Crimes by Juveniles – Heinousness, Acceptability and Age of Adulthood

Trial of a Juvenile as an Adult Based on the Heinous Nature of Crime: – An Intelligible

Differentia and in nexus with the Act?

Heinous Crimes, Nature of Crime Committed and Maturity of Juvenile:

As per Section 15(1) of the Juvenile Justice Act, 2015, in “case of a heinous offence alleged
to have been committed by a child, who has completed or is above the age of sixteen years,
the Board shall conduct a preliminary assessment with regard to his mental and physical
capacity to commit such offence, ability to understand the consequences of the offence and
the circumstances in which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18”1. As per Section 18(3),
“Where the Board after preliminary assessment under section 15 pass an order that there is a
need for trial of the said child as an adult, then the Board may order transfer of the trial of the
case to the Children’s Court having jurisdiction to try such offences.”2 Section 2(33) defines
“heinous offences” as including “the offences for which the minimum punishment under the
Indian Penal Code or any other law for the time being in force is imprisonment for seven
years or more;”3 The basis of determining the trial of the juvenile as an adult is simply the
nature of crime so shocking for a minor to have committed that he must be treated as an
adult. It has been pointed out that the difference made here between juveniles who committed
petty offences and those who committed grave and heinous offence is an intelligible
differentia and that it would be disproportional to treat both kinds of offenders on the same
footing. “It seems that the archaic common law maxim malitia supplet aetatem (malice
supplies defect of years) has been brought in the contemporary juvenile justice mechanism
that if the circumstances disclose such a degree of criminal intent (malice) that is generally
exhibited by the adults, the juvenile should be held liable in the same way.”4

However, it is argued that the maturity and understanding of a person is not determinable as
such and especially not determinable simply by the nature of his crime. In Salil Bali v Union

1
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament, 2016, ¶ 15(1)
(hereinafter JUVENILE).
2
JUVENILE, supra note 1 at ¶ 18(3).
3
JUVENILE, supra note 1 at ¶ 2(33).
4
Dr. Kumar Askand Pandey, Juvenile Delinquency and the Juvenile Justice (Care and Protection of Children)
Act, 2015: A Critique, 7 RMLNLUJ (2015) 54 BRAIN SCIENCE.
of India5, the Court observed, “it is a well-established medical psychological fact that the
level of understanding of a 16-year old was on par with that of adults.” 6Quite to the contrary
it is established that adults have their pre-frontal cortex of the brain fully developed and are
therefore medically and psychologically better equipped to reason and think logically while
juveniles rely on amygdale which is the centre for emotions and impulses and that leaves
minors acting impulsively. Thus, scientific research strongly indicates “maturity”, measured
through risk assessment abilities, is linked to the growth of the brain, which in turn depends
on the age of the individual.7 According to the American Psychology Association “the human
brain is not fully mature and the brain is still in the process of developing, therefore, the
juveniles cannot be held fully responsible for their behaviour.”8 Therefore, as a medically and
psychologically established fact maturity and understanding has more to do with age and not
to do with the heinousness of the crime.

9
Fox and Levin’s (1999)10 prominent typology places serial killers in three broad groups,
each with two subgroups: “• Thrill: Most serial killings are motivated by thrill. Thrill-based
serial killings involve sexual sadism (where the offender sexually assaults the victim) or
dominance (where the offender feels the need to exercise power and control; one example is
the killing vulnerable or frail patients by health care staff). • Mission: The serial murder is
committed in the name of some cause. These offenders may be reformist (where the offender
wants to rid the world of filth and evil, such as by killing prostitutes, gay men, Jews, ethnic
minorities, or homeless individuals) or visionary (offenders who believe that they hear the
voice of the devil or God instructing them to murder). • Expedience: These serial killers are
motivated by profit or some sort of self-protection. They may be profit oriented (they kill to
gain access to insurance proceeds or social security checks, for example) or protection
oriented (the killer uses murder to cover up criminal activity, such as a robbery).”11

