Appellant

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TEAM CODE- DL-101
2ND SAMAR KUMAR BASU NATIONAL VIRTUAL MOOT

COURT COMPETITION,2024
5-7th JULY, 2024
BEFORE THE HON’BLE SUPREME COURT OF INDIA
WITH OUR MEN EVEREWHERE IN NEED (W.O.M.E.N)

…………………………………………………………………Appellant
V/S
UNION OF INDIA
……………………………………………………………....Respondent
APPEAL FILED UNDER ARTICLE 136 OF CONSTITUTION OF

INDIA
MEMORIAL ON BEHALF OF THE

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MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS
PARTICULARS PAGE
LIST OF ABBREVITIONS…………………………………………………… 3
INDEX OF AUTHORITIES………………………………………………….. 4
(i)BOOK REFFEERED…………………………………………………….. 4
( ii) CASE REFFERED……………………………………………………….. 4
STATEMENT OF JURISDICTION…………………………………………. 5
STATEMENT OF FACT………………………………………………........... 5-10
ISSUE RAISED…………………………………………………………………….. 11
SUMMARY ARGUMENT……………………………………………………… 11-13
ARGUMENT ADVANCE……………………………………………………….. 13-30
PRAYER ……………………………………………………………………………… 31
MEMORIAL ON BEHALF OF THE RESPONDENTS

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LIST OF ABBREVIATION
&: AND
AIR: ALL INDIA REPORTER
ALL- ALLAHABAD
BOM: BOMBAY
CAL: CALCUTTA
CO.: COMPANY
CORP.: CORPORATION
DEL: DELHI
EDN.: EDITION
HON’BLE: HONORABLE
HC : HIGH COURT
LTD: LIMITED
NO: NUMBER
ORS: OTHERS
P: PAGE
PP: PAGES
PVT.: PRIVATE

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INDEX OF AUTHORITIES
 BOOKS REFFERED :-
1. CONSTITUTION OF INDIA BY SIR J.N.PANNDY

2. CODE OF CRIMINAL PROCEDURE, BY KELKAR
 WEBSITES REFEERED:-
1. WWW.livelaw.com
2. WWW.Ipleder.com
3. WWW.indiankanoon.com
4. WWW.lawotopus.com
5. WWW.legalserviceindia.com
7.
*CASE REFFERED:-
1. State of West Bengal v. Anwar Ali Sarkar (1952):

2. E.P. Royappa v. State of Tamil Nadu (1974):
3. Maneka Gandhi v. Union of India (1978):
4. Vishaka v. State of Rajasthan (1997):
5. Hussainara Khatoon v. State of Bihar (1979):
6. Narendra Kumar Amin Vs CBI (2010)
7. Arnesh Kumar v. State of Bihar (2014
8. State of Rajasthan v. Balchand (1977
9. State of West Bengal vs Anwar Ali Sarkar ( 1952)
10. Air India v. Nergesh Meerza (1981):
11. D.S Nakara Vs Union of India
12. Prem Shankar Shukla v. Delhi Administration (1980):
13. Navtej Singh Johar Vs Union Of India ( 2018)
14. State of Punjab Vs Dalbir Singh ( 2012)

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STATEMENT OF JURISDICTION
The respondent humbly approach before the Hon’ble Supreme Court of India under Article
136 of Constitution of India, 1950.
Article of the Constitution of India:
Article 136
Article 136 is typically invoked when appealing a PIL from a High Court to the Supreme
Court. PILs often involve issues of public importance, constitutional rights, or matters
impacting a large section of society. Therefore, Article 136 provides the Supreme Court with
the discretion to hear such appeals and grant special leave to appeal if it deems fit.The present
memorandum set forth the facts, contention and argument in present case.
STATEMENT OF FACT
1. On date 1st January, 2024, Raksha, a college student, aged about 24 years, was celebrating
the new year with her friends at the City Centre, Kolkata.
2. At 1 AM, on 2nd January, 2024, after the new year celebration ended, Raksha and her
friends decided to go back home. Raksha, who came to the place of celebration on a bus,
decided to go back on foot alone, since all her friends came on by-cycles and she could find no
means of transportation.
3. At around 1:15 AM while Raksha was crossing a lone street, she was surrounded by 3 men
and one woman. All pointed their knives towards Raksha and the woman ordered her to give
them her purse. Scared, Raksha surrendered her purse to her and stepped back. While the
criminals were returning, Raksha looked at the woman criminal and screamed “You are an
insult to women”.
4. Enraged, the Female Criminal looked at her accomplices and yelled “Teach her a lesson”.

