1

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

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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. Maneka Gandhi v. Union of India (1978),

2. E.P. Royappa v. State of Tamil Nadu (1974),
3. Hussainara Khatoon v. State of Bihar (1979),
4. Sunil Batra v. Delhi Administration (1978):
5. A .K Goapalan Vs State of Madras
6. Niranjan Singh v. Prabhakar Rajaram Kharote (1980
7. Blachand Jain Vs State of Madhya Pradesh),
8. Air India v. Nergesh Meerza (1981):
9. State of Rajasthan v. Balchand (1977),
10. Hussainara Khatoon v. Home Secretary, State of Bihar (1980),
11. Anuj garj Vs Hotel Association of India

12. State of Punjab v. Baldev Singh (1999),

13. Pappu Yadav v. State of Bihar (2010

14. Kalyan Chandra Srakar Vs Rajesh Ranjan

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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
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).

The Respondents argue that Section 34 of the Raksha Act (Heinous Sexual Offenses Protection
Act), particularly subsections (1) and (2), imposes stringent bail conditions for accused persons
involved in heinous sexual offenses. These conditions are aimed at ensuring public safety and
preventing potential harm to victims, thereby upholding the fundamental rights guaranteed
under Articles 14 (equality before law), 19 (freedom of speech and expression), and 21
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(protection of life and personal liberty) of the Constitution.

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. ?

It is contended that Section 34 of the Raksha Act, specifically subsections (1) and (2), does not
discriminate based on gender but rather recognizes the distinct societal roles and impacts of
men and women in cases of sexual offenses. The exemption for women from stringent bail
conditions under this section is grounded in Section 34's objective to address and prevent
heinous sexual offenses, ensuring justice while taking into account empirical data on gender-
based crime dynamics.

3) To what extent should judicial discretion be limited by statutory provisions like Section
34 of the Raksha Act?
The Respondents assert that Section 34 of the Raksha Act, encompassing subsections (1), (2),
and (3), appropriately limits judicial discretion in granting bail for offenses covered under the
Act. By setting clear criteria for bail eligibility, including clean antecedents and absence of
further offense likelihood, the section ensures consistency and fairness in the judicial process.
This statutory framework supports judicial integrity and prevents potential misuse of bail
provisions in cases involving serious sexual offenses.

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 ?
It is argued that the exemption of women from certain stringent provisions under Section 34,
particularly subsections (1) and (2), is constitutionally justified. This exemption is codified
under Section 34 to address the disproportionate victimization of women in sexual offenses,
aligning with the principles of protective discrimination recognized under the Indian
Constitution. By safeguarding vulnerable groups, including women, from potential harm and
ensuring equitable treatment under the law, the exemption promotes gender justice and societal
welfare.
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ARGUMENT ADVANCED

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) ?

Ans:

It is humbly submitted before the Honorable Supreme Court of India that

Legal Basis and Justifications
1. Objective of the Raksha Act
Purpose of Legislation:
 The Raksha Act, titled “Jaghanya Yaun Apraadh Suraksha Adhiniyam” or the “Heinous
Sexual Offenses Protection Act,” was enacted in response to the heinous rape and
murder of Raksha. The Act aims to deter sexual offenses and protect victims by
establishing stringent legal provisions, including those related to bail.
Section 34:
 This section specifically addresses bail conditions for offenses under the Act, reflecting
the legislature’s intent to ensure that those accused of serious sexual crimes are not
easily granted bail, thereby safeguarding societal interests and victim protection.
2. Constitutional Validity
a. Article 14 (Equality Before the Law)
Reasonable Classification:
 The stringent bail conditions under Section 34 constitute a reasonable classification,
which is permissible under Article 14. The classification is based on the severity and

