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Download Written Submissions of National Moot Court Competition and more Study Guides, Projects, Research Mock Trial and Moot Court in PDF only on Docsity! 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS TABLE OF CONTENTS PAGE |I 1ST 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 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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 - 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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 20132. 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 sparingly5 and in circumstances where no alternate efficacious6 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. 5Avinash 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 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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. 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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, 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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 Another12, 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. 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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 assessment17, “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 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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. 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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. 1ST MNLUA NHRC NATIONAL MOOT COURT COMPETITION MEMORIAL FOR RESPONDENTS 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).