Criminal Jurisprudence Challenging the Traditional Perspective on Juveniles in conflict with the Constitutional Guarantees.

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Author : shovonita
Published on : December 10, 2013

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Shovonita Acharya- Fifth Year B.A.LLB.Student, S.K.Acharya Institute of Law, Kalyani. West Bengal.

There can be no keener revelation of a society’s soul than the way in which it treats its children.”- Nelson Mandela.

A Child is a wet clay, one can mould them in any shape or in any forms. It is clay in a potter's hand. From the time immemorial, the concept of 'Age' has always been an unexplored topic in the theoretical aspect of a child in relation to his criminal responsibility. Recognizing the rightful place of a child from a need-based approach to a right-based approach was an apogee in the past years. Child-centric human rights jurisprudence has become one of the vital issues under the plethora of laws in the chauvinist society of today. In present times, there are alarming growths, impatience, intolerance and other negative vibes can be found in a child which needs a holistic development.

Historically, in India, children hold an integral position with their family and society as a whole. The main upbringing has always been the immediate family is it joint family or nuclear followed by the distant relatives if required[1]. But unfortunately, the present scenario is, totally bleak. The picture is topsy-turvy. India stands highest in regard to its largest population of children as compared to the entire world. Out of 450 million children who are below 18 years old[2], approximate 40 million children lead the most vulnerable life. There has been a significant change in law, policy and in welfare of child over the years. Before 1839, there was a traditional view that a father had the sole rights over his children which has finally paved way to the recent changes. It was only during twentieth century that the concept of child rights has emerged[3]. It was only post twentieth century that the traditional concept of criminal jurisprudence i.e. retribution, repression has given passage to retribution and reformative concept in juvenile justice system. Today a child is the sole master of his own developments that affects his life, and his decisions sometimes do lead him to his doom as being observed over the recent years. This is certainly true that the age of a child do protects him from a criminal trial. It is due to “the age” range that a child escapes from serious convictions. e.g.: In a recent involvement of a juvenile in the rape case of a 23 year old Delhi girl has created a hulaballoo in the entire nation compelling the state to revise and broaden the age range for fixing criminal responsibility for a juvenile in case of a serious offence .

The Constitution of India is considered to be the mother law or the grumnorm of the country which includes the fundamental rights and the directive principles for its citizens. It is from the Constitution that all other laws and acts flows. The Constitution encompasses most rights included in the United Nations Conventions on the Rights of the Child (CRC), 1989, as a fundamental rights and directive principles of state policy. It is significant to note that the Constitution mandates special protection of children through adoption of positive discrimination by making special provisions for them. The fundamental rights in the Constitution of India impose on the State the primary responsibility of ensuring that all the needs of the children are met and that their basic human rights are fully protected. In addition, the rights to equality, protection of life and personal liberty, and the right against exploitation enshrined in Articles 14, 15, 16, 17, and 21 of the Constitution of India are fundamental rights applicable to all Indian citizens including children.

Residing in a country like India, the age debate takes an interesting perspective when juvenile crime is profiled. While apprehension of juvenile delinquents under Indian Penal Code (IPC) & Special Local Laws (SLL) within the 7-12 age group and 12-16 year age group respectively reported a drop in 2011 over 2001, 16-18 age groups registered an increase of 25.9 per cent in apprehension of juvenile delinquents under IPC &SLL in 2011 over 2001[4]. It is widely accepted that crime is committed disproportionately by young people. Persons aged 15 to 19 years are more likely to be processed by police for the commission of a crime than are members of any other population group. In 2007–08, the offending rate for persons aged 15 to 19 years was four times the rate for offenders aged more than 19 years (6,387 and 1,818 per 100,000 respectively; AIC 2010). Offender rates have been consistently highest among persons aged 15 to 19 years and lowest among those aged 25 years and over[5]. Therefore, it is a high time that the age of criminal responsibility of a juvenile or a child must be taken seriously now.

