INCREASING THE AGE OF CRIMINALITY FROM 16 TO 18 - EFFECT

A project submitted to

Army Institute Of Law, Mohali

By
Aradhya Jain

Under the guidance of

Dr. Bajirao Rajwade

In the Partial Fulfilment of The Requirement For The

Award of Degree of BA LLB.

Punjabi University, Patiala, Punjab

July-December 2021
 DECLARATION

It is certified work present in this report entitled “Increasing the age of Criminality from 16 to
18 - Effect” embodies the results of original research work carried out by me. All the ideas and
references have duly acknowledged.

DATE: NAME: Aradhya Jain

PLACE: ROLL NO.: 1877
 ACKNOWLEDGEMENT

The success and outcome of this project required a lot of guidance and assistance from many
people and I am extremely privileged to have got this all along the completion of my project. All
that I have done is only due to such supervision and assistance and I would not forget to thank
them all.

I respect and thank Dr. Bajirao Rajwade, for providing me an opportunity to do the project work
and giving us all support and guidance, which made me complete the project duly. I am
extremely thankful to her for providing such a nice support, although she had busy schedule
managing the corporate affairs.

I am thankful to and fortunate enough to get constant encouragement and guidance from all
teaching staff which helped me in successfully completing our project work. Also, I would like
to extend our sincere esteems to all for their timely support.
 INDEX
INTRODUCTION .......................................................................................................................... 1

PROVISIONS FOR CHILDREN IN CONFLICT WITH LAW UNDER JUVENILE JUSTICE

ACT, 2015....................................................................................................................................... 2

EFFECT OF INCREASING THE AGE OF CRIMINALITY ....................................................... 4

OVERALL EFFECT ...................................................................................................................... 6

CONCLUSION ............................................................................................................................... 8
INTRODUCTION
Children are the future of this country and thus, there arises a greater responsibility on part of the
state to ensure a proper development of children of this country. According to United Nations
Convention on Rights of the Child (UNCRC), “a child means every human being below the age
of 18 years unless, under the law applicable to the child, majority is attained earlier.”1This gives
the various countries freedom to fix the age limit in determining that who is a child. In India after
passing The Juvenile Justice (Care and Protection of Children) Act 2000, any person below the
age of 18 is considered as a child as the mental state of adults and children are different;
therefore there is a need to treat them separately under the different purview of law. And so there
are different provisions in our legal system to ensure that children do not suffer any ailment due
to prevalence of similar legal system.

According to the section 82 of Indian Penal Code (IPC), nothing is an offence which is done by
a child under seven years of age. Also according to the section 83 of Indian Penal Code (IPC),
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.

In Krishna Bhagwan v. State of Bihar2, Patna High Court upheld that if a child who is accused
of an offence during the trial, has attained the age of seven years or at the time of decision the
child has attained the age of seven years can be convicted if he has the understanding an
knowledge of the offence committed by him.

Principle of Parens Patriae - The state is clothed with the authority of the parent and nurture
the child as a guardian. The care which the state takes is in the form of education and other
essential needs of the child.3

The increase in number of heinous crimes committed by juveniles between the age group of 16 -
18 years as per the report of National Crime Record Bureau4 along with the Nirbhaya rape case
led to the amendment of Juvenile Justice Act, 2000 to Juvenile Justice Act, 2015. In this act two

1
“CRPC | Child Law,” accessed October 5, 2021, https://www.crpc.in/Child-Law.html.
2
Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217.
3
Miriam Van Waters, Youth in Conflict 9 (Republic Publishing Co., New York, 1925)
4
“Statistics-2015_rev1_1.Pdf,” accessed September 28, 2021,
https://ncrb.gov.in/sites/default/files/Statistics/Statistics-2015_rev1_1.pdf.

1
major provisions have been introduced- first, putting the children who are above sixteen years of
age under trial as adult if found guilty of heinous crime and second, putting the juveniles in adult
prison after the juveniles turn twenty-one years old if the sentence term is not over.

BACKGROUND – NIRBHAYA CASE

On 16th December, 2012 , a medical student who was returning home along with her friend
around 9 PM and was brutally raped and was left on the roadside to die. The girl and her
friend had taken lift in a bus. In the bus she was raped by six persons present while her friend
was beaten badly as he tried to save her. The six persons involved in this heinous crime
were the bus driver, conductor and cleaner and three of their friends. When this incident
came into limelight, it led to national anger and protest as well as many debates and
discussion on various matters like, woman safety, kind of punishment to be given to the
rapists etc. But with the release of the juvenile with only three years of imprisonment led
to further outcry and protest by the masses to change the Juvenile Justice Act and to punish
the juvenile at par with the adults for heinous crimes.

