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Spare The Rod And Free The Child: Analysing The Validity Of Corporal Punishment In India

In the Innately Indian, conservative environment, parental punishments are perceived as an entitlement, and sometimes an immunity acquired through the nature of the parent-child relationship. The deification of this unique authority exerted by the parent on an actor that exhibits relatively higher dependency, i.e., the child, has created appallingly disastrous consequences. This Article attempts to trace the nature of the violence inflicted on children at home by parents or any other persons with similar authority, the impact of such violence thus inflicted, and the legitimacy of parental immunity offered by the law in India.

Indian legislations and the criminal justice system inherently display an attitudinal bias while approaching instances of child abuse by parents. From corporal punishment to aggravated hurt, violence imposed by parents are justified through cultural beliefs, religious distortions, and societal perceptions, and dismally, the law has helplessly conceded to them.

Such trends could be found in section 89 of the Indian Penal code, 1860, and provisions of the Juvenile Justice Act, 2015, and Right to Education Act, 2009, where, corporal punishment in schools and child care institutions is prohibited, but at home are allowed [i]. When coveted international organizations, including the United Nations, support 'the right of a child from all forms of violence,' are the Indian laws adequately offering such protection to one of its most vulnerable actors?

Further, Is the justification for such immunity, that parents, as an actor has the 'best interest of the child' true in all circumstances? If not, then how can the law protect children from illegitimate violence inflicted by parents, and how to incorporate a mechanism for the regulation of such violence in the criminal justice system? The author intends to answer all these questions through this article by comparatively analyzing Indian legislations and the legal landscape in countries where corporal punishment and illegitimate exertion of violence by parents are prohibited.

A child is unfamiliar with what is 'familiar' to us. This ignorance makes them socially vulnerable actors, susceptible to exploitation and abuse. And, the state, adhering to its egalitarian aspirations, has an obligation to protect the most vulnerable sections. This paper attempts to analyze whether the state has an obligation to enact specific legislation for regulating corporal punishment or criminalize corporal punishment, for the purpose of extending special social protection to one of its most unguarded subjects - children. Here, corporal punishment includes all forms of physical punishment inflicted on a child by parents, guardians, or any other persons with similar authority.

In this article, the author initially provides a theoretical background for corporal punishment by aligning with Locke's pedagogical arguments on education and punishment, and the postulates of the critical political theory. In the second section, a detailed scrutinization of the International and municipal law is made for ascertaining the legality of corporal punishment. Further, the last section attempts to deconstruct the legal arguments supporting corporal punishment in India.

  1. Theoretical Background
    Lockean liberalism, and its antagonism to corporeal punishment
    In 1693, when corporal punishment was a normalized parental entitlement, John Locke wrote:
    - "Those children who have been the most chastised seldom make the best men[ii]." It is evident that Lockean Liberalism supports the 'independence in action' that should be made available to a child.

    Though his conceptualization of 'parental power' in Two Treatises demands parents to "take care of their offspring, during the imperfect state of childhood,[iii]" an exertion of this power through corporal punishment was explicitly condemned. The indignation for physical punishment can be found in his warning that "frequent beating or chiding is therefore carefully to be avoided [iv]." As an alternative, digressing from the social validation of passive violence inflicted on children, Locke proposed the 'esteem and disgrace[v]' disciplining technique.

    This form of punishment, which requires parents to use "softer ways of shame and commendation" to educate the child, passively stimulates their mental faculties rather than imposing tangible harm when they commit a wrong[vi]. Thereby preserving the child's autonomy and bodily integrity while concomitantly aiding them to differentiate virtues and vices. Despite the suggestion that a child should be the subject of the parent's control, Locke copiously advocates for the child's right to liberty, admittedly with certain reasonable restrictions[vii].

    Accordingly, a child should be given the opportunity to be the authority and source of their actions, primarily for gratifying natural human tendencies that desire liberty and independence. It is, therefore, a settled fact that children have a rightful claim to liberty, which is equal in proportion and similar in application to that of any other Individual. Then, does the state have an obligation to foster, and sometimes defend the right to life and liberty of a child, when it is breached by their parents or guardian? If yes - can the state regulate the private sphere by monitoring the intimate, familial engagement between parents and children?

    Within the bounds of the private sphere; An analysis of the state's power to regulate familial relationships. The Aristotelian compartmentalization of society into Oikos (family), constituting the private sphere and Polis representing the public sphere,[viii] was a formal validation of the existence of two distinct social realms.

