1

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

FOUNDATION OF LAW
FINAL DRAFT ON-AGE OF CRIMINAL RESPONSIBILITY
.

SUBMITTED TO: SUBMITTED BY :
MANVENDRA Kr. TIWARI ADITYA JOSHI
ASSISTANT PROFESSOR B.A.LL.B. (A) I SEM.
Dr. RMLNLU R. NO. 13




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ACKNOWLEDGEMENT
I express my gratitude and deep regards to my teacher for the subject Mr. Manvendra Kr.
Tiwari for giving me such a challenging topic and also for his exemplary guidance,
monitoring and constant encouragement throughout the course of this thesis.
I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.
I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.
Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.











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TABLE OF CONTENTS

1. INTRODUCTION..4
2. HISTORY OF JUVENILE LEGISLATION .5
3. AGE OF CRIMINAL RESPONSIBILITY.7
4. COMPARING THE AGE OF CRIMINAL RESPONSIBILITY IN DIFFERENT
COUNTRIES OF THE WORLD..
a. INDIA.9
b. U.S.A10
c. U.K..11
d. Table 1.1.12
5. J.S VARMA COMMITTEE FINDINGS AND SUGGESTIONS13
6. CONCLUSION..15
7. BIBLIOGRAPHY16




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INTRODUCTION

Childhood is a notion that is subject to constant revision in any given era or place-this phrase
has assumed significant importance in the present legal scenario making it inevitable to
analyse if this understanding is indeed true or not. In the aftermath of the Nirbhaya case in
India, a big question has arisen with regard to the correctness of the existing age of criminal
responsibility in India. The present age of criminal responsibility in India according to the
Juvenile Justice (Care and Protection for Children) Act,2000 is 18 years. Juvenile offenders
are accorded special treatment under this Act and are not tried in the same Courts as adult
offenders.
The minimum age of criminal responsibility (MACR) is the age below which a person is
completely immune from any criminal liability due to lack of maturity and judgement to
understand the consequences of ones actions. Next come the age below which a person is
considered vulnerable and immature and hence cannot be made fully responsible for ones
actions. This is the period of childhood and adolescence and crime committed during this
stage is dealt with by most nations under special laws known as juvenile justice laws.
Juvenile delinquency is on the increase today and one of the major issues faced by the world.
India is also struggling with juveniles committing serious and grave offences. Thus arises the
question if the juvenile laws in the country are too soft and require improvements.




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HISTORY OF JUVENILE LEGISLATION
From the early 20
th
century the different Indian states had enacted their own childrens acts.
The Madras Children Act 1920 was the first children Act to be enacted , closely followed by
Bengal and Bombay Children Act was enacted 4 years after the Madras Children Act, it was
the first children act to become functional. In February 1924 , a voluntary state-aided agency
viz , the childrens aid society , was formed to implement the provisions of the Bombay
Children Act within the municipal corporation limits of Bombay.

The states Children Acts brought within its ambit two categories of children viz
1. Youthful offenders, and
2. Destitute and neglected children.
Both these categories of children were to be handled by the Juvenile courts.
The government of India passed the children Act 1960 to provide for care, protection,
maintenance, welfare, training, education and rehabilitation of neglected or delinquent
children and for the delinquent children in the union territories. Under this Act ,a child is a
boy below 16 years of age and a girl below 18 years of age.
1

State governments had not only enacted their separate legislations for children , the
provisions contained in each states children act were also varied even the definition of the
term child differed from state to state. This promoted the Supreme Court in 1986
2
to
observe

