What is the age of discretion for the purposes of fixing criminal liability ?

At what age is a person presumed to understand the moral quality or nature of his act and fathom it’s ramifications, for himself and others ?

Should we follow a case by case approach, examining a child’s mental growth or a standard age threshold like the present is working fine ? 

These questions have assumed great proportions in light of the recent turn of events, furthermore any decision would have great ramifications for a country with the most young people in the world !  Hence here is what I think of it sans the hyperbole, anger and rhetoric. 

In my view 18 is internationally recognized as age of immature discretion, and that’s the way it should be. Any standardized age would have a certain arbitrariness insofar as people on threshold for eg : 1 day up or down would be excluded and included. But that is a necessary evil. The Approach for examining mental maturity case by case is fraught with various problems, the first being our inability to dispassionately view things ! We are often moved by the gravity of the crime ! it’s intrinsic brutality and depravity and consider it to be a parameter of the understanding the capabilities of the perpetrator, which understanding is inherently flawed. Picture this  ! A 14 year old stealing bread or stabbing a person – these two acts do not reflect his understanding any differently. The gravity of offence is a bad indicator and a dangerous parameter on which to decide the fate of our children.

However premeditation and meticulous planning may be a factor that may indicate a person’s maturity of understanding, but examining it case to case would be a little problematic in our conditions and age of 18 is what we should stick to for the reasons of expediency, consistency – being a more humane approach. And the argument that people who are not juveniles are taking benefit ! I really don’t buy that – the courts are careful and competent enough and diligently take up enquiries and give benefit wherever is required !

So 18 it is ! Don’t forget any other view would be to expose our children to a world of crime ! yes that’s our prisons are – breeding centres of vices or criminality. OR we can treat them !  

We can’t lose sight of the fact that majority of these children come from conditions of extreme poverty, ridden with exploitation – economic, sexual, physical mental and what not !  We as a state, their immediate guardians do fail them when we fail to protect them from such exploitation. But we do cry for their blood when they seek to reverse the power equation by finding someone more vulnerable than them. We fail when a child works in a roadside bar, or in a dingy factory, doing things he should not be doing ! interacting with forces he should not at such age, Our society encourages profoundly sex, commodifies women and tells a child about sex in a way he should not know ! but when he succumbs (everyone does not have the same resistance or way of dealing with problems) we are the first to raise fingers.  Do take up ten cases and see the background of these kids ! The kind of lives they led before doing what they did ! A man is more oftenly a creature than a creator of his circumstances. Nobody is a born criminal – society makes one – circumstances make one ! 

And finally – punishment is never an end in itself – but a means to an end – the ultimate end being a society with lesser crime, better individuals the obliteration of the very need of punishment itself – Reclaiming people as better citizens ! And juveniles mind you have shown great potential for being brought into mainstream with levels of recidivism being very low.  Recidivism is much higher in regular prisons than juvenile observation homes !

Hence instead of getting into knee-jerk reactions to a very complex social problem, we should indulge in systematic discourse on the problems of criminal justice system, humanization of our prisons,  observation homes and finally on what our CHILDREN DESERVE. 

*The Author Bharat Chugh is an Advocate in the Supreme Court of India, and can be reached at bharat.law06@gmail.com