INFANCY AS A DEFENSE: UNDERSTANDING THE LEGAL PROTECTION FOR CHILD OFFENDERS IN INDIA

ABSTRACT

This abstract provides an overview of the concept of infancy as a defense in the context of the Juvenile Justice System. It explores the legal framework, jurisdiction, and application of this defense, along with additional aspects related to its implementation. The abstract delves into the challenges and limitations faced by the juvenile justice system when considering infancy as a defense and highlights relevant judgments. Finally, it concludes by emphasizing the need for a balanced approach that prioritizes the rights and rehabilitation of juvenile offenders.

Keywords: Infancy, Defense, Juvenile Justice System, Legal Framework, Jurisdiction, Application, Challenges, Limitations, Judgments, Rehabilitation

INTRODUCTION

In the realm of criminal law, infancy stands as a unique defense that has been recognized to address the special circumstances and limited mental capacity of children. In the Indian legal system, infancy as a defense serves as a protective mechanism for child offenders who may not possess the cognitive capacity to fully comprehend the consequences and implications of their actions. By acknowledging the developmental limitations of children, the law aims to strike a balance between accountability and the need to safeguard their rights. India has enshrined the defense of infancy under the Indian Penal Code (IPC), taking into consideration the evolving capacities of children. “Doli incapax” is a Latin term that translates to “incapable of evil” or “incapable of guilt.” It refers to the presumption that children within a certain age range lack the mental capacity required to understand the nature and consequences of their actions, therefore making them incapable of committing crimes. The concept of Doli incapax is recognized in various legal systems, including the Indian legal system. The application of Doli incapax in Indian law aligns with the recognition that children’s cognitive development varies, and their ability to fully understand the criminality of their conduct differs from that of adults. By considering Doli incapax, the legal system aims to provide age-appropriate responses and focuses on rehabilitation rather than punishment for child offenders. The objective is to protect the rights and welfare of children while also ensuring public safety and holding accountable those who can be held legally responsible. Section 82 of the IPC establishes that children below the age of seven years are deemed incapable of committing any offense. This provision recognizes that at such a tender age, children lack the cognitive development required to form criminal intent or understand the gravity of their actions. Moreover, Section 83 of the IPC acknowledges that children between the ages of seven and twelve years are presumed to lack the mental capacity necessary to comprehend the consequences of their actions. However, this presumption is not absolute and can be overturned with sufficient proof that the child possessed the maturity to understand the implications of their acts. This provision strives to address individual differences in understanding within this age group and ensures that not all children within this bracket are automatically exempt from criminal liability. It is important to note that while infancy can serve as a defense in criminal cases, it does not absolve children from civil liability under other branches of law. Whether it is issues related to tortious acts or contractual obligations, children may still be subject to civil consequences for their actions. The jurisdiction for cases involving the defense of infancy lies within the purview of the relevant trial courts. To handle such cases sensitively, the Juvenile Justice (Care and Protection of Children) Act, 2015 establishes specialized children’s courts or juvenile justice boards. These specialized courts aim to provide a nurturing and rehabilitative environment that focuses on the welfare and development of the child, rather than punishment.

LEGAL FRAMEWORK

India Penal Code, 1860

Section 82: Act of a child under seven years of age. —Nothing is an offence which is done by a child under seven years of age.[1]

Under Section 82 of the Indian Penal Code (IPC), children below the age of seven years are deemed to be incapable of committing any offense. The law presumes that their cognitive development is at such a stage that they cannot comprehend the nature and gravity of their actions. Consequently, they are exempted from criminal liability, regardless of the nature of the offense. This provision aims to shield young children from the harsh consequences of the criminal justice system.

Section 82 of the Indian Penal Code (IPC) deals with the defense of infancy. The section states that a child below the age of seven years is Doli incapax, which means they are deemed incapable of committing any offense. This provision recognizes the general principle that children below this age lack the mental capacity to understand the nature and consequences of their actions. The core intent behind Section 82 is to protect young children from being held criminally liable for their actions. It is based on the understanding that children in this age group are not capable of forming criminal intent or comprehending the gravity of their conduct. As a result, they cannot be held responsible for any offense, regardless of its severity or nature. The defense of infancy under Section 82 operates as an absolute defense. This means that once it is established that the accused is below the age of seven at the time of the alleged offense, they are automatically exempted from criminal liability. The prosecution cannot overcome this defense by proving the child’s understanding or intention. It is important to note that the defense of infancy applies only to criminal offenses. Civil liability may still arise for actions committed by a child, and other laws such as the Indian Contract Act or Law of Torts may come into play in such cases. In summary, Section 82 of the IPC provides a crucial safeguard by recognizing the defense of infancy. It protects young children below the age of seven from criminal liability, as they are considered incapable of understanding the consequences of their actions and forming criminal intent.