5
Salil Bali v. Union of India, (2013) 7 S.C.C. 705 (hereinafter BALI).
6
Brittany Kintigh, Adolescent Development: Juveniles are Different than Adults, DocPlayer, August,
2012; Daniel R. Weinberger, A Brain Too Young For Good Judgment, N.Y. Times, March 10, 2001.
7
Gauri Pillai & Shrikrishna Upadhyay, Juvenile Maturity and Heinous Crimes: A Re-Look at Juvenile Justice
Policy in India, 10 NUJS L.Rev. 49 (2017).
8
Laurence Steinberg et. al, Are Juveniles Less Mature Than Adults? Minors, Access to Abortion, Juvenile Death
Penalty and the Alleged APA. “Flip Flop” American Psychology Association, October, 2019, Vol. 64, No. 7,
583-594.
9
FREDERIC G. REAMER, HEINOUS CRIME CASES, CAUSES, AND CONSEQUENCES, COLUMBIA UNIVERSITY
PRESS NEW YORK, 1953.
10
Fox, James A., and Jack Levin, “Multiple Homicide: Patterns of Serial and Mass Murder.” In Michael Tonry,
ed., Crime and Justice: A Review of Research, 23:407–55. CHICAGO: UNIVERSITY OF CHICAGO PRESS (1998).
11
Id.
12
Russell’s (1984)13 typology focuses on a wide range of etiological factors associated with
rape: “Childhood experiences of sexual abuse: Professionals believe that victims of childhood
sexual abuse are at increased risk of committing sex offenses as adults. Children who are
victimized may grow up believing that victimizing others is acceptable. Also, the adult
rapist’s behavior may be a product of built-up aggression from earlier victimization.
Exposure to mass media that encourage rape: Many professionals believe that steady
exposure to sexually provocative movies, television shows, and advertisements encourages
sexual aggression. Exposure to pornography: Similarly, many professionals believe that
exposure to sexually explicit images—especially those that portray sexual abuse,
exploitation, and victimization—exacerbate sexual aggression and rape.”14

Given such an array of possible causes for eventual commission of a heinous crime, without
the development of pre-frontal cortex minors are not at par with adults and therefore must not
be treated by law as adults. Where a minor has been living on the streets, working menial
jobs and lacks guidance and care of parents or any person educated, it is possible that such
causes as listed above adversely affect the development of the minor. Thus, his committing
heinous crimes cannot be evidence of maturity and understanding. It should be treated
instead, as a sheer lacuna of the same.

A fitting example is the Jhabua Murder case15 in which two minors, aged 17 and 16 years
were awarded life imprisonment. “The two accused had stabbed the deceased (teenager) over
a matter of 800 rupees.”16 As Astha puts it, this reflects a sheer lack of maturity and
understanding. There is no expedience in this crime as there may have been in a murder by an
adult for a valuable profit. Clearly, in the Jhabua murder case, the perpetrator could not
correctly weigh the consequences with his profit of 800 rupees. This case brings out another
important aspect of minor psychology. 17
“Juveniles have their brains divided in two parts
which help them in distinguishing between good and evil. The first is social-emotional part
which is related to emotions and is controlled by punishments or rewards. This part of the

12
Frederic G. Reamer, HEINOUS CRIME Cases, Causes, and Consequences, COLUMBIA UNIVERSITY PRESS
NEW YORK, 1953.
13
Russell, Diane E. 1984. Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment.
BEVERLY HILLS, CALIF.: SAGE.
14
Id.
15
Saklu v. State of M.P., Cr.A.No.1293/07.
16
Adult time for Adult crime-The road to juvenile justice, Astha Misra, January 31, 2018, THE SCC ONLINE
BLOG.
17
Less guilty by reason of adolescence, MACARTHUR FOUNDATION RESEARCH NETWORK ON ADOLESCENT
DEVELOPMENT AND JUVENILE JUSTICE (2006).
brain undergoes a massive change during childhood and juvenility and therefore juveniles
tend to commit certain acts which give them a high and a feeling of sensation. In order to feel
the sensation, children in the age group of sixteen to eighteen have a high tendency to take
risks without evaluating the pros and cons of the same. It has been seen that for this precise
reason they commit such acts where there is high risk involved and there is no or very little
reward.” Thus, simply the nature of the crime cannot bring the juvenile with his adult
counterpart.

