Allahabad High Court
Rajiv Kumar vs State Of U.P. And Another on 11 March, 2019
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Reserved Court No. - 40 Case :- WRIT - A No. - 53425 of 2007 Petitioner :- Rajiv Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Satyam Singh,Shiv Nath Singh,Vijay Gautam Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
Introduction:
1. The petitioner was appointed as a Constable in the Provincial Armed Constabulary on 26.08.2006, pursuant to his selection in the recruitment process. The appointment of the petitioner was cancelled by order dated 23.08.2007 passed by the Commandant 15th Battalion, P.A.C./Incharge Commandant 43rd Battalian, P.A.C., Etah.
2. The petitioner has assailed the order of cancellation of his appointment dated 23.08.2007 passed by the Commandant 15th Battalion, P.A.C. Etah in the instant writ petition. He has also prayed for consequential relief of backwages and payment of his salary as and when it becomes due.
Submissions:
3. Sri Pranjal Shukla, learned counsel holding brief of Sri Vijay Gautam, learned counsel for the petitioner submits that the contents of the declaration made by the petitioner on affidavit at the time of his recruitment are not disputed. He does not contest the fact that the petitioner had faced criminal prosecution before the offending declaration was made. The declaration in one sense was incorrect. However, learned counsel for the petitioner submits that looking to the declaration at its face value to test the validity of the candidature of the petitioner would be a very superficial way looking at the controversy. The controversy was approached in this simplistic fashion by the authorities while passing the impugned order. Consequently, the fundamental rights of the petitioner guaranteed under Articles 14, 16 and 21 of the Constitution of India and the rights of the petitioner vested by the Juvenile Justice Act, 1986 have been violated.
4. Learned counsel for the petitioner submits that at all relevant points in time when the criminal case was instituted, the petitioner was minor of 10 years of age.
5. Learned counsel for the petitioner then called attention to provisions of the Juvenile Justice Act, 1986 and the Juvenile Justice Act, 2015 and provisions of the Constitution of India. He cited a number of judicial authorities in support of this case.
6. Per contra, learned Standing Counsel submits that once it is admitted that the petitioner had made a false declaration regarding the pending criminal case at the time of his employment, law has to follow its course. The appointment was rightly invalidated.
Facts:
7. The facts in outline which are established beyond the pale of dispute shall now be stated.
8. The petitioner was named as an accused in a F.I.R. lodged on 08.10.1994 as Case Crime No. 333 of 1994 under Sections 452, 323, 504 and 506 I.P.C. and Section 3(1)(10) of the SC/ST Act, at Police Station Sikandrarao, District Hathras. A chargesheet was filed against the petitioner on 04.11.1994 under Sections 323, 504 and 506 I.P.C. and Section 3(1)(10) of the SC/ST Act. The petitioner was prosecuted in criminal case No. 333 of 1994 under Sections 323, 504 and 506 I.P.C. and Section 3(1)(10) of the SC/ST Act before the trial court. The petitioner was acquitted by the trial court by judgment and order entered on 23.12.2002.
9. The date of birth of the petitioner is 04.03.1984. At the time of registration of the F.I.R. against the petitioner and on the date of submission of the chargesheet against him, the petitioner was 10 years old. The petitioner was prosecuted under Sections 323, 504, 506 I.P.C. read with Section 3(1) (10) of the SC/ST Act before the trial court, as a minor child who was 10 years of age.
10. Upon attaining majority the petitioner made a career choice and applied for appointment as a constable in the Provincial Armed Constabulary.
11. The petitioner qualified the recruitment test for appointment as a constable in the Provincial Armed Constabulary. The petitioner was appointed as a Constable in the Provincial Armed Constabulary on 26.08.2006.
12. The petitioner at the time of his enrollment in the Provincial Armed Constabulary made the following declarations:
"३.यह की मेरे विरुद्ध कोई आपराधिक अभियोग न तो पंजीकृत है और न कभी पंजीकृत हुआ है ।
४. यह की कभी मेरा चालान किसी भी आपराधिक मामले में नहीं किया गया है।".
13. Admittedly, the above said assertions made by the petitioner in the declaration given at the time of his recruitment were incorrect. The petitioner had clearly stated that neither any criminal case was registered against him nor was it registered in the past. This is contrary to the undisputed factual position that Case Crime No. 333 of 1994 had been registered against the petitioner on 08.10.1994. The petitioner had further made a declaration on affidavit that he had never been challaned in any criminal case. This assertion on affidavit is also factually incorrect. These facts regarding the incorrect assertions made in the declaration are not denied by the petitioner.
14. The order dated 23.08.2007, assailed in the instant writ petition records that at the time of the recruitment, the petitioner had filed an affidavit stating that no criminal case was pending against him and none had been registered in the past as well. Thereafter the order dated 23.08.2007, after referencing the criminal case registered and pending against the petitioner (Case Crime No. 333 of 94, u/s 452, 323, 504, 506 I.P.C. and 3(1)(10) of S.C./S.T. Act), finds that the declaration made by the petitioner at the time of recruitment was false. On this ground of filing a false affidavit at the time of his recruitment, services of the petitioner were terminated.
15. The writ petition filed by the petitioner was allowed by the Single Judge by judgment and order dated 17.09.2014. However, by order dated 06.05.2015 rendered by the learned Division Bench in Special Appeal (D) No. 340 of 2015, State of U.P. Vs. Rajiv Kumar, the judgment of the learned Single Judge was set aside. Matter was remitted by the learned Division Bench for fresh consideration with the following observations:
"We clarify that all the rights and contentions of the parties are kept open for consideration by the learned Single Judge while disposing of the writ petition."
16. Heard learned counsel for the parties.
17. The controversy is defined by an interplay of different branches of law and competing rights of individuals and institutions. The interface of employers' rights, child rights and employees' rights and a composite view and concerted implementation of different branches of law, constitutional rights, Juvenile Justice Acts, child rights regime, service law will provide the way for the resolution of the controversy.
18. Humanity makes its tryst with divinity in the laughter of a child. Heaven is a place in a corner of a child's heart. The beauty of childhood is the single constant that always stirs the human soul and invariably touches the chords of a poetic heart.
19. In life children are a class in themselves. In law children are constituted into a separate class. Some of the legislations which cater exclusively to the needs of children include Child Labour Prohibition and Regulation Act, 1986, Hindu Minority and Guardianship Act, 1956. Various statutes cater to different requirements of children. Child rights regime is vast and varied.
Child and the Constitution:
20. The constitution makers understood the special needs of children and envisaged a distinct place for children in the Constitution. The children are constituted into a separate class of citizens under the Constitution. Various provisions devoted to the child in the text of the Constitution attest the paramount importance accorded to the welfare of the child in our Constitutional scheme.
21. The relevant provisions of the Constitution of the India in this regard are extracted hereunder:
22. Article 15(3) of the Constitution of India enables the State Government to make special provisions for children. The provision states thus:
"15(3) Nothing in this article shall prevent the State from making any special provision for women and children.
23. Article 21(a) of the Constitution of India elevates the rights of education of children between 6-14 of age to a fundamental right.
24. It is noteworthy that free and compulsory education for children is also mentioned as a directive principle for formation of State Policy. Article 45 of the Constitution of India states thus:
"45. Provision for free and compulsory education for children: The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."
25. Article 21(a) and Article 47 of the Constitution of India state thus:
"21(A) The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
26. Article 39(e) and Article 39(f) of the Constitution of India acknowledge the vulnerability of the child against the exploitation and moral and material abandonment. The provision also affirms the realization of the incapacity of children to defend themselves against such adverse situations and contemplate a role of the State to create opportunities and facilities to enable the children to develop in a worthy manner.
"39(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
39 (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."
Evolution of Rights
27. The provisions in the Constitution relating to the child cover many fields of child rights and welfare. But as in all cases, text of the rights can never be the exhaustive description of all rights. Rights have to be interpreted from the text of the Constitution. The process of interpretation of the text often results in the evolution of rights. The Constitution is the origin of rights. Constitutional law defines the substance of rights.
28. The fast pace of life in modern times often outstrips the capacity of the legislature to cope with the consequences of social change. There is a limit to human foresight but the possibilities of life are limitless. The limits of legislation are the constraints of human foresight. The legislative process is complex and even time taking. Human affairs do not wait on the legislative process. These facts frequently create a legislative lag. It is almost inevitable in the nature of things. The first intersection of life with law at times happens in courts even before the legislature is alerted to the problems. The courts are often seized of various emerging issues in social and individual lives before the legislatures are cognizant of them.
29. A legislative hiatus or executive lethargy cannot cause a constitutional stasis. The enforcement of fundamental rights cannot be forestalled by a legislative lag or executive inertia. Constitutional guarantees and Fundamental Rights have to be enforced on demand. Constitutional overhang is perpetual. Law is always in motion and never on a holiday.
30. The text of the Constitution is a conceptual philosophy of fundamental rights and not an exhaustive guide to fundamental rights. The text of the Constitution is fixed, fundamental rights are always evolving. This is the essence of constitutional law jurisprudence.
31. There is a method in the evolution of Constitutional law jurisprudence. Evolution of Constitutional law rights are guided and controlled by the text of the Constitution, long settled judicial principles of interpretation of the constitution and judicial precedents in point. The march of law is also assisted by consensus of values in the comity of civilized nations. These universal values are manifested in International Conventions and Treaties. Another source of such values is Comparative International Jurisprudence. The felt needs of the times are also factored in by the courts. Development of Constitutional law happens on these sure foundations. Constitutional rights are distilled from this process. In this process the courts discharge their Constitutional obligations. This is not judicial activism by courts. It is judging.
32. Evolution of rights by development of Constitutional law was considered by this Court in the case of Sumpurnanand Vs. State of U.P., reported at 2018 (11) ADJ 550. The Court held as follows:
"29. The simple words of Article 21 of the Constitution of India, had profound significance in development of constitutional law in India. Article 21 of the Constitution of India states thus:
"Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. "
30. The resolve to create the Constitution was the collective will of the people of India. The promise of the Constitution is to every individual citizen of India. Part III of the Constitution is anchored in the individual and revolves around the individual citizens. The simple word "life" in Article 21 of the Constitution of India presented a complex jurisprudential problem to the courts. The simple word "life" did not disguise for long the profound intent of the constitution framers. The approach of the courts to the provision in the Constitution progressed from tentative to visionary, the interpretation of provision advanced from literal to prophetic.
31. What was the meaning of life for the people of India on the morrow of our independence? If life meant physical existence and mere survival, Indian people had shown remarkable resilience to live through the vicissitudes of history. The people of India have lived in servitude, survived famines, lived in an iniquitous social order often dominated by prejudice, penury and illiteracy. Trackless centuries are filled with the record of survival of the people of India. Surely life of the Indian people could not remain the same after the dawn of independence of India. Surely the meaning of life for the people of India had to change after the advent of the Republic of India. The founding fathers, had the audacity to dream of transforming the meaning of life for the people of India. The courts in India had the vision and the courage to make the dreams a reality. Life had to embrace all the attributes which made life meaningful and all the pursuits which made life worth living.
32. The probe into the purpose of life has traditionally been the province of the philosophers. The framers of the constitution, brought the word "life" in the ambit of the constitution. Constitutional law put the meaning of life in the domain of the courts. "Life" is very much the concern of the courts. The search for the meaning of life is the business of the courts. Indeed, the discovery of the meaning of life is central to realizing the fundamental rights guaranteed under the Constitution.
33. The enquiry of the courts into the meaning of life was guided by law and logic and controlled by reason and precedent, but bent to no authority save the mandate of the constitution and the conscience of the court. Ultimately, the meaning of life was given by life itself. All facets of life and its realities touched the courts. It was for the courts to touch life in all its facets and to feel its reality. Life reveals its true meaning to those whose thoughts are noble and deeds are righteous and to those who live selflessly.
34. The courts in India, knew early on that understanding the significance of life was the key to providing the security of justice. While interpreting Article 21 of the Constitution of India, the Hon'ble Supreme Court, embraced life in all its breadth and profundity and eschewed a narrow interpretation. The law laid down by the Hon'ble Supreme Court while construing Article 21 of the Constitution of India brought a citizen's reputation within its sweep.
35. A defining moment came when the Hon'ble Supreme Court, liberated life from the fetters of mere physical existence. While examining the meaning of life under Article 21 of the Constitution of India, the Hon'ble Supreme Court added meaning to life in the case of Olga Tellis v. Bombay Municipal Corpn. reported at (1985) 3 SCC 545 held thus:
"As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey [347 US 442, 472 : 98 L Ed 829 (1954)] that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois [(1877) 94 US 113] means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] ."
