Chanakya National Law University

CHANAKYA NATIONAL LAW UNIVERSITY

IPC PROJECT ON: INFANCY

ANVESH MALHOTRA ROLL:7531 2011-16 rd

3 Semester


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ACKNOWLEDGEMENT

I would like to take this opportunity to thank Father Peter for his invaluable support, guidance and advice. I would also like to thank my friends who have always been there to support me and last but not the least I would also like to thank the library staff for working long hours to facilitate us with required material going a long way in quenching our thirst for education.


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RESEARCH METHODOLOGY Aims and Objectives:

The aim of the project is to present a detailed study of “ INFANCY UNDER SECTIONS 82 & 83 of IPC ” through decisions, statutes, amendments, suggestions and different writings and articles. Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail. Sources of Data:

The following secondary sources of data have been used in the project1. Articles 2. Books 3. Websites

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:

The researcher has followed a uniform mode of citation throughout the course of this research paper.


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CONTENTS 1. 2. 3. 4.

ACKNOWLDEGEMENT……………………………………………………..2 RESEARCH METHODOLOGY……………………………………………..3 INTRODUCTION……………………………………………………………...5 INFANCY UNDER IPC……………………………………………………….7 a. Biosocial b. Cognitive c. Physiological 5. JUVENILE JUSTICE ACT: AN OVERVIEW ………………………………10 a. The Issue Of Age Determination 6. JUVENILE JUSTICE ACT, 2000…………………………………………… 13 7. DEFENSE OF INFANCY IN OTHER COUNTRIES ……………………… 15 8. JUVENILE JUSTICE ACT: AN ONGOING DEBATE …………………… 16 9. PROPOSAL FOR AMMENDMENT IN JUVENILE JSUTICE ACT …… 19 10. CONCLUSION……………………………………………………………… 20 11. BIBLIOGRAPHY…………………………………………………………… 21


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INTRODUCTION The general Principal On which infancy is based on is that a Child Can commit no wrong. To elaborate this principal we can say that “a child’s mind is not mature enough to Form a mensrea”.

Criminal Liability is what unlocks the logical structure of the Criminal Law. Each element of a crime that the prosecutor needs to prove (beyond a reasonable doubt) is a principle of criminal liability. There are some crimes that only involve a subset of all the principles of liability, and these are called "crimes of criminal conduct". Burglary, for example, is such a crime because all you need to prove beyond a reasonable doubt is an actusreus concurring with a mensrea. On the other hand, there are crimes that involve all the principles of liability, and these are called "true crimes". Homicide, for example, is such a crime because you need to prove actusreus, mensrea, concurrence, causation, and harm. The requirement that the prosecutor must prove each element of criminal liability beyond a reasonable doubt is called the "corpus delicti rule". There are five principles of liability in Criminal Law : Pri ncipl e of A ctus Reus Pri ncipl e of M ens Rea Pri nciple of Concur rence Pri ncipl e of Causation Pri nciple of Resul tin g Harm

A child can commit no wrong (i) if he is below 7 years of age as he is at such age presumed to be not endowed with a sufficient maturity of understanding to be able to distinguish right from wrong, or (ii) if he is above 7 and below 12 but too weak in intellect to judge what is right or wrong. Section 82 says nothing is an offence which is done by a child under seven years of age and Section 83 says 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 n ature and consequences of his conduct on that occasion.


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LAW OF EXEMPTION FROM CRIMINAL LIABILITY IN THE CASE OF MINORS

These two sections lay down a rule which owing to its origin in the civil law, had long since become established in the criminal systems of all civilized countries. In English Common Law, a child below seven years of age cannot be guilty of any criminal offence whatever may be evidence as to its possessing a guilty state of mind in the ordinary course of nature.

