Authored By: YEOGHINI GANESAN
ABSTRACT
This article examines the age of criminal responsibility (ACR) and sentencing principles for youth offenders in India and Malaysia, with the aim of assessing whether current legal frameworks adequately reflect the psychological development and rights of children. India’s rehabilitative approach, with an ACR set at 18, is contrasted with Malaysia’s lower threshold and continued use of punitive measures such as whipping and custodial sentencing. Using the doctrinal legal research method, this article analyses relevant legislation, judicial practices, and international standards to evaluate the fairness and effectiveness of each system. The findings suggest the need for Malaysia to reconsider its ACR policies to better protect the rights and developmental needs of youth offenders.
INTRODUCTION
The (UN) Convention on the Rights of the Child 1989 defines children as “All human beings under the age of 18, unless the relevant national laws recognize an earlier age of majority.”1In addition to that, Rule 2.2 (a) of the Standard Minimum Rules for the Administration of Juvenile Justice [The Beijing Rules] (UN), 1985 has defined children as “A juvenile is a child or young person who, under, the respective legal systems, may be dealt with for an offence in a manner which is different from an adult2”.
The Age of Criminal Responsibility (“ACR”) is defined as the minimum age that a child can be prosecuted and punished by law for an offence3. In other words, it is the minimum age at which a child can be charged, tried, and potentially punished under criminal law. Below that age, the law considers the child not capable of understanding their actions in a way that justifies criminal punishment.
There are various minimum ages of criminal responsibility across the globe. In India, the ACR is 18 years old 4. However, in countries such as Malaysia and Australia the ACR is 10 years old5. In South Korea, the ACR is 14 years old6. The ACR varies from one country to another due to cultural differences.
ACR IN MALAYSIA
Provisions of ACR in Malaysia
According to Section 2(1) of the Child Act 2001, a child is defined as a person who is under eighteen years old and, for the purposes of criminal cases, refers to a person who has reached the age of criminal responsibility as outlined in Section 82 of the Penal Code.7
As discussed above, the ACR in Malaysia is 10 years old. Children below the age of 10 are given full exemption from their criminal responsibility since they are considered doli incapax, a Latin term which translates as incapable of doing wrong8. The assumption that a child under the age of ten cannot commit a crime is founded on the presumption that the child lacks the capacity to comprehend the nature and consequences of their actions. This principle is in accordance with Section 82 of the Malaysian Penal Code which states that nothing is an offence which is done by a child under 10 years old9.
However, Section 83 of the Malaysian Penal Code has mentioned that nothing is an offence for a child within 10 years old till 12 years old of age who do not have enough maturity to understand what they were doing and the consequences of their actions at the time the act was committed10.
Additionally, Section 113 of the Malaysian Evidence Act 1950 establishes that it is an irrebuttable legal presumption that a boy below the age of thirteen cannot commit rape11.
Sentencing for Youth Offenders
Sentences for youth offenders are provided in The Child Act 2001 (“CA 2001”) and also specifically under Section 293 of the Criminal Procedure Code (“CPC”). Section 91(1) of CA 2001 provides the sentencing options for youth offenders12. The options are admonish and discharge, imposing Good Behaviour Bond or order the child to be placed under custody of a fit person, paying fine, Probation order. It is also to be noted that probation is not available for children who have committed serious offences, children may also be sent to approved schools such as the Henry Gurney School, whipping. It must be noted that whipping is only for boys. The whipping will only be done by a light cane and not more than 10 strokes as prescribed under Section 293 of CPC. Youth offenders can also be imprisoned. If the child is 14 years or older and has committed an offence punishable with imprisonment, the Court may order any term of imprisonment.
ACR IN INDIA
Provisions of ACR in India
In India, they have a specific Act for juvenile crimes known as the Juvenile Justice (Care and Protection of the Children) Act 2015 (“JJCPC”). The punishment given in the abovementioned Act is rehabilitatory in nature and not adversarial. The underlying belief is that children in conflict with the law are still in the process of psychological and moral development, and therefore, should be given opportunities for correction and reintegration into society. Section 2(12) of JJCPC has defined a child as a person who has not completed eighteen years of age13. Section 2 (13) of JJCPC has defined “child in conflict with law” as a child who is alleged or found to have committed an offence and who has not attained eighteen years of age on the date of commission of such offence14. Section 2(10) of JJCPC has also defined the board as a Juvenile Justice Board15.
Sentencing For Youth Offenders
As for the punishment for juvenile crimes, Section 18 of JJCPC prescribed punishment for different categories of crime by juvenile offenders ; petty crimes and serious crimes. If a minor who is under 16 years old is found guilty of either minor or serious offenses, the Juvenile Justice Board has the authority to send the minor to an observation home for a duration of up to 3 years. The Board may also decide to release the minor on probation, requiring participation in counseling or other rehabilitative programs. In certain situations, depending on the type of offense and the individual needs of the minor, the Board may additionally require the minor’s guardian to pay a fine.
