“Responsibility comes with age and social responsibility comes with tender age”
In the context of Age of Criminal Responsibility in India there were two contrasting senses of criminal responsibility. The first sense concerned the capacity of a person to engage in criminal conduct. The second related to the process whereby a person was held answerable for such conduct. The distinction between responsibility as capacity and as answerability was important for the more pragmatic outcomes.
Today, nearly all cultures share the view that the younger the child the more vulnerable she/he is physically and psychologically and less able to fend for herself/himself. Age limits are a formal reflection of society’s judgement about the evolution of children’s capacities and responsibilities. Almost everywhere, age limits formally regulate children’s activities: when they can leave school; when they can marry; when they can vote; when they can be treated as adults by the criminal justice system; when they can join the armed forces; and when they can work. But age limits differ from activity to activity, and from country to country
The traditional Indian view of welfare is based on daya, dana, dakshina, bhiksha, ahimsa, samya-bhava, swadharma and tyaga, the essence of which were self-discipline, self-sacrifice and consideration for others. It was believed that the wellbeing of children depended on these values. Children were recipients of welfare measures.
It was only during the 20th century that the concept of children’s rights emerged. This shift in focus from the ‘welfare’ to the ‘rights’ approach is significant. Rights are entitlements. They also imply obligations and goals. The rights approach is primarily concerned with issues of social justice, non-discrimination, equity and empowerment. The rights perspective is embodied in the United Nations Convention on the Rights of the Child (CRC), 1989, which is a landmark in international human rights legislation. India ratified the Convention on the Rights of the Child in December 1992.
According to Article 1 of the CRC, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”. The Article thus grants individual countries the discretion to determine by law whether childhood ceases at 12, 14, 16 or whatever age is found appropriate.
Finding an appropriate Age of Criminal Responsibility:
What sources can assist us in finding an appropriate age of criminal responsibility?
The first is other age limits set by domestic law. Two ages emerge from domestic law as being significant. Twelve years old is when a child is presumed to be capable of forming views which parents, courts and others must take into account in the light of the child’s age and maturity. Sixteen years is the age at which a child moves from substantial civil incapacity to full capacity, subject to safety net protection It is doubtful that setting the age of criminal responsibility at 16 would be politically acceptable; thus 12 years old suggests itself as a more feasible possibility.
A second possible source for the age of criminal responsibility is the ages set by other legal systems.
Minimum Age of Criminal Responsibility:
The legal definition of a child also affects how the courts deal with offenders. The age is very significant here, as a person who is a minor or a child cannot be tried and convicted in the same manner as an adult as at the time of commission of the offence, the child was not capable of understanding the consequences of his/her actions and had no mens rea and was a doli incapax — that is, not understanding the right from the wrong. Article 40 (3) (a) of the CRC requires State Parties to promote the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. The age of criminal responsibility in India is 7 years. Hence, a child below the age of 7 years cannot be considered a child in conflict with law. Nothing is an offence done by children between 7 and 12 years of age who have not attained sufficient maturity of understanding to judge the nature and consequences of their conduct on that occasion and did not know that what they were doing was wrong. If there is a legislation dealing with the criminal liability of minors, the benefit of this legislation must be accorded to an accused who is a minor, and such accused should not be tried under the ordinary law for adults. Children have to be dealt with under the juvenile justice system and not the adult criminal justice system. Children can never be given imprisonment or death sentence.
In view of Article 15(3), which enables the State to make special provisions for women and children, the equality of women and children is firmly enshrined in Article 14 as well as Article 15(1) of the Constitution. It is also necessary to note that Article 21 applies equally to women. Article 21A, which guarantees the right to education applies to ‘all children’ irrespective of gender. Article 23 prohibits traffic in human beings and forced labour. Article 24 protects children and enjoins that no child below the age of 14 years will be employed to work in any factory or mine or hazardous employment
In fact, the provision of Article 15(3) of the Constitution, being an enabling provision, is a clear indication of the obligation of the State to adopt and strictly enforce preferential measures in relation to matters affecting women and children.
Various Legislations on Minimum Age:
The word ‘child’ in Indian laws has been used in various legislations as a term denoting relationship; as a term indicating capacity; and as a term of special protection. Underlying these alternative specifications are very different concepts about the child.