Moreover, juveniles are far more capable of reformation and reintegration into the society.
They are not hardened criminals but often their background and their abandonment by the
society prior to commission of crime explain how they went down a particular road.
However, as their minds are yet to fully develop, they haven’t travelled too far down that
road. Citing fundamental differences between an adult mind and a juvenile mind, the
Supreme Court of the USA, in Graham v Florida18 observed, “For example, parts of the brain
involved in behavior control continue to mature through late adolescence… Juveniles are
more capable of change than are adults, and their actions are less likely to be evidence of
‘irretrievably depraved character’ than are the actions of adults.”19

Therefore, there is no intelligible difference between juvenile petty offenders and juvenile
heinous offenders for the purpose of determining whether either is at par with adults. The
nature of crime committed cannot therefore, help in ascertaining the maturity and
understanding of consequences in minors. In L.P Aggarwal v. Union of India20, it was
observed, “In any scenario where similarly situated persons are treated differently, the
question of violation of equality and discrimination arises.”

Age of Adulthood and Intent:

In any event, a juvenile’s mental element of the crime he commits is not at par with that of an
adult and therefore he must be found less culpable. ‘Actus non facit reum. nisi mens sit rea’

Research in psychology continues to indicate that even at the age of eighteen the brain is not
fully developed. The pre-frontal cortex is still growing and the persons around this age are
therefore likely to act on impulses and emotional stimuli. 21
“Brain development is hardly

18
Graham v. Florida, 560 U.S. 48 (2010) (hereinafter GRAHAM).
19
GRAHAM, supra note 18.
20
L.P Agarwal v. Union of India, (1992) 3 S.C.C. 526.
21
Beyer, Recognizing the Child in the Delinquent, KENTUCKY CHILDREN'S RIGHTS JOURNAL 45, 55 (1999).
complete at age of eighteen years. Instead, brain development continues into adulthood and
22
sometimes is not complete until the age of twenty-five years.” The US Supreme Court has
also relied on research in child psychology and based decisions on the fact that teenagers are
not mentally developed as much as adults are and therefore “they are less culpable.”23

Mental or Cognitive Maturity: It is argued that as per a juvenile’s mental or cognitive

maturity, he or she, while physically capable of committing heinous offences, is not however
capable of understanding either the consequences of such acts or his or her own motivations
behind the said acts. “The brain of a child cannot be judged in the same way in which an
adult's brain is judged. It has been scientifically proved that while 90% of brain development
in terms of volume occurs by the age of six years, the fine tuning of the brain continues even
into the third decade of life.”24

25
Capability of Reformation and Reintegration into Society: The Justice Verma Committee
was assigned to look into the possible amendments in the criminal laws related to sexual
violence against women post Nirbhaya gangrape in response to the public outrage for
punishing the juvenile offender on the same footing as his adult counterparts. The committee
analysed the statistics on recidivism and concluded that juveniles in India have a far lower
and non alarming rate of recidivism or reoffending than their counterparts in other countries
which do not follow the reformative justice which India did under the Juvenile Justice Act,
2000. In this way therefore, the Act was fulfilling its purpose. The committee also considered
the obligation which India had for protecting the rights of children.26 It then concluded that
the then cut-off of 18 years should be retained. In Salil Bali v Union of India27, the question
came up whether the age prescribed in the definition of juvenile is justified. The Supreme
Court relied on similar materials as the Justice Verma Committee and found the age justified.
This case was a joining of 7 separate petitions filed to challenge the constitutionality of the
Juvenile Justice Act, 2000 (amended in 2006). The Supreme Court upheld the
constitutionality of the Act citing the restorative purpose of the Act, its correspondence with
the CRC, and the fixing of the age of eighteen based on the understanding of experts in child

