September 30

Changes in the Companies Act, 2013 with regards to holding of AGM and approval of Annual Accounts

Changes re AGM
Companies Act, 1956
Companies Act, 2013
Current status
Maximum time for holding first AGM
Maximum time for holding first AGM is 18 months from incorporation : Proviso to Section 166 states that first AGM would be conducted within a period of 18 months from incorporation
Maximum time for holding first AGM is 9 months from closing of financial year :  Section 96  states that in case of the first annual general meeting, it shall be held within a period of nine months from the date of closing of the first financial year of the company
Not in force
Time and day of conducting AGM
Section 166(2) : Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be
Section 96(2): Every annual general meeting shall be called during business hours, that is, between
9 a.m. and 6 p.m. on any day that is not a National Holiday
Not in force
Consent for shorter notice
Section 177(2): Consent to be given by all members entitled to vote at the meeting.
Section 101: consent to
Given in writing or by electronic mode by not less than ninety-five per cent. of the members entitled to vote at such meeting.
Not in force
Statement to be annexed with notice :
Explanatory statement to be annexed with notice mentions about nature of concern of director and manager: According to section 173 where the business to be transacted at the meeting is special there shall be annexed to the notice a statement settling out all material facts including in particular the nature and concern of if any of director and manager
Statement annexed with the notice mentions about the nature of concern of the director, manager, key managerial personnel and relatives of directors and key managerial personnel :    According to Section 102 the statement annexed to the notice shall contain
 (a) the nature of concern or interest, financial or otherwise, if any, in respect of
each items of—
(i) every director and the manager, if any;
(ii) every other key managerial personnel; and
(iii) relatives of the persons mentioned in sub-clauses (i) and (ii);
(b) any other information and facts that may enable members to understand the
meaning, scope and implications of the items of business and to take decision thereon
In force notified on 12.09.2013
Quorum for AGM
According to section 175 the quorum in case of :
a) Private Companies : 2 members
b) Public companies : 5 members
According to section 103 the quorum is as follows :
a)  Private companies : 2 members
b) Public companies if no of members on date of meetings is not more than 1000: 5 members
c) Public companies if no of members on date of meetings is more than 1000 but less than 5000 : 15 members
d) Public companies if no of members on date of meeting exceeds 5000 : 30 members
In force notified on 12.09.2013
Annual Return
 a) Annual return to contain particulars as on date of AGM : Section 159 and 160 : The annual return has to be prepared and filed with the registrar containing particulars as on date of agm
b) Particulars to be mentioned in Annual Return , Section 159(1):  Details of registered office , register of its members, register of debenture holders, shares and debentures, indebtedness, members and debenture holders past and present, directors, managing directors, managers, secretaries past and present
a) Annual return to contain particulars as on date of close of financial year : Section 92: According to the new provision every company will prepare an annual return in the prescribed format containing particulars as they stood on the close of financial year
b) Particulars to mentioned in the Annual Return , Section 92(1):
Old requirements which are incorporated : Details of registered office , register of its members, register of debenture holders, shares and debentures, indebtedness, members and debenture holders past and present, directors, managing directors, managers, secretaries past and present
New Requirements which would form a part of particulars to be stated in the Annual Return :
i) Details of principal business activities
ii) Particulars of holding, subsidiary and associate companies,
iii) Details of promoters and key managerial personnel ,
iv) Meetings of members or a class thereof, board and its various committees along with attendance details,
v) Remuneration of directors and key managerial personnel,
vi) Penalty or punishment imposed on the company, its directors or officers and details of compounding of offences and appeals made against such penalty or
punishment,
vi) Matters relating to certification of compliances, disclosures as may be prescribed
vii) Details, as may be prescribed,  in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them, vii) such other matters as may be prescribed
Extract of Annual Return has to be attached to Boards Report : Section 92 (3) states  an extract of the annual return in such form as may be prescribed shall form part of the Board’s report.
Not in force
Appointment of Auditor
Auditor to be appointed for a period of one year: Section 224 states that at each AGM, every company shall appoint an auditor or auditors to hold office from the conclusion of that meeting to the next AGM