In the event of a serious crime committed by a young person aged 16 to 18, the Board will initiate a preliminary investigation. If the Board finds sufficient grounds, they may transfer the case to a specialized Children’s Court, which has the discretion to prosecute the juvenile as an adult. However, it is essential to ensure that the trial takes place in a supportive child-friendly environment and that a juvenile cannot face life imprisonment or the death penalty. If found guilty of a serious crime, the juvenile may be relocated from the observation home to a prison once they reach 18 years of age.
Comparison of the Principles of Sentencing In India and Malaysia. As we scrutinize both countries’ sentencing for youth offenders, we can deduce that India’s punishment is more of a rehabilitative nature rather than a punitive nature.16 The reason is because India focuses more on probation, participation in counseling or other rehabilitative programs. Furthermore, India also places their youth offenders in Observation Homes or Special Homes, rather than prisons. It is also to be taken into account that even for heinous offences (for children aged 16–18), adult sentencing is only considered after a detailed assessment of the child’s mental capacity and understanding of the offence.
However, as compared to Malaysia’s laws, although Malaysia recognizes the importance of rehabilitation, the continued use of corporal punishment and custodial sentencing indicates a stronger leaning towards deterrence and discipline, particularly for more serious crimes This is evident where Malaysia also punishes youth offenders to whipping of not more than 10 strokes. Additionally, Youth offenders can also be imprisoned if the child is more than 14 years of age.
India’s system encourages reform over punishment, but there have been public criticisms, especially after serious crimes like the Mukesh & Anr v. State For Nct Of Delhi & Ors or also known as the Nirbhaya’s Case17. In that case, 6 men raped and murdered a girl in a bus. One of the accused happened to be a 17 year old at the time of the attack, was released in 2015 after serving three years in a reform facility – the maximum term possible for a juvenile in India. Critics argue that sometimes, the rehabilitative approach is too lenient, especially for older juveniles committing violent crimes18. However, supporters believe it offers a second chance and helps break the cycle of poverty, trauma, and criminal behaviour.
While Malaysia offers rehabilitation, the use of whipping and imprisonment suggests a more disciplinary model. Some reform advocates suggest abolishing whipping and replacing it with therapeutic or educational interventions.
India’s stance may be perceived as more protective of minors, as it maintains the age threshold at 18, meaning that juveniles are typically not prosecuted as adults unless they commit heinous offenses. The emphasis on rehabilitation aligns with global standards for juvenile justice, which stress the importance of social reintegration and educational assistance for young offenders.
Malaysia’s lower ACR is more contentious. While it may ensure that a greater number of minors face legal repercussions for their criminal actions at an earlier age, it can be seen as a condescending viewpoint that fails to fully acknowledge the psychological development of children. The reduced ACR could lead to unfair outcomes for children who may lack the mental or emotional maturity to fully understand the implications of their actions. Scientific research in child psychology and neuroscience consistently shows that children’s brains are not fully developed, especially the parts responsible for impulse control, decision-making, and understanding long-term consequences. The prefrontal cortex, which governs reasoning, judgment, and emotional regulation, continues developing well into early adulthood around the age of 25 years old19.
CONCLUSION
The juvenile justice systems of India and Malaysia reflect contrasting philosophies in dealing with youth offenders. India’s approach, rooted in rehabilitation and reform, emphasizes the protection and reintegration of minors into society. By maintaining the ACR at 18 and focusing on non-custodial measures like probation, counseling, and placement in Observation Homes, India aligns closely with international standards, particularly the UN Convention on the Rights of the Child. Even in cases of heinous offences, adult sentencing is not automatic but based on a careful evaluation of the child’s maturity and understanding.
Malaysia, on the other hand, adopts a more punitive stance, despite also recognizing rehabilitation. The lower ACR and the continued use of corporal punishment and custodial sentences reflect a justice system that places stronger emphasis on deterrence and discipline. This approach raises concerns about the psychological impact on children, as scientific research clearly indicates that children lack the full cognitive maturity to be held to the same standards of accountability as adults.
While India’s system has faced criticism for being too lenient in certain high-profile cases, such as the Nirbhaya case, it still offers a framework that aims to prevent reoffending by addressing root causes like trauma, poverty, and lack of education. In contrast, Malaysia’s model risks criminalizing childhood misjudgments and undermining the rehabilitative potential of young offenders.
In the end, the comparison reveals the conflict between safeguarding and penalizing, and emphasizes the need to develop juvenile justice policies that are suitable for developmental stages, equitable, and focused on long-term reintegration rather than immediate deterrence.
