Age of penal majority, Doli Incapax in South Asia

jivesh-jha
Jivesh Jha
By Mridu Iyer and Jivesh Jha, Dehradun
5 November 2016

It’s always disappointing to see a person of tender age knowingly or unknowingly commit an offense. Presently, a child may be charged with an offense However, a common question that gains ground in criminal jurisprudence, is how old a person has to be before they can be convicted of a felony.

The most urgent question for the member states of South Asian Association for Regional Cooperation (SAARC) is whether we should ever involve young children in the criminal justice system. It is presumed that a child of below seven or between the ages of seven to 12, cannot commit an “intentional” crime, and they should not be held liable for any acts done by them as they are not in a position to make a fair distinction between right and wrong. This rule is commonly known as the common law doctrine of doli incapax.

What is Doli Incapax?

The doli incapax is a long stayed common law doctrine translated from Latin as ‘Incapable of Evil’. In common law, a child below the age of 10 is presumed to be incapable of forming a criminal intent, and if any offense is committed by them, they are immune from criminal liabilities. Those children falling under the age of 10 are considered to be incapable of forming a guilty mind, which is known by the popular legal maxim of “doli incapax”.

The age of Minimum Age of Criminal Responsibility (MACR) was set at seven in British Common law in 17th century. It was elevated to eight in 1933, and to 10 in 1963.

Doli Incapax in South Asia

The doli incapax provision of British common law does not occupy the same status in SAARC states.

Despite many similarities, the South Asian states are divided over the MACR laws because of their ‘distinct normative structures.’ There appears no absolute rule of MACR in SAARC countries.

The MACR in South Asia ranges from seven (India, Pakistan) to 12 (Afghanistan). Bangladesh has elevated the age from seven to nine, and in Bhutan, Maldives and Nepal, it is 10.

So the underlying difference is found even in doli incapax provisions.

“Nothing is an offense, which is done by a child under seven years of age,” prescribes Section 82 of the Indian Penal Code (IPC)-1860, the eldest penal charter in the region, beginning with a marginal note of “Act of a child under seven years of age.” The similar arrangement has been provided under Section 82 of Pakistan Penal Code (PPC)-1860. Unlike India and Pakistan, Bangladesh Penal Code (BPC)-1860 sets MACR at nine years which came into force after the amendment Act of 2004 in Section 82 (of BPC-1860).

Notably, the IPC-1860 is a colonial legislation which was applicable to the whole of British India. After independence, the two splinter countries–Pakistan and Bangladesh—adopted the same statute of substantive criminal law, but with certain amendments and modifications in name of the Act. Unlike India, Pakistan named it as Pakistan Penal Code (PPC)-1860, and Bangladesh termed it as Bangladesh Penal Code (BPC)-1860. The statute-1860 contains as many as 511 Sections.

Similarly, the Sri Lankan Penal Code-1885 maintains that a child younger than eight is incapable of doing harm to others and no child younger than eight can ever be found criminally responsible. The provision is expressly enacted under Section 75 of the Code-1885 containing as many as 490 Sections.

Ironically, the Afghani Penal Code (APC)-1976 sets out the doli incapax age at seven under Section 72 from its inception, while Section 10 (1) of Juvenile Code provides, “Children who have not completed the age of 12 are not criminally responsible.” Offering room for ambiguity, the succeeding clause provides, “To those who are in between 7 and 12 years of age and have committed a crime the measure indicated in paragraph 2 of Section 45 can be applied in place of penal punishment.”

Section 45 adopts for any one among: 1) Warning 2) Supervision of social services and 3) Confinement to a rehabilitation center. Further, legal representatives of children are liable according to the civil law for the harms produced by children, if they have not exercised their duties of education and control,” reads clause 3 of Section 10 of Juvenile Code.

Moreover, Section 76 of APC-1976 provides that if a minor commits felony whose punishment is death or continued imprisonment, the court can order his quarantine in the Correction House or any organizations for not more than five years.

Section 70 of APC-1976 defines minor as a child “between the ages of seven to 13 years.” The provisions relating to ‘Age’ has been enshrined under Section 70 to 93 of the APC-1976 that embodies a total of 523 Sections.

However, Section 54 of the APC-1976 provides that if a father and teacher punishes a son or student, it shall not amount to crime but the punishment should be within the limits of religious and other laws. The clause may impact on the rights of children and may be used as justification (or shield) to uphold the actions of teachers or parents which currently appear to be conflicted towards the children who were incapable of making a distinction between right and wrong.

The provisions relating to doli incapax in Afghanistan has potential to produce a stream of ambiguity in regards to theJuvenile Code’s deliberate and conscious departure from the APC-1976.