- For purposes of criminal responsibility, the age limit is 7 and 12 years under the Indian Penal Code, 1860.
- For purposes of protection against kidnapping, abduction and related offences, the age limit has been fixed at 16 years in the case of boys and 18 years in the case of girls. However, the Indian Penal Code, while defining rape, in Section 375, exempts a person from the charge of rape if he has forcible sexual intercourse with his wife, who is above 15 years of age.
- Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed 16 years of age and a minor means a person who has completed 16 years of age but not completed 18 years.
- Under the Child Labour Prohibition and Regulation Act, 1986, a child means a person who has not completed his fourteenth year of age, but below the age of 14, s/he can work in non-hazardous industries. An area of concern is that no minimum age has been specified for child labour.
- For purposes of special treatment under the Juvenile Justice (Care and Protection of Children) Act, 2000, the age limit is 18 years for both boys and girls The Protection of Women from Domestic Violence Act, 2005 defines a child as any person below the age of 18 years and includes any adopted step- or foster child.
- Under the Plantation Labour Act, 1951, a child means a person who has not completed his fourteenth year of age, while an adolescent means a person who has completed his fourteenth year of age but has not completed his eighteenth year of age.
- Under the Merchant Shipping Act, 1951, no person under 15 years of age shall be engaged or allowed to work in any capacity in any ship, except in a school ship, or training ship, in accordance with the prescribed conditions; or in a ship in which all persons employed are members of one family; or in a home trade ship of less than 200 tonnes gross; or where such person is to be employed on nominal wages and will be in the charge of his father or other adult near male relative.
- Under the Age of Majority Act 1875, every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before that. The Indian Majority Act, 1875, was enacted in order to bring about uniformity in the applicability of laws to persons of different religions. Unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age. However, in the case of a minor for whose person or property, or both, a guardian has been or appointed or declared by any court of justice before the age of 18 years and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, before the minor has attained that age, of majority will be 21 years and not 18 years.
- The Hindu Minority and Guardianship Act (HMGA), 1956 in Sec. 4(a) defines a ‘minor’ as a person who has not completed the age of 18 years. The age of majority for the purposes of appointment of guardians of person and property of minors, according to the Dissolution Muslim Marriages Act, 1939, is also the completion of 18 years.
Article 40 (3) (a) of the UN Convention requires states parties “to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children as, accused of, or recognising as having infringed the penal law, and, in particular:
(a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”
According to S Detrick – “States Parties recognize the right of children who are accused or recognized as being in conflict with the penal law not to be considered criminally responsible before reaching a specific age according to national law, and not to be incarcerated. The age of criminal responsibility shall not be fixed at too low an age level, bearing in mind the facts and circumstances of emotional, mental and intellectual maturity and stage of growth”. The United Nations Convention on the Rights of the Child. A Guide to the Travaux Preparatoires (Martinus Nijhoff, 1992), pp 492-493; emphasis added).
The European Court of Human Rights found the lack of European consensus on an age for criminal responsibility to be central to its determination that an age of 10 did not amount to “cruel and unusual treatment or punishment”, under art 3 of the European Convention. In the case of T v United Kingdom, V v United Kingdom, (1999) 30 EHRR 121), there is clear evidence that a number of other European countries do set the age of criminal responsibility considerably higher than eight, with many countries opting for 14, 15 or 16 years old.
Related concerns :
The age of criminal responsibility is, however, only one of many issues to be considered. What, if anything, should be done in respect of a child below the age of criminal responsibility who is alleged to have done something which would have been criminal, were he or she older? The commission proposes that it should be competent to refer such a child to a children’s hearing. What standard of proof would apply, in establishing the proposed new ground of referral, is not clear. Would it be proof beyond reasonable doubt, since the allegations would be of at least quasi- criminal conduct, or would proof be on the balance of probabilities? Certainly, the latter approach has been taken in respect of that other thorny problem in juvenile justice, “status offences” (i e conduct of which only children can be “guilty”, there being no adult equivalent.