Article 21 was set on a course of constantly expanding boundaries and the ambit of life was progressively enlarged."
Constitutional Law Rights of a Child
33. The Constitutional rights of a child can be understood in true perspective when the provisions enumerated above are seen in the light of Article 14 and Article 21 of the Constitution. The text of the Constitution has to be read with the tenets of Constitutional law jurisprudence.
34. The reputation of a person was identified with life and right to reputation was brought within the meaning of life in Article 21 of the Constitution of India. This Court in the case of Sumpurnanand (supra) while construing the nature of a right of reputation of a citizen in the context of Article 21 of the Constitution of India held as under:
"15. Physical frame of a person is one proof of life. Reputation for a person is the whole purpose of life. So while the physical frame identifies life, reputation defines it. While physical form is ephemeral, reputation is enduring. Reputation is the residue of life even after physical form ceases. Reputation has wings, it can fly faster than a man can move. Reputation it is said precedes a man. Truly reputation succeeds a man as well.
16. Reputation is the sum of earthly endeavours of one's life and the substance of of what remains of life after the physical frame has departed to the yonder worlds. Reputation is not interred with the bones of the dead. Reputation lives on. Reputation makes a person sublime and leaves the lasting imprint of life on the sands of time.
17. The aspiration to a life of good reputation is a goal most worthy of humankind. The endeavour to achieve a good reputation is an act most sacred in human existence. Striving for a life of good repute and to be honourable in the esteem of ones fellow beings, has been a constant refrain in sacred scriptures and a recurring theme in literature. Earliest evidences of recorded human thought and contemporary writings bear testimony to this fact. Reputation has been celebrated in the songs of bards, the speech of philosophers, the verse of writers, the utterances of sages and the call of scriptures. True then true now, across lands and beyond frontiers.
18. Socrates one of the pioneering philosophers of ancient Greece, emphasizing the importance of reputation said:
"Regard your good name as the richest jewel you can possibly be possessed of - for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, you will find it an arduous task to rekindle it again. The way to gain a good reputation is to endeavor to be what you desire to appear."
19 . Aristotle thought alike:
"Be studious to preserve your reputation: if that be once lost, you are like a cancelled writing--of no value, and at best you do but survive your own funeral".
20. The "Bhagwat Geeta" gave scriptural sanctity to a the quest for good reputation and honour.
"अकीर्तिं चापि भूतानि कथयिष्यन्ति तेऽव्ययाम् | सम्भावितस्य चाकीर्ति र्मरणादतिरिच्यते || 34||"
"akīrtiṁ chāpi bhūtāni kathayiṣhyanti te 'vyayām sambhāvitasya chākīrtir maraṇād atirichyate."| 34| Translation: Besides, men will ever recount thy ill fame and for one who has been honoured, ill fame is worse than death.
21. Surah 49 Aayaat 11 of the Holy "Quran" reads as follows:
"Let not some men among you laugh at others:
it may be that the (latter) are better than the (former):
Nor let some women laugh at others:
it may be that the (latter) are better than the (former):
nor defame nor be sarcastic to each other nor call each other by (offensive) nicknames: Ill-seeming is a name connoting wickedness (to be used of one) after he has believed: And those who do not desist are (Indeed) doing wrong."
22. The bard of Avon in 'Othello' was at his creative best. William Shakespeare in 'Othello' expressed his thoughts on reputation:
"Good name in man and woman, dear my lord, Is the immediate jewel of their souls.
Who steals my purse steals trash.
Tis something, nothing:
'Twas mine, 'tis his, and has been slave to thousands.
But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed,"
Reputation was a constant theme in his works.
"The purest treasure mortal times afford Is spotless reputation; that away Men are but gilded loan or painted clay.
A jewel in a ten-times-barr'd-up chest is a bold spirit in a loyal breast.
Mine honor is my life; both grow in one;
Take honor from me, and my life is done."
23. A mother's feeling for her child is most profound, and her love completely unconditional. Mrs. Mac Arthur spoke to the aspiration of all mothers when she desired the highest repute for her son.
"Do you know that your soul is of my soul such a part That you seem to be fiber and core of my heart?
None other can pain me as you, son, can do;
None other can please me or praise me as you.
Remember the world will be quick with its blame If shadow or shame ever darken your name.
Like mother, like son, is saying so true The world will judge largely of mother by you.
Be this then your task, if task it shall be To force this proud world to do homage to me.
Be sure it will say, when its verdict you've won, She reaps as she sowed: "This man is her son!"
24. The great poet "Maithili Sharan Gupt" summed up the enduring value of reputation in sonorous words:
"नर हो, न निराश करो मन को कुछ काम करो, कुछ काम करो जग में रह कर कुछ नाम करो निज गौरव का नित ज्ञान रहे हम भी कुछ हैं यह ध्यान रहे मरणोंत्तर गुंजित गान रहे सब जाय अभी पर मान रहे॥"
25. The quest for and the possession of a good reputation is a universal value in human life. It transcends the barriers of time and does not recognize the boundaries of territory.
26. The endeavour to earn a good reputation drives noble action and curbs evil tendencies in a society. The quest of an individual for good reputation ennobles a society and strengthens the sinews of a nation. Ambition of a individual to win high repute brings collective good.
27. Reputation has been identified with life since the times human thought and feelings and writings and deeds have been archived.
36. Reputation has been identified with life in human thought and literature as we have seen. Reputation is integral to life in human affairs and law as we shall see.
37. The ever enlargening meaning of life and ever deepening understanding of life lie at the core of the jurisprudential philosophy of Article 21 of the Constitution of India. Infact, it is fundamental to realizing the right vested by Article 21.
51. It is necessary to know the attributes of reputation to further understand the scope of the right of reputation.
52. Reputation is how others view you. Reputation is the perception that others have of one's character and deeds. This perception may not always be true and at times not be a correct portrayal of the person. But it is believed that one's deeds speak louder than other peoples words and ones character shines through all illusions.
53. Further reputation is shaped over a long time. These factors lend objectivity to the judgement of the society. A person's honurable past is considered a reliable guide to his future action. It may not be a perfect or a flawless standard, but there is no better alternative. These perspectives make reputation a good standard for judging a person. These beliefs are based on human experience. Thus despite lack of hundred percent accuracy, reputation is accepted as the true measure of the person in society. Such has been the acceptability of this measure, that reputation has always been a cherished value in society. The search for a good reputation is a quest for winning the esteem of ones fellow beings through ones deeds and character. A person's standing in the society is ruled by his reputation. Society judges a man's worth from his reputation.
54. The importance of reputation is in marked contrast to the fragility of its existence. Reputation is built by deeds but can be wounded by words. Reputation is made by character but can be marred by calumny. Good reputation is created by strenuous and honest efforts but can be undermined by motivated and false propaganda. This disinformation becomes persuasive by persistence.
64. Grant of opportunity to such persons to defend their reputation creates conditions which are conducive to forming a public perception on an objective basis. Public opinion or public perception thus formed assists in upholding the rule of law and the rights of individual citizens in a constitutional order. The charter of rights of reputation is complete only if it encompasses the right to defend one's reputation. The right to defend one's reputation is the bulwark of the right to reputation.
65. The right to defend one's reputation is inalienable from the right to reputation. Infact, the right to defend one's reputation is the tree, while the right to reputation is the shadow. Without the tree there is no shadow. If we value the right to reputation, we have to treasure the right of its defence. If the right to reputation is placed on a high pedestal, we have to exalt the right to defend it. If the right to defend one's reputation is not treasured the right of reputation will lose its value. If the right of defence of reputation is not exalted, the right of reputation will be diminished.
66. Right of reputation is thus embedded in Article 21 of the Constitution of India. Right of reputation would be devoid of substance without the ability to protect it. The right to defend one's reputation against attack fortifies the right of reputation.
67. When a person's reputation is under attack or called in question, he has a right to defend it. Such person is entitled to put his version of events or an account of his deeds, to win the esteem of his fellow men or appeal to their sense of it. This is the essence of the right to defend one's reputation. The right to reputation is inherent in Article 21 of the Constitution of India. The right to defend one's reputation inheres in the right to reputation."
35. Recognizing that falsehood and false facts in public domain can irreparably impair the reputation of a person, this Court in Sampurnanand (supra) continued so:
"54. The importance of reputation is in marked contrast to the fragility of its existence. Reputation is built by deeds but can be wounded by words. Reputation is made by character but can be marred by calumny. Good reputation is created by strenuous and honest efforts but can be undermined by motivated and false propaganda. This disinformation becomes persuasive by persistence.
55. Opinion can be formed on the basis of disinformation with ease and without effort. Search for truth requires sustained effort and objective thought. Falsehoods planted by such disinformation are fatal to a person's reputation. Such is the delicate texture of reputation.
56. Reputation is built over long years even a life time, but can be destroyed in little time or even a moment.
57. In the marketplace of public opinion, reputation is often about perception. This perception of the public may not be congruent to the truth. The endeavour of the process of law is to protect the public perception from falsehoods by protecting truth from false perception. The process of law gives truth the chance to survive. Truth exists while perception is created. The survival of truth in the crucible of public opinion is not assured nor is it self guaranteeing. Truth has to jostle for space and survival in the battle for public perception, along with other ideas and even imposters like myth and innuendo, lies and illusions, half truths even outright falsehoods. At times myth and innuendo, even lies and illusions so also half truths and falsehoods have an enticing appeal. They persuade by persistence.
58. Another element truth has to battle is false propaganda. False propaganda and disinformation are often backed by organization and resources. They are handy tools in the hands of the unscrupulous and powerful enemies of truth. False propaganda and disinformation are relentless in the pursuit of acquiring the mindspace of public perception and remorseless in elbowing out truth from public mind. Such has been the efficacy of these methods that one master propagandist confidently but cynically observed, "a lie told a thousand times becomes the truth." In such situations, the environment of public perception is not very discerning. A despondent Rudyard Kipling wrote, "If you can bear to hear the truth you have spoken, twisted by knaves to make a trap for fools." If human civilization has to flourish, human affairs have to be fortified by truth. The triumph of truth should not only be an article of faith but a constant in conduct. Truth should not only triumph in the worlds beyond but has to prevail in daily affairs of human life."
36. In the case of Sampurnanand (supra), this Court also cited good authorities in point by the Hon'ble Supreme Court, the House of Lords as well as the U.S. Supreme Court and held as under:
43. The right to reputation was firmly entrenched in the ambit of Article 21 of the Constitution of India, by the Hon'ble Supreme Court in Om Prakash Chautala Vs. Kanwar Bhan, reported at (2014) 5 SCC 417. The place of a person's reputation in his life was thus stated in Om Prakash Chautala (supra):
"Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person's reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said."
44. The right to reputation inheres in the right to life and it has been embedded in Article 21 of the Constitution of India, by consistent judicial authority. Reference can be made with profit to the judgments of the Hon'ble Supreme Court rendered in the case of Port of Bombay Vs. Dilip Kumar Raghuvendranath Nadkarni, reported at (1983)1 SCC 124. In Gian Kaur Vs. State of Punjab, the Hon'ble Supreme Court confirmed that the right to reputation is a natural right.
45. The Hon'ble Supreme Court in Subramanian Swamy Vs. Union of India, reported at (2016) 7 SCC 221, reiterated that the right to reputation as a fundamental right relatable to Article 21 of the Constitution of India. The Hon'ble Supreme Court in Subramanian Swamy (supra) made an exhaustive survey of national and international judicial authority in point.
46. In Subramanian Swamy (supra), the Hon'ble Supreme Court after citing various international covenants which are the sources of international law held as under:
"Various international covenants have stressed on the significance of reputation and honour in a person's life. The Universal Declaration of Human Rights, 1948 has explicit provisions for both, the right to free speech and right to reputation. Article 12 of the said Declaration provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
32.The International Covenant on Civil and Political Rights (Iccpr) contains similar provisions. Article 19 of the Covenant expressly subjects the right of expression to the rights and reputation of others. It reads thus:
"19. (1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in Para (2) of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order (order public), or of public health or morals."
33. Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provide:
"8. Right to respect for private and family life.--(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
34. The reference to international covenants has a definitive purpose. They reflect the purpose and concern and recognise reputation as an inseparable right of an individual. They juxtapose the right to freedom of speech and expression and the right of reputation thereby accepting restrictions, albeit as per law and necessity. That apart, they explicate that the individual honour and reputation is of great value to human existence being attached to dignity and all constitute an inalienable part of a complete human being. To put it differently, sans these values, no person or individual can conceive the idea of a real person, for absence of these aspects in life makes a person a non-person and an individual to be an entity only in existence perceived without individuality."