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5. The three men forcefully grabbed Raksha, and started tearing her clothes. When Raksha
resisted and fought back, The woman criminal grabbed Raksha’s hair from behind and kept a
sharp knife on Raksha’s throat. All three men, gang raped the victim while the victim helplessly
watched but could not do much because of the knife kept on her throat.
6. The men violently raped, brutalised, assaulted her, slapped, kicked, and punched her. One of
the criminals pulled out a hammer from a bag he was carrying and smashed it in Raksha’s face,
brutally breaking all her teeth and causing severe injuries. When the entire ordeal ended, the
woman criminal said “She has seen our faces and we can’t let her go”, and slowly slit her
throat.
7. Raksha died within a few minutes, and the woman criminal slowly cut her body into 34
pieces and kept her body parts in small polyethene packets, boarded a bus, and throughout the
journey from Kolkata to Durgapur, threw parts of the body of the victim at different places and
threw the hammer and the knife in a river.
8. However, their entire act was caught in a CCTV camera of a nearby shop. The shop-owner
Nandu, saw blood near his shop, and immediately checked his CCTV camera for the cause of it
and was horrified to his core. Nandu then uploaded the 24 minutes long video on ‘X’ (Formerly
known as Twitter) and tagged Kolkata Police to take action.
9. The video immediately got viral within 3 hours and the entire country erupted in protest and
chaos. Hundreds of candle marches were launched and strict action was demanded by the
public and the police began investigation immediately.
10. Due to darkness and the poor quality of the camera, only a blurry face of one of the
criminals, the one who assaulted the victim with a hammer, could be guessed. The police
tracked him in Durgapur and arrested him on 2nd June, 2024.
11. As an outcome of long interrogation, the arrested accused revealed his name as Sumit and
revealed the names of others as Bilal, Manjeet and Nancy. Based on the evidence of the
arrested Sumit, rest three were also arrested.
12. However, since no weapon, no part of the body of the victim, and no other evidence could
be gathered against the accused persons, the trial kept getting delayed as the prosecution kept
failing to bring any admissible evidence on record.
13. After 2 and half years of the incident, the four accused persons were granted bail from the
Hon’ble High Court of Calcutta on the ground that the accused persons had served 2 years of
incarceration with the conclusion of trial nowhere in sight, they had clean antecedents, the only
available material against them were confession to a police officer, and confession of a co-
accused person, which were no substantive evidences.
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14. Even though the bail of the accused persons were cancelled by the Hon’ble Supreme Court
looking at the heinousness of the alleged offense, the entire country was left shocked and
protests erupted across the entire country. #MurderofJustice, #ThisCountryHatesWomen
#MotherJusticeCrying and other hashtags trended across social media, the video of the brutal
rape and murder was circulated again, panel discussions were conducted on live TV by senior
journalists like Arnab Choudhary, Sudhir Goswami, Barkha Sardesai, Rajdeep Dutt etc who
also collectively hosted a show ‘No Country for Innocent Women’. The Hon’ble Justice who
granted the bail was transferred to a different state by the Supreme Court collegium but the
country could not forget the ache.
15. The Ruling Party, the HJP, introduced a bill in loksabha titled “Jaghanya Yaun Apraadh
Suraksha Adhiniyam” and on 2nd January, 2027 the “Heinous Sexual Offenses Protection Act”
was passed and as a tribute to the victim, it was nicknamed ‘Raksha Act’.
16. As per the Section 4 of the said act, The act was applicable in all cases of Rape.
17. Section 34 of the said new Act dealt with bail for the covered offenses and laid conditions,
and it was passed as under –
18. Section 34 – Conditions for Grant of Bail –
1. No Direction for grant of bail to any person apprehending arrest under Section 438
of the CrPC, 1973 shall be passed in favour of any person accused of any offense to which this
Act is applicable.
2. No Person accused of any offense covered under this Act, shall be granted Bail in
exercise of any power conferred under any Act passed by the Indian Parliament, or the State
Legislatures, except when –
a) There are strong grounds to believe that the accused has not committed such offense, and
b) There are strong grounds to believe that the accused if released on bail won’t commit any
further offense.
3. In addition to the above given conditions, No person accused of any offense
covered under this Act, if jointly charged with any Non-Compoundable Offense as given under
Section 320 of the Code of Criminal Procedure, 1973, shall be released on bail, except when –
a) He has clean criminal antecedent
b) Has spent three-fourth of the maximum permissible punishment in custody
4. No person accused of any offense under this Act, shall be released on Bail only
on the ground of illness, infirmity, pregnancy, or old age.

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5. Nothing provided under any law made by the parliament or the state legislature
shall permit the court to release any person accused of any offense to which this act is
applicable, to be released merely on the ground of non-submission of chargesheet.
19. Despite the objections of several criminal law jurists regarding the strict bail conditions,
the Act was received with praises by the general public who were fed up of raging sexual
offenses in the country.
20. On 30th January, 2027, Harjeet Singh, A female student of Lucknow Central College,
Lucknow committed Suicide by pouring kerosene on herself and setting herself on fire. The
hostel authorities, police and the fire department tried to save her, but since the entire room was
set on fire, her body was almost reduced to ashes.
21. One minute before committing suicide, Harjeet wrote a suicide note and posted it on Social
Media page in which she alleged that on 26th January 2027, at around 11:30 AM, her fellow
classmates, Rohit, aged 24, Shabana, aged 24, and Joseph, aged 24, committed brutal gang rape
on her and attempted to murder her too. She alleged that they had broken her ribcage,
Forearms, and fingers and have tortured her and she has been taking multiple painkillers to
subdue the pain and today she has consumed Fentanyl, and has got the courage to say and do
what is right.
22. Immediately all three were arrested and the police began their investigation, however, due
to almost the entire room being burnt, and no evidence was found apart from a confession
posted on social media page which could have been written under influence of Fentanyl, the
case kept of dragging as the court was not confident about convicting them but the fear of
massive public outrage kept the court from acquitting them.
23. One year after the arrest, Rohit, Shabana and Joseph applied for bail and the Sessions Court,
Lucknow granted bail to Shabana on the ground that since she is a woman, Raksha Act does not
apply to her since she can’t be alleged of Rape, while Rohit and Joseph’s bail were denied
keeping in mind the stringent conditions of Section 34 of Raksha Act.
24. Rohit and Joseph appealed to the Hon’ble Allahabad High Court and from there also the
bails were rejected.
25. After spending five years in Jail, The Jail Warden on 20th Feb 2032 found Rohit and Joseph
hanging in their jail cells. The left behind a note, claiming that they were innocent and god’s
curse will fall on everyone who disbelieved them and kept them among actual murders, rapists
and dacoits for years.
26. On 2nd March, 2032, the police found from the archived record of CCTV footage of a
nearby building, that a man jumped out of Harjeet’s room’s window moments before the room
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was set on fire and the Police used AI image enhancement software to complete and clear the
image.
27. The person identified was Avinash, a disgruntled ex-boyfriend of Harjeet. Upon arrest and
interrogation, Avinash confessed about drugging, Raping, Assaulting and murdering Harjeet
and posting a fake confession on social media to frame Rohit, Joseph and Shabana, who were
good friends of Harjeet and always warned about Avinash.
28. Upon learning that two innocent men committed suicide, The entire country was left
shocked and protests erupted across the entire country. #MurderofJustice,
#ThisCountryHatesMen #MotherJusticeCrying and other hashtags trended across social media,
the suicide note of both boys claiming their innocence was circulated, panel discussions were
conducted on live TV by senior journalists like Arnab Choudhary, Sudhir Goswami, Barkha
Sardesai, Rajdeep Dutt etc who also collectively hosted a show ‘No Country for Innocent Men’.
The Hon’ble Justice who refused to grant the bail was transferred to a different state by the
Hon’ble Supreme Court collegium but the country could not forget the ache.
29. A PIL was moved by an NGO named ‘With Our Men Everywhere in Need’ or
W.O.M.E.N, challenging the constitutionality of Section 34 of the Raksha Act in the Hon’ble
Allahabad High Court. The Division Bench of Allahabad High Court passed a split verdict
regarding the constitutionality of the said section and granted certificate for appeal in the
Hon’ble Supreme Court of India.
30. With Our Men Everywhere in Need appealed against the split verdict and the matter is now
listed in the Hon’ble Supreme Court of India for arguments on merits.

