38 Corporal Punishment

Jhuma Sen

epgp books

 

Introduction:

Corporal Punishment is any punishment that involves any form of physical force and is further intended to cause any form of pain or difficulty to the child of any degree. Major form of corporal punishments that are inflicted upon children are related to slapping, spanking or using any object in order to cause pain on the child. Apart from the physical forms there are several non-physical forms of punishment that can be something like mental torture. These forms of punishments might include humiliating or threatening or using abusive language with the child. In India Corporal punishment is pretty common every two out of three schools in India still face physically abusing the child. It is generally the boys who are more prone towards the abuse and this form of punishment takes place not only in Government but also private schools, generally this kind of behaviour by the authorities of the school is used and described by them to discipline the children.

India seems to prot Juvenile Justice ect children from subject to punishment in schools and the laws are laid down under the Indian Penal Code (IPC), however there are several loopholes that are there in the laws even in such brutal crimes and punishments that are inflicted upon the children. Section 83 of the IPC lays down that any act that is done by a child from the age of seven to twelve and is of immature understanding would not have said to have committed any offence, a child who has not attained the age of maturity in understanding to judge what the nature and the consequence of his conduct is on that occasion. In this understanding of section 83 of the IPC it can clearly be said that any child between the said age cannot if does not do his home work or follows the dress code at school should not be punished or there is no scope of corporal punishment.

Thus, it is clear that India actually has provisions against corporal punishment not only under the IPC but several other acts. Even though these are present it is true on contrary that there are several cases of corporal punishment that are reported and there are several unreported one which means that the children remain silent. Corporal punishment is not only a crime in India it is an illegal practice in several other countries and there are several international laws that also deal with corporal punishments.

Learning Outcomes:

After completing this module, students should know and understand

  • Types of corporal punishments inflicted on children,
  • Laws in India that prohibit or are against Corporal Punishment
  • Several reported cases of Corporal Punishment,
  • International Laws dealing with corporal laws
  • Comparison of Indian laws with other countries laws on corporal punishment.

Types of corporal punishments inflicted on children:

There are many ways in which corporal punishments can be inflicted on children. The type of corporal punishment that are inflicted upon the children depends upon the culture of the school. Several a times the type of corporal punishment that is inflicted on the children also varies in the urban and rural areas. The reasons of the punishment are generally the same. The few of the most common types of corporal punishments are as follows:

  • Caning: One of the most form of punishment is to cane students with a wooden cane. Schools authorities inflicting such punishments is actually a very humiliating experience in for the child specially when it is done in front of the other children. Caning can leave marks on the body of the child and may cause blisters to form and redness in the skin. It is always advisable for the parents if they come across such an injury on their child, there should be immediate action.
  • Slapping: Slapping a child by the school authority with their arms is another form of punishment inflicted on children, which is another form of humiliation for the child.
  • Hitting with object: Many a times teachers use wooden or plastic scales or throw dusters or pens on the children. This is another form physical abuse or injury that is inflicted upon the children. There are many such objects that are used, they hurt the child and also cause embarrassment in front of the class.
  • Verbal abuse: This is another form of common punishment, though this is not a physical form of punishment, yet it does cause psychological disorders. This form of abuse in front of the entire class is nothing but completely harsh behaviour on the children by the teachers and the other authorities.

Corporal Punishment at home:

Domestic corporal punishment is the one that is inflicted upon the children by their parents. In certain countries corporal punishment is said to be legal but restricted. In the United States and most Africa and Asian nations corporal punishments that are given by parents are said to be legal also inflicting injuries or punishing the children with certain objects like belts are legal as well.

In countries like Canada spanking by parents to the children are legal. It is only allowed on children above the age of 2 years and below the age of 12 years. Though this is allowed, it can only be done by parents with bare hands and no use of things can be done like belts, paddles etc, these are prohibited. In the UK spanking or smacking is said to be legal but the degree of spanking and smacking is a restriction, which means that if a child is smacked upon there should be no marks that can be left on the body of the child.

Corporal Punishment in School:

Inflicting injuries or corporal punishments in schools on children because of their misbehaviour or in order to discipline them is very common and is observed in many countries. These include to spank the child or use things like cane or a scale or a spanking paddle which are in many schools in different countries are kept for the similar purpose. There may be certain restrictions in some jurisdictions. Like for instance in Singapore caning is allowed only on the boys. In India there is no such law but it is usually the boys who are inflicted injuries upon.

