# Anuj Kumar v. State of U.P. & Ors

- **Citation:** (2021) 5 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-30
- **Case number:** Writ -A No. 9594 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-v-state-of-u-p-ors-47052
- **Pages:** 19

## Headnote

A. Juvenile Jurisprudence - Constitution
of India - Articles 14 - Fundamental Right
- Right against arbitrariness - UP Public
Examinations
(Prevention
of
Unfair
Means) Act, 1998 - Sections 3 and 4 -
Public employment - Suitability - No plea
of juvenility before the trial court - Non
disclosure of criminal prosecution faced as
a juvenile - Effect - Held, using criminal
prosecution faced by a candidate as a
juvenile to form an opinion about his
suitability for appointment, is arbitrary
illegal and violative of Article 14 of the
Constitution of India. (Para 17 and 42)

B. Juvenile Jurisprudence - Constitution
of India - Articles 21 - Fundamental Right
- Right to Privacy - Right to reputation -
Non-disclosure of Criminal prosecution
faced as a Juvenile - Appointment denied
- Validity - The requirement to disclose
details of criminal prosecutions faced as a
juvenile is violative of the right to privacy
and the right to reputation of a child
guaranteed
under
Article
21
of
the
Constitution of India. It also denudes the
child of the protection assured by the
Juvenile Justice Act - Held, the employer
cannot ask any candidate to disclose
details of criminal prosecution faced as a
5 All. Anuj Kumar Vs. State of U.P. & Ors.
137
juvenile - Prosecution and imposition of
penalty upon the petitioner by the Lok
Adalat cannot be the basis of denial of
appointment to the petitioner. (Para 42
and 44)
C. Juvenile Jurisprudence - The Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Scope and Applicability -
Public employment - Consideration of
Child's criminal antecedents - Validity -
Rajiv Kumar's principle followed - 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. (Para 34)

Writ Petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,803 of 59,823. This is a partial read: ask again with offset=39803 for what follows._

136 INDIAN LAW REPORTS ALLAHABAD SERIES
of different categories based upon many
factors
like
physically
handicapped,
vertical or horizontal reservation etc, it is
necessarily required to submit all relevant
documents well within the cut off date
prescribed by the Commission/Selection
Body. In case of failure of the same, there
is no illegality in rejecting their candidature
or transferring them into general category.
In fact, if such major is not taken by the
Commission/Selection body, the process of
selection would be unending and also
deprive many other candidates, who are
otherwise eligible and also submitted all
certificates well within time prescribed by
the Commission, but below in merit than
the petitioner/candidate.

47. Further, in light of judgment of
State of Tamil Nadu (supra), High Court in
exercise of powers under Article 226 of the
Constitution of India cannot modify/relax
instructions issued by the Commission
provided it is in violation of natural justice
or any provision of Constitution of India.
Therefore, it is necessarily required to
complete
all
formalities
and
submit
certificates well within time prescribed by
the Commission/Selection Body. In present
case, there is no violation of natural justice
or any provision of Constitution of India
and
undisputedly,
petitioner
has
not
submitted
certificate
of
physically
handicapped within the prescribed time
fixed by the Commission.

48. Therefore, in light of facts
mentioned hereinabove as well as law laid
down by the Apex Court and this Court,
applicant is not entitled for any relief from
this Court, petition lacks merit and is
accordingly dismissed.

49. No order as to costs.
----------
(2021)05ILR A136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ -A No. 9594 of 2020

Anuj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Juvenile Jurisprudence - Constitution
of India - Articles 14 - Fundamental Right
- Right against arbitrariness - UP Public
Examinations
(Prevention
of
Unfair
Means) Act, 1998 - Sections 3 and 4 -
Public employment - Suitability - No plea
of juvenility before the trial court - Non
disclosure of criminal prosecution faced as
a juvenile - Effect - Held, using criminal
prosecution faced by a candidate as a
juvenile to form an opinion about his
suitability for appointment, is arbitrary
illegal and violative of Article 14 of the
Constitution of India. (Para 17 and 42)