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ISSUE RAISED
1) Whether the stringent conditions for granting bail under Section 34 of the Raksha Act
violate fundamental rights guaranteed by the Indian Constitution, particularly Articles 14
(Equality before the law), 19 (Protection of certain rights regarding freedom of speech,
etc.), and 21 (Protection of life and personal liberty).
2) Whether the Raksha Act, specifically Section 34, discriminates based on gender by
allowing different bail conditions for men and women, as evidenced by the bail granted to
Shabana and the denial of bail to Rohit and Joseph. ?
3)To what extent should judicial discretion be limited by statutory provisions like Section
34 of the Raksha Act?
4.Is it justified to exempt women from certain stringent legal provisions like those in
Section 34 of the Raksha Act, based on the assumption that they cannot be perpetrators of
rape ?
SUMMARY OF ARGUMENT
etc.), and 21 (Protection of life and personal liberty).
Appellant contends that Section 34 of the Raksha Act imposes extremely stringent conditions
for granting bail, which effectively means that accused individuals are almost always denied
bail. This violates their fundamental rights guaranteed by the Indian Constitution. The right to
equality before the law (Article 14) is compromised because the Act imposes arbitrary
restrictions without a fair and reasonable basis. The stringent bail conditions infringe upon the
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right to personal liberty (Article 21), as they lead to prolonged detention without trial.
Additionally, although not directly related, the conditions can indirectly affect freedoms under
Article 19, particularly the freedom of movement.
Appellant contends that the Act discriminates based on gender, as evidenced by Shabana being
granted bail while Rohit and Joseph were denied bail under the same conditions. This disparity
violates the principle of equality before the law (Article 14). The Act's assumption that women
cannot be perpetrators of rape is an outdated and discriminatory notion, leading to unequal
treatment under the law and perpetuating gender biases. Such gender-based discrimination is
arbitrary and unjustifiable.
3) To what extent should judicial discretion be limited by statutory provisions like Section
Appellant contends that the Section 34 excessively limits judicial discretion by imposing almost
insurmountable conditions for granting bail. This undermines the judiciary's ability to consider
the unique facts and circumstances of each case. Judicial discretion is a cornerstone of a fair
legal system, allowing judges to make decisions based on the nuances of each case. By
imposing blanket restrictions, the Act prevents judges from exercising their judgment and
ensures that the justice system cannot adapt to individual cases, leading to potential
miscarriages of justice.
4) Is it justified to exempt women from certain stringent legal provisions like those in
rape ?
Appellant contends that the Exempting women from stringent bail conditions under the
assumption that they cannot be perpetrators of rape is unjustified and discriminatory. Such an
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assumption is based on gender stereotypes and does not reflect the reality that women can and
do commit serious crimes. The law should be gender-neutral and treat all accused individuals
equally. By providing exemptions based on gender, the Act undermines the principles of justice
and equality, and perpetuates harmful stereotypes that are contrary to modern legal and social
standards.
ARGUMENT ADVANCED
etc.), and 21 (Protection of life and personal liberty) ?
Ans:
It is humbly submitted before the Honorable Supreme Court of India that the appellant,
represented by the NGO 'With Our Men Everywhere in Need' (W.O.M.E.N), challenge the
constitutionality of Section 34 of the Raksha Act, 2027. The challenge is premised on the
grounds that the section violates fundamental rights guaranteed under the Constitution of
India, specifically Articles 14, 19, and 21. The appellant argue that the stringent bail
conditions imposed by Section 34 are disproportionate, arbitrary, and violate the principles
of natural justice and fair trial.
I. Violation of Article 14 - Right to Equality
1. Arbitrary Classification
Article 14 ensures equality before the law and prohibits discrimination. Section 34 of the
Raksha Act creates an unreasonable classification by imposing excessively stringent bail
conditions exclusively for offenses under the Act, without considering the individual
circumstances of the accused.
Relevant Case Law:
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 State of West Bengal v. Anwar Ali Sarkar (1952): The Supreme Court held that any
classification must be based on intelligible differentia and should have a rational nexus
with the objective sought to be achieved. The classification under Section 34 does not
meet this standard as it treats all accused under the Act with a broad brush, without
considering the specifics of each case.
2. Discriminatory Impact on Certain Sections of Society
The stringent bail provisions disproportionately impact the underprivileged and marginalized
sections of society, who may not have the resources to effectively contest such stringent
conditions.
Relevant Case Law:
 E.P. Royappa v. State of Tamil Nadu (1974): The Supreme Court emphasized that
equality is antithetical to arbitrariness. The blanket denial of bail under Section 34 is
inherently arbitrary and fails the test of reasonable classification under Article 14.
II. Violation of Article 19 - Freedom to Practice Any Profession
1. Restriction on Personal Liberty and Professional Life
Article 19(1)(g) guarantees the right to practice any profession, or to carry on any occupation,
trade, or business. The overbroad application of Section 34 restricts the accused's ability to
engage in their profession or occupation due to prolonged incarceration without bail.
Relevant Case Law:
 Maneka Gandhi v. Union of India (1978): The Supreme Court held that restrictions
on personal liberty must pass the test of reasonableness and should not be arbitrary or
excessive. The denial of bail under Section 34, without substantial evidence, fails this
test.
2. Chilling Effect on Reporting Crimes
The fear of prolonged pre-trial detention under Section 34 may deter individuals from reporting
crimes or testifying in sexual offense cases, thereby affecting the administration of justice.
Relevant Case Law:
 Vishaka v. State of Rajasthan (1997): The Supreme Court emphasized the need to
create a conducive environment for reporting sexual harassment. The chilling effect
caused by Section 34 undermines this principle.
III. Violation of Article 21 - Right to Life and Personal Liberty
1. Right to Fair Trial