Intimation re appointment to be  given by Auditor to ROC within 30 days : According to section 224 (1) every company is required to give information to the Auditor regarding his appointment within 7 days from his appointment and then the according to section 224(2)auditor has to give information of his accep tance or refusal to ROC by filing a form 23B within 30 days from date of receipt of appointment letter
Auditors to be appointed for a period of five years : Section 139 states that every company shall, at the first annual general meeting, appoint an individual or a firm as an auditor who shall hold office from the conclusion of that meeting till the conclusion of its sixth annual general meeting and
thereafter till the conclusion of every sixth meeting and the manner and procedure of selection of auditors by the members of the company at such meeting shall be such as may be prescribed
Intimation re appointment of Auditor to be given by Company  to ROC within 15  days :  The proviso to Section 139 states the company shall inform the auditor concerned of his or its appointment, and also file a notice of such appointment with the Registrar within fifteen days of the meeting in which the auditor is appointed
Not in force
Directors Report
Additional requirements :
According to Section 134 the  directors report will include the following :
 (a) the extract of the annual return as provided under sub-section (3) of section 92; (Form No. 7.9. , )
(b) number of meetings of the Board;
(c) Directors’ Responsibility Statement with additional points;
(d) a statement on declaration given by independent directors under sub-section (6) of section 149;
e) particulars of loans, guarantees or investments under section 186;
f) particulars of contracts or arrangements with related parties referred to in sub-section (1) of section 188 in the prescribed form
g) a statement indicating development and implementation of a risk management
policy for the company including identification therein of elements of risk, if any, which in the opinion of the Board may threaten the existence of the company;
h) the details about the policy developed and implemented by the company on corporate social responsibility initiatives taken during the year;
i) such other matters as may be prescribed.
New requirements for Directors’ Responsibility Statement : According to section 134(5) the Directors Responsibility statement will include the following additional requirements
a) in case of a listed company and every other public company having such paid-up share capital as may be prescribed, a statement indicating the manner in which
formal annual evaluation has been made by the Board of its own performance and that
of its committees and individual directors;
b) statement that directors had devised proper systems to ensure
Compliance with the provisions of all applicable laws  and that such systems were adequate and operating effectively.
Not in force
Books of Account  
Comprises of Balance sheet and profit and loss
Concept of Balance Sheet and profit and loss now collectively termed as Financial Statement:
Definition of Financial Statement : Section 2(40) states that  financial statement” in relation to a company, includes—
(i) a balance sheet as at the end of the financial year;
(ii) a profit and loss account, or in the case of a company carrying on any activity not for profit, an income and expenditure account for the financial year;
(iii) cash flow statement for the financial year;
(iv) a statement of changes in equity, if applicable; and
(v) any explanatory note annexed to, or forming part of, any document referred to in sub-clause (i) to sub-clause (iv):
Provided that the financial statement, with respect to One Person Company, small company and dormant company, may not include the cash flow statement;
Requirements of Financial Statements : Section 129 states that (1) The financial statements shall give a true and fair view of the state of affairs of the company or companies, comply with the accounting standards notified under section 133 and shall be in the form or forms as may be provided for different class or classes of companies in Schedule III:
Provided that the items contained in such financial statements shall be in accordance
with the accounting standards:
Additional Requirements when company has one or more subsidiaries : According to section  129(3) Where a company has one or more subsidiaries, it shall, in addition to financial
statements provided under sub-section (2), prepare a consolidated financial statement of the
company and of all the subsidiaries in the same form and manner as that of its own which
shall also be laid before the annual general meeting of the company along with the laying of
its financial statement under sub-section (2):
Also Provided that the company shall also attach along with its financial statement, a separate
statement containing the salient features of the financial statement of its subsidiary or
subsidiaries in such form as may be prescribed:
Section 2(40) in force by notification dated 12.09.2013
Not in force
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September 22

