Moot Proposition – I

for

Justice Y.K. Sabharwal

Constitutional Law
Moot Court Competition 2018
 Authors’ Profile
SAHANA MANJESH

Sahana Manjesh graduated from the National Law School of India University, Bangalore in 2013.
After graduation, Ms. Manjesh worked in the Chambers of Jawahar Raja (2013-16) where her
practice areas included criminal law, labour law, constitutional law and intellectual property law.
She was subsequently a Litigation Associate at the Centre on the Death Penalty, National Law
University Delhi until May 2018.

RAGHAV SHANKAR

Raghav Shankar graduated from the NALSAR University of Law, Hyderabad in 2007. He was
awarded the Rhodes Scholarship to pursue graduate studies at the University of Oxford, where he
read for the BCL (2008) and the M. Phil in Law (2009). Mr. Shankar has previously worked in the
chambers of a former Solicitor General of India and is currently an independent litigator in New
Delhi.
 MOOT PROPOSITION – I

1. Sandesh De is a 35 year old upcoming, struggling painter who lives and works in Bengaluru.
He lives with his aged mother, and to make ends meet, takes drawing and painting classes
for school children of his neighbourhood in the evenings. Ms. X (name withheld), a
precocious and talented 13 year old girl, was one of Mr. De’s students.
2. Mr. De used to take classes in the living room of his house, while he painted in his studio
on the first floor of his house. The studio was a beautiful room filled with paints, pastels
and his works in progress. Mr. De had a particular interest in paintings depicting the female
form. Copies of Goya’s ‘Nude Maja’, Henri Matisse’s ‘Blue Nude’, and Picasso’s ‘The
Young Ladies of Avagnon’ covered the walls of his studio. Mr. De was quick to recognize
Ms. X’s talent and took particular interest in her progress as an artist. After classes in the
evenings, he would sometimes take her to his studio and show her his works in progress.
Ms. X appreciated Mr. De’s interest in her art and enjoyed the opportunity for learning
that these visits to Mr. De’s studio afforded. Mr. De’s efforts inspired Ms. X to consider
taking up painting not only as a hobby, but as a professional endeavour. Under Mr. De’s
tutelage, Ms. X performed well in painting competitions organised in and around
Bengaluru, and was fast gaining a reputation as a budding artistic talent, much to the delight
of her family and friends.
3. On the occasions that Ms. X used to be in Mr. De’s studio, the two carried out wide-
ranging discussions about art and its role in society. Mr. De spoke at length about how it
was the role of artists to rebel against confining social mores and how, in his view, nudes
were an important means of propagating the virtues of sexual autonomy and gender
equality. The conversations always ended with Mr. De giving Ms. X a hug and a peck on
her cheek. Coming from a family in which such display of physical affection between family
members was normal, and given that Mr. De was so much older than her, Ms. X always
reciprocated the hug and kiss. Mr. De however made sure that it was always done in private,
in the studio, and not in his living room, where his mother usually sat.
4. In April 2018, the national media narrative was dominated by numerous instances of child
sexual abuse. In particular, an incident of abduction, rape and murder of an 8 year old girl
in Jammu and Kashmir received extensive and sustained coverage, spawning a number of
editorials that took the line that radical steps had to be taken to deter and punish such
crimes that “shocked the conscience of the nation”. Between January and April 2018,
several state legislatures had passed Bills introducing harsher punishments for sexual
 violence against minor girls by amending relevant provisions of the Indian Penal Code.
During the Budget Session of Parliament, at least twelve such state amendments were
pending before His Excellency, the President of India, for his assent.
5. On 6 April 2018, the Budget Session of the Parliament was adjourned sine die, and a number
of major political parties were focussed on campaigning for the upcoming state elections
in Karnataka. On 21 April 2018, when Parliament was not in session, his Excellency the
President of India promulgated an ordinance amending relevant provisions of the Indian
Penal Code, Criminal Procedure Code, Indian Evidence Act and the POCSO Act to inter
alia increase the quantum of punishment for crimes involving sexual violence against minor
women. The text of the Criminal Law (Amendment) Ordinance, 2018 (hereinafter, “the
Ordinance”) is as follows:

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018

Promulgated by the President in the 69th year of the Republic of India.

Whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary
for him to take immediate action.

Now, therefore, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President is
pleased to promulgate the following ordinance:-

The Ordinance may be called the Criminal Law (Amendment) Ordinance, 2018. It shall come into effect at once.

