Need to Revisit the Doli Incapax Doctrine in India

Introduction and overview

“Doli incapax” is a doctrine in law that operates mostly in the field of criminal law. It is a legal doctrine used to safeguard people or entities that are incapable of committing crime due to some physical, mental or other factor, from the rigours of the legal system. Criminal laws, across the world, envisage various types of situations where the person is considered incapable of committing crime. Previously, in India, the Penal Code, 1860¹ contemplated doli incapax for children aged 0 to 7 and 7 to 12 in Sections 82 and 83 respectively. Now, the Nyaya Sanhita, 2023 mirrors the same principles in Sections 20² and 21³. However, the need to revisit the doctrine for a certain age group has been contemplated by many scholars, with countries such as the United Kingdom (UK) even abolishing the doctrine.⁴ This paper seeks to analyse the rationale behind such abolition, by looking at socio-historical factors. In addition, it will also examine the unintended effect of the doli incapax doctrine in the implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015. The paper seeks to answer two research questions:

(1) What was the reasoning behind the abolition of the doli incapax doctrine in the UK and if India needs to adopt a similar approach?

(2) What are the unintended consequences of the doli incapax doctrine within the Indian juvenile justice framework?

The paper will primarily be divided into three parts. First, the use of doli incapax as an unbreakable shield. Second, the misuse of doli incapax in sentencing and finally, the faulty application of the doli incapax doctrine within the Juvenile Justice (Care and Protection of Children) Act, 2015 framework. The last part of the paper will analyse cases handled by the Children’s Welfare Committee. The case details are appropriately anonymised.

Doli incapax: Unbreakable shield

In order for us to understand whether doli incapax is an unbreakable shield that juvenile offenders can use to their protection, it is essential for us to first understand the genesis of the doctrine.

“Doli incapax” quite literally translates into “incapable of evil”.⁵ In the law, this traditionally refers to groups of people or entities that are considered to be incapable of committing crime because they lack culpable intention or the mens rea, that is necessary for most crimes.⁶ This line of reasoning was traditionally derived from 14th century common law Judges who applied tests of “right and wrong” to gauge the capacity for responsibility, this means that the Judge used to try and discern if the child in question was able to differentiate between the right and the wrong in any given situation, particularly at the time of the crime.⁷ Consequently, it was considered incorrect to impose the technicalities and burdens of the legal system unto a child. It is important to note that there are other categories of people or entities that are also considered incapable of crime.⁸

Now that we have discussed how doli incapax emerged as a doctrine, it is necessary to analyse if it was originally intended to be a presumption that is to operate in favour of the child or was it intended to absolve and protect children from all criminal liability, regardless of mental capacity. However, it has to be kept in mind that the doctrine itself may connote something different than what the statutory provision does, in Section 83 of the Penal Code.

Doli incapax was originally treated as a strong presumption and not an unbreakable shield. It merely meant that the prosecution has to prove that the child was aware that his actions are of criminal colour and not merely naughty or mischievous, as the Court held in JM (A Minor) v. Runeckles⁹. When the doctrine is properly analysed and understood in the absence of any statutory conflict, the courts have held that doli incapax is not an unbreakable shield. An example of this can be found in R. v. Secy. of State for the Home Deptt. ex p Venables¹⁰, where the defendants were unable to hide under the protections of the doctrine, as mental capacity was clearly proved and therefore, convictions were obtained. The doli incapax doctrine was abolished in the UK as an aftermath of this case. This line of reasoning accurately applies the doctrine as the rationale behind the genesis of doli incapax itself was the lack of mental capacity. If the facts and circumstance in any given situation clearly and overwhelmingly indicate the presence of rational thinking and a culpable state of mind, there is no reason as to why the child should be not put through the rigours of the legal system, notwithstanding the reformative approach to sentencing.¹¹

However, Section 83 of the Penal Code codified the doctrine of doli incapax.¹² In my opinion, the text of the provision makes it quite clear that the doctrine is adopted in its presumptive form and not in a conclusive form, as it has been in Section 82 for children aged 0 to 7 years old.¹³

In the Indian context, the operation of the doli incapax doctrine has had several theoretical and practical ramifications. This can be showcased by case law. Since most of these implications have been highlighted in the context of case law, it is quite clear that the impact of the doctrine may traverse both theoretical and practical fields and there is no strict bifurcation.

The first negative impact of doli incapax for children aged 7 onwards is that it is often confused to be an unbreakable shield by courts, ignoring the true rationale behind the doctrine in the first place. An example of this obfuscation can be found in AK v. State of Maharashtra¹⁴, wherein the Court quashed a first information report (FIR) registered against a 9-year-old boy, on the grounds that Section 83 will operate as a complete shield. There was nothing in the judgment to indicate that an analysis of the mental capacity of the child at the time of commission of the offence was even undertaken. Instead, Section 83 was mechanically and wrongly applied to set the 9-year-old free. However, it is my argument that neither the text of Section 83 nor the Juvenile Justice (Care and Protection of Children) Act, 2015 in any provision, contemplate this sort of a protection for children aged 7 onwards. We have discussed earlier that at least in situations where the statute does not change the effect of doli incapax to bring in an irrebuttable presumption, the doctrine must be given effect without modification.¹⁵ Here, Section 83 merely encapsulates doli incapax as a rebuttable presumption, and to read it otherwise is wrong.