One Man Company; now a reality

The new Companies Act, 2013 (passed by both the houses of the Parliament) has introduced the concept of a “one person company” (OPC). This concept, though already prevalent in the UK and several countries of the European Union, was first recommended in India by an expert committee in 2005 and was subsequently inserted in the Companies Bill so as to provide an option to persons operating under the sole proprietorship model to operate as a company.
Provisions of the Companies Act, 2013 relating to one man company :
Section 2 (62) “One Person Company” means a company which has only one person as a member

Eligibility for the formation of OPC:
  
a. Firstly, the person is to give a separate name and legal identity to the Company, under which all the activities of the business are to be carried on. This ensures that a separate legal entity is formed.
b. Secondly, Section 3 of The Act, provides that at the time of incorporation of OPC, the memorandum of OPC shall include the person has to nominate a name with that person’s written consent as a nominee to the OPC. This person will be the default and ad hoc member in case of the existing sole member’s death or disability. The consent of nominee shall be in prescribed written format and shall also be filled with Registrar along with MOA & AOA.
c. Provided also that the member of One Person Company may at any time change the name of such nominate person by giving notice in such manner as may be prescribed to intimate company the change, if any, in the memorandum and the company shall intimate the Registrar any such change within such time and in such manner as may be prescribed.
d. On the death of member, nominee have title to all the shares and entitle to same rights and divided to which sole member  of company was entitle or liable, on becoming member such nominee will nominate other person as nominee with his consent.
Relaxation given to OPC
Number of Directors: Although bill restricts number of director one in case of OPC, there is no constraint to recruit more than one with subject to maximum 15.
Appointment of Director:  There is no separate provision for appointment of first director in article of company, an individual being member shall be deemed to be its first director.
Board Meeting/ AGM:  If there is only one director, there is no such compulsion to conduct Board Meeting. In case of more than one director, at least one board meeting twice in the year and gap between two meetings would not be less than 90 days. Notice, Quorum, passing of resolution made applicable to OPC also.
Section 122(1) provides that the provision of section 98 and section 100 & 111(inclusive) are Not APPLICABLE to OPC, i.e. Provision related to General meeting, Extra-Ordinary General meeting, Notice convening to general meeting is not hold good for the company.
Alternative if business which is required to be transacted at GM & AGM by means of ordinary or special resolution it shall be sufficient if the resolution is communicated by sole member to company and note it down in minute’s book and signed and dated by the member, it shall  be consider as effective date.
Due date of filling Return: U/s 92(1) OPC shall required filing with Registrar of companies, a copy of financial statements, along with form 23AC, 23ACA, and 20B within 180 days from closure of financial year except form 60.
Signing of Financial Statement and Annual Return:  The Financial Statement Signed by only one director and also, annual return should be signed by Company secretary, else by the director of company.
Contract by One Person Company:
Where One Person Company limited by shares or by guarantee enters into a contract with the sole member of the company who is also the director of the company, the company shall, unless the contract is in writing, ensure that the terms of the contract or offer are contained in a memorandum or are recorded in the minutes of the first meeting of the Board of Directors of the company held next after entering into contract:
The company shall inform the Registrar about every contract entered into by the company and recorded in the minutes of the meeting of its Board of Directors under sub-section (1) within a period of fifteen days of the date of approval by the Board of Directors.

 

In view of the above mentioned features of the OPC, the concept of OPC in the Companies Bill indeed looks promising. However, the success of this concept would be correctly gauged only after its implementation. 

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September 22

Corporate Social Responsibility not an option anymore


CSR is broadly — some say vaguely — defined in the law to mean funding programmes for education, poverty alleviation, protecting the environment or tackling disease, among others.
The New Companies Act, 2013  mandates that companies of a certain size spend 2% of their three-year average annual profit towards corporate social responsibility (CSR), is a landmark one as it makes India among the first nations to have social welfare spending as part of company statute by law.

