Right to Privacy includes right to deny information on criminal prosecution faced as a child, Allahabad HC

Right to Privacy includes right to deny information on criminal prosecution faced as a child, Allahabad HC

Aditi Singh

The Allahabad High Court has recently held that the Right to Privacy would include a person’s right to deny information with respect to any criminal prosecution faced by him as a child under the Juvenile Justice Act.

Consequently, the Court further held that the existence of a past criminal prosecution faced by a person as a child is not a valid criterion to judge his suitability for employment.

Persons between 16-18 years of age who are prosecuted for heinous crimes may, however, be denied this protective cover, the Court has added.

The judgment was delivered by a Single Judge Bench of Justice Ajay Bhanot in a petition assailing an order of cancellation of the Petitioner’s appointment by the 2 Commandant 15th Battalion, PAC Etah.

The Petitioner’s appointment was cancelled on the ground that he had failed to disclose the fact that he had faced criminal prosecution as a child.

As recorded by the Court, the Petitioner was prosecuted under Sections 323, 504, 506 of the Indian Penal Code read with Section 3(1) (10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act before the trial court, as a minor child of 10 years of age.

He was however acquitted by the trial court.

Invoking his fundamental rights available under Articles 14, 16 and 21 of the Constitution of India as well as the rights under the Juvenile Justice Act, 1986, the Petitioner urged the Allahabad High Court to not look at the facts of the case at its face value as it would be a very superficial way to look at the controversy.

While acknowledging that the right of an employer, especially when the employer is the State, to know the criminal antecedents of its employees was unexceptional, the High Court stated that such right is “not unrestricted in case of children”.

The rights of the employer are limited by the Constitution, the propositions of Constitutional law and the statutory regime of child rights, it explained.

Referring to Right to Reputation and Right to Privacy of a Child under Article 21 of the Constitution, the Court observed that consideration of a past prosecution of a child in a criminal case for any purpose or in any discourse will create a perpetual disability for the child.

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 revive 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.”

It observed that the practice of making the past prosecution a criteria for forming an opinion of the child’s criminal antecedents “would provoke consequences which the child rights regime seeks to prevent”.

The consideration of 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.”

Any such practice would preclude the realization of the mandate of Article 39 of the Constitution of India, it added.

The Court further remarked,

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 slate, 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.”

The Court thus concluded that the criteria of considering the past crimes committed by an employee as a child would be an irrelevant consideration for appointment to a public post.

Any deviance from this would be wholly arbitrary and flagrantly violates Article 14 of the Constitution of India.

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, it said.

The court also referred to the Juvenile Justice Act, 1986 to state that details and records of the child who faced prosecution cannot be disclosed and that it protects the child from the consequences accruing from the conviction under the Act.

Coming to the facts of the case, the Court reiterated that an acquittal wipes a conviction out as if it never happened. Since the Petitioner in the present case was acquitted of the offences, the Court allowed his writ petition.

It thus directed 2, Commandant 15th Battalion, P.A.C. to reinstate the Petitioner in service. The Petitioner was also awarded full backwages and all other consequential benefits of service.

The Petitioner was represented by advocates Satyam Singh, Shiv Nath Singh and Vijay Gauta.

[Read the Allahabad High Court Judgement]

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