47. The House of Lords in Reynolds Vs. Times Newspapers Ltd. and Others, reported at (1999) 4 ALL ER 609, relying on the vast body of common law, stated, "Historically the common law has set much store by protection of law." Finally observing as under:
"Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others."
48. The US Supreme Court understood the primacy of reputation as a cherished value in free society governed by law and underscored the need to give the affected person a chance to defend herself, in the case of Wisconsin Vs. Constantineau, reported at (1971) SCCOnlineUSSC12. The US Supreme Court in Wisconsin (supra) observed as follows:
"Where a person's good name, reputation, honour, or integrity is at stake because of what the Government is doing to him, notice and an opportunity to be heard are essential. "Posting" under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official's caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented."
50. The US Supreme Court took view consistent with the above authority in Rosemblatt Vs. Baer, reported at (1966) SCC Online USSC 22, as under:
"The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty."
37. Similarly, the right to privacy was read into Article 21 of the Constitution of India by the Hon'ble Supreme Court in the case of K.S. Puttaswamy v. Union of India , reported at (2017) 10 SCC 1. The Hon'ble Supreme Court entrenched the right to privacy of an individual under Article 21 of the Constitution of India and defined privacy in the case of K.S. Puttaswamy (supra) by holding thus:
"R. Essential nature of privacy
297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha-suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.
299. Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet, it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others, individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society. Equally, the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community. This state of flux which represents a constant evolution of individual personhood in the relationship with the rest of society provides the rationale for reserving to the individual a zone of repose. The lives which individuals lead as members of society engender a reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas where an individual desires to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives. For instance, an individual who possesses a plot of land may decide to build upon it subject to zoning regulations. If the building bye-laws define the area upon which construction can be raised or the height of the boundary wall around the property, the right to privacy of the individual is conditioned by regulations designed to protect the interests of the community in planned spaces. Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation."
Children in conflict with law In ancient shadows and twilights Where childhood had stray'd, The world's great sorrows were born And its heroes were made.
In the lost boyhood of Judas Christ was betray'd.
- George William Russell
38. The condition of children in conflict with law engaged the concerns of the world community. The concerns were put in the consciousness of the international community by the adoption of the Beijing Rules in 1985 and the UN Standard Minimum Rules for Administration of Juvenile Justice.
39. The United Nations Standard Minimum Rules For The Administration of Juvenile Justice is a document which reflects the consensus of international opinion and convergence of values amongst civilized nations. Infact, the United Nations Standard Minimum Rules For The Administration of Juvenile Justice is a statement of universal values. The Juvenile Justice Acts in India trace their origin to the aforesaid international standards and other UN Conventions on the subject. As will be seen the courts have readily incorporated the international treaties and conventions into the corpus of our case law jurisprudence.
40. Some relevant provisions of the United Nations Standard Minimum Rules For The Administration of Juvenile Justice which provide the setting in which the controversy will be decided, shall now be examined.
41. The General Principles of the United Nations Standard Minimum Rules For The Administration of Juvenile Justice are extracted hereunder:
" 1. Fundamental perspectives 1.1 Member States shall seek, in conformity with their respective general interests, to further the well-being of the juvenile and her or his family.
1.2 Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible.
1.3 Sufficient attention shall be given to positive measures that involve the full mobilization of all possible resources, including the family, volunteers and other community groups, as well as schools and other community institutions, for the purpose of promoting the well-being of the juvenile, with a view to reducing the need for intervention under the law, and of effectively, fairly and humanely dealing with the juvenile in conflict with the law.
1.4 Juvenile justice shall be conceived as an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society.
1.5 These Rules shall be implemented in the context of economic, social and cultural conditions prevailing in each Member State.
1.6 Juvenile justice services shall be systematically developed and coordinated with a view to improving and sustaining the competence of personnel involved in the services, including their methods, approaches and attitudes."
42. Rule 8 of the United Nations Standard Minimum Rules For The Administration of Juvenile Justice stresses the importance of protection of the privacy of the juvenile:
"8. Protection of privacy 8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published."
43. Commentary to the Rules which gives intendment of the provisions recognizes the susceptibility of young persons to stigmatization and the need to insulate them from the same. The relevant part of the commentary is extracted hereunder:
Commentary "Rule 8 stresses the importance of the protection of the juvenile's right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as "delinquent" or "criminal".
Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case (for example the names of young offenders, alleged or convicted). The interest of the individual should be protected and upheld, at least in principle."
44. The Rule 21 of the United Nations Standard Minimum Rules For The Administration of Juvenile Justice clearly proscribes use of records of juvenile offenders in adult proceedings and also restricts access to the records of such proceedings:
21. Records:
"21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons.
21.2 Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender."
45. The relevant commentary of Rule 21 of the United Nations Standard Minimum Rules For The Administration of Juvenile Justice which assists in the interpretation of the provision is reproduced below:
Commentary "The rule attempts to achieve a balance between conflicting interests connected with records or files: those of the police, prosecution and other authorities in improving control versus the interests of the juvenile offender. (See also rule 8.) "Other duly authorized persons" would generally include, among others, researchers."
46. The Indian Parliament marched in step with international law, enacted the Juvenile Justice Act, 1986. The Statement of Object and Reasons which defines the purpose of the enactment merits consideration and is as follows:
"A review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juvenile. It is also necessary that a uniform juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles.
2. In this context, the proposed legislation aims at achieving the following objectives:-
(i) To lay down a uniform frame work for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is being ensured by establishing Juvenile Welfare Boards and Juvenile Courts;
(ii) To provide for a specialised approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the development needs of the child found in any situation of social maladjustment;
(iii) To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the purview of the juvenile justice system. This is proposed to be achieved by establishing observation homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles;
(iv) To establish norms and standards for the administration of juvenile justice in terms of investigation and prosecution, adjudication and disposition and care, treatment and rehabilitation;
(v) To develop appropriate linkages and coordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or society maladjusted children and to specifically define the areas of their responsibilities and roles;
(vi) To constitute special offences in relation to juveniles and provide for punishments therefor;
(vii) To bring the operation of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.
3. As its various provisions come into force in different parts of the country they would replace the corresponding laws on the subject such as Children Act, 1960 and other State enactments on the subject.
The Bill seeks to achieve the above objects. "
47. The definition clauses are contained in Section 2 of the Juvenile Justice Act, 1986. The relevant provisions are extracted hereunder:
" 2. (e) ''Delinquent juvenile' means a juvenile who has been found to have committed an offence;
2. (h) ''Juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;
2. (n) "Offence " means an offence punishable under any law for the time being in force;"
48. Section 5 of the Juvenile Justice Act, 1986 contemplates creation of Juvenile courts. The composition of the courts manifests the legislative intent to deal with children facing prosecution for offences in a special and a sensitive manner. The provision is quoted below:
"5. Juvenile Courts. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may, by notification in the Official Gazette, constitute for any area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent juveniles under this Act.
(2) A Juvenile Court shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of the first class, as the case may be, forming a Bench as the State Government thinks fit to appoint, of whom one shall be designated as the Principal Magistrate; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be , a Judicial Magistrate of the first class.
(3) Every Juvenile Court shall be assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the State Government."
49. Sections 23 and 24 mitigate the rigor of the criminal procedure in regard to a child facing criminal prosecution. Sections 23 and 24 of the JJ Act, 1986 are extracted hereunder:
"23. Proceeding under Chapter VIII of the Code of Criminal Procedure not competent against juvenile. - Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the said Code.
24. No joint trial of juvenile and person not to juvenile. - (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, no juvenile shall be charged with or tried for, any offence together with a person who is not a juvenile.
(2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the court taking cognizance of that offence shall direct separate trials of the juvenile and the other person."
50. Section 25 is of particular importance since it envisages removal of disqualification attaching to conviction returned under the Act against a juvenile who has been dealt with under the provisions of the said Act. Section 25 of the Juvenile Justice Act, 1986 is extracted for ease of reference:
"25. Removal of disqualification attaching to conviction. - Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act and shall not suffer disqualification, if any, attaching to a conviction of an offence under such law."
51. Sections 35 and 36 of the Juvenile Justice Act protect the identity of a child who has faced prosecution under the said Act by restraining publication of the names of such juvenile in the following terms:
"35. Reports to be treated as confidential. - The report of the probation officer or any circumstance considered by the competent authority under section 33 shall be treated as confidential:
Provided that the competent authority may, if it so thinks fit, communicate the substance thereof to the juvenile or his parent or guardian and may give such juvenile, parent or guardian an opportunity of producing such evidence as may be relevant to the matter stated in the report.
36. Prohibition of publication of names, etc., of juveniles involved in any proceeding under the Act. - (1) No report in any newspaper, magazine or news-sheet of any inquiry regarding a juvenile under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published:
Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile. (2) Any person contravening the provisions of sub-section (1) shall be punishable with fine which may extend to one thousand rupees."
52. The child rights jurisprudence reached the next stage in its evolution, with the UN Convention on Rights of Child, 1989 and UN Juvenile Protection Rule, 1990. In the comity of civilized nations, the state of children in conflict with law was elevated from international consciousness to international conscience, from conception of philosophy to agenda for action. India honoured its international obligations and cemented its international standing by promulgating The Juvenile Justice Act, 2000 and then The Juvenile Justice Act, 2015.
53. The Juvenile Justice Act 1986 , the Juvenile Justice Act 2000 and the Juvenile Justice Act 2015 are in consequence of and in consonance to the international covenants on child rights in general and children in conflict with law in particular. The enactments represent a conceptual shift from a strict retributive approach to benign rehabilitative justice. The enactments are a turning away of law from exclusion by penalizing to assimilation by reintegration. The objects of the legislations have been constant. The provisions have been amended to cope with needs of the times and benefit from the fruits of experience.
54. In the experience of the legislature, the Acts preceding the Juvenile Justice Act, 2015 did not adequately deal with the persons in the age group of 16-18 years indulging in heinous crimes. Many crimes of a diabolical nature committed by persons in the said age group of 16-18 years, caused the legislature to cater to the aforesaid inadequacy. The provisions of Juvenile Justice Act, 2015 was largely consistent with the schemes of the preceding enactments, save the introduction of provisions of dealing with heinous crimes committed by persons in the age group of 16-18 years.
55. It would be instructive to extract the aims and objects of the Juvenile Justice Act of 2015.
Introduction "The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended in 2006 and 2011 However, several issues, such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions, sale of children for adoption purposes, etc. had cropped up in recent times. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years made it evident that the provisions under the Act were ill equipped to tackle child offenders in this age group.
Since numerous changes were required in the Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues, it was proposed to repeal existing Juvenile Justice (Care and Protection of Children) and re-enact a comprehensive legislation.
The Juvenile Justice (Care and Protection of Children) Act, 2015 ensures proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child.
STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Articles 39(e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected.
2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth (b) reinforcing the child's respect for the human rights and fundamental freedoms of others (c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. have highlighted need to review the existing law.
4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences.
5. Numerous changes are required in the existing Juvenile Justice (Care Protection of Children) Act, 2000 to address the abovementioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social re-integration measures for such children, adoption of orphan, abandoned and surrendered children, and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives."
56. Section 2 is the definition clause. The definition of heinous offence is being emphasized for the purposes of this case. The definition clauses is relevant to this controversy and enumerated in the Act are as follows:
"Section 2.1 "abandoned child" means a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry Section 2.12"child" means a person who has not completed eighteen years of age;
Section 2.13 "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
Section 2.20 "Children's Court'' means a court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act;
Section 2.33 "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more;
Section 2.45. "petty offences" includes the offences for which the maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years;"
57. Section 15 of the Act contemplates a preliminary assessment into heinous offences by the court. Thus, the distinction is created between heinous and non heinous offences under the scheme of the Act. Section 15 of the Act states thus:
"15. Preliminary assessment into heinous offences by Board.
1. In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumustances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
2. Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14".
58. Sections 22 and 23 much like the preceding enactments create a scheme to protect the child from the rigors of the criminal prosecution under the regular criminal procedure. Sections 22 and 23 of the Act are quoted hereunder:
"22. Proceeding under Chapter VIII of the Code of Criminal Procedure not to apply against child.
Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, or any preventive detention law for the time being in force, no proceeding shall be instituted and no order shall be passed against any child under Chapter VIII of the said Code."
23. No joint proceedings of child in conflict with law and person not a child.
1. Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child.
2. If during the inquiry by the Board or by the Children's Court, the person alleged to be in conflict with law is found that he is not a child, such person shall not be tried along with a child."
