Punjab And Haryana High Court

The Punjab and Haryana High Court has ruled that a juvenile under trial or in conflict with the law has no fundamental or statutory right to pursue higher education abroad.

Judge Jasgurpreet Singh Puri The ruling also said that while the right to travel abroad is a “valuable and fundamental right,” apart from being an integral part of the right to personal liberty, it must be “reasonable, just and fair.” way” can be restricted within the framework of juvenile justice (care and protection of children) law, in particular §§ 90 and 91 of the decree.

The court ruled on a criminal revision of a youth involved in a traffic accident that killed a 49-year-old in October 2020, against the juvenile court’s refusal to allow him to travel abroad for training.

The youngster has been admitted to Columbia College in the United States for four years. His lawyer argued in court that the pendency of investigations under the JJ Law could not deprive the petitioner of his fundamental right to study abroad. A request has also been made for the youth to report to the JJB for the investigation if necessary.

After hearing the amicus curiae, the lawyer representing the petitioner and a prosecutor, the court formulated two questions of law for consideration:

1. Whether or not a person under trial or a juvenile who is a child in conflict with the law has a fundamental or statutory right to higher education abroad?

2. Whether the objected orders of the learned JJB and the learned Addl. Sessions judges are consistent with the scheme of the JJ Act, specifically Sections 90 and 91 of the Act?

Right to travel abroad for higher education

Referring to the decision of the Supreme Court in Unni Krishnan, JP v Andhra Pradesh StateJudge Puri noted that it was established that the country’s citizens have a fundamental right to education.

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“The right mentioned derives from Article 21, but this right is not an absolute right and its content and parameters must be determined in the light of Articles 45 and 41, and in other words every child/citizen of this country has a right then free education up to the age of 14. His right to education is subject to the limits of the state’s economic capacity and development,” she added.

As to the claim that the right to study abroad is also included in Article 21 of the Constitution, according to the Supreme Court ruling Maneka Gandhi In the case, Judge Puri noted that the Supreme Court in this matter dealt with “the issue of the right to travel abroad if the passport was confiscated without a just and fair process being followed”.

“However, the issue related to the right to seek higher education abroad was not the subject of the above case. The Children’s Right to Free and Compulsory Education Act 2009 was enacted following the Supreme Court ruling in the case of Unni Krishnan and came into force on 04/01/2010,” the court said.

However, the court went on to say that the Supreme Court in Farzana Batool The case has found that the right to higher professional education is not enshrined as a fundamental right in Part III of the Indian Constitution.

Furthermore, as regards the petitioner’s argument that the petitioner has a fundamental right to travel abroad, the court found that this could not be upheld as he was not applying for the permit for a short period but for a continuous period of four years.

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In answering the first question framed therein, the court said:

“In view of the above legal and factual situation, this court considers that the petitioner has no fundamental right or legal right to study abroad for study purposes. He can only be deprived of the right to travel abroad in accordance with a procedure established by law. It is incumbent upon the JJ Board to exercise its powers in a reasonable, just and fair manner, having regard to the scheme, purpose and spirit of the JJ Act, particularly Sections 90 and 91.”

Section 90, 91 of the JJ Act

The JJB had rejected the petitioner’s request, arguing that by law an investigation must be completed within four months from the date of first production, unless it is extended it is not possible to allow it to continue for any length of time to go abroad.

The Additional Sessions Judge, Gurgaon, had upheld the JJB’s decision on the grounds that there are already delays in handling the inquiry as the youth and the other child, the driver of the vehicle that struck the victim’s bicycle, have made repeated requests.

Amicus Curiae Preeetinder Singh Ahluwalia submitted to the court that the JJB’s and ASJ’s orders failed to take account of the provisions under which the presence of the child may be waived if it is not deemed essential for the purpose of the investigation. In his submissions, attorney Ahluwalia also referred to Section 3 of the JJ Act, which relates to the principles of the presumption of innocence and the best interests of the child.

Judge Puri said in the decision ASJ Gurgaon failed to consider the implications of Sections 90 and 91 of the Act relating to the presence of the child’s parent/guardian and the waiver of the child’s presence. The court found:

“Section 91(1) consists of two phases. First, if in the course of an inquiry the committee or board is satisfied that the presence of the child is not strictly necessary for the purpose of the investigation, then second, the board or board waives the presence of the child. The term “shall” was used in the second part of Section 91(1) and is therefore mandatory in nature, in other words if at any time the committee or board makes a record to its satisfaction that the presence of the child is not required, it occurs the second mandatory part in force”.

The court also accepted a submission that certain of the ASJ’s comments in its order were controversial and accusatory.

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“A review of the preceding paragraphs would show that the observations made therein are inconsistent with the fundamental principles prescribed in Section 3 (viii) of the JJ Act 12 and 14 by order of 27.06.2022 are hereby put on record,” it said.

relief

Judge Puri granted the revision request in part, saying the orders issued by JJB and ASJ were not consistent with the JJ Act, specifically Sections 90 and 91 of the Act. The court reversed the orders and ordered the JJB to issue a new order within a month.

Title: Rxxxxx Dxxxxx vs Haryana State

Petitioner’s attorney: Senior Advocate RS Rai with Advocate Rubina

Prosecutor: Ranvir Singh Arya, Additional Advocate General

Amicus Curiae: Preetinder Singh Ahluwalia

Click here to read the decision/judgment