 which increased to 5,039 cases in 2014.^21 ¶[17]. Thus, the Parliament brought in the JJ Act, 2015 to make it easier to prosecute juveniles as adults. Under the existing framework, a child between the age of 16-18 years, alleged to have committed a heinous offence, may be transferred to an adult criminal court, known as children's court, to be tried as an adult. Section 15 of the JJ Act, 2015 is the most contentious provision, mandating the Juvenile Justice Board (hereinafter referred to as JJB) to transfer cases involving a child between 16-18 years, alleged to have committed a heinous offence, to a children's court. (^18) Vikas Sangwan vs State, CRL. REV.P. 696/2018. (^19) Gaurav Kumar v. State of Haryana, (2015) 4 SCALE 531. (^20) Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August,

(^21) Chapter – 10 Juvenile in conflict with law See at http://ncrb.nic.in/.

ARGUMENTS ADVANCED PAGE | - 5 - This decision is to be made by the Board on the basis of a preliminary assessment conducted to examine the child's capacity to commit such an offence.

5. Preliminary Assessment in compliance with International Conventions ¶[18]. Chapter II ‘General Principles of Care and Protection of Children’ is the most noteworthy characteristic of the Act, providing for ‘Care, Protection, Rehabilitation and Justice for Children’.^22 It incorporates internationally accepted principles of presumption of innocence, dignity and worth, family responsibility, non-stigmatizing semantics, privacy and confidentiality, repatriation and restoration, equality and non-discrimination, and diversion and natural justice, among others. ¶[19]. The best interests of the child as required under Article 3 of UNCRC^23 have been taken care of by incorporating §§ 19(1), 19(3) and 20 in the JJ Act, 2015. Moreover, even if he is tried as an adult, he can be sentenced to a maximum of life imprisonment with possibility of release as mentioned in § 21 of the new act which is in consonance with UNCRC. The principles relating to juvenile justice system have been incorporated in § 3 (Chapter II) of the new act. Thus, the new act is being supported by UNCRC. ¶[20]. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), take into account penological objectives in addition to rehabilitation of the offender. In Rule 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted: (a) The reaction shall always be proportional to not only the circumstances and the gravity of the offence, but also to the circumstances and needs of the juvenile as well as to the needs of society. II. WHETHER THE PRELIMINARY ASSESSMENT CONDUCTED UNDER SECTION 15 OF JUVENILE JUSTICE ACT, 2015 VIOLATIVE OF THE SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015 ¶[21]. It is very humbly submitted before this hon’ble Court that the Preliminary Assessment conducted under Section 15 of the Juvenile Justice Act, 2015 is not violative of the provisions of Section 3 of Act. (^22) “Towards a comprehensive Juvenile Justice law” The Hindu 14th July 2014. (^23) General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)

ARGUMENTS ADVANCED PAGE | - 6 -

1. NCPCR Guidelines for protection of principles enumerated in Section 3 ¶[22]. It is humbly stated before the Hon'ble Supreme Court that this Hon’ble Court has passed a Judgment dated 13.07.2022 in Barun Chandra Thakur v/s Master Bholu & Anr.^24 wherein it indicated that the task of preliminary assessment under Section 15 of the JJ Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of the case. The Central Government, NCPCR and SCPCRs have been directed by the Hon’ble Court to consider formulating guidelines for the procedure to be adopted by the authorities while conducting the assessment under Section 15 of the JJ Act, 2015. ¶[23]. In view of the Hon’ble Supreme Court’s directions, the National Commission for Protection of Child Rights (NCPCR) has framed guidelines describing the key procedures that will enable the Juvenile Justice Board (JJB) to conduct the preliminary assessment in consonance with the guiding principles and other provisions of the Act.

(A) General Principles laid down by NCPCR to by followed while conducting Preliminary

Assessment ¶[24]. Though the JJB and other experts are guided by all the fundamental principles of care and protection of children, following are the key principles to be abided by- ▪ Principle of presumption of innocence : Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. ▪ Principle of participation : Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child. ▪ Principle of best interest : All decisionsregarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. ▪ Principle of safety : All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter. ▪ Principle of non-stigmatising semantics : Adversarial or accusatory words are not to be used in the processes pertaining to a child. (^24) Barun Chandra Thakur v/s Master Bholu & Anr., Crl. Appeal No. 950/2022.

ARGUMENTS ADVANCED PAGE | - 7 - ▪ Principle of right to privacy and confidentiality : Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process. ▪ Principles of natural justice : Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act. ¶[25]. Therefore, certain guidelines are laid down to be followed while conducting the preliminary Assessment which are laid down in adherence to Section 3 of the Act and therefore, the provisions of these two sections remains in consonance.

