CHANAKYA NATIONAL LAW

UNIVERSITY

IPC PROJECT ON:

INFANCY

ANVESH MALHOTRA

ROLL:7531

2011-16

3rd Semester

CHANAKYA NATIONAL LAW UNIVERSITY 1|Page

 ACKNOWLEDGEMENT

I would like to take this opportunity to thank Father Peter for his invaluable
support, guidance and advice. I would also like to thank my friends who have
always been there to support me and last but not the least I would also like to thank
the library staff for working long hours to facilitate us with required material going
a long way in quenching our thirst for education.

CHANAKYA NATIONAL LAW UNIVERSITY 2|Page

 RESEARCH METHODOLOGY
Aims and Objectives:

The aim of the project is to present a detailed study of “INFANCY UNDER SECTIONS
82 & 83 of IPC” through decisions, statutes, amendments, suggestions and different
writings and articles.

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of
certain restrictions and limitations I was not able to deal with the topic in great detail.
Sources of Data:

The following secondary sources of data have been used in the project-

1. Articles
2. Books
3. Websites

Method of Writing:

The method of writing followed in the course of this research paper is primarily
analytical.

Mode of Citation:

The researcher has followed a uniform mode of citation throughout the course of
this research paper.

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 CONTENTS
1. ACKNOWLDEGEMENT……………………………………………………..2
2. RESEARCH METHODOLOGY……………………………………………..3
3. INTRODUCTION……………………………………………………………...5
4. INFANCY UNDER IPC……………………………………………………….7
a. Biosocial
b. Cognitive
c. Physiological
5. JUVENILE JUSTICE ACT: AN OVERVIEW………………………………10
a. The Issue Of Age Determination
6. JUVENILE JUSTICE ACT, 2000…………………………………………… 13
7. DEFENSE OF INFANCY IN OTHER COUNTRIES……………………… 15
8. JUVENILE JUSTICE ACT: AN ONGOING DEBATE…………………… 16
9. PROPOSAL FOR AMMENDMENT IN JUVENILE JSUTICE ACT…… 19
10. CONCLUSION……………………………………………………………… 20
11. BIBLIOGRAPHY…………………………………………………………… 21

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 INTRODUCTION
The general Principal On which infancy is based on is that a Child Can commit no wrong.
To elaborate this principal we can say that “a child’s mind is not mature enough to Form a
mensrea”.

Criminal Liability is what unlocks the logical structure of the Criminal Law. Each element of a
crime that the prosecutor needs to prove (beyond a reasonable doubt) is a principle of criminal
liability. There are some crimes that only involve a subset of all the principles of liability, and
these are called "crimes of criminal conduct". Burglary, for example, is such a crime because all
you need to prove beyond a reasonable doubt is an actusreus concurring with a mensrea. On the
other hand, there are crimes that involve all the principles of liability, and these are called "true
crimes". Homicide, for example, is such a crime because you need to prove actusreus, mensrea,
concurrence, causation, and harm. The requirement that the prosecutor must prove each element
of criminal liability beyond a reasonable doubt is called the "corpus delicti rule".

There are five principles of liability in Criminal Law:

Principle of Actus Reus

Principle of Mens Rea

Principle of Concurrence

Principle of Causation

Principle of Resulting Harm

A child can commit no wrong (i) if he is below 7 years of age as he is at such age presumed to be
not endowed with a sufficient maturity of understanding to be able to distinguish right from
wrong, or (ii) if he is above 7 and below 12 but too weak in intellect to judge what is right or
wrong.

Section 82 says nothing is an offence which is done by a child under seven years of age and
Section 83 says nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to judge of the nature
and consequences of his conduct on that occasion.

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LAW OF EXEMPTION FROM CRIMINAL LIABILITY IN THE CASE OF MINORS

These two sections lay down a rule which owing to its origin in the civil law, had long since
become established in the criminal systems of all civilized countries. In English Common Law, a
child below seven years of age cannot be guilty of any criminal offence whatever may be
evidence as to its possessing a guilty state of mind in the ordinary course of nature.

A person of such age is absolutely incapable of distinguishing between right and wrong. He is
absolutely doli incapax. Indian law on this point is the same. If a child is accused of an offence
under the Code, proof of the fact that he was at the time below 7 years of age is ipso facto an
answer to the prosecution.

