PROTECTION OF CHILD FROM CORPORAL PUNISHMENT: LEGAL VALIDITY UNDER INDIAN LAWS
ACTIVISMLAWFEATURED
1. INTRODUCTION
“Discipline is not about punishment, it's about guidance.”
— James Lehman
The term “corporal punishment” finds its roots in the Latin word “corpus,” which pertains to the human or animal body. It denotes a method of discipline wherein a supervising adult employs physical force to induce pain or discomfort, predominantly targeting children but occasionally also adults. Corporal or physical punishment is defined as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light.”[1] It is a disciplinary approach where an overseeing adult intentionally causes discomfort or pain to a child in response to their unacceptable behaviour or inappropriate language. This method typically aims to immediately stop the offense, deter its repetition, and serve as a model for others. The intended long-term objective is to modify the child's behaviour to align more closely with the expectations of the adult. In a corporal punishment, the adult typically strikes different parts of the child's body using their hand or implements such as canes, paddles, yardsticks, belts, or other objects intended to induce pain and instil fear.
Research conducted by World Health Organisation indicates that corporal punishment exacerbates behavioural issues in children over time and lacks any positive effects. Even seemingly mild forms of corporal punishment carry the potential for escalation, and studies suggest that parents who resort to it are more likely to engage in severe maltreatment. The negative consequences of corporal punishment extend across various domains, including physical and mental health, cognitive and socio-emotional development, educational attainment, and increased aggression or propensity for violence. Moreover, corporal punishment violates children’s rights to physical integrity, dignity, health, education, and freedom from cruel, inhuman, or degrading treatment. Preventing corporal punishment and its associated harms requires comprehensive approaches involving multiple sectors and strategies, including legal reforms, changing harmful cultural norms around child-rearing and discipline, supporting parents and caregivers, and implementing school-based interventions.
The United Nations Convention on the Rights of the Child (UNCRC) mandates that State parties must establish measures to regulate school discipline, ensuring that such measures uphold the dignity of the child and adhere to the principles outlined in the Convention.2 Additionally, the convention emphasizes the responsibility of State parties to provide education that promotes respect for human rights and fundamental freedoms, as enshrined in the Charter of the United Nations.3 Furthermore, it is the obligation of State parties to prevent
children from being subjected to torture or any other form of cruel, inhuman, or degrading treatment or punishment.[2] Moreover, the States must enact legislative, administrative, social, and educational measures to safeguard children from all forms of physical and/or mental violence.[3] This encompasses actions aimed at preventing injury, abuse, neglect, maltreatment, and exploitation of children.
When parents use corporal punishment to regulate their children's behaviour, they inadvertently convey the message that violence is an acceptable means of conflict resolution. As a result, these children are more likely to grow into adults with heightened aggression, perpetuating the cycle by employing similar disciplinary methods with their own offspring.
2. STATUTORY PROVISIONS IN CONFORMITY WITH CORPORAL PUNISHMENT
The Constitution of India guarantees the right to life and dignity[4], encompassing the right to education[5] for all children up to the age of 14 years. In the seminal case of Krishnan[6] he Supreme Court of India ruled:
“…Obtaining basic education is an implicit right under Article 21, in conjunction with the Directive Principles of State Policy (DPSP) on education outlined in Article 41. These rights should be interpreted in line with the DPSPs, particularly Article 45, which mandates the State to strive to provide free and compulsory education for all children within a period of 10 years from the commencement of the Constitution underscoring the contention that corporal punishment constitutes abuse and thus infringes upon the freedom and dignity of a child.”
Corporal Punishment interferes with the child's fundamental right to education by instilling fear, leading to school avoidance or dropout. These factors demonstrate that corporal punishment violates the “right to life”. The DPSP stipulates that the State should endeavour to prevent the abuse of children at a young age[7]. Additionally, it mandates the State to gradually strive towards providing children with opportunities and resources to nurture their physical and mental well-being[8]. It is imperative to ensure that young individuals are safeguarded against exploitation and are not subjected to moral or material neglect.