Children in the juvenile justice system :
Children come into contact with the juvenile justice system as offenders or as victims. The Juvenile Justice (Care and Protection of Children) Act, 2000 and amended in 2006, deals with two categories of children—‘juvenile in conflict with the law’ which says- a person who is alleged to have committed an offence under the law of the country and who is below 18 years of age on the date when the offence was committed and ‘child in need of care and protection’. Its objective is to provide for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the matters and in the best interest of children and for their ultimate rehabilitation. The Juvenile Justice (Care and Protection of Children) Act (JJA), 2000, is a legislation that conforms to the CRC and the United Nations Minimum Standards for Administration of Justice to Children (Beijing Rules). The CRC has laid down the basic principles of decision-making to promote the best interests of children, and all decisions relating to children need to be guided by this consideration. The Beijing Rules direct that institutions should be used only as a last resort and only after community measures are not available for children. As the JJA, 2000 was specifically made to implement India’s obligations under these and other international instruments, it is incumbent upon the authorities implementing this legislation to ensure the protection and promotion of the principles embodied in the JJA, 2000. The Act also provides that no report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with the law or a child in need of care and protection under this Act shall disclose the name and address of the school or any other particulars calculated to lead to the identification of the juvenile or child, nor shall any picture of any such juvenile or child be published. The authority holding the inquiry may permit such disclosure, in exceptional cases, if in its opinion such disclosure is in the interest of the juvenile or the child. In spite of these specific provisions, many well-known publications even today, reveal the identity of the child In this Act, ‘juvenile’ or ‘child’ means a person who has not completed the eighteenth year of age, mainly to bring juvenile legislation in conformity with the CRC. Both boys and girls below the age of 18 years enjoy the protection of juvenile legislation.
Age determination of Child in Conflict with Law :
Age determination of the children in conflict with the law is a very complex issue. The largest number of cases that come before the High Courts and the Supreme Court under this legislation and its predecessors pertain to the determination of age. In the absence of a birth certificate, a child may easily be excluded from the operation of the JJA and denied its care and protection. Ameena, the minor girl from Hyderabad married to a 60-year-old Arab, rescued by air hostess Amrita Ahluwalia, remained in the observation home in Delhi for over seven months before being sent back to Hyderabad. But her age was never properly determined and different courts kept referring to her as 10, 11 or 12 years old. In the case of Ramdeo Chauhan,  5 SCC 714 the Supreme Court refused to determine the age of the accused on the basis of entries in the school register or medical evidence, both of which indicated him to be a child on the date of the offence, and confirmed the death penalty for the offence of murder even though one judge expressed a doubt as to whether the boy waa child on the date of commission of offence. The governor later commuted his sentence to life imprisonment on the recommendation of the National Human Rights Commission. There have also been some recent judgments on this issue. The Supreme Court has held that as regards the point of proof of age, the school-leaving certificate is the best evidence and that as far as the medical certificate is concerned, the same is based on an estimate and the possibility of error cannot be ruled out. However, the date of birth in the Secondary School Certificate is not to be taken to be correct unless corroborated by the parents of the child who have got the same entries made.
JUSTICE VERMA COMMITTEE REPORT:
According to Justice Verma, the committee has prepared its report mainly on the constitutional guarantee of equality for gender justice. Justice Verma report highlights on Juveniles. After the Delhi gang rape and the involvement of a juvenile countrywide debate started on reducing the age of juvenile. In response to this committee stated “that hard cases make bad laws” so one can’t make a law based on any particular case. Laws are made for uniform situations not for particular ones and present situation demand no reduction.. However it reported that age for consensual sex may be reduced from 18 years to 16 years.
PIL filed challenging the constitutionality of JJ Act provisions:
Advocates Sukumar and Kamal Kumar Pandey, petitioners in the case, submitted before the Bench that the benefits of age for juvenile offenders was completely “arbitrary and irrational” under the Act. The lawyers cited provisions under the Indian Penal Code of 1860 which offered some discretion to judges in determining criminal liability of children.The petition had contended that Sections 82 and 83 of the IPC represented a much better classification of children since these provisions took into account not just their age but also the nature of offences committed by them. “Children up to the age of seven years are totally exempted from any criminal liability and for older children, there is a judicial discretion to judge as to the maturity level of the child in respect to the offence committed,” it stated. The plea complained that the effect of the IPC provisions was negated by the Juvenile Justice Act and offenders up to the age of 18 were treated like those under seven years by the IPC. (Source : The Hindu Feb 5th , 2013)
Need of Patriarchy for Juveniles:
“The State cannot take away childhood, before it creates a protective environment for its children.”
