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Desperate Need for a law against Corporal Punishment

INTRODUCTION :

Murray Straus, a sociologist defined Corporal Punishment as “the use of physical force with the intention of causing a child to experience pain, but not injury, for the purpose of correction or control of the child’s behavior.[1]. It is a practice widely used to discipline the child by parental or quasi-parental authorities. Corporal punishment has been used to instill discipline since the commencement of formal education in India.It is of several types. It can be physical, which is the most used form of punishment and sometimes can be mental/verbal punishment which includes verbally abusing a child. Negative reinforcement of the child is also considered to be corporal punishment. It primarily includes specifically targeting a child or not allowing them into class. Corporal punishment was banned through Section 17 of the RTE Act (hereinafter referred to as the Act) in 2009. [2] But it is still being practised with zero interference from the state; supported by several laws and judgments which happen to be violative of the Act. What most people fail to understand is that Corporal punishment is contradictory to the fundamental facet of Child Rights Convention i.e. “that an adult should recognize the child as the person which means promoting the liberty, privacy and dignity of the child, the brutal disciplinary processes hamper the psychological growth of a person.”[3]

A. Inability of the state to prevent Corporal Punishment :

The Right of Children to Free and Compulsory Education (RTE) Act, 2009 came into force in 2010. It prohibits physical punishment and mental harassment of a child under the provisions mentioned in Section 17. As per clause 2 to the section, whoever contravenes with this prohibition would be liable to face a disciplinary action for commission of the offence. Article 37(a) of the United Nations Child Rights Convention requires state parties to ensure that no child is subjected to torture or to cruel/inhumane treatment or punishment.[4] India ratified the UNCRC in 1992 and brought in the RTE Act in 2009. In spite of the prohibition of Corporal punishment by these legislations, it is still prevalent in different parts of the country. Several ambiguities found in the existing legislations give space for the teachers to punish children within the purview of good faith such as provisions of the IPC[5]. Rule 37 of Delhi School Education Rules, 1973 allows Corporal Punishment in its schools as a disciplinary measure and also allows several forms of negative reinforcements[6]. Similarly, in 2010 The Corporal Punishment for Educational Institutions Prohibition Bill was presented before the state assembly of Assam but it could not be passed due to the opposition from teachers’ associations[7]. This substantiates how the state, which is supposed to protect the child, exploits his/her rights under the purview of good faith.

B. Common Justifications given by Quasi-parental Authorities :

A quasi-parental authority refers to any person who has similar power and rights to a parent i.e., a teacher/legal guardian of a minor. Corporal punishment has been justified by these authorities by taking the defense of an act done in the good faith of the child. One of the common excuses given by authorities and parents is that they were hit as a child and it didn’t cause any harm to them. It is completely pointless to blame the previous generation for hitting the children because they were following the prevalent practice of that time. The majority of parents continue to use physical methods and corporal punishment as a method to correct their child’s behaviour because that’s how they were raised and that sort of punishment is what is familiar to them.[8]

THE SHORTCOMINGS OF SEC.17 OF THE RTE ACT :

Ever since the prohibition of Corporal punishment under the Act, there have been several contradictions found in the legislation and the way in which it is interpreted. India brought in the RTE Act in 2010, but in the due process of developing the legislation, they failed to discover and answer several contradictions present in it.

A. Contradictions found in the statute :

Section 89 of the Indian Penal Code 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 and protects the guardian.” [9]. A teacher/ headmaster inflicting a punishment in good faith, who uses moderate and reasonable corporal punishment to enforce discipline, are protected by this section. Further, Section 23 of the Juvenile Justice Act, 2000 provides “punishment for cruelty to juvenile or child. Whoever, having the actual charge of or control over, a juvenile or the child” [10], whichsounds contradictory to Section 89 of IPC. Section 23 also exempts teachers and parents. Juvenile Justice Act 2000 was established to enshrine the objectives and rights given in the United Nations Child Rights Convention 1989, which includes the prevention and prohibition towards all sorts of violence faced by children. Grievous hurt (S.320 of IPC), Using force (S.349 of IPC), Assault (S.353 of IPC) are some of the offences that could result in prosecution of parents or teachers. Corporal punishment also violates Article 39(3) of the Constitution, which directs the state to make sure that the “tender age of children is not abused”. In Ambika S. Nagal v. State Of Himachal Pradesh, the court held that “When a ward is sent to school, the parent must have said to give an implied consent on their ward being subjected to punishment and discipline”[11] .This judgement was given in spite of the pupil succumbing to his injuries. In a case against the State of Kerala, the Kerala HC supported Corporal punishment holding that it was beneficial to the child even in cases where the consequences were extreme[12], as it was held that the teacher has a judging authority whether or not to inflict punishment.