Laws in India that prohibit or are against Corporal Punishment:

Constitutional Provisions and their interpretations:

  • Article 21: Thus article of the constitution provides the right to live with dignity. This Article has also been interpreted to provide free and compulsory education for children up to the age of 14 years. Corporal punishments leads to the physical abuse which inflicts the fear in the minds of the children and then these children tend to avoid school and also drop out completely.
  • Article 39(e): Under this article it is clearly mentioned that the health, strength of works, women, men and children of tender age ate not abused. This is to be implemented by the state and the state is the one which needs to work progressively towards this.
  • Article 39(f): This article works towards emphasizing on the state that they make proper arrangements and that they provide and give children opportunities and facilities in order to develop a healthy living.

Indian Penal Code: As mentioned above the central Act, i.e. IPC does protect children from the age of seven to twelve for any wrong they do, they cannot invite corporal punishment for themselves. This in essence also means that children of this age if they do not do their home-works or they fail to dress in their appropriate uniforms there is no right that is given to the school authorities to hit or physically punish the children. The principal that lays down this law is Doli Incapaxi, which prevent children of the age of 7 and below from any form of punishment.

In reality corporal punishment is not really covered under any provisions of the Indian >Law and there is nothing that punishes the perpetrators of this physical harm. The above mentioned provisions of law do not actually make a distinction between the adult and a child, corporal punishments in schools and other institutions are considered to be widely accepted as a social norm. The provisions under the IPC can be used as laws for corporal punishments but they are rarely used.

RTE Act, 2009: This act which had come into force on the 1st of April, 2010 clearly prohibits any form of “physical harassment” or “mental harassment” under Section 17(1) of the Act further makes it a punishable offence under Section 17(2). These provisions read as follows:

17. Prohibition of physical punishment and mental harassment to child – (1) No child shall be subjected to physical punishment or mental harassment.

(2) Whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service rules applicable to such person.

Further Section 8 and 9 of the Act authorizes and places a duty on the respected state government and the local authority to make sure that no child from the weaker or the disadvantaged section of the society are not excluded from completing their education.

Juvenile Justice (Care and Protection of Children) Act, 2015 provides for punishment against corporal punishment given to child:

Section 82. (1) of the Act Any person in-charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both.

(2) If a person employed in an institution referred to in sub-section (1), is convicted of an offence under that sub-section, such person shall also be liable for dismissal from service, and shall also be debarred from working directly with children thereafter.

(3) In case, where any corporal punishment is reported in an institution referred to in sub-section

(1) and the management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or the Board or court or State Government, the person in-charge of the management of the institution shall be liable for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may extend to one lakh rupees.

Criminal Liability in India for corporal punishment requires a malice on the part or from the teachers end. In many situations negligence and unreasonableness can also replace malice and can create a ground for injuring a student or causing simple injury under the Indian Penal Code. In one of the cases, Ganesh Chandra Shaha v. Jinraj Somani and another case, State v. H.A. Khandkar it hade been decided that if a the teacher who had caned the student and had inflicted blows on the fist thus causing bodily injury and loss of tooth was held to be criminally liable even though the defence of the teacher being that he was acting in good faith and for the benefit of the child. It is said that if the teacher exceeds their authority and they inflict bodily injuries then they would be liable under Section 88 of IPC and that the defence of good faith would also not be allowed.

Reported case of Corporal Punishment: Kolkata’s very famous school student Rouvan Rawla of La Martiniere of Boys School, 12 years old had committed suicide after he had been caned at school. He had been caned repeatedly by the school’s principal. After four days of the incident he had been found hanging in his room. The investigation was on relating to if the caning of the principal had led to the child to kill himself and but as per the maximum doubt it had been said that it was the principal who had caned the student for which he had taken such serious steps.

International Laws on Corporal Punishment:

With the evolution of laws over the time there have been a number of treaties and documents that have discussed and talked about the rights of a child. Before the Second World War the League of Nations had adopted the Geneva declaration of the Rights of the child in 1924. Further the United Nations in 1946 had taken its first building steps in declaring the importance of child rights by establishing the United Nations International Children’s Emergency Fund. After this the UN General Assembly had adopted the Universal Declaration of Human Rights which was the first document that recognized the importance of the need to protect the children. This document was focused on the rights of the children and it was more of a moral guide than a legally binding document on the government.