The circumstances of a case may disclose such a degree of malice as to justify the maxim miltia
supplet actatem (Malice supplied defect of years).

The privilege of a child aged between 10 to 14, is absolute under English law, while it is
qualified in India. According to the English law an infant between the age of ten and fourteen
years is presumed to be doli incapax.

But under this Code, if the accused is above seven years of age and under twelve, the incapacity
to commit an offence only arises when the child has not attained sufficient maturity of
understanding to judge the nature and consequences of his conduct and such non-attainment
would have apparently, to be specially pleaded and pursued, like the incapacity of a person who
at the time of doing an act charged as an offence, was alleged to have been of unsound mind
whether really the child in question possesses sufficient maturity of understanding is a matter to
be inferred by the Court from the facts and circumstances of the case.

In England it is a presumption of law regarding the sexual offences that a boy below fourteen
years cannot be guilty of rape. In India, however, the presumption of English law has no
application and therefore boy of twelve years may be convicted of attempt to commit rape.

A minor girl aged more than 12 years can be guilty of an offence so long as her case is not
covered by Sections 82 and 83 of the Code. Any offence punishable under the Code including an
offence punishable under Section 408 can be committed by a person more than 12 years of age.
Criminal liability is quite distinct from civil liability. A person may be criminally liable even
though he may not be civilly liable.

While Infancy Under the IPC Gives Immunity from Criminal Liability to a child below 12 years
old, Acts such as Juvenile Justice Act Also Exist to For the Age group of 12-18 Years Old. It
will also be discussed in the later chapters.

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 INFANCY UNDER IPC
The Indian Penal Code (IPC) also has a list of offences against children. According to the
sections 82 and 83 of the IPC a child who commits a crime and is below the age of seven is not
considered to have committed a crime. A child who is between the ages of seven and twelve and
is deemed to have immature understanding about the consequences of his/her actions is also
considered incapable of committing a crime.

Section 82 in The Indian Penal Code, 1860

Act of a child under seven years of age.-- Nothing is an offence which is done
by a child under seven years of age.

Section 83 in The Indian Penal Code, 1860

Act of a child above seven and under twelve of immature understanding.--
Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to judge
of the nature and consequences of his conduct on that occasion.

Criminal intent is defined as the "intent to do something wrong or forbidden by law...the state of
mind accompanying an act...the outline of the mental pattern which is necessary to do the
crime..."1. Can a child commit a crime with criminal intent? The answer lies in biosocial,
cognitive, and psychosocial growth factors. By law, in the India, a 1-7(Section 82) & 7-
12(Section 83) year old cannot be held responsible for the commission of a criminal act, because
they are not yet cognitively capable of acting with intent. There are biosocial, cognitive, and
psychosocial reasoning that make it illogical to charge a child of such young age of acting with
malicious intent. The biosocial factors include the inability of a child this age to control
emotional impulses and injury controls; cognitively, children are unable to view the world
outside their own perspectives; and psychosocial factors include emotional regulation and media
influence.

1
USLEGAL, 2011
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BIOSOCIAL

The brain of a child below 12 years old has not yet completely developed. Lateralization is still
in the early processes of connecting the right and left sides of the brain hemispheres2. In practical
terms, this means the right hemisphere responsible for reasoning, analyzing, and thinking
logically and the left hemisphere responsible for emotions are not in clear, constant, and
complete communication. A 12 year old child is unable to use analysis, logic, or reason to
control emotional impulsiveness; for this reason, injury controls need to be in place to protect the
child from himself. In the case of a crime involving guns primary prevention methods include
federal laws (background checks and waiting periods); secondary prevention methods include
parents keeping guns in a locked container with ammunition in a separate, secure area and child-
proof trigger locks on all guns; and tertiary prevention would include the removal of all guns and
ammunitions from the home after a crime has occurred.

COGNITIVE

Children are unable to comprehend the difference between reality and what the child
believes. Piaget described the thinking characteristics of children ages 2-6 as centric: two of the
four contraction characteristics specifically apply to intent and they are egocentrism and static
reasoning. Six year olds are egocentric or self-centered, which means the child can only view the
world from his own perspective, and the use of static reasoning means the child believes that the
world remains the same as long as he is not watching. Vygotsky discovered that children are
"apprentices in thinking" . In other words, 12 year olds are unable to think critically for
themselves and will mimic the thoughts, actions, and speech of adults.