A person of such age is absolutely incapable of distinguishing between right and wrong. He is absolutely doli incapax. Indian law on this point is the same. If a child is accused of an offence under the Code, proof of the fact that he was at the time below 7 years of age is ipso facto an answer to the prosecution. The circumstances of a case may disclose such a degree of malice as to justify the maxim miltia supplet actatem (Malice supplied defect of years). The privilege of a child aged between 10 to 14, is absolute under English law, while it is qualified in India. According to the English law an infant between the age of ten and fourteen years is presumed to be doli incapax. But under this Code, if the accused is above seven years of age and under twelve, the incapacity to commit an offence only arises when the child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct and such non-attainment would have apparently, to be specially pleaded and pursued, like the incapacity of a person who at the time of doing an act charged as an offence, was alleged to have been of unsound mind whether really the child in question possesses sufficient maturity of understanding is a matter to be inferred by the Court from the facts and circumstances of the case. In England it is a presumption of law regarding the sexual offences that a boy below fourteen years cannot be guilty of rape. In India, however, the presumption of English law has no application and therefore boy of twelve years may be convicted of attempt to commit rape. A minor girl aged more than 12 years can be guilty of an offence so long as her case is not covered by Sections 82 and 83 of the Code. Any offence punishable under the Code including an offence punishable under Section 408 can be committed by a person more than 12 years of age. Criminal liability is quite distinct from civil liability. A person may be criminally liable even though he may not be civilly liable. While Infancy Under the IPC Gives Immunity from Criminal Liability to a child below 12 years old, Acts such as Juvenile Justice Act Also Ex ist to For the Age group of 12-18 Years Old. It will also be discussed in the later chapters. CHANAKYA NATIONAL LAW UNIVERSITY

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INFANCY UNDER IPC The Indian Penal Code (IPC) also has a list of offences against children. According to the sections 82 and 83 of the IPC a child who commits a crime and is below the age of seven is not considered to have committed a crime. A child who is between the ages of seven and twelve and is deemed to have immature understanding about the consequences of his/her actions is also considered incapable of committing a crime.

Section 82 in The Indian Penal Code, 1860

Act of a child under seven years of age.-- Nothing is an offence which is done by a child under seven years of age.

Section 83 in The Indian Penal Code, 1860

Act of a child above seven and under twelve of immature understanding.- 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.

Criminal intent is defined as the "intent to do something wrong or forbidden by law...the state of mind accompanying an act...the outline of the mental pattern which is necessary to do the 1 crime..." . Can a child commit a crime with criminal intent? The answer lies in biosocial, cognitive, and psychosocial growth factors. By law, in the India, a 1-7(Section 82) & 712(Section 83) year old cannot be held responsible for the commission of a criminal act, because they are not yet cognitively capable of acting with intent. There are biosocial, cognitive, and psychosocial reasoning that make it illogical to charge a child of such young age of acting with malicious intent. The biosocial factors include the inability of a child this age to control emotional impulses and injury controls; cognitively, children are unable to view the world outside their own perspectives; and psychosocial factors include emotional regulation a nd media influence. 1

USLEGAL, 2011 CHANAKYA NATIONAL LAW UNIVERSITY

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BIOSOCIAL

The brain of a child below 12 years old has not yet completely developed. Lateralization is still 2 in the early processes of connecting the right and left sides of the brain hemispheres . In practical terms, this means the right hemisphere responsible for reasoning, analyzing, and thinking logically and the left hemisphere responsible for emotions are not in clear, constant, and complete communication. A 12 year old child is unable to use analysis, logic, or reason to control emotional impulsiveness; for this reason, injury controls need to be in place to protect the child from himself. In the case of a crime involving guns primary prevention methods include federal laws (background checks and waiting periods); secondary prevention methods include parents keeping guns in a locked container with ammunition in a separate, secure area and child proof trigger locks on all guns; and tertiary prevention would include the removal of all guns and ammunitions from the home after a crime has occurred.