The United Nations Convention on the child rights has now been signed by 192 countries; two countries which have not signed the same are Somalia and the United States. India had signed and had ratified with the document in the year 1992. Somali did not sign the treaty because they do not have a stable government whereas United States has signed the Document but not yet ratified it showing the intention to ratify it.

The convention has certain articles which are related to and can be linked to or laws that can be for corporal punishments:

Article 19 says that the state shall take all types of necessary actions that would be important to protect a child from abuse, exploitation or neglect. The state has to make mediums and ensure that the child is been prevented and has sufficient protection and rehabilitation.

Article 32 further says that every child has the right to be protected from any form of economic exportation or from any work that would bring about adverse effect on the health of the child either physically or mentally or in their development and children should be protected from any work that is considered to be hazardous and dangerous in nature. The state must establish the minimum age requirement for working in certain sectors of industries along with employment hours with regard to children.

Article 37 provides that the state has to ensure that no child is facing any form of torture or any other inhuman treatment.

These are certain provisions that are related directly to corporal punishment and towards ensuring that children are not subjected to any form of physical or mental abuse and torture.

Laws that exist on Corporal Punishment in other countries:

Laws in Sri Lanka, Bangladesh and Nepal:

Sri Lanka: The penal code of Sri Lanka does not have the reasonable chastisement as a defence for the prosecution if they cause physical harm to a child of any nature and type and it is not criminalised by the code. It does provide that if corporal punishment is reasonably been used then it cannot be considered within the scope of an offence. This shows that in Sri Lanka a parent has the right to inflict simple injuries on a child. Corporal Punishment is used in Sri Lanka to discipline within family and mainly is used on boys in school.

Nepal: The Nepal’s Children’s Act, Article 7 says that no child shall be subject to torture and cruel treatment further it justifies by saying that scolding and minor beating a child by his father, mother or any member of the family or even for a fact a guardian and a school teacher is allowed for the development and interest of the child and shall not be considered to be illegal or will not violate the act.

Bangladesh: The Juvenile Justice Act of India and the Bangladesh Children’s Act have included an offence which is the offence of cruelty on children which involves offenders like parents, guardians and teachers as well. Bangladesh’s act does not count whipping a male child as an offence in their laws.

Laws in United States:

In a landmark judgement of Goss v. Lopez, the Supreme Court of he United Sates of America had came to a decision that the constitutional protection of cruelty and degrading treatment did not apply to school discipline and that parents could only bring a civil action and could only claim for relief. In another case of Ingraham v. Wright it had been decided that corporal punishment was not violative of the eight amendment ban on the cruel and degrading treatment on the grounds that constitutional protection was not necessary school were open institutions where children were at their own will and could leave.

In the US almost half of the states do legitimize corporal punishment and even where they legitimize only minimum or reasonable corporal punishment is protected. Most of the northern states have laws that are completely against corporal punishment, states like California, Michigan, Lava and few more.

Conclusion:

Alternatives to corporal punishment: maximum of the corporal punishment result in some form of injury and also have massive psychological effects. Corporal punishment inflicted in school is a form is embarrassing and shameful for the students and it may also be counted in the forms of mental torture. There are a few alternatives that can be used instead of corporal punishment. These alternatives have been useful and proved to be successful in few countries. Detention and chores are two of the most common form of alternatives for corporal punishment. Detentions can be used in order to make the child spend more time with the teacher in forms of providing tuition or doing home works and in this way the teacher can also help the student to develop in the area where he has been punished for.

Counselling another form of verbal remedy but a positive one or may be mentoring or isolation or withdrawing privileges from the students can also be used instead of corporal punishments. It is necessary for corporal punishment in the form of injuries to be removed and that if not these then some other form of remedy is found and used. It is because if children are hit in front of other students they become mentally disturbed and there can be several consequences of this, like suicide or revenge or harmful or disrespecting behaviour. That one punishment is not really good for the future of the child.

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Reference

  • https://www.urbanpro.com/a/corporal-punishment-in-schools-in-india-an-overview
  • http://harprathmik.gov.in/pdf/rte/corporal%20punishment.pdf
  • https://www.urbanpro.com/a/punishment-in-schools-in-india-what-the-law-says
  • https://www.savethechildren.in/what-we-do/child-protection/corporal-punishment.html
  • http://www.ncpcr.gov.in/view_file.php?fid=108