Further, in Sainath Minj v. State of Chhattisgarh¹⁶, the facts on record showed that the police were under the presumption that charge-sheets could not be filed against the offenders, as the offenders were aged 10 and 11. Not only did the Court not analyses the effect of doli incapax in this case, but went one step further and refused to interfere on the grounds that Section 83 would validate the inaction on the part of the police.¹⁷ Holdings like this have a detrimental impact on the understanding of the doctrine, and further muddies already muddy waters.

In Shiv Kumar v. State of J&K¹⁸, the Jammu and Kashmir (J&K) High Court had extended the doli incapax benefits available to a five-year-old in a previous case, to an eleven-year-old in that particular case. This was done without analysing the differences in Sections 82 and 83, and by applying the latter in a mechanic and inaccurate manner.

In Ramesh v. State of Uttarakhand¹⁹, a charge-sheet was not filed against one of the perpetrators in the offence as he was twelve years’ old. It is important to note that some of these decisions have been pronounced after the introduction of the Juvenile Justice (Care and Protection of Children) Act, 2015, which perhaps indicates to us that the statute has not done much to clear the confusion and inaccurate understand of the doli incapax doctrine.

However, other common law jurisdictions do not approach the analysis of the doli incapax doctrine in a lackadaisical or mechanical manner. For example, the High Court of Australia in RP v. R.²⁰ engaged in an in-depth analysis of the presumption of doli incapax in the common law and also further analysed the kind and degree of evidence required to rebut the presumption. The Court in that case very eloquently observed the following:

What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others’ property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption.…²¹

Further, in the UK, where doli incapax has been abolished, the House of Lords also delved into the concept and exposited the true and accurate meaning in R. v. JTB²². The Court therein espoused the view that doli incapax can indeed be rebutted and it is not an unbreakable shield.²³ The Court also took cognizance of the absurd and startling results that doli incapax may sometimes lead to.²⁴

In my opinion, this is an accurate understanding and application of doli incapax, and Indian courts would benefit from approaching the analysis in a similar fashion. The dangers of a misunderstood application of the doli incapax outweighs the need for the presumption.

Doli incapax in sentencing

The second negative impact of doli incapax is the use of the doctrine to reduce sentencing. It is an established principle that the trial and sentencing are to be considered two separate proceedings or stages of proceedings, and factors that were relevant or important for the former, may not be for the latter.²⁵ However, in the Indian context, even when a conviction is obtained in a court, children aged 7 to 12 seem to be getting the benefit of Section 83, which in my opinion is erroneous and a disfiguration of Section 83. An example of this can be found in Kakoo v. State of H.P.²⁶, where the Court cites Section 83 as a ground to reduce the convicted offenders, who was actually 13 years’ old at the time (already outside the scope of Section 83) of sentencing. It is argued that Section 83 does not contemplate any such reduction of sentence in its language, and once a conviction has been procured, the protection of Section 83 anyway ceases to operate. Not only is such an interpretation unfounded in Section 83, but also contrary to established principles of criminal law such as the distinction between the trial stage and the sentencing stage.²⁷

This position again indicates to us as to how courts in India have understood and interpreted Section 83.

However, it is to be noted that in a reformative approach to criminal penology, children may anyway be entitled to orders such as the one in Kakoo case²⁸, wherein sentences are reduced or suspended. The argument is not against such a reformative approach but only against locating it in Section 83, which encapsulates doli incapax. The Juvenile Justice (Care and Protection of Children) Act, 2015 would anyway require courts to keep in mind principles of reformation and “fresh-start” when it comes to post-conviction proceedings.²⁹ The problem only arises when courts mechanically apply Section 83 to reduce sentencing, as if to say the child is innocent and incapable of crime despite being convicted, which goes against logic.

An example of the right approach to sentencing when it comes to children found to be in conflict with the law can be found in Hiralal Mallick v. State of Bihar³⁰. Justice Krishna Iyer astutely recognises the field of operation of doli incapax and separates it from the sentencing aspect of the judgment. The Court reduces the sentence imposed in that case based on reformation and not doli incapax.

Doli incapax and the Juvenile Justice (Care and Protection of Children) Act, 2015

An argument may be made that the discussion regarding the inaccuracies in the application of the doli incapax doctrine is fruitless as then Juvenile Justice (Care and Protection of Children) Act, 2015 has been enacted and would therefore be lex specialis.³¹ This section of the paper however, argues that the faulty application of doli incapax has seeped into the Juvenile Justice (Care and Protection of Children) Act framework, thereby keeping relevant the discussion even today.