A look at the provisions of the Act
Provisions of the Act:  Relevant Parts of the Act- the sections 134, 135, Schedule III and Schedule VII of the Companies Act, 2013 deal with CSR. The sections 134 and 135 are part of Chapter IX on Accounts of Companies.
ii. Mandatory Reporting- the Section 134, under subsection 3, clause (o),states that there shall be attached to (Financial) statements laid before a company in general meeting, a report by its Board of Directors, which shall include the details about the policy developed and implemented by the company on corporate social responsibility initiatives taken during the year.
iii. Which companies are covered- the section 135 provides further details on the corporate social responsibility initiatives. Under its subsection (1) it defines the companies for whom formation of a Corporate Social Responsibility Committee of the Board is mandatory- every company having net worth of INR 500 crore (INR 5 billion) or more, or turnover of INR 1,000 crore (INR 10 billion) or more or a net profit of INR 5 crore (INR 50 million) or more during any financial year.
iv. Composition of CSR Committee- it will consist of 3 or more directors, out of which at least one director shall be an independent director. This composition needs to be disclosed in the mandatory reporting mentioned in sub point ii.
v. Role of the CSR Committee- formulate and recommend to the Board a CSR Policy, the amount of expenditure to be incurred and monitoring of the Policy from time to time.
ix. Which Activities may be included in CSR Policy- in Schedule VII of the Bill there are 9 specified and 1 provisional generic category of activities:
a. Eradicating extreme hunger and poverty
b. Promotion of education
c. Promoting gender equality and empowering women
d. Reducing child mortality and improving maternal health
e. Combating human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases
f. Ensuring environmental sustainability
g. Employment enhancing vocational skills
h. Social business projects
i. Contribution to the Prime Minister’s National Relief Fund or any other Fund set up by the Central Government or the State Governments for socioeconomic development and relief and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women
j. Such other matters as may be prescribed.
xi. What if the company fails to spend the referred amount on CSR- in such case the company will have to specify the reasons for not spending the amount in the Mandatory Reporting mentioned in sub point ii.

Around 8,000 companies would fall under the Bill’s ambit and this mandate would translate into an estimated CSR spending of Rs 12,000-15,000 crore annually. This steps seems to be a welcome change so Companies now gear up for some charity and development work!!

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August 9

The Juvenile Justice (Care and Protection) Act, 2000- An Analysis and Critique



In India the laws relating to protection of children are found in a number of legislations. The Constitution on India provides the basis for the legal framework to protect children, whom it recognizes as a discrete group with identifiable rights and needs.  The constitution mandates child protection as a special provision in Article 15 (3)[1].  Article 39 (E) & (F)[2]provides protection of children’s healthy development. Article 24[3]prevents children from working in hazardous situations below 14 years. Article 45[4]provides the right of children for free and compulsory education and Article 47[5]prohibits the consumption of liquor and intoxicating drugs, except for medical purposes.  Moreover, Indian Penal Code, 1860 provides protection of children from sexual abuse in sections 354, 375 and 509, selling of minors for prostitution in sections 366, 366A, 366B and 372, buying minors for the purpose of prostitution in section 373 and non-consensual assault of male child in section 377.

The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system.  This law, brought in compliance of Child Rights Convention[6], repealed the earlier Juvenile Justice Act of 1986. This Act has been further amended in year 2006 and 2010.
Main provisions of the Act
 The act defines “Juvenile “or “child” as a person who has not completed 18 years of age[7]. The act deals with two kinds of juveniles, “juvenile in need of care and protection” and “juvenile in conflict with law”.  Section 2(d)[8]of the act defines a child in need of care and protection as a child who is without a home, settled home or place of abode, a child who is found begging on the streets , a street child , a child who resides with such a person who has threatened to kill the child,  a child who is mentally challenged , an abandoned child, a child who is vulnerable and can be dragged into drug abuse, sexual acts and a child who is victim of civil commotion and natural calamity. Juvenile in conflict[9]with law has been defined as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.

Juveniles in Conflict with law:
The second chapter of the Act addresses Juveniles in Conflict with Law. This chapter calls for the establishment of Juvenile Justice Boards where the State Government sees fit[10]. Juvenile Justice Boards must contain a Metropolitan or Judicial magistrate and two social workers where one of the workers must be a woman. The magistrate is required to have a background in child psychology or child welfare. Juvenile in Conflict with Law cases can only be heard in the Juvenile Justice Board and not by another court[11]. The chapter also deals with establishment of Observation homes[12]which are institutions for juveniles while their proceedings are underway.
As per the act when a police officer comes in contact with a juvenile he must place the child with the Special Juvenile Police Unit (SJPU) who must report the child to the board without delay[13]. Bail is available to juveniles in all cases as long as the Board finds that the release of this child will not place him in any danger or in the influence of criminals. If the child is not released on bail he is only to be placed into the custody of an Observation Home.


Order that can be passed against Juvenile:
The chapter II to the act lays down the orders that can be passed against a juvenile[14]when the Juvenile Justice Board is satisfied that the Juvenile has committed an offence. The orders mentioned are:
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry  against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen  years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care  of any parent, guardian or other fit person,on such parent, guardian or other fit person  executing a bond, with or without surety, as the Board may require, for the good behaviour  andwell-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not  exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period  of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile:
The Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it think fit.