B. The relationship between law and corporal punishment :

The RTE Act came into force in 2010 and since it came into force, there have been multiple questions. One such question is who should be punished in a corporal punishment case. Do the teachers or school authorities have any judging authority to decide circumstances under which a punishment can be inflicted, is another issue in this arena. India is a country where a teacher holds a respectful and powerful position and it is assumed by them that this power is what gives them the authority to administer corporal punishment. According to the act, only a judging authority under NCPCR has the right to hear complaints, administer proceedings and draw conclusions in cases of corporal punishment. As per the established and enforceable law, corporal punishment conceives an appropriate authority to fix the guilt of those involved in the punishment. In case of an incident, the respective management is supposed to conduct a separate enquiry apart from the school involved in such act. Further, according to Section 32(1) of the RTE Act,[13] state governments are supposed to appoint a local authority who assumes the duty of addressing grievances related to corporal punishment. This is one of the several measures to be taken by the school in the case of Corporal punishment cited by NCPCR.[14]

NEED FOR A LAW AGAINST CORPORAL PUNISHMENT :

            On several occasions, teachers/headmasters have abused the power in their hand and abuse children severely in the name of corporal punishment. What’s unacceptable here is that they have been able to circumvent those cases as they go unreported and even if these cases get reported, it often gets turned in favour of the authorities who inflicted punishment rather than in the favour of the victims/children. Violence against children in India is recognized only when it is registered as a criminal act. Thus, the abuse children face within the boundaries of intimate and familiar relationships e.g. spanking by their parents, bullying in schools and severe punishments by teachers are not reported because they are not considered as criminal acts.

A. Section 89 of IPC protects corporal punishment under the purview of good faith :

            A teacher/headmaster who administers/inflicts corporal punishment under the context of correcting a child is not punishable under Section 323 of IPC[15] when compared to Section 88 of IPC. Section 323 of IPC states that “Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” The given legislation doesn’t provide under what circumstances voluntary hurt can be taken into consideration since Section 88 of IPC protects voluntary hurt if done under the ambit of “Good faith.” Section 89 protects an act done by a guardian in good faith.  However this section won’t extend in cases of grievous hurt, but it does not state up to what circumstances grievous hurt’s scope can be defined. “62 percent of the incidents take place in government affiliated schools in a study conducted by the Union Ministry of Women and Child Development, only extreme cases such as death and suicide tend to draw public attention and only a handful of cases are taken to courts”[16]. Only in cases where grievous hurt can be identified, the incident is being reported. In a judgment given in 2000, the state was directed by Delhi High Court to ensure “that children are not administered corporal punishment and study in an environment free from fear[17]. However recently, in Ambika Nagal v. State of Himachal Pradesh[18], corporal punishment by authorities was found to be legal and the suspected authorities were acquitted. While one of these judgments was before the RTE Act, this recent judgment shows how authorities who inflict corporal punishment that sometimes leads to death, escape using the contradictions found in the legislations.

B. How Corporal Punishment is beyond punishment for children?

“A person’s upbringing can influence their attitudes later on in life”[19]. A child usually interacts with their environment the way they perceive it. A child’s initial years tend to be highly active, and it is the time when most of the basic learning usually occurs.  As they grow, their understanding shifts from action to thought, and they begin to think about their acts, its consequences and how it affects them.[20] By punishing the child we not only restrain them from doing something they should naturally feel the consequence of but we tell them these types of acts done in the future again incite violence from either us or others. The Majority of the parents, teachers beat children when they find themselves in unacceptable situations, this teaches the child that violence can be used as a tool when they find themselves in unreasonable situations. Thus, they don’t learn creative ways of solving problems.  “Corporal Punishment can be felt more than a physical effect, its psychological effects include loss of self-esteem, an increase in anxiety and fear, creation or enhancement of feelings of loss, humiliation, enhancement of feelings of aggression and destructive/self-destructive behaviour, a shortened attention span, attention-deficit disorder, and impaired academic achievement”.[21]  In a report taken by 3 researchers, more than half (62%) of the school children sampled in Puducherry, India, reported experiencing school corporal Punishment in the last 12 months. Students who experienced it in school also reported experiencing more depression, anxiety as well as lower levels of resiliency than other youth.[22] Corporal Punishment, if permitted, may ultimately lead to Cultural spillover theory i.e. the more society tends to legitimize violence to attain ends, the greater the likelihood of normalizing illegitimate violence. To prevent this, we need to stop violence in its roots, at educational institutions and systems across the country.      

