28 Sep 2022 10:52 AM GMT
The Punjab and Haryana High Court has held that an undertrial or a juvenile who is in conflict with law does not have any fundamental or statutory right to pursue higher education abroad.Justice Jasgurpreet Singh Puri in the ruling also said that though the right to travel abroad is a "valuable and basic right" apart from being an integral part of right to personal liberty, it can be curtailed...
The Punjab and Haryana High Court has held that an undertrial or a juvenile who is in conflict with law does not have any fundamental or statutory right to pursue higher education abroad.
Justice Jasgurpreet Singh Puri in the ruling also said that though the right to travel abroad is a "valuable and basic right" apart from being an integral part of right to personal liberty, it can be curtailed in a "reasonable, just and fair manner" under Juvenile Justice (Care and Protection of Children) Act, particularly Sections 90 and 91 of the enactment.
The court passed the verdict on a criminal revision filed by a juvenile, who was involved in a case of road accident in which a 49-year-old died in October 2020, against the Juvenile Justice Board's refusal to permit him to travel abroad for higher education.
The juvenile has got admission in Columbia College in the United State for a course of four years. His counsel argued before the court that pendency of inquiry under the JJ Act cannot deprive the petitioner of his fundamental right for studying abroad. It was also submitted that the juvenile will present himself before the JJB whenever required for the inquiry.
After hearing the amicus curiae, the counsel representing the petitioner and a government lawyer, the court framed two legal issues for consideration:
1. Whether an undertrial or a juvenile who is a child in conflict with law has any Fundamental or Statutory right to higher education abroad or not?2. Whether the impugned orders passed by the learned JJB as well as the learned Addl. Sessions Judge are in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act?
1. Whether an undertrial or a juvenile who is a child in conflict with law has any Fundamental or Statutory right to higher education abroad or not?
2. Whether the impugned orders passed by the learned JJB as well as the learned Addl. Sessions Judge are in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act?
Right to Travel Abroad For Higher Education
Referring to Supreme Court's decision in Unni Krishnan, J.P. versus State of Andhra Pradesh, Justice Puri noted that it has been held that the citizens of the country have a fundamental right to education.
"The said right flows from Article 21, but this right is however not an absolute right and its content and parameters have to be determined in the light of Articles 45 and 41 and in other words every child/citizen of this country has a right to free education until he completes the age of 14 years. His right to education is subject to the limits of economic capacity and development of the State," it added.
On the contention that right to pursue education abroad will also be included in Article 21 of the Constitution in accordance with Supreme Court's judgement in Maneka Gandhi's case, Justice Puri noted that the apex court in that matter dealt with "the issue with regard to right to travel abroad where the passport was impounded without following any just and fair procedure".
"However, the issue with regard to right to seek higher education abroad was not the subject matter in the aforesaid case. The Right of Children to Free and Compulsory Education Act, 2009 was enacted after the judgment of the Supreme Court in Unni Krishnan's case and it came into force w.e.f. 01.04.2010," said the court.
However, the court further said that Supreme Court in Farzana Batool's case has observed that right to pursue higher professional education has not been spelt out as a fundamental right in Part III of the Constitution of India.
On the petitioner's argument that petitioner has a fundamental right to travel abroad, the court also noted that same cannot be sustained since he is not seeking the permission for any short period but for a continuous period of four years.
While answering the first question framed by it, the court said:
"In view of the above legal as well as factual position, this Court is of the view that the petitioner does not have any Fundamental Right or Statutory Right to study abroad for higher education. He can be deprived of right to travel abroad only in accordance with procedure established by law. It is incumbent upon JJ Board to exercise power in a reasonable, just and fair manner by considering the scheme, object and spirit of JJ Act especially Sections 90 and 91."
Section 90, 91 of JJ Act
The JJB had dismissed the petitioner's application saying that since an inquiry under the Act is required to be completed within four months from the date of first production unless it is extended, it would not be feasible to permit him to go abroad for a long duration.
The Additional Sessions Judge, Gurgaon had upheld the JJB decision on the ground that there is already delay in processing the inquiry due to repeated filing of application by the juvenile and other child, who was the driver of the vehicle that hit the victim's bike.
Amicus Curiae Preeetinder Singh Ahluwalia submitted before the court the orders passed by the JJB and ASJ have not considered the provisions under which the attendance of the child is liable to dispensed with if it is not found to be essential for the purpose of inquiry. Advocate Ahluwalia in his submissions also referred to Section 3 of the JJ Act which pertain to the principles of presumption of innocence and upholding of best interest of the child.
Justice Puri in the decision said ASJ Gurgaon did not consider the effect of Section 90 and 91 of the Act which pertain to attendance of parent/guardian of the child and dispensing with the attendance of child. The court observed:
"Section 91(1) consists of two stages. Firstly, if during the course of an inquiry, the Committee or the Board is satisfied that the attendance of the child is not essential for the purpose of inquiry, then Secondly, the Board or the Committee shall dispense with the attendance of the child. The expression "shall" has been used in the second part of Section 91(1) and therefore it is mandatory in nature. In other words, when at any stage the Committee or a Board records its satisfaction that the attendance of the child is not essential then the second mandatory part comes into operation".
The court also accepted a submission that certain observations made by the ASJ in its order are adversarial and accusatory.
"A perusal of aforesaid paras would show that the observations made therein are contrary to the fundamental principles prescribed under Section 3(viii) of the JJ Act. Therefore it is directed that the observations/remarks made by the learned Addl. Sessions Judge in paras 12 and 14 in its order dated 27.06.2022 are hereby struck off from the record," it said.
Partly allowing the revision petition, Justice Puri said the orders passed by the JJB and ASJ are not in consonance with the JJ Act especially Sections 90 and 91 of the Act. Setting aside the orders, the court directed the JJB to pass a fresh order within a period of one month.
Title: Rxxxxx Dxxxxx Versus State of Haryana
Counsel For Petitioner: Senior Advocate R. S. Rai with Advocate Rubina
Counsel For State: Ranvir Singh Arya, Additional Advocate General
Amicus Curiae: Preetinder Singh Ahluwalia
Citation: 2022 LiveLaw (PH) 259
Click Here to Read Order/Judgement