59. Of course, it needs to be clarified that the Juvenile Justice Act, 2015 is prospective in its application. However, the fundamental principles of Child Rights Jurisprudence or position of law in regard to children in conflict with law which are incorporated in the Act infact predate the statute.
60. Sections 74 and 99 of the Juvenile Justice Act, 2015 provide for protecting the identity of a child who has faced criminal prosecution under the Juvenile Justice Act, 2015. Section 24 much like Sections 74 and 99, has been a consistent theme in the preceding enactments relating to children in conflict with law. Section 24 removes any disqualification of a child on the findings of an offence under the Act. Sections 24, 74 and 99 of the Juvenile Justice Act 2015 are as follows:
"24. Removal of disqualification on the findings of an offence.
1. Notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law:
Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict with law by the Children's Court under clause (i) of sub-section (1) of section 19, the provisions of sub-section (1) shall not apply.
2. (2) The Board shall make an order directing the Police, or by the Children's court to its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed:
(emphasis supplied) Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children's Court.
25. Special provision in respect of pending cases.
Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.
74. Prohibition on disclosure of identity of children.
1. No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published:
Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.
2. The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.
3. Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both.
99. Reports to be treated as confidential.
1. All reports related to the child and considered by the Committee or the Board shall be treated as confidential:
Provided that the Committee or the Board, as the case may be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the child's parent or guardian, and may give such Committee or the Board or the child or parent or guardian, an opportunity of producing evidence as may be relevant to the matter stated in the report.
2. Notwithstanding anything contained in this Act, the victim shall not be denied access to their case record, orders and relevant papers."
61. Rule 14 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 has relevance to the controversy. The Rule provides for destruction of records. The intention of legislature to efface the records of prosecution of a child is clearly evident in the said provision:
14. Destruction of records.-
The records of conviction in respect of a child in conflict with law shall be kept in safe custody till the expiry of the period of appeal or for a period of seven years, and no longer, and thereafter be destroyed by the Person-in-charge or Board or Children's Court, as the case may be:
Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub section (1) of section 19 of the Act, the relevant records of conviction of such child shall be retained by the Children's Court.
62. The Hon'ble Supreme Court in Jitendra Singh v. State of U.P. reported at (2013) 11 SCC 193, considered various aspects of child rights jurisprudence in the context of Juvenile Justice Act 2000 and also the International Convention on the Rights of the child and the Beijing Rules. The right to privacy and confidentiality of a juvenile, the inability of a child to know its rights, the imperative of rehabilitation and safeguards of law were issues on which the Hon'ble Supreme Court ruled that:
41. The Rules, particularly Rule 3, provide, inter alia, that in all decisions taken within the context of administration of justice, the principle of best interests of a juvenile shall be the primary consideration. What this means is that "the traditional objectives of criminal justice, that is retribution and repression, must give way to rehabilitative and restorative objectives of juvenile justice". The right to privacy and confidentiality of a juvenile is required to be protected by all means and through all the stages of the proceedings, and this is one of the reasons why the identity of a juvenile in conflict with law is not disclosed. Following the requirements of the Convention on the Rights of the Child, Rule 3 provides that institutionalisation of a child or a juvenile in conflict with law shall be the last resort after a reasonable inquiry and that too for the minimum possible duration.
(emphasis supplied)
42. Rule 32 provides that:
"32.Rehabilitation and social reintegration.--The primary aim of rehabilitation and social reintegration is to help children in restoring their dignity and self-worth and mainstream them through rehabilitation within the family where possible, or otherwise through alternate care programmes and long-term institutional care shall be of last resort."
43. It is quite clear from the above that the purpose of the Act is to rehabilitate a juvenile in conflict with law with a view to reintegrate him into society. This is by no means an easy task and it is worth researching how successful the implementation of the Act has been in its avowed purpose in this respect.
44. As regards procedurally dealing with a juvenile in conflict with law, the Rules require the State Government concerned to set up in every district a Special Juvenile Police Unit to handle the cases of juveniles or children in terms of the provisions of the Act (Rule 84). This Unit shall consist of a juvenile or child welfare officer of the rank of Police Inspector having an aptitude and appropriate training and orientation to handle such cases. He will be assisted by two paid social workers having experience of working in the field of child welfare of which one of them shall be a woman.
45. Rule 75 of the Rules requires that while dealing with a juvenile or a child, except at the time of arrest, a police officer shall wear plain clothes and not his uniform.
46. The Act and the Model Rules clearly constitute an independent code for issues concerning a child or a juvenile, particularly a juvenile in conflict with law. This code is intended to safeguard the rights of the child and a juvenile in conflict with law and to put him in a category separate and distinct from an adult accused of a crime.
(emphasis supplied)
47. Keeping in mind all these standards and safeguards required to be met as per our international obligations, it becomes obligatory for every Magistrate before whom an accused is produced to ascertain, in the first instance or as soon thereafter as may be possible, whether the accused person is an adult or a juvenile in conflict with law. The reason for this, obviously, is to avoid a twofold difficulty: first, to avoid a juvenile being subjected to procedures under the normal criminal law and dehors the Act and the Rules, and second, a resultant situation, where the "trial" of the juvenile is required to be set aside and quashed as having been conducted by a court not having jurisdiction to do so or a juvenile, on being found guilty, going "unpunished". This is necessary not only in the best interests of the juvenile but also for the better administration of criminal justice so that the Magistrate or the Sessions Judge (as the case may be) does not waste his time and energy on a "trial".
48. It must be appreciated by every Magistrate that when an accused is produced before him, it is possible that the prosecution or the investigating officer may be under a mistaken impression that the accused is an adult. If the Magistrate has any iota of doubt about the juvenility of an accused produced before him, Rule 12 provides that a Magistrate may arrive at a prima facie conclusion on the juvenility, on the basis of his physical appearance. In our opinion, in such a case, this prima facie opinion should be recorded by the Magistrate. Thereafter, if custodial remand is necessary, the accused may be sent to jail or a juvenile may be sent to an Observation Home, as the case may be, and the Magistrate should simultaneously order an inquiry, if necessary, for determining the age of the accused. Apart from anything else, it must be appreciated that such an inquiry at the earliest possible time, would be in the best interests of the juvenile, since he would be kept away from adult undertrial prisoners and would not be subjected to a regimen in jail, which may not be conducive to his well being. As mentioned above, it would also be in the interests of better administration of criminal justice. It is, therefore, enjoined upon every Magistrate to take appropriate steps to ascertain the juvenility or otherwise of an accused person brought before him or her at the earliest possible point of time, preferably on first production.
49. It must also be appreciated that due to his juvenility, a juvenile in conflict with law may be presumed not to know or understand the legal procedures making it difficult for him to put forth his claim for juvenility when he is produced before a Magistrate. Added to this are the factors of poor education and poor economic set-up that are jointly the main attributes of a juvenile in conflict with law, making it difficult for him to negotiate the legal procedures. We say this on the strength of studies conducted, and which have been referred to by one of us (T.S. Thakur, J.) in Abuzar Hossain v. State of W.B. [(2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83] It is worth repeating what has been said: (SCC p. 513, para 47) "47. ... Studies conducted by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, reveal that poor education and poor economic set up are generally the main attributes of juvenile delinquents. Result of the 2011 study further show that out of 33,887 juveniles arrested in 2011, 55.8% were either illiterate (6122) or educated only till the primary level (12,803). Further, 56.7% of the total juveniles arrested fell into the lowest income category. A similar study is conducted and published by B.N. Mishra in his Book Juvenile Delinquency and Justice System, in which the author states as follows:
''One of the prominent features of a delinquent is poor educational attainment. [Ed.: The matter between two asterisks is emphasised in original.] More than 63% of delinquents are illiterate. [Ed.: The matter between two asterisks is emphasised in original.] Poverty is the main cause of their illiteracy. Due to poor economic condition they were compelled to enter into the labour market to supplement their family income. It is also felt that poor educational attainment is not due to the lack of intelligence but may be due to lack of opportunity.'"
(emphasis supplied)
51. We may add that our international obligations as laid down in the Convention on the Rights of the Child and the Beijing Rules require the involvement of the parents or legal guardians in the legal process concerning a juvenile in conflict with law. For example, a reference may be made to Article 40 of the Convention and Principles 7, 10 and 15 of the Beijing Rules. That this is not unusual is clear from the fact that in civil disputes, our domestic law requires a minor to be represented by a guardian."
63. In the case of Bachpan Bachao Andolan vs. Union of India reported at 2011 (5) SCC 1, emphasizing the need to protect the dignity of children and reintegration of juveniles in conflict with law, the Hon'ble Supreme Court directed as follows:
"38. The following directions are necessary:
(a) Every Magistrate before whom a child is brought must be conscious of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000;
(b) He must find out whether the child is below the age of 18 years;
(n) Evidence of child should be taken in camera. Courts must protect the dignity of children. The children's best interest should be the priority."
"41. It is further submitted that rehabilitation will be the measure of success of the Juvenile Justice (Care and Protection of Children) Act, 2000. Reintegration into society by means of confident and assertive occupations leading to a sense of self-worth will have to be devised. This requires innovative strategies and not any high flown claims to social development."
64. The applicability of international law to the Juvenile Justice legislation was affirmed by the Hon'ble Supreme Court in the case of Pratap Singh vs. State of Jharkhand reported at 2005 (3) SCC 551, by holding :
"63. The legislation relating to juvenile justice should be construed as a step for resolution of the problem of juvenile justice which was one of tragic human interest which cuts across national boundaries. The said Act has not only to be read in terms of the Rules but also the Universal Declaration of Human Rights and the United Nations Standard Minimum Rules for the Protection of Juveniles.
International law
64. The Juvenile Justice Act specially refers to international law. The relevant provisions of the Rules are incorporated therein. The international treaties, covenants and conventions although may not be a part of our municipal law, the same can be referred to and followed by the courts having regard to the fact that India is a party to the said treaties. A right to a speedy trial is not a new right. It is embedded in our Constitution in terms of Articles 14 and 21 thereof. The international treaties recognise the same. It is now trite that any violation of human rights would be looked down upon. Some provisions of the international law although may not be a part of our municipal law but the courts are not hesitant in referring thereto so as to find new rights in the context of the Constitution. Constitution of India and other ongoing statutes have been read consistently with the rules of international law. Constitution is a source of, and not an exercise of, legislative power. The principles of international law whenever applicable operate as a statutory implication but the legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions or the international law as also in the context of Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in accordance with the international law. Part III of our Constitution protects substantive as well as procedural rights. Implications which arise therefrom must effectively be protected by the judiciary. A contextual meaning to the statute is required to be assigned having regard to the constitutional as well as international law operating in the field. (See Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [(2004) 9 SCC 512] .)
66. Constitution of India and the juvenile justice legislations must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and conventions. Our Constitution takes note of the institutions of the world community which had been created. Some legal instruments that have declared the human rights and fundamental freedoms of humanity had been adopted but over the time even new rights had been found in several countries, as for example, South Africa (S. v. Makwanyane [(1995) 3 SA 391] ), Canada [Public Service Employee Relations Act (Alberta), Re [(1987) 1 SCR 313 (Canada)] (SCR at p. 348)], Germany [Presumption of Innocence and the European Convention on Human Rights [BVerfGE 74, 358 (1987) (Germany)] (BVerfGE at p. 358)], New Zealand [Tavita v. Minister of Immigration [(1994) 2 NZLR 257] (NZLR at p. 266)], United Kingdom (Pratt v. Attorney General for Jamaica [(1994) 2 AC 1 : (1993) 4 All ER 769 : (1993) 3 WLR 995 (PC)] ) and United States (Atkins v. Virginia [(2002) 536 US 304] and Lawrence v. Texas [(2003) 539 US 558] ). New ideas had occupied the human mind as regards protection of human rights. (See Hamdi v. Rumsfield[(2004) 72 USLW 4607] , Russel v. Bush [(2004) 72 USLW 4596] and Rumsfield v.Padila [(2004) 72 USLW 4584] .)
67. Now, the Constitution speaks not only "to the people of India who made it and accepted it for their governance but also to the international community as the basic law of the Indian nation which is a member of that community". Inevitably, its meaning is influenced by the legal context in which it must operate.
68. The legal instruments that have declared legal rights and fundamental freedoms, founded in the nations of human dignity and Charter of the United Nations were not known earlier which is manifest today. (Charter of the United Nations, signed at San Francisco on 26-6-1945, preamble.) Political, social and economic development can throw light on the meaning of the Constitution."
65. The diminished culpability of children rests on the premise of lack of maturity and an underdeveloped sense of responsibility in children and that the deficiencies are reversible which will be reformed with advancing age and neurological development. The heightened capacity for change in juvenile delinquents holds the promise of a new sunrise.
66. There is remarkable consistency in judicial opinion on point across the world. The US Supreme Court in Miller Vs. Alabama 132 S.Ct. 2455 (2012), U.S. Supreme Court considered the mitigating qualities of youth:
Everything we said in Roper and Graham about that stage of life also appears in these decisions. As we observed, "youth is more than a chronological fact." Eddings, 455 U.S., at 115, 102 S.Ct. 869. It is a time of immaturity, irresponsibility, "impetuousness[,] and recklessness." Johnson, 509 U.S., at 368, 113 S.Ct. 2658. It is a moment and "condition of life when a person may be most susceptible to influence and to psychological damage." Eddings, 455 U.S., at 115, 102 S.Ct. 869. And its "signature qualities" are all "transient." "
]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered" in assessing his culpability.
....For one thing, "compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed." Id., at ----, 130 S.Ct., at 2026 (internal quotation marks omitted). See also ibid. ("[P]sychology and brain science continue to show fundamental differences between juvenile and adult minds" making their actions "less likely to be evidence of ''irretrievably depraved character' than are the actions of adults" (quoting Roper v. Simmons, 543 U.S. 551, 570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005))); ante, at 2464."
67. From the features and the scheme of the Juvenile Justice Act (as amended from time to time) and law laid down by various courts, both the legislative intent and the position of law can be deduced with clarity. Intention of the legislature is to treat children as a separate class in prosecution of offences committed by the children.
68. Rigors of the prosecution have been diluted in the criminal procedure. The legislature and the law has gone the whole length to protect the identity of children who have faced prosecution. Non disclosure of the details of the crime committed by the child is another feature which reflects a sensitive approach of the legislature to children in conflict with law.
69. Finally the legislations culminate in the overarching aim of rehabilitating children who had trouble with the law by assimilating them in the social mainstream.
70. By removing all disqualifications accruing from the finding of guilt or a conviction of a juvenile under the Acts, the final hurdle in the reintegration of a child in the society has been removed.
Age of criminal responsibility and Duty of Courts
71. The age of criminal responsibility is fixed by the legislature. The concept of age of criminal responsibility rests on the foot that certain psychological state and mental capacity are essential for full culpability in criminal act. Children lack the requisite maturity, psychological states, capacities and other features to foist upon them full responsibility for criminal acts. Children cannot extricate themselves from the environment. The mitigation of criminal culpability is a first principle of jurisprudence of children in conflict with law. The age of criminal responsibility varies across the world. It is a matter of legislative judgment. But lenient treatment to children in conflict with law and diminished criminal culpability is uniformly implemented in the comity of civilized nations.
72. These tenets segregate children from adults in criminal law. Legislature has further segmented children in different age groups for special treatment.
73. The provisions relating to criminal responsibility in the Indian Penal Code are provided in Chapter 5 under the heading of "General Exception". Sections 82 and 83 of the Indian Penal Code are as follows:
"82. Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age.
Act of a child above seven and under twelve of immature understanding.--Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."
74. The burden of proof is on the child claiming exception under Section 83 I.P.C. It is not a satisfactory situation, infact there is an anomaly. A child may not have the requisite intellectual maturity and the psychological state to understand consequences of a criminal act. But the child is expected to possess same characteristics to invoke the exception and to discharge the burden of proof.
75. An old authority quoted in Tagore Law Lecture Series 1902 noticed the inadequacy. While citing the law laid down in the case of Queen Vs. Liihliini Agradanini, author noted thus:
"the non-attainment of sufficient maturity of understanding would have to be specially pleaded and proved. That the onus is on the person who claims the the benefit of a general exception to prove the circumstances which entitle him to the exemption. But observed the Judges: "Looking at the matter from a practical point of view, it seems that the cases of infants such as we are at present considering have not been adequately provided for by the legislature. It may be said and indeed it has been held that where the accused is under twelve years of age it is the imperative duty of the trial Judge to find whether he is possessed of sufficient maturity of understanding. But the question of onus of proof seems to be upon defendant."
76. The trial courts do not have the power to reverse the burden of proof on the children in the age group of 7-12 years of claiming the exception under the Indian Penal Code. At the same time the trial court cannot abdicate its obligation to a child. No court with a sense of responsibility will hold a child in the age group of 7-12 years criminally responsible for the acts he is accused of without satisfying itself that the child has the requisite maturity of understanding to judge the nature and consequence of its acts. In case courts come to the conclusion that the child did not have the requisite maturity of understanding to know the consequences of his acts, the court shall provide necessary protection contemplated in law to the child.
77. It is the imperative duty for a court, where the accused is under 12 years of age to enquire whether child possessed degree of knowledge, development and understanding essential to criminality.
78. The trial courts have an obligation to law to prevent miscarriage of justice resulting from the incapacity of a child to defend itself or understand its rights. The rights of a child in conflict with law can be protected only if the courts sensitize the administration of justice. The courts in India are not silent spectators in a trial but active instruments in search for correct facts and truth and the sole repositories to dispense justice.
Rights of an employer:
79. The right of an employer to make enquiries about an employee's criminal past or even extant criminal cases cannot be contested. The knowledge of criminal antecedents enables the employer to determine the employability of an employee. In fact it is the duty of the State employer to know the criminal antecedents of an employee since the latter holds a public post.
80. The State employer examines the criminal antecedents of its employees prior to their induction in government service.
81. Criminal antecedents are an accepted criteria to form an opinion on criminal traits in an individual and his suitability for employment. A person may be denied entry into government service or removed from government service if found in possession of such criminal traits.
82. The verification of character and antecedents of government servants before their appointment is prescribed in Government Order dated 28.04.1958. The aforesaid Government Order arose for consideration by the Hon'ble Supreme Court in the judgment and order dated 19.08.2011 passed in Civil Appeal No. 7106 of 2011, Ram Kumar Vs. State of U.P. and Others. The Hon'ble Supreme Court in the case of Ram Kumar (supra) defined the purpose of the Government Order in the following terms:
"We have carefully read the Government Order dated 28.04.1958 on the subject `Verification of the character and antecedents of government servants before their first appointment' and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
"The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point."
It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point."
83. The State as an employer has a duty to make diligent enquiries in this regard. The employees on their part are required to disclose the fact of past prosecution, conviction in a criminal case or pendency of a criminal case in a declaration on oath at the time of their appointment.
84. The rights of the employer to ascertain the criminal antecedents of an employee and failure of an employee to furnish such details or providing false information in regard thereto, was in issue before various courts on several occasions.
85. A false declaration on oath regarding past prosecution in a criminal case or a conviction in a criminal offence or pendency of a criminal case could invalidate the appointment and entail termination of services. Some authorities would have it that such false affidavit would ipso facto result in the termination of the services of the employee. The other view took mitigating circumstances into account. The divergence in judicial views was finally resolved by a three Judge Bench of the Hon'ble Supreme Court in the case of Avtar Singh v. Union of India and Others, reported at (2016) 8 SCC 471.
86. The penal consequences accruing to a candidate by reason of a false declaration made in the course of verification at the time of his recruitment underwent a substantial change when the Hon'ble Supreme Court handed down the judgment in the case of Avtar Singh (supra). In Avtar Singh (supra) law was crystallized in the following terms:
"We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted: -
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
(emphasis added)
87. There is another aspect to the matter. The gravity of the offence has to be seen in the context of social realities. The practice of framing young members of a family in old disputes in the villages is not uncommon. This is not only an abuse of the process of court but also has far-reaching consequences on our social structure. False criminal cases are employed to ruin the future of the offsprings of the family in opposition and to exact revenge. In such cases, the taint of an alleged indiscretion in early life will pursue a young man to the end of his life. The Hon'ble Supreme Court took cognizance of these realities in the case of Commissioner of Police and Ors. Vs. Sandeep Kumar reported at 2011 (4) SCC 644. The Hon'ble Supreme Court held thus:
"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character "Jean Valjean" in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed:
"I come now to Mr Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show--and to show to all students everywhere--that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land--and I speak both for England and Wales--they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards--of the poets and the singers--more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong--very wrong--in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed." (Vide Morris v.Crown Office [(1970) 2 QB 114 : (1970) 2 WLR 792 : (1970) 3 All ER 1079 (CA)] , QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."
88. The Judgment of the Hon'ble Supreme Court in the case of Sandeep Kumar (supra) was cited with approval for in the case of Avtar Singh (supra).
89. Clearly the right of the State as an employer to know the criminal antecedents of its employees is unexceptional. But the rights are not unrestricted in case of children. The rights of the employer are limited by three constraints. The rights of an employer have to be reconciled to provisions of the Constitution and the propositions of Constitutional law. Thirdly the employer's rights are also circumscribed by the statutory regimes of child rights.
Interplay of Employers' Rights Vs. Child Rights (A). Employers' Rights Vs. Constitutional Rights of Children
90. The rights of an employer are hedged, by the constitutional rights of a child. The interplay of the employer's rights with the constitutional rights of a child may now be considered.
91. A nuanced approach is required to understand the ambit of the right to reputation of a child and right to privacy of a child guaranteed under Article 21 of the Constitution of India.
92. In the wake of the preceding narratives, certain fundamental precepts can be distilled from the range of statutes and pronouncements of courts which form the first principles of child rights jurisprudence. These fundamental principles of child rights jurisprudence would lend perspective and aid the understanding of Constitutional rights of children under Article 14 and Article 21 of the Constitution of India.
93. The vulnerability of a child is an attribute of childhood which is recognized by all legislatures. The incapacity of a child to know its rights is a given in child rights' jurisprudence. The inability of a child to assert its rights is a disability which is understood by all courts. The aim of the legislatures and the endeavour of the courts is to insulate the child from the cruel vagaries of life which it cannot comprehend and lacks the capacity to defend against. Reform of children in conflict with law, their reintegration in society and creation of a salutary environment for children to grow and realize their potentialities is the high purpose to which the legislatures and the courts have directed their efforts. Children have special needs in life and require special protection in law. The indispensable feature of all child rights' legislations is the special protection to children provided by the legislature in a given field.
As an old writer observed on the incapacity of infants-
"The law protects their persons, preserves their rights and estates, excuseth their laches and assists them in their pleadings, the judges are their counsellors, the jury are their servants and law is their guardian.
94. As we have seen that fate of children in conflict with law has engaged the attention of the legislature, the courts and the larger comity of nations and international organizations. The collective endeavours have been guided by common purpose. Children in conflict with law need special care. The criminal justice system has to be sensitized to deal with the class of children in conflict with law. The child has to be protected from harsh treatment and should not be exposed to the rough edges of the criminal justice system. The child has to be shielded from all aspects and consequences of the criminal justice system which can cast a lasting trauma or precludes it from leading a normal life free from blemish and prevents the reintegration of the child in the society.
95. One most critical feature of child rights regime is the issue of the taint caused by criminal prosecution and the disability accruing from criminal conviction. The consequent impediments in the reintegration of the delinquent child in the society are issues which are addressed by the legislatures and the courts alike. Some measures like restricted access to records of trials sealing and destruction of records of prosecution of juvenile delinquents are finding acceptability among legislatures across the world. Courts have been anonymising trials of children conflict with law to protect their identities.
96. All these issues and first principles thus lie at the heart of child rights jurisprudence, animate the purpose of child rights legislation and engage the "life" of a child under Article 21 of the Constitution of India.
97. Of course, persons between 16-18 years of age prosecuted for heinous crimes, have been put in a separate class by the legislature. They may be denied the protective cover of the child rights regime as per provisions of law.
98. A past prosecution of a child in a criminal case which remains in public records pertaining to employment becomes part of public discourse. In public employment, past prosecution of a child in a criminal case is often made a criteria for forming an opinion of the child's criminal antecedents. Such criteria revives the taint of a past prosecution to blight the prospects of future employment. A reference to a past prosecution will tarnish the reputation of a child and become a permanent stigma in his life. Consideration of a past prosecution of child in a criminal case for any purpose or in any discourse, will create a perpetual disability for the child. The practice of making the past prosecution a criteria for forming an opinion of the child's criminal antecedents or even making it a consideration in public employment will provoke consequences which the child rights regime seeks to prevent. The consideration of a past prosecution of a child in a criminal case will prevent reintegration of the child in the mainstream of the society. It will pose an impediment in the reformation of the child and the growth of the child into a responsible adult. It will disable the all around development of the child into a law abiding citizen. It will preclude realization of the mandate of Article 39 of the Constitution of India. These circumstances will violate the child rights regime and the "life" of a child as guaranteed under Article 21 of the Constitution of India will be devoid of meaning.
99. The right of privacy of a child would be meaningful if such prosecution is not made part of public discourse as a criteria for appointment to public posts or admission to any institution of learning or for that matter any other transaction in life.
100. Similarly, the right to privacy in the context of a child would include his right to deny information relating to his prosecution as a child under the Juvenile Justice Act and for offences which do not come in the category of heinous offences under the said Act.
101. The prerequisite for realizing the Fundamental Rights of a child vested by Article 21 of the Constitution of India, is to create all conditions essential for reintegration of the child in the social mainstream and to open opportunities for self development and self fulfillment, free from the taint of the past. The fact of the prosecution has to be purged from public records to rid the child of the taint.
102. The wide consensus of such values helps us in determining the rights of a child. The endeavours of the courts and the legislatures alike is to protect the identity of the child offender, and to shield the child in conflict with law from suffering lasting and traumatic consequences of criminal prosecution. A child who has been prosecuted for criminal offence is entitled to a fresh chance in life. The child has to begin life as an adult on a clean state, as if no such criminal prosecution happened. This is possible when the fact of such criminal prosecution is purged from public discourse and is not a consideration for appointment to an office. The denial of public space and legitimacy to the fact of such criminal prosecution is the sheet anchor of the right to privacy and right to reputation of a child. An employer cannot elicit any information from any candidate or employee regarding the prosecution of the latter in a criminal case as a minor child for non heinous offences. An employer is precluded from seeking a declaration from a candidate or an employee regarding the prosecution of the latter in a criminal case as a child.
103. These prerequisites create an environment which fosters a balanced growth of a child and enables it to realize its full potentialities. These prerequisites accord meaning to the life of a child as contemplated under Article 21 of the Constitution of India. This is the essence of the fundamental right guaranteed to a child by Article 21 of the Constitution of India.
104. The Directive Principles of State Policy enshrined in Article 39 of the Constitution of India are infact the mandatory requirements of law to bring the rights of a child vested by Article 21 of the Constitution of India to fruition.
105. The meaning of life for children contemplated in Article 21 would be fruitful, if conditions of life for children envisaged under Article 39 are created.
106. The most significant ambition of the founding fathers was expressed in most simple words. The terse words of Article 14 of the Constitution of India, translated the historical quest for equality into a perpetual promise of equality. The promise is redeemed by the courts on demand by the citizens. The courts have avoided a doctrinaire interpretation but have also eschewed an abstruse approach to the provision. The courts evolved judicially manageable standards while construing Article 14.
107. Article 14 of the Constitution of India vests the inalienable right of equality and makes the immutable promise of securing equal protection of laws. Rightly called the "fundamental charter of equality," it reads thus:
"14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth."
108. Article 14 contemplates creation of differential classification. Treating unequals as equals would violate the equality clause of the Constitution.
109. Legislative enactments treat children differentially from adults. Children are constituted in a separate class from adults in law. The treatment accorded to children in law is different from that of adults. This differential treatment underlies the sensitive approach to children in law. The criminal prosecution of a child is not at par with the prosecution of an adult for a similar crime. The said prosecution and the consequences of such prosecutions cannot be treated alike. Law ensures that the adverse consequences of prosecution of child are not only mitigated but are completely obviated.
110. Children in conflict with law are a well defined class. This class cannot be treated like adults. Children are not "miniature adults" to borrow the expression in Alabama (supra).
111. It has been held by good authority that treating unequals as equals will militate against the mandate of Article 14 of the Constitution of India. The Hon'ble Supreme Court in the case of Bennett Coleman & Co. v. Union of India reported at 1972 (2) SCC 788 held thus:
"161. It has been said that in the scheme of distribution of newsprint, unequals have been treated equally and, therefore, the Newsprint Policy violates Article 14 of the Constitution. To decide this question regard most be had to the criteria to be adopted in distributing the material resources of a community. Arguments about equality in this sphere are really arguments about the criteria of relevance. The difficulties involved in developing such criteria have occupied philosophers for centuries. Despite the refinements that distinguish the theories of various philosophers, most such theories represent variations on two basic notions of equality: are numerical equality and proportional equality. The contrast between the two notions is illustrated by the difference between the right to an equal distribution of things and the equal right with respect to a distribution of such things. According to the former, each individual is to receive numerically identical amounts of the benefit being distributed or the burden imposed in the public sector, whereas the latter means only that all will receive the same consideration in the distributional decision, but that the numerical amounts distributed may differ. Proportional equality means equality in the distribution according to merit or distribution according to need (see Developments--Equal Protection.) [ Harvard Law Review, Vol. 82, p. 1165] . But the Supreme Court of U.S.A. has departed from this traditional approach in the matter of equality and has adopted a more dynamic concept as illustrated by the decisions in Griffin v. Illinois [351 US 12] and Douglas v. California. [372 US 353] In these cases it was held that the State has an affirmative duty to make compensatory legislation in order to put two really unequal persons on a footing of equality. In other words, the traditional doctrine that the Court is only concerned with formal equality before the law and is not concerned to make men equal who are really unequal has undergone radical change in the recent years as illustrated by these cases. Justice Harlan dissented both in Griffin's case and Douglas' case and his dissenting opinion in the former case reveals the traditional and the new approaches and also highlights the length to which the majority has gone:
"The Court thus holds that, at least in this area of criminal appeals, the Equal Protection clause imposes on the State an affirmative duty to lift the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the State to treat all persons equally means in this instance that Illinois must give to some what it requires others to pay for.... It may as accurately be said that the real issue in this case is not whether Illinois has discriminated but whether it has a duty to discriminate."
112. The criteria of past criminal prosecution for forming an opinion about considering a criminal antecedents of a candidate is a valid one. This criteria which is valid for adults, would be flawed if applied to children. However, this would amount to treating unequals as equals. A logical sequitor is that fact of a past criminal prosecution of a child is not a relevant consideration for appointment to a public post or office and is violative of Article 14 of the Constitution of India.
113. Arbitrariness is another facet of Article 14 of the Constitution of India. Arbitrary action or criteria is negated by Article 14. This aspect of Article 14 is also engaged in the instant controversy. Some facts stated in detail in the preceding part of judgment are reproduced in substance hereunder:
114. The personality of a child is in constant evolution and its character traits are not permanent. The causes which impel a child to be on the wrong side of law or commit deviant acts are often traceable to its environment. A child has no control over its environment and its deviant behaviour is reversible. A child's conduct is capable of correction and a child is reformed over the years. Good authority in law and the field of child psychology has concluded that the character traits which impelled a child into a criminal act are transient and will be reformed with age.
115. In such a situation, the criteria of considering the past crimes committed by an employee as a child do not form a reliable, rational and a just basis for making an assessment of criminal traits and to determine suitability for employment. This criteria would be an irrelevant consideration for appointment to a public post. Above all such criteria is wholly arbitrary and flagrantly violates Article 14 of the Constitution of India.
(B). Employers' Righs and Juvenile Justice Act, 1986 and Juvenile Justice Act, 2015
116. The critical feature and the guiding philosophy of child rights jurisprudence and Juvenile Justice Act, 1986 and also Juvenile Justice Act, 2015 is to prevent the child from reoffending and to reintegrate the child in the society, to enable the child to grow into a reformed and a responsible adult and a law abiding citizen. The aim can be achieved if the taint of a past criminal prosecution does not blight the future prospects of a child. A past aberration as a child cannot define his future life as an adult. The aim of reintegrating the child in the society would be defeated in detail if the fact of a past prosecution stigmatizes the future life of the child. Not only conviction but the criminal prosecution itself carries a stigma.
117. The future of a child, in conflict with law will be secure and the reintegration of child will be complete, only if the taint of a past criminal prosecution is purged from his life. The legislature, the prosecution agencies, the employers and the courts have a responsibility in this regard. The legislature has gone the whole length by providing that disqualification will result from a conviction of the child under the Juvenile Justice Act 1986 as well as the Juvenile Justice Act, 2015.
118. Salient features of the Juvenile Justice Act, 1986 protect the child not only from the rigor of the criminal prosecution but also from the consequences of conviction under the said Act.
119. As we have seen earlier that the Juvenile Justice Act, 1986 also provides for non disclosure of details of the child who faced prosecution and restricts access to the records relating to such prosecution. Destruction of records of prosecution faced by the child is another provision reflecting a clear intent of the Legislature.
120. Section 25 of the Juvenile Justice Act, 1986 quoted earlier, protects the child from the consequences accruing from the conviction under the Act and mandates that such conviction under the Act cannot operate as a disqualification against such child.
121. If the conviction of a child under the Juvenile Justice Act, 1986 is not a disqualification for appointment, it stands to reason that prosecution of a child in a criminal case cannot operate as a disqualification too. The important logical corollary is that the criminal prosecution faced by an employee as a child cannot become the criteria for forming an opinion about criminal antecedents and suitability for appointment. It is an irrelevant consideration. The material considered and standards adopted to form an opinion about the antecedents and suitability of adults for appointment on public posts cannot be applied to children who had trouble with the law or to a candidate who faced criminal prosecution as a child.
122. This Court thus come to the same conclusion by different enquires on independent lines.
123. Restrictions on the right of an employer to ascertain the criminal antecedents of an employee by probing a prosecution faced by such employee as a child came up for consideration before a Division Bench of the Calcutta High Court in the case of Sahadeb Ghosh Vs. State of West Bengal, reported at 2012 Lab IC 2469.
124. While construing the provisions of Section 19 of the Juvenile Justice Act 2000, insofar as they remove any disqualification accruing from a conviction under the said Act, the Division Bench of the Calcutta High Court in the case of Sahadeb Ghosh (supra) held thus:
"Section 19 of the said Act of 2000 clearly says that, notwithstanding anything contained in any other law, a juvenile, who, has committed an offence and has been dealt with under the provisions of the said Act of 2000, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
Therefore, if conviction does not become a bar and/or disqualification, it is unacceptable that pendency of a proceeding against a juvenile can be a bar.
A benefit sought to be given by the legislature under section 19 of the said Act of 2000 cannot be obliterated. Logical corollary of the said provision is that even if a juvenile is convicted, such conviction would not act as disqualification. Even, under sub-section (2) of section 19 of the said Act of 2000 records of such conviction are to be removed after the period of expiry of appeal or alter a reasonable period as prescribed under the rules.
We are of the opinion that inactions on the part of the authorities are against the provisions of the said Act of 2000. It goes contrary to the object sought to be achieved by the said Act of 2000. Section 19 of the said Act of 2000 protects a juvenile and any stigma attached to his conviction is, also, removed. The approach should be to condone minor indiscretions made by young people than to brand them as criminal for the rest of his life. The said Act of 2000 does not envisage incarceration of a juvenile nor wants to shut on him the doors of a decent and disciplined civilised life. On the contrary, it opens for him such a vista by providing him an occasion to amend and regulate his delinquency. The Courts are not to thwart such a course for him by either caprice, bias or any impractical or unimaginable reason.
We hold that benefits sought to be given to a convicted person under section 19 of the said Act of 2000 read with the said Rules of 2007 shall equally apply to a person against whom a case is pending before the Juvenile Justice Board. Thus, the authorities cannot refuse to give appointment to the writ petitioner on the sole ground of pendency of a criminal case before the said Board.
We are unable to accept the contention of Mr. Majumdar that this Court in exercise of the power of judicial review is unnecessarily interfering with the managerial functions of the State by extending the benefits of section 19 of the said Act of 2000 to the writ petitioner. We are simply extending the benefits provided under section 19 of the said Act of 2000 as provided by the legislatures in their wisdom.
We, therefore, set aside the order of the tribunal and direct the authorities to complete the police verification of the petitioner irrespective of pendency of his case before the Juvenile Justice Board and to consider his case for appointment for the post of constable of police on the basis of such report, keeping in mind the intention of the legislature as enshrined in section 19 of the said Act of 2000."
125. The Constitutional rights of a child and statutory rights of a child guaranteed under the Juvenile Justice Act 1986 cannot be implemented in silos. Every agency of governance including State employers are under an obligation to implement the rights of a child guaranteed by the constitution and protected by the Juvenile Justice Act, 1986.
Findings
126. The facts found in outline in the earlier part of the judgment shall be considered in detail in the following paragraphs. The petitioner at the age of ten years was prosecuted for offences under Sections 452, 323, 506 and 504 IPC. No effort was made by the Investigating Officer to protect the identity of the petitioner in the course of the investigation. The identity of the petitioner was disclosed in the trial by the prosecution. The investigating Officer did not ascertain the psychological maturity or the mental capacity of the petitioner to commit the crime he was accused of.
127. The trial court proceedings did not redeem the injustice. The trial court did not anonymise trial. The name of the petitioner even as a child delinquent became part of public records to which access was uncontrolled. The trial court did not discharge its obligations to the rights of a child in conflict with law.
128. No enquiry was made by the trial court into the fact whether the child accused (the petitioner) understood his rights or whether he was advised to prepare his defence and had the resources to tender a full defence of his case before the court. Similarly, trial court did not make any enquiry into the psychological state or maturity of the mind of child accused to understand the consequences of his acts.
129. This line of enquiry was essential to determine whether the petitioner had at the age of 10 years approached the mental and psychological state of criminal responsibility or he came within the exception of Section 83 IPC. Only such enquiry could have decided whether the criminal prosecution of the child accused (the petitioner ) was lawful or not. The ability of a child accused to stand trial and satisfaction of prerequisites by a child accused to bear criminal responsibility are issues which go to the root of a prosecution. In the absence of such enquiry the petitioner as a child accused had to face criminal prosecution like an adult.
130. For reasons not in the record, the petitioner was not prosecuted under the Juvenile Justice Act, 1986. The protection afforded by the said Act was denied to the petitioner.
131. The incapacity of the petitioner as a child accused prevented him to assert his rights. The vulnerability of the petitioner made him a victim in the legal process. This is precisely the evil the child rights regime seeks to prevent. Treating a child accused as an adult in a criminal prosecution without adopting the process of law violated the rights of the petitioner.
132. The nature of the offence the petitioner was prosecuted for has to be seen in the light of the observations made by the Hon'ble Supreme Court in Sandeep Kumar (supra). No findings of a diabolic act or a depraved mindset against the petitioner have been returned by the trial court.
133. The well known prosecution sweet spot of Sections 323, 504 and 506 IPC which have been traditionally employed by village adversaries to blight the future of a young one in a rival family were the provisions under which the petitioner was prosecuted. The said prosecution serves well the evil intent of the parties who abuse the process of law to get even with their adversaries. The prosecution can be set in motion with relative ease and little requirements of detailed evidence. The fate of the prosecution does not matter, as the institution of the prosecution alone serves the purpose of harassment and stigmatizing the young children of an adversary family.
134. The petitioner was acquitted by the trial court in the said criminal prosecution.
135. The consequences of an acquittal can go beyond exoneration from charges. There is good authority which holds that "an order of acquittal wipes off the conviction and sentence for all purposes and as effectively as if it had never been passed."
136. The proposition is a legal fiction. The consequences of the legal fiction shall play out and its effect will be fully carried out in appropriate cases.
137. Initially the legal fiction was applied in election matters. The facts were similar, in all the cases. A conviction entailed an election disqualification. Election petitions were instituted. Before final decisions in the election petitions acquittal by the trial court happened. The Hon'ble Supreme Court held that the acquittal would wipe off the conviction from its nativity and the election disqualification would be fully effaced.
138. The question which was posed for a decision by the Hon'ble Supreme Court in the case of Manni Lal vs. Parmai Lal, reported at 1970 (2) SCC 462 was: What was the effect of the acquittal in appeal of the returned candidate before the decision of the election petition on his conviction and sentence, which was the main ground on which he was alleged to be disqualified for being elected. The Hon'ble Supreme Court answered the question in the following terms:
"3. On these facts, it is clear that, though the conviction of Respondent 1 was recorded by the trial court on 11th January, 1969, he was acquitted on 30th September, 1969, in appeal which acquittal had the effect of completely wiping out the conviction. The appeal having once been allowed, it has to be held that the conviction and sentence were vacated with effect from the date on which the conviction was recorded and the sentence awarded. In a criminal case, acquittal in appeal does not take effect merely from the date of the appellate order setting aside the conviction; it has the effect of retrospectively wiping out the conviction and the sentence awarded by the lower court. The disqualification relied upon by the appellant was laid down under Section 8(2) of the Act, read with Article 102(1)(e) of the Constitution. The provision is that a person convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release. The argument on behalf of the appellant was that, though Respondent 1 was not disqualified at the time of filing of nomination, he was, in fact, disqualified on 9th February, 1969, the date of polling, as well as on 11th February, 1969, when the result was declared, because his conviction had been recorded and he had been sentenced to ten years' rigorous imprisonment on 11th January, 1969. It was further urged that, though the appeal had been filed, that appeal did not have the effect of wiping out this conviction. In these circumstances, it was urged that his election was void and should have been set aside on the ground of this disqualification.
4. This argument overlooks the fact that an appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. Once an order of acquittal has been made, it has to be held that the conviction has been wiped out and did not exist at all. The disqualification, which existed on 9th or 11th February, 1969, as a fact, was wiped out when the conviction recorded on 11th January, 1969, was set aside and that acquittal took effect from that very date. It is significant that the High Court, under Section 100(1)(a) of the Act, is to declare the election of a returned candidate to be void if the High Court is of opinion that, on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or the Act. It is true that the opinion has to be formed as to whether the successful candidate was disqualified on the date of his election; but this opinion is to be formed by the High Court at the time of pronouncing the judgment in the election petition. In this case, the High Court proceeded to pronounce the judgment on 27th October, 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January, 1969. It was, therefore, impossible for the High Court to arrive at the opinion that on 9th or 11th February, 1969, Respondent 1 was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election void could not be formed. The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from 11th January, 1969. Learned counsel conceded that, if a law had been passed repealing Section 8(2) of the Act and the law had been deemed to come into effect from 11th January, 1969, he could not have possibly urged thereafter, when the point came up before the High Court, that Respondent 1 was disqualified on 9th or 11th February, 1969. The setting aside of the conviction and sentence in appeal has a similar effect of wiping out retrospectively the disqualification. The High Court was, therefore, right in holding that Respondent 1 was not disqualified and that his election was not void on that ground."
139. In the case of Vidya Charan Shukla v. Purshottam Lal Kaushik, reported at (1981) 2 SCC 84, the appellant was declared elected to the Lok Shabha from No. 18, Mahasamund Parliamentary Constituency in Madhya Pradesh. The election result was notified on 10.01.1980. The election of the appellant came to be challenged by the respondents on the foot that the appellant was disqualified from being chosen as a candidate on account of his conviction and sentence imposed by the trial court. The elected candidate was convicted and sentenced to imprisonment for a term exceeding two years by the Sessions Judge, Delhi on 22.02.1979. The appellant took his conviction in an appeal which was allowed on 11.04.1980. The appellate court set aside the conviction and sentence of the appellant and acquitted him of the charges against him. Subsequently, the election petition against the appellant was allowed by the Hon'ble High Court of Madhya Pradesh by judgment entered on 05.09.1980. The Hon'ble Supreme Court in the case of Vidya Charan Shukla (supra) reversed the judgment of the Madhya Pradesh High Court by employing legal fiction as followed by the Hon'ble Supreme Court in Manni Lal (supra) and held thus:
"33. In other words, the ratio decidendi logically deducible from the above extract, is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled and rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable.
36. In short, the acquittal of the appellant before the decision of the election petition pending in the High Court, had with retrospective effect, made his disqualification non-existent, even at the date of the scrutiny of nominations. This being the position, the High Court could not at the time of deciding the election petition form an opinion as to the "existence" of a non-existent ground and sustain the challenge to the appellant's election under Section 100(1)(d)(i)".
140. The issue of the effect of an acquittal had also engaged the attention of the Hon'ble Supreme Court in a different fact situation in the case of Dilip Kumar Sharma Vs. State of Madhya Pradesh, reported at 1976 (1) SCC 560. The Hon'ble Supreme Court reaffirmed the ancient authority which continued to hold the field regarding the consequences of an acquittal by holding as follows:
33. There is authority for the proposition that an order of acquittal, particularly one passed on merits, wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or avoiding a conviction operates from nativity. As Kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction of Rohit for Prabhu's murder was quashed, the High Court -- to borrow the felicitous words of Krishna Iyer, J. -- "killed the conviction not then, but performed the formal obsequies of the order which had died at birth".
141. We have seen in the case of Vidya Charan Shukla (supra) and Manni Lal (supra), the applicability of the legal fiction regarding the consequences of an acquittal were applied to election petitions which were on foot when the conviction was still standing. However, the justification of applying the aforesaid legal fiction regarding the consequences of an acquittal to election petitions and the correctness of the law laid down in Manni Lal (supra) and Vidya Charan Shukla (supra) was called in question before the Hon'ble Supreme Court in K. Prabhakaran Vs. P. Jayarajan reported at 2005 (1) SCC 754. The Hon'ble Supreme Court found that "anomalies and absurdities would result" if the aforesaid legal fiction is applied to election petitions, which were on foot when the conviction and sentence were still standing. The Hon'ble Supreme Court defined the aforesaid anomalies in the following manner:
33. We may just illustrate what anomalies and absurdities would result if the view of the law taken in Manni Lal case [(1970) 2 SCC 462] and Vidya Charan Shukla case[(1981) 2 SCC 84] were to hold the field. One such situation is to be found noted in para 39 of Vidya Charan Shukla case [(1981) 2 SCC 84] . A candidate's nomination may be rejected on account of his having been convicted and sentenced to imprisonment for a term exceeding two years prior to the date of scrutiny of nomination. During the hearing of election petition if such candidate is exonerated in appeal and earns acquittal, his nomination would be deemed to have been improperly rejected and the election would be liable to be set aside without regard to the fact whether the result of the election was materially affected or not. Take another case. Two out of the several candidates in the election fray may have been convicted before the date of nomination. By the time the election petition comes to be decided, one may have been acquitted in appeal and the conviction of the other may have been upheld and by the time an appeal under Section 116-A of RPA preferred in this Court comes to be decided, the conviction of one may have been set aside and, at the same time, the acquittal of the other may also have been set aside. Then the decision of the High Court in election petition would be liable to be reversed not because it was incorrect, but because something has happened thereafter. Thus, the result of the election would be liable to be avoided or upheld not because a particular candidate was qualified or disqualified on the date of scrutiny of nominations or on the date of his election, but because of acquittal or conviction much after those dates. Such could not have been the intendment of the law.
142. The Hon'ble Supreme Court declined to import the consequence of retrospective operation of an acquittal to repeal the disqualification suffered by a candidate under the election laws before the order of acquittal was entered. The Hon'ble Supreme Court stated the position of law as follows:
34. We are also of the opinion that the learned Judges deciding Manni Lal case[(1970) 2 SCC 462] were not right in equating the case of appellate acquittal with the retrospective repeal of a disqualification by statutory amendment.
35. In Vidya Charan Shukla case [(1981) 2 SCC 84] , Dilip Kumar Sharma case[(1976) 1 SCC 560 : 1976 SCC (Cri) 85] has been relied upon which, in our opinion, cannot be applied to a case of election and election petition.
40. We are clearly of the opinion that Manni Lal case [(1970) 2 SCC 462] andVidya Charan Shukla case [(1981) 2 SCC 84] do not lay down the correct law. Both the decisions are, therefore, overruled."
143. The law laid down by the Hon'ble Supreme Court in the case of K. Prabhakaran (supra) cannot be approached in a pedantic manner.
144. The Hon'ble Supreme Court did not disturb the time honored principle or legal fiction relating to acquittal. The Hon'ble Supreme Court in the case of K. Prabhakaran (supra) merely restricted the application of the aforesaid legal fiction to purposes for which it was created.
145. In the opinion of the Hon'ble Supreme Court, the legal fiction applying the legal fiction to election laws would be an illegitimate extension of the same.
146. The Hon'ble Supreme Court in the case of K. Prabhakaran (supra) affirmed the time honored and time tested legal fiction relating to an acquittal but declined to extend its applicability to election matters in which a candidate stood disqualified on the date of his nomination on account of his conviction. The Hon'ble Supreme Court disagreed with the view that the candidate would at a later date become qualified consequent to his acquittal by holding thus:
39. That an appellate judgment in a criminal case, exonerating the accused-appellant, has the effect of wiping out the conviction as recorded by the trial court and the sentence passed thereon -- is a legal fiction. While pressing into service a legal fiction it should not be forgotten that legal fictions are created only for some definite purpose and the fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. A legal fiction presupposes the existence of the state of facts which may not exist and then works out the consequences which flow from that state of facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond what logically flows amounts to an illegitimate extension of the purpose of the legal fiction (see the majority opinion in Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603 : AIR 1955 SC 661] ). P.N. Bhagwati, J., as His Lordship then was, in his separate opinion concurring with the majority and dealing with the legal fiction contained in the Explanation to Article 286(1)(a) of the Constitution (as it stood prior to the Sixth Amendment) observed: (SCR pp. 720-21) "Due regard must be had in this behalf to the purpose for which the legal fiction has been created. If the purpose of this legal fiction contained in the Explanation to Article 286(1)(a) is solely for the purpose of sub-clause (a) as expressly stated it would not be legitimate to travel beyond the scope of that purpose and read into the provision any other purpose howsoever attractive it may be. The legal fiction which was created here was only for the purpose of determining whether a particular sale was an outside sale or one which could be deemed to have taken place inside the State and that was the only scope of the provision. It would be an illegitimate extension of the purpose of the legal fiction to say that it was also created for the purpose of converting the inter-State character of the transaction into an intra-State one."
