Tamil Nadu Borstal Schools Act, 1925 – Limitations on Writ of Habeas Corpus

Goutham & Ors. V. The Government of Tamilnadu W.P. No.31209 of 2015- 29 August 2016.

The bench constituting of Hon’ble Justice A. Selvam, Justice M. Sathyanarayanan, Justice B. Rajendran, Justice R. Mala and Justice P.N Prakash in High Court of madras answered the following questions which arose under the Tamil Nadu Borstal Schools Act, 1925 and suggested while parting with the case to the State Government to repeal the Borstal Schools Act since it has outlived its purpose.

One Gowthaman was convicted and sentenced for imprisonment for life on 12.03.1999 by the Sessions Court and his appeals to the High Court and the Supreme Court were also dismissed. While so, Gowthaman gave a representation dated 08.10.2011 to the Director-General of Prisons, contending that as on the date of his conviction and sentence by the Sessions Court, he was 19 years and 9 months old and therefore, being an adolescent offender, he should have been sent to borstal school. The said representation was rejected by the Additional Director General of Prisons, challenging which W.P.No.31209 of 2015 was filed.

1.Whether a Court is empowered to act under Section 8 of the Tamil Nadu Borstal Schools Act only upon arriving at a finding of conviction?

2.Whether the term “imprisonment” in Section 8 of the Tamil Nadu Borstal Schools Act, would include “imprisonment for life”?

3. Whether the decision rendered by the Full Bench of this Court in K. Thangammal vs. State (2008) 1 MLJ (Crl.) 832 requires to be reconsidered in view of the decision of the Hon’ble Supreme Court in the case of Kamalanantha and others vs. State of Tamil Nadu reported in (2005) 5 SCC 194?

4.Whether the Tamil Nadu Borstal Schools Act, 1925 casts a duty upon the Court to examine whether an adolescent offender, who is convicted, would be entitled to the benefits of the Act?

5. Would the failure of the Court to examine this aspect at the time of conviction and sentence, give a vested right to the offender to claim the benefits retrospectively, even after crossing the age of 21 years, either before the Appellate Court or before HCP jurisdiction or under Section 10-A of the Act before the Government?

6.Whether under-trial prisoners will be entitled to the benefits of the Tamil Nadu Borstal Schools Act, 1925?

The bone of contention is the interpretation of the expression “sentence of imprisonment” occurring in Section 8 of the Borstal Schools Act qua the expression “imprisonment for life” in Section 53 of the Indian Penal Code and it is submitted that neither Shanmuganathan’s case nor Thangammal’s case requires reconsideration, because, an adolescent offender has a fundamental right under Articles 14, 20(1) and 21 of the Constitution of India, which cannot be impinged. According to them, the Full Bench, in Thangammal’s case, has relied upon a Constitution Bench judgment of the Supreme Court in Pratap Singh vs. the State of Jharkhand and another [(2005) 3 SCC 551], wherein, the international convention and object of the Juvenile Justice (Care and Protection of Children) Act, 2015 have been borne in mind while interpreting the word “imprisonment” in Section 8 of the Borstal Schools Act and hence, the interpretation cannot be faulted.

There cannot be a complaint of a violation of Article 14 of the Constitution of India, because, only when equals are treated differently, can one complain of discrimination. “A child in conflict with law” as defined by the Juvenile Justice Act, 2015 and an adolescent offender, who is 18 years of age and above, who suffer conviction before he reaches the age of 21 years are two different and distinct classes and they cannot be treated equally. For these reasons, we hold that the judgment of the Division Bench in Shanmuganathan’s case is overruled.

The Supreme Court in Nagoor Pichai vs. State noticed that since the Juvenile Justice Act is a special enactment, it will eclipse a certain portion of the Borstal Schools Act and to this extent, the Tamil Nadu Borstal Schools Act stands impliedly repealed by the Juvenile Justice Act.

From a conjoint reading of Sections 8 and 11 of the Borstal Schools Act, it is clear that after pronouncing the judgment of conviction and before passing sentence, the decision as to send or not to send an adolescent offender to borstal school should be passed and not thereafter.

The expression “vested right” has been lucidly explained by a Full Bench of this Court in G. Narayanaswamy Naidu and Others vs. the Inspector of Police, Mayavaram, The provisions of the Borstal Schools Act are a privilege and they do not confer any vested right on an adolescent offender. As pointed out by the Full Bench, supra, an adult cannot, remain dormant and after missing the bus, be heard to complain later that he has been denied the benefits under the Borstal Schools Act.

It was held that no Habeas Corpus Petitions can be maintained by a prisoner on the premise that he was not sent to borstal school by the convicting court, though he was an adolescent offender at the time of conviction. Similarly, a prisoner cannot make a petition to the Government under Section 10-A of the Borstal Schools Act, after he has crossed 21 years of age, for sending him to borstal school under Section 10-A of the Borstal Schools Act on the ground that he was an adolescent offender at the time of his conviction.

Following conclusions are drawn by the court:

The convicting court (be it original or appellate) is vested with jurisdiction to act under Section 8 of the Borstal Schools Act only upon convicting the accused and before passing its sentence. An order under Section 8 of the Borstal Schools Act can be passed by the Appellate / Revisional Court if the person has not crossed the age of 21 years on the date of the judgment/order, subject to conduct of inquiry under Sections 8(2) and 11 of the Borstal Schools Act.

The term “imprisonment” in Section 8 of the Borstal Schools Act does not include “imprisonment for life”.

The judgment of the Full Bench in Thangammal’s case does not lay down the correct law and accordingly, stands overruled.

Sections 8 and 11 of the Borstal Schools Act do not cast a duty upon the Court to examine whether an adolescent offender who is convicted would be entitled to the benefit of the Act and it is for the offender to avail of the privilege after his conviction and before the passing of sentence.

The convicted person does not have a vested right to claim the benefits of the Borstal Schools Act retrospectively after crossing the age of 21 years.

The under-trial prisoners will not be entitled to the benefits of the Borstal Schools Act.

Ex consequenti, the decision of the Division Bench of this Court in Shanmuganathan’s case extending the provisions of the Borstal Schools Act to remand prisoners is over-ruled and the consequent G.O. (D) No.922 declaring all the sub jails as borstal schools is hereby quashed. It is open to the Magistrates to remand the accused between the age group of 18 and 21 years to prisons and not to borstal schools.

View/Download Judgment: Gautham & ors. v. The Government of Tamilnadu

– Deeksha Nagaraj

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