The juvenile apprehended in this case was only seventeen years and six months. So the age
factor became an important issue in this case and the punishment given to him was based on his
age as per Juvenile Justice (Care and Protection) Act (JJA), 2000. According to the Juvenile
Justice Act, maximum three years of imprisonment can be given to any juvenile offender if
found guilty. The disturbing fact was that the juvenile who is said to be the most brutal of the
six as per the media reports, was released after three years of imprisonment in a
Special/Observation Home (the maximum time period a juvenile can be detained in any
Observation Home) while other five were sentenced to be hanged till death.

A per the Ministry of Woman and Child Development the new Juvenile Justice bill was
introduced to amend the existing Juvenile Justice (Care and Protection) Act, 2000 as it was
facing implementation and delay. Not only that the reports published by National Crime
Record Bureau also provided data that there was an increase in number of crimes committed
by juveniles between the age group of 16-18 years (i.e. 1.2 % in 2013)

PROVISIONS FOR CHILDREN IN CONFLICT WITH LAW UNDER JUVENILE

JUSTICE ACT, 2015

2
The Juvenile Justice (Care and Protection of Children) Act, 2015 5has come into force from
January 15, 2016 and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000.

The key major amendments found in Juvenile Justice Act, 2015 relating to Children in conflict
with law are discussed below:

1. Change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the
Act to remove the negative connotation associated with the word “juvenile”

2. Special provisions for heinous offences committed by children above the age of sixteen
years - Under Section 15, special provisions have been made to tackle child offenders
committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is
given the option to transfer cases of heinous offences by such children to a Children’s Court
(Court of Session) after conducting preliminary assessment. The provisions provide for
placing children in a ‘place of safety’ both during and after the trial till they attain the age of
21 years after which an evaluation of the child shall be conducted by the Children’s Court.

3. After a thorough study of the submitted reports, the Children’s Court may –

 Decide to release the juvenile on such conditions as it deems fit which

includes appointment of a monitoring authority for the remainder of the prescribed
term of stay.

 Decide that the juvenile shall complete the remaining period of the term in a prison.

4. The new Act strengthens the protective approach provided by the juvenile justice system
towards children in conflict with law as well as children in need of care and protection. The
'Juvenile' in conflict with law has been redefined in the Juvenile Justice Act 2015 as a 'child‘
in conflict with law. Offences have been categorized as petty/ serious/ heinous offences.

5. Offences - ‘petty’ offences with a maximum jail term of three years; ‘serious’ offences with
a prison sentence of up to seven years; and ‘heinous’ offences like rape, murder and
terrorism with a minimum prison sentence of seven years and above. In heinous offences, a

5
India: The Juvenile Justice (Care and Protection of Children) Act, 2000 [India], Act No. 56, 30 December 2000,
available at: https://www.refworld.org/docid/54c209764.html [accessed 5 October 2021]

3
 juvenile above 16 years of age could be tried like an adult and even punished with life
imprisonment or death penalty after preliminary assessment by the Juvenile Justice Board.6

6. A child in conflict with law will be sent to an Observation Home temporarily during
pendency of inquiry. The child will be segregated according to age, gender, physical and
mental status and nature of offence. A child who is found to have committed an offence by
the Juvenile Justice Board will be placed in a Special Home. A Place of Safety will be setup
for children above the age of 18 years or children of the age group of 16 - 18 years who are
accused or convicted for committing a heinous offence. The Place of Safety will have
separate arrangement and facilities for under trial children and convicted children.

7. The Act mandates that in case the child is tried as an adult by the Children‘s Court, it shall
ensure that the final order includes an individual care plan for the rehabilitation of child,
including follow up by the probation officer or the District Child Protection Unit or a social
worker. The Children‘s Court shall ensure that the child is kept in place of safety till he
attains the age of twenty - one years. When he attains the age and the term is still pending,
the Children‘s court shall evaluate whether he need to be transferred to jail or if he has
undergone reformative changes and could be spared incarceration.

8. The Act puts a complete embargo on capital punishment or life imprisonment without the
possibility of release for the child offenders who come to be treated as adults by the juvenile
justice administration. The decision whether the child is to be released or sent to jail after
attaining the age of 21 years will be taken by the Children‘s Court.

EFFECT OF INCREASING THE AGE OF CRIMINALITY

The major highlight of Juvenile Justice Act, 2015 was the trial of juveniles who are sixteen years
and above as adults on commission of heinous crime like rape, murder etc. Thus, the age of
criminal responsibility of the juvenile in case of heinous offences was reduced from 18
years to 16 years.