Order that cannot be passed against a Juvenile:
Section 16 to the act states that a juvenile who has been found guilty of any crime can in no circumstance be punished with a death sentence , life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security[15].The proviso to the section lays down the case of a juvenile who is above 16 years of age and has committed an  offence and the Board is satisfied that the offence committed is of so serious in nature or  that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as  it thinks fit and shall report the case for the order of the State Government[16].


Children in Need of Care and Protection:
Chapter III addresses Children in Need of Care and Protection.  In place of a Juvenile Justice Board, Children in need for care and protection cases are heard by the Child Welfare Committee[17]. The committee should have a chairperson and four other members of whom at least one should be a woman and at least one expert in children’s issues[18]. The purpose of the Child Welfare Committee is to provide for the care, treatment, protection, rehabilitation and development of the child and in doing so uphold the rights of the child. The committee may commit a child to the Children’s home or a Shelter home if the child has no immediately available family or support system.
Like in the case of Juvenile In Conflict with law, Children in need of care and protection are provided with Children’s Homes[19]and Shelter Homes[20]. The state may directly set up these homes or contract a voluntary organization to do so. The main aim of this system is to restore the child to his family or family environment after determining the safety of the environment.


Protection Measures:
Chapter IV of the Act envisages for the rehabilitation and social reintegration of the children and and discusses certain non-institutional solutions such as adoption[21], foster care[22], and sponsorship[23]. Orphaned and abandoned children are eligible for adoption. Foster care in this act is only for looking after infants before adoption takes place[24]. Sponsorship programmes[25]are to help provide supplementary educational, nutritional, medical and other services to families, guardians, and homes. After-care organizations[26]are also to be set up to take care of children after they leave the homes. 
The last chapter of the act contains many miscellaneous provisions. Some of the notable provisions are as follows. The act allows for children with special needs such as a mental or physical disease to be given the necessary attention at an approved institution that specialises in the form of care[27]. Under this act the government can set up advisory boards at different levels to advise them about various implementation aspects of the act.


The Juvenile Justice (Care And Protection) Act, 2000- A Critique Analysis
Though the Juvenile Justice (Care and Protection) of Children Act, 2000 is a good piece of legislation serving the twin purpose of providing justice and providing ways of rehabilitation to the Juveniles in Conflict with Law and Juvenile in need of care and protection but it is not free from flaws and criticism. There are glaring deficiencies both, in procedural as well as substantive portions which require attention.

a) Usage of the word ‘may’:

A lot of the implementation part has been left up to the States by way of the rules that the States may formulate. The usage of the word ‘may’ as far as the framing of rules by the States is concerned, is a major fallacy because until and unless, the formulation of rules is not made mandatory, the implementation of the Act will remain a dream. Sec. 8 of the Act is an example of the abovementioned problem. According to Sec.8 (3) of the Act, the State may formulate rules and standards for the observation homes that are to be established. Leaving something as important as maintenance of standards to the discretion of the State is a major problem and should be made mandatory for the State to regulate such basic areas. Even the appointment of inspection committees for the children’s homes has been left to the discretion of the States and they ‘may’ constitute such committees according to Sec. 29. Something as important as after care organizations, to check up on the juveniles who have left the special homes and have been adopted or rehabilitated, has also been left to the discretion of the States according to Sec.44.

b)  Extension of period regarding inquiry:

Sec. 14[28]says that any inquiry regarding a juvenile, needs to be completed within a period of four months unless there are some special circumstances in special cases. There is absolutely no mention of what the maximum period for inquiry should be and what may be the special circumstances under which the period should be extended. This discretion permits cases to languish in the system indefinitely. Sec. 14 gives a lot of scope for arbitrariness and any lackadaisical attitude on behalf of the juvenile justice board may be sought to be explained as the special circumstances of the cases and hence, they have the option of getting away with it. This is extremely dangerous for a juvenile, in whose case the inquiry should be completed as soon as possible.

c)  Adequate training for the officials dealing with juveniles:

No provisions have been provided in the Act regarding the specifications of the special training of the officials who are supposed to deal with juvenile offenders. Even though Sec. 63 provides for properly trained police unit, it pays mere lip service to the requirement of special training because no proper guidelines have been provided as to how the special training will be given. Lack of properly trained officials defeats the entire purpose of the Act.

