35TH BAR COUNCIL OF INDIA TRUST INTER UNIVERSITY MOOT COURT COMPETITION, 2019

TEAM CODE- TC:

NEF LAW COLLEGE MOOT COURT, 2023

IN THE HON’BLE SUPREME COURT OF INDIA

CIVIL ORIGINAL WRIT JURISDICTION

UNDER ARTICLE 32 OF CONSTITUTION OF INDIA
W.P. No. _____ OF 2023

IN THE MATTER OF

RAMAN ADHURI…………………………………………………………………..PETITIONER
v.
UNION OF INDIA……………………………………………………………..….RESPONDENT

WITH

NCT OF DELHI ASSOCIATION OF PRIVACY RIGHTS……………………...PETITIONER

v.
UNION OF INDIA……………………………………………………………..….RESPONDENT

UPON SUBMISSION TO THE HON'BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES IN THE SUPREME COURT OF PINDIANA

WRITTEN SUBMISSION OF BEHALF OF THE PETITIONER

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MEMORANDUM ON BEHALF OF THE PETITIONER
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS................................................................................................... iii

INDEX OF AUTHORITIES...........................................................................................................v

STATEMENT OF JURISDICTION ........................................................................................... viii

STATEMENT OF FACTS ........................................................................................................... ix

STATEMENT OF ISSUES .......................................................................................................... xi

SUMMARY OF ARGUMENTS ................................................................................................. xii

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

1. THAT THE INSTANT WRIT PETITION IS MAINTAINABLE BEFORE THE COURT.1

[1.1] the writ petition filed by Raman is maintainable before the Hon’ble Supreme Court. ..........1

[1.1.1] it falls under Original Jurisdiction of the court. .............................................................1

[1.1.2] Petitioner has Locus Standi. .........................................................................................1

[1.2] PIL Filed by APR is maintainable. ......................................................................................1

[1.2.1] Locus standi is not required. .........................................................................................2

[1.2.2] it is the matter of general Public Importance .................................................................2

2. THE PROVISIONS OF IPC, POCSO AND JUVENILE JUSTICE ACT VIOLATES THE
FUNDAMENTAL RIGHTS OF THE PETITIONER ................................................................2

2.1. That section 376 of the IPC violates the fundamental rights of the petitioner ........................2

2.2. POCSO violates the fundamental rights of the petitioner ......................................................3

2.3. Juvenile Justice Act violates the fundamental rights of the petitioner ....................................3

3. THE CRIMINAL LAW (AMENDMENT) ACT OF 2018 IS UNCONSTITUTIONAL. ......4

3.1. It is violation of fundamental rights ......................................................................................4

3.1.1. Violation of article 21 of the constitution of India ..........................................................4

3.1.2. Violation of article 14 read with article 19(1) (a) of the Constitution of India .................4

3.2. Competency of Parliament and state legislature to dictate sexual preference is archaic in
nature..........................................................................................................................................5

PRAYER .................................................................................................................................... xiii

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 TABLE OF ABBREVIATIONS

List of abbreviations Explanations

& And
¶ Paragraph
AIR All India Review
Anr Another
Bom Bombay
Civ Civil
Co. Company
CrPC Code of Criminal Procedure
Deh Dehradun
Del Delhi
Edn. Edition
HC High Court
Ibid Ibidem
IPC Indian Penal Code
JJ Juvenile Justice
JT Judgment Today
Ker Kerala
Ltd. Limited
LW Law Review
Mad. Madras
Mfg. Manufacturer
NCT National Capital Territory
No. Number
POCSO Protection of children from sexual offences
SC Supreme Court
SCC Supreme Court Cases

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 SCR Supreme Court Review
Sec. Section
v. Versus
Vol. Volume
WLR Weekly Law Reports