    This dichotomy was further reflected in countless political theories, and most recently, in liberal feminism. But, among them, critical theorist - Martin Heidegger's argument that individual authenticity is best expressed in the private sphere compared to an impersonal collective identity in the public sphere[ix] succinctly explains the plurality of an individual's social subsistence. Further, supporters of the public/private divide contend that the private sphere, arguably placed away from political scrutiny, experiences minimal governmental intervention. In Justice Marshall's words, it is "a sphere of private autonomy which government is bound to respect[x]."

    But, over the last few decades, a marginal deviation from this perception was found in legal and political discourses. For Instance, in the wake of feminist activism, the power asymmetry in the private sphere was dissected, and a few unacceptable practices were criminalized[xi]. The criminalization of domestic violence is quintessential to it. Therefore, the state has been regulating the private sphere based on the nature of the illegitimate practice, continually occurring within the bounds of a family.

    These regulations are employed for protecting the rights of the vulnerable actor, only in instances where the breach of the victims' rights causes more harm than the preservation of the rule of governmental, non-intervention of the private sphere. Then, aligning with the trajectory of this transformation, the criminalization of corporal punishment or any direct or indirect form of violence inflicted on a child in their private spheres can be supported, as such punishments violate the child's right to life and liberty.

    And, this rightful claim cannot be dismissed on the grounds that the state does not have the authority to regulate the private sphere, as the harm caused due to non-intervention is higher. On that account, it becomes important to analyze the legal harms caused due to corporal punishment.

    The primary objective of corporal punishment is either disciplining, correction, or reformation. Likely, consequentialism might support corporal punishments if they yield effective outcomes and retributivism if they reform the child[xii]. Nevertheless, the actual harm of such punishment lies in the means and not the end. The vexing question is whether the breach of a child's rights and autonomy for the purpose of reformation is justified? For answering this question, an analysis of the rights available to a child under International and Municipal law is indispensable.
     
  2. Traversing through International and Municipal Law
    What the international law has to say about the right of a child against violence.

    A transnational attempt to recognize child rights was first initiated through the adoption of the Geneva Declaration on the Rights of the Child, by the League of Nations, in 1924[xiii]. This document categorically recognizes a child's right against every form of exploitation and their entitlement to an upbringing that inculcates social consciousness[xiv].

    Further, Article 25 of the Universal Declaration of Human Rights, a document embodying the political aspirations of every individual, grants a right to social protection to children[xv]. Resonating with this, the UN Convention on the Rights of the Child, 1989 (hereinafter referred to as CRC) has comprehensively crafted an international framework for the protection of the rights of children.

    Article 19 of this legal instrument mandates the state parties to extend protection to children against all forms of violence, abuse, exploitation, and maltreatment, by persons responsible for taking care of the child, including parents and guardians[xvi]. The use of physical force by parents is, therefore, a violation of Article 19 of CRC.

    Indian legislations and the Rights of a child

    Comparably, the spirit and scope of Article 21 of the Indian Constitution promise a life with human dignity to all citizens[xvii] and prohibits violence or force against children[xviii]. This was affirmed by the Delhi High court while examining the constitutionality of corporal punishment in Parents Forum of Meaningful Education v. Union of India and Another. It was observed that "Article 21 in its expanded horizon confers medley of rights on the person including the following rights
    1. A life of dignity
    2. A life which ensures freedom from arbitrary and despotic control, torture and terror
    3. Life protected against cruelty, physical, or mental violence, injury or abuse, exploitation including sexual abuse.

    All these rights are available to the child and he cannot be deprived of the same just because he is small. Being small does not make him a less human being than a grown up[xix]." In addition to this, along with a right against abuse under Article 21, a corresponding duty on the state to protect children from abuse is recognized under Article 39(e) of the constitution. To fulfill these state obligations as envisaged in the constitution and other international directives, the Prevention of Offences against Child Bill, which proposed making corporal punishment an offense, was drafted in 2009[xx].

    This Bill was later replaced by a bill on sexual offenses that translated into the Protection of Children from Sexual Offences Act, 2012[xxi]. Therefore, even though attempts to criminalize corporal punishment were made, the criminalization of corporal punishment at home did not materialize into a legislation. Hence, corporal punishment when committed by parents or guardians does not invite any penal sanctions at the moment, as such actions fall within the parental immunity provided under section 89 of the Indian Penal Code.

    According to this provision, an "Act done in good faith for benefit of the child or insane person, by or by consent of guardian [xxii]" is not an offense unless it causes death, grievous hurt, or infirmity.

    Furthermore, this exception is often justified by citing the common law ruling in R v. Hopley; where it was affirmed that parents, teachers, and persons in loco parentis have a right to use "reasonable and moderate[xxiii]" corporal punishment. This ratio was declared redundant on multiple occasions by reason of the radical changes in parenting and child rights that transpired after its pronouncement in 1860[xxiv].

