Report No. 42
4.21. Views on increasing minimum age of criminal responsibility.-
Noticing that in many countries the minimum age of criminal liability is fixed higher than in the Indian Penal Code, we included in our questionnaire, a question, "Do you consider that any increase is necessary in the minimum age of criminal responsibility which is 7 years at present. If so, what should it be?"
Among those who expressed an opinion on this question, a small majority were against an increase in the age mentioned in section 82. But there were a considerable number who would have it raised to 10, and some who even favoured 12 years as the minimum age.
Judges of High Courts were mostly against any change in the minimum age. According to some of them, there was no scientific basis for associating culpability with a particular age in the development of a child. Some thought that raising the minimum age might lead to increase in juvenile crime. It was also said that this was not a very great problem and sections 82 and 83 could be left as they were.
A Sessions Judge stated that "in view of the fact that children are now being sent to educational institutions at comparatively early ages, it is not necessary to increase the age from 7 years in order to fasten criminal liability. Besides, the sooner the criminal hit of a boy is curbed, the better it would be. The curb may be enforced by sending the boy to a reformatory school or some such institution."
Per contra, another Sessions Judge stated that in his opinion a child upto the age of 10 years was not capable of understanding the gravity of an offence committed by him and therefore the minimum age of criminal responsibility should be 10 years.
4.22. Law in other countries.-
The law in this respect varies considerably in other countries. In England the minimum age was raised to 10 in the year 1963. Under the Children band Young Persons Act, 1969, while the age of criminal responsibility remains unchanged, a child under 14 years cannot be charged and prosecuted for any criminal offence except homicide. A new concept of unenforceable criminal responsibility has been introduced in the case of children between 10 years and 14 years of age. The commission of an offence is, however, a possible pre-condition for a care or supervision order.
In Argentina, when a minor under 16 years of age commits a crime classified in law as a felony, a competent Judge proceeds to verify the crime and to obtain other information through the National Council of Minors, and if he considers it advisable, he may order the internment of the minor in an institution under the Council.
In Australia the minimum age is 7 years in Queensland, Western Australia and Tasmania, and 8 years in New South Wales, Victoria and South Australia.
In Canada, the law is similar to ours. A child under 7 years is completely exempt, and a child between the ages of 7 and 14 is exempt unless he is competent to know the nature and consequence of his conduct and to appreciate that it was wrong.
In France, it would appear that a child below 13 years of age is not punishable. If from the circumstances and the personality of the offender, it has been decided to impose a penal sentence upon a minor above the age of 13, elaborate rules are laid down requiring the substitution of a lesser sentence for the normal sentence.
While the minimum age is 14 in the Federal Republic of Germany and in Norway, it is 15 in Denmark. In the United States the age .of absolute incapacity varies from State to State between 8 years and 12 years. In one State, New Jersey, it is as high as 16 years. As regards Asian countries, the minimum age is 7 years in Thailand, Ceylon, Iraq, Syria and Lebanon; 9 years in the Philippines; 11 years in Turkey and Iran; and 14 years in Japan.
4.23. Increase of minimum age to ten recommended.-
In view of this wide variation, we carefully considered the question whether any increase in the minimum age is necessary or desirable. The age at which a child can understand the nature of his act and its consequences is not necessarily 7 years it could be 8 or 9 or 10, or even more. The age of 7 mentioned in section 82 is in a sense arbitrary, but then any other age would be equally arbitrary.
With the establishment of juvenile courts and other agencies exclusively concerned with juvenile crime, the need for the application of the penal law in the ordinary sense decreases in the case of children. Society could well regard delinquent children, not as criminals in the sense in which adult offenders are regarded, but as persons requiring treatment. An amendment of section 82 could with some justification, be suggested on the ground that the stigma of a criminal conviction should not attach to any child below, say, the age of ten. The act of the child should not amount to an offence, the child committing the act should not be liable to arrest or prosecution, and the ordinary machinery of the criminal courts should not be applicable to him even in theory.
What higher age should be substituted from this point of view can be a matter of controversy. Having regard to conditions generally existing in Indian families, we are inclined to suggest 10 years as the minimum age. Upto that age parents, by and large, are still able to control the conduct of the child and no serious harm is likely to be caused if criminal liability is not attached to the child's act.
4.24. Amendment of section 82.-
At the same time, it seems to us very necessary that legislation for the care and protection of children should be enacted in all those States1 where it has not so far been enacted, and it should be properly enforced in the States where it has already been enacted. On the assumption that this will be done, we recommend that section 82 may be amended by substituting "ten years" for "seven years".
1. Bihar, Orissa and Rajasthan.
4.25. Section 83 omitted.-
With the above amendment of section 82, section 83 will practically lose its utility. We do not think it is worthwhile retaining it for offending children between the ages of 10 and 12, and propose its omission.
4.26. Section 8.- based on M'Naghten Rules.-
Section 84 exempts the act of a person of unsound mind from criminal liability in the following terms.-
"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
In his Draft Penal Code, Macaulay had suggested two sections (66 and 67), one stating that "nothing is an offence which is done by a person in a state of idiocy" and the other stating that "nothing is an offence which a person does in consequence of being mad or delirious at the time of doing it." The Law Commissioners, in replacing these two sections of the Draft Penal Code by section 84, appear to have adopted in a brief and succinct form the test laid down in England by the so-called "M'Naghten Rules"1. The essence of these Rules is contained in the following passage which is constantly quoted or referred to by judges.-
"The jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong."
1. These are the replies of the judges to the five questions put to them in 1843 by the House of Lords in the case of Daniel M'Naghten. The passage quoted is from the answer to questions II and III.