1
Article 2(k), Juvenile Justice Act,2000
2
Sheela Barse v. union of India (1986)3 SCC 632
6

The General Assembly on 29
th
November 1985 adopted the United Nations standard
Minimum rules for the Administration of juvenile justice and for the first time the Juvenile
word was used in international law and the term Juvenile Justice was coined.
JUVENILE IN CONFLICT WITH LAW
Section 2(l) of JJA
3
2000 has defined Juvenile in conflict with law as a juvenile who is
alleged to have not completed 18 years of age as on the date of commission of such offence.
This amended definition has put to rest the debate as to the relevant date at which juvenility is
to be determined. The courts, including the Supreme Court, had continuously held that the
date of offence was the relevant date. In 2000, the supreme court in Arnit Das v.State of
Bihar
4
, shifted from this oft view, and observed that the relevant date at which juvenility to
be determined was the date on which the juvenile was produced before the competent
authority, viz , the JJB, Arnit Das case raised the question about reference to which date the
age of the petitioner is required to be determined for finding out whether he is a juvenile or
not.
The two judge Bench of the Supreme Court held that so far as the present context is
concerned we are clear in our mind that the crucial date for determining the question whether
a person is a juvenile is the date when he is brought before the competent authority. This
judgement as observed was widely critiqued. It was criticised as it diverted from a well-
settled principle of law thereby depriving young persons of the beneficial provisions of
juvenile legislation.


3
Juvenile Justice Act,2000
4
Arnit das v. union of india(2000)5 SCC 488
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AGE OF CRIMINAL RESPONSIBILITY
The domestic laws of all countries have laid down a minimum age below which a person is
exempt from prosecution and punishment. The rationale for such exemption is the absence of
mens rea i.e not to criminalise the acts of those who at the time of commission of the crime
did not realize nor intent the consequences of their act. Article 40(3) of 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 fixed ate 7 years by IPC section 82 of IPC
Nothing is an offence which is done by a child under seven years of age
Hence , under Indian law a child below 7 years of age cannot be prosecuted and will not enter
the juvenile justice system as a juvenile in conflict with law. If such child falls within the
definition of child in need of care and protection
5
he could be produced before the child
welfare committee for his care, protection and rehabilitation.
The law has recognized that a person between the age of 7 and 18 years is less culpable than
an adult , and has set-out different levels of criminal responsibility depending upon the
childs maturity and age.
Section 83 IPC:-
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
consequence s of his conduct on that occasion.

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Section 2(d) of Juvenile Justice Act 2000
8

The accused child to avail of this defence will have to prove that he is below 12 years of age
and that he has not attained adequate maturity of understanding therefore he did not know
that what he was doing was wrong.
Under the Indian Law children between 7 to 12 years of age having sufficient maturity and
between 12 to 18 years who have committed an offence are responsible for their criminal
acts, but are not to be treated or sentence in the same manner as an adult. Such legislation and
the focus will be on reforming and rehabilitating them.













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COMPARING THE AGE OF CRIMINAL RESPONSIBILITY IN DIFFERENT
COUNTRIES OF WORLD
Now I will be comparing THE AGE OF CRIMINAL RESPONSIBILITY with respect to
other countries.
INDIA
The criminal system in india is governed and regulated by 2 major legislations including the
IPC
6
and the CrPC
7
. The IPC provides the substantive part laying out the rights and
responsibilities and the CrPC lays down the procedure to be followed by a court of law in a
Criminal proceeding. The IPC has set the age of criminal responsibility at 12 years. An
offence committed by a child under the age of 7 years is not punishable.
1. Also, an offence committed by a child above the age of 7 years but below the age of 7
years is not punishable if it seems that he does not posses sufficient maturity to judge
the consequence of his actions.
2. Further , it is believed that children cannot be put in the same category as adults under
the Criminal Justice system of the country and hence require development of special
provisions for the. Physical and mental immaturity and dependency on others are the
most outstanding features of childhood.
3. India has fulfilled this obligation by enacting the Juvenile Justice(Care and Protection
for children) Act, 2000 (JJ Act). A juvenile is defined as a person who has not
reached the age of 18 at which one should be treated as an adult by the criminal
justice system.
4. The JJ Act has set the age of criminal responsibility at 18 years or in other words it
can deal with offenders under the age of 18 years.
5. This age has been set at 18 to bring it in conformity with the definition of child under
the UN Convention on the Rights of Child.


