In an era marked by unprecedented digital exposure, where children are routinely interacting with smartphones social media, and online content-some of it violent or criminal in nature–the
foundational assumptions of childhood innocence and incapacity to commit crime require a critical re-examination. At the heart of this legal conversation lies the doctrine of doli incapax, a Latin term meaning “incapable of evil,’ which underpins the principle that children below a certain age lack the mental capacity to understand the consequences of their actions and therefore cannot be held criminally responsible.
Indian criminal law, through Section 82 of the IPC[1] and now reflected in the Bharatiya Nyaya Sanhita, grants absolute immunity to children under the age of seven, presuming that they are incapable of forming the necessary mens rea, or criminal intent. This legal protection is rooted in ancient common law traditions and is intended to safeguard the developmental rights and vulnerabilities of young children. However, as children today are exposed to increasingly complex and adult-like experiences at much earlier ages, this age-based presumption has come under scrutiny.
The doctrine, though well-intentioned, may no longer reflect the cognitive and social realities of modern childhood. Numerous cases have emerged in recent years involving children below the age of seven who have engaged in acts with serious, sometimes fatal, consequences. These developments raise an important question: ls the existing legal presumption of incapacity sufficient to address the nuanced spectrum of childhood development and culpability? This article seeks to revisit the rationale behind doli incapax, explore its limitations in the present context, and argue for a more flexible, capacity-based approach to juvenile liability that protects children’s rights while acknowledging the evolving nature of childhood in the digital age.
Legal Framework : From IPC to BNS
The doctrine of doli incapax, rooted in English common law, recognizes that children below a certain age lack the capacity to form criminal intent. This principle was codified in Indian law through Section 82 of the IPC[2] ,which states: “Nothing is an offence which is done by a child under seven years of age.“[3] The section creates an irrebuttable presumption that a child below the age of seven is incapable of committing a crime due to the presumed absence of mens rea. This provision was intended to reflect developmental immaturity, grounded in the understanding that criminal responsibility must correlate with cognitive and moral awareness.
The newly enacted BNS[4] which seeks to modernize India’s penal laws has retained this provision thereby preserving the historical position of granting absolute immunity to children under seven.[5] Despite widespread legal reforms and shifts in the juvenile justice system, this age-based threshold remains unchanged, reflecting continuity rather than reform. In contrast, Section 83 of the IPC,[6] provides for a rebuttable presumption of incapacity for children aged between seven and twelve years, conditional upon the child’s maturity and ability to understand the consequences of their actions.[7]
Courts have discretion in assessing such maturity on a case-by-case basis. In Marimuthu v. State, the Madras[8] High Court observed that a child above seven could be held liable if it is proved that they had sufficient maturity to understand the nature and consequences of their act. However, the absolute immunity granted under Section 82 and its successor clause in the BNS is not subject to judicial examination or rebuttal, regardless of the nature or gravity of the offence. This rigid presumption fails to account for contemporary realities in which children are often cognitively aware, socially exposed, and capable of intentional harm even at younger ages.
The doctrine, once justified by limited exposure and innocence, now appears increasingly
inadequate in addressing modern patterns of juvenile behavior influenced by digital media, violent content, and premature exposure to adult themes. International standards reflect a more dynamic approach. For example, the United Nations Convention on the Rights of the Child (UNCRC) ratified by India in 1992 recognizes the need for establishing a minimum age of criminal responsibility (MACR) but encourages a flexible and child-sensitive justice framework that considers the evolving capacities of children[9].The Committee on the Rights of the Child has repeatedly urged States to avoid setting MACR too low and instead adopt systems that assess the child’s actual capacity.
Therefore, while the IPC and BNS maintain a historically rooted structure of age-based presumptions, the legal framework now faces increasing scrutiny for failing to keep pace with
developmental science and international juvenile justice norms. The need for reform lies not merely in raising or lowering age thresholds but in adopting a capacity-based model that balances child protection with accountability.
The Rationale : A Historical Perspective
The doctrine of doli incapax-literally meaning “incapable of evil” has its origins in English common law, where it served as a moral and legal safeguard against the criminal prosecution of children deemed too young to understand the nature of their actions. Under this doctrine, children below the age of seven were conclusively presumed to lack the mens rea, or guilty mind, required to establish criminal Liability.[10] Between the ages of seven and fourteen, a rebuttable presumption existed allowing courts to consider evidence of the child’s capacity to discern right from wrong[11]. This framework reflected a paternalistic understanding of childhood, deeply rooted in the belief that legal punishment should not be imposed upon those who lack the moral and cognitive development to appreciate the consequences of their conduct.
