In the defence of a juvenile delinquent

Notes: replace the word sections with symbol

I. Introduction
Section 821 and 832 of the Indian penal code deal with crimes committed by
minors. While section 82 absolves children, below the age of 7, from any criminal
liability, section 83 focuses more on the maturity of understanding of a child more
than 7 years of age but less than 12 years of age. Section 82 absolves children
from accountability on the basis of the doctrine "Doli incapax 3" which is the Latin
for "incapable of doing harm".
This doctrine has been used to describe a presumption of innocence for children
in Criminal law in most countries. The basis of this presumption lies in the theory
of Criminal Responsibility. It has been built upon the belief that a person should
be held criminally responsible only for acts he intends to commit.
In case of Krishna Bhagwan v. State of Bihar4, Patna High Court upheld that if the
accused of an offence during the trial has attained the age of 7 years or at the
time of decision the child has attained the age of 7 years can be convicted if he is
able to understand the nature of the offence.
The presumption that children lack capacity is not new. But in recent years many
have questioned it, mainly due to the perceived escalation in youth crime and the
changes made to the criminal justice system for dealing with the young. But this is
where the psychological evaluation of a minor gets tricky. The most shocking
contradiction to this doctrine was witnessed in the 2012 Nirbhaya 5 case, when
one of the accused was convicted of rape and murder and sentenced to death
row. However, the Juvenile Justice Board overturned this judgement and later
sentenced him to only 3 years in a Juvenile home on the basis that he was a
minor. The judgement was seen as inaccurate as the minor was equally
responsible for the crime and equally took pleasure in committing it as his major
counterparts.

In 2019, a shocking case6 of a four-and-a-half-year-old boy allegedly sexually

assaulting a 4-year-old girl in a Delhi school had been difficult to absorb and
understand, not just in terms of what prompted the boy to do what he did, but
also in terms of how it needed to be dealt with. Liability for a crime involves not

1
Indian Penal Code, 1860, No. 45 of 1860
2
Id. at 1
3
Doli incapax
4
Krishna bhagwan
5
Nirbhaya
6
Delhi kid rape case
just actus reus7 but also mens rea8. For the mens rea to exist, a person needs to
have the mental capacity to understand the consequences of what they’ve done.
The law imposes an iron-clad restriction to prosecuting children, even the ones
who are capable of such monstrosity, if they are below the age of 7 and hence
automatically assumed to not have the mental capacity.

The principal arguments in favour of this doctrine are that neuroscientific

research9 shows that the parts of the brain responsible for impulse control,
decision making and judgement are still developing until at least 20 years of age
and early entry into the criminal justice system ruins long-term prospects and
increases recidivism; and lower age requirement in case of criminal responsibility
is illogical when compared with other social policy age restrictions like buying a
lottery ticket, consenting to sex, driving a vehicle or buying alcohol. So let us take
a look into whether children are really capable of crime.

II. Where do criminals come from?

It's significant we comprehend that a child isn't brought into the world with
criminal propensities. There are, in every case, a few factors that add to
adolescent wrongdoings, driving them to risky circumstances. The most well-
known sorts of crimes committed by minors include criminal mischief,
misconduct, or burglary. A distinct mediation is required at a beginning phase and
so as to forestall adolescent wrongdoing, its main drivers should initially be
comprehended. The variables that drive a minor to wrongdoing can be
perplexing. The social, political, and environmental variables that emphatically
impact the criminal conduct amongst minors must be identified and curtailed.
The major contributing elements to the criminal mind-set of a minor include peer
pressure, poor education, poor socioeconomic status, substance abuse, and
neglectful parents. Let us take a look at these elements and try to understand
how these have time and again contributed to minors going ashtray.

 Peer pressure- Adolescent children go through a number of changes. Out of

the blue, they get a sudden urge to become independent and develop free
thinking. They need to be known and acknowledged by their companions
and at social gatherings. So as to fit in and be acknowledged by their
companions, they surrender to peer pressure. Peer pressure accompanies
both positive and negative impacts. Research in the past has demonstrated
that numerous youngsters refer to peer pressure as one of the significant
purposes behind participating in unsafe practices, for example, reckless
7
Explain actus
8
Mens rea
9
Neuroscintific research article link
 driving, substance abuse, drinking, teen sex, gang activities, and criminal
activity.
 Lack of Education- One of the major contributing components to juvenile
crime is the absence of education. Youngsters who don't focus on their
studies and invest energy in recreation will in general stay uninformed of
significant parts of life. School is where they get their primary education
from and if they are skirting their classes habitually, they would stay poorly
educated.
Numerous schools offer courses, classes, and talks on teenage involvement
in gangs, sex, and criminal practices. These courses open their eyes and
make them observant. If they don't go to these courses, they won't
comprehend their significance. Guardians should be considerate towards
their children's education and ensure they go to their school routinely.
 Substance abuse-Substance abuse can be very risky for teenagers. As
mentioned before, substance abuse is a habit, garnered from the influence
of peers. The overabundance utilization of drugs can influence the
psychological advancement of an adolescent, bringing down his capacity to
assess dangers. Medications and liquor have been viewed as ground-
breaking contributors to juvenile crime.
The utilization of drugs and not appearing at school are interlinked, as one
causes the other. Adolescents who are dependent on alcohol and drugs are
bound to skip their classes than the individuals who are not. students who
are regular absentees are bound to fall into the clutches of substance
abuse. Non-appearance can contrarily affect school grades, which can
cause illiteracy, low confidence, and low desire for their future career
development. At the point when teens start failing at school, low
productivity and shame brought on by failure prompt them to move to
dangerous activities, engage in juvenile delinquency, and afterward face
detainment.
Getting affected by their peers' conduct, most teenagers engage in unsafe
actions and put themselves in dangerous and illegal situations. If children
are taught to differentiate between right and wrong, they can be more
cautious towards picking the way for themselves.
 Negligence- Teens having negligent parents tend to become careless
towards their academics, house chores, diet routine and overall physical
appearance. When parents do not pay any heed towards the personal and
social development of their teens, they think they have become
independent and take up the most important decisions of their lives on
their own. Poor socioeconomic status can also become a contributing
factor to juvenile crime, urging teens for burglary.
 Parents teach their children to differentiate right from wrong by giving
them examples. When parents do not play their role, teens follow
examples from their other family members, peers, and social groups. When
none of these concerned positive influences are present, they may suffer
from moral poverty which would most likely follow teens into their
adulthood. If moral values are not instilled in them in the formative years,
they may later turn to juvenile crime simply because to them the act won’t
seem immoral or wrong.

III. Psychopathy: the immutable factor

As discussed in the previous section children are not born criminals, but rather
influenced by their physical surroundings. It was also mentioned that most of
these circumstances can be avoided by particular care from parents at a tender
age, proper education and teaching them to differentiate between right and
wrong choices.

IV. The Nirbhaya case and why it is relevant to the study of juvenile
delinquents
V. What can we do to convict/ or not convict kids? (laws and reforms in
place)
VI. Conclusion
In conclusion, the criticism against doli incapax is strong especially in the Indian
context because children are plagued with various social and economic factors
like prolonged domestic violence, child sexual abuse, existing criminal tendencies
amongst family members, illiteracy and poverty, from a very early age, along with
psychological conditions like psychopathic disorder, sociopathic and narcissistic
disorders, etc. which can alter their understanding of criminal offences. Taking the
defence of Infancy is becoming more and more subject to scrutiny and Courts
have also started considering the physical environment of a child while dealing
with cases under sections 82 and 83.