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Corporal Punishment And Child Rights In India

It is not an exaggeration to state that any form of Corporal punishment is evil, degrading, unjustifiable and a gross violation of the rights of children. Corporal punishment, also interchangeably known as physical punishment has been defined by the Committee on the Rights of the Child as "any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light.

Mostly involves hitting ("smacking", "slapping", "spanking") children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc."

The Committee doesn't restrict its definition to physical punishments only. It also includes within the ambit of Corporal punishment, "other non-physical forms of punishment that includes, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child." Masquerading as "discipline", in school settings especially, students are frequently and almost routinely made to undergo physical and psychological violence.

Corporal punishment is the use of physical force against a child as a 'corrective' form of enforcing discipline. Usually, teachers who are unable to discipline their students take recourse to physical assault.

Physical punishment scars the body and mind of a student, robbing them of dignity. Children must not lose their rights just because they have passed through the school gates. Allowing teachers to lose control over their behaviour while teaching restraint to a child creates a paradoxical situation! It needs to be addressed by the law and measures beyond the law.
Schools often apply an incorrect standard in cases of Corporal punishment. They examine the severity of the physical injuries caused to a child when what needs to be understood is that any physical force can be potentially disastrous for a child.

Often, teachers cane, spank, or duckwalk a student, and there have been cases of tying up children to "discipline" them. Using wooden/iron stick, twisting the ear lobes, or beating on the back with the elbows were some of the extreme punishments that find their traces back in history. Evidence shows that spanking can negatively impact the brain and cause children to experience withdrawal.

Some children might start viewing violence as an acceptable way to ensure compliance. They may use violence to achieve the behaviour or responses they wish to see in others. This normalises violence in tender minds. It is shameful for us that such inhuman, barbarian, cruel, uncivilized, undemocratic, feudal, and criminal activities are practiced in temples of education.

Teachers in schools, caretakers in alternative care institutions (orphanages, juvenile homes, foster care homes, hostels etc.) or parents; these three categories are self-appointed, extra-judicial authorities who take cognizance of the wrongs committed by their wards, hold their trials and pronounce as well as execute punishments in extreme disregard of the law.

They claim protection under Provisions of Sections 88 & 89 of the Indian Penal Code, 1860. Section 88 safeguards "Acts not intended to cause death, done by consent in good faith for person's benefit" and Section 89 protects "Act done in good faith for benefit of child or insane person, by or by consent of guardian."

Unreasonable Behaviour of Teachers

There is a deeper issue at play here, and to understand it, there is a need to look at why teachers allow Corporal punishment in classrooms. Teachers use physical punishment (or mental harassment) because of a general lack of awareness or interest to explore options other than violence and abuse.

While a special law may increase the punishment for this crime, there is a need to deter the practice. In Criminal Justice, the theory of deterrence functions on the assumption that individuals make rational choices and would, therefore, not indulge in a criminal act that invites severe punishment.

Hence, deterrence is more likely to work for premeditated offences and not those which result from sudden emotions. Teachers commit violence against children when swayed by emotion. Say, when they feel frustrated at being unable to manage the classroom.

Other factors such as low pay scales, a skewed student-teacher ratio and poorly-resourced schools contribute to emotional build-ups. Teachers when lose patience lash out at the students while adopting Corporal punishment patterns.

While systemic issues such as understaffed and under-resourced public schools with overcrowded classrooms place additional stress on teachers, teacher training, especially in alternative methods to tackle classrooms, are also needed.

Negative outcomes

The team found that physical punishment was not associated with any positive outcomes for children and increased the risk of children experiencing severe violence or neglect. Negative outcomes associated with physical punishment, such as behavioural problems, occurred irrespective of the child's sex, race, or ethnicity and regardless of the overall teaching styles of the caregivers. The magnitude of negative outcomes for children increased with the frequency of physical punishment. The physical punishment does not improve children's behaviour and instead makes it worse.

Concern shown by Judiciary

"Even animals are protected against cruelty… Our children surely cannot be worse off than animals," said Justice N Anand Venkatesh of the Madras High Court as he recently ruled in [CRL. O. P No 23120 of 2018 titled S. Jai Singh & Ors. Vs State & Anr.]. This case relates to a student who died after he was made to do a "duckwalk" - a form of Corporal punishment-for arriving late to school. Justice Venkatesh ruled that despite legislation against such forms of punishment, they are still practised in educational institutions across the nation.

The attitude of the Judiciary is also ambivalent towards the deep-rooted problem of Corporal punishment. The Kerala High Court held in [WP (Crl.) No. 220 of 2014 titled "Rajan Vs Sub-Inspector of Police"] that "reasonable" use of force by a teacher to discipline the student shall not be a crime. However, is it the extent or the existence of physical coercion that constitutes an offence in this case? The reasoning in the Kerala case is inherently flawed.

The Delhi High Court held in [LPA No. 562/2012 titled Kishor Guleria Vs Director of School Education & Ors.], that even minimal violence to children could degenerate into an aggravated form of abuse or harm. A teacher cannot always be mindful of how much force he (or she) is using against a child. So, the strike or punishment may not be within "reasonable" limits.
Understanding the urgent need to protect children from this barbaric practice, the Hon'ble Justice N Anand Venkatesh of the Madras High Court emphasized the need for a special law to deal with Corporal punishment in S. Jai Singh (supra). A legal-constitutional framework that expressly prohibits physical harm to school students already exists.