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 INDEX OF AUTHORITIES

SUPREME COURT CASES

S. PAGE
NAME OF THE CASE CITATION PARAGRAPH
NO. NO.
Assam Sanmilitha Mahasangha v. Union of
1 (2015) 3 SCC 1 ¶1 1
India

2 Bandhua Mukti Morcha v. Union of India 1984 AIR 802 ¶15 4

3 Banwasi Seva Ashram v. State of U.P AIR 1987 SC 374 ¶9 2

4 Bodhisattwa v. Subhra Chakraborty AIR 1996 SC 922 ¶1 1

Canadian Foundation for Children v. 2004 SCC OnLine
5 ¶11 3
Attorney General Can SC 4
Common Cause, a Registered Society v. AIR 1999 SC
6 ¶1 1
Union of India 3020
David MalmoLevine v. Her Majesty The 2003 SCC OnLine
7 ¶11 3
Queen Can SC
Federation of Bar Association in Karnataka AIR 2000 SC
8 ¶1 1
v. Union of India 2544

9 G.C. College, Silchar v. Gauhati University AIR 1973 SC 761 ¶2 1

Guruvayoor Devaswom Managing
10 (2003) 7 SCC 546 ¶8 2
Committee v. C.K. Rajan

11 Janta Dal v. H.A. Chowdhary, (1992) 4 SCC 305 ¶2 1

12 Jjanata Dal v. H. S. Chowdhary (1991) SCC 756 ¶9 2

13 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 ¶8 3

AIR 1963 SC
14 Kharak Singh v. State of Uttar Pradesh ¶15 4
1295

15 Linga Vijay Kumar v. Public Prosecutor (1978) 4 SCC 196 ¶9 3

16 Navtej Singh Johar v. Union of India (2018) 10 SCC 1 ¶8 3

Olga Tellis and others v. Bombay Municipal 1985] 2 Supp SCR
17 ¶14 4
Corporation and others 51

18 Ramensh Thappar v. State of Madras AIR 1950 SC 124 ¶1 1

[1993] 3 S.C.R.
19 Rodriguez v. British Columbia ¶11 3
519

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
20 S.P. Gupta v. Union of India (1981) SCC 87 ¶9 2

21 Satpal Singh v. state of Haryana (2010) 8 SCC 714 ¶13 4

AIR 1980 SC
22 Sinha v. S. Lal & Co. ¶2 1
2720

23 State of M.P. v. Sanjay Kumar Pathak (2008) 1 SCC 305 ¶2 1

24 Subramanium Swamy v. Union of India (2016) 7 SCC 221 ¶15 4

AIR 1978 SC
25 Sunil Batra v. Delhi Administration ¶15 4
1675

HIGH COURT CASES

S. NAME OF THE CASE CITATION PARAGRAPH PAGE

NO. NO.
1. Prasar Bharti Broadcasting Corpn. of AIR 2000 Cal 43 ¶2 1
India v. Debajyoti Bose

BOOKS

SL. NO. NAME OF THE BOOK

1 B.R. Verma, Commentaries on Mohammadean Law (12 th ed., 2012)
2 D.D Basu, Commentary on the Constitution of India (9th ed.,
2014)
3 Jagadish Swaroop, constitution of India (2nd ed, vol. 2, 2007)
4 Ratanlal and Dhirajlal, The Indian Penal Code, (33rd ed., 2016)
5 S. P. Malik, A Complete Guide to Protection of Children from Sexual
Offences Act (POCSO) (1st ed., 2016)
6 Samaraditya Pal, India's constitution, origin and evolution (vol. 6, 2016).
7 Suman Nalwa, Commetary on The Juvenile Justice Act (2 nd ed., 2016)

TABLE OF STATUTES
Code of Criminal Procedure, 1973
Constitution of India, 1950
Criminal Law (Amendment) Act, 2013
Criminal Law (Amendment) Act, 2018
Indian Penal Code, 1860

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 Juvenile Justice Care and Protection Act, 2015
Protection of Children from Sexual Offences Act, 2012