Similarly, the Juvenile Justice (Care and Protection of Children) Act, 2015 aims to care for and protect the child, both in home and in the sphere of society. If a child suffers physical or mental harm, or is subjected to assault, abuse, exposure, or neglect by an employee or an individual[9] entrusted with the child's care and protection, the offender may face imprisonment for up to 5 years and a fine of up to Rs. 5 lakhs. If the child becomes physically
incapacitated or mentally ill as a result, the penalty may be increased to up to 10 years of imprisonment. It also outlines the consequences for inflicting cruelty on children and stipulates that any person who has actual control or custody of a child and intentionally assaults, abandons, neglects, abuses, or exposes the child, resulting in mental or physical harm, shall be imprisoned for a term of up to three years and a fine of one lakh rupees, or both.[10]
The Right of Children to Free and Compulsory Education (RTE) Act of 2009 is a significant piece of legislation in India that guarantees free and compulsory education for children aged 6 to 14 years (in conformity with Article 21-A). It ensures the ‘right to free education’ in a school until the completion of elementary education.[11] It is the obligation of the government and local authorities to facilitate enrolment, attendance, and completion of education for all children[12], and also mandates that private schools reserve 25% of their seats for children from disadvantaged and weaker sections.[13] It explicitly bans physical punishment and mental harassment, fostering a child-friendly learning environment[14]. Additionally, Section 21 and requires the establishment of School Management Committees (SMCs) to monitor school operations and ensure accountability.[15]
3. CONTRADICTIONS AND JUDICIAL OVERVIEW
Albeit, Section 89 of The Indian Penal Code (IPC) pertains to acts performed in good faith for the benefit of a child under twelve years by a guardian or with the guardian’s consent. This provision suggests that corporal punishment administered by a teacher to maintain discipline may potentially be protected, in contrast, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, holds individuals accountable for causing mental or physical harm to a child through assault, abandonment, exposure, or neglect. This apparent contradiction necessitates an understanding of the distinction between general laws and special laws.
General laws, such as the IPC, apply universally to all citizens of India, whereas special laws, like the Juvenile Justice Act, are tailored for specific groups or purposes and have limited applicability. In cases of conflict, special laws generally, take precedence over general laws. Therefore, while the Juvenile Justice Act supersedes the IPC in instances of contradiction, courts generally do not deem punishments administered reasonably and in good faith for the betterment of children as unlawful. The context and impact of corporal punishment on the child's well-being are critical factors in legal interpretation. Despite the evident contradiction, both the hon’ble Supreme Court and High court has ruled against corporal punishment of children in various judgments. The Delhi High Court in the case of Kishor Guleria[16] highlighted that:
“…even minor acts of violence towards children could escalate into serious abuse, with teachers potentially misjudging the force applied, leading to excessive punishment.”
Hon'ble Justice N Anand Venkatesh of the Madras High Court, while recognizing the urgency to protect children, emphasized the need for specialized legislation to address corporal punishment, noting that existing legal and constitutional frameworks expressly prohibit physical harm to school students.
Similarly, the Apex Court ruled in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi & Ors.[17]:
“…every aspect contributing to a life of dignity is protected under Article 21 of the Indian Constitution. The Constitution of India prohibits violence against children as it infringes on their right to live with dignity, an essential component of the right to life under Article 21. Additionally, corporal punishment serves as a deterrent to school attendance and exacerbates dropout rates, contradicting the Fundamental Right to Education guaranteed under Article 21-A of the Constitution of India.”
In the similar case of S. Jai Singh & Ors. v. State & Anr.[18], the facts revolved around children being instructed to perform a duck walk on the school grounds as a punishment for arriving late to school. However, research indicates that duck walking can increase vulnerability to knee joint injuries. Despite this knowledge, the staff and physical training mentors displayed a careless attitude and overlooked this significant risk. The judgment emphasized that professional teachers are expected to possess knowledge of their field and remain updated with advancements. They are entrusted with the responsibility to act with diligence as their actions directly impact students' physical health, which cannot be trivialized. This case serves as a reminder of teachers' obligation to stay informed about scientific developments in their field. The Bench deemed it appropriate to address the petitioners' moral obligation by requiring them to provide monetary compensation to the affected families.