COGNITIVE

Children are unable to comprehend the difference between reality and what the child believes. Piaget described the thinking characteristics of children ages 2 -6 as centric: two of the four contraction characteristics specifically apply to intent and they are egocentrism and static reasoning. Six year olds are egocentric or self-centered, which means the child can only view the world from his own perspective, and the use of static reasoning means the child believes that the world remains the same as long as he is not watching. Vygotsky discovered that children are "apprentices in thinking" . In other words, 12 year olds are unable to think critically for themselves and will mimic the thoughts, actions, and speech of adults. PSYCHOSOCIAL

Twelve year olds are still in the process of learnin g to regulate emotions; violent outbursts, uncontrollable crying, and other emotional uncontrollable emotional outlets are not yet a thing of the past. Reactive, instrumental, and bullying agg ressions improve as emotional regulation improves. Media plays a significant role in psychosocial development states, "...when a cartoon animal or even a person explodes on the screen, they [children] are more likely to cheer than to cry". Exposure to violence through media outlets reduces the child's ability to feel empath y; additionally, emotional regulation is highly dependent upon parental responsiveness, and studies have shown parental responsiveness decreases as media time increases.

Multiple factors are at play in development that p revents a six year old child from being held accountable for his actions. Young children are unable to regulate emotion, control emotional 2

Berger, 2008 CHANAKYA NATIONAL LAW UNIVERSITY

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impulses, or view circumstances from another's perspective. Children 12 years of ag e are unable to develop intent based on biosocial, cognitive, and psychosocial aspects of the developing brain and mental processes, and cannot be held legally accountable for crimes they commit.


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JUVENILE JUSTICE: AN OVERVIEW The first legislation on juvenile justice in India came in 1850 with the Apprentice Act which required that children between the ages of 10-18 convicted in courts to be provided vocational training as part of their rehabilitation process. This act was transplanted by th e Reformatory Schools Act, 1897, the Indian Jail Committee and later the Children Act of 1960. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986. This Act was further amended in 2006 and 2011 and is now known as the Juvenile Justice (Care and Protection) Act, 2000. Recently State of Jammu and Kashmir has repealed its existing juvenile law of 1997 and has enacted Jammu & Kashmir ( Care and Protection of children) Act 2013. This legislation is very similar to India's national Juvenile law except that it does not contain any provision on adoption. Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of 2006)., states that: “Prohibition of publication of name, etc., of juvenile or child in need of care and protection involved in any proceeding under the Act-(1) No report in any newspaper, magazine, news-sheet or visual media of an y inquiry regarding a juvenile in conflict with law o r a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child shall nor shall any picture of any such juvenile or child shall be published: Provided that for any reason to be recorded in writing, the authority holding the inqu iry may permit such disclosure, if in its opinion such disclosure is in the interest of the juv enile or the child. (2) Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees”. While provisions relating to the Juveniles in conflict with law are ver y important from jurisprudence point of view, this Act becomes very crucial for Children in Need of Care and Protection, as they are very large in number. Section 29 of the Act provides constituting five members District (Administrative unit in India) level quasi-judicial body "Child Welfare Committee". One of the members is designated as C hairperson. At least one of the members shall be woman. The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the 'Children in Need of Care and Protection' as well as to provide for their basic ne eds and protection of human rights. 3

Hon'ble Supreme Court of India vide Judgement in Hari Ram Versus State of Rajasthan confirmed retrospective effect of Juvenile Justice Act, 2000 in year 2009, which was earlier confirmed by some of the High Courts in India, particularly by Bombay High Court. Pursuant to an order of Delhi High Court, Juvenile Justice Act was further amended in year 2011 whereby certain provisions which were discriminatory to the persons affected from leprosy hav e been deleted. 3

2009


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Ministry of Women and Child Development is contemplating bringing sev eral amendments in year 2012. A draft Bill in this regard has b een prepared and is pending before Ministry of Law and Justice for scrutiny. 2012 Delhi gang rape case had tremendous impact on public perception of Juvenile Justice Act. Media highlighted that the juvenile allegedly involved in this case was the "Most Brutal" of all accused persons and quoted police sources for this information however official sources deny such allegation. Eight Writ Petitions alleging Juvenile Justice Act and its several provisions to be unconstitutional were heard b y the Supreme Court of India in second week of July 2013 and were dismissed, holding Juvenile Justice Act to be constitutional. Demand for reduction of age of juvenile from 18 years to 16 years were also turned down by the Supreme Court, when Union of India stated that there is no proposal to reduce the age of a juvenile. Many experts and activists viewed Post December 2012 Delhi Gang Rape responses as creation of media sensationalization of the issue, and cau tioned against any regressive move to disturb the momentum of Juvenile Justice Legislation in the Country. THE ISSUE OF AGE DETERMINATION