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Article 21 guarantees the right to life and personal liberty, which includes the right to a fair
trial. The conditions imposed by Section 34, such as the near-impossible standards for granting
bail, undermine the right to a fair trial.
Relevant Case Law:
 Hussainara Khatoon v. State of Bihar (1979): The Supreme Court held that the right
to a speedy trial is a fundamental right under Article 21. The prolonged pre-trial
detention under Section 34 violates this right.
2. Presumption of Innocence
The stringent bail conditions reverse the presumption of innocence, a cornerstone of criminal
jurisprudence, by treating the accused as guilty until proven innocent.
Relevant Case Law:
 Narendra Kumar Amin v. CBI (2010): The Supreme Court reiterated that the
presumption of innocence is a fundamental principle of criminal law. Section 34's harsh
bail provisions effectively negate this principle.
3. Protection Against Arbitrary Detention
Prolonged detention without bail constitutes arbitrary detention, infringing upon personal
liberty.
Relevant Case Law:
 Arnesh Kumar v. State of Bihar (2014): The Supreme Court underscored the need to
avoid arbitrary arrests and detentions. Section 34's bail provisions promote arbitrary
detention without sufficient safeguards.
IV. Analysis of Section 34 in Light of CrPC and IPC
1. Inconsistency with Section 438 CrPC
Section 34(1) prohibits anticipatory bail under Section 438 of the CrPC for offenses under the
Raksha Act. This absolute prohibition is inconsistent with the discretionary power conferred
upon courts under Section 438 to grant bail based on the merits of each case.
2. Conflict with Established Bail Principles
Section 34(2) and (3) impose conditions that are excessively stringent and conflict with
established principles of granting bail, which typically consider factors such as the severity of
the offense, the likelihood of the accused fleeing, and the potential threat to witnesses.
Relevant Case Law:
 State of Rajasthan v. Balchand (1977): The Supreme Court held that bail is the rule
and jail is the exception. Section 34's provisions turn this principle on its head.
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V. Recommendations and Conclusion

1. Need for a Balanced Approach
While addressing heinous sexual offenses is crucial, the approach must be balanced and just.
Bail conditions should not be so stringent as to violate fundamental rights.
2. Judicial Discretion
Restoring judicial discretion in granting bail will ensure that each case is judged on its merits,
maintaining the balance between the rights of the accused and the need for societal protection.
3. Legislative Revisions
The legislature should revise Section 34 to align it with constitutional mandates and principles
of natural justice, ensuring that it does not result in arbitrary and disproportionate
consequences.
Now on the basis of above arguments, the appellant urge the Hon’ble Supreme Court to
declare Section 34 of the Raksha Act unconstitutional for its violation of Articles 14, 19, and 21
of the Constitution of India. The section's stringent bail conditions are arbitrary,
disproportionate, and undermine the fundamental rights of individuals, necessitating its re-
evaluation and amendment.
It is humbly submitted before the Honorable Supreme Court of India that the appellant,
represented by the NGO 'With Our Men Everywhere in Need' (W.O.M.E.N), challenge the
constitutionality of Section 34 of the Raksha Act on the grounds of gender-based
discrimination. They argue that Section 34 violates the fundamental rights guaranteed under
Articles 14 and 21 of the Constitution of India by imposing different bail conditions for men
and women. This argument is supported by the analysis of relevant sections and case law,
demonstrating that the Raksha Act's provisions unjustly discriminate based on gender.