In contrast, Section 11 of Children’s Act-1992 of Nepal, beginning with a marginal note of “Child and Criminal Liability” rolls out ,“If a Child below the age of 10 years commits an act which is an offence under a law, he shall not be liable to any type of punishment.” The Act-1992 also slams any form of offering to the child in the name of god, or engaging a child in begging or shaving of the head. The Act-1992 enshrines a total of 59 Sections.

Meanwhile, Sections 114 of Bhutanese Penal Code-2004 provides that if the defendant child is of 10 years or below, he shall not be held liable for any offence committed by him. However, Section 6 of the Maldivian Penal Code-1968, which contains a total of 166 Sections, also shares a similar story.

Code-2004 contains 514 Sections.

Rebuttable Presumption and sufficient maturity:

In criminal jurisprudence it’s settled law that a child above doli incapax, but still a minor, who has not attained the requisite degree of understanding and maturity to judge the nature and consequence of his conduct, should be exempted from criminal responsibility. The presumption of the innocence of a child is based on the principle that ‘the younger the child is in age, the lesser the probability of being corrupt.’ Hence, it provides a qualified immunity to a child above doli incapax.

a. Rebuttable Presumption in England

It was held in R. Versus Gorie, (1909) that at common law, a child aged between ten and fourteen is rebuttably presumed incapable of committing an offence. This presumption is rebutted if the prosecution proves that the child had a mischievous discretion.

This is to say malice makes up for age, i.e., militia supplet aetatem. Hence, as age advances, the maxim loses force.

Notably, the doctrine is yet to attain an absolute force as it’s a rebuttable presumption. This means a child of sufficient maturity who could understand the consequences of his actions and who can also make a fair distinction between right and wrong may be convicted of an offence.

b. Rebuttable presumption in SAARC

The South Asian nation’s script rebuttable presumptions are not dissimilar to England. For instance, Section 83 of IPC-1860 provides a qualified immunity to a child above seven years and under 12 years of age. In other words, a child of 7-12 years is qualified to avail defense of doli incapax, if it is proved that he has not attained the maturity of understanding to judge the nature and consequences of his act. The PPC-1860 also prescribes the similar arrangement. However, the Section 83 of BPC-1860 ensures qualified immunity for a child above nine and below 12.

Likewise, Sri Lankan Penal Code (Section 76) provides qualified immunity to a child of below 12 and above eight.

However, a child of above doli incapax age (i.e., 10 years) can be punished, according to Maldivian Penal Code. “Except in respect of offences relating to the religion of Islam or homicide, the Judge shall have the discretion to mitigate the punishment in respect of every other offence committed by a person under 16 years of age who is found guilty under this Law,” reads Section 7 of the Code.

Nepal a step ahead

At a time when the minors of above doli incapax are too regularly found to be committing crimes, the Nepalese legal system makes the arrangement of punishing them.

“If the age of the Child committing an offence which is punishable with fine under law, is 10 years or above and below 14 year s/he shall be admonished and convinced and if the offence committed is punishable with imprisonment, he shall be punished with imprisonment for a term which may extend to six months depending on the offence,” reads Section 11(2) of Nepal’s Children’s Act-1992.

So, the Nepalese criminal justice system has succeeded enough to rule out qualified immunity to a child of above doli incapax age, who is still a minor.

After Nirbhaya’s rape case in 2012, people in India, from all walks of life, demanded stricter punishment for rapists. The people were of the view that a rapist, even if he is a minor, should be treated like an offender of major age. However, the Indian parliament is still discussing the possibility of script laws in parallel to Nepal.

Venting ire against the minor who has developed sufficient maturity, Nepalese law provides “If a Child committing an offence is 14 years or above and below 16 years, he shall be punished with half of the penalty to be imposed under law on a person who has attained the age of majority,” reads Section 11(3).

Unlike India, the Bhutanese Penal law enacts, “If the defendant child is above 10 years, the Court may sentence the juvenile to a minimum of half of the sentence prescribed for the offence,” Section 115.

However, the AFC-1976 provides that a minor child between the age of seven and 13 years (Section 70) shall be sent to Correction Homes when he is charged with a criminal act.

This presumption may be rebutted by evidence if it’s proved that he knew that the act was wrong and was not simply mischievousness. Under the age of 12, allowances are made for the variable capabilities of a child.

The principle of rebuttable presumption prescribes that the prosecution has to prove that the defendant had actual knowledge that what he or she did was seriously wrong behavior and not merely naughty behavior.

a. Rebuttable presumption: Shield or Sword

The doctrine has become a controversial topic in recent days when minor children are also committing criminal offences.

In R. Versus JTB (2009) the House of Lords in England held that presumption of doli incapax in case of a child between 10 and 14 is abolished vide Crime and Disorder Act, 1998. The defendant was charged and convicted when it was proved that he had outraged the modesty of a minor female child.