PSYCHOSOCIAL

Twelve year olds are still in the process of learning to regulate emotions; violent outbursts,
uncontrollable crying, and other emotional uncontrollable emotional outlets are not yet a thing of
the past. Reactive, instrumental, and bullying aggressions improve as emotional regulation
improves. Media plays a significant role in psychosocial development states, "...when a cartoon
animal or even a person explodes on the screen, they [children] are more likely to cheer than to
cry". Exposure to violence through media outlets reduces the child's ability to feel empathy;
additionally, emotional regulation is highly dependent upon parental responsiveness, and studies
have shown parental responsiveness decreases as media time increases.

Multiple factors are at play in development that prevents a six year old child from being held
accountable for his actions. Young children are unable to regulate emotion, control emotional

2
Berger, 2008
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impulses, or view circumstances from another's perspective. Children 12 years of age are unable
to develop intent based on biosocial, cognitive, and psychosocial aspects of the developing brain
and mental processes, and cannot be held legally accountable for crimes they commit.

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 JUVENILE JUSTICE: AN
OVERVIEW
The first legislation on juvenile justice in India came in 1850 with the Apprentice Act which
required that children between the ages of 10-18 convicted in courts to be provided vocational
training as part of their rehabilitation process. This act was transplanted by the Reformatory
Schools Act, 1897, the Indian Jail Committee and later the Children Act of 1960. The Juvenile
Justice Bill was first introduced in the Lok Sabha on 22 August 1986. This Act was further
amended in 2006 and 2011 and is now known as the Juvenile Justice (Care and Protection) Act,
2000. Recently State of Jammu and Kashmir has repealed its existing juvenile law of 1997 and
has enacted Jammu & Kashmir ( Care and Protection of children) Act 2013. This legislation is
very similar to India's national Juvenile law except that it does not contain any provision on
adoption.
Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) as
amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of
2006)., states that: “Prohibition of publication of name, etc., of juvenile or child in need of care
and protection involved in any proceeding under the Act-(1) No report in any newspaper,
magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or
a child in need of care and protection under this Act shall disclose the name, address or school or
any other particulars calculated to lead to the identification of the juvenile or child shall nor shall
any picture of any such juvenile or child shall be published: Provided that for any reason to be
recorded in writing, the authority holding the inquiry may permit such disclosure, if in its
opinion such disclosure is in the interest of the juvenile or the child. (2) Any person who
contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to
twenty-five thousand rupees”.
While provisions relating to the Juveniles in conflict with law are very important from
jurisprudence point of view, this Act becomes very crucial for Children in Need of Care and
Protection, as they are very large in number. Section 29 of the Act provides constituting five
members District (Administrative unit in India) level quasi-judicial body "Child Welfare
Committee". One of the members is designated as Chairperson. At least one of the members
shall be woman. The Committee shall have the final authority to dispose of cases for the care,
protection, treatment, development and rehabilitation of the 'Children in Need of Care and
Protection' as well as to provide for their basic needs and protection of human rights.
Hon'ble Supreme Court of India vide Judgement in Hari Ram Versus State of Rajasthan3
confirmed retrospective effect of Juvenile Justice Act, 2000 in year 2009, which was earlier
confirmed by some of the High Courts in India, particularly by Bombay High Court.
Pursuant to an order of Delhi High Court, Juvenile Justice Act was further amended in year 2011
whereby certain provisions which were discriminatory to the persons affected from leprosy have
been deleted.
3
2009

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Ministry of Women and Child Development is contemplating bringing several amendments in
year 2012. A draft Bill in this regard has been prepared and is pending before Ministry of Law
and Justice for scrutiny. 2012 Delhi gang rape case had tremendous impact on public perception
of Juvenile Justice Act. Media highlighted that the juvenile allegedly involved in this case was
the "Most Brutal" of all accused persons and quoted police sources for this information however
official sources deny such allegation. Eight Writ Petitions alleging Juvenile Justice Act and its
several provisions to be unconstitutional were heard by the Supreme Court of India in second
week of July 2013 and were dismissed, holding Juvenile Justice Act to be constitutional.
Demand for reduction of age of juvenile from 18 years to 16 years were also turned down by the
Supreme Court, when Union of India stated that there is no proposal to reduce the age of a
juvenile.
Many experts and activists viewed Post December 2012 Delhi Gang Rape responses as creation
of media sensationalization of the issue, and cautioned against any regressive move to disturb the
momentum of Juvenile Justice Legislation in the Country.