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I. Violation of Article 14 - Equality Before the Law

1. Principle of Equality Before the Law
Article 14 of the Indian Constitution guarantees equality before the law and equal protection of
the laws within the territory of India. It prohibits discrimination on grounds such as religion,
race, caste, sex, or place of birth.
Relevant Case Law:
 State of West Bengal v. Anwar Ali Sarkar (1952): The Supreme Court held that any
law which makes unreasonable classifications and discriminations is violative of Article
14.
2. Unreasonable Classification
Section 34 of the Raksha Act creates an unreasonable classification by imposing stringent bail
conditions on men accused of rape while allowing women, like Shabana in the present case, to
be granted bail more easily. This classification does not have a rational nexus with the objective
sought to be achieved by the Act.
Relevant Case Law:
 E.P. Royappa v. State of Tamil Nadu (1974): The Supreme Court stated that equality
is antithetical to arbitrariness and any arbitrary action is necessarily discriminatory.
3. Gender-Based Discrimination
The Act's provisions effectively discriminate against men by presuming their guilt more
strongly than that of women in similar circumstances. This presumption is not based on any
substantive or logical grounds, thus violating the equality principle enshrined in Article 14.
Relevant Case Law:
 Air India v. Nergesh Meerza (1981): The Supreme Court struck down service
regulations that were discriminatory against women, emphasizing that discrimination
based solely on sex is unconstitutional.
II. Violation of Article 21 - Protection of Life and Personal Liberty
1. Right to Personal Liberty
Article 21 guarantees the right to life and personal liberty, which includes the right to a fair trial
and the presumption of innocence until proven guilty. The differential treatment under Section
34 infringes upon the personal liberty of male accused by subjecting them to harsher bail
conditions without justifiable reasons.
Relevant Case Law:

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 Maneka Gandhi v. Union of India (1978): The Supreme Court held that the procedure
established by law must be fair, just, and reasonable. The discriminatory bail provisions
of Section 34 do not meet this standard.
2. Presumption of Innocence
The differential bail conditions undermine the presumption of innocence, a fundamental tenet
of criminal justice. By imposing more stringent conditions on male accused, the law implicitly
treats them as guilty until proven innocent, contrary to the principles of Article 21.
Relevant Case Law:
 Narendra Kumar Amin v. CBI (2010): The Supreme Court reiterated the importance
of the presumption of innocence and the need for fair treatment of the accused.
III. Analysis of Relevant Sections of the Raksha Act and CrPC
1. Section 34 of the Raksha Act
 Subsection (1): Prohibits anticipatory bail under Section 438 of CrPC for offenses
covered by the Act.
 Subsection (2): Imposes stringent conditions for granting bail, requiring strong grounds
to believe the accused did not commit the offense and that they will not commit further
offenses.
 Subsection (3): Adds further conditions for those jointly charged with non-
compoundable offenses.
 Subsection (4): Exempts bail on grounds of illness, infirmity, pregnancy, or old age.
 Subsection (5): Prevents release on bail due to non-submission of the chargesheet
alone.
2. Section 320 of the CrPC
 Non-Compoundable Offenses: Lists offenses that cannot be settled privately between
parties without the court's permission.
3. Section 438 of the CrPC
 Anticipatory Bail: Allows a person to seek bail in anticipation of arrest, protecting their
liberty in cases where arrest is not warranted.
IV. Arguments on Gender-Based Discrimination
1. Discriminatory Application
Section 34’s application allows for differential treatment of male and female accused. For
instance, Shabana was granted bail because she could not be charged with rape under the
Raksha Act, highlighting an inherent gender bias.

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2. No Rational Nexus
The classification between male and female accused under Section 34 does not serve any
rational or legitimate objective. It fails the test of reasonable classification established by the
Supreme Court.
Relevant Case Law:
 D.S. Nakara v. Union of India (1983): The Court held that the classification must be
based on an intelligible differentia that distinguishes those grouped together from others
left out, and this differentia must have a rational nexus with the objective of the law.
3. Denial of Fair Treatment
The differential treatment under Section 34 leads to arbitrary detention of male accused,
denying them the fair treatment guaranteed under Articles 14 and 21. This arbitrary application
is evident in the denial of bail to Rohit and Joseph, despite the lack of substantive evidence
against them.
Relevant Case Law:
 Prem Shankar Shukla v. Delhi Administration (1980): The Supreme Court
emphasized that no person shall be deprived of personal liberty except according to a
procedure established by law that is just, fair, and reasonable.
V. Recommendations for Non-Discriminatory Provisions
1. Uniform Bail Conditions
Amend Section 34 to impose uniform bail conditions for all accused, regardless of gender. This
would ensure equality before the law and prevent arbitrary detention based on gender.
2. Judicial Discretion
Restore judicial discretion in bail matters, allowing courts to assess each case based on its
merits rather than imposing blanket conditions. This would align with the principles of fairness
and justice enshrined in the Constitution.
3. Gender-Neutral Legislation
Draft legislation in a gender-neutral manner, ensuring that all individuals accused of offenses
are subject to the same legal standards and protections. This approach would prevent
discrimination and uphold the constitutional mandate of equality.
Relevant Case Law:
 Navtej Singh Johar v. Union of India (2018): The Supreme Court held that the
Constitution must evolve with changing times to ensure equality and non-
discrimination.