So the time has come to rethink doli incapax and rebuttable presumption. The whole of humanity comes under attack when a personof tender age commits a crime of a heinous nature. . With the advancement of technologies, children these days may advance more quickly than they once did. So, its not simply unethical, but also immoral, to place the same yardstick for all children above doli incapax age.

Secondly, New Delhi, the capital city of India, represented all of India with shame on 16th December 2012, when an innocent Nirbhaya, 23, was brutally raped byfive ‘rascal’ men, including a minor, in a moving bus. She suffered with grievous internal injuries due to sexual assault with an iron rod and died thirteen days later while undergoing emergency treatment in a Singapore-based hospital. The doctors, who measurably failed to give her life, had asserted that they were unable to explain what and how she had faced what she had. They themselves struggled to explainNirbhaya’s situation.

There are other stories too, but these two–one from India and the other from England—will suffice to prove that a child of above doli incapax age (i.e. 7) can commit these kinds of crimes.

So, it is pertinent to ink the letters of penal laws with: The defense of doli incapax and rebuttable presumptions are the two different things and it cannot be removed as a defense.

b. Low birth registration may allow manipulation of age

In South Asia, reports from the United Nations reveal that almost 65% of all births go unregistered. It means that a sizeable chunk of children in the region do not have birth certificates to prove their actual ages.

With figures so high, the prosecution may find it difficult to land a conclusion as to whether a child in conflict with the law was older or younger than the MACR. Secondly, the case may be further delayed when there is the requirement of a medical examination to determine the age of the defendant child. The case may be even more traumatic for street children, who are left with no means and no identity.

Moreover, the case may be complicated by the production of falsified documents to prove their age.

Say no to doli incapax: Pakistan, Maldives

Showing satisfaction with ‘Islamic’ jurisprudence, the Pakistani parliament brought ‘The Offence of Zina (Enforcement of Hudood) Ordinance, 1979’ to deal with the offence of rapes, blasphemy and ‘anti-Islamic activities.’

The Ordinance-1979 provisions that he or she (of any age)being guilty of any heinous crimes shall be stoned to death at a public place; or be punished at a public place with whipping numbering one hundred stripes.

In the explanation clauses, it’s provided that the presiding officer of the Court must be a Muslim; however, if the accused is non-Muslim, there can be a non-Muslim Presiding Officer.

Moving neck-to-neck with Pakistan, the Maldivian law envisages that even a child of seven can be sentenced to death for an intentionallly heinous crime.

Universal Legislation: A need of hour

At a time when criminal offences are taking an aerial route and minors are becoming authors of crimes, there is a dire need of a criminal law, slapping liabilities on persons of any age who is found to have indulged in offences of a heinous nature.

There should be a fresh debate into whether minors should be made criminally responsible within the adult criminal justice system for infringements of the penal law.

The liabilities for criminal damage should be “determined according to the standard of an ordinary reasonable adult irrespective of the age or intellectual capabilities of the offender when the criminal damage offence is committed,” held the House of Lords in R. Versus Gorrie’s case. And, yes, the Children’s Act of Nepal has also made arrangement similar to that of Gorie’s case.

On occasion, a minor who commits an offence should not be excused from criminal liabilities just because of his minority—even as he knew that his act was seriously wrong.

Doli incapax and the requirement

Indeed, the prosecution cannot state that the defendant must have known due to the seriousness of the criminal act. The purpose of this rule is to prevent the prosecution from rebutting presumption and convicting a child who has been merely naughty and was unaware of the consequences of his act.

In this modernized, or let’s say globalized world, a child develops a level of understanding when they reache around their 12th birthday. The case may be contrary in case of persons who are yet to be affected with the fever of modernization.

Yes, the prosecution cannot claim that the defendant must have known his or her actions were criminally wrong because a ‘normal child’ of the same age would have. However, the parents from the very beginning keep teaching their children to be moral, respect women and respect the laws of the land.

The doli incapax provision should not be taken as a shield, but it should be taken as a sword, coming down heavily against the offenders of any age group. Yes, it’s submitted on all fronts that a child of below seven cannot commit rape. But the contrary intention may appear in case of a child of above 10. Then, is it a reasonable act to excuse a minor for his each and every action simply because of his minority? They should be sent into Correction Homes. They should not be treated like habitual offenders. But the time has come to treat them like offenders, not like children anymore.

And, yes, once again the authors want to draw your attention: This doctrine is a rebuttable presumption, not necessarily a defense to the charges against the defendant.

Mridu Iyer holds LLM from from IMS Unison university Dehradun while Jivesh Jha is currently a final year student of LLB at Uttarakhand Technical Univesity

The opinions and ideas expressed in this article are the sole responsibilities of the writers – Editor

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