2. Compliance with Principle of Presumption of Innocence ¶[26]. It is very humbly submitted that the provisions of Section 15 pertaining to conducting preliminary assessment is not violative of the principle of presumption of innocence. ¶[27]. The JJB is required to conduct a preliminary assessment in cases of children aged 16 or above and below 18 years, alleged to have committed a heinous offence to determine whether they should be transferred to a Children’s Court to be tried as an adult.^25 For this purpose, the JJB should assess the child’s mental and physical capacity to commit the offence, the child’s ability to understand the consequences of the offence, and the circumstances in which the offence was allegedly committed.^26 The criteria set forth for the assessment of whether the child in conflict with law shall be tried as an adult or not does not raise any presumption as to the guilty intention of the child.

(A) Preliminary Assessment is not a Trial

¶[28]. The explanation to section 15 says that, “Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.” Since the said assessment is merely an inquiry and not a trial, the principle of presumption of innocence remains unaffected. ¶[29]. The Supreme Court in Shilpa Mittal v. State of NCT of Delhi ,^27 it was held by the hon’ble Court that (^25) Section 15(1), Juvenile Justice Act, 2015. (^26) Id. (^27) Shilpa Mittal v. State of NCT of Delhi, Criminal Appeal No. 34 of 2020.

ARGUMENTS ADVANCED PAGE | - 8 - “The explanantion makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child and understand the consequences of the offence.”

(B) No guilt can be presumed until mental capacity to constitute such guilty intention is

proved. ¶[30]. The guidelines by Delhi Commission for protection of child rights lays down that, “It must be noted that since it is not a trial, few principles immediately emerge. They are: a. The Preliminary Assessment cannot be a tool to make comments, or draw conclusions or inference about the merits of the case or the guilt of the child.” ¶[31]. During preliminary assessment, no presumption of guilt is formed in relation to accused. It merely means to check the mental capacity to form the guilty intention and no such guilty intention can be presumed until and unless the mental capacity to constitute such guilty intention is presumed. ¶[32]. A person can be presumed to have committed an offence only if he has the mental and physical capability or he knows the consequences of such offence. However, in absence of any proof related to the capacity which is to be assessed at the stage of preliminary assessment, the presumption of innocence cannot be violated.

3. Compliance with Principle of equality ¶[33]. It is very humbly submitted that the provision relating to preliminary assessment is completely in consonance with the principle of equality enumerated in Section 3 and Article 14 of the Constitution of Sindhu.

(A) That the Classification made is reasonable

¶[34]. It is submitted that the constitutionality of the legislative and executive acts should be tested on the anvil of constitutionalism and the ingrained principles.^28 ¶[35]. The most distinguishing provision of the JJ Act, 2014 is the classification that has been created as provided in Section 14(5)(f),of the Act which categorizes children in the age group of 16-18 who have been alleged for the commission of a heinous offence, shall undergo a preliminary assessment with respect to their physical and mental capacity. (^28) DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Pvt. Ltd., New Delhi 2008).

ARGUMENTS ADVANCED PAGE | - 9 - ¶[36]. This classification stands the test of Reasonable Classification as laid down in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others ,^29 by a Constitution Bench that, in order, to pass the test of permissible classification two conditions must be fulfilled, filled namely, (i) that the classification must be founded on an intelligible differentia, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. ¶[37]. Intelligible Differentia : It is submitted that categorizing all Juveniles in only one category, irrespective of the commission of offence they had committed, resulted in overclassification. Unequals were treated equally because there was no distinction between juveniles who committed petty offences and who committed heinous offences. ¶[38]. This principle has been recently reiterated by the Supreme Court in M.G. Badappanavar v. State of Karnataka ,^30 by stating, “Equality is a basic feature of the Constitution of India and any treatment of equals unequally or unequals as equals will be violation of basic structure of the Constitution of India.” ¶[39]. The data by NCRB supports the differentiation. 872 juveniles were apprehended in the age-group of below 12 years, 11,220 juveniles were apprehended in the age-group of 12- 16 years during 2014 whereas majority of juveniles apprehended (36,138) were under the age- group of 16-18 years. The percentage shares of Juveniles apprehended under these age-groups were 1.8%, 23.3% and 74.9% respectively.^31 (^29) Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, AIR 1958 SC 538. (^30) M.G. Badappanavar v. State of Karnataka , AIR 2001 SC 260. (^31) The details have been presented in Table 10.4 at http://ncrb.nic.in/.

ARGUMENTS ADVANCED PAGE | - 10 -

PRAYER

IN LIGHT OF THE FACTS OF THE INSTANT CASE, ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENTS HUMBLY PRAYS BEFORE THIS HON’BLE

COURT TO KINDLY ADJUDGE THAT-

I. The Preliminary Assessment conducted under Section 15 of the Juvenile Justice Act, 2015 is not violative of Article 20(3) of the Constitution. II. The Preliminary Assessment conducted under Section 15 of the Juvenile Justice Act, 2015 is not violative of Section 3 of the Act. III. The petition is bereft of merit and liable to be set aside. Or ANY OTHER RELIEF THAT THE HON’BLE COURT MAY BE PLEASED TO GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS ACT OF KINDNESS THE COUNSEL SHALL DUTY BOUND FOREVER PRAY. All of which is humbly and most respectfully submitted. Sd/-________ Counsels on the behalf of Respondents.