INTERNATIONAL INSTRUMENT

United Nations Convention on the Rights of the Child, 1989

Guidance Note of the Secretary-General: UN Approach to Justice for
Children
Guidelines for Action on Children in the Criminal Justice System,
ECOSOC Res. No. 1997/30
IAYFJM Guidelines for Action on Children in the Criminal Justice
System, 2016
Optional Protocol to the Convention on the Right of the Child on the
involvement of Children in armed conflict, 2000
United Nations Guideline on Justice in Matters Involving Child Victims
and Witnesses of Crime ECOSOC Res. No. 2005/20
United Nations Guidelines for the Prevention of Juvenile Delinquency
(Riyadh Rules) UN GA Res. No. A/RES/45/112 of 1990
United Nations rules for Protection of Juveniles deprived of their liberty
(Havana Rules), UN GA Res. No. 45/113 of 1990
United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (“The Beijing Rules”), UN GA Res No. 40/33 of 1985

WEB SOURCES

www.jstor.org (J stor)
www.scconline.com (SCC Online)
www.manupatrafast.com (Manupatra)
www.westlaw.com (West Law)

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 STATEMENT OF JURISDICTION
The petitioner has approached the Hon’ble Supreme Court of India. The writ petition is filed under
Article 32 of the Constitution of India.

Article 32 of the Constitution of India deals with the power to move and appeal to Supreme Court of
India and the remedies rendered by this Article. 1

Article 32 reads hereunder-

(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 the 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 the Rights conferred by
this part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).

(4) The right guaranteed by this Article shall not be suspended except as otherwise
provided for by this Constitution.

1
The laws and customs are Pari Materia with that of India.

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 STATEMENT OF FACTS
BACKGROUND

¶1. Raman Adhuri was a promising student of class 11 and Susan Sebastian was in Grade 12 of St.
Andrews Higher Secondary School.

¶2. His friends considered it but natural that Raman and Susan fell in love with each other. Susan
proposed Raman on the eve of an unofficial school party on Valentine’s Day

¶3. As this incident became a talk of the school, the Principal intimated their parents about the
incident and warned that it can be distractions from studies.

¶4.Thereafter the parents imposed restrictions on both of them and did not allow them to meet outside
the school.

INCIDENCE
¶5. At the School Annual Debate Susan told that she cannot live without him and they were being
unreasonable and were also emotionally blackmailing her by saying that they would commit suicide
if she speaks to him. She suggested that they get away from all these people and get married at the
earliest, so that they can never be separated.

¶6. Raman tried to reason with Susan, but eventually on Susan’s insistence agreed to her proposal.
They wrote a letter informing their parents that they have decided to live together and also pleading
them not to search for them, and dropped it in their respective mail boxes, before boarding a train to
the south.

THE PRESENT CASE

¶7. After eight long months of panic search that the parents found Raman and Susan living in Chennai
with the help of police. Susan’s parents, on finding that she was pregnant, filed an FIR with Delhi
Police alleging Raman of rape on their minor daughter. The FIR was registered and Raman was
charged of rape, as Susan was 17 years and 4 months old at that time

¶8. As Raman was 16 years and 8 months old, he was sent to a juvenile home. The Juvenile Justice
Board after preliminary assessment under Section 15 of the Juvenile Justice (Care and Protection 18
of Children Act) 2015 found that Raman knowingly had had sexual intercourse with Susan and hence
passed an order under Section 18(3) of the Act that Raman need to be tried as an adult and transferred
the case for trial before the Children’s Court.

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
¶9. During the investigation Susan affirmed and reaffirmed that she was the one who forced Raman
to run away from home and live with her and also expressed her wish to live with Raman.

¶10. Raman was charged for committing rape under S.376 of IPC and for committing ‘penetrative
sexual assault’ under S.3 of Prevention of Children from Sexual Offences Act, 2012.

¶11. Raman filed a writ petition before the Supreme Court challenging the relevant provisions of
IPC, POCSO and JJ Act as violative of his fundamental rights. Meanwhile the Association for
Privacy Rights (APR), a public spirited NGO also filed writ petition.

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 STATEMENT OF ISSUES

ISSUE 1:
WHETHER THE INSTANT WRIT PETITION IS MAINTAINABLE IN THE SUPREME COURT
OF INDIA?

ISSUE 2:
WHETHER THE SAID PROVISION OF IPC, POCSO AND JJ ACT IS VIOLATIVE OF
FUNDAMENTAL RIGHTS?