AMENDMENTS TO THE INDIAN PENAL CODE, 1860

Amendment of section 376

In section 376 of the Penal Code,

(a) in sub-section (1), for the words "shall not be less than seven years, but which may extend to imprisonment for
life, and shall also be liable to fine", the words "shall not be less than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine" shall be substituted;

(b) in sub-section (2), clause (i) shall be omitted;

(c) after sub-section (2), the following sub-section shall be inserted, namely:
"(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim".

Insertion of new section 376AB

After section 376A of the Penal Code, the following Section shall be inserted, namely:

"376AB. Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim."

Insertion of new section 376DA

After section 376D of the Penal Code, the following sections shall be inserted, namely:

"376DA. Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting
in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and
shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's
natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Insertion of new section 376DB

376DB. Where a woman under twelve years of age is raped by one or more persons constituting a group or acting
in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and
shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's
natural life, and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim."

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

Amendment to section 146

In section 146 of the Evidence Act, in the proviso, for the words, figures and letters "section 376A, section 376B,
section 376C, section 376D", the words, letters and figures "section 376A, section 376AB, section 376B, section
376C, section 376D, section 376DA, section 376DB" shall be substituted.

AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE, 1973

Amendment of section 154

In section 154 of the Code of Criminal Procedure, in sub-section (1)-

(i) in the first proviso, for the words, figures and letters "section 376A, section 376B, section 3760, section 376D,",
the words, figures and letters "section 376A, section 376AB, section 376B, section 376C, section 376D, section
376DA, section 376DB," shall be substituted;

(ii) in the second proviso, in clause (a), for the words, figures and letters "section 376A, section 376B, section 376C,
section 376D,", the words, figures and letters "section 376A, section 376AB, section 376B, section 376C, section
376D, section 376DA, section 376DB," shall be substituted.

Amendment to section 161

In section 161 of the Code of Criminal Procedure, in sub-section (3), in the second proviso, for the words, figures
and letters "section 376A, section 376B, section 376C, section 376D,", the words, figures and Letters "section
376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB," shall be
substituted.

Amendment to section 164

In section 164 of the Code of Criminal Procedure, in sub-section (5A), in clause (a), for the words, figures and
letters "section 376A, section 376B, section 376C, section 376D,", the words, figures and letters "section 376A,
section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376D8," shall be substituted.

Amendment to section 173

In section 173 of the Code of Criminal Procedure,

(i) in sub-section (1A), for the words "rape of a child may be completed within three months", the words, figures
and letters "an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section
376E of the Indian Penal Code shall be completed within two months" shall be substituted;

(ii) in sub-section (2), in clause (i), in sub-clause (h), for the figures, letters and word "376A, 376B, 376C, section
376D", the figures and letters "376A, 376AB, 376B, 376C, 376D, 376DA, 376DB" shall be substituted.

Amendment to section 309

In section 309 of the Code of Criminal Procedure, in sub-section (1), in the proviso, for the words, figures and
letters section 309, "section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the
inquiry or trial shall, as far as possible", the words, figures and letters "section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA or section 376DB of the Indian Penal Code, the inquiry or
trial shall" shall be substituted.

Amendment to section 327

In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words, figures and letters "section
376A, section 376B, section 376C, section 376D", the words, figures and letters "section 376A, section 376AB,
section 376B, section 376C, section 376D, section 376DA, section 376DB" shall be substituted.

Amendment of section 374

In section 374 of the Code of Criminal Procedure, after sub-section (3), the following sub-section shall be inserted,
namely:-
"(4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB,
section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the 'Indian Penal
Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.".

Amendment of section 377

In section 377 of the Code of Criminal Procedure, after sub-section (2), the following sub-section shall be inserted,
namely:-

"(3) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB,
section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal
Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.
AMENDMENT TO THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012

Amendment to section 42

In section 42 of the Protection of Children from Sexual Offences Act, 2012, for the figures and letters "376A,
376C, 376D", the figures and letters "376A, 376AB, 376B, 376C, 376D, 376DA, 376DB" shall be
substituted.

