CHILD AND CRIMINAL LIABILITY

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This article was written by Shrevina Bhosle, a student of  Government Law College, Mumbai.

Childhood is a concept that is subjected to constant revision in any era; this phrase has a rather notable significance in the current legal scenario after the Nirbhaya case in India.

Article 1 of the Convention on the Rights of the Child (CRC) defines a “child” as;

A person below the age of 18,  unless the laws of a particular country set the legal age for adulthood younger.

 The minimum age of liability is the age wherein a person is susceptible from any sort of criminal liability due to lack of adulthood and the judgement to understand the consequences of one’s own actions. In the milieu of the age of criminal liability in a country like India, there are two contradicting forms of criminal liability. Firstly, the capacity of a person to be involved in a criminal activity and secondly,  the procedure whether such a person is answerable in the Court.

In today’s world, every individual is of the view that younger children are impuissant not only physically but also psychologically in every aspect therefore there exists age limitation for activities’ of children including marriage, age for joining the armed forces to when they can be treated as adults by the criminal justice. The Indian culture has an age limitation for children because they believe so that it is for the well-being of the children. To find a suitable age for criminal liability is a difficult task in a country like India as there are various age limitations set by people. Twelve years old is the age wherein a child is assumed to be in the capacity of forming views which parents as well as courts account it to a child’s maturity. Sixteen years old is the age where a child grows up to full capacity of his civil liability. This is the age limit set by the domestic law. Similarly, there exist age limit set by other legal systems.

MINIMUM AGE OF CRIMINAL LIABILTY

The age limit set by the legal system mainly decides on how Courts would deal with miscreants.

Section 82 of the Indian Penal Code states;

Nothing is an offence which is done by a child under seven years of age. The legal system states that a minor cannot be convicted nor be tried by a Court in the same manner for an offence or wrongdoing as an adult. Any wrongdoing committed by a child between the age group of 7 and 12 years old is not presumed to be an offence as the law states that a child in this age group is not in the capacity to understand the repercussions of his own actions since he has not attained the level of maturity at that age and the offence committed by him was not committed with mens rea.

Section 83 of the Indian Penal Code states;

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 Kakoo vs. The State of Himachal Pradesh, the accused Kakoo aged 13 years was convicted for committing rape on a child of two years and was sentenced to four years’ rigorous imprisonment. The act of the accused was so sinful and outrageous that he had virtually to be dragged away from the helpless baby victim, he put up a fierce struggle with the mother of the victim when she tried to secure him. However, his sentence was reduced to one year’s rigorous imprisonment and a fine of Rupees 2,000/- on the ground that a child offender is not to be treated in the same manner as a mature adult.

NIRBHAYA CASE IN INDIA

After the horrific incident in Delhi, where a young man aged 17 years old was involved in a gang rape in December 2012 shocked the world and it was a huge call for urgent action against violence towards women. The accused 17 year old was tried as a juvenile and was sent to a juvenile reformation home instead of being tried as an adult for such an outrageous crime. At the time of the crime, the accused was 17 and half years old and was only six months away from attaining the statutory age of majority. To prevent this happening again in the future an amendment was passed that in matters of atrocious crimes like murder and rape; 16 year olds would be tried and convicted as adults. It would be at the discretion of the Court to decide if 16 year olds would be tried as adults or juveniles in specific matters.

MISCELLANEOUS LEGISLATIONS FOR CRIMINAL LIABILITY

The word “child” has varied definitions in laws in India which state different meaning of the term child. Some of them are as following:

• Under the Indian Penal Code, 1890, the age limit is 7 years and 12 years for the purposes of criminal liability.
• The age limit is fixed as 16 years for boys and 18 years for girls respect for defences against kidnapping related offences under the Indian Penal Code, 1890.
• Under the Immoral Traffic (Prevention) Act, 1986, a child is defined as a person who has not yet completed 16 years of age and a minor is defined as a person who has completed 16 years of age but not completed 18 years.
• The age limit is 18 years for both boys and girls with respect to special treatment under the Juvenile Justice (Care and Protection of Children) Act, 2000.
• Under the Age of Majority Act 1875, every person resident of India shall attain the age of majority on his completing the age of 18 years and not before that.
• The Hindu Minority and Guardianship Act (HMGA), 1956 has defined a ‘minor’ as a person who has not completed the age of 18 years for the purposes of appointment of guardians of person and property of minors.

WORLDWIDE SCENARIO

The United Nations Convention states the parties to encourage the formation of laws, procedures and authorities especially applicable to children who have violated the penal law and particularly the formation of a minimum age under 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”.