ISSUE 3:
WHETHER THE CRIMINAL LAW (AMENDMENT) ACT IS VIOLATIVE OF
FUNDAMENTAL RIGHTS?

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 SUMMARY OF ARGUMENTS
1. THE INSTANT WRIT PETITION IS MAINTAINABLE IN THE SUPREME COURT OF
INDIA.
It is respectfully sheweth before the court that the instant writ petition is maintainable before the
Hon’ble Supreme Court of India because of: firstly, there is violation of fundamental rights and
secondly, the petitioner has the locus standi and thirdly because it falls under original jurisdiction.

2. THE SAID PROVISION OF IPC, POCSO AND JJ ACT IS NOT VIOLATIVE OF

FUNDAMENTAL RIGHTS.
It is most humbly sheweth before the Hon’ble Court that the provisions of IPC, POCSO and Juvenile
Justice Act violates the fundamental rights of the petitioner. The penalization of any form of
consensual penetrative sexual interaction is a gross violation of the fundamentals rights of the
teenagers of the age group 16-18 as there is no reasonable classification for this discrimination, and
it directly violates Article 14 and Article 21 of the Constitution of India.

3. THE RELEVANT PROVISIONS OF CRIMINAL LAW (AMENDMENT) ACT IS NOT

VIOLATIVE OF FUNDAMENTAL RIGHTS.

It is humbly sheweth before the Hon’ble Supreme Court of India that punishments imposed for
consensual sexual intercourse is violative of article 14 and consent made irrelevant in charges of
rape, consensual sexual intercourse between adolescents is unreasonably penalized and therefore
violates right to life and personal liberty of adolescents aged less than 18 years. Secondly, it is outside
the domain of the legislature to dictate sexual preference.

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 ARGUMENTS ADVANCED
1. THAT THE INSTANT WRIT PETITION IS MAINTAINABLE BEFORE THE COURT.
It is most respectfully submitted before this Hon’ble Supreme Court that the instant petition is
maintainable. Firstly, the writ petition of Raman is maintainable, secondly, the PIL filed by APR is
also maintainable
[1.1] the writ petition filed by Raman is maintainable before the Hon’ble Supreme Court.
It is most respectfully sheweth before this Hon’ble Court that the instant writ petition filed by the
petitioner is maintainable
[1.1.1] it falls under Original Jurisdiction of the court.
¶1. It is most respectfully submitted before this court that Art. 32 can be used for an action in the
Supreme Court for the infringement of a fundamental right 2. Art. 32 of the constitution which has been
described as the “heart and soul” of the constitution guarantees the right to move to the Supreme Court
for the enforcement of all or any of the fundamental rights conferred by part III of the constitution 3.
The Hon’ble Supreme Court while giving importance to the fundamental rights of persons and binds
itself by a duty to protect those rights has set a new benchmark. The court held that it is protector and
guarantor if the fundamental rights, and it cannot consistently with the responsibility so laid upon it,
refuse to entertain applications seeking protection against infringement of such rights 4. The purpose
for which Art. 32 can be invoked is to enforce Fundamental Rights. Violation of a fundamental rights
is Sine qua non of the exercise of the right conferred by Art. 325.
[1.1.2] Petitioner has Locus Standi.
¶2. It is also submitted before this Hon’ble Court that the violation of abovementioned fundamental
rights gives the locus standi to the petitioner, which is the prior condition of the writ petition 6. But
Hon’ble Supreme Court in various cases held that any person having sufficient interest or when the
law permits him to do so can maintain an action for judicial redress for public injury 7. Hence, Raman
whose fundamental rights are violated and therefore have locus standi to file the writ.
[1.2] PIL Filed by APR is maintainable.
¶3. It is humbly sheweth before this Hon’ble court that the PIL filed by the petitioner is maintainable
before this Hon’ble court firstly, because the locus standi is not required and secondly, it is the issue
of general Public Importance.