B. Juvenile Jurisprudence - Constitution
of India - Articles 21 - Fundamental Right
- Right to Privacy - Right to reputation -
Non-disclosure of Criminal prosecution
faced as a Juvenile - Appointment denied
- Validity - The requirement to disclose
details of criminal prosecutions faced as a
juvenile is violative of the right to privacy
and the right to reputation of a child
guaranteed
under
Article
21
of
the
Constitution of India. It also denudes the
child of the protection assured by the
Juvenile Justice Act - Held, the employer
cannot ask any candidate to disclose
details of criminal prosecution faced as a
5 All. Anuj Kumar Vs. State of U.P. & Ors.
137
juvenile - Prosecution and imposition of
penalty upon the petitioner by the Lok
Adalat cannot be the basis of denial of
appointment to the petitioner. (Para 42
and 44)
C. Juvenile Jurisprudence - The Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Scope and Applicability -
Public employment - Consideration of
Child's criminal antecedents - Validity -
Rajiv Kumar's principle followed - 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. (Para 34)

Writ Petition allowed. (E-1)
Cases relied on :-
1. Rajiv Kumar Vs St. of U.P. & anr. ; 2019 (4)
ADJ 316,
2.Shivam Maurya Vs St. of U.P. & ors.; (2020) 5
ADJ 6
3. Kishan Paswan Vs U.O.I. & ors.; 2020 (11)
ADJ 254
4. Avtar Singh Vs U.O.I. & ors.; (2016) 8 SCC
471
5. Sumpurnanand Vs St. of U.P.; 2018 (11) ADJ
550
6. K.S. Puttaswamy Vs U.O.I.; (2017) 10 SCC 1
7. Sahadeb Ghosh Vs St. of W.B.; 2012 Lab IC
2469
(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner has assailed the order
dated 03.09.2020 passed by respondent no. 3-
Commandant,
43
Battalion,
Provincial
Armed Constabulary (PAC), Etah, whereby
the competent authority has found that the
petitioner is not suitable for appointment on
the post of Constable in the PAC.

2. Sri Arvind Kumar Singh, learned
counsel for the petitioner contends that the
respondent No.3 was misdirected in law by
overlooking the fact that the petitioner was
tried for an offence as a juvenile. The case of
the petitioner is covered by the law laid down
by this Court in Rajiv Kumar Vs. State of
U.P. and another, reported at 2019 (4) ADJ
316, Shivam Maurya Vs. State of U.P. and
Others reported at (2020) 5 ADJ 6 and in
Kishan Paswan Vs. Union of India and others
reported at 2020 (11) ADJ 254. The
impugned order is arbitrary, illegal and
violative of fundamental rights of the
petitioner guaranteed under Articles 14, 16
and 21 of the Constitution of India.

3. Per contra, learned Standing Counsel
submits that the pendency of a criminal case
and the suppression of the same in the
Attestation Form by the petitioner are
admitted. The offence against the petitioner
was not of a trivial nature, and moreover the
petitioner had been convicted by the learned
trial court. He is not suitable for appointment
in a disciplined force like the Provincial
Armed
Constabulary
(PAC)
and
his
candidature was lawfully invalidated. The
impugned order is not liable to be interfered
with.

4. Heard learned counsels for the parties.
138 INDIAN LAW REPORTS ALLAHABAD SERIES

5.

The
petitioner
applied
for
appointment on the post of Constable in the
Civil
Police
and
Provincial
Armed
Constabulary (PAC) in response to an
advertisement issued by the Uttar Pradesh
Police Recruitment and Promotion Board,
Lucknow, on 14.01.2018.

6. The petitioner was successful in the
written examination and also qualified the
physical standard test. The petitioner was
selected for appointment to the post of
Constable in the PAC and his name was
shown at serial no. 1350 of the select list
taken out by the respondent authority.

7. After the selection of the petitioner,
an enquiry was made by the Senior
Superintendent of Police, Etah, into the
criminal antecedents of the petitioner and
his suitability for appointment to the post of
Constable in the PAC. The aforesaid
enquiries revealed that the petitioner had
faced criminal prosecution consequent to
registration of Case Crime No. 104 of
2011, under Sections 3/4 of U.P. Public
Examinations
(Prevention
of
Unfair
Means) Act, 1998. On account of the
aforesaid criminal case faced by the
petitioner, the petitioner was refused
appointment as Constable in the PAC.