Indian criminal law inherited this structure through its colonial codification in the Indian Penal Code, 1860, which incorporated doli incapax under Sections 82 and 83, offering absolute and conditional immunity respectively.[12] The absolute immunity under Section 82 has been preserved without alteration in the Bharatiya Nyaya Sanhita, 2023, reflecting continuity with the historical
presumption.”[13] Indian jurisprudence has historically reinforced this protective approach, emphasizing the importance of shielding young children from penal consequences and instead focusing on reformative interventions. For instance, in Ram Chandra v. State of U.P.,[14] the court highlighted the intent of the legislature to treat children not as offenders but as individuals in need of care and rehabilitation.[15]
The rationale behind these protections aligns with global juvenile justice principles, particularly the “best interests of the child” standard enshrined in Article 3 of the United Nations Convention on the Rights of the Child (UNCRC).[16]The convention obligates State Parties to treat children accused of crimes in a manner that considers their age, maturity, and potential for reintegration into society. The emphasis is on restorative rather than punitive justice.
However, the blanket nature of the presumption under Section 82 has increasingly come under criticism for its rigidity. While the law assumes a uniform lack of capacity among all children below seven, contemporary psychological research and social realities point to considerable variation in cognitive and emotional maturity among children, especially in light of widespread digital exposure.[17]Children today often have access to the internet, violent media, and even exposure to criminal activity within their environments at much earlier ages than ever before, contributing to more complex behavioral development.
The continued application of a conclusive presumption fails to accommodate these evolving factors, potentially allowing children who are capable of forming intent to evade legal scrutiny entirely. This raises critical concerns not just about public safety but also about missed opportunities for early intervention and correction through non-penal mechanisms. As a result, there is a growing call within legal scholarship and child psychology for a shift from a purely age-based model to one that incorporates individual capacity assessments.[18] Such a shift would
maintain the protective spirit of doli incapax while enhancing its responsiveness to the dynamic and individualized nature of child development in the modern era.
A Case for Consideration
The rapid pace of digitalisation has fundamentally transformed childhood in ways previously unimaginable. Children today are routinely exposed to complex information ecosystems through smartphones, tablets, social media, online games, and video-sharing platforms. Unlike previous generations, whose learning environments were largely restricted to school, family, and traditional media, the modern child navigates a landscape where explicit content, violence, and adult-like behaviour are just a click away.[19] Platforms such as YouTube, Instagram, and TikTok frequently feature content that is unregulated or algorithmically targeted toward children without regard to age-appropriate filters. This creates early exposure to themes of aggression, sexuality, and criminal behaviour, all of which can shape a child’s understanding and mimicry of such acts.[20]
This unprecedented level of access and interaction with mature content has led to significant shifts in childhood cognition and behavioural patterns. Developmental psychologists have noted
that children in the digital age exhibit higher rates of cognitive stimulation social independence, and observational learning-characteristics once associated with adolescence or later childhood.[21] In comparison, children from just a few decades ago were developmentally and socially slower in exposure and responsiveness, often shielded from explicit media and adult scenarios due to limited technological access and stricter content boundaries.
In this evolving context, India has witnessed real-life incidents involving children under the age of seven who have committed acts of extreme violence or inappropriate sexual behavior, sometimes mimicking what they observed in digital spaces. For example, a 2019 case in Uttar Pradesh involved a six-year-old boy fatally injuring his sibling during a re-enactment of a violent video game scene.[22] In another case, a minor was found simulating sexually explicit behavior after prolonged exposure to online pornography through a mobile device.[23] These incidents, though isolated, are indicative of a larger phenomenon-the increasing awareness and cognitive engagement of young children with violent or criminal actions, challenging the very basis of the presumption of incapacity.
From a legal standpoint, this raises a fundamental tension between the protective doctrine of doli incapax and the need for contextualised accountability. While it is crucial to prevent the premature criminalisation of children, it is equally important to ensure that the law remains responsive to developmental realities and does not become an instrument of denial in the face of increasingly sophisticated child behavior.