THE ISSUE OF AGE DETERMINATION

Age determination has been a tricky and controversial issue in juvenile justice. A number of
cases have been decided by the courts in this regard. In the context of juvenile legislation in
India, a juvenile is a person who has not completed eighteen years of age. Only children below
seven to twelve years of age who are sufficiently mature to understand the repercussions if their
act and children between twelve to eighteen years of age can be tried under Juvenile Justice Act
as children below seven years of age have been granted blanket immunity, as mentioned above,
by the Indian penal Code. The objective is not to treat such children as adults for their criminal
behaviour but to reform and rehabilitate them. I call the issue of age determination controversial
because there is no clarity on the point. Even in the case of Indian Penal Code, sections 82 and
83 talk about children below and above seven years of age but it is silent about seven year old
children. Who is to determine the age bracket they fall in? Section 49 (1) of the Juvenile Justice
Act, 2000 confers the power on competent authority to determine whether the person brought
before it is a juvenile, if he/she appears to be so. But the procedure to determine juvenility of a
person cannot be relied on. The two ways to determine age of the accused are documentary
evidence and medical evidence. In Jaya Mala v. Home Secretary, Government of J&K the apex
court held that the age as ascertained by medical examination is not conclusive proof of age. It is
mere opinion of the doctor and a margin of 2 years could be on either side. In another high
profile case, Bhoop Ram v. State of UP, the court held that in case of conflict between
documentary evidence and medical report, the documentary evidence will be considered to be
correct. This leads one to the conclusion that all that it needs to establish and convince court that
a criminal is a juvenile is documentary proof. Now documentary proof is one of the easiest
things to obtain in our country whether it is to get a license one is legally not entitled to or for
furnishing age proof in the court. In such a case, even if we were to turn to medical examination,
which is held not to be hundred percent conclusive proof by even medicos. By the Allahabad
High Court‟s own admission, a doctor is not always truthful. In Smt. Kamlesh and anr. v. State
of UP, the court maintained that a professional witness is prone to side with a party that engages
his/her services. Thus, a doctor is not always truthful. Now, if age cannot be determined

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conclusively by using either documentary evidence or medical evidence, what is to be done? The
apex court4 held that no fixed norm had been laid down by the Act for the age determination of a
person and the plea of the juvenile must be judged strictly on its own merit. The medical
evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has
to be considered along with other cogent evidence.

Apart from the conclusive determination of age, the question of the date when age has to be
taken into account has also been a matter of controversy. In another judgment5 it was held that it
is the date of the offence that has to be considered. Later it was overruled the judgment6 saying
that the date of commission of offence is irrelevant and it is the date of bringing the accused in
the court that has to be taken into account. This was again corrected where the court7 held that
“the reckoning date for the determination of the age of the juvenile is the date of an offence and
not the date when he is produced before the authority or in the Court.”