Age determination has been a tricky and controversial issue in juvenile justice. A number o f cases have been decided by the courts in this regard. In the context of juvenile legislation in India, a juvenile is a person who has not completed eighteen years of age. Only children below seven to twelve years of age who are sufficiently mature to understand the repercussions if their act and children between twelve to eighteen years of age can be tried under Juvenile Justice Act as children below seven years of age have been granted blanket immunity, as mentioned above, by the Indian penal Code. The objective is not to treat such children as adults for their criminal behaviour but to reform and rehabilitate them. I call the issue of age determination controversial because there is no clarity on the point. Even in the case of Indian Penal Code, sections 82 and 83 talk about children below and above seven years of age but it is silent about seven year old children. Who is to determine the age bracket they fall in? Section 49 (1) of the Juvenile Justice Act, 2000 confers the power on competent authority to determine whether the person b rought before it is a juvenile, if he/she appears to be so. But the procedure to determine juvenility of a person cannot be relied on. The two ways to determine age of the accused are documentary evidence and medical evidence. In Jaya Mala v. Home Secretary, Government of J&K the apex court held that the age as ascertained by medical examination is not conclusive proof of age. It is mere opinion of the doctor and a margin of 2 years could be on either side. In another high profile case, Bhoop Ram v. State of UP, the court held that in case of conflict between documentary evidence and medical report, the documentary evidence will be considered to be correct. This leads one to the conclusion that all that it needs to establish and convince court that a criminal is a juvenile is documentary proof. Now documentary proof is one of the easiest things to obtain in our country whether it is to get a license one is legally not entitled to or for furnishing age proof in the court. In such a case, even if we were to turn to medical examination, which is held not to be hundred percent conclusive proof by even medicos. By the Allahabad High Court‟s own admission, a doctor is not always truthful. In Smt. Kamlesh and anr. v. State of UP, the court maintained that a professional witness is prone to side with a party that eng ages his/her services. Thus, a doctor is not alwa ys truthful. Now, if age cannot be determined CHANAKYA NATIONAL LAW UNIVERSITY

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conclusively by using either documentary evidence or medical evidence, what is to be done? The 4 apex court held that no fixed norm had been laid down by the Act for the age determination of a person and the plea of the juvenile must be judged strictly on its own merit. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. Apart from the conclusive determination of age, the question of the date when age has to be 5 taken into account has also been a matter of controversy. In another judgment it was held that it 6 is the date of the offence that has to be considered. Later it was overruled the judgment saying that the date of commission of offence is irrelevant and it is the date of bringing the accused in 7 the court that has to be taken into account. This was again corrected where the court held that “the reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.”

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Babloo Passi and anr. v. State of Jharkhand and anr Umesh Chandra v. State of Rajasthan 6 Arnit Das v State of Bihar 7 Pratap Singh v. State of Jharkhand 5


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JUVENILE JUSTICE ACT, 2000 The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. The Act provid es for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juv enile justice system. This law, brought in compliance of Child Rights Convention 1989, repealed the earlier Juvenile Justice Act of 198 6 after India signed and ratified Child Rights Convention 1989 in year 1992. This Act has been further amended in year 2006 and 2010. Government of India is once again contemplating bringing further amendments and a review committee has been constituted by Ministry of Women and Child Development which is reviewing the existing legislation. Recent 16 December 2012 Gang rape incident in Delhi has raised a popular demand for amending this law to allow harsher punishments to children involved in serious offences. JJ Act is considered to be an extremely progressive legislation and Model Rules 2007 have further added to the effectiveness of this welfare legislation. However the i mplementation is a very serious concern even in year 2013 and Supreme Court of India is constantly looking into the implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao Andolan Versus Union of India. In addition to Supreme Court , various High Courts in India, specifically Bombay High Court and Allahabad H igh Courts are also monitoring implementation of JJ Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System, Government of India launched Integrated Child Protection Scheme (ICPS) in year 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme. 8