6
Indian Penal Code ,1860
7
Code of Criminal Procedure ,1973
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The Juvenile Justice (Care and Protection of Children) Act 2000 was passed with the purpose
of incorporating into domestic law Indias obligations under international law as signatory of
the U.N. Convention of the Rights of the Child of 1989, the U.N. Standard Minimum Rules
for Administration of Juvenile Justice (1985)
8
and the U.N. Rules for the Protection of
Juveniles Deprived of their Liberty (1990)
9
. The JJA creates a juvenile justice system in
which persons up to the age of 18 who commit an offence punishable under any law are not
subject to imprisonment in the adult justice system but instead will be subject to advice/
admonition, counselling, community service, payment of a fine or, at the most, be sent to a
remand home for three years
10
.
The Juvenile Justice Board (JB) formed under the Act, in compliance with its
provisions, passed an order in the Nirbhaya case, whereby the juvenile, accused of sexual
assault and murder of a 23-year old female physiotherapy intern, in which he brutalised her
with an iron rod, pulled out her intestines and then cleaned up the bus and made tea, was
awarded a maximum sentence of three years imprisonment in a reform facility, inclusive of
the eight months he had spent in remand during trial (Juvenile Justice Around the World).
The order of the Board is a clear illustration of the Indian practise of outrightly dismissing
any culpability, whatsoever, of the juvenile, even if the same is accused of grave and
heinous crimes.
UNITED STATES OF AMERICA
Most States in the U.S. have enacted a juvenile code of which the main objective is
rehabilitation and not punishment. Juveniles appear in juvenile court and not in adult court.
Juvenile courts do not have the power to impose punishment and can impose only

8
Known as Beijing Rules.
9
Vishwanathan,Balancing the juvenile Act
10
Juvenile Justice Amendment Act ,2011
11

rehabilitative measures or assistance by government programmes. However, since the
increase in violent crimes committed by juveniles in the 1990s, U.S. States have adopted a
get tough approach in response
11
.
In most U.S. States, the jurisdiction of juvenile courts is automatically waived when a
juvenile above a certain age, usually 13 or 15, commits a violent or other serious crime, and
the case is automatically transferred to adult court. A certification hearing takes place and an
adult court prosecutor is required to convince the adult court that the case should be
transferred. The juvenile is entitled to an attorney at the hearing and to present any evidence
which mitigates against the transfer. For example, in Indiana, South Dakota and Vermont,
children as young as 10 can be tried as adults. Californias Proposition 21 which was passed
in 2000 allows prosecutors to automatically try juveniles who commit felonies as adults.
Under Michigans Juvenile Waiver Law passed in 1997, juveniles can automatically be tried
as adults.
UNITED KINGDOM
In the U.K., persons under 18 are tried by a Youth Court which is a special type of
magistrates court for those aged 10 to 18 years. The Youth Court can issue community
sentences, behavioural programmes, reparation orders, youth detention and rehabilitation
programmes which last three years. However, for serious crimes like murder or rape, the case
starts in Youth Court but is transferred to a Crown Court which is same as Sessions Court.
The Crown Court can sentence the child for offences of murder committed when the offender
was a youth as well as for grave crimes including sexual assault and sentence the child to
indeterminate detention for public protection.

11
Shoemaker juvenile justice.
12

The Crown Court can also give extended sentence to a minor. If a youth is jointly
charged with an adult, the charge is heard and tried by a regular court. If the youth is found
guilty, the Crown Court can impose a sentence which does not exceed the maximum sentence
applicable to an offender who is 21 years or older.
Hence, norms of juvenile justice could remain similar or vary significantly across
different jurisdictions. As elucidated above, other countries such as the U.S. and the U.K.,
which are both signatories to the U.N. Convention, unlike India, have taken action to amend
their laws to counter the increase in violent crimes by juveniles.
TABLE 1.1 OTHER COUNTRYS AGE OF CRIMINAL RESPONSIBILITY
COUNTRIES AGE OF CRIMINAL RESPONSIBILTY
MEXICO 6-12 YEARS
BANGLADESH 7 YEARS
MYANMAR 7 YEARS
PAKISTAN 7 YEARS
IRAN 9 YEARS
NEPAL 10 YEARS
TURKEY 11 YEARS
KOREA (Rep.) 12 YEARS
FRANCE 13 YEARS
POLAND 13 YEARS
CHINA 14 YEARS
GERMANY 14 YEARS
EGYPT 15 YEARS

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JS Varma Committee Findings and suggestions on Juvenile Justice
The manner in which the Juvenile Justice Act has been implemented shows a complete
failure of the State. It shows apathy but perhaps more importantly it shows vested interests.
This is a matter of serious concern. We are informed that the Principal Magistrate, Juvenile
Justice Board, has actually passed orders to segregate juveniles on the basis of age to ensure
that younger juveniles were tender and impressionable minds are not mistreated and are kept
away from elder juveniles.
12