Who Is A Child Under Indian Law?
The concept of child rights begins with the meaning and definition of child which itself is ambiguous under Indian Law. Biologically, a child or a childhood is the span of life from birth to teenage years. According to Article 1 of UNCRC (United Nation’s Convention on the Rights of the Child), “A child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.[6]” The definition of the child as given by the U.N.C.R.C has definite bearing not only on child development programmes and on budgetary provisions for them, but also on production of statistics as applicable to different cross sections of children in terms of reference ages. In India, there are several legislations which introduce definition of a child which may differ from one with another. Minimum age range has been defined by different laws related to the protection of child rights and its development in India. Though legislations has been enacted making 18 years the age of majority, but the upper limit of a child remains at 21 years partly due to retrospective effect and partly due to present necessities.[7]

According to, Indian 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.[8]

According to Indian Penal Code, 1860,the age limit for criminal responsibility lies within 7 to 12 years. For the purpose of protection of a child from kidnapping, abduction and such other related offence, the age limit has been raised at 16 years for the boys and 18years in case of a girl. On defining 'RAPE', Section 375 of I.P.C exempts a person from the charges of rape if he has forceful sexual intercourse with his wife, (which is a marital rape) who is above 15 years.

But, however, post 16th December, 2012 gang-rape case of a Delhi girl, there has been certain amendments under the penal provisions. Based on the Verma Committee Report, the ordinance was replaced by a bill with the numerous changes. This new Act, has expressly introduces certain new offences to be dealt under related laws. These new offences include Acid Attack, Sexual Harassment, Stalking, and Voyeurism which has enacted and incorporated under the Indian Penal Code.

Under Immortal Traffic Act (Prevention) Act, 1986, a “Child” means a person who has not completed the age of 16 years and a “Minor” means one who has completed the age of 16years but hasn't completed the age of 18years. During 2006-2011, the trend in human trafficking cases reported under the heads of ‘Procuration of Minor Girls, Importation of girls, Selling of girls for prostitution, Buying of girls for prostitution under Immoral Traffic (Prevention) Act’, shows an overall declining trend, with year to year variation. From nearly 5000 cases in 2006, it declined over the years, touching the lowest in 2009 (2848 cases) increased to 3422 cases in 2010, and 3517 cases in 2011 [9]

For the special care of minors under Juvenile Justice (Care and Protection of Children) Act, 2000, the age limit for both girls and boys is 18 years. The word “juvenile” originates from 'juvenis' which means, young. Therefore, Juvenile Justice System is a legal structure that aims to protect the children i.e. the juvenile delinquents from the atrocious world. The ripple effect of criminal justice system has had always been manifested by tussle between the protective laws of the juveniles and the traditional laws. In spite of Constitutional Guarantees and plethora of State Legislative Laws, this tug of war has been continuing till today.

Constitutional Guarantees & Role Of State Regarding Age Of Criminal Responsibility:
After Independence, the constitutional provisions have inspired the developments in the field of juvenile justice. Part III and Part IV which deals with Fundamental Rights and Directive Principles of state Policy respectively contain some of special provisions with respect to children. The judiciary in India has played undoubtedly a very important role and has passed many significant judgments in favor of child rights. In Sheela Barse v Union of India [10], The Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offence could lodged, pending investigation and trial will be expedited by juvenile courts.

In Sheela Barse v. Secretary[11] , children Aid Society,the Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials and the proper provision of care and protection of children in observation Homes. Prior to the nationally agreed definition and laws in India, the exact population of children in India remained in a question of speculations and conjectures. Juvenile Justice (Care and Protection) Act, 2000 was enacted to care, protect, develop, and to rehabilitate the juveniles especially those in conflict with law. But looking into the present traumatized society, only one thing that arose is something better was expected.

Our supreme court states that reducing the age of juveniles may be a violation of our prestigious constitution. But constitution functions for our betterment. So, how can right justice turn out to be a violation? Society has always been created by man himself. The main idea behind the enactment of juvenile legislation was “welfare”, and then the society also has an important role to play in matters regarding juveniles. The important sections of the society to provide help can be, the lawyers, policemen, media and other social workers including NGOs. The lawyers can extend a lot of help to the juveniles by providing free legal help and assistance to them. There are many juvenile offenders, who have to suffer a lot only because they cannot afford some lawyers to defend them. Providing free legal aid to them can lessen their sufferings Media, also being a double edged tool, can play an important role. Instead of displaying violence and crime; what can be done is that, they can show the violence or the crime scenes, giving the message how bad it is and what happens to the wrong doers.