Section 83: 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.[2]

For children between the ages of seven and twelve years, Section 83 of the IPC comes into play. It establishes a rebuttable presumption that children within this age group lack the mental capacity to understand the consequences of their actions. The burden of proof lies on the prosecution to establish that the child, despite being within this age bracket, possessed the requisite maturity to comprehend the implications of their behavior. This provision ensures that not all children in this age group are automatically absolved of criminal liability, considering their individual capacity for understanding.

Section 83 of the Indian Penal Code (IPC) deals with the defense of infancy for children between the ages of seven and twelve years. It establishes a rebuttable presumption that children in this age group are deemed to lack the mental capacity necessary to understand the consequences of their actions.

According to Section 83, if a child who is above seven years but below twelve years of age is accused of committing an offense, it is presumed that they are not capable of committing that offense. This presumption places the burden on the prosecution to prove that the child had the necessary maturity and understanding to comprehend the implications of their actions. To rebut the presumption under Section 83, the prosecution must present evidence that the child had the capacity to understand the nature and consequences of the act they are accused of. This evidence can take the form of witness testimony, expert opinion, or any other relevant evidence that demonstrates the child’s level of understanding. If the prosecution successfully proves that the child possessed the required maturity to comprehend the consequences of their actions, they can be held criminally liable for the offense committed, despite falling within the age bracket of seven to twelve years. It is important to note that the defense of infancy under Section 83 is not an absolute defense like in Section 82, but rather a presumption that can be challenged and overturned based on the evidence presented. This provision recognizes that children in this age group have varying levels of maturity and understanding, and their individual capacity should be assessed to determine their criminal liability. In conclusion, Section 83 of the IPC establishes a presumption of incapacity for children between seven and twelve years of age, but this presumption can be rebutted by the prosecution if they can prove that the child had the requisite maturity and understanding to comprehend the consequences of their actions.

The Juvenile Justice (Care and Protection of Children) Act, 2015

In India this act is a comprehensive legislation enacted to address the rights and protection of children, particularly those in conflict with the law. It recognizes the unique vulnerabilities and needs of children and establishes a separate justice system for dealing with juvenile offenders.

Regarding infancy as a defense, the Act recognizes that children under a certain age lack the mental and emotional capacity to understand the consequences of their actions. Section 2(12) of the Act defines a “child” as a person who has not completed eighteen years of age. This means that juveniles who are below the age of eighteen are not treated as adults in the eyes of the law. The Act further provides for different procedures and mechanisms for dealing with juvenile offenders based on their age. Section 3 of the Act establishes Juvenile Justice Boards (JJBs) at the district level, which are responsible for adjudicating cases involving children in conflict with the law. For juveniles who are below the age of sixteen, the JJB follows the procedures outlined in the Act. However, for juveniles between the ages of sixteen and eighteen, the JJB conducts the proceedings, but with certain adaptations and safeguards in place.

Under the Act, infancy or the age of the juvenile is considered as one of the primary factors while determining the appropriate measures to be taken for the care, protection, treatment, rehabilitation, or aftercare of the juvenile. The Act emphasizes the principles of reformation, rehabilitation, and reintegration, with an aim to ensure the overall development and well-being of the juvenile. It is important to note that the Act also incorporates the provisions of the United Nations Convention on the Rights of the Child (UNCRC), to which India is a signatory. As discussed earlier, the UNCRC recognizes the inherent vulnerability and special needs of children, including their age and level of maturity, when it comes to legal proceedings.

In summary, the Juvenile Justice (Care and Protection of Children) Act, 2015 recognizes infancy as a defense and establishes separate procedures and mechanisms for dealing with juveniles in conflict with the law. The Act aims to protect the rights, provide care, and ensure the rehabilitation and reintegration of children in the justice system, considering their age and vulnerability.