While the laws under the Juvenile Justice Act, 2015 was appreciated by the general
masses, it has become the cause of a lot of debates and discussions relating to various

6
“4-1 Verdict: Supreme Court Dismisses Pleas Seeking Aadhaar Ruling Review,” Hindustan Times, January 21,
2021, https://www.hindustantimes.com/india-news/41-verdict-supreme-court-dismisses-pleas-seeking-aadhaar-
ruling-review-101611189869910.html.

4
flaws of Juvenile Justice Act, 2015 among child experts, academicians, psychologists, lawyers,
social workers working for children etc.

1. These provisions stand against the United Nations Convention on the Rights of
Children (UNCRC).

According to Clause 20(3) of Juvenile Justice Act, 2015, the Children’s Court has to ensure that
“the child who is found to be in conflict with law is sent to a place of safety till he
attains the age of twenty one years, thereafter, the person shall be transferred to a jail”, thus
violating Article 37(b) of the UNCRC 7which states that “no child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and for the shortest
appropriate period of time”. But Juvenile Justice Act, 2015 bill makes detention and
institutionalization of the child as the only way to reform the children in conflict with law.

2. These provisions are violative of Fundamental Rights of the children

Although Juvenile Justice Act, 2015 doesn’t reduce the age of criminality to 16 years in case of
juveniles, it has still made provision for juveniles who have committed heinous offences i
between the age group of 16-18 years to be tried and sentenced as adults; thus completely
destroying the rehabilitative foundation of the juvenile justice system. Added to this the JJA,
2015 also goes against the Article 14, Article 15 (3) and Article 20 (1) of the Indian Constitution.

 Article 14 : Article 14 states equality of all before law. The Juvenile Justice Act, 2015 has
created a division between two types of juvenile offenders committing the same offence on
the basis of the age in which they are apprehended. The reason behind differentiating these
offenders committing same offence based just only on the date of their apprehension is
unclear.

 Article 15(3)- Under Article 15 (3) of the Indian Constitution states nothing shall prevent the
state from making special provision for women and children. Special provisions can be made
by Government for the children. United Nations Standard Minimum Rules for the
Administration of Juveniles, 1985 stated that juvenile justice should be given prime
importance while dealing with children in conflict with law. Therefore, not only the offence
7
“Article 37: Torture and Deprivation of Liberty,” accessed October 5, 2021,
https://archive.crin.org/en/home/rights/convention/articles/article-37-torture-and-deprivation-liberty.html.

5
 but also the circumstance that lead to committing the offence by the offender should be taken
into consideration. But the present JJA, 2015 only gives importance to type of crime rather
than the psychological aspect of committing the crime.

 Article 20(1)-of the Constitution states that a person cannot be subjected to a penalty greater
than what would have been applicable to him, under a law in force at the time of commission
of the offence. According to JJA, 2015, if a juvenile who has completed the age of twenty-
one and has still his period of sentence to serve, then the juvenile may be sent to jail to
complete the remaining period of sentence based on the evaluation and assessment reports of
the juveniles submitted to the Children’s Court. This provision of the Act ignores the very
nature of Article 20 (1) of the constitution as it sends the juvenile to adult prison where he
will be treated as an adult and this may lead to recidivism.

OVERALL EFFECT

Since the age of sixteen to eighteen years is considered to be a very sensitive and critical period
for the overall development of a child, therefore, the child needs to be protected and should be
prevented from learning bad ideas and behaviour. He/she should rather be trained and taught
how to live a crime free life. But, when a child who has already committed a crime is further put
in such an environment where there is greater chances of deterioration of their morality and
learning further criminal behaviour, the child will easily turn into a criminal and will continue
committing further offences. Taking USA as an example- There are evidences of failures of this
transfer system (children in conflict with law to be sent to adult prison on reaching eighteen
years) in US.

 CONSIDERING THE LEVEL OF MATURITY OF JUVENILES

It is very difficult to explain whether the juvenile understands the consequence of his action and
whether the juvenile had that much mental and physical capacity to commit such serious/heinous
crimes. During the adolescence phase children are more influenced by their peers; do not focus
much on the outcomes; are more risk takers than adults and risks and benefit of an act is

6
evaluated very differently.8 Therefore, people in this age group are at risk of getting involved
with negative influences, underestimate the risk involved and lack far-farsightedness.

 OPINION OF HON’BLE COURTS OF INDIA

1. In Rajinder Chandra v. State of Chhattisgarh and Another,9 the Supreme Court held that
the courts should detest from applying the ‘hyper-technical approach’ while reviewing
evidence submitted in favour of a claim of juvenility. It further held that if there are two
views regarding the age of the juvenile, the courts should favour the view that holds the
person as the child.