8. Aggrieved by the aforesaid denial
of appointment, the petitioner instituted a
writ petition before this Court, registered as
Writ A No. 4270 of 2020, Anuj Kumar Vs.
State of U.P. and Others. The writ petition
was decided by a judgment rendered on
15.06.2020. The operative portion of the
aforesaid judgment in Anuj Kumar (supra),
is extracted hereinunder:

"In view of the above, as no
useful purpose would be served in keeping
the matter pending, with the consent of
parties the matter is being decided at this
stage. It is directed that in case petitioner
approaches the respondent no. 3 through a
comprehensive representation alongwith
certified copy of this order within fifteen
days from today, the respondent no. 3 shall
consider
and
decide
the
same,
in
accordance with law, keeping in mind the
guidelines issued by Apex Court in case of
Avtar Singh (Supra), preferably within a
period of two months from the date of
receipt of representation of petitioner.

Writ petition stands disposed of."

9. In compliance of the direction
issued by this Court, the case of the
petitioner
for
appointment
was
reconsidered by the competent authority in
the impugned order dated 03.09.2020.

10. The facts relevant for the
adjudication
of
the
controversy
are
established beyond the pale of any dispute
in the impugned order. The facts being
undisputed, the controversy turns on pure
questions of law. No useful purpose will be
served by exchange of pleadings and
prolonging the litigation. The matter is
being decided finally with consent of
parties.

11. The undisputed facts necessary for
adjudication for this controversy can be
prised out from the impugned order dated
03.09.2020.

12. The impugned order dated
03.09.2020 after extracting the operative
portion of the judgment of this Court dated
15.06.2020 in Anuj Kumar (Supra), records
that
the
petitioner
has
submitted
a
representation
in
support
of
his
candidature. The impugned order thereafter
finds that the perusal of the records reveal
5 All. Anuj Kumar Vs. State of U.P. & Ors.
139
that
the
petitioner
had
successfully
qualified the written examination as well as
the physical standard test in the selection
proceedings for direct recruitment of PAC
Constable. An enquiry into the criminal
antecedents and character verification was
initiated by the local police at Etah.

13. The letter of the Senior
Superintendent of Police, Etah, dated
27.12.2019, is referenced in the impugned
order. The said letter discloses that Case
Crime No. 104 of 2011, under Sections 3/4
of U.P. Public Examinations (Prevention of
Unfair Means) Act, 1998, was registered
against the petitioner and a chargesheet was
submitted in the learned trial court on
09.04.2011. The matter was finally decided
by the Lok Adalat on 28.08.2011 upon
payment of penalty by the petitioner. The
report of the Senior Superintendent of
Police, Etah, contains a recital to the effect
that the offence is of a trivial nature and the
current reputation of the petitioner is good.

14.

The
contents
of
the
communication dated 27.12.2019 sent by
the Senior Superintendent of Police, Etah
are stated. Thereafter the opinion of the
District Magistrate, Etah, sought in regard
to the suitability of the petitioner for
appointment is discussed.

15. The District Magistrate Etah in
the letter dated 15.01.2020, opined that in
the aforesaid criminal case the petitioner
had confessed to his crime. Use of unfair
means is an offence which comes within
the ambit of "moral turpitude" as described
in the Government Order dated 28.04.1958.
The petitioner had already been punished
by the trial court by imposition of penalty.
On the foot of the aforesaid reasoning, the
District
Magistrate
opined
that
the
petitioner
is
not
suitable
for
appointment on the post of Constable in the
PAC. In view of the aforesaid opinion of
the District Magistrate Etah the petitioner
was not issued an appointment letter.

16. The impugned order then
proceeds to quote the opinion of the Joint
Director Prosecution, District Etah on
31.08.2020. The aforesaid opinion cites
various holdings in the case of Avtar Singh
v. Union of India and Others1, as set out
in paragraph nos. 38.4.1, 38.4.2, 38.4.3 and
38.8.

17. The opinion records that the
petitioner had not raised a plea of juvenility
before the learned trial court by asserting
that he was a juvenile at the time of the
institution of criminal case. Further the
petitioner has deposited the penalty of Rs.
250/- imposed by the learned trial court and
thus admitted to his guilt. The provision of
the Uttar Pradesh Public Examinations
(Prevention of Unfair Means) Act, 1998,
provides for two categories of punishments
namely
imposition
of
penalty
and
imprisonment.

18. On the foot of the aforesaid
reasoning, it is opined that the petitioner
was found guilty by the learned trial court.
After setting out the aforesaid material in
the
impugned
order,
the
competent
authority agrees with the same. The
competent authority finally holds the
petitioner unsuitable for appointment on the
post of Constable in PAC on account of the
penalty of Rs. 250/-, imposed by the
learned trial court as a punishment.

