Can juvenile conviction block your passport? Allahabad High Court invokes ‘Right to be Forgotten’ in key ruling

“The respondents are further bound to give full effect to the principle of ‘fresh start’ embodied in the juvenile statute, so that past juvenile delinquency does not impair the future prospects and rehabilitation/reintegration of the petitioner,” the Allahabad High Court said on May 7.

The bench said that the authorities are bound to give full effect to the principle of ‘fresh start’ embodied in the juvenile statute.

Highlighting that the ‘right to be forgotten’ for juvenile by removing/destroying record of juvenile delinquency is an absolute right giving them ‘fresh start’, the court countinued that to give it full meaning, the respondent-regional passport officer is mandated to process the application of petitioner for issuance of passport afresh notwithstanding his conviction so recorded by the Juvenile Justice Board, Gorakhpur and issue him the requisite passport if there is no other legal impediment/hurdle.

The bench noted that the authorities failed to identify any currently pending criminal proceedings, which is the only valid ground for refusal under Section 6(2)(f) of the Passports Act, 1967.

A passport application and aftermath

The petitioner applied for a passport on 29 January 2020. Since no decision was taken on the application, the petitioner filed a writ petition before the High Court. On 31 August 2020, the Court directed the passport authority to consider the application and communicate its decision promptly.

When the authority still did not take any decision, the petitioner filed a contempt petition in 2021 alleging non-compliance with the Court’s order. During the pendency of the contempt proceedings, the passport authority passed an order on 19 March 2021 refusing to issue the passport. The petitioner has now challenged this refusal order before the High Court.

The authorities cited an adverse police report and a 2013 conviction by the Juvenile Justice Board, Gorakhpur, for offences under Sections 363 (punishment for kidnapping), 366 (kidnapping, abducting or inducing a woman to compel her marriage, etc) and 376 (punishment for rape) of the Indian Penal Code (IPC).

At the time of the alleged offences in 2010, the petitioner was approximately 16 years and 10 months old. After his conviction, he was placed on six months’ probation, with the condition that he would offer surety and bonds for maintaining good conduct and behaviour. In 2014, he was issued a character certificate mentioning that the petitioner had maintained good conduct and behaviour during the period of probation. Despite this, the passport authority maintained that his status was a “previous conflict” that disqualified him from obtaining a passport.

Appearing for the petitioner, advocate Shailendra Singh submitted that the order refusing a passport was a cryptic one and had been passed for sheer annoyance of contempt proceedings initiated against the authority concerned, by twisting the facts, giving an impression that the proceeding is pending against the petitioner.

He further submitted that there was absolutely no pendency of any criminal case, as such respondent authority had erred in refusing the passport to the petitioner through a cryptic order without assigning any cogent reason.

The Allahabad High Court highlighted that the core issue for consideration and determination in this matter is “whether a conviction recorded against the petitioner (the then Juvenile), having been found in conflict with law and tried by the Juvenile Justice Board, can be treated as a legal impediment for issuance of a valid passport in favour of the petitioner”.

Court’s analysis on juvenile stigma

The Allahabad High Court emphasised that Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000, specifically provides for the removal of disqualification attaching to a conviction.

“The law mandates not to attach any stigma to juvenile convicts, and the principle of a fresh start, read with the right to be forgotten, is essential for such a subject which emerges from plain reading of Section 19 of the Act 2000,” the court observed.

Highlighting that the law with respect to juveniles has undergone a sea change, the court said, but still, juveniles continue to enjoy the protection against stigma on account of conviction, if so recorded.

The court referred to the Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and noted that it came into force on January 15, 2016, and by virtue of Section 25 of the Act, it has been provided as, “Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”

‘Statute for juvenile framed with object to minimise stigma’

• Liberty, being an obligation of the State enshrined under Chapter III of the Constitution of India, confers a right in favour of a citizen to travel, which includes travel abroad for livelihood, subject to law, and such obligation is also a necessary concomitant to Article 21 read with Article 43 of the Constitution of India.
• There is no iota of doubt that the State may regulate or restrain such freedom in the interest of justice, security or public order, but any such restraint must necessarily be confined and proportionate to the object sought to be achieved.
• The thrust of the legislation, i.e. Act 2000 as well as the Act 2015, is that even if a juvenile is convicted, the same should not be obliterated, so that there is no stigma with regard to any crime committed by such a person as a juvenile.
• This is with the clear objective to reintegrate such juveniles into society as normal persons without any stigma.
• The Statute with respect to juvenile has been framed with an object to minimise the stigma in keeping with the developmental needs of the juvenile or the child.
• Statutory law is two parts is two parts-one for juveniles in conflict with the law, and the other for the juvenile or the child in need of care and protection.
• To provide for effective provisions and various alternatives for rehabilitation and social reintegration, such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and children, is a welfare legislation.
• The provisions of the Act are required to be read and interpreted in the spirit in which the collective wisdom of the legislature has enacted it.

Purpose of right to be forgotten

•  Specifically considering the ‘right to be forgotten’ for a juvenile from the perspective of Section 24 of the Act of 2015 to be an absolute right for safeguarding future prospects of such a juvenile.
• When the present-day developing societies are dynamic and self-explanatory in their complexities, followed by never-ending changes, the juvenile is no exception to it, rather then are much more vulnerable, because the negativity of his (juvenile’s) past life.
• Despite the enactment of a much stronger law like the Act of 2015, the legislative intent of which is to remove his criminal antecedents from the record, rather than destroying the complete record, if allowed to sustain and remain intact, the same would be revisited for oblivious reasons, against the welfare and future well-being of the juvenile, thereby bringing future embarrassments to the juvenile.
• This court is conscious of the “right to be forgotten, which has been referred to and dealt with in an order dated April 12, 2021, passed by the Supreme Court in the case of Jorawar Singh Mundy v Union of India and Others.

• It was observed that in the cases of juvenile delinquency, if any criminal antecedent record of a juvenile is allowed to remain intact, to be accessed, amongst others, by using the technology tools, the same may not only bring humiliation and discredit to the juvenile, but may also adversely impact the future prospects of the juvenile, amongst other things.
• Such a disclosure would not only affect the ‘right to be forgotten’ of a juvenile, but would also defeat the very purpose and would be against the very intent of the legislature in enacting the Act of 2015, and incorporating Section 24.
• When future employment prospects of a juvenile are intended to be protected, even such actions would adversely affect the rehabilitation of the juvenile, and his socio-economic stability would also be adversely impacted, which may lead the juvenile to again resort to criminal delinquency.