CONCLUSION :

Schools, child care institutions and juvenile homes were meant to be safe, supporting and empowering places for children. But lately, with the existence of corporal punishment within these institutions, both children and parents feel that these places are contradictory to original context for which they were established. Existing norms and misconceptions about discipline in school or any child care institution is one of the reasons that it is prevalent in India. Children are dealt with violence for every single mistake they make. Thus, by allowing it we not only hinder with their learning capacity, but also deny them the chance of living a normal life. It’s time we give children a chance and make sure that schools are a safe environment.


[1] Murray A. Straus: Physical Punishment of Children and Violence and Other Crime in Adulthood, DISCIPLINE AND DEVIANCE (Jul 31, 2014) https://academic.oup.com/socpro/articleabstract/38/2/133/1651936?redirectedfrom=fulltext.

[2] Right of Children to Free and Compulsory Education Act, 2009, No. 35, Act of Parliament, 2009 (India).

[3] Dr.Madabhushi Sridhar, Corporal Punishment: Violation of Child Rights in Schools, LEGAL SERVICES INDIA, http://www.legalservicesindia.com/articles/punish.htm.

[4] Convention on the rights of the Child, UN General Assembly, United Nations, Treaty series, Vol.1577, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx.

[5]  Indian Penal Code, 1860, § 88, No.45, Acts of Parliament,1860 (India).

[6]  supra 3.

[7] Saumya Mishra, Child Rights Activists call for Passing Bill against Corporal Punishment, GUWAHATI PLUS (Apr 23, 2018), https://www.guwahatiplus.com/article-detail/child-rights-activists-call-for-passing-bill-against-corporal-punishment.

[8] Jason Fuller, The Science and Statistics Behind Spanking Suggest that Laws Allowing Corporal Punishment are in the Best Interests of the Child , Vol. 42, No.243, AKRON LAW REVIEW, (2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1357669.

[9]  Indian Penal Code, 1860, § 89, No.45, Acts of Parliament,1860 (India).

[10] Juvenile Justice (Care and Protection of Children) Act, 2000, § 23,  No.2, Acts of Parliament, 2016 (India).

[11] Ambika S. Nagal v. State Of Himachal Pradesh, 2020 SCC ONLINE HP 666

[12]Abdul Vaheed v. State of Kerala,  2005 CriLJ 2054, 2005 (2) KLT 72.

[13]  Supra 2, § 32, cl.1

[14] Bhramanand Mishra v.PIO, KVS Lucknow,

[15] Indian Penal Code, 1860, § 323, No.45, Acts of Parliament,1860 (India).

[16]Corporal punishment: governments and media must act resolutely, THE HINDU (Jul 05, 2010), https://www.thehindu.com/opinion/Readers-Editor/Corporal-punishment-governments-and-media-must-act-resolutely/article16184872.ece.

[17] Parents Forum for Meaningful Education v. Union of India and Another, AIR 2001 Del 212.

[18]supra 12.

[19]Jade R.Wallat, Crossing the Line: Is Corporal Punishment Child Abuse? SOPHIA SCHOLARSHIP JOURNAL, (May.2017), https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1814&context=msw_papers.

[20]supra 16.

[21]  Bawinile Mthanti , Vusi Mncube, The Social and Economic Impact of Corporal Punishment

in South African Schools, Vol.5, Iss.1, JOURNAL OF SOCIOLOGY AND SOCIAL ANTHROPOLOGY, 74 ( Aug 31, 2017), http://www.krepublishers.com/02-Journals/JSSA/JSSA-05-0-000-14-Web/JSSA-05-1-000-14-Abst-PDF/JSSA-05-1-071-14-028-Mncube-V/JSSA-05-1-071-14-028-Mncube-V-Tt.pdf.

[22] Sibnath Deb, Aneesh Kumar, George W. Holden, Lorelei Simpson Rowe, School corporal punishment, family tension, and students internalizing problems: Evidence from India, SCHOOL PSYCHOLOGY INTERNATIONAL, 73 (Dec, 2016), https://www.researchgate.net/publication/311630872_School_corporal_punishment_family_tension_and_students_internalizing_problems_Evidence_from_India.


Cite this article (The Bluebook 20th ed.)-

Sri Sudharshan, Desperate Need for a law against Corporal Punishment, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/desperate-need-for-a-law-against-corporal-punishment-by-sri-sudharshan/.

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Author

Sri Sudharshan
Student - SASTRA Deemed to be University