Records of convictions of children in conflict with law should be expunged according to Juvenile Justice Act, but former juveniles have been forced to approach courts to be appointed in government jobs  

Bikaner, Rajasthan: Ramesh Bishnoi (33) of Gajjewala village near the Indo-Pak border in Bikaner district of Rajasthan passed the written examination and fitness test conducted by the Staff Selection Commission in 2016. He was all set to become a sub-inspector of the Central Industrial Security Force (CISF), but was denied an appointment letter citing that a criminal case was registered against him for molesting a minor girl in his adolescence.

Bishnoi approached the Rajasthan High Court (HC), which ruled in favour of his appointment. Though the government appealed in the Supreme Court (SC), it also ruled in Bishnoi's favour on November 29, 2019. 

Ramesh Bishnoi , village Gajjewala in Bikaner (Photo - Amarpal Singh Verma, 101Reporters)

In 2009, an FIR was registered against Bishnoi for molesting a girl aged 17, but he was acquitted in 2011 after the girl and her parents forgave him. The Supreme Court in its judgment said that the allegations against him were never proved as the girl and her parents did not testify against him, resulting in his acquittal. “Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile,” the SC noted.

According to the Juvenile Justice (Care and Protection of Children) Act , 2000, and the Juvenile Justice (Care and Protection of Children) Act, 2015, even if a juvenile is found guilty, his records should be expunged so that there is no stigma on that person when he grows up. The clear objective is to reintegrate juveniles into the society as normal persons.

Advocate KK Shah, who represented Bishnoi in the Jodhpur HC, tells 101Reporters that Bishnoi was lucky to be appointed after the SC order, but others have not been so fortunate. “Many people have been denied jobs on the basis of a record of crime committed in childhood and are forced to fight court battles."

Advocate Shah says that both Rajasthan HC and SC have confirmed in several cases that government jobs and other benefits cannot be denied on the basis of juvenile records. "However, not only such records are maintained in Rajasthan, but they are also used from time to time to deny government jobs," he notes. 

Rajasthan High Court (Photo - Amarpal Singh Verma, 101Reporters)

Children in conflict

An example of this is Bikaner resident Bhawani Shankar Murh (28). Murh was selected to the post of constable in the Rajasthan Armed Constabulary of Rajasthan Police in 2018, but he was not appointed on the ground of a Juvenile Justice Board conviction in crimes punishable under Sections 302 and 201 of the Indian Penal Code.

Murh challenged this and HC ruled in his favour. The government appealed to the double bench, but while dismissing it on February 13 last year, the HC said, “A perusal of the language of Section 24 of the Act of 2015 and the corresponding provision in the Act of 2000, i.e. Section 19, would make it clear that the record of conviction of the child in conflict cannot be preserved and has to be destroyed. As a direct consequence, any disqualification entailing from the conviction would have to be ignored and cannot act to the detriment of the child in conflict with law in any manner, which would include a selection process for public employment.”

Murh, who hails from a very poor family, may have won the HC battle, but the government has appealed against the decision in the SC. "My labourer father used to support five of us siblings and my mother. I studied by working as a labourer in my childhood. I was just 13 when a false case of murder was registered against me. Actually, a child from the village had disappeared and his body was found in a well after 15 days. A murder charge was registered against me saying that the child was last seen with me," Murh, who works as a watchman in a colony in Barmer, tells 101Reporters.

"The Juvenile Justice Board sentenced me to community service for one hour every day for five years at Bikaner's PBM Hospital. However, the hospital manager refused to let me do community service saying they do not know the provisions for it."

Murh's appeal against the community service sentence is pending in the HC. While Murh has full faith in the judiciary, which is keeping him alive, he adds, “My mother had to sell her jewellery to pay the lawyer's fee in the SC.”

He knows that legal battle is very difficult and expensive, but he is not aware of the legal aid facility. “No one told me about this,” he reasons.

Bishnoi says his case went on for about four years and he spent about Rs 3 lakh for it. “Considering my financial condition, my lawyer in the SC took only a very small fee. So, for me, the expenditure in SC was lesser than in HC."

Bishnoi resigned from CISF after working for two years and is now a teacher in Navodaya Vidyalaya, Gujarat. “I was very disappointed with the way attempts were being made to deprive me of the job. So, I decided to fight the legal battle strongly… Now I can say that if injustice is done to someone, the only support for him is the judiciary,” Bishnoi asserts.

Similarly, Sunil Kumar (21) was selected as Rajasthan Police Constable, but was not appointed on the basis of conviction under JJ Act. Sunil also sought refuge in the HC, which ruled in his favour on January 25 last year.

The story of Azhar Mehar (26) of Kaparda village in Jodhpur district is no different. He got Army (general duty) selection in 2019, but was not appointed on the basis of a record related to a childhood fight. Mehar, who works at a handicraft factory in Jodhpur and belongs to a poor family, has knocked at the HC door in this matter. Advocate Shah is representing him the HC.

Mehar says his family would have been better off if he had the job. Right now, his driver father supports the family somehow. 

Law versus practice

Advocate Rajak Khan Haider associated with Utthaan Vidhik Sahaayata evam Seva Sansthan, a non-profit organisation dedicated to legal awareness in Jodhpur, says that the government interprets not only the JJ Act but also every other Act in its own way. This is why people are forced to loiter in courts.

Delhi HC child rights advocate Anant Kumar Asthana has been advocating for children's rights for the last 20 years. He tells 101Reporters that criminal records of children exist because they are not destroyed. “No arrangement has been made to destroy them. Records of children and adults are maintained in a single register in every police station. This report is sent whenever an inquiry about a person's character and conduct is needed. The police station register does not differentiate whether the accused is a minor or an adult. Policemen do not do this intentionally, but they also have very little knowledge of the law,” Asthana elaborates.

On the JJ Act Section 24, Asthana adds, “If the JJ Board starts writing in its order that the criminal record of the child will be expunged from the police station, then the problem can be solved automatically. In most cases, this is not written in the order. And even if JJ Board writes something like this in its order, it is not followed." 

“We are able to see a few such examples where the court has given its verdict in favour of the people who have been deprived of jobs. But who knows the exact number of such people who have not approached the court due to financial constraints or lack of awareness?” Advocate Shah said.

In response to what should be the solution, Advocate Shah says that the governments are working according to the old policy. “Under the old policy, the government opposes giving government jobs to every person against whom a case is registered or who has been convicted. This is considered a criminal record of the person concerned. Rajasthan government should make a new policy in view of the JJ Act.”

Haider says that once the court decides regarding an Act, the government should follow it in all future cases. "Today, in a particular case, a person is given relief on the orders of the court. If another case of the same nature comes up tomorrow, the government goes to court again."

“The government’s attitude is to always escape through the backstreet. Many decisions have come from the HC and SC, but the government always looks for a way to deny jobs. As long as this attitude continues, juveniles will be entangled in court battles when they grow up," says Murh's lawyer Praveen Vyas.

This story was originally published as a part of Crime and Punishment project in collaboration with Vidhi Centre for Legal Policy.

Cover Photo - Representative image/ AI-generated using Canva