Relevant Constitutional Provisions

Under Constitution of India, violence against children is violative of right to live with dignity which is integral to right to life under Article 21. Further, Corporal punishment serves as a deterrent to children from attending school and contributes to dropout rate. This goes against the Right to Education as a Fundamental Right guaranteed under Article 21-A of Constitution of India. In November 2008, the Gujarat High Court had ruled that law does not recognise Corporal punishment to child [Hansmukhbhai Golakdas Shah Vs State of Gujarat, 2009CriLJ2919].
  • Article 21 of the Constitution of India which protects the Right to Life and Dignity includes the Right to Education for children up to 14 years of age. Corporal punishment amounts to abuse and militates against the freedom and dignity of a child. It also interferes with a child's right to education because fear of Corporal punishment makes children more likely to avoid school or to drop out altogether. Hence, Corporal punishment is violative of the Right to Life with dignity
     
  • Article 21-A of the Constitution of India provides that "the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." This Fundamental Right has been actualised with the enactment of Right of Children to Free and Compulsory Education Act, 2009.
     
  • Article 39 (e) of the Constitution of India directs the State to work progressively to ensure that "… the tender age of children are not abused".
     
  • Article 39 (f) of the Constitution of India directs the State to work progressively to ensure that "children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."
     
Legal Provisions
Section 17 (1) of the Right of Children to Free and Compulsory Education Act, 2009 expressly bans subjecting a child to mental harassment or physical punishment. Cruelty to children is also prohibited under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. These laws hold teachers and adults liable for assault or Corporal punishment of children. However, these policy reforms have done very little to eliminate the menace.

Corporal punishment violates the rights of a child. Article 37 (a) of the United Nations Convention on the Rights of the Child, to which India is a signatory, says that no child should bear any torture, cruelty, or inhuman punishment. In ["Francis Coralie Mullin Vs Administrator, Union Territory of Delhi & Ors." (1981) 1 SCC. 608], the Supreme Court held that "every limb or faculty" that helps enjoy life must be protected by Article 21 of the Constitution of India.

Contradictions Vis-a-Vis Legal Provisions

Section 89 of the Indian Panel Code, 1860 states that "an act done in good faith for the benefit of a child under 12 years by a guardian or by consent of a guardian". A teacher / headmaster inflicting a punishment in good faith, who uses moderate and reasonable Corporal punishment to enforce discipline, are protected by Section of the Indian Panel Code, 1860.

Further, Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that "whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him/her to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both" which runs in conflict and in contradiction with Section 89 of the Indian Panel Code, 1860. Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted with the objective of protection of rights of the children given in the United Nations Child Rights Convention, 1989, which includes the prevention and prohibition towards all sorts of violence faced by children.

In [Ambika S. Nagal Vs State of Himachal Pradesh, 2020 SCC OnLine HP 666], the High Court held that "whenever a ward is sent to school, the parents must have said to give an implied consent on their ward being subjected to punishment and discipline."

This Judgment was rendered in spite of the pupil succumbing to his injuries. In a case against the State of Kerala, the Kerala High Court in [WP (Crl.) No. 220 of 2014 titled Rajan Vs Sub-Inspector of Police] upheld the infliction of Corporal punishment holding that it was beneficial to the child even in cases where the consequences were extreme, as the teacher has a judging authority whether or not to inflict the punishment.

Conclusion
The practice of physically punishing children continues unabated regardless of its efficacy in discipline enforcement. People want to believe in the age-old dictum, "Spare the rod and spoil the child", whereas, there is no proof of beaten and bruised children growing up into responsible citizens any more than those who were spared the rod actually and brought up in a loving and nurturing environment. A rod cannot be a substitute for conversation.

There are a thousand ways to illustrate the difference between good and bad behavior to children. Physical abuse only hardens the children and they harbour a resentment towards the disciplining authority for punishing them; parents for allowing this to happen and the institution for facilitating it. They may also look for an opportunity to settle scores and resort to violent means of retribution. Sometimes their impressionable minds may accept it as the correct way and they may grow up to be abusive adults believing in the power of violence.

Either of these is wrong. Corporal punishments to children is tantamount to child abuse and it needs to stop. People need to be made aware of the laws against Corporal punishment and most importantly we need to change our mindset and adopt a zero-tolerance approach towards any sort of violence against children.

Government of India has banned the practice of Corporal punishment throughout the country. But the implementation of law UN Convention on Child Rights treaties are not implemented in the school and student level. Practice of Corporal punishment and classroom violence continues to exist. Many developing countries have adopted agendas to promote the people's age old mentality that Corporal punishments could only curb the bad social behaviour or action. India also had to protect child rights and promote awareness campaigns against Corporal punishment.

As a part of a UN Mission, parenting specialists in many cultures in which Corporal punishment has been the norm have been trying to alter parents' disciplinary strategies. The only way laws are implemented are when a student dies or commits suicide. We cannot be watching news having nothing to do but to hope people to change.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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