BIBLIOGRAPHY
PRIMARY SOURCES
Legislation
Child Act 2001, s 2(1)
Child Act 2001, s91(1)
Evidence Act 1950, s113
Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(13)
Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(11)
Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(10)
Penal Code, s 82
Penal Code, s 83
The Standard Minimum Rules for the Administration of Juvenile Justice [The Beijing Rules] (UN) 1985, Rule 2.2(a)
(UN) Convention on the Rights of the Child 1989, Article 1
Cases
Mukesh & Anr v. State For Nct Of Delhi & Ors (2017) 6 SCC 1.
SECONDARY SOURCES
Journals
Arain M and others, ‘Maturation of the Adolescent Brain’ (Neuropsychiatric disease and treatment, 2013) <https://pmc.ncbi.nlm.nih.gov/articles/PMC3621648/>
Brown P and Bunn S, ‘Age of Criminal Responsibility’ [2018] House of Parliaments.
International Centre for Missing & Exploited Children, South Korea – National Legislation (updated December 2018)
http://www.icmec.org/wp-content/uploads/2018/12/ICMEC-South-Korea-National-Legislation-u pdated.pdf.
Jaybhaye A, ‘The Juvenile Justice (Care and Protection of Children) Act, 2015 – Key Provisions’ [2023] Revisiting Juvenile Justice in India 110.
Mir MH, ‘AGE OF CRIMINAL RESPONSIBILITY AND THE CHILD CRIMINAL JUSTICE: IMPERATIVES OF DEVELOPMENTAL MODEL OF JUVENILE JUSTICE FOR INDIA’ (2017) 2 Jamia Law Journal.
Websites
‘Doli Incapax – the Criminal Responsibility of Children’ (Judicial Commission of NSW, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/children/CM_Doli_incapax.html>.
Juvenile Accused Treated “too Leniently” in India, No Lessons Learnt from Nirbhaya Case: HC’ (Juvenile accused treated ‘too leniently’ in India, no lessons learnt from Nirbhaya case: HC, 2024)
<https://economictimes.indiatimes.com/news/india/juvenile-accused-treated-too-leniently-in-indi a-no-lessons-learnt-from-nirbhaya-case-hc/articleshow/113416981.cms?from=mdr>.
1(UN) Convention on the Rights of the Child 1989, Article 1.
2 The Standard Minimum Rules for the Administration of Juvenile Justice [The Beijing Rules] (UN) 1985, Rule 2.2(a).
3 Brown P and Bunn S, ‘Age of Criminal Responsibility’ [2018] House of Parliaments.
4 Mir MH, ‘AGE OF CRIMINAL RESPONSIBILITY AND THE CHILD CRIMINAL JUSTICE: IMPERATIVES OF DEVELOPMENTAL MODEL OF JUVENILE JUSTICE FOR INDIA’ (2017) 2 Jamia Law Journal.
5 Australian Human Rights Commission, Australia’s Minimum Age of Criminal Responsibility – Australia’s Third UPR 2021 (2021) https://humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2019.
6International Centre for Missing & Exploited Children, South Korea – National Legislation (updated December 2018)
http://www.icmec.org/wp-content/uploads/2018/12/ICMEC-South-Korea-National-Legislation-updated.pdf.
7 Child Act 2001, s 2(1).
8‘Doli Incapax – the Criminal Responsibility of Children’ (Judicial Commission of NSW, 2023) <https://www.judcom.nsw.gov.au/publications/benchbks/children/CM_Doli_incapax.html>.
9 Penal Code, s 82.
10 Penal Code, s 83.
11 Evidence Act 1950, s 113.
12 Child Act 2001, s 91(1).
13 Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(12).
14 Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(13).
15 Juvenile Justice (Care and Protection of the Children) Act 2015, s 2(10).
16 Jaybhaye A, ‘The Juvenile Justice (Care and Protection of Children) Act, 2015 – Key Provisions’ [2023] Revisiting Juvenile Justice in India 110.
17 (2017) 6 SCC 1.
18‘Juvenile Accused Treated “too Leniently” in India, No Lessons Learnt from Nirbhaya Case: HC’ (Juvenile accused treated ‘too leniently’ in India, no lessons learnt from Nirbhaya case: HC, 2024) <https://economictimes.indiatimes.com/news/india/juvenile-accused-treated-too-leniently-in-india-no-lessons-learnt -from-nirbhaya-case-hc/articleshow/113416981.cms?from=mdr>.
19 Arain M and others, ‘Maturation of the Adolescent Brain’ (Neuropsychiatric disease and treatment, 2013) <https://pmc.ncbi.nlm.nih.gov/articles/PMC3621648/>.