22
Roper v. Simmons, 543 U.S. 551 (2005); GRAHAM, supra note 18.
23
GRAHAM, supra note 18.
24
Cover Story, FRONTLINE, Jan 22, 2016 at 29-30 (In an interview, Dr. Shekhar P. Seshadri and Dr. Preeti Jacob
of the Department of Child and Adolescent Psychiatry at the National Institute of Mental Health and Neuro
Sciences (NIMHANS), Bengaluru).
25
Gopal Subramanium, J.S Verma & Leila Seth, Report of the Committee on Amendments to Criminal Law
(2013).
26
Convention on the Rights of the Child, art. 37(c) (1990).
27
BALI, supra note 5.
psychology.28 “…till such an age the children in conflict with law could still be redeemed and
restored to mainstream society, instead of becoming hardened criminals in future.”29

The Supreme Court of the USA has decided on similar footing and observed, “none of the
legitimate goals of penal sanctions—retribution, deterrence, incapacitation, and
rehabilitation30, is adequate to justify life without parole for juvenile non-homicide
offenders.” Graham v Florida31 has further strengthened the notion that juveniles must have
less culpability than their adult counterparts, “No recent data provide reason to reconsider
Roper’s holding that because juveniles have lessened culpability they are less deserving of
the most serious forms of punishment.”32

The Norm created by the CRC: The judgement in R v Caldwell33 decided the challenge to the
House of Lords ruling in the same matter which ascribed the adult objective standards to
determine reckless state of mind. Although the UK had not yet ratified the CRC, the Court
recognised the norm created and binding on the UK nonetheless. It observed, “…it is contrary
to Article 40.1 to ignore in a crime punishable by life imprisonment or detention during Her
Majesty's pleasure, the age of a child in judging whether the mental element has been
satisfied.”34

Julia Beck talks about Steinberg’s observations regarding age of adulthood and emerging
adulthood, 35“We all know people who are 21 or 22 years old who are very wise and mature,
but we also know people who are very immature and very reckless. We’re not going to start
giving people maturity tests to decide whether they can buy alcohol or not.” Steinberg says
also that a person should be able to vote at the age of 16. “You don’t need to be six feet tall to
reach a shelf that’s five feet off the ground,”36 This begins to explain at the very least why we
have different age prescriptions as legal requirements for meeting the eligibility criteria to do
different things, such as entering contracts, marrying, assuming offices of power, driving a
light motor vehicle, buying alcohol etc. The differences are still difficult to justify and

28
BALI, supra note 5.
29
BALI, supra note 5.
30
Ewing v. California, 538 U. S. 11, 25
31
GRAHAM, supra note 18.
32
GRAHAM, supra note 18.
33
R v Caldwell, 1982 A.C. 341 (hereinafter CALD).
34
CALD, supra note 33.
35
Julie Beck, When Are You Really an Adult? In an age when the line between childhood and adulthood is
blurrier than ever, what is it that makes people grown up?, The Atlantic (Jan 5, 2016),
https://www.theatlantic.com/health/archive/2016/01/when-are-you-really-an-adult/422487/.
36
Id.
involve a wide variety of factors to be considered. “Setting legal adulthood at eighteen fails to
accord with the trajectory of individual development, the time needed to acquire the skills
and education demanded of individuals in the modern labour market, and even the social
experiences of young people coming of age in modern America. In other words, the legal
construction of adulthood is starkly at odds with its social and cultural constructions.”37

Conclusion

What is unconceivable therefore is to ascribe treatment of a minor as that of an adult solely

based on the nature of offence he committed. As argued above, maturity and understanding
are independent of the nature of offence. Moreover, there are countless factors which may
lead a person to commit a heinous offence as discussed above. Such factors are bound to
affect a juvenile’s even more so than an adult’s because of the very fact of its developing
stage. With respect to psychology and neuroscience, it would be blasphemous to conclude
that a juvenile be treated as an adult based on the heinous nature of his offence. Mens rea is
an essential ingredient of crime along with the physical act. Intention must be proven in a
court of law to determine the accused as guilty of the crime. Motive plays a strong role in
establishing intent. Where two minors killed over a matter of 800 rupees however, the motive
itself shows the immaturity and lack of understanding of the consequences. It is established
jurisprudence that juveniles in conflict with law are less culpable than adult offenders. As per
the Convention on Rights of Child, it is established norm that the human beings below the
age of 18 are children and must be treated as such by the States. This creates treaty
obligations and obligations erga omnes as shown above in Caldwell case to protect the rights
of children and established judicial process and penal provisions which are reformative and
aimed to reintegrate juveniles in conflict with law into the society.