This will be illustrated with the help of cases handled by the Child Welfare Committee’s (CWC’s)/Juvenile Justice Board’s (JJB’s) constituted under the framework of the Juvenile Justice (Care and Protection of Children) Act, 2015. The case details have been orally procured from an ex-CWC Chairperson³² and all the case details have been appropriately anonymised. The purpose of these examples or illustrations is to show that the quasi-judicial bodies that are relevant in the administration of the Juvenile Justice (Care and Protection of Children) Act are also under a similar perception that the judiciary is under. Before we delve into the case studies, it is important to note that the Juvenile Justice (Care and Protection of Children) Act in itself does not contain any provision that creates an irrebuttable presumption in favour of the child who is aged above 7-years-old.³³

The first case that is relevant for our discussion involves beggary and theft by a 12-year-old. These crimes were committed as an accomplice to her grandfather. Upon her interactions with CWC, it was evident that she was aware of the consequences of her actions and culpability. However, the CWC ordered for her temporary institutionalisation and rehabilitation under the belief that doli incapax would negate her liability in any case³⁴.

The second case also involved theft where an 8-year-old child was the offender. Upon interactions with the CWC, it was clear that not only does she understand that theft is wrong, but also was proud of her “skill”. However, an order of rehabilitation was made even in this case, and the offender was not presented before the children’s court.³⁵

The last case, and perhaps the most grave one, involved a 12-year-old boy smashing a relative’s head with a huge rock, during a verbal spat. However, even in such a case, an order for rehabilitation was preferred and not an adversarial trial as doli incapax would operate³⁶.

Situations like this clearly highlight not only the lacunae in the operation of the doli incapax doctrine but also the juvenile justice framework. The aforementioned situations clearly indicate to us that the children were able to appreciate the gravity and consequence of their action and despite such an assessment being made by the quasi-judicial bodies constituted within the juvenile justice framework, the children are not subject to an adversarial process.

If we are to analyse the same situations by applying the tests laid down in RP v. R.³⁷ or R. v. JTB³⁸, the outcome would have been starkly different as the protections conferred by the doli incapax doctrine, and by extension the Juvenile Justice (Care and Protection of Children) Act, at least up to the age of 16,³⁹ is rebutted.

One approach that can be taken in order to fix this seeming contradiction, at least within the Juvenile Justice (Care and Protection of Children) Act, would be to make the option of preliminary assessment available to all children aged 7 and above. This way the Juvenile Justice Board can accurately and appropriately assess each child’s mental capacity to commit crime and decide accordingly. Such an approach would still accord adequate protections to children, while reducing the possibility of an inefficient administration of the Juvenile Justice (Care and Protection of Children) Act.

However, on the aspect of the doli incapax doctrine, it is to be seen that faulty understanding and application is to be blamed, even if theoretically and conceptually nothing is problematic in Section 83 of the Penal Code. It leaves us no choice but to make substantial changes in the framing of the provision itself or repeal the doctrine in India due to its unintended effects.

Conclusion

In conclusion, courts have gravely misunderstood Section 83 and have made erroneous logic now a part of the doli incapax doctrine in India. This comment is best illustrated by the Court’s observation in Satnam Singh v. Jogindro⁴⁰, wherein the Court opined that Section 83 negated criminal liability. As argued earlier, this is not what the law contemplated, neither in its statutory form nor in its doctrinaire form.

In the UK, in the aftermath of an incident that shocked many, this flaw of doli incapax was bought to the forefront.⁴¹ Parliament in the UK decided to abolish the doctrine in black letter law. Some of the arguments given in favour of such abolition was that not only does it create an unreasonably high standard against the prosecution, but also goes against the agency argument that scholars in child right’s fields support.⁴² One cannot on one hand say that children are smart and must be given agency, and on the other hand create a presumption that creates an unreasonable standard that protects the child even if adequate agency in a crime is proved. Considering all the factors analysed in this paper, it is argued that the context that led to abolishment applies to India Today just as much as it did to the UK in the 1990’s.

A trite observation to conclude would be the Law Commission Report’s observation in the UK⁴³. The Commission argues that in order to find someone criminally responsible, three things have to be satisfied: the ability to rationally form judgment, the ability to understand wrongfulness, and the ability to control one’s physical actions.⁴⁴

I argue that if an individual assessment of a child aged above 7 years’ old can satisfy the three ingredients laid out previously, there is no reason, in terms of culpability, to not subject the child to an adversarial process. This argument is not to be misconstrued as an argument in favour of removal of the reformative approach in favour of children when it comes to sentencing. The argument is to be limited to the specific context of the inefficiencies created by doli incapax, something noted by various scholars.

Keeping these limitations in mind, it is suggested that Section 21 of the Nyaya Sanhita, 2023 needs to be appropriately modified, by way of the addition of an explanation, or removal of the provision in its current statutory form, in order to prevent the ramifications of the doli incapax doctrine. This can be done by clarifying that Section 21 is not to be read as a prohibition on registering FIR’s or filing a charge-sheet, and also that the provision does not operate in the field of sentencing. Of course, this is only if the policymakers decide to retain doli incapax as a part of the Indian juvenile justice framework.