Sd/-
President of India

6. On 1st May 2018, Ms. X returned from her painting class with Mr. De in the evening and
told her parents that she was no longer interested in going for painting classes. Her parents
were perplexed by this sudden announcement, since painting had always been a very
important part of her life, but did not pursue the matter any further on the assumption
that the decision would be short-lived. Over the next few days, however, they noticed that
Ms. X was increasingly withdrawing from all her usual activities, was disinterested in most
things and had lost her appetite. In view of the continuing media engagement with the
issue of child sexual abuse at the time, a number of television channels had panels of health
care professional and social workers speaking on issues such as identification and
rehabilitation of survivors of such abuse. It was while watching one such show that Ms.
X’s mother realised that her daughter was showing some of the recognized signs that a
survivor would in the immediate aftermath of an attack.
7. Ms. X’s parents then decided to take her to a counsellor. Ms. X gradually opened up to her
counsellor and her parents during a session and informed them that on the last day that
she had gone to class, Mr. De had taken her to his studio as usual. While he was hugging
her goodbye in his usual manner, he slipped his fingers into her underwear and penetrated
her vagina. Ms. X stated that she was very confused about what was happening, managed
to unclasp herself from Mr. De’s embrace, and left for home. Mr. De apparently tried to
apologise to Ms. X, but seeing that she was distressed, did not stop her from leaving. Ms.
X’s parents confirmed that even in the days after Ms. X’s final class with him, Mr. De did
not make attempts to get in touch with her or her parents.
8. After discussing the available options Ms. X’s family decided to file a criminal complaint
with the local police station. On 14 May 2018, Ms. X filed a complaint against Mr. De, and
an FIR was promptly registered. Mr. De was arrested after following due process, and the
 investigation was completed in seven (7) days. A chargesheet alleging commission of
offences under s.376(3) of the IPC, as introduced under the Ordinance, read with ss. 5 and
6 of the POCSO Act was filed six (6) days thereafter before the jurisdictional Magistrate.
9. The Magistrate committed the matter to a Special Court designated under s.28 of the
POCSO Act for trial. After hearing arguments on charge, charges were framed against Mr.
De under s. 376(3) of the IPC read with ss. 5 and 6 of the POCSO Act. Mr. De pleaded
not guilty, and the trial commenced immediately. Trial was completed within fourteen (14)
days from the time of committal, and Mr. De was held guilty of commission of offences
under s. 376(3) of the IPC read with ss. 5 and 6 of the POCSO Act. The Presiding Judge
of the Special Court, giving due consideration to applicable law, including the Ordinance
and after hearing prosecution and defense counsel on the question of sentence, imposed
the mandatory minimum sentence of twenty years imprisonment, in addition to a fine of
Rs.50,000 to be paid to Ms. X.
10. Aggrieved by this judgment, Mr. De preferred an Appeal before the High Court of
Karnataka. The High Court summoned the record of the Special Court and decided the
Appeal on the basis of the same, without admitting any new evidence. The Appeal was
dismissed in the first week of July, the High Court upholding in full the conclusions of the
Trial Court on the issues of conviction as well as sentence, including the finding that the
Accused had failed to discharge his burden to reverse the presumption of guilt under s.29
of the POCSO Act.
11. Aggrieved by the decision of the High Court, Mr. De filed an Appeal in the Supreme Court,
challenging the sentence imposed on him and accepting the finding of conviction. Mr. De
additionally filed a Writ Petition under Article 32 of the Constitution of India challenging
the vires of the Ordinance to the extent it was applicable to his case.
12. Meanwhile, several cases had been registered under the provisions of the Ordinance
against persons accused of sexual violence against minor women. However, various child
rights organisations had been voicing their concerns about how the ordinance did not
address the structural and institutional challenges in securing justice to children who were
victims of sexual abuse. Concerns were also raised in certain quarters as to whether the
Ordinance had properly balanced the rights of accused persons to a fair trial with the
objects of deterrence and speedy conclusion of proceedings.
13. By 15th of July 2018, both houses of Parliament had begun their Monsoon Session. Within
a week of coming into session, both Houses passed Resolutions disapproving the
Ordinance, even before it could be placed before the two Houses for consideration. Some
 attributed this move to successful lobbying by child right organisations, others to the
growing disgruntlement within the Members of Parliament about the increasing use of
Ordinance-making power by the executive.
14. Mr. De’s Appeal as well as his Writ Petition were listed for hearing before a three judge
bench in the Supreme Court on the 2nd of August 2018. The Bench was satisfied that the
issues raised in the Writ Petition were substantial questions of law as to the interpretation
of the Constitution and accordingly referred the same to a 5-judge Bench. Notice was also
issued in the Appeal and the same was directed to be listed along with the Writ Petition.