37
Vivian E. Hamilton, Adulthood in Law and Culture, William & Mary Law School Scholarship Repository -
Faculty Publications 54, 55 (2016).
BIBLIOGRAPHY

Case Laws

 Salil Bali v. Union of India, (2013) 7 S.C.C. 705.

 Saklu v. State of M.P., Cr.A.No.1293/07.
 Graham v. Florida, 560 U.S. 48 (2010).
 L.P Agarwal v. Union of India, (1992) 3 S.C.C. 526.
 Roper v. Simmons, 543 U.S. 551 (2005).
 Ewing v. California, 538 U. S. 11.
 R v Caldwell, 1982 A.C. 341.

Journal Articles

 Dr. Kumar Askand Pandey, Juvenile Delinquency and the Juvenile Justice (Care and
Protection of Children) Act, 2015: A Critique, 7 RMLNLUJ (2015) 54 BRAIN
SCIENCE.
 Gauri Pillai & Shrikrishna Upadhyay, Juvenile Maturity and Heinous Crimes: A Re-
Look at Juvenile Justice Policy in India, 10 NUJS L.Rev. 49 (2017).
 Laurence Steinberg et. al, Are Juveniles Less Mature Than Adults? Minors, Access to
Abortion, Juvenile Death Penalty and the Alleged APA. “Flip Flop” American
Psychology Association, October, 2019, Vol. 64, No. 7, 583-594.
 Fox, James A., and Jack Levin, “Multiple Homicide: Patterns of Serial and Mass
Murder.” In Michael Tonry, ed., Crime and Justice: A Review of Research, 23:407–
55. CHICAGO: UNIVERSITY OF CHICAGO PRESS (1998).
 Russell, Diane E. 1984. Sexual Exploitation: Rape, Child Sexual Abuse, and
Workplace Harassment. BEVERLY HILLS, CALIF.: SAGE.
 Less guilty by reason of adolescence, MACARTHUR FOUNDATION RESEARCH
NETWORK ON ADOLESCENT DEVELOPMENT AND JUVENILE JUSTICE (2006).
 Beyer, Recognizing the Child in the Delinquent, KENTUCKY CHILDREN'S RIGHTS
JOURNAL 45, 55 (1999).
 Vivian E. Hamilton, Adulthood in Law and Culture, William & Mary Law School
Scholarship Repository - Faculty Publications 54, 55 (2016).
Books
 FREDERIC G. REAMER, HEINOUS CRIME CASES, CAUSES, AND CONSEQUENCES,
COLUMBIA UNIVERSITY PRESS NEW YORK, 1953.
Committee Reports
 Gopal Subramanium, J.S Verma & Leila Seth, Report of the Committee on
Amendments to Criminal Law (2013).
Newspaper Articles
 Brittany Kintigh, Adolescent Development: Juveniles are Different than Adults,
DocPlayer, August, 2012.
 Daniel R. Weinberger, A Brain Too Young For Good Judgment, N.Y. Times, March
10, 2001.
  Cover Story, FRONTLINE, Jan 22, 2016 at 29-30 (In an interview, Dr. Shekhar P.
Seshadri and Dr. Preeti Jacob of the Department of Child and Adolescent Psychiatry
at the National Institute of Mental Health and Neuro Sciences (NIMHANS),
Bengaluru).
Internet Sources
 Julie Beck, When Are You Really an Adult? In an age when the line between
childhood and adulthood is blurrier than ever, what is it that makes people grown up?,
The Atlantic (Jan 5, 2016),
https://www.theatlantic.com/health/archive/2016/01/when-are-you-really-an-
adult/422487/.