A separate petition is also pending consideration before Supreme Court on implementation of Juvenile Justice Act, 1997 which is applicable in the State of Jammu & Kashmir. Based on a resolution passed in year 2006 and reiterated again in 2009 in the Conference of Chief Justices of India, several High Courts have constituted "Juvenile Justice Committees" which are monitoring committees headed by sitting Judges o f High Courts. These Committees supervise and monitor implementation of Juvenile Justice Act in their Jurisdiction and have been very effective in improving state of implementation. Juv enile Justice Committee of Delhi High Court is considered a model in this regard. When a police officer comes in contact with a juvenile he must place the child with the Special Juvenile Police Unit (SJPU) who must report the c hild to the board without delay. Bail is available to juveniles in all cases as long as the Board find the release of this child will not place him in any danger or in the influence of criminals. If the child is not released on bail he is only to be placed into the custody of an Observation Home. The SJPU are responsible for informing the

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Deepika Thusso Versus State of Jammu and Kashmir CHANAKYA NATIONAL LAW UNIVERSITY

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juvenile's parents of the arrest, as well as inform the Probation Officer who will make the necessary enquires about the child. The JJB must make an inquiry into the case and if they determine the child is guilty of the crime then they may release the child after advice and counselling. The child can be released either to his parents/guardians or into an institution, with or without a bond . The Board may also make the child pay a fine (if he is above fourteen and earns) or complete hours of community service. A social investigation report from the probation officer is required for the child to b e discharged. The probation officers may be required to continue a follow up of the child even after discharge. A child can not be charged with the death penalty, imprisonment which can extend to life imprisonment or committed to prison for inability to pay a fine or p roviding a security for the bond. Under this act juvenile cases can not be processed with non-juvenile cases. A juvenile can not be rendered unfit or 'disqualified". Juveniles are not ex posed to the media as magazines, news papers and visual media are not permitted to release the information about the juvenile. Juveniles who run away from the Observation or Special homes can be brought back without a warrant and without punishment. Cruelty (such as assault or neglect) towards juveniles in the home or by any person in charge of him/her is a punishable offence. This act also has provisions to penalize people who exploit children for a crime. A person, who employs a child in a hazardous industry, employs him/her for begging or provides a child with drugs or alcohol is liable to serve prison time and pay fines.


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DEFENSE OF INFANCY IN OTHER COUNTRIES ENGLAND AND WALES 9

Criminal responsibility is age 10 in England and Wales. This is when a child becomes criminally responsible for their actions and the consequences of their actions. From this age onwards, they can be prosecuted for any criminal offence in a Youth Court. In exceptional circumstances, most notably the case of the murder of James Bulger in Liverpool in 1993, children can be tried as an adult in an adult court. From the age of 10 onwards, individuals are then considered an adult in the eyes of the law. Therefore, all punishment given by the courts or other law enforcement agencies will rest solely upon them. DENMARK

Before July 1, 2010, a child had to be 15 years old to be charged with a crime. The maximum penalty regardless of the type of crime committed was 8 years imprisonment. After July 1, 2010, the age limit was lowered to 14 years. The limit of 8 years imprisonment was lifted. They cannot be sentenced to life without parole. On March 1, 2012 the age limit was raised back to 15 10 years. Children aged between 12 and 14 are not allowed legal defense, but can be ordered to wear an ankle monitor by the social services. UNITED STATES OF AMERICA

A Child below the Age of 6 years is immune from the Criminal Liability under an y 11 circumstances. In case a child is above 6 years but below 14 years of age, the parole limit for such child committing offence is lower than that o f any other Citizen who is not a juvenile.