Therefore, a compelling case exists for reconsidering the current threshold of criminal immunity. A capacity-based model, wherein children’s individual cognitive development and situational awareness are taken into account, could strike a more effective balance between legal protection and behavioural correction. Such a shift would align India’s juvenile justice framework with both developmental science and global trends in child law reform.
Case laws and Real-life Scenarios
1.Krishna Bhagwan v. State of Bihar
In Krishna Bhagwan, the court examined whether an accused juvenile between seven and twelve demonstrated sufficient maturity to grasp the nature and consequences of their conduct. Although this case technically falls under Section 83 IPC, the court’s detailed capacity assessment underscores the value of individualized evaluative frameworks, even at young ages. The judgment highlights the judiciary’s capacity to assess mental maturity based on conduct, awareness, and context suggesting such assessments could be extended, carefully and with safeguards, to younger children in exceptional circumstances.[24]Although pertaining to ages 7-12,
Krishna Bhagwan emphasizes a capacity-based assessment: the court held a child could be presumed capable when the act and subsequent conduct (selling a necklace shortly after stealing) indicated awareness of wrongdoing.
2.Shyam Bahadur Koeri v. State of Bihar
In this case, the court acquitted a child under seven who found and failed to report a gold plate, applying Section 82[25].Though reinforcing immunity, the case reflects the judiciary’s strict adherence to age-based absolutes-highlighting how the lack of judicial discretion prevents nuanced responses even when a child clearly understands their actions.
3.Bengaluru, Karnataka (2025, Reported)
A five-year-old was filmed violently attacking a younger sibling with a sharp household object. Multiple witnesses confirmed the child had re-enacted a scene from an online movie clip. Despite clear evidence of awareness and premade intent, no criminal action was possible due to age-based immunity.
4.Delhi Suburb (2024, Media Reports)
A four-year-old set a mattress on fire after watching a match-street fire stunt video on social media. Rapid ignition resulted in serious burns. Family members pressed charges, but legal authorities cited Section 82 IPC and could take no action. Authorities recommended psychological counselling instead.
5.Basti, Uttar Pradesh (2024)- Alleged Gang Rape by Children Aged 6-7
In a harrowing case, three boys, reportedly aged six to seven, were accused of gang-raping a three-year-old girl in an Anganwadi centre. The matter drew national outrage, but no criminal
proceedings could be initiated due to the absolute immunity granted under Section 82 of the IPC. The lack of a legal mechanism to assess even the basic awareness or intent of these children posed serious concerns about justice for the victim and societal protection.
6.Mumbai, Maharashtra (2019)-Sexual Assault by a 6-Year-Old
A six-year-old boy molested a four-year-old girl in an elevator after watching explicit content on YouTube. While the incident was captured on CCTV and confirmed by investigations, the boy could not be held accountable under the law due to the statutory age bar. This case shows how early digital exposure can result in precocious criminal behavior, yet the law remains blind to such realities.
7.Bulandshahr, Uttar Pradesh (2022)
A five-year-old boy allegedly killed his younger cousin by strangulation after an argument over a mobile game. The police investigation revealed he had learned the technique from watching videos online.
The traditional presumption that children below the age of seven lack criminal intent (mens rea) has come under significant scrutiny in light of recent cases involving extremely serious offences committed by very young children. While doli incapax is designed to protect the innocent developmental stage of early childhood, several real-life incidents reflect a disturbing trend of heinous acts including sexual violence and brutal physical assault committed by children below the age of seven.Though no Indian decision has held that a child under seven should be prosecuted based on digital awareness, legal scholars and practitioners are increasingly arguing for legislative reform.[26] They suggest that modern digital environments accelerate cognitive development and can instill mens rea at younger ages, meriting nuanced capacity-based interventions rather than absolute immunity.
Suggestive Reforms
1. Juvenile Capacity Assessment Panels
Establish independent panels at the district level comprising child psychologists, social workers, juvenile justice experts, and legal professionals. These panels would assess a child’s cognitive, emotional, and moral development in cases of alleged serious misconduct, helping authorities determine the appropriate intervention beyond a fixed age-based presumption.
2. Exceptional Maturity Evaluation Mechanism
Develop a standardized tool (based on neuropsychological and behavioral markers) to assess maturity in children under 7, to be used only in heinous or violent crime cases. This ensures that rare but serious cases are handled with informed sensitivity, not blanket immunity.
