# Shri Kishan Paswan v. Union of India & Ors

- **Citation:** (2020) 12 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-22
- **Case number:** Writ A. No. 5044 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kishan-paswan-v-union-of-india-ors-45483
- **Pages:** 17

## Headnote

A. Service Law -Cancellation of appointment
-Suppression of information-Juvenile Justice
(Care and Protection of Children) Act, 2000:
Section 19 - Cancellation of the appointment
of the petitioner on the foot of non disclosure
of criminal prosecution faced as a juvenile
vitiates the impugned order. The conviction by
a Juvenile Justice Board under the Juvenile Justice
Act, 2000 of a juvenile is not a disqualification for
employment. Non disclosure of irrelevant facts is not
"deliberate" or willful concealment of material facts.
Hence non-disclosure of such criminal cases cannot
invalidate the appointment of the said person. (Para
35, 36, 37)

B. Constitution of India: Article 14-
Juveniles and adults form separate classes
-Criminal prosecution of an adult is a lawful
basis for determination of suitability of a
candidate for appointment to public office.
However prosecution of juveniles is in a
separate class. 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 14, 35)

C. Constitution of India: Article 21 - 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
denudes the child of the protection assured by
the Juvenile Justice Act, 2000 (as amended from
time to time). Hence the employer cannot ask
any candidate to disclose details of criminal
prosecution faced as a juvenile. (Para 14, 35)

D. The candidate can hold his silence or
decline to give information about the
criminal prosecution faced as a juvenile.
Denial of such information by the candidate will
not amount to a false declaration or a willful
suppression of facts. (Para 14, 35)

In the present case it was clarified that these
holdings shall not apply to cases beyond the
ambit of Juvenile Justice Act, 2000 (as amended
from time to time) and also in cases of heinous
crimes committed by persons in the age group
of 16 to 18 years. (Para 35)

Writ Petitions allowed. (E-4)

Precedent followed:

## Text

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642 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)12ILR A642
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A. No. 5044 of 2020

Shri Kishan Paswan ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bholeshwar, Sri Jainendra Kumar Rai.

Counsel for the Respondents:
Sri Vivek Kumar, Sri Anand Kumar Roy.

A. Service Law -Cancellation of appointment
-Suppression of information-Juvenile Justice
(Care and Protection of Children) Act, 2000:
Section 19 - Cancellation of the appointment
of the petitioner on the foot of non disclosure
of criminal prosecution faced as a juvenile
vitiates the impugned order. The conviction by
a Juvenile Justice Board under the Juvenile Justice
Act, 2000 of a juvenile is not a disqualification for
employment. Non disclosure of irrelevant facts is not
"deliberate" or willful concealment of material facts.
Hence non-disclosure of such criminal cases cannot
invalidate the appointment of the said person. (Para
35, 36, 37)

B. Constitution of India: Article 14-
Juveniles and adults form separate classes
-Criminal prosecution of an adult is a lawful
basis for determination of suitability of a
candidate for appointment to public office.
However prosecution of juveniles is in a
separate class. 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 14, 35)

C. Constitution of India: Article 21 - 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
denudes the child of the protection assured by
the Juvenile Justice Act, 2000 (as amended from
time to time). Hence the employer cannot ask
any candidate to disclose details of criminal
prosecution faced as a juvenile. (Para 14, 35)

D. The candidate can hold his silence or
decline to give information about the
criminal prosecution faced as a juvenile.
Denial of such information by the candidate will
not amount to a false declaration or a willful
suppression of facts. (Para 14, 35)

In the present case it was clarified that these
holdings shall not apply to cases beyond the
ambit of Juvenile Justice Act, 2000 (as amended
from time to time) and also in cases of heinous
crimes committed by persons in the age group
of 16 to 18 years. (Para 35)

Writ Petitions allowed. (E-4)

Precedent followed:

1. Rajiv Kumar Vs St. of U.P. & anr., 2019 (4)
ADJ 316 (Para 2)

2. Sumpurnanand Vs St. of U.P., 2018 (11) ADJ
550 (Para 20)

3. K.S. Puutaswamy Vs U.O.I., (2017) 10 SCC 1 (Para 20)

4. Shivam Maurya Vs St. of U.P. & ors., 2020 (5)
ADJ 5 (Par 33)

5. Sahadeb Ghosh Vs The St. of W. B. & ors., (2012) 3
CALLT 697 (HC); 2012 (6) SLR 656 (Para 34)

Present petition assails the order dated
20.04.2020, passed by the I.G.- cum-
Principal Chief Security Commissioner/RPF
N.C. Railway, Prayagraj.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner has assailed the
order dated 20.04.2020 passed by the
respondent No.4-I.G.-cum- Principal Chief
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
643
Security
Commissioner
/
RPF
N.C.
Railway, Prayagraj. The impugned order
cancels the appointment of the petitioner on
the foot that he had suppressed information
about the criminal case pending against
him while filling up the Attestation Form.

