Punjab and Haryana HC: A juvenile in conflict with law has no fundamental right to higher studies abroad

Initially, the FIR was registered under Sections 279 and 304-A of the IPC. Later Sections 304-II of IPC and Section 199A of the Motor Vehicle Act were added. It was alleged that the petitioner had instigated the car driver to drive the vehicle at fast speed.

The petitioner and the driver, both being juveniles, were proceeded against under the provisions of the Juvenile Justice Act, 2015 and consequently an inquiry against them had commenced. The petitioner moved an application before the Juvenile Justice Board (JJB) in Gurugram seeking renewal of passport on the ground that he has been selected to pursue a course in US, commencing in September 2022, and that he has to apply for visa. This JJB allowed the application in April this year to the effect that the passport authority was at liberty to consider the renewal of the travel document for a period of five years in accordance with law.

The JJB, however, made it clear that the renewal of passport will not confer any right upon the petitioner and he shall seek requisite permission from the Board in case he intends to travel abroad. Thereafter, the petitioner moved an application for permission to travel abroad on the ground that he wishes to pursue a the course in the US. This application was dismissed by the Principal Judge, JJB on June 1. The petitioner filed an appeal against the order before the Sessions Judge, Gurugram. The appeal was dismissed on June 27.

Arguing before the HC, Senior Advocate RS Rai with Advocate Rubina, on behalf of the juvenile submitted that the petitioner was not the driver of the car, which had hit the motorcycle. It was further submitted the petitioner, being a juvenile, has a fundamental right under Article 21 of the Constitution to seek higher education abroad. “The pendency of inquiry under the JJ Act cannot deprive him of his fundamental right especially in view of the fact that he has already received an approval letter from the college in US,” the lawyers contended.

The Additional Advocate General, on behalf of Haryana government, contended that the petitioner as well as the driver of the car were under the influence of alcohol at the time of the accident. The Additional AG contended that the petitioner cannot be permitted to go abroad for a period of four years as it will hamper further inquiry by causing delay. Advocate Preetinder Singh Ahluwalia, who was appointed as the Amicus Curiae in the matter by HC, contended that the right to elementary or primary education is no doubt a fundamental right under Article 21-A of the Constitution but right to higher education abroad cannot be said to be a fundamental right.

After hearing the arguments Justice Puri said that two issues arise for consideration before the court:

i) Whether an undertrial or a juvenile who is a child in conflict with law has any fundamental or staturory right to higher education abroad or not?

ii) Whether the impugned orders passed by the learned JJB as well as the learned Additional Sessions Judge are in consonance with the scheme of the JJ Act especially Sections 90 and 91 of the Act?

Justice Puri held that Article 21-A confers a right to education and provides that “the State shall provide free and compulsory education to all children of the age of six to 14 years in such manner as the State may, by law, determine”. “It is crystal clear that right to higher education abroad is neither a fundamental right nor a statutory right. So far as right to travel abroad is concerned, undoubtedly, in view of judgments of Hon’ble Supreme Court, it is a valuable as well as basic human right apart from being an integral part of right to personal liberty. However, such a right is not an absolute right,” the court said.

Justice Puri held that, “an undertrial or a child in conflict with law does not have any fundamental right or statutory right to higher education abroad… However, right of the petitioner to travel abroad can be curtailed according to procedure established by law in a reasonable, just and fair manner”. The court, however, accepted a submission by the petitioner that certain observations made by the court of Additional Sessions Judge in its order were adversarial and accusatory. “A perusal…would show that the observations made are contrary to the fundamental principles prescribed under Section 3(viii) of the JJ Act. Therefore…the observations are hereby struck off from the record,” the court said.

Partly allowing the revision plea, Justice Puri said the orders passed by the JJB and Additional Sessions Judge are not in consonance with the JJ Act, especially Sections 90 and 91. Setting aside the orders, the court directed the JJB to pass a fresh order within a period of one month.