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Crime And Disorder Act,1989 Section 34 U.N. unhappy at crime age proposal 11 US ISS , 2005 10


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JUVENILE JUSTICE: AN ONGOING DEBATE ON JUVENILE AGE 12

The brutal Delhi gang rape case has bought forth a new aspect of criminality that India‟s justice system needs to address urgently. One of the accused, as per police record and, according to reports, the most aggressive of the lot who brutalized the young girl, is a minor of 17 years. Reports have shown that it was the minor who first lured the unsuspecting victims into the bus an d that he was the most aggressive in the repeated rape of the victim. In India the sentencing and trial of juvenile offenders is mandated and governed by the Juvenile Justice Act 2000. Section 1(4) mandates that all cases involving detention, prosecution, penalty and sentence of imprisonment involving juveniles shall be governed by the Juvenile Justice Act. Section 2(l) defines a juvenile as any child who has not yet completed eighteen years of age. Section 15(1)(g) of the JJ Act further mandates that a juvenile convicted of any offence can be sentenced to be sent to a special home for a period of three years, maximum and thereafter be released on probation. What this boils down to is the fact that in case the accused happens to be a juvenile the maximum time that he shall serve is three years or 1095 days in a special rehabilitation home.

Before venturing into the merits and demerits of the Indian Juvenile Justice system it would be prudent to see how the Western world deals with juveniles accused of horrendous crimes. A somewhat similar, yet if possible more horrific situation arose in England in the now infamous James Bulger Case in 1993. The two accused and convicted of torturing and murdering a two year old child were both 10 years old at the time of the offence. They were tried as adults and convicted for life with a minimum sentence of eight years. Police personnel look on as a vehicle, which is believed to be carrying the accused in a gangrape and murder case, arrives at an entrance to Saket District Court in New Delhi. AFP In England, the age of criminal responsibility, is set at 10 years. This means that any individual above the age of 10 is considered fully aware of the difference between right and wrong. In case of a juvenile offender, he/she can either be tried as a juvenile or as an adult, depending 13 again on the heinousness of the crime. In case the offender is tried as an adult the Crown Court has in its discretion to award the maximum amount of punishment as would be awarded to an adult. 12

Nirbhaya Case(16 Dec’ 2012)

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the UK version of a criminal court CHANAKYA NATIONAL LAW UNIVERSITY

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Similarly in the United States the case of Kent v The United Case in 1966, saw a juvenile, who was convicted of house breaking robbery and rape, tried as a major. He was sentenced to thirty to ninety years behind bars. In fact, the Unites States has drawn a clear distinction between juveniles as victims of an unresponsive society and those who are fully aware of the heinousness of their crimes. The legislation of the country allows in certain cases, keeping in mind the heinousness of the crime committed, to try juvenile offenders as adults.

The justification offered behind this waiver is to recognise the inherent and all important principle of Mens Rea or guilty conscience. This waiver of jurisdiction by the Juvenile Board is brought about by a clear understanding that in certain cases the board may not be adequately equipped to handle the offender, particularly one who committed the crime knowing fully well the consequences of his/her actions. Another justification offered is the prime responsibility of the State to protect society from such offenders. By waiving its jurisdiction the juvenile court recognises that the offender is beyond the scope of juvenile rehabilitation and legitimises the waiver of jurisdiction as a means of protecting society at large from the offender. Australia too follows a system similar to the United Kingdom. The age for criminal responsibility in Australia is also 10 years, which mea ns a child is not supposed to know the difference between right and wrong if he/she is below 10 years. From 10 years to 14 years an accused comes under what is called „rebuttable presum ption‟, this means that by default the child is supposed to be unaware of the consequences and inherent illegality of the act committed, however the prosecution is free to rebut this understanding. Any individual over 14 years of age is held accountable of any crime committed by him and whether the individual is to be tried as a minor or an adult depends again on the heinousness of the crime. Coming back to India and the Juvenile Justice Act 2000, it is easy to n otice that rather than have a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is a system in which the maximum amount of sentence served by a delinquent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murderer; just so long both are under eighteen years of age. The biggest reason for our current system is the supposed rehabilitation of the offenders. A glimpse of this may be found in the rechristening of the word offender to „Juvenile in conflict with the law‟. While the swanky name change is an earnest and somewhat romantic gesture at our societies‟ endeavour in recognising and unleashing the „good‟ within each child, there is an inherent problem with the term of the sentence. There is no logical or scientific reason which shows that total and complete rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a maximum period of three years. In the case of the Delhi rapist, even if one were to say that the boy needs to be rehabilitated and that perhaps the reason for his barbaric and animalistic act was a deep-rooted psychological problem, there is no assurance that the issue can be dealt with in three years. Of course, the absolute lack of implementation of the provisions of the JJ Act after a juvenile completes his sentence is another concern. India‟s CHANAKYA NATIONAL LAW UNIVERSITY