19. The date of birth of the petitioner
is 13.07.1995. The offence for which the
petitioner was prosecuted occurred on
140 INDIAN LAW REPORTS ALLAHABAD SERIES
25.03.2011. On the date of the offence for
which the petitioner was prosecuted, he
was 15 years 8 months 12 days old. The
petitioner was juvenile within the meaning
of the Juvenile Justice (Care and Protection
of Children) Act, 2015.

20. These undisputed facts raise the
following
questions
of
law
for
consideration:

I. Whether the petitioner can be
denied appointment on the footing of the
prosecution and the conviction of the
petitioner by the Lok Adalat by order dated
05.11.2019, in Case Crime No. 104/2011,
under
Sections
3/4
of
U.P.
Public
Examinations
(Prevention
of
Unfair
Means) Act, 1998.

II.
Whether
the
respondents
authorities erred in law by requiring the
petitioner to disclose details of criminal
prosecution faced by him as a juvenile in
the Attestation Form?

21. The said questions were also
posed for determination before this Court
in Rajiv Kumar Vs. State of U.P. and
another2.

22. I find that the Rajiv Kumar
(supra) is squarely applicable to the facts of
this case. The judgment of Rajiv Kumar
(supra) is of some length. However, some
parts of the judgment can be usefully
extracted.

23. The judgment of this Court in
Rajiv Kumar (supra) found that the
aforesaid
questions
which
arose
for
consideration,
involved
an
interface
between various branches of law:

"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."

24. The creation of children as a
separate class in the Constitution was
looked at in light of relevant constitutional
provisions :

"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."

25. Articles 15 (3), 21(a), 45, 47,
39(e) and 39(f) of the Constitution of India
were specifically invoked.

26. Rajiv Kumar (supra) entrenched
the right to reputation of a child as a
fundamental right flowing from Article
21 of the Constitution of India relying on
the law laid down by this Court in
Sumpurnanand Vs. State of U.P.3.
Similarly,
the
fundamental
right
to
privacy of the child was also engaged by
applying the holding of the Hon'ble
Supreme Court in K.S. Puttaswamy v.
Union of India4 .
5 All. Anuj Kumar Vs. State of U.P. & Ors.
141

27. Various international instruments
in regard to children in conflict with law
were considered:

"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. In fact,
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."

28. The Juvenile Justice (Care and
Protection of Children) Acts (enacted
from time to time) were examined in the
context
of
various
international
instruments on child rights:

"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."

29. A survey of various provisions of
the Juvenile Justice (Care and Protection of
Children) Act, 2015 was made thus:

"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 2.33 "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
142 INDIAN LAW REPORTS ALLAHABAD SERIES
maximum punishment under the Indian
Penal Code or any other law for the time
being in force is imprisonment up to three
years;"

Section 15 of the Act which
contemplates a preliminary assessment into
heinous offences by the court and the
distinction created between heinous and non
heinous offences under the scheme of the Act
was part of the discussion.

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
likeSections 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."

30. Other aspects of the Juvenile Justice
(Care and Protection of Children) Act, 2015,
supported the discussion in the following
manner:

"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.

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
5 All. Anuj Kumar Vs. State of U.P. & Ors.
143
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
144 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (emphasis supplied)

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)

31. It needs to be mentioned that the
Juvenile Justice (Care and Protection of
Children) Acts were amended from time to
time. However, fundamental principles of
child
rights
jurisprudence
and
constitutional rights of a child which have
remained constant also guided the decision
in Rajiv Kumar (supra).

32. The consideration of the scheme
of the enactments is concluded in the
following paragraphs:

"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
5 All. Anuj Kumar Vs. State of U.P. & Ors.
145
capacity for change in juvenile delinquents
holds the promise of a new sunrise.

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. (emphasis supplied)

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."
(emphasis supplied)

33. The scope of the rights of the
State as an employer to ascertain the
criminal antecedents of its perspective
employees were then adverted to:

"Rights of an employer:

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.

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.

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." (emphasis supplied)
146 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The interface of the rights of the
State as an employer and a child's
fundamental rights was made in the
following enquiry:

"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
5 All. Anuj Kumar Vs. State of U.P. & Ors.
147
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.
 (emphasis supplied)

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
148 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (emphasis supplied)

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. (emphasis supplied)

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. (emphasis supplied)

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."

35.