As we form our opinions it may be prudent to consider a few facts. According to the National Crime Records Bureau, in 2012, only 1.2 per cent of all Indian Penal Code crimes were committed by juveniles. Only 4.2 per cent of all crimes committed by juveniles were rape — and only 3.5 per cent of all rapes were committed by juveniles.
Despite Article 39 of the Constitution directing that children should be given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity, and that childhood and youth be protected against exploitation, and moral and material abandonment, India’s children are subject to great violence. In a national study on child abuse in 2007, the Ministry of Women and Child Development found that two out of every three children had been physically abused and most children did not report the matter to anyone; 53.22 per cent of children reported having faced one or more forms of sexual abuse; 50 per cent of cases of abuse are by persons known to the child or in a position of trust and responsibility.
Juvenile homes have problems:
The systems to safeguard children in India are still severely lacking. It has been three years since the government enacted the Integrated Child Protection Scheme (ICPS), which aims to set in place child protection services in every district of the country. Preliminary feedback indicates that the scheme is hugely under-resourced, and already lagging in its implementation. An example of this is the shaky condition of juvenile justice homes (funded under the ICPS) whose primary task it is to work on reforming young minds. Most juvenile homes today are fraught with problems which include poor infrastructure, unskilled personnel, and a lack of specialised professionals like psychiatrists, psychologists, therapists and counsellors.
The threshold of 18 years, to determine if a person is a child or an adult, is not accidental. Children are considered incapable of suitably weighing situations and making decisions. Hence, many constitutional rights, such as voting, are withheld from children. A child cannot open a bank account in his own name nor is he given a licence to drive. If children are considered incapable of making informed decisions, by law, by the same logic it becomes necessary to take special measures for their protection.
Inference from the Survey:
We conducted a survey amongst school students between the age of 15- 17 so as to know their legal awareness and their maturity towards understanding of crime. Further the aim was to decipher an appropriate age for criminal responsibility. Our survey covered four schools in the district of Varanasi (U.P). Those four schools ministered educational requirement of different strata of society. As expected variations were found in the responses which has further created difficulties in deciding the appropriate age of criminal responsibility
Following were my observations:
- Around 65% of the students spend time on Internet surfing social networking sites
- Around 40% of the students Smoke as well as drink while 50 % of them do not know the legal age for smoking and drinking.
- Around 15% of the students generally read books having salacious matter and are thus presumed to know about sex and its consequences. Besides this around 20% of the students are impassionate about reading action Comics thus vulnerable to violence.
- Around 30% of the students have seen their friends indulged in shoplifting and falling in trouble with police
- 90% of the students have heard about Delhi Gang Rape case and feel agitated about the state of crime today.
- Some of them are of the view that 16 should be the age of criminal responsibility because they think they at 16 are mature enough to understand the consequences of their act or omission. Some of them felt inclined towards the age of 20.
- Around 50 % of the students have seen Domestic violence either in family or in neighbourhood. Those who have witnessed domestic violence are more aware of crime thus the correlation is very high.
We have come to the conclusion that offences committed by juveniles owe their origin to various economic and social factors thus they are the touchstone for determining the correct age.
Economic Factors :
Majority of the universe are getting considerable pocket money, driving four wheelers and moving around with a smart phone and accessories. We fail to see the fruition of all these hobbies getting fulfilled with considerable but limited pocket money. The temptation drives them of the way suggested by Law & Society. Ultimately they fall prey to ruffians (anti social elements) and become delinquent.
Social Factors :
Our universe comprises of those who are in their tender age. Their mind and soul are conscientized by the milieu under which they grow. Majority of the universe have seen violence around, police moving in and out of their vicinity and have easy access to arms. Law does not seem to be something they should be afraid of. Arms for entertainment are inculcating courage and a sense of impunity among them.
With their growing tendency towards violence and lowering respect for law, reducing the age for criminal responsibility will be a just move but an irony has struck my project and inference. During the survey I covered four schools stretching within a kilometre or two and I found variations in their responses, understanding and point of view. This happens to be the case in the same state, in the same district and in the same locality thus this does not warrant setting of any age for criminal responsibility at national level.
Let the fate of delinquent juveniles be decided by court of law as per the facts of the case.
Author: Subhav Bhatia [Law School BHU]