In view of the significant increase in rapes committed by juveniles since the passage of the JJ Act, it has become necessary to create a legal deterrent to protect women and girls. India must amend the act to bring down the age bar for juveniles to 16 and transfer heinous crimes such as murder and rape committed by them to the adult criminal system. India today needs children who can grow up to be responsible citizens of tomorrow.

Contradictions on The Age of Criminal Responsibility of A Juvenile:
A child is a part of the society in which he/she resides. His immaturity motivates his actions whatever he sees around. It is due to the environment and social context that provokes him[12]. Trying juveniles as adults has always been a controversial topic to the public. It is a strong issue to follow though considering that there are numerous arguments to put forth on both sides. Both sides will be highlighted so that a clear picture in regards to age of criminal responsibility of a child. Though, before getting into the dispute, we need to understand certain matters. Juveniles are children who fall under the age of 18.

Although in some States in the USA, the legal age varies. Yet, some juveniles are tried as adults despite their under-age. The present Juvenile Justice Act has been formed after a lot of discussions and arguments. Giving regard to the said act, the question that remains back, Will lowering of age solves our problem in of heinous crime prevention anyway? Will convicting juveniles as adults, turn out to be a better solution and create a deterrent to stop crime? Ascertaining the age is a crucial role since it ensures that a juvenile enjoys the protection he is entitled to under law. The best proof of age is the Birth Certificate or School Leaving Certificate which is normally produced by the accused in the Court or to the Police to verify its veracity.

In a pioneering country like India, age of majority has been determined at 18 years as has been discussed earlier. Our laws entrust legal responsibilities to a person above this age, be it right to caste vote, right to get married and even right to livelihood. Below this age, law entrusts rights of the minors to their parents or to their legal guardian. It is a paradox to see that the under age bear their criminal responsibility while their control lies to their parents or to their guardians. Then don't you think that when a minor or an under age or a juvenile bears their criminal responsibilities for any heinous crimes, the adults or the state must own the responsibility as well? In the debate of fixing criminal responsibilities for a minor, he is always treated as an autonomous entity while law guarantees adult control over them, which is seriously paradoxical. Now moving on to the Pros and Cons of Age of Criminal Responsibility of a Child in India.

Raising the age of criminal responsibility: Doli Incapax
The definition of a child also to some extent depends upon how the court deals with these offenders. “Children need love, especially when they do not deserve it.” – Harold S Hulbert, child psychiatrist. Concept of age is a very crucial matter here, if a person is a minor or a child, he cannot be trialed in the same manner as that of an adult since at the time of the commission of the crime, the child was not capable of understanding the degree of such offence nor did he understood the consequences of his actions and had no mens rea and was doli-incapax i.e. incapable of understanding the right from the wrong. Thus it is necessary for the law to lay down a minimum age by which a person will be exempted from the prosecution.

It can be further argued that a crime is a crime, no matter what the age is. Only because a child commits a crime it does not mean that the victim didn't suffer. It is believed that the juvenile court has been established with the age factor in mind rather than focusing on the crime factor. In addition to the agreement that juveniles should be tried as adults is that it will not only make them understand the consequences of their action, but also deter them from committing any further crimes and become fully aware that they are not given any special consideration because of their age factor. It is also argued by trying juveniles as adults it will lower the crime rate in society and make it a safer place to live in. When there are harsh punishments on juveniles who commit crimes, others will learn from their mistakes and will deter them from committing crimes.

Another argument made by this side is that if an individual infringes upon somebody’s "Life liberty and the pursuit of happiness" then they should be tried as an adult regardless of age. In addition, it is the responsibility of society to treat all offenders equally without exemption. Furthermore, the juvenile justice system is a slap on the wrist compared to the adult justice system. The Indian Penal Code made in 1860, believed that a person of 12 years and one minute old had sufficient maturity to understand the consequences of his actions and hence should be tried in the ordinary court of law. When a 12 year old of 1860 era was mature enough to understand the consequences of his acts, then a 12 year old of today who is exposed to so much of information and worldly affairs surely has at least similar if not more capabilities. Then on the paradigm of understanding and maturity, why a juvenile should be treated preferentially?[13]

Lowering the age of criminal responsibility:

“With lowering of age would we really get back the similar kind of situation or look seriously into improving administration of the present Juvenile Justice system?” Despite the unprecedented street protests following the Nirbhaya rape, there has been little substantive debate on the adequacy of the JJ Act to deal with heinous crimes. The Act was passed in 2000 to meet India’s obligations as a signatory of the UN Convention on the Rights of the Child. However, the protection of juveniles has to be balanced with the interest of protecting vulnerable members of society from heinous crimes committed by persons under 18. India’s crime figures show a massive spurt in instances of rape by juveniles. Juveniles should not be tried as adults. The juvenile courts are necessary because children cannot be tried in the same manner as adults. On most occasions, you'll find that the kids who have committed a crime are very young. It is understood and proven that at an early age, it is impossible for children to have the mental ability like that of a normal adult, to plan and execute a crime and moreover to understand the consequences of it. So all in all, it is due to this yet to develop the thought processes of an adult that demands us to treat them differently. It’s also argued that it is only after their adolescent years that a child becomes mature and begins to understand important concepts like society and expectations. During adolescence years children are still trying to deal with society, their own inner battles of peer pressure, lack of direction, impulsiveness and lack of identity. At such a time, when they have no responsibilities, and maturity it is not expected of them to understand the consequences. Therefore, it is considered unjust to convict them in the manner as adults. On this occasion, psychologically speaking, it is said that the problem lies with the parents and not the child. Which means it is the duty of the parents to teach their kids values, morals and responsibilities.

Suggestion And Conclusion:
Ever since the dawn of human civilization, crime has always been one of the crucial problem ever existing. Hardly any society can think without besetting the problem because we human beings are blessed with nature of animal instinct. Therefore to think about a crimeless society is a mere myth[14]. Today the society is approaching the closing ends of welfare approach towards children and is entering the era of rights approach. Asha Bajpai writes, “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 achievements of right based approach will depend on sincere performance of corresponding duty performed by the other stake holders in the society. It has been specially introduced in the Indian Constitution under Art 51 A (k). Upbringing of a child into a healthy adult with regard for social values is indisputably dependent upon the performance of this duty by the parents or guardians. They should try to groom their children in such fashion that they do not pick up any trait or habit which may bring the juvenile into conflict with law situation......” Lastly I would conclude with this thought that, “We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of things we need can wait, the child cannot, right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him, we cannot answer ‘tomorrow’. His name is ‘today’.[15]
1) Pramila Pandit Barooah, Handbook on Child (With Historical Background) (New Delhi: Concept Publishing Company, 1999) at Pg. 16.
2) See, Statistics on India published by the UNICEF, online .
3) The Legislative and Institutional Framework for Protection of Children in India pdf, online:
4) See, “Is defining a ‘minor’ a ‘major’ issue in India”? Online:
5) Trends and Issues in Crime and Criminal Justice by Australian Government (Australian Institute of Criminology) . No. 409 February 2011.
6) UNCRC (United Nation’s Convention on the Rights of the Child),adopted by the UN General Assembly in 1990, is the widely accepted UN instrument ratified by most of the developed as well as developing countries, including India. The convention provides standards to be adhered to by all State Parties in securing the best interest of the child and outlines the fundamental rights of children.
7) Child and Law, Indian Council for Child Welfare, Chennai, Tamil Nadu, India, 1998, page 210.
8) Institutional and Legislative Frameworks of Children in India by Prof. Asha Bajpai (2010)
9) CHILDREN IN INDIA 2012 - A Statistical Appraisal. By: Social Statistics Division Central Statistics Office Ministry of statistics and Programme Implementation. Government of India.
10) AIR1986SC1733Bartol, Curt r. &Bartol, Anne m. (1989): juvenile delinquency-a system approach, Eaglewoodcliff, New Jersey, prentice hall-inc., 117-149.
11) AIR1987 SC656 .
12) Child Protection and Juvenile Justice System for Juvenile in conflict with Law pdf. By Ms. Maharukh Adenwalla.
13) See, Legal Article : GRAVITY OF CRIME VERSUS AGE. Juvenile Justice Act needs a Review? By: Ansh Singh Luthra. On March 2013 online:
14) Juvenile Delinquency and India. Online:
15) Gabriela Mistral, Nobel Prize winning poet from Chile.

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges