What happens when a child commits a crime?

Published in

Nyaaya

5 min readMay 26, 2020

In the recent past, we woke up to news centred around ‘Bois Locker Room’, a private chat room in Instagram where several schoolboys engaged in sharing pornographic images of women, objectification of women and even spoke casually about raping girls. However, juvenile crimes are not a new phenomenon. The data by the National Crime Records Bureau (NCRB) on the crimes committed by children show that they have gone up by 47% in 2014 from 2010.¹

This presents the question of how to treat a child when they have committed a grave offence. It is important to make sure that they realise the gravity of their actions while at the same time give them a chance to reform. It is also important to not take a serious offence lightly and treat it as a mistake by the child which will be rectified over time.

Let us take a look at the juvenile justice system in India to know how we have tried to arrive at a balanced position.

Children under the age of 7

A child under the age of 7 cannot be charged with a crime no matter how serious the crime is.² This immunity exists because the law presumes that they do not have the mental capacity to understand the consequence of their action. Thus, without mental capacity or intention to commit the act, only the action would not be enough to call it a crime.

Children between the ages of 7 and 12

They are also considered to not have the mental capacity to commit a crime. However, if it can be shown that the child had the maturity to understand the consequences of their actions, they can be tried for the crime as per the juvenile justice law.³

The special law for children

Until 2015, children who committed crimes were tried under the Juvenile Justice (Care and Protection of Children) Act, 2000 where the maximum punishment for a minor committing a crime was 3 years in a correction home. In 2012 when the infamous Delhi gang rape occurred, one of the perpetrators was 17 years and 6 months old the day he committed the crime. Thus, he was tried as a juvenile offender and got the said maximum punishment of 3 years in a correction home. The public outcry caused due to this had a major role to play in the change in juvenile justice law of our country. The Act of 2000 was then replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’).

The Government cited the increase in juvenile crime as the reason behind the enactment of JJ Act, 2015. JJ Act of 2015 classified offences into 3 categories — petty, serious and heinous, according to the gravity of the offence committed. The severity of the punishment of juvenile offenders depended upon what category of offence they committed.

Children above 12 years old

Children above the age of 12 are capable of committing crimes in the eyes of law. They are tried under the JJ Act, 2015.

A child who is accused to have committed an offence or one who is found to have committed an offence is called a ‘child in conflict with law’ under the JJ Act, 2015.⁴

Children between the ages of 16–18

Petty and Serious offences

Children between the ages of 16–18 who commit petty or serious offences are tried before a Juvenile Justice Board constituted under the Act.⁵ After an inquiry, they can decide to do any of the following with the child⁶:

· Send the child back home with advice or warning and counselling of the child and parents

· Order for group counselling session for the child

· Order for community services to be undertaken by the child

· Order the guardians to pay a fine

· Release the child on probation of good conduct. In this case, the child will be placed under the care of the guardians or a fit person, who have the duty to execute a bond for up to 3 years

· Release the child on probation of good conduct and place the child under the care of a good facility

· Order to send the child to a special home for up to 3 years.

Heinous Offences

If a heinous offence has been committed, then a preliminary assessment can be conducted by the JJ Board to figure out the mental capacity of the children.⁷ The Board can take the help of trained psychologists and experts for this.⁸ After this assessment, the JJ Board can pass an order if they find that the child has not committed a crime.⁹

However, if they feel that there is a need for trial, they can transfer the case to the Children’s Court.¹⁰ The Children’s Court can then either¹¹;

Decide that the child should be treated as an adult for trial. Then, a regular trial will happen before this Court. The Children’s Court can generally pass the maximum sentence for a Heinous Offence (a sentence of more than 3 years) but it cannot sentence the child to the death penalty or life imprisonment without the possibility of release.

The Court may decide against the trial of the child as an adult. They can then conduct an inquiry and pass orders subsequently.

Ensuring a child-friendly atmosphere at all times

The JJ Board and the Children’s Court should take all steps to maintain a child-friendly atmosphere. Child-friendly has been defined as “any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child”.¹²

The ‘best interests of the child’ is an international legal standard laid down in the United Nations Convention on the Rights of the Child (UNCRC).¹³ UNCRC is the seminal instrument in the field of child rights. Article 3(1) lays down that the primary consideration of all agencies and bodies, public or private, must be the best interest of the child. Though the context and elements have not been laid down in this provision, it is clear that this international legal standard shall prevail in all actions that concern a child.¹⁴

Gatha Namboothiri is a student at NUJS, Kolkatta and a member of Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.

References

[1] Juvenile Crimes Rise 47%. But Adult Law May Not Help, available at https://archive.indiaspend.com/cover-story/juvenile-crimes-rise-47-but-adult-law-may-not-help-62928 (Dece, 2015).

[2] Section 82, Indian Penal Code, 1860 (IPC).

[3] Section 83, IPC.

[4] Section 2(13), JJ Act, 2015.

[5] Section 14, JJ Act, 2015.

[6] Section 18, JJ Act, 2015.

[7] Section 15, JJ Act, 2015.

[8] Proviso to Section 15, JJ Act, 2015.

[9] Section 18(1), JJ Act, 2015.

[10] Section 18(3), JJ Act, 2015.

[11] Section 19, JJ Act, 2015.

[12] Section 2(15), JJ Act, 2015.

[13] Article 3(1), Convention on the Rights of the Child (Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 and entry into force 2 September 1990, in accordance with article 49).

[14] Aruna J. Kashyap and Pratibha Menon, Demystifying the Best Interests Principle in India, CRY National Child Rights Research Fellowship, available at https://www.cry.org/resources/pdf/NCRRF/Aruna_&_Pratibha_2007_Report.pdf.