HC: ‘Right to be forgotten’ absolute for a person who faced criminal case as minor

Prayagraj: The Allahabad high court has observed that a conviction recorded against a person while he was a juvenile cannot be treated as a legal impediment to the issuance of a passport under Section 19 of the Juvenile Justice Act, 2000.

A division bench of Justice Ajit Kumar and Justice Indrajeet Shukla emphasised that the “right to be forgotten” for juveniles — through removal or destruction of records of delinquency — is an absolute right that enables them to make a fresh start in life.

With these observations, the high court quashed a March 2021 order passed by the regional passport officer, Lucknow, who denied the petitioner - Mohd Yunus Ansari -- a passport on the grounds of an adverse police report citing a pending criminal case.

The petitioner applied for a passport on Jan 29, 2020. The application was rejected on March 19, 2021, by the passport authorities on the grounds that the petitioner had failed to respond to a notice regarding the outcome of criminal cases pending against him.

The authorities noted that the petitioner had faced a criminal trial and was convicted in a rape and kidnapping case in 2010, when he was merely 16 years and 10 months old.

The petitioner challenged the order in high court in 2021.

The court was apprised that he was tried as a juvenile by the Juvenile Justice Board, Gorakhpur and convicted in Aug 2013. However, the board placed him on a six-month probation on the condition that he will maintain good conduct.

It was further submitted that the petitioner had completed this probation without any adverse reports and was issued a character certificate by the district probation officer on March 20, 2014. His counsel argued that the conviction by the JJB could not have formed the foundation for the refusal of a passport, as the conviction recorded against a juvenile cannot be read as a stigmatising one against the petitioner.

It was also contended that the refusal order was not only a cryptic but also factually incorrect, as it referred to a pending criminal case, when in reality, no such proceedings were pending.

However, govt counsel said the petitioner was a previous convict and as such the application was rightly turned down.

The court observed that the rejection appeared to be the result of “sheer annoyance” at the contempt proceedings the petitioner had previously initiated against the authorities for their delayed response.

The court added that recording the pendency of a criminal case, when none existed, showed a completely non-serious attitude on the part of the authorities and was a “monument of non-application of mind”.

In its 18-page order, the court analysed section 19 of the 2000 Act, noting that this provision explicitly stated that a juvenile dealt with under the act shall not suffer any disqualification attaching to a conviction. Therefore, the court observed, even if a juvenile is convicted, the conviction cannot act to their detriment in any manner.

“The thrust of the legislation is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to re-integrate such juveniles into society without any stigma,” the court observed.

The court also referred to the principle of “right to be forgotten” for juveniles, as it noted that if any criminal antecedent record of a juvenile is allowed to remain intact, the same may not only bring humiliation and discredit to the juvenile, but may also adversely impact their future prospects.

The HC strongly underscored that the right to travel abroad is an intrinsic part of personal liberty guaranteed under Article 21 of the Constitution of India.

“Any restriction on the petitioner’s right to hold a passport or travel abroad must satisfy the mandate of Article 21 of the Constitution of India, namely, fairness, reasonableness and proportionality. Denying a passport based on an erased juvenile record fails this constitutional threshold,” the court stressed in its judgment dated May 7.