4
Babloo Passi and anr. v. State of Jharkhand and anr
5
Umesh Chandra v. State of Rajasthan
6
Arnit Das v State of Bihar
7
Pratap Singh v. State of Jharkhand
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 JUVENILE JUSTICE ACT, 2000
The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework
for juvenile justice in India. The Act provides for a special approach towards the prevention and
treatment of juvenile delinquency and provides a framework for the protection, treatment and
rehabilitation of children in the purview of the juvenile justice system. This law, brought in
compliance of Child Rights Convention 1989, repealed the earlier Juvenile Justice Act of 1986
after India signed and ratified Child Rights Convention 1989 in year 1992. This Act has been
further amended in year 2006 and 2010. Government of India is once again contemplating
bringing further amendments and a review committee has been constituted by Ministry of
Women and Child Development which is reviewing the existing legislation. Recent 16
December 2012 Gang rape incident in Delhi has raised a popular demand for amending this law
to allow harsher punishments to children involved in serious offences.
JJ Act is considered to be an extremely progressive legislation and Model Rules 2007 have
further added to the effectiveness of this welfare legislation. However the implementation is a
very serious concern even in year 2013 and Supreme Court of India is constantly looking into the
implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao
Andolan Versus Union of India. In addition to Supreme Court , various High Courts in India,
specifically Bombay High Court and Allahabad High Courts are also monitoring implementation
of JJ Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System,
Government of India launched Integrated Child Protection Scheme (ICPS) in year 2009-10
whereby financial allocations have been increased and various existing schemes have been
merged under one scheme.
A separate petition8 is also pending consideration before Supreme Court on implementation of
Juvenile Justice Act, 1997 which is applicable in the State of Jammu & Kashmir.
Based on a resolution passed in year 2006 and reiterated again in 2009 in the Conference of
Chief Justices of India, several High Courts have constituted "Juvenile Justice Committees"
which are monitoring committees headed by sitting Judges of High Courts. These Committees
supervise and monitor implementation of Juvenile Justice Act in their Jurisdiction and have been
very effective in improving state of implementation. Juvenile Justice Committee of Delhi High
Court is considered a model in this regard.
When a police officer comes in contact with a juvenile he must place the child with the Special
Juvenile Police Unit (SJPU) who must report the child to the board without delay. Bail is
available to juveniles in all cases as long as the Board find the release of this child will not place
him in any danger or in the influence of criminals. If the child is not released on bail he is only to
be placed into the custody of an Observation Home. The SJPU are responsible for informing the

8
Deepika Thusso Versus State of Jammu and Kashmir
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juvenile's parents of the arrest, as well as inform the Probation Officer who will make the
necessary enquires about the child.

The JJB must make an inquiry into the case and if they determine the child is guilty of the crime
then they may release the child after advice and counselling. The child can be released either to
his parents/guardians or into an institution, with or without a bond. The Board may also make the
child pay a fine (if he is above fourteen and earns) or complete hours of community service. A
social investigation report from the probation officer is required for the child to be discharged.
The probation officers may be required to continue a follow up of the child even after discharge.
A child can not be charged with the death penalty, imprisonment which can extend to life
imprisonment or committed to prison for inability to pay a fine or providing a security for the
bond.

Under this act juvenile cases can not be processed with non-juvenile cases. A juvenile can not be
rendered unfit or 'disqualified". Juveniles are not exposed to the media as magazines, news
papers and visual media are not permitted to release the information about the juvenile. Juveniles
who run away from the Observation or Special homes can be brought back without a warrant and
without punishment. Cruelty (such as assault or neglect) towards juveniles in the home or by any
person in charge of him/her is a punishable offence. This act also has provisions to penalize
people who exploit children for a crime. A person, who employs a child in a hazardous industry,
employs him/her for begging or provides a child with drugs or alcohol is liable to serve prison
time and pay fines.

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 DEFENSE OF INFANCY IN OTHER
COUNTRIES
ENGLAND AND WALES

Criminal responsibility is age 10 in England and Wales.9 This is when a child becomes
criminally responsible for their actions and the consequences of their actions. From this age
onwards, they can be prosecuted for any criminal offence in a Youth Court. In exceptional
circumstances, most notably the case of the murder of James Bulger in Liverpool in 1993,
children can be tried as an adult in an adult court.

From the age of 10 onwards, individuals are then considered an adult in the eyes of the law.
Therefore, all punishment given by the courts or other law enforcement agencies will rest solely
upon them.

DENMARK

Before July 1, 2010, a child had to be 15 years old to be charged with a crime. The maximum
penalty regardless of the type of crime committed was 8 years imprisonment. After July 1, 2010,
the age limit was lowered to 14 years. The limit of 8 years imprisonment was lifted. They cannot
be sentenced to life without parole. On March 1, 2012 the age limit was raised back to 15
years.10 Children aged between 12 and 14 are not allowed legal defense, but can be ordered to
wear an ankle monitor by the social services.