3. Mandatory Counseling & Psychosocial Rehabilitation
Implement compulsory counseling, family therapy, and behavioral correction programs for all children involved in criminal behavior, regardless of age or prosecutability. These services should be provided through Child Welfare Committees (CWCs) or local child protection units.
4. Victim-Centered Restorative Justice Mechanisms
Introduce restorative justice models wherein young offenders (through guided sessions) confront the harm caused and engage in age-appropriate restitution or apology. This promotes healing for victims and moral development for the child.
5. Community-Based Monitoring and Reintegration
Set up community reintegration frameworks involving schools, NGOs, and local mentors to monitor, educate, and guide the child over a sustained period. Focus on long-term behavioral tracking and reintegration into mainstream society.
Conclusion
The doctrine of doli incapax, while historically rooted in the need to shield young minds from the harshness of criminal prosecution, now requires a re-examination in light of modern realities. With increasing exposure to digital media, violence, and societal changes, children today often display a level of awareness and intent previously unseen at such a young age. Blindly applying absolute immunity to all children under 7, regardless of circumstances, risks failing both the victim and the child involved.
A modern juvenile justice framework must reflect a nuanced approach—one that recognizes developmental vulnerabilities while also allowing room for context-specific interventions. Justice for children must focus not on retribution, but on prevention, evaluation, and reform. By adopting mechanisms like capacity assessments, therapeutic interventions, and restorative models, the legal system can uphold the spirit of doli incapax while addressing the complexities of contemporary childhood.
[1] Indian Penal Code, 1860 ( Act 45 of 1860)
[2] Bhartiya Nyaya Sanhita 2023 , Section 20
[3] Ibid
[4] Bhartiya Nyaya Sanhita, 2023 (Act 45 of 2023)
[5] Supra note 2
[6] Bhartiya Nyaya Sanhita 2023 , Section 21
[7] Ibid
[8] Marimuthu v. State (2008) 2 MLJ (Crl) 1043
[9] Convention on the Rights of the Child art. 40(3), Nov. 20, 1989, 1577 U.N.T.S. 3
[10] Blackstone,William : Commentaries on the Laws of England 21 (1765).
[11] Id.; see also C.v. DPP, [1995] 2 All ER 43 (UKHL) (discussing the rebuttable nature of the presumption for children between 10 and 14).
[12] The Indian Penal Code,1860 (Act 45 of 1860)
[13] Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023)
[14] Ram Chandra v. State of U.P. (1957) All 234
[15] Ibid
[16] Convention on the Rights of the Child art. 3, Nov. 20, 1989, 1577 U.N.T.S. 3.
[17] Sonia Livingstone & Ellen Helsper, Balancing Opportunities and Risks in Teenagers’ Use of the Internet: The Role of Online Skills and Internet Self-Efficacy, 10 NEW MEDIA & SOC’Y 309 (2008)
[18] Barry C. Feld, Competence, Culpability, and Punishment: Implications of Atkins for the Juvenile Justice System, 32 CRIM. JUST. & BEHAV. 403 (2005)
[19] Sonia Livingstone & Julian Sefton-Green, The Class: Living and Learning in the Digital Age 45-67 (NYU Press 2016).
[20] Divya Kannan, Exposure to Online Harmful Content and Behavioural Impacts on Children in India, CHILD RIGHTS & TECH. REV. 8-11 (2021).
[21] Alison Gopnik, The Gardener and the Carpenter: What the New Science of Child Development Tells Us About the Relationship Between Parents and Children 101-109 (Farrar, Straus and Giroux, 2016).
[22] Six-Year-Old Kills Sibling While Reenacting Game Scene, Times of India (Oct. 5, 2019)
[23] Rajesh Tandon, Child Protection in the Age of Smartphones: Challenges for Indian Parents, 28 INT’L J. OF CYBER PSYCH. 45-49 (2020).
[24] Krishna Bhagwan v. State of Bihar, AIR1989PAT217; see also discussion in Legal Readings, “Defense available for a Minor under IPC”
[25] Shyam Bahadur Koeri v. State of Bihar, (1967) Patna HC; available at < https://lawbhoomi.com/> (last visited on 23rd July 2025)
[26] Marimuthu v. State, criteria for maturity under Section 83, available at <https://backedbylaw.in/> (last visited on 23rd July 2025)
Author: Kaneez Zehra
Juris Centre 