2
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922; Common Cause, a Registered Society v. Union of India AIR
1999 SC 3020
3
Assam Sanmilitha Mahasangha v. Union of India (2015) 3 SCC 1: AIR 2015 SC 783
4
Ramensh Thappar v. State of Madras AIR 1950 SC 124
5
Federation of Bar Association in Karnataka v. Union of India AIR 2000 SC 2544
6
Janta Dal v. H.A. Chowdhary, (1992) 4 SCC 305; see also: State of M.P. v. Sanjay Kumar Pathak (2008) 1 SCC 305;
Prasar Bharti Broadcasting Corpn. of India v. Debajyoti Bose AIR 2000 Cal 43
7
G.C. College, Silchar v. Gauhati University, AIR 1973 SC 761, Sinha v. S. Lal & Co. AIR 1980 SC 2720

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 [1.2.1] Locus standi is not required.
¶4. It is respectfully submitted that the petitioner does not require the locus standi in the present matter.
The PIL discards the traditional concept of Locus Standi which means that only the person whose legal
rights are being violated can approach the court for redress.8 Any member of public having sufficient
interest can maintain an action for judicial redress for public injury and seek enforcement of such
public duty and observance of such constitutional or legal provision. 9
[1.2.2] it is the matter of general Public Importance
¶5. It is humbly submitted that according to the Supreme Court guidelines 10, the PIL can be file in the
matters of public importance. The instant issue is the matter of public importance as it involves the
interference with the independence of judiciary which is the basic feature of constitution. The court in
furtherance of public interest may consider it necessary to inquire into the state of affairs of the subject
matter of legislation in the interest of justice, if the rights and interests are to be protected.11
ISSUE 2: THE PROVISIONS OF IPC, POCSO AND JUVENILE JUSTICE ACT VIOLATES
THE FUNDAMENTAL RIGHTS OF THE PETITIONER
¶6. It is most humbly sheweth before the Hon’ble Court that the provisions of IPC, POCSO and
Juvenile Justice Act violates the fundamental rights of the petitioner. The penalization of any form of
consensual penetrative sexual interaction is a gross violation of the fundamentals rights of the
teenagers of the age group 16-18 as there is no reasonable classification for this discrimination, and it
directly violates Article 14 and Article 21 of the Constitution of India 12.
2.1. That section 376 of the IPC violates the fundamental rights of the petitioner
¶7. It is humbly submitted that section.376 of IPC has failed to take into consideration the prevailing
societal trend of increasing number of teenagers indulged in sexual activities. It is also to be noted
that, biologically 16-18 are the ages when adolescents undergo many hormonal changes, so in any
case where there is a fallout between a couple and the girl accuses her partner of rape, the minor boy
would be left with no legal recourse at all. The act has criminalized a phenomenon which could be
very aptly described as being an essential part of ‘growing up’ 13

8
Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546.
9
S.P. Gupta v. Union of India, (1981) SCC 87, Jjanata Dal v. H. S. Chowdhary, (1991) SCC 756; Banwasi Seva
Ashram v. State of U.P., AIR 1987 SC 374.
10
Available at <https://www.sci.gov.in/pdf/Guidelines/pilguidelines.pdf> accessed on 10 April 2019
11
Centre for PIL v. Union of India, AIR 2001 SC 80.
12
Chitwan Deep Singh, The Protection of Children From the Sexual Offences Act, 2012: A Critique of the Decision to
raise the age of consent for Sexual Relation, 2 JILS (2011-12) 286
13
Bharat Ali, Age of Consent Catastrophe, The Tribune available at
<http://www.tribuneindia.com/2012/20120521/edit.htm#6> accessed on 11 April 2018