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Now, on the basis of the above arguments t he petitioners argue that Section 34 of the Raksha
Act, by imposing differential bail conditions based on gender, violates the fundamental rights
guaranteed under Articles 14 and 21 of the Constitution. The classification lacks a rational
nexus with the Act's objective and results in arbitrary and discriminatory treatment of male
accused. The legislative framework must be revised to ensure uniform and fair application of
the law, thereby upholding the principles of equality and personal liberty enshrined in the
Constitution.
3) To what extent should judicial discretion be limited by statutory provisions like Section
It is humbly submitted before the Honorable Supreme Court of the appellants, represented by
the NGO 'With Our Men Everywhere in Need' (W.O.M.E.N), challenge the constitutionality of
Section 34 of the Raksha Act on the grounds that it unduly limits judicial discretion in granting
bail. They argue that the stringent conditions set forth in Section 34 undermine the judicial
independence and discretion essential for a fair legal process, thereby violating fundamental
rights guaranteed under Articles 14 and 21 of the Indian Constitution.
I. Importance of Judicial Discretion in the Legal System
1. Judicial Discretion Defined
Judicial discretion refers to the power and flexibility granted to judges to make decisions based
on the unique circumstances of each case, guided by legal principles, fairness, and justice. This
discretion allows judges to consider a variety of factors, such as the evidence presented, the
behavior and character of the accused, and the specific details of the offense.
Relevant Case Law:
 State of Punjab v. Dalbir Singh (2012): The Supreme Court emphasized that judicial
discretion is essential to ensure justice is served on a case-by-case basis, highlighting
the importance of judges being able to make decisions tailored to the specific facts and
circumstances of each case.
2. Fundamental Role in Justice
Judicial discretion is fundamental to the administration of justice. It allows judges to adapt legal
principles to the specific facts of each case, ensuring that decisions are fair, just, and

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reasonable. Without this discretion, the legal process can become rigid and mechanical, leading
to unjust outcomes.
Relevant Case Law:
 Bail Act (England and Wales) 1976: This legislation underscores the necessity for
judicial discretion in bail matters, emphasizing the need for judges to weigh individual
circumstances rather than applying a one-size-fits-all approach.
II. Impact of Section 34 on Judicial Discretion
1. Stringent Conditions Under Section 34
Section 34 of the Raksha Act imposes highly restrictive conditions for granting bail in cases of
rape and other heinous sexual offenses, significantly limiting judicial discretion. The specific
conditions are:
 Subsection (1): Prohibits anticipatory bail under Section 438 of the CrPC for offenses
covered by the Act.
 Subsection (2): Requires strong grounds to believe the accused did not commit the
offense and will not commit further offenses for bail to be granted.
 Subsection (3): Adds further conditions for those jointly charged with non-
compoundable offenses.
 Subsection (4): Exempts bail on grounds of illness, infirmity, pregnancy, or old age.
 Subsection (5): Prevents release on bail due to non-submission of the chargesheet
alone.
2. Elimination of Judicial Flexibility
These conditions eliminate the flexibility judges need to consider the individual merits of each
case. The mandatory nature of these conditions removes the judge's ability to assess the
evidence, the likelihood of the accused's guilt, and other mitigating factors.
Relevant Case Law:
 Kalyan Chandra Sarkar v. Rajesh Ranjan (2004): The Supreme Court highlighted
the necessity of judicial discretion in bail matters, cautioning against blanket restrictions
that undermine judicial assessment.
3. Presumption of Guilt Over Innocence
By imposing such stringent conditions, Section 34 presumes guilt over innocence, contrary to
the fundamental principle of criminal jurisprudence that a person is innocent until proven
guilty.
Relevant Case Law:

21
 Dataram Singh v. State of Uttar Pradesh (2018): The Supreme Court reaffirmed that
bail is the rule and jail is the exception, emphasizing the need for judicial discretion to
uphold this principle.
III. Constitutional Violations Under Articles 14 and 21
1. Violation of Article 14 - Equality Before the Law
Article 14 guarantees equality before the law and equal protection of the laws. By imposing
non-negotiable conditions for bail, Section 34 treats individuals accused of the same crime
differently based on arbitrary legislative mandates, thus violating the equality principle.
Relevant Case Law:
 Anwar Ali Sarkar Case (1952): The Supreme Court held that any law which makes
unreasonable classifications and discriminations is violative of Article 14. Section 34
creates unreasonable classifications by imposing stringent bail conditions regardless of
the specific circumstances of the case.
2. Violation of Article 21 - Protection of Life and Personal Liberty
Article 21 guarantees the protection of life and personal liberty. The imposition of stringent bail
conditions without judicial discretion results in arbitrary detention, infringing upon the personal
liberty of the accused.
Relevant Case Law:
 Maneka Gandhi v. Union of India (1978): The Supreme Court held that any
procedure depriving a person of personal liberty must be just, fair, and reasonable. The
mandatory conditions of Section 34 do not meet this standard as they lead to arbitrary
and prolonged detention without adequate judicial review.
IV. Comparison with CrPC Provisions
1. Section 438 of the CrPC - Anticipatory Bail
Section 438 of the CrPC provides for anticipatory bail, allowing individuals to seek bail in
anticipation of arrest. The judicial discretion under this section ensures that individuals are not
subjected to arbitrary detention based on accusations alone.
Relevant Case Law:
 Sushila Aggarwal v. State (NCT of Delhi) (2020): The Supreme Court upheld the
importance of anticipatory bail in protecting personal liberty and emphasized the need
for judicial discretion in granting it. The court noted that anticipatory bail serves as a
crucial check against arbitrary arrest and detention.
2. Section 439 of the CrPC - Special Powers of High Court or Court of Session