His Lordship opined that this type of conversion would be contrary to the express purpose for which the legal fiction was created. These observations are useful for the purpose of dealing with the issue in our hands. Fictionally, an appellate acquittal wipes out the trial court conviction; yet, to hold on the strength of such legal fiction that a candidate though convicted and sentenced to imprisonment for two years or more was not disqualified on the date of scrutiny of the nomination, consequent upon his acquittal on a much later date, would be an illegitimate extension of the purpose of the legal fiction. However, we hasten to add that in the present case the issue is not so much as to the applicability of the legal fiction; the issue concerns more about the power of the Designated Election Judge to take note of subsequent event and apply it to an event which had happened much before the commencement of that proceeding in which the subsequent event is brought to the notice of the court. An election petition is not a continuation of election proceedings.
147. The legal fiction relating to the effect of an acquittal has been stated in the preceding part of the judgment. The purpose for which the fiction was created and whether the same can be applied to the facts of this case would be the subject matter of the discussion.
148. The court has the power to convict or acquit an accused in a criminal trial. The court also has the responsibility to redeem the honour of an accused who has been acquitted in a criminal trial.
149. Criminal prosecution of an accused is not only about crime against the society, punishment of the guilty and acquittal of the innocent, it is equally about restoring the honour and redeeming the reputation of an innocent person.
150. The power to restore a person to his place of honour and unblemished reputation after his acquittal in a criminal trial vests in the courts.
151. The courts can turn the clock back in appropriate cases. In such appropriate cases where an accused has been acquitted in a criminal trial, his Constitutional right to reputation guaranteed by Article 21 of the Constitution can be enforced by implementing the consequences of an acquittal as laid down by the Hon'ble Supreme Court in Dilip Kumar Sharma (supra) and the legal fiction affirmed in K. Prabhakaran (supra).
152. No exhaustive tests of such cases are being attempted. However, the cumulative effect of the established facts of the case and the legal narrative in the preceding paragraphs is that the legal fiction of effect of an acquittal and the consequences of an acquittal laid down in and Dilip Kumar Sharma (supra) and K. Prabhakaran (supra) shall apply here.
153. The creation of the legal fiction was made for cases such as the instant one.
154. The courts have evolved several categories of acquittal. However, once a court finds that the acquittal was of a nature where the affect of the conviction stands completely wiped out as if it never existed, other consequences will also have to follow. The legal fiction of the consequences of an acquittal will have to be given its full effect. The purpose of wiping out the effect of the conviction and of holding that the conviction never happened, is to restore the accused to a position of unblemished honour in the society. However, in our society even the fact of prosecution is a taint on the reputation of a person. In case an accused is acquitted and the court holds that the consequence of the acquittal is that the conviction never happened, it follows, that the prosecution against the petitioner was a false one. The prosecution from its inception was false. False facts cannot remain on public records. False facts cast an indelible stain on the reputation of a person as has been held by this Court in the case of Sampurnanand (supra). It would be detrimental to the rule of law and norms of civilized society to permit the fact of such discredited prosecution to remain in public records and continue as a relevant consideration for public appointments.
155. To sum up, on acquittal conviction is wiped out as if it never happened. The sequitor of the proposition is that prosecution stands effaced as if it was never instituted and the F.I.R. stands expunged as if it was never registered.
156. Back to the facts. The consequences of acquittal of the petitioner in the criminal case is that the prosecution of the petitioner in the criminal case never happened. The prosecution stood completely effaced as if the prosecution was never instituted. The F.I.R. against the petitioner stood fully expunged as if it was never registered. Thus, the declaration made by the petitioner is not false.
157. The heavy handed manner of the prosecution agency is evident in the investigation of the criminal case. The approach of the trial court was not sensitive to the rights of the child accused during the trial. The insistence of the State employer on a disclosure of criminal prosecution faced as a child reflected an impersonal attitude and a rote response to child rights. This is not an environment which fosters a healthy development of children and where rights of children flourish.
158. The requirement posed by the respondents to the petitioner to make a declaration disclosing details of criminal prosecution faced by the latter, insofar as it included the criminal prosecution faced by the petitioner as a minor child of 10 years was in violation of the fundamental rights of the petitioner guaranteed by Article 14 and 21 of the Constitution of India and in the teeth of Section 25 of the Juvenile Justice Act, 1986.
159. The details of past prosecution faced by the petitioner as a child was not a valid criteria nor a lawful consideration to judge his suitability for appointment. Such criteria was arbitrary and illegal.
160. The declaration made by the petitioner was not a relevant consideration in the appointment of the petitioner. Hence, even the falsity of the declaration made by the petitioner could not invalidate his appointment.
161. The petitioner in defence of his fundamental rights vested by Article 14 and 21 of the Constitution of India, could hold his silence or decline to disclose details of the prosecution in a criminal trial faced by him as a minor child of 10 years. Such action or declaration of the petitioner cannot be faulted with. The services of the petitioner cannot be terminated on the foot of such action or declaration.
Relief:
162. The question which now arises is what relief to which the petitioner is entitled to.
163. The nature of injustice often shapes the kind of relief to be granted.
164. Grant of relief is the moment of reckoning in the process of law and the redeeming act of justice by the courts. Relief is not an act of philanthropy by the courts nor is it a windfall for the litigant. Grant of relief is guided by a balance of multiple issues and clear and manageable standards. The residual discretion will be exercised in the light of the conscience of the court.
165. Relief is moulded on the facts of each case. Sympathy cannot be the basis of grant of relief. Relief cannot be denied on the foot of the doctrine of fait accompli.
166. The courts have set their face against invocation of the doctrine 'fait accompli' to deny the relief. A Division Bench of this Court in the case of Dr. Muktakar Singh vs. State of U.P. and Others, reported at 2018 (2) ADJ 699, held thus:
"50. Fait accompli is a counsel of despair and cannot be elevated to a doctrine of law. The rule of law is founded on a premise of unquenchable hope and optimism that the arms of law are long enough to reach out to injustice and strong enough to redress it. The rule of moulding of relief by Courts, is an expression of this assurance. In such cases, if Courts are constrained by law to grant the relief prayed for in the petition, the Courts are obligated to mould the relief. Moulding of relief by Courts means grant of relief that is not specifically prayed for.
51. Law insists on observance of procedure. Justice demands that there should be no servitude to procedure.
52. The doctrine of moulding of relief by Courts is an indispensable tool in the administration of justice. The facts of this case require that the relief be moulded, to redeem the injustice and secure the ends of rule of law."
167. The endeavour of the courts is to right the wrong. The parties should be put back in the position they would have been but for the intervention of the offending act. Subsequent events may have to be factored in deciding the nature of the relief. In all cases the rule of law has to be affirmed and upheld.
168. While considering the grant of backwages the nature of the order which led to the denial of wages will be examined. Whether the order was vitiated on account of a technical defect which can be rectified upon remand is a relevant factor? Whether the remand of the matter to the authorities is possible and justified? Whether the order was a bonafide error of judgment by the authorities and the conduct of the parties is another criteria of consideration? In case the order is perverse and no other view is possible, then the defect cannot be supplied even upon remand. This fact would buttress the case for full backwages.
169. The question of backwages has engaged attention of Court on a number of occasions. Grant of backwages is not a matter of routine, nor a rule of thumb. It depends on the facts of the case, but the discretion of the courts is guided by judicial authority in point. The findings in the preceding paragraphs will guide the judgement on the issue.
170. It would now be apposite to fortify the narrative with judicial authority on point.
171. The nature of injustice and the adverse consequences of the assailed orders as factors in moulding of relief came up as an issue before the Hon'ble Supreme Court in the case of Commissioner., Karnataka Housing Board v. C. Muddaiah, reported at (2007) 7 SCC 689. The Hon'ble Supreme Court in the case of Commissioner., Karnataka Housing Board (supra) opined that in appropriate cases denial of full backwages would amount to permitting the employer to take advantage of his own wrongs. The Hon'be Supreme Court laid down the law in the following terms:
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may,nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
172. Similarly, in the case of Pradip Kumar v. Union of India, reported at (2012) 13 SCC 182, the grant of backwages was made to redeem violation of Article 14 of the Constitution of India caused by a stigmatic and punitive order:
"19.This now brings us to the appeal arising out of Special Leave Petition No. 27821 of 2012 filed by Pradip Kumar claiming the relief of reinstatement and for the grant of consequential benefits including full back wages. Although, the High Court had allowed the writ petition of the respondent only on the ground that there had been a violation of Rule 9(2), we have come to a conclusion that the order of discharge was vitiated being colourable exercise of power, stigmatic and punitive in nature and such order cannot be sustained in law. In our opinion, the order of discharge is arbitrary and therefore violates Article 14 of the Constitution. Consequently, we hold that the appellant Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been compelled to remain out of service. The Union of India is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this order."
173. In the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., reported at (2014) 11 SCC 85 , the Hon'ble Supreme Court found that an employee who was kept out of service due to a mistake was entitled to full backwages:
"35.Therefore, the Labour Court was correct on factual evidence on record and legal principles laid down by this Court in a catena of cases in holding that the appellant is entitled to reinstatement with all consequential benefits. Therefore, we set aside the order of the High Court and uphold the order of the Labour Court by holding that the appellant is entitled to reinstatement in the respondent Company.
36.On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in Shiv Nandan Mahto v. State of Bihar [(2013) 11 SCC 626] that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under: (SCC p. 628, para 8) "8. ... In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service."
43. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case. We therefore set aside the finding of the High Court in the impugned judgment [Hindalco Industries Ltd. v. Bhuvnesh Kumar Dwivedi, Civil Misc. Writ Petition No. 8784 of 2002, decided on 10-3-2011 (All)] and hold that the appellant is entitled to reinstatement with full back wages from the date of the termination of his service till the date of his reinstatement and other consequential benefits which accrue to him by virtue of his employment with the respondent Company. The appeals are allowed, with no order as to costs."
174. The Hon'ble Supreme Court in the case of Pawan Kumar Agarwala Vs. General Manager-II SBI, reported at (2015) 15 SCC 184 granted full backwages as the order was passed on the foot of no evidence, by holding thus:
"For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance with the statutory rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned Single Judge [Pawan Kumar Agarwala v. Union of India, 2014 SCC OnLine Gau 35 : (2014) 3 Gau LR 343] and the Division Bench [SBI v. Pawan Kumar Agarwala, 2014 SCC OnLine Gau 230] of the High Court are liable to be set aside with regard to non-grant of full back wages."
175. The petitioner was prevented from discharging his duties as a Constable in the Provincial Armed Constabulary solely on account of arbitrary action on the part of the respondents and their abject failure to implement the law and the Constitution. The petitioner is entitled to full backwages.
176. The entitlement of the petitioner for backwages is also independently supported by an additional factor. There is a compensatory element in the grant of relief of backwages. There was a complete systemic failure. All organs of the Constitutional governance had failed to protect the rights of the petitioner and implement the law and violated the child rights regime. In these facts, grant of full backwages would redeem the cause of justice and uphold the rule of law. It will assure citizens that there will be a final reckoning of all actions, in the process of law.
177. In the wake of the narrative in the preceding part of the judgment, the order dated 23.08.2007 passed by the Commandant 15th Battalion, P.A.C., Etah, respondent no. 2 is arbitrary, illegal and cannot stand.
178. The order dated 23.08.2007 passed by the respondent no. 2, Commandant 15th Battalion, P.A.C., Etah is quashed.
179. A writ of mandamus is issued commanding the respondent authorities to execute the following directions:
I. The respondent authorities shall reinstate the petitioner in service forthwith, upon receipt of a certified copy of this order.
II. The petitioner is entitled to full backwages and all consequential benefits of service like seniority and other financial benefits from the date of his appointment i.e. on 26.08.2006 in the Provincial Armed Constabulary.
III. Backwages shall be paid to the petitioner accruing from the date of his termination till the date of his actual reinstatement within a period of one month from the date of receipt of a certified copy of this order.
180. The writ petition is allowed.
Order Date :- 11.03.2019 Dhananjai Sharma