d)  Punishment for cruelty to a juvenile:

According to Sec. 23[29], a person responsible for cruelty to a juvenile will be punished with
Imprisonment for a period of 6 months or with fine or with both.  It is very strange that at a time when the government is trying to curb the menace of cruelty with juveniles, the punishment that they have prescribed is in no way going to act as a deterrent to such erring individuals. The punishment needs to be increased and also the fine amount needs to be specified so that it may discourage the potential law breakers in this area.

e)  The issue of Age of Juvenile:
Indian laws have created four categories of persons (who are accused of committing any offence) on the basis of their age. The criminal liability of a person, who has committed an offence, depends on the age-wise category to which he belongs. This is explained as under:
(1) Below 7 years of age:
Section 82 of the Indian Penal Code declares that nothing is an offence which is done by a child under seven years of age. Thus, irrespective of what crime is committed by a child below seven years of age, he shall not be liable for any punishment for such crime.
(2) Between the age of 7 years and 12 years:
Section 83 of the Indian Penal Code lays down as under:
“Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”
Thus, if an offence is committed by a child who is above 7 years of age but under 12 years of age, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct (i.e., the act of committing the offence) and the consequences thereof.
Now, if such a child commits an offence and he did not have the sufficient maturity of understanding the nature and consequences of his conduct, he would not be liable for that offence.  On the other hand, if he had the sufficient maturity of understanding to judge the nature and consequences of his conduct (leading to that offence), he shall be liable for that offence in accordance with the provisions of law. However, even in such a case, he shall not be prosecuted and punished like adult offenders. Such a child committing an offence shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, even if such a child is liable for action for the offence committed by him, he cannot be imprisoned and he cannot be given death penalty.
(3) Between the age of 12 years and 18 years:
If an offence is committed by a person who is of the age of 12 years or above but below the age of 18 years, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders. He shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, such a person also cannot be imprisoned and he cannot be given death penalty.
(4) Of or above the age of 18 years:
If a person committing an offence has completed the age of 18 years or is above the age of 18 years, he is criminally liable for such offence in accordance with the normal criminal laws of the country.

In the light of Juvenile Justice Act:  According to the Juvenile Justice act a “child” or Juvenile is a person who is under 18 years of age[30]. The act fails to punish offenders who are under 18 years of age but have attained mental maturity and are aware about the nature and circumstances of their act.  The intention behind the existence of the Act was to protect the juveniles because they were not supposed to have the necessary mental element required to commit crimes. This was the reason behind having milder laws and punishments to deal with juvenile offenders. However, in the light of cases[31]of crimes committed by maximum amount of brutality by Juvenile it is very evident that the offenders had the necessary knowledge and mental element regarding the commission of the crime and the provisions of the Act have now turned out to be a shield to protect them and provide them with lighter modes of punishment such as counseling or being kept in a correction home for 3 years.
In the case of Kakoo vs State of A P[32], Kakoo named boy of 13 years of age had committed rape on a small child of two years. He was convicted and sentenced for four years rigorous imprisonment. When the case reached the apex court it adopted humanitarian attitude and reduced the sentence to only one year rigorous imprisonment. Justice Sarkaria observed that an inordinate long imprisonment term is sure to turn a juvenile delinquent into obdurate criminal and laid an emphasis that in case of child offenders current penological trends command ‘a more humanitarian approach.
Recently the Supreme Court while declining petitions[33] seeking the lowering of the age in the act from 18 to 16 years for juveniles and demanding that those involved in heinous crimes should not be treated differently from other offenders said:
 “The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the rules framed there under in 2007, is restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into the mainstream of society”
“It is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future,” the court said.