3. The Supreme court in Salil Bali v. Union of India and Another10 and Dr. Subramaniam
11
Swamy and Ors v. Raju, Through Member, Juvenile Justice Board and Another while
deciding the vires of the Juvenile Justice Act 2000 held that increase in the age of a child
from 16 to 18 years by the Act of 2000 was the decision of the Indian Parliament which was
in accordance with the international child law and that cannot be tinkered by the judiciary.

4. The Supreme Court took a U-turn as far as the above-mentioned welfare-orientation is

12
concerned. In Om Prakash v. State of Rajasthan and Another the court has given more
emphasis to the ‘confidence of the pubic in the institutions of the justice administration’ and
putting to wind the objective of the Juvenile Justice Act i.e., ‘welfare and best interests of the
child.’
13
5. Recently in case of Parag Bharti(Juvenile) v. State of Uttar Pradesh, the Supreme Court
observed: “The benefit of the principle of benevolent legislation attached to the J. J. Act
would thus apply to only such cases wherein the accused is held to be a juvenile on the basis
of a least prima facie evidence regarding his minority as the benefit of the possibilities of two
views in regard to the age of the alleged accused who is involved in grave and serious
offence which he committed and gave effect to it in a well planned manner reflecting his

8
Scott, E. S., & Steinberg, L. (2008). Adolescent development and the regulation of youth crime. The Future of
Children, 18(2), 15–33. https://doi.org/10.1353/foc.0.0011
9
Rajinder Chandra v. State of Chhattisgarh and Another, (2002) 2 SCC 287.
10
Salil Bali v. Union of India and Another, Writ Petition (C) No. 10 of 2013 (Decided on July 17, 2013).
11
Dr. Subramaniam Swamy and Ors v. Raju, Through Member, Juvenile Justice Board and Another, Special Leave
Petition (Crl.) No. 1953 of 2013 (Decided on August 22, 2013).
12
Om Prakash v. State of Rajasthan and Another, (2012) 5 SCC 201.
13
Parag Bharti(Juvenile) v. State of Uttar Pradesh, Criminal Appeal No. 486 of 2016 (Arising out of Special Leave
Petition (Crl.) No. 5839 of 2013) (Decided on May 12, 2016).

7
 maturity of mind rather than innocence indicating that his plea of juvenility is more in the
nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his
rescue”

This recent observation of the Supreme Court highlights that now the focus of state institutions is
more in direction of the crime-control rather than the due-process model of crime control and
they are more and more adopting the law and order approach to the juvenile offenders.

CONCLUSION

Adolescents can neither be considered as the children nor can they be considered within
definition of adult as all these categories have their own distinctive development needs and
wants. Adolescence is a period distinct from other life-periods in the life of the human being in
which very drastic changes occur in the physiology and sociopsychology. There occurs the
process of synaptic pruning14 and myelination15 in the brain which help in the biological maturity
as well as the psycho-social maturity of the individual. In light of the physiological and psycho-
social developmental paradigms as discussed above, it can be said with utmost certainty that the
adolescents are distinct from both children as well as adults and they need more protections and
care than other two categories as this is a phase during which a person is more prone to all sort of
delinquent or bad influences. Therefore, there is need to move away from the binary (child/adult)
to the triple or three-stage (pronged)(child/adolescent/adult) classification which takes care of the
needs and wants of each developmental stage of human being as this will help in proper
understanding of the problems and the needs of the adolescents which will be beneficial for
dealing with problem of juvenile delinquency.

So there is need to ‘think developmentally’ and consider the principle of Parens Patriae, i.e. The
state is clothed with the authority of the parent and nurture the child as a guardian. The care
which the state takes is in the form of education and other essential needs of the child. in order to

14
Synaptic Pruning occurs due to the decrease of the gray matter from the pre-fontal regions of the brain and thus
leading to the elimination of the unused connections between the neurons. These changes occur during the period
(early and middle adolescence) when there is development of the cognitive abilities and logical reasoning in the
adolescent person.
15
Myelination : there is increase of white matter in the pre-frontal cortex region of the brain during adolescence,
when nerve fibers become covered by the sheet of white fatty substance (myelin) helping and improving the brain
circuits. The improvement in the neural connections are important for regulating the high-order brain functions like
risks and rewards, planning something, making decisions, etc.

8
formulate the laws regarding the age of criminal responsibility which are in compliance with the
developmental story and the socio-economic realities.