UNITED STATES OF AMERICA

A Child below the Age of 6 years is immune from the Criminal Liability under any
circumstances. In case a child is above 6 years11 but below 14 years of age, the parole limit for
such child committing offence is lower than that of any other Citizen who is not a juvenile.

9
Crime And Disorder Act,1989 Section 34
10
U.N. unhappy at crime age proposal
11
US ISS , 2005

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JUVENILE JUSTICE: AN ONGOING DEBATE
ON JUVENILE AGE
The brutal Delhi gang rape case12 has bought forth a new aspect of criminality that India‟s justice
system needs to address urgently.

One of the accused, as per police record and, according to reports, the most aggressive of the lot
who brutalized the young girl, is a minor of 17 years. Reports have shown that it was the minor
who first lured the unsuspecting victims into the bus and that he was the most aggressive in the
repeated rape of the victim.

In India the sentencing and trial of juvenile offenders is mandated and governed by the Juvenile
Justice Act 2000. Section 1(4) mandates that all cases involving detention, prosecution, penalty
and sentence of imprisonment involving juveniles shall be governed by the Juvenile Justice Act.
Section 2(l) defines a juvenile as any child who has not yet completed eighteen years of age.
Section 15(1)(g) of the JJ Act further mandates that a juvenile convicted of any offence can be
sentenced to be sent to a special home for a period of three years, maximum and thereafter be
released on probation. What this boils down to is the fact that in case the accused happens to be a
juvenile the maximum time that he shall serve is three years or 1095 days in a special
rehabilitation home.

Before venturing into the merits and demerits of the Indian Juvenile Justice system it would be
prudent to see how the Western world deals with juveniles accused of horrendous crimes. A
somewhat similar, yet if possible more horrific situation arose in England in the now infamous
James Bulger Case in 1993. The two accused and convicted of torturing and murdering a two
year old child were both 10 years old at the time of the offence. They were tried as adults and
convicted for life with a minimum sentence of eight years. Police personnel look on as a vehicle,
which is believed to be carrying the accused in a gangrape and murder case, arrives at an
entrance to Saket District Court in New Delhi. AFP In England, the age of criminal
responsibility, is set at 10 years. This means that any individual above the age of 10 is considered
fully aware of the difference between right and wrong.

In case of a juvenile offender, he/she can either be tried as a juvenile or as an adult, depending
again on the heinousness of the crime. In case the offender is tried as an adult the Crown Court13
has in its discretion to award the maximum amount of punishment as would be awarded to an
adult.

12 th
Nirbhaya Case(16 Dec’ 2012)
13
the UK version of a criminal court
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Similarly in the United States the case of Kent v The United Case in 1966, saw a juvenile, who
was convicted of house breaking robbery and rape, tried as a major. He was sentenced to thirty to
ninety years behind bars. In fact, the Unites States has drawn a clear distinction between
juveniles as victims of an unresponsive society and those who are fully aware of the heinousness
of their crimes. The legislation of the country allows in certain cases, keeping in mind the
heinousness of the crime committed, to try juvenile offenders as adults.

The justification offered behind this waiver is to recognise the inherent and all important
principle of Mens Rea or guilty conscience. This waiver of jurisdiction by the Juvenile Board is
brought about by a clear understanding that in certain cases the board may not be adequately
equipped to handle the offender, particularly one who committed the crime knowing fully well
the consequences of his/her actions. Another justification offered is the prime responsibility of
the State to protect society from such offenders. By waiving its jurisdiction the juvenile court
recognises that the offender is beyond the scope of juvenile rehabilitation and legitimises the
waiver of jurisdiction as a means of protecting society at large from the offender. Australia too
follows a system similar to the United Kingdom.

The age for criminal responsibility in Australia is also 10 years, which means a child is not
supposed to know the difference between right and wrong if he/she is below 10 years. From 10
years to 14 years an accused comes under what is called „rebuttable presumption‟, this means
that by default the child is supposed to be unaware of the consequences and inherent illegality of
the act committed, however the prosecution is free to rebut this understanding. Any individual
over 14 years of age is held accountable of any crime committed by him and whether the
individual is to be tried as a minor or an adult depends again on the heinousness of the crime.
Coming back to India and the Juvenile Justice Act 2000, it is easy to notice that rather than have
a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is a system
in which the maximum amount of sentence served by a delinquent who say partakes in armed
robbery in order to feed himself is the same as the one given out to a serial rapist or murderer;
just so long both are under eighteen years of age. The biggest reason for our current system is the
supposed rehabilitation of the offenders.