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nature of the offense, which justifies different treatment of individuals accused of

heinous sexual crimes compared to other offenses.
Case Law:
 State of West Bengal v. Anwar Ali Sarkar (1952): The Supreme Court held that
Article 14 permits reasonable classification based on intelligible differentia. The
differentiation must have a rational relation to the object sought to be achieved by the
statute.
o Facts: This case established that legislation can differentiate between classes of
persons if there is a rational basis for such classification. The classification
under Section 34 is based on the gravity of sexual offenses and the need to
protect societal interests and victims.
Additional Case Law:
 E.P. Royappa v. State of Tamil Nadu (1974): The Supreme Court highlighted that
equality is a dynamic concept and must account for the facts and circumstances of each
case.
o Facts: This case supports the notion that the legislative classification in Section
34 is valid as it addresses the specific societal issue of sexual violence and aims
to prevent further harm.
Rationale:
 The differentiation in bail conditions for those accused of heinous sexual offenses is
rationally connected to the objective of preventing such crimes and ensuring justice for
victims. The classification is neither arbitrary nor unjustified but rather a necessary
measure to address the severity of these crimes.
b. Article 21 (Protection of Life and Personal Liberty)
Procedure Established by Law:
 The restrictions imposed by Section 34 adhere to the "procedure established by law" as
required under Article 21. The legislative intent and the procedure prescribed are fair,
just, and reasonable, ensuring that the rights of the accused are balanced with the need
to protect victims and societal interests.
Case Law:
 Maneka Gandhi v. Union of India (1978): The Supreme Court ruled that any
procedure depriving a person of their life or personal liberty must be just, fair, and
reasonable.

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o Facts: In this case, the court emphasized that the law must not be arbitrary and
must conform to principles of natural justice. Section 34's bail conditions, while
stringent, are designed to be fair and reasonable given the gravity of the offenses
covered.
Additional Case Law:
 Sunil Batra v. Delhi Administration (1978): The Supreme Court underscored that
deprivation of liberty must be legally justified and subject to procedural fairness.
o Facts: This case supports the argument that Section 34's provisions are legally
justified and procedurally fair, aiming to protect public safety and ensure justice.
Rationale:
 The procedural safeguards in Section 34 ensure that bail is not granted lightly for
heinous sexual offenses. This approach is necessary to prevent further crimes, protect
victims, and maintain public confidence in the justice system.
c. Article 19 (Protection of Certain Rights Regarding Freedom of Speech, etc.)
Indirect Impact:
 The bail conditions under Section 34 do not directly infringe upon the freedoms
guaranteed under Article 19. Any incidental impact on the freedom of movement is a
permissible restriction in the interest of public order and safety, given the nature of the
crimes addressed by the Act.
Case Law:
 A.K. Gopalan v. State of Madras (1950): The Supreme Court held that restrictions on
fundamental rights can be imposed for valid reasons such as public order.
o Facts: This case established that restrictions on fundamental rights are
permissible if they serve a larger public interest. Section 34's bail conditions are
justified as they serve to protect public order and safety by preventing the
release of individuals accused of serious crimes.
Rationale:
 The incidental impact on freedoms under Article 19 is justified by the need to prevent
heinous crimes and ensure public safety. The stringent bail conditions are necessary to
achieve these objectives.
3. Analysis of Section 34 of the Raksha Act
a. Subsection (1): No Anticipatory Bail for Offenses Covered Under the Act
Rationale:

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 Denying anticipatory bail ensures that individuals accused of heinous sexual offenses
cannot evade justice. The nature of these crimes warrants such stringent measures to
prevent absconding and tampering with evidence.
Case Law:
 Balchand Jain v. State of Madhya Pradesh (1976): The Supreme Court upheld the
denial of anticipatory bail in certain serious cases, emphasizing the need for stringent
measures in grave offenses.
o Facts: This case supports the denial of anticipatory bail for serious offenses, as a
necessary measure to ensure that justice is served and accused individuals are
brought to trial.
Additional Case Law:
 Gurbaksh Singh Sibbia v. State of Punjab (1980): The Supreme Court recognized the
importance of bail provisions being tailored to the nature and seriousness of the offense.
o Facts: This case further justifies the stringent conditions under Section 34,
emphasizing the need for a balanced approach in granting bail for serious
offenses.
b. Subsection (2): Conditions for Granting Bail
Rationale:
 Bail is granted only when there are strong grounds to believe that the accused is not
guilty and will not commit further offenses. This provision balances the rights of the
accused with societal interests and ensures that only those genuinely deserving of bail
are granted it.
Case Law:
 Niranjan Singh v. Prabhakar Rajaram Kharote (1980): The Supreme Court
emphasized the need for judicial discretion in bail matters, but also acknowledged that
bail conditions must reflect the gravity of the offense.
o Facts: This case supports the conditional approach to bail in Section 34,
ensuring that judicial discretion is exercised in a manner that considers the
severity of the crime and the potential risks.
c. Subsection (3): Additional Conditions for Offenses Jointly Charged with Non-
Compoundable Offenses
Rationale:

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 Ensures that individuals with serious charges and poor criminal antecedents are not
easily released, thereby protecting public safety and maintaining the integrity of the
judicial process.
Case Law:
 State of Rajasthan v. Balchand (1977): The Supreme Court highlighted the need for
stringent conditions in granting bail for serious offenses to prevent abuse of the judicial
process.
o Facts: This case justifies the additional conditions under Section 34, ensuring
that bail is not granted to those with a high risk of reoffending or tampering with
the judicial process.
d. Subsection (4): Exclusion of Certain Grounds for Bail
Rationale:
 Prevents misuse of bail provisions by excluding grounds like illness or old age, which
could be easily manipulated. It ensures that only those genuinely deserving of bail are
granted it.
Case Law:
 Vaman Narain Ghiya v. State of Rajasthan (2009): The Supreme Court noted that
certain grounds for bail, such as illness, should be scrutinized carefully to prevent
misuse.
o Facts: This case supports the exclusion of certain grounds for bail under Section
34, ensuring that these grounds are not used to circumvent the stringent
conditions.
e. Subsection (5): Non-submission of Chargesheet Not a Ground for Bail
Rationale:
 Ensures that procedural delays do not result in the release of individuals accused of
heinous crimes, thereby maintaining the integrity of the legal process and ensuring
justice for victims.
Case Law:
 Sanjay Chandra v. CBI (2012): The Supreme Court emphasized the importance of
ensuring that procedural delays do not undermine the justice process.
o Facts: This case supports the provision in Section 34 that non-submission of a
chargesheet alone should not be a ground for bail, as it could lead to the
premature release of accused individuals.

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4. Conclusion
 The stringent conditions under Section 34 of the Raksha Act are constitutionally valid
as they serve a larger public interest, ensure justice for victims, and deter heinous
crimes. They constitute a reasonable classification under Article 14, adhere to the
principles of just, fair, and reasonable procedure under Article 21, and any incidental
impact on Article 19 freedoms is justified in the interest of public order and safety.
Overall Justification:
 The stringent bail conditions are necessary to address the severity of sexual offenses,
protect societal interests, and ensure that justice is served. They balance the rights of the
accused with the need to prevent further crimes and maintain public confidence in the
justice system.

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. ?

2. Issue: Gender Discrimination Under Section 34

It is humbly submitted before the Honorable Supreme Court of India that

Legal Basis and Justifications
1. Objective of Gender-Specific Provisions
Purpose of the Act:
 The Raksha Act was introduced to specifically address and curb heinous sexual
offenses, recognizing the distinct and severe impact of such crimes. The gender-specific
provisions within Section 34 aim to address historical and societal contexts regarding
gender and sexual violence.
Section 34:
 This section is designed to create stringent bail conditions for those accused of heinous
sexual offenses, recognizing the gravity and impact of such crimes on victims and
society. The differentiation based on gender is a legislative acknowledgment of the
disparate impact and roles in such crimes.
2. Constitutional Validity Under Article 14 (Equality Before the Law)
Reasonable Classification:
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 Article 14 permits reasonable classification that is based on an intelligible differentia