2. Sri Bholeshwar, learned counsel for
the petitioner submits that the contents of
the affirmation made by the petitioner in
the Attestation Form and non disclosure of
the criminal case pending against him are
not disputed. He, however, contends that
the respondent No.4 misdirected himself in
law by overlooking the fact that the
petitioner was being 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. 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, Sri Anand Kumar Roy,
learned counsel for the Railways - respondents
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 Railway
Protection Force (RPF) and his candidature
was lawfully invalidated. The impugned order
is not liable to be interfered with.

4. Heard Sri Bholeshwar, learned counsel
for the petitioner and Sri Anand Kumar Roy,
learned counsel for the respondents.

5. The facts relevant for the
adjudication
of
the
controversy
are
established beyond the pale of any dispute.
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.

6.

The
petitioner
applied
for
appointment as Constable in the Railway
Protection Force (RPF) in response to the
Employment Notice No.01/2018. After his
empanelment the petitioner affirmed an
Attestation Form regarding his character
and antecedents. He did not disclose any
pending criminal case in the Attestation
Form. The Police Verification Report
(PVR) sent by the District Magistrate,
Gorakhpur,
U.P.
to
the
respondents
authorities revealed that a criminal case
bearing in NCR No.197/13 under Sections
323, 504 and 506 of the IPC, Police
Station-Jhangaha, District-Gorakhpur was
registered against the petitioner.

7. The competent authority found that
the petitioner had deliberately concealed
the criminal case pending against him to
secure a government job. On this foot by
order dated 03.01.2020 the candidature of
the petitioner was rejected.

8. Aggrieved by the cancellation of
his candidature, the petitioner instituted a
writ petition registered as Writ-A No.2511
of 2020 (Shri Kishan Paswan Vs. Union of
India and others) before this Court. The
writ petition was decided by the judgement
and order rendered by this Court on
14.02.2020. The operative portion of the
judgment is extracted hereunder:

"Accordingly, the instant petition is
disposed of with direction to respondent no.
2 to consider the claim of the petitioner in
644 INDIAN LAW REPORTS ALLAHABAD SERIES
the light of observations made above and
the law laid down by Supreme Court in
Avtar Singh (supra), within a period of ten
weeks from the date of receipt of a certified
copy of this order, along with fresh
representation and supporting documents.
The impugned order will abide by the
decision that shall be taken by respondent
no. 2 in compliance of the instant order."

9. In compliance of the judgement dated
14.02.2020 passed by this Court, the respondent
No.4-I.G.-cum-
Principal
Chief
Security
Commissioner / RPF N.C. Railway, Prayagraj.
revisited the controversy, but with the same
result. The impugned order dated 20.04.2020
records that the petitioner filled up the
Attestation Form on 19.09.2019 wherein he did
not disclose the criminal case pending against
him. The Police Verification Report (PVR) sent
by the District Magistrate, Gorakhpur is also
referenced. The impugned order finds that the
petitioner had deliberately suppressed the
information of his involvement in the said
criminal case. The petitioner violated the para03 containing the "warning", which clearly
cautioned :

"If, the fact that false information has
been furnished or that there has been
suppression of any factual information in
the Attestation Form comes to notice at any
time during the service of a person his
services would be liable to be terminated."

10. The order passed by the competent
authority dated 03.01.2020 is also noticed.
Finally the impugned order dated 20.04.2020
sets out the following consideration for
concluding that the petitioner is not fit for
government
service
and
rejecting
the
representation of the petitioner :

"After
careful
examination
and
perusal of the representation of the
petitioner as well as related documents
pertaining to the case, it is observed that
the subject police case was registered,
when the petitioner was juvenile. The
incident related to some dispute with a
neighbour on a petty issue and Hon'ble
Court had imposed a fine of Rs.500/- and
also mentioned in its order that it will have
no adverse effect on future pursuits. The
case appears to be of a trivial nature.
However, it is also observed that while the
petitioner was awarded punishment by
Hon'ble Court on 05.11.2019, he had filled
up Attestation form on 19.09.2019, when
the subject case was pending and thus has
clearly suppressed the information about
the criminal case pending against him,
while filling up the Attestation Form.