22
Section 439 confers special powers on the High Court or Court of Session to grant bail,
highlighting the importance of judicial assessment in bail matters.
Relevant Case Law:
 Gurbaksh Singh Sibbia v. State of Punjab (1980): The Supreme Court stressed that
the power to grant bail must not be unduly curtailed by restrictive conditions,
underscoring the need for judicial discretion. The court emphasized that judges must be
allowed to exercise their judgment based on the facts and circumstances of each case.
V. Consequences of Limiting Judicial Discretion
1. Arbitrary Detention
The restrictive conditions under Section 34 lead to arbitrary detention, violating the personal
liberty of the accused and contradicting the principles of natural justice.
Relevant Case Law:
 Arnesh Kumar v. State of Bihar (2014): The Supreme Court warned against the
arbitrary arrest and detention of individuals, highlighting the necessity of judicial
oversight in the bail process. The court underscored that judicial discretion is essential
to prevent misuse of legal provisions and ensure fair treatment of the accused.
2. Erosion of Judicial Independence
The limitations imposed by Section 34 undermine judicial independence, as judges are forced
to adhere to legislative mandates rather than making decisions based on the merits of each case.
Relevant Case Law:
 Indira Nehru Gandhi v. Raj Narain (1975): The Supreme Court emphasized the
importance of judicial independence as a cornerstone of the rule of law. Judicial
discretion allows judges to act impartially and independently, free from external
pressures and legislative constraints.
VI. Recommendations for Restoring Judicial Discretion
1. Amend Section 34
Amend Section 34 to allow for judicial discretion in bail matters, ensuring that judges can
assess the individual circumstances of each case and make fair, just, and reasonable decisions.
The amendment should include provisions that permit judges to consider factors such as the
nature of the offense, the evidence available, the likelihood of the accused committing further
offenses, and the overall interest of justice.
2. Judicial Training

23
Provide training for judges on the application of bail laws, emphasizing the importance of
considering the unique facts of each case and upholding the principles of fairness and justice.
Judicial training programs should focus on enhancing judges' understanding of the nuances of
bail decisions and the significance of judicial discretion in safeguarding individual rights.
3. Legal Reforms
Implement broader legal reforms to ensure that bail laws across various statutes are consistent
and uphold the fundamental rights guaranteed under the Constitution. Legal reforms should aim
to harmonize the provisions of the Raksha Act with the principles of fairness, justice, and
judicial independence enshrined in the Constitution.
Now the on the basis of above arguments the petitioners argue that Section 34 of the Raksha
Act, by unduly limiting judicial discretion, violates the fundamental rights guaranteed under
Articles 14 and 21 of the Constitution. The mandatory conditions for granting bail undermine
judicial independence and result in arbitrary detention. To uphold the principles of equality,
personal liberty, and justice, it is essential to restore judicial discretion in bail matters. This can
be achieved through legislative amendments, judicial training, and broader legal reforms,
ensuring that the legal system remains fair and just for all individuals. The restoration of
judicial discretion will ensure that judges can make informed decisions based on the specific
facts and circumstances of each case, thereby upholding the rule of law and the principles of
natural justice.
4). Is it justified to exempt women from certain stringent legal provisions like those in
rape ?
The appellant, represented by the NGO 'With Our Men Everywhere in Need' (W.O.M.E.N),
argue that Section 34 of the Raksha Act, by exempting women from certain stringent legal
provisions, discriminates based on gender and undermines the principles of equality and
fairness enshrined in the Indian Constitution. This section of the Act is challenged on the
grounds that it is based on the flawed assumption that women cannot be perpetrators of rape,
thus creating an unjust legal disparity.
I. Legal Framework and Gender Neutrality
1. Fundamental Rights Under the Indian Constitution

24
 Article 14 (Equality Before the Law): Guarantees equality before the law and equal
protection of the laws to all individuals within the territory of India.
 Article 15 (Prohibition of Discrimination): Prohibits discrimination on grounds of
religion, race, caste, sex, or place of birth.
 Article 21 (Protection of Life and Personal Liberty): Ensures that no person shall be
deprived of their life or personal liberty except according to the procedure established
by law.
2. Gender Neutrality in Law
The Indian legal system strives to maintain gender neutrality, especially in the context of
criminal law. The assumption that women cannot be perpetrators of sexual offenses is outdated
and contradicts modern understandings of gender and criminality.
Relevant Case Law:
 Navtej Singh Johar v. Union of India (2018): The Supreme Court emphasized the
need to adapt the law to contemporary understandings of gender and sexuality,
advocating for an inclusive and non-discriminatory approach.
II. Flaws in Gender-Based Exemptions
1. Stereotypical Assumptions
Section 34 of the Raksha Act exempts women from stringent bail conditions under the
assumption that they cannot commit rape. This assumption is rooted in gender stereotypes that
undermine the principles of equality and justice.
Relevant Case Law:
 Anuj Garg v. Hotel Association of India (2008): The Supreme Court struck down
gender-biased provisions, emphasizing that laws should not be based on stereotypical
assumptions about gender roles and capabilities.
2. Case of Shabana: Illustration of Gender Bias
In the case of Shabana, her bail was granted on the ground that she is a woman and thus exempt
from the stringent conditions of Section 34. This created a legal disparity, as her male co-
accused were denied bail under the same section, despite similar involvement in the alleged
crime.
Relevant Case Law:
 Sakshi v. Union of India (2004): The Supreme Court recognized that both men and
women can be perpetrators or victims of sexual offenses, advocating for gender-neutral
legal provisions.