We are of the opinion that there has been a failure to create the requisite infrastructure which
would help children to be reintegrated into society. The priority for making these high quality
institutions so that de facto inequality can be cured has been completely overlooked by all
concerned.
The committee in view of the grave observations that they made, gave many
recommendations, important ones among them being:
All the children homes, observation homes, juvenile homes and women's protective
homes be placed under the legal guardianship of the High Court. A Committee of
Judges be formed which could undertake surprise inspections to make sure that the
children are living in a healthy atmosphere. The said Committee of Judges may also
constitute a Board of psychiatrists who would prescribe detailed psychotherapy for
the children.
Primary education for all under article 21 of the constitution.
Protection homes for girls should be revolutionized, starkly different from the naari-
niketan model. There should be therapy for them, and they should be houses of
productivity and innovation.
There have been gross failures in the juvenile justice system not only because the
provisions of the Juvenile Justice Act are lacking, but also that these provisions are
not implemented in their letter and spirit.
The police are to be specially instructed and trained and be designated as juvenile or
child welfare officers and work in coordination with the police. The Act calls for
setting up of Special Juvenile Police Units in every district level and city and a child
welfare officer at every police station to co-ordinate and upgrade the police treatment
of the juveniles and children. SJPUs and Child Welfare Officers do not exist in every

12
JS Verma Committee Report 2013, P. 190,
14

police station and even where they do they have been largely untrained.
Definition clause in the juvenile justice act 2000 needs to be amended and a few
definitions need to be added:
(a) harm means any act, omission or commission of which, may injure or endanger
the health, safety, life, limb or well-being, whether mental or physical, of a juvenile.
(b) health is absence of any disease or infirmity and includes a state of complete
physical, mental and social well-being.
13

Audit by external agencies and selection of wardens and superintendents in a
transparent manner to make functioning more efficient.
High Court should be the overseeing authority and regular inspections once in three
weeks should be undertaken by court appointed officials.
Sensitivisation programmes for police on handling of juvenile delinquents and change
in police administration to this effect.













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CESC Ltd v. Subhash Chandra Bose (1992)1 SCC 441 (para 32)
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CONCLUSION
There has been a gross failure of the implementation of the various Juvenile Justice Act.
Various amendments have been made to decrease the rate of juvenile delinquency. The
relevancy of the principle of culpability, tackling with instances of criminal extremity
committed by persons belonging to different age groups, stands disputed. Nevertheless, it has
been well established that proving culpability on the part of the accused is not always
necessary to determine guilt. Additionally, standard norms for the ascertainment of
culpability in crime differ across jurisdictions, with each subscribing to somewhat different
rules on the age of criminal responsibility. However, even though this scenario of uneven
legal frameworks, specially designed and adopted to effect the cause of juvenile justice,
may initially seem to upset the idea of juvenile justice itself, the fact remains that ages at
which people reach puberty, grow facial hair, herd goats, or assume responsibilities of
various kinds, fluctuates significantly across different societies. Age is therefore more of a
social construction children get married, they become emperors and they go to war. Hence,
age-discrimination in the face of juvenile justice in criminal law is not wholly unjustified,
and could be considered valid to a certain extent.
Regardless of these contentions, many standard models of juvenile justice,
especially that of India, has failed to counter the complexities embedded in the concept of
age of criminal responsibility and need revision.




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BIBLIOGRAPHY

1. Cases Referred:
Arnit Das v. Union of India 2000(5) SCC 488
Salil bali v. Union of India
CESC Ltd v. Subash Chandra Bose (1992)1 SCC 441

2. Statutes Cited
Black Law Dictionary.
Juvenile Justice Act ,2000
The Juvenile Justice (Care and Protection of Children) Amendment Act
[2011].
The Andhra Pradesh Children Act, 1951, Section 2(d)
The Bombay Children Act, 1948
JS Verma Committee Report 2013. P 190

3. EDITORIALS
Viswanathan, Aparna. Balancing the juvenile act. The Hindu 9
September 2013.
Shoemaker, Donald J., et al. juvenile justice. Encyclopaedia Britannica
Online (2014). Web. 15 March 2014.
<http://www.britannica.com/EBchecked/topic/1349207/juvenile-
justice/271945/United-States> .