Law in other countries and age of criminal responsibility[34]:
In England, the age of criminal responsibility, is set at 10 years. This means that any individual above the age of 10 is considered fully aware of the difference between right and wrong. In case of a juvenile offender, he/she can either be tried as a juvenile or as an adult, depending again on the heinousness of the crime. In case the offender is tried as an adult the Crown Court (the UK version of a criminal court) has in its discretion to award the maximum amount of punishment as would be awarded to an adult.
Similarly in the United States the case of Kent v The United Case[35] in 1966 saw a juvenile, who was convicted of house breaking robbery and rape, tried as a major. He was sentenced to thirty to ninety years behind bars.
In fact, the Unites States has drawn a clear distinction between juveniles as victims of an unresponsive society and those who are fully aware of the heinousness of their crimes. The legislation of the country allows in certain cases, keeping in mind the heinousness of the crime committed, to try juvenile offenders as adults. The justification offered behind this waiver is to recognise the inherent and all important principle of Mens Rea or guilty conscience.
This waiver of jurisdiction by the Juvenile Board is brought about by a clear understanding that in certain cases the board may not be adequately equipped to handle the offender, particularly one who committed the crime knowing fully well the consequences of his/her actions.
Another justification offered is the prime responsibility of the State to protect society from such offenders. By waiving its jurisdiction the juvenile court recognises that the offender is beyond the scope of juvenile rehabilitation and legitimises the waiver of jurisdiction as a means of protecting society at large from the offender.
Australia too follows a system similar to the United Kingdom. The age for criminal responsibility in Australia is also 10 years[36], which means a child is not supposed to know the difference between right and wrong if he/she is below 10 years. From 10 years to 14 years an accused comes under what is called ‘rebuttable presumption’, this means that by default the child is supposed to be unaware of the consequences and inherent illegality of the act committed, however the prosecution is free to rebut this understanding. Any individual over 14 years of age is held accountable of any crime committed by him and whether the individual is to be tried as a minor or an adult depends again on the heinousness of the crime.
Coming back to India and the Juvenile Justice Act 2000, it is easy to notice that rather than have a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is a system in which the maximum amount of sentence served by a delinquent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murderer; just so long both are under eighteen years of age.
Of course, the absolute lack of implementation of the provisions of the JJ Act after a juvenile completes his sentence is another concern. India’s massive population makes it impossible to track and ensure that a juvenile once released continues with his therapy or even reports regularly to his parole officer.
Summing up though the Juvenile Justice Act is a Progressive step in providing justice and rehabilitation to the Juveniles in conflict with law and Children in need of care and protection but the need of the hour is to amend it to overcome the lacunas it has and make it progressive with time.




[1] Article 15(3) of Indian Constitution
[2] Article 39 (E) & (F) of Indian Constitution
[3] Article 24 of Indian Constitution
[4] Article 45 of Indian Constitution
[5] Article 47 of Indian Constitutions
[6] United Nations (1989)  Convention on the Rights of the Child New York
[7] Section 2(k) of Juvenile Justice (Care and Protection of Children) Act 2000.
[8] Section 2(d) of Juvenile Justice (Care and Protection of Children) Act 2000.
[9] Section 2(l) of Juvenile Justice (Care and Protection of Children) Act 2000.
[10] Section 4 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[11] Section 4(2) of the Juvenile Justice (Care and Protection of Children) Act 2000.
[12] Section 8 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[13] Section 10 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[14] Section 14 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[15] Section 16 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[16] Proviso to  Section 16 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[17] Section 29 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[18] Section 29(2) of the Juvenile Justice (Care and Protection of Children) Act 2000.
[19] Section 34 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[20] Section 37 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[21] Section 41 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[22] Section 42 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[23] Section 43 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[24] Section 42 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[25] Section 43 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[26] Section 44 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[27] Section 48 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[28] Section 14 of   the Juvenile Justice (Care and Protection of Children) Act 2000.
[29] Section 23 of  the Juvenile Justice (Care and Protection of Children) Act 2000.
[30] Section 2(k) of Juvenile Justice (Care and Protection of Children) Act 2000.
[31] Priyangi Agarwal,Juvenile offender major crimes, Times of India, dated Jan 8, 2013.
[32] AIR 1976 SC 1991.
[33] Salil Bali v. UOI; Writ petition (c) no. 10 of 2013.
[34] Neal Hazel, Cross-national comparison of youth justice Pg. 35 , The University of Salford available at : http://www.yjb.gov.uk/publications/resources/downloads/cross_national_final.pdf
[35] Kent v The United Case ;383 U.S. 541
[36] Gregor Urbas, The Age of Criminal Responsibility, Australian Institute Of Criminology Pg. 1, available at http://www.aic.gov.au/documents/0/0/A/%7B00A92691-0908-47BF-9311-01AD743F01E1%7Dti181.pdf
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