CHILD OFFENDERS, INSANITY and INTOXICATION: EVALUATING  THE BALANCE BETWEEN CULPABILITY AND PROTECTION IN  BNS 

INTRODUCTION  

The Bharatiya Nyaya Sanhita (BNS) 2023 is a monumental shift in the landscape of India’s  criminal justice system, moving past colonial era legal provisions to embrace a modern  understanding of populations rendered vulnerable to law violation. This article deeply explores  Sections 7, 22 and 23 of the BNS, which addresses child offenders, persons with diminished  mental capacity for culpability and victims of involuntary intoxication, articulating a nuanced  understanding of the need to protect vulnerable individuals while keeping society accountable.  Vulnerable populations in criminal law include individuals a person whose age, mental  condition, or circumstance diminishes their ability to form criminal intent or understanding of  the consequences of their acts. 

The BNS recognizes three specific categories of protection: Children below Seven Years  (Section 7), persons of unsound mind (Section 22) and People Under Involuntary Intoxication  (Section 23). Each of the provisions demonstrate the legislature’s understanding that justice is  only served by treating individuals differently if individuals possessed the capacity to  understand their conduct. The doctrine of criminal responsibility rests on two fundamental  principles: actus reus (the guilty act) and mens rea (the guilty mind). However, a number of  categories of people may lack the capacity for criminal culpability due to youth, mental  condition, capacity, or impairment due either to drugs or alcohol. The BNS 2023 recognizes  this complexity through very specific provisions that recognize diminished culpability, but also  the need to recognize the character of specific impaired behavior, while balancing public safety. 

CHILD OFFENDERS 

The BNS provisions addressing children align with IPC Section 82 and Section 83. BNS  Section 20 states that committing an offence by a child below seven years is no offence at all.  This is rooted in the legal principle of doli incapax, which presumes that a child below seven  does not possess sufficient capacity of mind to constitute the requisite mens rea. BNS Section 

21 states that committing an offence by a child above seven years and less than 12 years is an  offence at all, provided that the child has not acquired sufficient maturity of understanding to  appreciate the nature and the consequences of his conduct on that occasion. Accordingly, the  law moves from a blanket immunity (pre-7 years) to a qualifying immunity (7-12 years),  reflecting a continuum of culpability.  

The legal treatment of child offending has constitutional roots found in Article 15(3), which  permits the State to make special provisions for children and Article 39, (e) and (f), a part of  the Directive Principles requiring that children be protected from abuse and be provided an  opportunity to develop in dignity. These constitutional protections are the basis for giving  children a separate prescriptive structure under the criminal law. 

The minimum requirements under Section 20 are age to be the prima facie evidence, no  questioning of maturity is required. Under Section 21, the court has to assess whether the child  possessed “sufficient maturity.” This is a matter of fact to be inferred from circumstances, e.g.,  the child’s behavior during and subsequent to the act. Significantly, “consequences of his  conduct” does not mean penal consequences but the natural consequences. 

The JJ Act, 2015 has a clear-set plan to handle children in conflict with law. It categorizes  offences into petty (3 years or less), serious (3–7 years) and heinous (at least 7 years). In the  case of heinous offences by 16–18-year-olds, the JJB undertakes an initial assessment of the  child’s mental and physical capability to commit the offence, capacity to understand the  consequences of the offence and circumstances of commission. If the Board determines that  the child was sufficiently mature, the case is sent to the Children’s Court to be tried as an adult.  This assessment-oriented procedure aims to find equilibrium between safeguarding child  offenders and responding to public anxiety regarding the involvement of juveniles in serious  offenses. 

We have a few landmark case laws to under the same. The case of Shyam Bahadur Koeri v.  State of Bihar (1967) where it was held that child under seven who did not report finding  treasure was acquitted, as law assumes incapacity. In the case of Hiralal Mallick v. State of  Bihar (1977) where it was held that offender under twelve cut a man with sharp weapon. The  Court held him mature enough and convicted him.

INSANITY 

Section 22 BNS (which corresponds to Section 84 IPC) provides that a person who commits  an action which is considered a crime must not be punished if, at the time of committing the  alleged criminal conduct, because of unsoundness of mind, they were incapable of knowing  the nature of the act, or that it was wrong or contrary to law. 