It is also to mention that Item 38.4.1.
of Supreme Court's guidelines relating to a
case of trivial nature will not be applicable
here, as conviction has not been recorded
before filling up of verification/Attestation
form and the petitioner was well aware of
above criminal case pending against him,
which he has clearly suppressed while
filling Attestation Form.

Hence, I have applied mind and on
evaluation of the facts on record, extant
rules, and having accorded the opportunity
of submission of representation to the
petitioner in compliance to Hon'ble Courts
order dated 13.02.2020 and keeping in
view the principles of natural justice and in
light of directions of the Hon'ble Supreme
Court's judgment Avtar Singh Vs. Union of
India and others, and in exercise of power
vested under Rule 52.2 and 67.2 of RPF
Rules, 1987, I hereby come to the
considered
conclusion
as
Appointing
Authority that the above petitioner is not fit
for
Government
Service
and
hence,
representation of the petitioner is rejected.
The
petitioner
may
be
informed
accordingly. "
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
645

11. The criminal proceeding against
the petitioner before the Juvenile Justice
Board merits consideration. A criminal
case registered against the petitioner as
NCR No.197/2013 under Sections 323, 504
and 506 of the IPC, went to trial as case
no.81/15 (State Vs. Kishan Paswan) before
the Juvenile Justice Board, Gorakhpur. The
learned Juvenile Justice Board, Gorakhpur
convicted the petitioner under Sections 323
and 504 of the IPC in its judgment rendered
on 05.11.2019.

12. The judgement of the learned
Juvenile Justice Board finds that the
petitioner
was
declared
a
juvenile
delinquent by order dated 01.10.2019. He
had confessed to the crime. In the wake of
admission of guilt, the learned trial court
convicted him under Sections 323 and 504
IPC.

13. The learned trial court holds that
the purpose of the Juvenile Justice Board is
not to punish but to adsorb the juvenile
delinquent in the social mainstream. A
penalty of Rs.500/- for each offence was
imposed upon the petitioner. Thereafter, the
learned trial court directed that the
judgment shall not render the petitioner
ineligible in any manner and in consonance
with the provisions of the Juvenile Justice
(Care and Protection of Children) Act,
holds that the conviction would not
adversely influence the future job prospects
of the petitioner.

14. From these facts the following
questions of law arise for consideration:

I. Whether the conviction of the
petitioner by the Juvenile Justice Board by
order dated 05.11.2019, can have any
bearing
on
the
candidature
of
the
petitioner?

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?

III. Whether the failure of the
petitioner to disclose the proceedings
instituted against him as a juvenile in the
Attestation Form, amounted to a deliberate
suppression
of
material
facts
which
warranted
the
cancellation
of
his
appointment?

15. Whether failure of a candidate to
disclose criminal prosecution faced as a
juvenile in the verification from/affidavit
affirmed at the time of recruitment
amounted to a false declaration was posed
for determination before this Court in
Rajiv Kumar Vs. State of U.P. and
another, reported at 2019(4) ADJ 316. The
sequitor as to whether the authorities could
lawfully enquire into criminal prosecution
faced by a candidate as a juvenile also
squarely came up for consideration in Rajiv
Kumar (supra).

16. 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 will be extracted to
take the narrative forward.

17. 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
646 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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."

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

20. 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., reported at 2018 (11) ADJ 550.
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 India, reported at
(2017) 10 SCC 1.

21. 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."

22. 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
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
647
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."

23. 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 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."

24. 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
648 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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:
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
649

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. (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)

25. 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).

26. 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
650 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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)

27. 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)

28. 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.
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
651

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.

(emphasis supplied)

97. Of course, persons between 16-18
years of age prosecuted for heinous crimes,
652 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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
12 All. Shri Kishan Paswan Vs. Union of India & Ors.
653
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."

29. The requirement posed by the
State employer to a candidate to disclose
the details of criminal prosecution faced as
a minor / juvenile was also tested on the
anvil of Article 14 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".

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.

112. The criteria of past criminal
prosecution for forming an opinion about
considering a criminal antecedents of a
candidate is a valid one.