In the case of Ambika S. Nagal v. State Of Himachal Pradesh[19], the court observed the exception of acts done in good faith. Here, the child was subjected to a slap by the teacher as a disciplinary measure for misbehaving in class. Allegations were made that the teacher struck the child with a fist and blew. Although a medical examination revealed five minor ecchymoses, which did not constitute significant physical harm, one loose tooth indicated a potential forceful impact. However, it remained unclear whether the action was performed in good faith. The court highlighted that the nature of corporal punishment hinges on the circumstances and the extent of injuries sustained by the child. Parents implicitly authorize schools to exercise disciplinary measures, absolving teachers of inherent punishment. Each case must be evaluated individually, as there is no universal principle governing all situations. It was determined that the teacher's actions were well-intentioned and exercised with reasonable care, leading to the quashing of the FIR and dismissal of pending proceedings.
4. CONCLUSION
The persistence of physical discipline for children despite doubts about its effectiveness in maintaining order is concerning. Despite the lack of evidence supporting the notion that children who receive physical punishment grow up to be more responsible citizens, the old adage “Spare the rod and spoil the child” continues to influence attitudes. However, physical punishment does not replace effective communication in teaching children about behaviour. There are numerous non-violent methods to instil discipline. Resorting to physical punishment often leads to resentment among children towards authority figures, their parents, and the institutions allowing it. Some may even seek retaliation through violence. Tragically, exposure to violence in childhood can normalize it, leading to abusive behaviour in adulthood. This harmful cycle must be broken.
Corporal punishment of children constitutes child abuse and must be eradicated. It is crucial to educate society about laws prohibiting corporal punishment and to adopt a zero-tolerance approach towards any form of violence against children. Regrettably, the Indian judiciary has yet to depart from the traditional English legal framework when addressing the legality of corporal punishment. Recent rulings overlook children's constitutional rights, instead allowing disciplinary measures to be influenced by outdated cultural norms and legal standards. Courts must acknowledge children as a vulnerable group and recognize that corporal punishment exacerbates power imbalances. By legitimizing corporal punishment, schools perpetuate oppressive environments. It is imperative for criminal law to align with constitutional principles, ensuring that all actors, including teachers, uphold children's right to dignity.
5. BIBLIOGRAPHY
1. “Corporal Punishment”, available at https://www.britannica.com/topic/corporalpunishment (last visited on 12/03/2024)
2. “Corporal Punishment and Health”, available at https://www.who.int/news-room/factsheets/detail/corporal-punishment-and-health (last visited on 12/03/2024)
3. “Guidelines for Eliminating Corporal Punishment in Schools”, available at https://nimhanschildprotect.in (last visited on 01/04/2024)
4. “National Child Protection Policy” by Ministry of Women & Child Development available at https://wcd.nic.in (last visited on 01/04/2024)
[1] “Corporal Punishment”, The Council of Europe, available at: https://www.coe.int (last visited on June 1, 2024) 2 United Nations Convention on the Rights of the Child (UNCRC), art. 28 (2) 3 Ibid., art. 29(1)(b)
[2] Ibid., art.37(a)
[3] Ibid., art.19
[4] Constitution of India, art.21
[5] Ibid., art.21-A
[6] Unni Krishnan v. State of Andhra Pradesh (1993)
[7] Supra note 6, art.39(e)
[8] Ibid., art.39(f)
[9] Juvenile Justice (Care and Protection of Children) Act, 2015, s. 23. Provision pertains to individuals who have actual charge or control over a child including parents, guardians, teachers, employers, or anyone else in a position of authority over a child.
[10] Supra note 11, s.75
[11] Right of Children to Free and Compulsory Education (RTE) Act, 2009, s.3
[12] Ibid., s.8
[13] Ibid., s.12
[14] Ibid., s.17
[15] Ibid., s.21
[16] Kishor Guleria v. Director of School Education & Ors., (LPA No. 562/2012)
[17] (1981) 1 SCC 608
[19] CRMMO No. : 331 of 2018