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massive population makes it impossible to track and ensure that a juvenile once released continues with his therapy or even reports regularly to his parole officer. With this basic and undeniable truth it is a matter of simple calculation that in all probability the Delhi rapist shall be on the streets within the next three years that‟s 1095 days with nothing more than a stint in a special home in the name of absolute and complete Rehabilitation.


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PROPOSAL FOR AMMENDMENT IN JUVENILE JUSTICE ACT, 2000

The Continuous Debate On whether the age of a juvenile should or should not be lowered from 18 years to 16 or 14 years in India has both positive effects as well as n egative effects. Though lowering the age in juvenile justice will help put people responsible for D elhi rape Case or For that matter Bombay Rape Case, but it will also Impose a negative impact on other juvenile Cases which include minor crimes like stealing, theft. It has been observed that 68% of the Crimes committed by a Person under the Definition of a 14 Juvenile In India are Minor Crimes and Not The brutal Ones. In My opinion , the answer to this very debate, lies with the Judiciary of India. The Courts in India are competent Enough To Distinguish between Minor Crimes and heinous crimes. The Courts, in my view, should be granted the power to decide whether a person should be trialed as a juvenile or should be trialed as an Adult. This will entitle the Court To punish the Wrong-doers who take the loop hole in the Juvenile Justice Act and Commits an offence.

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Save The Children India, Report


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CONCLUSION The general Principal On which infancy is based on is that a Child Can commit no wrong. To elaborate this principal we can say that “a child’s mind is not mature enough to Form a mensrea”.

Criminal Liability is what unlocks the logical structure of the Criminal Law. Each element of a crime that the prosecutor needs to prove (beyond a reasonable doubt) is a principle of criminal liability. There are five principles of liability in Criminal Law : Pri ncipl e of A ctus Reus Pri ncipl e of M ens Rea Pri nciple of Concur rence Pri ncipl e of Causation Pri nciple of Resul tin g Harm

The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juv enile justice system. 15

The brutal Delhi gang rape case has bought forth a new aspect of criminality that India‟s justice system needs to address urgently. One of the accused, as per police record and, according to reports, the most aggressive of the lot who brutalized the young girl, is a minor of 17 years. Reports have shown that it was the minor who first lured the unsuspecting victims into the bus an d that he was the most aggressive in the repeated rape of the victim. In My opinion, the answer to the debate on the age of a juvenile lies with the Judiciary of India. The Courts in India should be granted the power to decide whether a person should be trialed as a juvenile or should be trialed as an Adult. This will entitle the Court To punish the Wrong-doers who take the loop hole in the Juvenile Justice Act and Commits an offence.

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Nirbhaya Case(16 Dec’ 2012)


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BIBLIOGRAPHY 

INDIANKANOON.COM

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HISTORY OF JUVENILE JUSTICE IN INDIA BY V. K . SINHA

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JUVENILE JUSTICE ACT, 1986

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JUVENILE JUSTICE ACT, 2000

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P S PILLAI IPC


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Chanakya National Law University

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