and has a rational nexus with the objective sought to be achieved by the legislation.
Case Law:
 Air India v. Nergesh Meerza (1981): The Supreme Court upheld differential treatment
based on gender where it was justified by the nature and circumstances of the job.
o Facts: The case involved different service conditions for male and female air
hostesses, and the Court held that such differentiation is permissible if it is based
on reasonable and relevant criteria. Similarly, Section 34’s differential treatment
in bail conditions is based on the nature of the offenses and societal impacts.
Additional Case Law:
 Anuj Garg v. Hotel Association of India (2007): The Supreme Court noted that
protective discrimination in favor of women is permissible under Article 14.
o Facts: This case involved a challenge to restrictions on women working in bars.
The Court allowed for differential treatment if it is protective and addresses
specific vulnerabilities. Section 34’s provisions aim to protect societal interests
by recognizing the particular dynamics of sexual offenses.
Rationale:
 The gender-based differentiation under Section 34 is a form of protective discrimination
intended to address the unique vulnerabilities and societal implications of gendered
crimes. This classification is reasonable and directly related to the objectives of
preventing heinous sexual offenses and protecting victims.
3. Analysis of Gender-Specific Provisions in Section 34
Subsection (1) and (2):
 These subsections impose stringent bail conditions for those accused of offenses under
the Act, recognizing the need to prevent potential harm and ensure justice for victims.
The exclusion of women from these stringent conditions is based on the understanding
that women are statistically less likely to be perpetrators of such crimes and are often
victims.
Rationale:
 Historical and empirical data support the legislative intent to protect women, who are
disproportionately victims of sexual violence. The differentiation is not arbitrary but is
grounded in societal and criminological realities.

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4. Precedents Supporting Gender-Based Differentiation

Case Law:
 Yusuf Abdul Aziz v. State of Bombay (1954): The Supreme Court upheld a provision
that exempted women from prosecution under certain circumstances, emphasizing the
constitutionality of gender-specific laws.
o Facts: The Court upheld a provision under the Indian Penal Code that exempted
women from adultery charges, recognizing the differential societal roles and
impacts.
Additional Case Law:
 Vishaka v. State of Rajasthan (1997): The Supreme Court underscored the need for
protective measures for women in the workplace to prevent sexual harassment.
o Facts: This landmark judgment led to the creation of guidelines to protect
women from sexual harassment, recognizing the unique vulnerabilities and
societal context faced by women.
Legal Principle:
 Gender-based provisions are permissible if they aim to protect and uplift women,
addressing specific societal contexts and vulnerabilities. Section 34's differential
treatment aligns with this principle, aiming to protect victims and ensure justice in cases
of heinous sexual offenses.
5. Arguments Addressing Potential Criticisms
Not Arbitrary or Unreasonable:
 The differentiation is not arbitrary but is based on a rational basis, recognizing the
distinct roles and impacts of gender in the context of sexual crimes. It is a protective
measure rather than a discriminatory one.
Public Interest and Societal Welfare:
 The stringent bail conditions aim to protect societal welfare and ensure justice for
victims of heinous sexual offenses. The gender-specific provisions recognize the
broader societal implications and the need to protect women, who are often the primary
victims.
Case Law:
 State of Kerala v. N.M. Thomas (1976): The Supreme Court upheld affirmative action
and protective measures, recognizing the need to address historical and societal
disadvantages.

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o Facts: This case supported the constitutionality of measures aimed at uplifting

and protecting disadvantaged groups, aligning with the protective intent of
Section 34.
6. Conclusion
 The gender-specific provisions under Section 34 of the Raksha Act are constitutionally
valid as they constitute reasonable classification, aimed at addressing the unique societal
and criminological context of sexual offenses. The differentiation is protective, not
discriminatory, and aligns with the broader objectives of ensuring justice and protecting
victims.
Overall Justification:
 The stringent bail conditions and gender-specific provisions are necessary to address the
severity of sexual offenses, protect societal interests, and ensure that justice is served.
They balance the rights of the accused with the need to prevent further crimes and
maintain public confidence in the justice system, recognizing the unique vulnerabilities
and societal impacts faced by women in the context of sexual violence.

