LLM Notes: Constitutional and Penal Code Conceptions of “Child”: A Critical Examination under Indian Law

 Main Takeaway: Indian law adopts distinct age thresholds for defining a “child” in constitutional versus criminal contexts, leading to inconsistencies that impact rights protection, criminal liability, and policy coherence.

I. Constitutional Conception of “Child”

The Constitution of India does not provide a single, express definition of “child.” Instead, it advances age-based protections and rights across fundamental rights and Directive Principles:

1.       Article 15(3) empowers the State to make “special provisions for children,” implicitly recognizing their distinct status without stipulating a specific age.

2.       Article 21A guarantees “free and compulsory education to all children of the age of six to fourteen years,” embedding an under-14 threshold for educational rights.

3.       Article 24 prohibits the “employment of children below the age of fourteen years in any factory, mine or other hazardous employment,” reinforcing under-14 as the minimum working age.

4.      Directive Principles (Article 39(e)–(f)) direct the State to ensure that children are not forced into vocations unsuited to their age or strength and receive opportunities for healthy development.

5.       Other DPSPs include Article 45 (early childhood care and education for children below six) and Article 46 (protection of weaker sections, including children).

UNCRC Influence: India ratified the United Nations Convention on the Rights of the Child, wherein “child” means anyone below 18 years. Although not self-executing, this has informed domestic statutes such as the Juvenile Justice Act.

Despite these provisions, constitutional texts employ multiple age-bands—under 6, 6–14, below 14—without a unified definition of “child,” reflecting policy distinctions rather than a singular legal category.

II. Penal Code Conception of “Child”

The Indian Penal Code (IPC), 1860, adopts an age-and-maturity framework for criminal liability rather than protection rights:

1.       Section 82 exempts children below seven years from criminal liability outright, presuming no capacity to form mens rea.

2.       Section 83 exempts children above seven but under twelve if they “have not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion,” making maturity a case-specific inquiry.

3.       No express definition of “child” beyond these exemptions, leaving ages 12–18 within the general criminal regime without special treatment under the IPC itself.

4.      Bharatiya Nyaya Sanhita (2023) later defines “child” as “any person below the age of eighteen years” for criminal procedure, aligning with juvenile justice norms but separate from IPC provisions.

This bifurcated approach focuses on capacity and culpability, with very young children per se non-culpable and pre-teens potentially exempt based on maturity, while older minors (12–18) face adult-equivalent penalties under the IPC, unless covered by juvenile justice statutes.

III. The Juvenile Justice Act and Harmonization

The Juvenile Justice (Care and Protection of Children) Act, 2015 defines a “child” as a “person who has not completed eighteen years of age”. It categorizes:

·       Child in conflict with law: alleged or found to have committed an offence and below 18 at the time of offence.

·       Child in need of care and protection: broader welfare category for all under 18 facing neglect or exploitation.

This statutory definition supersedes IPC ambiguity for minors up to 18, channeling them into a child-centric justice system with an emphasis on rehabilitation rather than punishment.

IV. Critical Examination and Implications

·       Age-Band Disparities: Constitutional rights focus on under 14 and under 6 cohorts, the IPC on under 7/12, and juvenile justice on under 18. These inconsistent thresholds can create confusion in implementation and enforcement.

·       Rights vs. Liability: Constitutional and juvenile statutes prioritize welfare and development, while the IPC regards age and maturity solely to determine culpability, reflecting divergent legal philosophies.

·       Maturity Assessment: Section 83’s subjective maturity test lacks uniform standards, risking inconsistency in judicial decisions and potential rights violations.

·       Policy Coherence: Aligning definitions across statutes could enhance legal clarity, streamline inter-departmental coordination, and ensure age-appropriate treatment for all persons below 18.

V. Conclusion

Indian law’s fragmented approach to defining “child” across constitutional provisions, the IPC, and juvenile justice legislation reveals competing objectives—protection, development, and accountability. A harmonized legal definition anchored at 18 years for rights and a calibrated capacity approach for criminal liability would better serve the principle of the best interests of the child while maintaining doctrinal coherence.

