In Criminal Revision No.1806 of 2022-PUNJ HC- Undertrial or juvenile, who is child in conflict with law, does not have any Fundamental Right or Statutory Right to higher education abroad: P&H HC
Justice Jasgurpreet Singh Puri [26-09-2022]

Read Order: Rxxxxx Dxxxxx v. State of Haryana

Monika Rahar

Chandigarh, September 28, 2022:  The High Court of Punjab and Haryana has held that an undertrial or a juvenile who is a child in conflict with the law does not have any Fundamental Right or Statutory Right to higher education abroad.

Further, the Bench of Justice Jasgurpreet Singh Puri held,  “However, right of the petitioner to travel abroad although is a valuable and basic human right apart from being an integral part of right to personal liberty can be curtailed according to procedure established by law in a reasonable, just and fair manner by considering the scheme, object and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2015 especially Sections 90 and 91.”

The present Revision Petition was filed for quashing the order of the Principal Magistrate, Juvenile Justice Board, Gurugram (JJB) declining the petitioner’s (child in conflict with the law (CCL)) application seeking permission to travel abroad for higher education. Also, under challenge was the order of the Additional Sessions Judge, Gurugram by which the appeal filed by the petitioner/CCL was dismissed. 

Essentially, the complainant’s friend died in an accident caused by the rash and negligent driving of a car by a juvenile driver at the instigation of the petitioner. Initially, an FIR was registered under Sections 279 and 304-A IPC. Later, Sections 304-II IPC and Section 199A of the Motor Vehicle Act were added and it was alleged that the petitioner instigated the car driver to drive the car at a fast speed. Thereafter, challan was presented under Sections 304-II read with Section 114 IPC.

The petitioner and the driver of the car being juveniles were proceeded under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The petitioner moved an application before the JJB seeking renewal of his passport on the ground that he was selected to pursue a four-year graduation course in Columbia College in Chicago, the US commencing from September 2022 and in order to apply for a visa, he needed his passport renewed. This application was allowed. It was however made clear that such renewal would not confer any right upon the petitioner and he shall seek requisite permission from the Board in case he intends to travel abroad or visit some foreign country. 

Thereafter, while undertaking to appear before the Court through his counsel or natural guardian, the petitioner sought permission to travel abroad for pursuing Higher Education. This application was dismissed by the Principal Judge, Juvenile Justice Board, Gurugram, and so was the appeal filed by the petitioner. 

After hearing the parties, the Court framed two issues, the first of which was whether an undertrial or a juvenile who is a child in conflict with the law has any Fundamental or Statutory right to higher education abroad. The second issue was whether the impugned orders of the JJB as well as the Addl. Sessions Judge were in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act.

With respect to the first issue, the Court opined that the Fundamental Right to education is available only for primary/elementary education in the light of Article 21-A of the Constitution of India which provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years. 

Further, the Bench opined that it is crystal clear that the right to higher education abroad is neither a Fundamental Right nor a Statutory right. 

“From the aforesaid, it is therefore clear that a right to free and compulsory education to all the children of the age of 6 to 14 years is a Fundamental Right guaranted under Article 21-A of the Constitution of India. However, the issue involved in the present case pertains as to whether an undertrial or a juvenile who is in conflict with law has any Fundamental or Statutory right to 'higher education abroad' or not. From the aforesaid discussion, it is crystal clear that the right to higher education abroad is neither a Fundamental Right nor a Statutory right”, the Bench held. 

As far as the right to travel abroad was concerned, it was held by the Court to be a valuable as well as basic human right apart from being an integral part of the right to personal liberty. However, the Court added that such a right is not an absolute right.

Therefore, to answer the first issue, the Bench held, “... the petitioner does not have any Fundamental Right or Statutory Right to study abroad for higher education. He can be deprived of the right to travel abroad only in accordance with procedure established by law. It is incumbent upon the JJ Board to exercise power in a reasonable, just and fair manner by considering the scheme, object and spirit of JJ Act especially Sections 90 and 91.”

Regarding the second issue, the Court opined that the Additional Sessions Judge did not consider the effect of Sections 90 and 91 of the Act. The Court added that when at any stage the Committee or a Board records its satisfaction that the attendance of the child is not essential then the second mandatory part comes into operation. 

“All the provisions of the JJ Act are to be construed in a harmonious manner… Therefore, this Court is of the view that in view of the aforesaid facts and circumstances, the aforesaid orders dated 01.06.2022 and 27.06.2022 are liable to be set aside”, the Bench held. 

In the conclusion, the Court held, “(i) It is held that an undertrial or a juvenile who is a child in conflict with law does not have any Fundamental Right or Statutory Right to higher education abroad”, and “(ii) However, right of the petitioner to travel abroad although is a valuable and basic human right apart from being an integral part of right to personal liberty can be curtailed according to procedure established by law in a reasonable, just and fair manner by considering the scheme, object and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2015 especially Sections 90 and 91.”

Thus, the present petition was partly allowed. Impugned orders were not held to be in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act. Therefore, the order of the JJ Board and that of the Additional Sessions Judge, Gurugram were set aside. The JJ Board, Gurugram was directed to pass a fresh order within a period of one month on receipt of a copy of this order and in accordance with the law.