Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter III: General Exceptions > Defence of Infancy (Ss. 20 and 21 BNS)
The defence of infancy, also known as the โage of criminal responsibility,โ or โdoctrine of infancyโ is a legal principle that exempts individuals below a certain age from criminal liability due to their inability to fully understand the consequences of their actions. This defence is rooted in the belief that children, because of their limited cognitive and emotional development, cannot be held to the same standards of criminal responsibility as adults. The age threshold for criminal responsibility varies by jurisdiction, but it is typically set between 7 and 12 years old.
In legal systems that recognize the defense of infancy, the principle aims to protect children from the harsh consequences of criminal punishment and focuses on rehabilitation rather than punishment. It acknowledges that children are more vulnerable and may not possess the mental capacity to form the requisite intent or mens rea (guilty mind) required for criminal liability.
However, while infancy can shield minors from full criminal liability, it does not mean that children are exempt from legal consequences altogether. In many jurisdictions, if a minor commits an offense, they may be subject to a juvenile justice system that emphasizes rehabilitation and intervention rather than traditional criminal punishment. This approach reflects societyโs understanding of the evolving capacity of minors to understand right from wrong. In this article we shall study the Law of Infancy under Ss. 20 and 21 of the Bharatiya Nyaya Sanhita, 2023.
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Sections 20 and 21 BNS also called Law of Infancy or defence of infancy, confer immunity from criminal liability on child offenders. It is presumed that a child below the age of seven years is doli incapax. It means that such a child is incapable of doing a criminal act and cannot form the necessary mens rea to commit a crime. This presumption is conclusive and it emanates from the recognition of the fact that he lacks the adequate mental ability to understand the nature and consequences of his act and thereby an ability to form the required mens rea. Even though there may be the clearest evidence that the child causes an actus reus with mens rea, he cannot be held guilty once it appears that he, at the time he committed the act, was below the seven years. Thus, in legal sense both boys & girls were held to be infants under the age of 7 years & were immune from punishment under Law, they are under a natural disability of distinguishing between good & evil.
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Criteria for Distinguishing Liability of a Child in India:
- S. 20 BNS grants absolute immunity to children under the age of seven.
- Children aged seven to twelve have qualified immunity under S. 21 BNS, with the mental ability of the child being the determining factor.
- The Juvenile Justice (Care and Protection of Children) Act of 2015 governs children aged twelve to eighteen.
Section 20 BNS:
Act of a Child Under Seven Years of Age:
โNothing is an offence which is done by a child under seven years of age.
Note:
This Section corresponds to Section 82 of the Indian Penal Code, 1872
Ingredients of Section 20 BNS:
- Act is done by a child
- Under seven years of age
Actus rea and mens rea are two essential elements to impose criminal liability on accused. The act is exempted under the Sanhita from criminal liability where the accused is not charged of the crime committed. As the act shows absence of mens rea i.e., guilty mind. Thus, Section 20 BNS exempts a child below 7 years of age from criminal liability.
In Quean v. Lukhini Agradanini 1874 case, the Court held that merely the evidence of that age would be a conclusive proof of the innocence of a child and would โipso-factoโ be an answer to any charge against him.
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Section 21 BNS:
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.
Note:
This Section corresponds to Section 83 of the Indian Penal Code, 1872
Ingredients of Section 21 BNS:
- Act is done by a child between 7-12 years of age
- Has no sufficient maturity of understanding
- To judge the nature and consequences of his conduct is no offence
Section 21 BNS provides that nothing is an offence which is done by a child above seven years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conductย on that occasion. In a childโs life the period between 7 and 12 years of age is rather the twilightย period of transition to a minimalย workable level of understanding of things in the firmament of a worldly affairs. And that is why, both the Bharatiya Nyaya Sanhita, 2023 and the Oaths Act have made special provisions for children below 12 years in respect of matters dependent on a minimal power of understanding.
The proof of attainment of sufficient maturity can be derived at by a court on the consideration of all the circumstances of the case. It can be inferred from the nature of the act and his subsequent conduct and other allied factors such as his demeanour and appearance in the court. It need not be proved by the prosecution by positive evidence.
In Ulla Mahapatra v. The King, AIR 1950 Ori 261case, where a boy eleven and below twelve picked up his knife and advanced towards another. He threatened the other by saying that he would cut him into bits and did actually what he said. It was held that he was having sufficient maturity of understanding, because he did what he intended.
In Abdul Satar v. The Crown, AIR 1949 Lah 51 case, where two accused both under the age of twelve, broke through the locks of two stores and walked inside with the purpose to steal. They used the defence of a lack of maturity. The court ruled that the accusedโs behaviour of opening the shopโs locks demonstrates his maturity level.
In Walters v. Lunt, [1951] 2 All ER 645 case, where the parents of the child aged 7 years were charged with receiving from their son a childโs tricycle knowing it to have been stolen by their child. It was held that the parents must be acquitted on the ground that, since the child could not steel the tricycle was not stolen property.
In Makhulshah v. State, (1886) 1 Weir 470 case, where the accused purchased for one anna, from a child aged six years two pieces of cloth valued at 15 annas. ย which the child had taken from the house of a third person. It was held that, assuming that a charge of an offence of dishonest reception of property (Section 411 IPC) could not be sustained, owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation. If he knew that the property belonged to the childโs guardians and dishonestly appropriated it to his own use.
Beyond the age of 12, there is no immunity from criminal liability, even if the offender is a person of undeveloped and incapable of understanding the nature and consequences of his act. All these juveniles in conflict with law is now governed by Juvenile Justice Act, 2000.The perusal of JJ act makes clear that it is not giving any punishment for juveniles but at the same time it is not exonerating the juveniles from criminal liability. But it would appear that something akin to immunity is provided to delinquent juveniles under this Act.
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Conclusion:
A child is considered innocent, and any wrongful act done by a child cannot be said to be a crime or an offence as it lacks mens rea (guilty mind). Sections 20 and 21 also called Law of Infancy confer immunity from criminal liability on child offenders. These sections follow the principle of doli incapax, which provides that a child is considered incapable of forming the intent to commit a crime or tort. In India, infant defence is still in its preliminary stages. Even though the courts have taken a progressive position. There have been instances of severe crimes that have compelled the judiciary and even the legislature to take stringent action, such as the juvenile amendment in 2015.
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