Infancy and Criminal Liability: In light of Juvenile Justice (Care and Protection) Act, 2015

The criminal liability of infants is defined in Section 82 & 83 of the Indian Penal Code. The sections mandate that the acts committed by child without attaining sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion should not be considered an offence. With the same premise as upheld by the drafters of IPC, the idea of juvenile justice came in. The provision of juvenile justice mandates for a separate enactment or act to deal with offences committed by those who have not attained maturity in most of the states the age for criminal culpability is set as 18 years. The age of criminal culpability in India was also 18 years until the Juvenile Justice Act, 2015 came into force. The said Act was legislated in the wake of the public unrest caused due to the Delhi Gang Rape Case of 2012.

The summary enactment leads to a relevant question that whether India being a signatory to the United Nations Child Rights Convention (UNCRC) stands in violation with what the Conventions says with the enactment of the Juvenile Justice Act, 2015 or not. Another aspect with regard to the implementation of the Act will be to see how such a large number of crimes under the heinous crime category would lead to trying of juveniles for very petty crimes about which they are not even aware due to their underprivileged backgrounds.[1] 

The idea of treating Juvenile Delinquents separately from the mainstream criminal justice system after the independence first appeared in the form of Children Act, 1960, according to which a “child” was a boy who has not attained the age of sixteen and a girl who has not attained the age of eighteen. The Children Act, 1960 was applicable only to the UTs. So, all the states had their separate jurisdiction over the matter thus leading to discrepancies occurring all over the country. Therefore, the Supreme Court signified the desire for a parliamentary legislation which would be applicable across the length & breadth of the nation, the only exception being that of J&K. This came to be known as the Juvenile Justice Act, 1986.

The age defining juveniles was similar to that of the Children Act,1986. Post this in 1992 India became a signatory to the United Nation Convention on the Rights of the Child, 1989 (‘CRC’). The CRC defined a child as “every human being below the age of eighteen”.[2] Later, India adopted this same definition in the Juvenile Justice Act, 2000 thus ending the bias between the genders. Further, in the light of the horrific gang rape of 2012 which led to the public outrage, the amendment in the Juvenile Justice Act, 2000 was brought. Sadly, the suggestions of the Justice J.S Verma were not heeded to which called for stricter implementation of the existing law and rejected the idea of lowering the age of criminal liability in the Juvenile Justice System. The government still did not concede to the Verma Committee’s recommendations & lowered the age of criminal liability with the objective of deterrence and also protecting the rights of the victim. The Act further mandated the transfer of the cases from the Juvenile Justice Boards (JJBs) to the courts for trying these children between the age of 16 to 18 as adults if the JJBs feel that they have attained enough maturity to be tried as adults. The sudden deviation of the Juvenile Justice Act, 2015 from the rehabilitative & liberal ideals set up and endorsed by the Juvenile Justice Act, 2000 is something that is totally shocking about the Amendment.

The Art.1 of UNCRC says that children below the age of 18 have lower cognitive capabilities and decisional abilities. It further states that the children below the age of 18 are more amenable to reform & corrective actions. The aforementioned thus provides the justification for having a separate Juvenile Justice System notwithstanding the contentious issue of fixing the age for exemption from criminal liability which is different across countries ranging from 12-18 years.

As per scientific studies, on average, the cognitive & decision-making faculties of the mind are not fully developed in a human being until he/she attains the age of 18 years. Steinberg opined that neurobiological maturity is reached at different ages it maybe 15 for some people but at the same time, it maybe 22 for some people. To solve this paradox and to safeguard the rights of both the victim & the rights of the juvenile offenders the age of 18 was chosen as the minimum age for criminal liability in the UNCRC and also by a majority of the countries. The age of 18 is also known as the “presumptive age of majority”. The Juvenile Justice Act, 2000 was in consonance with the Art. 1 of UNCRC wherein the minimum age of criminal liability amongst men was raised to 18 years.  By lowering the age of criminal liability to 16 in heinous crimes by the Juvenile Justice Act, 2015 in itself contravening the Art. 1 of the UNCRC wherein the minimum age for criminal liability was fixed as 18.