JURISDICTION AND APPLICATION

The defense of infancy falls under the jurisdiction of the respective trial courts, depending on the gravity and nature of the alleged offense committed by the child. Given that criminal proceedings involving child offenders require delicate handling, these cases are usually dealt with by juvenile justice boards or specialized children’s courts to ensure appropriate assessment and rehabilitation, rather than punitive measures. It is important to note that while infancy can be a defense in criminal cases, civil liability may still arise for children under other branches of law. For instance, in cases involving tortious acts or contractual obligations, the defense of infancy may not absolve a child from civil liability.

Jurisdiction: The defense of infancy falls under the jurisdiction of the relevant trial courts in India. The specific court that will have jurisdiction over a case involving the defense of infancy depends on the provisions of the Code of Criminal Procedure and the relevant laws governing juvenile justice in a particular state or union territory. Generally, cases involving child offenders are handled by juvenile justice boards or specialized children’s courts to ensure a sensitive and appropriate approach to their proceedings.
Application: The defense of infancy can be invoked when a child is accused of committing an offense. The specific requirements for applying the defense of infancy are outlined in Section 82 (for children below seven years) and Section 83 (for children between seven and twelve years) of the Indian Penal Code (IPC). To apply the defense of infancy, it is essential to establish the age of the accused child and provide evidence supporting their age, such as a birth certificate or school records. If the child is below the age of seven, the defense of infancy under Section 82 is applicable, and they are considered incapable of committing any offense, irrespective of the nature of the offense. If the child is between seven and twelve years old, the defense of infancy under Section 83 comes into play. It initially presumes that the child is incapable of committing an offense, placing the burden on the prosecution to prove otherwise by presenting evidence that The minor was mentally capable of comprehending the effects of his or her conduct. The court will assess the evidence and decide regarding the child’s criminal liability based on the provisions of Section 83. If the prosecution successfully rebuts the presumption and proves the child’s maturity and understanding, the court may hold the child criminally liable for the offense. It is important to note that the defense of infancy applies specifically to criminal offenses and does not absolve children from civil liability under other branches of law, such as tort law or contract law.

In summary, the defense of infancy falls under the jurisdiction of the relevant trial courts, and its application requires establishing the age of the accused child and presenting evidence to support their lack of capacity or maturity to understand the consequences of their actions. The court will consider the provisions of Section 82 or Section 83 of the IPC based on the age bracket of the child to determine their criminal liability.

ADDITIONAL ASPECTS

International Obligations: Infancy is a legal concept that refers to the status of being a minor, typically under the age of majority. In many legal systems, including India, infants are generally considered to lack the capacity to enter into binding legal agreements or be held fully accountable for their actions.

When it comes to international obligations with respect to infancy as a defense, one important statute to consider is the United Nations Convention on the Rights of the Child (UNCRC). India is a signatory to this convention, which sets out the rights of children and establishes their protection as a matter of international law. Under Article 37 of the UNCRC, States Parties are required to ensure that:

No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment.
No child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period.
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which considers the needs of persons of his or her age.
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, and impartial authority, and to a prompt decision on any such action.[3]

These provisions emphasize the importance of safeguarding the rights and well-being of children, including protecting them from harsh or unfair treatment in legal proceedings. The UNCRC recognizes that a child’s level of maturity, understanding, and vulnerability should be considered when determining their rights and responsibilities. In the Indian legal system, the Juvenile Justice (Care and Protection of Children) Act, 2015 is a significant legislation dealing with the rights and protection of children. The Act recognizes the principle of inherent vulnerability of a child and aims to ensure their care, protection, and rehabilitation. Under this Act, a separate justice system is established for dealing with children in conflict with the law.

In conclusion, international obligations, such as the UNCRC, emphasize the need to protect the rights and well-being of children. In India, the Juvenile Justice Act provides a legal framework to ensure the care and protection of children. It is important to consider these legal provisions and the rights of children, including their infancy status, when addressing legal issues involving minors.

Assessment of Maturity: The determination of a child’s maturity level can be a complex task. It often requires psychological and developmental assessments to gauge their capacity to comprehend the consequences of their actions. The court may rely on expert opinions, such as those from child psychologists or social workers, to make an informed decision regarding the child’s criminal liability.