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 2.2. POCSO violates the fundamental rights of the petitioner
¶8. It is most humbly submitted before this Hon’ble court that the POCSO Act, 2012 has overlooked
the trend of increasing number of sexual activities amongst teenagers. The chairperson of National
Commission for Protection of Child Rights quoted as “there are high chances of the act being misused.
Youngsters who are of the age 16 or 17 tend to explore and enter into sexual relationships. They could
end up being criminalized.” In fact, sociologists and psychiatrists have stressed that we cannot afford
to ignore that many youngsters under the age of 18 do engage in sexual activity. In K.S. Puttaswamy
v. Union of India14the Supreme Court held in particular, that the right of every citizen of India to live
with dignity as the right to privacy including the right to make intimate choices regarding the manner
in which such individual wishes to live being protected by Article 14, 19 and 21
2.3. Juvenile Justice Act violates the fundamental rights of the petitioner
¶9. The Juvenile Justice Act, 2015 had solely focused on the fact that the issue of consent becomes
wholly irrelevant once a child has been declared as being under the age of 1815. The provisions also
failed to note the provisions of Article 5 of the United Nations Convention on the Rights of Children,
1990, which requires the states to notice the crucial aspect of child’s evolving capacities16. In Lingala
Vijay Kumar and Others v. Public Prosecutor17the apex court in determining the principle of ‘the ends
of justice’ held that, the specific reasons assigned by the sessions Court must be countered by clear
ratiocination and then the Supreme Court shall keep itself out.
¶10. In contrary to this, when a 16-year old commits an offence, the Juvenile Justice Board is to decide
the physical and mental capacity of the child to commit the offence as well as his ability to understand
the consequences of the offence, this is a very subjective process which creates scope for an enormous
amount of arbitrariness as because individual assessment of adolescent mental capacity is not possible.
Hence, the preliminary arbitrariness violates Article 14 and 21, which goes against the very basis of
the Constitution.
¶11. It is most humbly submitted that “best interest of the child 18” is a legal principle which must fulfill
three essential criteria of the “fundamental principles of justice 19”. Any act or legislation in contrast
with the legal principle and “vague generalizations about what our society considers to be ethical or
moral20” cannot be enough justifiable to convict an innocent child.

14
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; see also Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
15
Kieran Walsh, The Sexual Rights of Children and the Age of Consent, http://www.inter-disciplinary.net/wp-
content/uploads/2010/04/kwalshpaper.pdf (accessed on: 02/04/2019)
16
T.K. Rajalakshmi, Blind to Realities, Frontline http://www.frontline.in/f12910/stories/20120601291009900.htm
(accessed on: 02/04/2019)
17
Linga Vijay Kumar v. Public Prosecutor (1978) 4 SCC 196
18
Canadian Foundation for Children v. Attorney General, 2004 SCC OnLine Can SC 4
19
David MalmoLevine v. Her Majesty The Queen, 2003 SCC OnLine Can SC
20
Rodriguez v. British Columbia, [1993] 3 S.C.R. 519

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 3. THE CRIMINAL LAW (AMENDMENT) ACT OF 2018 IS UNCONSTITUTIONAL.
¶12. It is humbly submitted before the Hon’ble Supreme Court of India that punishments imposed for
consensual sexual intercourse is violative of article 14 and consent made irrelevant in charges of rape,
consensual sexual intercourse between adolescents is unreasonably penalized and therefore violates
right to life and personal liberty of adolescents aged less than 18. Secondly, it is outside the domain
of the legislature to dictate sexual preference.
3.1. It is violation of fundamental rights
3.1.1. Violation of article 21 of the constitution of India
¶13. It is humbly submitted before the Hon’ble Supreme Court of India that punishment imposed when
two consenting adolescent involve into sexual intercourse is unreasonable in nature and violates article
21. Black’s law dictionary defines consent as “a concurrence of wills”. 21 Consent implies “exercise of
a free and untrammeled right to forbid or withhold. It is always a voluntary and conscious acceptance
of what is proposed to be done”.22
¶14. A young juvenile might possess enough social sense to make aware and mature choices about
sex, while some adults might never develop the ability to make mature choices regarding sex. It was
held in the case of Olga Tellis and others v. Bombay Municipal Corporation and others23, it was
further observed that “just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike”.
¶15. Article 21 includes all those aspects of life, which go to make a man’s life meaningful, complete,
and worth living. The inhibition against its deprivation extends to all those limbs and faculties by
which life is enjoyed.24 It would even include the right to protection of a person’s tradition, culture,
heritage and all that gives meaning to a man’s life.25 Right to reputation26 and right to live with
dignity27 is one of the important facet of right to live and personal liberty which the legislature has
violated by criminalizing the choice of two persons and their consent, thereby unnecessarily punishing
the boy.
3.1.2. Violation of article 14 read with article 19(1) (a) of the Constitution of India
¶16. It is humbly submitted before the Hon’ble Supreme Court of India that prohibiting sexual activity
between sixteen to eighteen years of age group is arbitrary in nature. According to the women right
activist, Josephine Butler the age of consent cannot be decided to be eighteen or even twenty one on