25
III. Violations of Constitutional Principles

1. Article 14: Equality Before the Law
The gender-based exemptions under Section 34 violate the principle of equality before the law
by creating an arbitrary distinction between men and women. Such discrimination is
unconstitutional and undermines the integrity of the legal system.
Relevant Case Law:
 National Legal Services Authority v. Union of India (2014): The Supreme Court held
that discrimination based on gender identity violates Article 14, emphasizing the need
for equal treatment under the law.
2. Article 15: Prohibition of Discrimination
Article 15 prohibits discrimination based on sex. By exempting women from certain legal
provisions, Section 34 discriminates against men, contravening the constitutional mandate of
non-discrimination.
Relevant Case Law:
 Air India v. Nargesh Meerza (1981): The Supreme Court struck down discriminatory
service conditions based on sex, reinforcing the principle of non-discrimination.
3. Article 21: Protection of Life and Personal Liberty
The exemption of women from stringent bail conditions under Section 34 can lead to arbitrary
detention and violation of personal liberty for male accused. This is contrary to the protections
guaranteed under Article 21.
Relevant Case Law:
 Maneka Gandhi v. Union of India (1978): The Supreme Court held that any
procedure depriving a person of personal liberty must be just, fair, and reasonable,
emphasizing the need for laws to uphold these principles.
IV. International Perspectives on Gender Equality
1. CEDAW (Convention on the Elimination of All Forms of Discrimination Against
Women)
India is a signatory to CEDAW, which mandates the elimination of discrimination against
women and promotes gender equality. However, CEDAW also implies that equality must be
achieved without unjustly favoring one gender over another.
2. International Human Rights Law

26
International human rights instruments, such as the International Covenant on Civil and
Political Rights (ICCPR), advocate for gender-neutral laws and equality before the law for all
individuals, irrespective of gender.
Relevant Case Law:
 General Recommendation No. 28 (CEDAW Committee): Stresses the importance of
eliminating stereotypes and promoting gender equality in all aspects of life, including
the legal system.
V. Recommendations for Legal Reform
1. Amend Section 34
Amend Section 34 to remove gender-based exemptions and ensure that the stringent conditions
apply equally to all individuals, regardless of gender. This will uphold the principles of equality
and fairness enshrined in the Constitution.
2. Promote Gender Neutrality
Ensure that all laws related to sexual offenses are gender-neutral, recognizing that both men
and women can be perpetrators and victims. This approach will promote a more just and
equitable legal system.
3. Judicial Training and Awareness
Provide training for judges and legal practitioners on the importance of gender neutrality and
the dangers of gender stereotypes in the legal process. Judicial training programs should focus
on sensitizing judges to the principles of equality and non-discrimination, ensuring that they
apply these principles in their rulings.
Conclusion
The petitioners argue that Section 34 of the Raksha Act, by exempting women from stringent
legal provisions, discriminates based on gender and violates fundamental constitutional
principles. The assumption that women cannot be perpetrators of rape is outdated and unjust.
To uphold the principles of equality, fairness, and justice, it is essential to amend Section 34
and promote gender neutrality in the legal system. This will ensure that all individuals,
regardless of gender, are treated equally before the law and that the legal system remains fair
and just for all.

27
PRAYER
In light of the facts and circumstances of the case, and the arguments advanced herein, it is
most respectfully prayed that this Hon'ble Court may be pleased to:
1. Declare that the gender-based exemptions under Section 34 of the Raksha Act,
2027, violate Articles 14, 15, and 21 of the Constitution of India, and are
therefore unconstitutional and void ab initio;
2. Issue a writ of mandamus or any other appropriate writ, order, or direction,
directing the Respondents to amend Section 34 of the Raksha Act, 2027, to
remove the gender-based exemptions, and ensure that the stringent conditions
for granting bail apply equally to all individuals irrespective of their gender;
3. Direct the Respondents to undertake a comprehensive review and amendment of
the Raksha Act, 2027, and all related legislation, to promote gender neutrality,
ensuring equal treatment of men and women before the law;
4. Issue guidelines for the training of judges, judicial officers, and legal
practitioners on the imperative of gender neutrality and the elimination of gender
stereotypes within the judicial process, thereby promoting a more just and
equitable legal system;
5. Grant such other and further reliefs as this Hon'ble Court may deem fit and
proper in the interest of justice and to uphold the principles of equality and non-
discrimination enshrined in the Constitution of India.
And for this act of kindness, the Petitioners shall, as in duty bound, ever pray.
Counsel on behalf of Respondent

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1

TEAM CODE- DL-101

2ND SAMAR KUMAR BASU NATIONAL VIRTUAL MOOT

BEFORE THE HON’BLE SUPREME COURT OF INDIA

WITH OUR MEN EVEREWHERE IN NEED (W.O.M.E.N)

APPEAL FILED UNDER ARTICLE 136 OF CONSTITUTION OF

MEMORIAL ON BEHALF OF THE

MEMORIAL FOR RESPONDENT

( ii) CASE REFFERED……………………………………………………….. 4

STATEMENT OF FACT………………………………………………........... 5-10

SUMMARY ARGUMENT……………………………………………………… 11-13

ARGUMENT ADVANCE……………………………………………………….. 13-30

MEMORIAL ON BEHALF OF THE RESPONDENTS

AIR: ALL INDIA REPORTER

MEMORIAL ON BEHALF OF THE RESPONDENTS

1. CONSTITUTION OF INDIA BY SIR J.N.PANNDY

1. State of West Bengal v. Anwar Ali Sarkar (1952):

12. Prem Shankar Shukla v. Delhi Administration (1980):

13. Navtej Singh Johar Vs Union Of India ( 2018)

14. State of Punjab Vs Dalbir Singh ( 2012)

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

V. Recommendations and Conclusion

MEMORIAL ON BEHALF OF THE RESPONDENTS

I. Violation of Article 14 - Equality Before the Law

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

III. Violations of Constitutional Principles

MEMORIAL ON BEHALF OF THE RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

Counsel on behalf of Respondent

MEMORIAL ON BEHALF OF THE RESPONDENTS

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