Age, a Gray Area Under Bharatiya Nyaya Sanhita: Critical Analysis

9th May, 2025 - 7:13 am Categories: Judiciary 0 Comments

Bharatiya Nyaya Sanhita [BNS] is said to be the official criminal code of India as a country. BNS, 2023 was enforced during the year of 2024 and is divided into 20 chapters and 358 sections.

It has been made clear through various case laws that, for a crime to be committed there are 2 elements requirement firstly actus rea and secondly mens rea [meaning guilty act and guilty mind]. It can be said that BNS has been framed under the maxim of “actus non facit reus mens sit rea” [meaning, an act itself doesn’t make the defendant guilty unless he has the intention to] wherein one should be punished for the guilty act that he had intended to do so.

It’s always been said that children are those human beings who have got no maturity and even if they do something wrong, it would be out of their innocence. This understanding has a stronger holding in the Indian culture, wherein kids are treated equally to God for their innocence and no-fault making ability. Due to this the laws of the country clearly demarcates between acts of adults and children.

In India, it’s been considered that a child is any person who is below the age of 18 years unless the law otherwise says so. Age 18 is set as the age of an adult due to scientific reason of one reaching their puberty and reaching a point wherein no more physical growth can be seen. The limitation of the law’s applicability was merely done on the basis of the age of the person and not maturity.

This blog will be focusing on the factor of age being a major restriction for providing justice especially for grievous crimes including the loop holes found in certain specific sections related to juveniles under BNS and the alternative option to age that could be considered as a criteria for determining the mens rea of the person while the act was done.

The legislative has made great effort on bringing up punishments regarding all sort of crimes whether heinous or non-heinous crimes. But even after this constant effort there are still exists loopholes in various areas of the laws enforced.

Age is one of the essential elements wherein loopholes can be seen. Section 20 of BNS, 2023 mentions that any act of offence done by a child below the age of 7 years won’t be held liable.[1] Section 21 of BNS, 2023 mentions that any act of offence done by a child above 7 years and below 12 years will not make the child liable if they don’t the maturity to understand the consequences and nature of the act conducted.[2]

If seen clearly, section 20 and 21 talks about below and above 7 years respectively, so the question that arises is what would be the liability of a child of the age of 7 years. BNS hasn’t given clarity over the age limitation with regards to 7 years of age that is whether a 7-year-old kid will be doli incapax [Sec 82] or doil capax [Sec 83]. But through various judgements given, such situations are considered as dol incapax like in the case of Krishna Bhagwan v. State of Bihar, wherein it was said that, “if a child who is accused of an offence during the trial, has attained the age of seven years or at the time of the decision the child has attained the age of seven years can be convicted if he has the understanding knowledge of the offence committed by him.”[3]

But again, this judgement can be criticized on the basis of the maxim of ‘quia militia supplet actatem’ meaning ‘malice makes up for age’, as at the age of 7 there still stands a requirement for knowing whether the child understands the nature and consequences of his act and consequently being held criminally responsible for his act. But since, this is not satisfied under either of the sections due to lack of explicit mentioning with regards to 7 years of age, it still stands to be of the concern.

The next question standing here is, why does age become a major factor of concern when we talk about grave/heinous crimes?

Juvenile is a person who is under 18 years of age, therefore not being regarded as an adult or being held liable for the crimes committed by them. A juvenile is different from a minor as a juvenile is a young criminal but a minor is about one’s legal capacity. Juvenile delinquency with regards to heinous crimes, has increased gravely from 2012 to 2022 from 27,936 crimes to 30,555 crimes respectively according to the NCRB reports.[4] One of the reasons for an increase in minors committing grievous crime is due to them having knowledge that nothing harsh can be done by law since they still haven’t attained the age of a major which occurs majorly due to their behavioral changes due to attaining puberty.

One of the most famous cases is Nirbhaya Rape case[5], wherein a juvenile was involved and thereby making the case much more of importance and in this case, it was also said that the juvenile was said to be the most brutal person out of all 6 of the people who were involved in the case. Initially the juvenile was only punished under Juvenile Justice [Care and Protection of Children] Act, 2013, wherein he was sent to the Juvenile home for 3 years which was the maximum during that period before the amendment took place subsequently.

Before the bill was passed after the Nirbhaya case, the law said that whosoever was under the age of 18 would be sent to a Reform Facility for a maximum period of 3 years. But after the bill was passed, the law was reformed to, juveniles between the age of 16-18 also being held liable like an adult by looking into their mental and physical capacity to commit a heinous offence through a preliminary assessment[6]. Therefore, after passing the bill, it was considered that, if a juvenile commits a heinous crime, then they would be punished as an adult under the Indian Penal Code, 1860 and thereafter under Bharatiya Nyaya Sanhita as well.

In Govindraj S/O Ninganna v. The Sate, the court’s judgement stated, “Acting U/Sec. 15 of Juvenile Justice Act [Care and Protection of Children Act, 2000], the juvenile is found guilty and convicted for the offence punishable U/Sec. 376 of IPC and he is sent to the special home for 3 years and the juvenile is acquitted for the offence punishable U/Sec. 7 of PCR Act.”[7]

Even though such changes have been brought to the laws, the question that triggers’ is, can age be considered as a criterion for determining mens rea of the person?

Age is just a number and therefore doesn’t stand as the best criterion for determining one’s maturity. While we talk about maturity, the aspect that is looked into here is that, the level of understanding and knowledge of the juvenile, while also considering family background and environment of the juvenile in which they were brought up to. There are two pieces to neurobiology, firstly, gray matter wherein personality development takes place. Secondly, white matter wherein emotional impulsivity is overridden. It is known that the brain development is asymmetrical, therefore, there are situations wherein one can easily process the positive feelings that comes with reward but not the negative consequences of making mistakes to the same extent. This continues until mid-20’s. So, itself for holistic maturity, cognitive development in the 20’s stands to be very crucial[8].

But the laws say differently, the mens rea that the law talks about is something that a person has, once they attain 18. It’s illogical that, if a juvenile of 15 years commits heinous offence before 3 days of his birthday won’t be prosecuted due to being a juvenile [15 years] at the time of commission of crime but at the same time if he did the same crime 3 days after his birthday, then he would be punished under BNS like an adult. The question that arises here is, how much maturity could he attained in those 3 days after his birthday. The same question can be asked with section 20 and 21 of BNS, where the constrain of age is seen.

It has for sure been assured by the court that, there are preliminary assessment to determine the same but that is only for certain situations. This doesn’t stand to be the best criterion for determining the mens rea of the person. The experience that a person attains in their life is what mainly makes up their maturity and that has to be considered more than the age of the person.

India has the most exhaustive legal system and therefore large amount of loop holes can be found, which has to be rectified. One of such a loophole is the limitation of age in the law, thereby restricting the process of providing justice completely.

It’s high time that the legislative works on this, and remove the loophole of age from these sections. One way of doing so is by basing the justice system on the level of maturity that the person holds through psychological tests.

Their understanding, interpretation, impulsivity, life experience, etc. matters when it comes to determining a person’s maturity. It’s the maturity that the person has that can determine the conduct of the person. Just like how medical insanity is not the same as legal insanity as legal insanity is when the person cannot interpret the law and further, likely said, even age due to birth is to be treated different from legal maturity since interpreting the law and consequences of actions in it’s true sense is a result of maturity of the person.

Therefore, a new standard has to be brought to the law for enforcing justice in the most appropriate manner and thereby attaining the ultimate aim of establishment of judiciary.

Author: Sneha Rajendran, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1] Bharatiya Nyaya Sanhita, 2023, § 20, No. 45, Acts of Parliament, 2023 (India).

[2] Bharatiya Nyaya Sanhita, 2023, § 21, No. 45, Acts of Parliament, 2023 (India).

[3] Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217.

[4] Manya Verma, Silence Shadows: Addressing Rise the of Juvenile Crimes in India, The Legal Quorum, (Feb. 17, 2025, 11:02 a.m.), https://thelegalquorum.com/silence-shadows-addressing-the-rise-of-juvenile-crimes-in-india/.

[5] Mukesh v. Sate for NCT OF Delhi, 2017 SCC Online Sc 533.

[6] Juveinile Justice [Care and Protection of Children] Act, 2015, § 15, No. 45, Acts of Parliament, 1949 (India).

[7] Govindraj S/O Ninganna v. The State, Cr. Revision Petition No. 200061/2016.

[8] Sophia Laurenzi, Gray Area: Young Adults have no place in the criminal justice system, Medium.com [Aug. 23, 2023, 8:43 PM], https://medium.com/on_second_thought/gray-area-young-adults-have-no-place-in-the-criminal-justice-system-541f476e99fa