The UNCRC Art. 2 mandates that “all state parties to abide by the principle of nondiscrimination and ensure that all children in conflict with the law are treated equally. It follows that the disadvantageous treatment of children based on their age and the nature of the offence they allegedly commit would constitute a violation of Article 2.” The clause in the Juvenile Justice Act, 2015 which mandates that the Juvenile Justice Board will decide whether the case comes under the heinous offence category or not or whether the JJBs think that case is deemed fit to be tried under a formal court or not itself is in clear contravention of the said Article.

Furthermore, the same Article mandates that all the Juvenile offenders should be treated equally irrespective of the nature of the crime they have committed but the Juvenile Justice Act separates those who have committed heinous offences from those who have committed offences which are not in the heinous offences’ category.[3] This categorization and demarcation are contravening the constitutional principles of equality which talks about equal protection of law to equals.

The UNCRC recommendation of abolishing Life imprisonment for those offenders under the age of eighteen is also violated grossly by the clause 22 of the Juvenile Justice Act,2015 wherein it was written “that life imprisonment with the possibility of release can be imposed on those above the age of 16. The clause of the Juvenile Justice Act, 2015 stands clearly in contravention with the normative ideals laid down in the international standards of the United Nation Child Rights Convention.

Another issue with the amendment is the issue of the categorization of offences under the Heinous Crime Category .‘Heinous Offence’ as defined in the Bill, is “any offence under IPC or any other law in force, for which the punishment is a minimum seven years of imprisonment.”[4] The consideration kept for deciding whether a crime is Heinous or not leads to inclusion of a large number of offences like robbery, dacoity, collecting arms, culpable homicide not amounting to murder, attempt to murder, abetting commitment of suicide, voluntary hurt for extorting property, grievous hurt by acid attack, kidnapping or obtaining the custody of minor, kidnapping or abducting to murder and many other provisions. The possession-based crimes under the NDPS Act will also come under the heinous offence category because of the punishment for such offences being more than seven years. The heinous offence category being so wide-ranging and the power of determination power whether the case to be transferred to the courts or not given to the JJBs puts the Juveniles from the underprivileged under a highly vulnerable position.

Another angle that should be kept in mind while looking into the implementation of the new Juvenile legislation is the level of education that most of the Juvenile delinquents have. The NCRB data shows that around 80% of the Juveniles in conflict with the law are not even matric pass. The data itself shows that those committing offences are not educated well and thus it can be concluded that reform and rehabilitation will be better ways of dealing with Juveniles rather than exposing them to the formal criminal justice system. The decision power of the JJBs as to whether the cases to be transferred to the courts or not further leads to the delegation of such an important decision regarding the lives of juveniles with a body which is overburdened is in itself is some form of injustice done to the Juveniles.

The socio-economic background while dealing with the Juveniles also needs a critical glance,. The grey area as to being tried in courts or not will always be detrimental to those from the deprived background because they would never be able to turn things in their favour and would be the ultimate sufferers for crimes for which they didn’t even have the sufficient intention. The socio-economic deprivation of most of the juveniles will lead to further perpetuate prejudice against those who are less privilege and would lead to a great deep divide in society. Thus, such large no. of offences under the category of heinous offences needs to be relooked at as it is leaving a detrimental effect on the Juveniles for even offences not so serious or about which they weren’t even aware.

The Indian Penal Code aims to protect the acts of infants from criminal liability. The reasoning behind conferring the protection is that the law never intends to punish those who lack the requisite mens rea for the commission of a crime. The Juvenile Justice Act, 2015 being in contravention with certain basic & fundamental principles of Constitution defeats the sole purpose of providing defence for the infancy under section 82 & section 83 to the juveniles.

In conclusion, as it is said – justice hurried is justice buried; and law-making is an essential component of the justice system. Stricter implementation on the old law would have better catered to the needs of the time rather than hurrying a new irregular law dealing with the criminal liability of infants.

[1]  Indian Express, 16 to 18: LS Passes Bill Redefining A Juvenile’s Age in Serious Crimes, May 8, 2015.

[2] United Nations Convention on the Rights of Child, Art. 1, U.N. Doc. A/RES/44/25 (September 2,1990)

[3]  United Nations Convention on the Rights of Child, Art. 1, U.N. Doc. A/RES/44/25 (September 2,1990)

[4]  The Juvenile Justice (Care and Protection of Children) Act, 2015


Aayush Saxena


Aayush Saxena is a second-year student pursuing BA LLB (Hons) from National Law University, Delhi. He possesses a keen interest in Criminal Law. During his spare time, he enjoys reading non-fiction.

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