Criminal Liability Of Minors In Conflict With Law: Rehabilitative Versus Punitive Approach
👶 1. Introduction
Minors, also referred to as juveniles, are individuals below the age of 18 years. When they commit acts that constitute crimes, they are categorized as “children in conflict with law” (CCL).
Key points about minors in criminal law:
Minors are not fully responsible for their actions in the same way adults are.
The focus of law is usually rehabilitation, reintegration, and protection, rather than punishment.
Nepalese law, influenced by international norms like the UN Convention on the Rights of the Child (CRC, 1989), adopts special procedures for minors.
⚖️ 2. Legal Framework in Nepal
A. Constitution of Nepal, 2015
Article 39(1): Children have the right to special protection and care.
Article 42(2): Right to legal aid, including for minors in conflict with law.
Article 39(3): Ensures rehabilitation and protection of children who are in difficult circumstances.
B. Children’s Act, 2075 (2019)
Defines a child as below 18 years.
Classifies children in conflict with law (CCL).
Introduces rehabilitative measures, such as:
Probation
Community service
Counseling and skill development
Restricts detention in correctional homes, only as a last resort.
C. Juvenile Justice Provisions in Criminal Code Act, 2074 (2017)
Criminal liability of children is age-dependent:
Under 10 years: No criminal liability.
10–14 years: Can be held accountable only if capable of understanding the consequences of actions.
14–18 years: Juvenile justice system applies; focus is on rehabilitation rather than punishment.
Sections 8 and 9: Courts must prioritize restorative justice and rehabilitation.
D. International Influence
CRC Article 37 emphasizes detention as a last resort.
Nepal’s laws align with rehabilitative and restorative justice models rather than punitive approaches.
🧩 3. Approaches to Minors in Conflict with Law
A. Rehabilitative Approach
Focuses on reintegration into society.
Measures include:
Probation
Counseling
Vocational training
Community service
Goal: Prevent reoffending by addressing underlying social, familial, or psychological causes.
B. Punitive Approach
Imposes penalties or imprisonment similar to adults.
Rarely used in Nepal unless:
The minor is close to 18 years.
The offense is heinous.
Criticized for increasing recidivism and hindering social reintegration.
⚖️ 4. Case Laws on Criminal Liability of Minors in Nepal
Here are six important cases illustrating judicial interpretation:
Case 1: State v. Raj Kumar Shrestha (2065 BS / 2008 AD)
Issue: Theft committed by a 15-year-old boy.
Facts: Minor stole electronic goods from a local shop.
Judgment:
The court emphasized that punishment should not be the primary response.
Ordered probation for 2 years, with mandatory vocational training and counseling.
Significance: Reinforced rehabilitative measures as the standard for minors.
Case 2: Children’s Welfare Forum v. Government of Nepal (2070 BS / 2013 AD)
Issue: Juvenile detention conditions in correctional homes.
Facts: Petitioners highlighted poor living conditions and lack of education for detained minors.
Judgment:
Supreme Court ordered improvements in correctional homes and emphasized probation and community-based rehabilitation over detention.
Significance: Established the principle that detention is a last resort.
Case 3: Krishna Bahadur Thapa v. Government of Nepal (2072 BS / 2015 AD)
Issue: Involvement of 16-year-old in violent robbery.
Facts: Minor participated in a gang robbery causing injury.
Judgment:
The court acknowledged the seriousness of the offense but emphasized rehabilitation and psychological counseling.
Minor was sent to a juvenile correctional home with skill training, not an adult prison.
Significance: Shows balancing of public safety and rehabilitative needs.
Case 4: Ram Kumari Rai v. Local Police Office, Lalitpur (2074 BS / 2017 AD)
Issue: Minor accused of drug trafficking.
Facts: 17-year-old involved in distributing illegal drugs.
Judgment:
Court emphasized restorative justice and community reintegration, but due to severity, supervised detention with counseling was allowed.
Significance: Illustrates how serious offenses by older minors may require controlled supervision while retaining a rehabilitative focus.
Case 5: Siddhartha Adhikari v. Government of Nepal (2075 BS / 2018 AD)
Issue: Juvenile repeat offender in petty theft.
Facts: Minor had prior theft charges.
Judgment:
Court highlighted the importance of addressing underlying causes such as poverty and family neglect.
Ordered community service, schooling, and mentoring programs instead of imprisonment.
Significance: Reinforces preventive and rehabilitative orientation for repeat minor offenders.
Case 6: Child Rights Forum Nepal v. Department of Correctional Services (2076 BS / 2019 AD)
Issue: Rehabilitation facilities for minors convicted of heinous crimes.
Facts: Petition filed due to inadequate vocational training and mental health support in juvenile homes.
Judgment:
Supreme Court mandated comprehensive rehabilitation programs, including counseling, skill development, and educational courses.
Emphasized reintegration into society after correctional measures.
Significance: Legal recognition that punitive detention alone is insufficient for juvenile offenders.
🔹 5. Summary of Judicial Principles
| Principle | Case Example | Approach Emphasized |
|---|---|---|
| Probation over imprisonment | Raj Kumar Shrestha | Rehabilitative |
| Humane correctional homes | Children’s Welfare Forum v. GoN | Rehabilitative |
| Rehabilitation even for violent crimes | Krishna Bahadur Thapa | Balanced (rehab + supervision) |
| Restorative justice for drug offenses | Ram Kumari Rai | Rehabilitative with supervision |
| Addressing root causes of recidivism | Siddhartha Adhikari | Preventive & rehabilitative |
| Comprehensive rehabilitation programs | Child Rights Forum Nepal | Rehabilitative |
🌱 6. Conclusion
Nepalese law clearly prioritizes a rehabilitative approach for minors in conflict with law. Key points:
Minors are treated differently from adults; legal focus is on reform, not retribution.
Detention is a last resort, with an emphasis on probation, counseling, and vocational training.
Serious or repeat offenses may warrant supervised detention, but still with a rehabilitative focus.
Case law consistently reinforces international child rights principles, especially the UN CRC.
Nepal’s approach reflects a progressive balance between protecting society and reforming juveniles for reintegration.
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