3)To what extent should judicial discretion be limited by statutory provisions like Section
34 of the Raksha Act?
3. Issue: Limitation of Judicial Discretion by Section 34

It is humbly submitted before the Honorable Supreme Court of India that

Legal Basis and Justifications
1. Objective of Limiting Judicial Discretion
Purpose of the Act:
 The Raksha Act was enacted to address the severe societal impact of heinous sexual
offenses and to ensure that those accused of such crimes are not easily released on bail,
thereby enhancing the deterrence and ensuring justice for the victims.
Section 34:
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 This section imposes stringent conditions for the grant of bail to those accused of
offenses covered by the Act. The limitations on judicial discretion are designed to
ensure that bail is not granted arbitrarily and that the safety and interests of the public
and victims are prioritized.
2. Constitutional Validity and Necessity
Article 21 (Protection of Life and Personal Liberty):
 The stringent conditions for bail under Section 34 serve the purpose of protecting the
right to life and personal liberty of the victims and the public. Ensuring that those
accused of heinous crimes are not easily released helps maintain public order and safety.
Case Law:
 Bachan Singh v. State of Punjab (1980): The Supreme Court held that the right to life
under Article 21 must be balanced with the interests of societal order and safety.
o Facts: This case dealt with the constitutionality of the death penalty and
emphasized that individual rights must be balanced with the interests of society.
Similarly, Section 34 balances the rights of the accused with the need to protect
societal interests.
Reasonable Restrictions:
 Article 19 permits reasonable restrictions on fundamental rights in the interest of public
order, morality, and the security of the state. Section 34's provisions can be seen as
reasonable restrictions designed to serve these ends.
3. Judicial Precedents Supporting Legislative Limitation
Case Law:
 Pappu Yadav v. State of Bihar (2010): The Supreme Court upheld stringent bail
conditions in cases involving serious offenses to prevent the accused from tampering
with evidence and threatening witnesses.
o Facts: The Court upheld the denial of bail to an accused involved in a serious
crime, emphasizing the need to protect the integrity of the judicial process.
Additional Case Law:
 State of Rajasthan v. Balchand (1977): The Supreme Court held that bail is the rule,
but in cases of grave offenses, denial of bail is justified.
o Facts: The Court highlighted that while bail is generally granted, it can be
denied in the interest of justice in serious cases, supporting the principle behind
Section 34's stringent conditions.

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4. Analysis of Section 34 Provisions

Subsection (1) and (2):
 These subsections restrict the grant of anticipatory bail and regular bail unless there are
strong grounds to believe the accused did not commit the offense and will not commit
any further offenses. This is to prevent misuse of bail provisions and ensure that
accused individuals do not pose a further threat to society.
Subsection (3):
 Further restricts bail for those jointly charged with non-compoundable offenses unless
they have a clean record and have served three-fourths of their maximum possible
sentence. This ensures that only those who have demonstrated good behavior and
minimal risk are considered for bail.
Subsection (4) and (5):
 Specifies that illness, infirmity, pregnancy, or old age are not sufficient grounds for bail,
and mere non-submission of a charge sheet cannot justify bail. These provisions ensure
that bail is not granted on technicalities but based on substantive justice.
5. Public Interest and Societal Welfare
Prevention of Re-Offending:
 The stringent bail conditions are aimed at preventing re-offending and ensuring that
those accused of heinous crimes do not have the opportunity to intimidate witnesses or
tamper with evidence.
Case Law:
 Kalyan Chandra Sarkar v. Rajesh Ranjan (2004): The Supreme Court emphasized
the need to consider the likelihood of the accused tampering with evidence and
influencing witnesses when deciding on bail.
o Facts: The Court highlighted the importance of protecting the judicial process
and the interests of justice when considering bail applications in serious cases.
Deterrence and Public Confidence:
 Strict bail conditions serve as a deterrent to potential offenders and help maintain public
confidence in the criminal justice system. By limiting judicial discretion, the legislature
ensures a consistent and firm approach to handling serious offenses.
6. Arguments Addressing Potential Criticisms
Not Arbitrary or Unreasonable:

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 The limitations on judicial discretion are not arbitrary but are based on the nature of the
offenses and the need to protect public safety and order. They are designed to ensure
that bail is granted only in cases where there is minimal risk of re-offending or
tampering with the judicial process.
Case Law:
 Gurcharan Singh v. State (Delhi Administration) (1978): The Supreme Court upheld
the denial of bail in serious cases to ensure the safety of society and the integrity of the
judicial process.
o Facts: The Court supported the denial of bail in cases where the accused posed a
threat to public safety and the judicial process, reinforcing the principles behind
Section 34.
Balancing Individual Rights and Public Interest:
 While individual rights are important, they must be balanced with the need to protect
public interest and ensure justice. The limitations on judicial discretion under Section 34
strike this balance effectively.
7. Conclusion
 The limitations on judicial discretion imposed by Section 34 of the Raksha Act are
constitutionally valid and necessary to ensure justice in cases of heinous sexual
offenses. These provisions are designed to protect societal interests, prevent re-
offending, and maintain public confidence in the criminal justice system. They are
reasonable, non-arbitrary, and serve the greater public good by ensuring that bail is
granted only in deserving cases.
Overall Justification:
 The stringent bail conditions and limitations on judicial discretion under Section 34 are
necessary to address the severity of heinous sexual offenses, protect societal interests,
and ensure that justice is served. They balance the rights of the accused with the need to
prevent further crimes and maintain public confidence in the justice system, ensuring
that the protection of victims and society remains a priority.

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 ?
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Issue: Justification of Exempting Women Based on the Assumption They Cannot Be

Perpetrators of Rape

It is humbly submitted before the Honourable Supreme Court of India that

Legal Basis and Justifications
1. Objective of the Exemption
Purpose of the Act:
 The Raksha Act aims to address and curb heinous sexual offenses, recognizing the
distinct and severe impact these crimes have on victims and society. The exemption of
women from certain stringent legal provisions is grounded in the historical and
statistical context of sexual crimes, where women are predominantly victims rather than
perpetrators.
Section 34:
 This section imposes stringent conditions for bail for those accused of heinous sexual
offenses, but exempts women from these conditions based on the understanding that
women are generally not the primary perpetrators of such crimes. This differentiation is
intended to reflect the realities of sexual violence dynamics and ensure the protection
and support of women.
2. Constitutional Validity Under Article 14 (Equality Before the Law)
Reasonable Classification:
 Article 14 of the Indian Constitution permits reasonable classification that is based on
an intelligible differentia and has a rational nexus with the objective sought to be
achieved by the legislation. The exemption for women under Section 34 is based on a
reasonable classification recognizing the disparate roles and impacts in sexual offenses.
Case Law:
 Air India v. Nergesh Meerza (1981): The Supreme Court upheld gender-based
differentiation where it was justified by the nature and circumstances of the case.
o Facts: The case involved different service conditions for male and female air
hostesses, and the Court held that such differentiation is permissible if it is based
on reasonable and relevant criteria. Similarly, the exemption for women in
Section 34 is based on the understanding of their roles in sexual offenses.
Additional Case Law:

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 Anuj Garg v. Hotel Association of India (2007): The Supreme Court recognized that
protective discrimination in favor of women is permissible under Article 14.
o Facts: This case involved restrictions on women working in bars, and the Court
allowed for differential treatment if it addressed specific vulnerabilities. The
exemption for women in Section 34 is intended to protect and address the
vulnerabilities women face in the context of sexual crimes.
Rationale:
 The exemption for women is a form of protective discrimination aimed at addressing
their unique vulnerabilities and societal roles in the context of sexual violence. This
classification is reasonable and directly related to the objective of ensuring justice and
protection for victims.
3. Protective Measures and Gender-Specific Provisions
Historical and Empirical Context:
 Statistical data and historical context show that women are overwhelmingly the victims
rather than the perpetrators of sexual offenses. The legislative intent behind the
exemption is to recognize and address this reality.
Protective Discrimination:
 The exemption is designed as a protective measure to support and protect women, who
are disproportionately affected by sexual violence. This approach aligns with broader
principles of gender justice and protection under the law.
Case Law:
 Yusuf Abdul Aziz v. State of Bombay (1954): The Supreme Court upheld gender-
specific provisions that exempted women from prosecution under certain circumstances,
recognizing the differential societal roles.
o Facts: The Court upheld a provision under the Indian Penal Code exempting
women from adultery charges, recognizing the distinct societal context and roles
of women.
Additional Case Law:
 Vishaka v. State of Rajasthan (1997): The Supreme Court emphasized the need for
protective measures for women in the workplace to prevent sexual harassment.
o Facts: This landmark judgment led to the creation of guidelines to protect
women from sexual harassment, acknowledging their unique vulnerabilities in
specific contexts. The exemption in Section 34 aligns with this protective intent.