21
Black’s law dictionary.
22
Satpal Singh v. state of Haryana, (2010) 8 SCC 714
23
Olga Tellis and others v. Bombay Municipal Corporation and others, [1985] 2 Supp SCR 51
24
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
25
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
26
Subramanium Swamy v. Union of India, (2016) 7 SCC 221
27
Bandhua Mukti Morcha v. Union of India, 1984 AIR 802

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
the basis that some girls are still ‘children’ in mind before these ages. 28 Something which is natural,
which is biological cannot be made illegal. 29The main point which distinguishes between Rape and
Sexual intercourse is the free consent.
¶17. In certain cases, where in the child is between sixteen and eighteen years of age, the Court would
seek to find whether there was consent or not. Still in India, the institution of marriage is placed above
women’s sexual autonomy in the eyes of law as the age of consent to enter into sexual intercourse is
eighteen for the unmarried ones whereas it remains fifteen for the married ones. This is arbitrary in
nature and curtails the freedom of expression under article 19(1) (a) of the Indian Constitution.
3.2. Competency of Parliament and state legislature to dictate sexual preference is archaic in
nature
¶18. It is humbly submitted before the Hon’ble Supreme Court of India that the Union or State
legislatures dictating the sexual preferences is archaic social morality on the citizens which is beyond
the legislative domain. By giving them the power, they will have more control over people’s lives.
Eminent Jurist Jeremy Bentham also propounded that if a person is capable of understanding the nature
of the act and knowingly gives consent then his consent is valid because he is in best position to
understand what is good for him. According to his jurisprudential perspective, “He who consents,
suffers no injury. There is no evil when there is such consent”.
¶19. It was held that the court will, therefore, interfere in this process only when the statute is clearly
violative of the right conferred on the citizen under Part III of the Constitution or when the Act is
beyond the legislative competence of the legislature.30 There can be no justification to criminalize
consensual conduct of sexual activity. It is archaic in nature. Eminent Greek Philosopher, Heraclitus
said change is the only constant thing31.
¶20. Legal positivists say that legitimacy of law is not dependent on its morality or immorality, and
law in fact needs to be kept separate from moral. The only element dependent on whether a law is in
fact binding is that it was created by an appropriate apparatus and appropriate legal authority but
legislature’s domain is limited to making law and not to impose social morality upon the people. What
is legal and depicts the voice of the nation may or may not be moral.

28
Victoria Bates, The legacy of 1885: girls and the age of sexual consent, 08 September 2015, History and policy.
29
https://india.blogs.nytimes.com/2013/03/12/in-india-heated-debate-over-teens-and-sex/
30
Pathumma & Ors. v. State of Kerala & Ors, (1978) 2 SCC 1
31
https://www.socialistalternative.org/2018/05/05/karl-marxs-theory-class-struggle-working-class-revolution/

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER
 PRAYER

Therefore, in the light of issues raised, argument advanced and authorities cited, may this Hon’ble
Court be pleased to hold and adjudge:

1. That the Writ Petition shall not be maintainable.

2. That the said Provisions of IPC, POCSO and JJ Act is violative of Fundamental Rights.
3. The said provisions of Criminal Law (Amendment) Act is not violative of fundamental rights.

AND/OR

Pass any other order in the interest of Appellant it may deem fit, in the interest of Justice, Equity and
Good Conscience

For this act of Kindness your Petitioner as in duty bound shall ever pray.

Place:

Date:

Sd/-

COUNSEL FOR THE PETITIONER

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MEMORANDUM ON BEHALF OF COUNSEL FOR THE PETITIONER