In the context of infancy as a defense in the juvenile justice system, the assessment of a child’s maturity plays a significant role in determining their understanding of the consequences of their actions and their capacity for rehabilitation. The assessment of maturity involves considering not only chronological age but also factors such as cognitive development, emotional intelligence, social skills, understanding of right and wrong, and ability to comprehend the consequences of their actions. This assessment is typically conducted through psychological evaluations, counseling, and social inquiry reports, which assist the JJB in examining the juvenile’s maturity level and their potential for rehabilitation.

It is important to note that the assessment of maturity is a dynamic process, acknowledging that individuals may mature and change over time. Therefore, the Act places importance on periodic review and reassessment of the child’s circumstances to ensure that the measures taken are appropriate and in the best interest of the juvenile. The aim of assessing maturity in the context of infancy as a defense is not to punish the child but rather to provide appropriate interventions, guidance, and support to promote their rehabilitation and integration into society. The goal is to ensure that the child’s rights and well-being are protected and that they are given the opportunity to grow into responsible and productive members of society.

Role of Rehabilitation: The defense of infancy aims to focus on the rehabilitation and reintegration of child offenders into society rather than punitive measures. The emphasis is on providing appropriate guidance, counseling, and support to facilitate their development and prevent future delinquent behavior. Rehabilitation plays a crucial role in the juvenile justice system, particularly in cases involving infants or juveniles who commit offenses at a young age. The focus on rehabilitation recognizes that children are still developing and have the potential to change their behavior and lead productive lives.

In the context of infancy as a defense, rehabilitation is an essential component of the Juvenile Justice (Care and Protection of Children) Act, 2015 in India. The Act aims to provide care, protection, treatment, rehabilitation, and social reintegration for juveniles in conflict with the law. The Act recognizes that infants or young children who commit offenses may require special attention and interventions to address the underlying factors that contribute to their behavior. Rather than focusing solely on punishment, the emphasis is on reforming and rehabilitating the child. The Act establishes measures for the rehabilitation of juvenile offenders, including provisions for counseling, therapy, vocational training, education, and skill development. The objective is to provide them with the necessary tools and support to reintegrate into society and lead law-abiding lives. The Act also promotes restorative justice principles, which involve bringing together the juvenile offender, the victims, and the community to address the harm caused by the offense. This process aims to provide opportunities for the juvenile to understand the consequences of their actions, make amends, and rebuild relationships. In addition to rehabilitation programs and interventions, the Act underscores the importance of aftercare and social reintegration. After the completion of their sentence or rehabilitation period, the Act mandates that efforts be made to ensure the child’s smooth transition back into society. This may involve providing support, monitoring, and guidance to the child to prevent re-offending and promote their well-being.

Overall, rehabilitation plays a fundamental role in the juvenile justice system, particularly when infancy is used as a defense. The objective is to provide necessary support, guidance, and resources to juveniles who have committed offenses at a young age, with the aim of reforming their behavior, promoting their successful reintegration into society, and preventing future criminal activities. By focusing on rehabilitation, the juvenile justice system recognizes the potential for positive change and growth in young offenders.

CHALLENGES AND LIMITATIONS

While infancy as a defense is recognized in the juvenile justice system, there are several challenges and limitations associated with its implementation. These challenges can impact the effective protection and rehabilitation of juvenile offenders. Some of the key challenges and limitations include:

Lack of clear definition and understanding: Infancy as a defense relies on the concept of age and maturity. However, there is no universally accepted definition or specific criteria for determining the maturity level of a child. This can lead to inconsistencies in decision-making and may result in some juveniles who may be mature enough being treated as infants, or vice versa.
Difficulties in assessing maturity: Assessing the level of maturity of a juvenile offender is a complex task. It involves evaluating various factors such as cognitive development, emotional intelligence, and social skills. Conducting accurate and objective assessments can be challenging, particularly due to limited resources, expertise, and standardized evaluation methods.
Lack of appropriate interventions: Despite recognizing the importance of rehabilitation, there may be limitations in the availability and adequacy of rehabilitation programs and services for juvenile offenders. Insufficient resources, funding, and trained professionals can hinder the implementation of effective rehabilitation interventions tailored to the individual needs of each juvenile.
Stigma and societal attitudes: Society’s perception and biases towards juvenile offenders can create challenges in their rehabilitation and reintegration processes. Negative stereotypes and stigmatization of juvenile offenders may hinder their acceptance and reintegration into the community, potentially hindering their chances of successful rehabilitation.
Limited focus on individual circumstances: The juvenile justice system often focuses on age as a primary factor in determining measures for care, protection, and rehabilitation. While age is an important consideration, other individual factors such as the socio-economic background, family support, and personal history of the child may also be relevant but can be overlooked.
Insufficient aftercare support: The period after a juvenile offender completes their rehabilitation is critical for their successful reintegration into society. However, there may be limitations in the availability of appropriate aftercare support, including counseling, vocational training, and ongoing monitoring. Insufficient aftercare services can increase the risk of re-offending and hinder the long-term rehabilitation of the juvenile.

Addressing these challenges and limitations requires a comprehensive approach that involves collaboration between various stakeholders, including the government, social service agencies, experts, and communities. It is crucial to invest in the development of effective assessment tools, rehabilitation programs, and aftercare services specifically tailored to the needs of juvenile offenders. Additionally, efforts should focus on promoting awareness, reducing stigma, and changing societal attitudes towards juvenile offenders to ensure their successful reintegration into society.

JUDGEMENTS

Marsh vs Loader (1863): In this case, the defendant caught a child stealing a piece of wood from his premises. However, the child was under the age of seven years, and therefore he was not held liable for the offence.[4]

Marimuthu vs Unknown (1909): In this case, the accused, a girl of 10 years of age, picked up a silver button worth eight annas and gave it to her mother. It was held that the girl was not liable for theft because the circumstances did not disclose that she had attained sufficient maturity of understanding to judge the nature of her act.[5]

Hiralal Mallick v. State of Bihar (1977): Hiralal Mallick, a 12-year-old child, and his two older brothers were accused in this case of killing one Arjan Mallick, and the three were found guilty. In an act of retaliation, the appellant sliced the deceased’s neck with a sharp object before fleeing with the other people. The High Court ordered that a conviction under Section 302 be changed into one under Section 326 read in conjunction with Section 34 I.P.C. in the appeal.[6] The Court took a humanitarian stance and reduced the appellant’s sentence to 4 years of severe probation because he was 12 years old when the offence was committed. The Hon’ble Court dismissed the appeal and upheld the conviction of the appellant. In such a case, a personalized approach must be taken regarding each participant in the act regarding the circumstance of involvement, his Doli capax, age and expectation of consequences.

CONCLUSION

Recognizing the developmental limitations of children, the Indian legal system provides special provisions to safeguard their rights within the sphere of criminal law. The defense of infancy, as enshrined in Sections 82 and 83 of the IPC, ensures that children below the age of criminal responsibility are protected from being held legally accountable for their actions. By considering the mental capacity of children, the justice system endeavors to promote their welfare, safeguard their rights, and encourage their rehabilitation. It is crucial to seek legal guidance to effectively employ the defense of infancy and navigate the specific circumstances and jurisdictional aspects surrounding child offenders. Infancy as a defense plays a crucial role in acknowledging the limited cognitive capacity of children and ensuring they are not unduly burdened with criminal liability. It aligns with India’s international obligations and forms an integral part of the juvenile justice system. By focusing on rehabilitation and age-appropriate responses, the defense of infancy aims to protect children while emphasizing their growth and reintegration into society. However, the assessment of a child’s maturity level and the balance between rights and accountability pose ongoing challenges for the justice system. Overall, the defense of infancy is a vital aspect of Indian law that upholds the principles of justice, protection, and development for child offenders.

[1] Section 82 of Indian Penal Code, 1860

[2] Section 82 of Indian Penal code, 1860

[3] https://humanrights.gov.au/our-work/human-rights-brief-no-2 last visited on 17/08/2023

[4] https://www.writinglaw.com/infancy-as-exception-ipc/#case-law-82 last visited on 20/08/2023.

[5] ibid

[6] https://blog.ipleaders.in/all-you-need-know-about-doli-incapax/ last visited on 20/08/2023.