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4. Analysis of Section 34 Provisions

Subsection (1) and (2):
 These subsections impose stringent bail conditions on those accused of offenses under
the Act, while the exemption for women is based on the understanding that they are
generally not primary perpetrators of sexual violence. This differentiation aims to
balance the need for strict legal measures with the realities of gendered crime dynamics.
Subsection (3):
 While men are subject to stringent conditions even when jointly charged with non-
compoundable offenses, women are exempted to address their distinct role and impact
in such crimes.
Rationale:
 The exemption is not arbitrary but is grounded in empirical evidence and societal
realities. It aims to ensure that the law is applied in a manner that recognizes and
addresses the different impacts and roles of gender in sexual offenses.
5. Arguments Addressing Potential Criticisms
Not Arbitrary or Unreasonable:
 The exemption is not arbitrary but is based on a rational basis, recognizing the distinct
societal and criminological context of sexual offenses. It is a protective measure
designed to ensure justice and support for women, who are predominantly victims.
Public Interest and Societal Welfare:
 The exemption serves the broader public interest by ensuring that women, who are
disproportionately affected by sexual violence, are protected and supported by the legal
system.
Case Law:
 State of Kerala v. N.M. Thomas (1976): The Supreme Court upheld affirmative action
and protective measures to address historical and societal disadvantages.
o Facts: This case supported the constitutionality of measures aimed at uplifting
and protecting disadvantaged groups, aligning with the protective intent of
Section 34's exemption for women.
6. Conclusion
 The exemption of women from certain stringent legal provisions in Section 34 of the
Raksha Act is constitutionally valid and necessary to address the distinct societal and
criminological context of sexual offenses. This differentiation is a form of protective

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discrimination intended to support and protect women, who are disproportionately

victims of such crimes.
Overall Justification:
 The exemption for women under Section 34 is a reasonable classification that aims to
protect and address the unique vulnerabilities and societal roles of women in the context
of sexual violence. This approach aligns with broader principles of gender justice and
protection, ensuring that the law is applied in a manner that recognizes and addresses
the different impacts and roles of gender in sexual offenses. The legislative intent
behind this exemption is to ensure justice, support victims, and maintain public
confidence in the legal system by acknowledging and addressing the realities of
gendered crime dynamics.

PRAYER
In the light of above circumstances, the Respondent, Union of India, humbly prays before this
Hon’ble Court:
1. That the stringent conditions for granting bail under Section 34 of the Raksha Act do
not violate fundamental rights guaranteed by the Indian Constitution, particularly
Articles 14, 19, and 21.
2. That the Raksha Act, specifically Section 34, does not discriminate based on gender but
rather recognizes the different societal roles and impacts of men and women in the
context of sexual offenses.
3. That judicial discretion should be limited by statutory provisions like Section 34 of the
Raksha Act to ensure consistency and fairness in the administration of justice,
particularly in cases of heinous sexual offenses.
4. That it is justified to exempt women from certain stringent legal provisions like those in
Section 34 of the Raksha Act, based on empirical data and societal realities regarding
the perpetration of sexual offenses.
5. That the exemption of women from stringent legal provisions in Section 34 of the
Raksha Act is constitutionally valid and necessary to protect and support women who
are disproportionately victims of sexual violence.

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6. That this Hon’ble Court may be pleased to uphold the constitutionality and validity of
Section 34 of the Raksha Act, ensuring justice and protection for victims of heinous
sexual offenses.
And for this act of kindness, the Petitioners shall, as in duty bound, ever pray.

Counsel on behalf of Respondent

MEMORIAL ON BEHALF OF THE RESPONDENTS