4.27. Rule criticized as based on misconception of nature of insanity.-
The British Royal Commission on Capital Punishment, which made its Report in 1953, noted that this test "was strongly attacked almost as soon as it was formulated, mainly by members of the medical profession, but also by lawyers, notable by Fitzjames Stephen, and it has been subjected to constant criticism ever since"1. Doctors with experience of mental disease "have contended that the M'Naghten test is based on the "entirely obsolete and misleading conception of the nature of insanity, since insanity does not only, or primarily, affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including both the Will and the emotions. An insane person may therefore often know the nature and quality of his act and that it is wrong and forbidden by law but yet commit it as a result of the mental disease.
He may, for example, be overwhelmed by a sudden irresistible impulse; or he may regard his motives as standing higher than the sanctions of the law; or it may be that, in the distorted world in which he lives, normal considerations have little meaning or little value."1 However, "the Court of Criminal Appeal has consistently upheld the validity of the Rules and refused to approve their extension to cover the 'irresistible' or 'uncontrollable' impulse. The Court has also declined to enlarge their interpretation in other respects. Thus it has held that the words 'the nature and quality of the act' must be taken to refer only to the physical character of the act and not to distinguish between its physical and moral aspects and that 'wrong' means in effect 'punishable by law'2"
1. Report, para. 227.
2. 'Report, para. 229.
4.28. Tests recommended by a Royal Commission in 1953.-
After a deep and extensive study of the laws of other countries as well, the Royal Commission came to the conclusion that the test of responsibility laid down by the M'Naghten Rules was so defective that the law ought to be changed. They suggested that, if the alteration were to be made by extending the scope of those Rules, the formula might be.-
"The jury must be satisfied that at the time of committing the act the accused, as a result of disease of the mind or mental deficiency, (a) did not know the nature and quality of the act, or (b) did not know that it was wrong, or (c) was incapable of preventing himself from committing it."1
They, however, considered that it would be preferable to abrogate the M'Naghten Rules and leave the jury to determine whether, at the time of the act, the accused was suffering from disease of the mind or mental deficiency to such a degree that he ought not to be held responsible. Neither recommendation was accepted in Britain.
1. Report, para. 317.
4.29. Provision in some criminal Codes.-
We find that the criminal codes of some of the Provinces of Australia provide for the plea of "irresistible impulse". Thus, the Tasmanian Criminal Code enacts in section 16:
"(1) A person is not criminally responsible for an act done, or for an omission made, by hi.-
(a) when afflicted with mental disease to such an extent as to render him incapable of
(i) understanding the physical character of such act or omission; or
(ii) Knowing that such act or omission was one which he ought not to do or make; or
(b) When such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.
(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such "act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist."
Similar provisions are to be found in the Criminal Codes of Queensland and of West Australia.
The American Law Institute has suggested1 the following test.-
"(1) A person is not responsible, for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality2 [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct."
In France, Article 64 of the Penal Code provides that "there is no crime or offence when the accused was in a state of madness at the time of the act or in the event of his having been compelled by a force which he was unable to resist."
Article 10 of the Swiss Penal Code is to the effect that "any person suffering from a mental disease, idiocy or serious impairment of his mental faculties who, at the time of committing the act, is incapable of appreciating the unlawful nature of his act or of acting in accordance with this appreciation cannot be punished."3
We may also refer to "the Durham Rule', followed in the District of Columbia (U.S.A.). The rule is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. We use 'disease' in the sense of a condition which is considered capable of either improving or deteriorating. We use 'defect' in the sense of a condition not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.4
1. A.L.I. Model Penal Code, proposed Official Draft 196.-section 4.01.
2. The choice between the words "criminality" and "wrongfulness" is left open by the Institute.
3. The law on the subject in some other countries is given in Appendix 'A' of the Royal Commission's Report, op. cit., pp. 407 to 413.
4. Durham v. United States, (1954) 94 US App DC 228: 14 F 2d 862.
4.30. Questions on the subject and opinions thereon.-
In view of the strong criticism to which the M'Naghten Rules have been subjected in Britain and in view of the recognition given to the plea of "irresistible impulse" in the penal laws of several countries we included in our Questionnaire the following question.-
"12. (a) Should the existing provision (section 84) relating to the defence of insanity be modified or expanded in any way ?
(b) Should the test be related to the offender's incapacity to know that the act is wrong or to his incapacity to know tliat it is punishable?
(c) Should the defence of insanity be available in cases where the offender, although aware of the wrongful, or even criminal, nature of his act, is unable to desist from doing it because of his mental condition?"
The majority of the views expressed on part (a) of the question were strongly opposed to any change in the existing section. Most of these replies seemed to assume that, even theoretically, the present provision is adequate. They pointed out a number of practical difficulties which were likely to arise, if the provisions of the section were made more liberal. The decision would then have to depend on medical opinion to a greater degree than at present.
Serious doubts were expressed as to whether medical experts of the requisite quality would be available all over India particularly in the districts. These opinions also stressed that the present provision caused no practical difficulty; and if in a particular case not falling strictly within the terms of section 84, the mental condition of the accused was such as to deserve special consideration, it could be left to the prerogative powers of commutation and remission vested in the President and the Governor.
As regards part (b) of the question also, the majority of the replies suggested no change. Some expressed the view that the test should be knowledge of what is "wrong", and others that it should be knowledge of what is punishable by law.
As regards part (c), there was little support for specifically including "irresistible impulse" in section 84. Some of the opinions considered that this was not strictly insanity. The main objection was that any such provision would make the trial of the issue more difficult for the judges than the present provision.