This provision is based on the principle of furiosus solo furore punitur, a madman is punished  only by his madness. This is based upon the logic that lacking the ability to understand or  control their actions, one cannot develop mens rea. Interestingly, however, the law presumes  every individual is sane until the prosecution proves that is not the case. 

The Key Requirements of the Provision are:  

• The defendant must be of unsound mind. 
• The unsound mind must exist at the time of committing the act of alleged crime.  • The effect on the defendant must be such that they could not understand the nature of  the act or its wrongfulness.  

The law distinguishes between legal insanity and medical insanity. An individual may be  suffering from a mental disorder (for example, schizophrenia or depression), but without the  mental state undermining the defendant’s ability to understand the nature of their act, they  remain criminally liable. The threshold in relation to legal insanity is therefore considered to  be much narrower than a medical diagnosis. 

In India, the test for insanity is based on the well-known M’Naghten Rules established in the  case of R v. M’Naghten (1843). These rules state the following: 

1. Everyone is presumed to be sane. 
2. There must be evidence of a mental disorder. 
3. The defect of reason must render the accused incapable of understanding the nature  of the act or recognizing its wrongfulness. 

An example of this application is seen in the case of Shrikant Anandrao Bhosale v. State of  Maharashtra (2002), where the accused was acquitted after medical evidence confirmed that  he had schizophrenia and was incapable of understanding his actions..

INTOXICATION 

Sections 23 and 24. Section 23 (corresponding to Section 85 IPC) specifies that no act qualifies  as an offence if committed by someone unable to determine the nature of the possession or act,  provided that the person is intoxicated involuntarily (i.e., administered without knowledge or  against the person’s will). Section 24 (corresponding to Section 86 IPC) refers to voluntary  intoxication and states that someone who is voluntarily intoxicated is presumed to have the  same knowledge as if they were sober, despite an absence of intention. 

The difference is inherent in the idea of fairness. If someone is intoxicated without their  knowledge or against their will, it would be unfair to prosecute them for consequences they  could not anticipate. If someone is willingly intoxicated, he or she cannot use defences based  upon an absence of intention, as that would simply encourage crime in a reckless manner. 

Essentials of Section 23 are that the act must be committed under an occurrence of intoxication and the person must not know or consent to the person being intoxicated. Further the person  must be incapable of understanding what he/she is doing. And lastaly, the intoxication must  

have occurred without any knowledge, consent, or intention to have the intoxication. Essentials of Section 24 are that the voluntary intoxication does not offer a defence. Intention  aside, there will be evidence of knowledge even for extreme intoxication, intoxication being  voluntary, it will mean liability regardless of intent. 

It must be understood that in voluntary intoxication the intent is not established or proven. The  courts will downgrade liability, but they will permit liability from murder to culpable homicide  as evidence of intent is absent. In involuntary intoxication, it is a complete defence, but only  when incapacity is established at the point/time of the offence. 

We must examine the landmark case of Jethuram v. State of Madhya Pradesh (1960) where it  was stated that despite involuntary intoxication, the accused still understood the nature of his  act, thus, it is not a valid defense. 

TAKEAWAYS  

The protective goal of the BNS provisions is apparent. In the context of minors, the emphasis  is on rehabilitation and reformation through the juvenile justice system. In the context of 

mentally ill offenders, the law recognizes the moral undesirability of punishing someone for  acts that they were incapable of understanding. Involuntary intoxication is only recognized for  intoxicated persons. To summarize, these provisions represent a human-rights oriented notion  of justice, aligned with constitutional values in Article 14, Article 15(3), Article 21 and 

international normative frameworks like UN Convention on the Rights of the Child. 

What binds all three categories is the requirement for individual assessments. Judges are called  to assess the facts of each particular case: do they have a determination of a child’s maturity,  was insanity present at the time of the offence, was the intoxication voluntary or involuntary?  This individualised approach limits blanket policies and promotes a more just result related to  the voluntary/intoxicated issue, or the afflicted child, or the mentally incapable person.  However, individual assessment also imposes subjectivity and inconsistent application, as  different courts can view maturity, incapacity, or intoxication differently. 

LOOPHOLES 

The BNS demonstrates a careful balance between protecting vulnerable individuals and  ensuring justice. However, several grey areas remain.  

The assessment-based approach for individuals aged 16 to 18 raises concerns. While it  addresses serious crimes, it risks undermining the rehabilitative philosophy of juvenile justice.  Critics argue that it shifts the focus of the system from reform to retribution. 

The reliance on the strict M’Naghten Rules has been criticized as outdated, as it focuses  narrowly on cognitive incapacity while neglecting volitional aspects, such as the inability to  control impulses. This creates gaps where mentally ill offenders may still be held liable despite  significant incapacity. 

The law fairly denies voluntary intoxication as a defense, but it fails to address addiction as a  systemic issue. The binary distinction between voluntary and involuntary intoxication  overlooks cases where substance dependence reduces a person’s ability to make choices. 

CONCLUSION 

Through its provisions on child offenders, insanity and intoxication, the BNS reflects the  fundamental struggle of criminal law, balancing culpability with protection. It acknowledges  that criminal responsibility cannot exist without mental capacity while ensuring that these  protections are not misused to evade liability. Although the law establishes a humane  framework, challenges remain in interpretation, implementation and consistency. Ultimately,  these provisions remind us that justice is not just about punishing wrongdoing but also about  understanding human limitations, vulnerabilities and the necessity of a system that emphasizes  both reform and accountability. 

The significance of these provisions in the Bharatiya Nyaya Sanhita is embedded in the general  statutory innovation as well as in the philosophical bases underpinning it. We see an alignment  with the constitutional vision of justice expressed in Articles 14, 15(3) and 21, where equality  before law exists alongside protective provisions for discrete categories of people. The  inclusion of doctrines such as doli incapax, the M’Naghten Rules and distinctions between  voluntary and involuntary intoxication, all show that the law is not unaware of circumstance  but instead calibrated somewhere between fairness and deterrence. 

Nonetheless, actual performance of these provisions is dependent on the actual application and  interpretation of the law by courts in practice. The discretion to determine the maturity of a  thirty-day old baby, if not better known by other canonical indicators, or to assess insanity or  what is “voluntary” intoxication, makes judicial wisdom and uniformity an absolute necessity  in order to eliminate or at least limit the ability of either arbitrary approaches or excessive  rigidity or formalism.  

Moreover, the BNS has opportunities through precendent in the courts, comparative  perspectives and further statutory reforms, reconsideration of the restrictive scope of the  M’Naghten standard, or systemic issues like substance use disorder from a rehabilitative  ontological, the BNS has real potential to thrive.  

In summary, the character of the law through child offenders, insanity and intoxication is a  reminder that the value of a criminal law system rests not only on how equality before the law  trickles down.  

REFERENCES 

• Bharatiya Nyaya Sanhita, 2023 
• Indian Penal Code, 1860 
• Juvenile Justice (Care and Protection of Children) Act, 2015 
• Constitutional Provisions 
• Constitution of India, art 14 
• Constitution of India, art 15(3) 
• Constitution of India, art 21 
• Constitution of India, art 39(e) 
• Constitution of India, art 39(f)  
• Shyam Bahadur Koeri v State of Bihar AIR 1967 SC 633 
• Hiralal Mallick v State of Bihar (1977) 4 SCC 44 
• Shrikant Anandrao Bhosale v State of Maharashtra (2002) 7 SCC 748 • Jethuram v State of Madhya Pradesh AIR 1960 MP 242 
• R v M’Naghten (1843) 10 Cl & Fin 200, 8 ER 718 
• United Nations Convention on the Rights of the Child 1989 
• K D Gaur, Textbook on The Bharatiya Nyaya Sanhita, 2023 (BNS 2023) (9th edn,  LexisNexis 2024) 
• Ratanlal and Dhirajlal, The Bharatiya Nyaya Sanhita, 2023 (37th edn, LexisNexis  2025) 
• Ashok Kumar Jain, Bharatiya Nyaya Sanhita (BNS-II) (Criminal Law-I) (2nd edn, EBC  2025)