  Easy Study Guide for LLM Exam

QUICK MEMORY FORMULA: "3-6-7-12-14-16-18"

Remember these ages: 3 different legal frameworks, 6 key articles, 7 years (complete immunity), 12 years (qualified immunity), 14 years (work prohibition), 16 years (preliminary assessment), 18 years (adult)

PART I: CONSTITUTIONAL CONCEPTION OF "CHILD"

Memory Trick: "LEGAL PROTECTION"

·       L = Legal equality (Article 14)

·       E = Education rights (Article 21A)

·       G = General protection (Article 15(3))

·       A = Against child labor (Article 24)

·       L = Life protection (Article 39)

Key Articles with Age Limits:

Article 14: Right to Equality

·       Age: All children (no specific limit)

·       Memory: "14 = Equality for ALL"

Article 15(3): Special Provisions

·       Age: All children

·       Memory: "15(3) = 3 special groups (women, children, backward classes)"

Article 21A: Right to Education

·       Age: 6-14 years

·       Memory: "21A = Age 6-14 for education"

·       Added by: 86th Amendment, 2002

Article 24: Prohibition of Child Labor

·       Age: Below 14 years

·       Memory: Protection till 14"

·       Covers: Factories, mines, hazardous work

Article 39(e) & (f): Protection from Exploitation

·       Age: All children

·       Memory: Protects all till 18"

Article 45: Early Childhood Care

·       Age: Below 6 years

·       Memory: For under-6"

PART II: PENAL CODE CONCEPTION OF "CHILD"

Memory Trick: "DOLI 7-12-18"

·       DOLI INCAPAX = Below 7 (Cannot do wrong)

·       DOLI CAPAX = 7-12 (Can do wrong if mature)

·       ADULT = Above 12 (Full liability)

IPC vs BNS Comparison:

Concept	IPC	BNS	Age
Complete Immunity	Section 82	Section 20	Below 7
Qualified Immunity	Section 83	Section 21	7-12 years
Child Definition	Not defined	Section 2(3)	Below 18

 

Key Principles:

Section 82 IPC / Section 20 BNS: Complete Immunity

·       Age: Below 7 years

·       Principle: Doli Incapax (incapable of wrongdoing)

·       Memory: "SEVEN SAFE - Seven years = Safe from all crimes"

·       No exceptions: Absolute immunity

Section 83 IPC / Section 21 BNS: Qualified Immunity

·       Age: 7-12 years

·       Test: Sufficient maturity of understanding

·       Memory: "MATURE 7-12 - Must prove maturity between 7-12"

·       Burden: On prosecution to prove maturity.

Elements to prove maturity (Section 83):

1.       Child above 7, under 12

2.       Lack of sufficient maturity

3.       Cannot judge nature and consequences

4.      Assessment on specific occasion

PART III: JUVENILE JUSTICE ACT 2015

Key Definitions:

Child: Person below 18 years
CCL: Alleged to have committed offense, below 18 on date of offense
CNCP: Victim of circumstances, needs care and protection

Special Provision - Preliminary Assessment:

·       Age: 16-18 years

·       For: Heinous offenses only

·       Process: Assess mental/physical capacity

·       Memory: "16-18 HEINOUS - Special assessment for serious crimes"

CRITICAL ANALYSIS FOR EXAM

Memory: "ACID Test"

·       Age disparities across laws

·       Conflicting thresholds

·       Inconsistent application

·       Doctrinal differences

Key Issues:

1.       Age Inconsistencies:

o   Constitution: Multiple thresholds (6, 14, 18)

o   IPC: 7, 12 years

o   JJ Act: 18 years uniformly

2.       Philosophical Differences:

o   Constitutional: Rights-based approach

o   Penal: Capacity-based approach

o   Juvenile: Welfare-based approach

3.       Maturity Test Problems:

o   Subjective assessment

o   Lack of uniform standards

o   Case-by-case determination

EXAM WRITING STRUCTURE

Opening Paragraph Template:

"The concept of 'child' in Indian law presents a fragmented approach with different age thresholds across constitutional provisions (Articles 21A, 24), penal code sections (82, 83 IPC/20, 21 BNS), and juvenile justice legislation, reflecting competing legal philosophies of protection, capacity, and welfare."

Analysis Framework:

1.       Constitutional conception (rights-focused)

2.       Penal conception (capacity-focused)

3.       Juvenile justice (welfare-focused)

4.      Critical evaluation of inconsistencies

5.       Harmonization suggestions

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