A glimpse of this may be found in the rechristening of the word offender to „Juvenile in conflict
with the law‟. While the swanky name change is an earnest and somewhat romantic gesture at
our societies‟ endeavour in recognising and unleashing the „good‟ within each child, there is an
inherent problem with the term of the sentence. There is no logical or scientific reason which
shows that total and complete rehabilitation can be achieved by a delinquent/ offender/ child in
conflict with the law within a maximum period of three years. In the case of the Delhi rapist,
even if one were to say that the boy needs to be rehabilitated and that perhaps the reason for his
barbaric and animalistic act was a deep-rooted psychological problem, there is no assurance that
the issue can be dealt with in three years. Of course, the absolute lack of implementation of the
provisions of the JJ Act after a juvenile completes his sentence is another concern. India‟s

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massive population makes it impossible to track and ensure that a juvenile once released
continues with his therapy or even reports regularly to his parole officer. With this basic and
undeniable truth it is a matter of simple calculation that in all probability the Delhi rapist shall be
on the streets within the next three years that‟s 1095 days with nothing more than a stint in a
special home in the name of absolute and complete Rehabilitation.

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 PROPOSAL FOR AMMENDMENT IN
JUVENILE JUSTICE ACT, 2000

The Continuous Debate On whether the age of a juvenile should or should not be lowered from
18 years to 16 or 14 years in India has both positive effects as well as negative effects.

Though lowering the age in juvenile justice will help put people responsible for Delhi rape Case
or For that matter Bombay Rape Case, but it will also Impose a negative impact on other juvenile
Cases which include minor crimes like stealing, theft.

It has been observed that 68% of the Crimes committed by a Person under the Definition of a
Juvenile In India are Minor Crimes and Not The brutal Ones.14

In My opinion , the answer to this very debate, lies with the Judiciary of India. The Courts in
India are competent Enough To Distinguish between Minor Crimes and heinous crimes. The
Courts, in my view, should be granted the power to decide whether a person should be trialed as
a juvenile or should be trialed as an Adult. This will entitle the Court To punish the Wrong-doers
who take the loop hole in the Juvenile Justice Act and Commits an offence.

14
Save The Children India, Report

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 CONCLUSION
The general Principal On which infancy is based on is that a Child Can commit no wrong.
To elaborate this principal we can say that “a child’s mind is not mature enough to Form a
mensrea”.

Criminal Liability is what unlocks the logical structure of the Criminal Law. Each element of a
crime that the prosecutor needs to prove (beyond a reasonable doubt) is a principle of criminal
liability.

There are five principles of liability in Criminal Law:

Principle of Actus Reus

Principle of Mens Rea

Principle of Concurrence

Principle of Causation

Principle of Resulting Harm

The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework
for juvenile justice in India. The Act provides for a special approach towards the prevention and
treatment of juvenile delinquency and provides a framework for the protection, treatment and
rehabilitation of children in the purview of the juvenile justice system.

The brutal Delhi gang rape case15 has bought forth a new aspect of criminality that India‟s justice
system needs to address urgently.

One of the accused, as per police record and, according to reports, the most aggressive of the lot
who brutalized the young girl, is a minor of 17 years. Reports have shown that it was the minor
who first lured the unsuspecting victims into the bus and that he was the most aggressive in the
repeated rape of the victim.

In My opinion, the answer to the debate on the age of a juvenile lies with the Judiciary of India.
The Courts in India should be granted the power to decide whether a person should be trialed as
a juvenile or should be trialed as an Adult. This will entitle the Court To punish the Wrong-doers
who take the loop hole in the Juvenile Justice Act and Commits an offence.

15 th
Nirbhaya Case(16 Dec’ 2012)

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 BIBLIOGRAPHY
 INDIANKANOON.COM
 HISTORY OF JUVENILE JUSTICE IN INDIA BY V. K . SINHA
 JUVENILE JUSTICE ACT, 1986
 JUVENILE JUSTICE ACT, 2000
 P S PILLAI IPC

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