    Dismally, the redundancy of this decision is acknowledged exclusively while considering corporal punishment committed at school and other care institutions, and not at home. Therefore, in India, only when corporal punishment surpasses the earlier mentioned threshold of reasonability and becomes illegitimate, the parent or guardian is liable under the following provisions of the IPC:
    1. Section 323 penalizes the act of voluntarily causing hurt [xxv
    2. Section 325 penalizes the act of voluntarily causing grievous hurt [xxvi]
    3. Section 352 penalizes assault and the use of criminal force [xxvii]
    4. Section 506 that penalizes criminal intimidation [xxviii]
       
  3.  Legality of corporal punishment in India
    Regardless of the availability of the above-mentioned provisions, corporal punishment is an unabated occurrence that does not invite any legal sanctions, primarily because of the dependency of the victim on the perpetrator and secondarily due to the stringent criteria established for legally utilizing such recourses.

    This anomaly can be illustrated through a thought experiment. An adult of sound mind approaching the authorities with a formal complaint against another for assaulting them is handled with utmost significance and solemnity. Contrastingly, a child's complaint against parents for assault, without any formal validation of its occurrence by an adult, undergoes the test of reasonability before acknowledgment or prosecution of the crime.

    There is a duality in the standards for acknowledgment of the same crime for an adult and a child. When a minor touch constitutes assault for an adult under Section 352 of IPC, the same cannot be applied to a child if the court or authorities, bound to take cognizance of the crime, believes that such force was inflicted for the child's benefit. This variation, originating from cultural beliefs and social value systems, fundamentally makes three assumptions:
    1. Child, as a social actor, is a subject to possession of their parent or guardian. Therefore, any claim advanced by them requires formal authorization or validation from an adult.
    2. An extra-judicial actor, not associated with the state, here, parent or guardian is given the authority to prosecute the child for a wrong they committed.
    3. Any form of punishment or force succeeding in such informal prosecutions, which incentivizes the child to exhibit socially or morally acceptable behavior, can be condoned
      These assumptions are problematic on multiple dimensions.

The reason for the same is given below:
In Nicomachean Ethics, reiterating the first premise mentioned above, Aristotle claims that "the product belongs to the producer[xxix]" and therefore children to their parents. Aligning with this thought, speaking for proprietarianism, Jan Narveson argues that children are the property of parents, and such ownership confers certain parental rights[xxx].

At the outset, these opinions justify parental authority but simultaneously raise certain deep philosophical questions. If the ownership is vested in parents, does the parent acquire all the rights naturally made available to a property-holder, including exploitation rights?

If yes, then all forms of abuse on the child could be defended on the grounds that it is mere exertion of the parents' right as the owner of the child. This conception is not only morally wrong but goes against the fundamentals of human existence. If proprietarianism is validated, it dilutes the authenticity and validity of human rights, as it allows one human being to own another.

This ownership will inflate the aggregate violence in society, as the owner, by virtue of their unparallel rights over their property, acquires legal immunity against acts committed on their property. If implemented, this philosophy has the potential to foster parental tyranny, where children are oppressed through unjust use of power by parents or guardians.

On a secondary level, parenthood is now regarded as a fiduciary relationship[xxxi] and not proprietorship under the law[xxxii]. Hence, a child should be recognized as an independent individual with autonomy and will, unassociated with their parent. This claim is not a rejection of parental rights but an attempt to restructure it by arguing that parents merely have a right to direct the child without using force.

Furthermore, it is valid to raise skepticism about parents' authority to prosecute a wrong committed by the child and consequently award punishment, if required. Because neither the Constitution nor the state has officially elevated parents as an entity capable of prosecuting a wrong. In addition to this, the Indian Penal code regards children to be doli incapax.

This pre-supposition can be found in Section 82 of the IPC, which exempts children, under the age of 7[xxxiii], from all forms of criminal liability as they are considered incapable of evil. A similar supposition of a child's innocence could be traced in section 3 of the Juvenile Justice Act, 2015, which has adopted the presumption of innocence principle[xxxiv]. Under this provision, "Any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of eighteen years [xxxv]."

Therefore, when the inability of a child to commit harm exists as a legal presumption, the parents are not justified in prosecuting them for wrongs according to the parents' interpretation of the term 'wrong.' At this juncture, the principle of "Nulla poena sine lege [xxxvi]" gains relevance as it conclusively mandates that a person cannot be punished for committing an act that is not prohibited under the law. This, when read with Article 20(3) of the Indian constitution invalidates all extra-judicial prosecutions initiated by parents on children.

Additionally, Max Weber's definition of 'state' as an entity with an absolute monopoly over all forms of legitimate violence[xxxvii] renders the use of violence or force by parents, even in the child's best interest, illegitimate. Then, because of the above reasons, parents do not have a right to prosecute the child informally and punish them by inflicting physical force, in the private setting of their homes.

Conclusion
Childhood is supposed to be beautiful, devoid of terror, and away from pain. Every parent has a duty to gift their children such an experience. If they fail to meet those expectations, the state has an obligation to protect children, against all forms of violence and exploitation, that may arise from parents. Therefore, corporal punishment at home, which is a form of violence committed against children needs to be regulated and criminalized for safeguarding the rights of individuals who decide the course of our tomorrows.

End-Notes:
  1. UNICEF, https://www.unicef-irc.org/portfolios/general_comments/CRC.C.GC.13_en.doc.html, (last visited Aug. 15, 2021
  2. Locke, J., 2013. Some Thoughts Concerning Education. Dover Publications.
  3. Locke, J., 2017. Two Treatises of Government. Peacock Books.
  4. Locke, J., Supra note 1.
  5. Locke, J., Supra note 1.
  6. "Locke remarks that esteem and disgrace are the mind's most powerful motives 'once it is brought to relish them' is also extremely important. The pleasure of being esteemed, like any other pleasure, will move a person only once he or she is uneasy about losing it. Parents, therefore, must nurture this desire to be well thought of by praising the child's good actions and letting him or her know their disappointment when he or she behaves wrongly." Tuckness, A., 2010. Locke on education and the rights of parents. Oxford Review of Education, 36(5), pp.627-638.
  7. Locke, J., Supra note 1.
  8. Roy, J., 1999. 'Polis' and 'Oikos' in Classical Athens. Cambridge University Press, 46(1), pp.1 - 18.
  9. Collins, J. and Selina, H., 2012. Introducing Heidegger. London: Icon Books.
  10. "The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect." PruneYard Shopping Center v. Robbins, 447 U.S. 74, 93 (1980)
  11. McAfee, N. and Howard, K., 2009. Feminist Political Philosophy (Stanford Encyclopedia of Philosophy). [online] Plato.stanford.edu. Available at: [Accessed 8 November 2021].
  12. Benatar, D., 1998. Corporal Punishment. Social Theory and Practice, 24(2), pp.237 - 260.
  13. League of Nations, 1924. Geneva Declaration on the Rights of the Child.
  14. Unicef.org. n.d. History of child rights. [online] Available at: convention/history-child-rights> [Accessed 7 November 2021]
  15. Ibid
  16. Convention on the Rights of the Child, G.A. Res. 44/25, art 19, U.N. Doc A/44/736 (Nov. 20, 1989
  17. Maneka Gandhi v. Union of India, AIR 1978 SC 597
  18. Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549
  19. Parents Forum of Meaningful Education v. Union of India and Another, AIR 2001 Delhi 212
  20. In the third/fourth state party report to the UN Committee on the Rights of the Child, dated 2011, the Government confirmed that corporal punishment of children is not considered an offence due to section 89 of the Penal Code; this was to be rectified by the drafting of a Prevention of Offences against the Child Bill which would make corporal punishment an offence. However, in 2011 this Bill was replaced by a bill on sexual offences - as enacted, the Protection of Children from Sexual Offences Act 2012 does not prohibit corporal punishment." End Corporal Punishment, 2020. Corporal punishment of children in India. [online] Available at:
    [Accessed 10
    November 2021].
  21. Ibid
  22. The Indian Penal Code. 89.
  23. R v. Hopley, 175 ER 1024
  24. Parents Forum of Meaningful Education v. Union of India and Another, Supra Note 18.
  25. The Indian Penal Code. 323.
  26. The Indian Penal Code. 325.
  27. The Indian Penal Code. 352.
  28. The Indian Penal Code. 506.
  29. Aristotle and Beresford, A., n.d. The Nicomachean ethics.
  30. Narveson, J., 2001. The libertarian idea. Peterborough, Ont.: Broadview Press.
  31. Braham Raj Singh vs Smt. Braham Raj Devi And Ors, AIR 1982 HP 57.
  32. Scott, E. and Scott, R., 1995. Parents as Fiduciaries. Virginia Law Review, 81(8), pp.2401-2476.
  33. The Indian Penal Code. 82.
  34. The Juvenile Justice (Care and Protection of Children) Act, 2015. Section 3(i).
  35. Ibid
  36. Hall, J., 1937. Nulla Poena Sine Lege. The Yale Law Journal, 47(2), pp.165-193.
  37. Weber, M., 1965. Politics as a vocation. Philadelphia: Fortress Press.

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