CULTURAL INTROJECTS AND INTRODUCTION

The age-old idea of corporal punishment hails its origin from the notion. “Spare the rod and spoil the child”. Perhaps, the similar imitation can be detected in the Indian scenario “Lalayat pancha barsani, dasabarsani tarayat , prapte tu shorase”. Which translates as: - pamper and love the child till 5, punish him up to 10 and when he reaches 15 treat him as a friend.  India incorporates plethora of cultures and majority thereof realizes the domination of parents & teachers over children. In a studyi 90 per cent of the parents participated, justified deployment of force as against their children, to rear children properly as responsible citizens. Cultural relativismii is another argument validating use of force against minors. “Matha, Pitha, Guru, deivam” is a revered dictum prevalent between masses in Kerala. Most of civilized society allows the reasonable use of force against children for enforcing discipline and to inculcate values in them. An astounding data released by UNICEFiii revealed, from 2005 – 2013, 6 out of every 10 children were subject to corporal punishment by adults in 56 various countries. By and large the situation in India is not different. iv80 percent of marginalized children face regular animosities from their teachers on regular basis. These abhorrent practices can be well founded in axioms and bygone ancient scripts. It’s a high time to draw line between reasonable corporal punishment and abuse. This article attempts to answer dilemma over corporal punishment against minors and its jurisprudence. 

DEFINITION 

UN committee on rights of the child explicates corporal punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light”. Oxford English dictionary defines corporal punishment as “punishment inflicted on the body; originally including death, mutilation, branding, bodily confinement, irons, the pillory etc”. The plain perusal of the definitions perhaps provides only the prima facie meaning of corporal punishment. But on a deeper understanding the purview of corporal punishment is  comprehensive and therefore includes but not limited to many other settings of non- physical forms  of  punishments like  belittles, humiliates, denigrates, threatens, scares , scapegoats or ridicule the child. Section 89 and 88 of Indian Penal Code, 1860 safeguard wrongdoers of corporal punishment against children from prosecution under the defense of good faith and moderate usage of corporal punishment to enforce discipline.

 Comparing In Loco Parentis and Indian law

The parent or guardian means a biological or adoptive parent whose parental rights have not been terminated. The Guardians and Wards Act, 1890 renders wider definition of guardian /parent. According to section 4 (2) of the aforementioned act “guardian mean’s a person having the care of the person of a minor or of his property, or of both is person and property:” Section 2(3) of the same act says ward means a minor for whose person or property, or both, there is a guardian.  ‘In Loco Parentis’ is a legal doctrine which means ‘in place of a parent’. Normally, parents hold the authority over their respective child or children as the case may be. This doctrine transfers the responsibility and appropriates the parental authority over school personnel when child is at school’s or education institution’s jurisdiction.

Provided that no right can be exercised by school personnel over property of a minor. 

In the case of State of Florida vs. Rayderv, some principles of corporal punishment in relation to ‘In Loco Parentis’ doctrine were explained, the court opined  that:-except out of malice or cruelty , the teacher (In Loco Parentis) can exercise or use reasonable corporal for prevalence of discipline and order in the class.

CONSEQUENCES

Chastising children often can cause symptoms of withdrawal and psychological stress. Beating with iron or wooden stick, spanking, twisting ear lobes etc may result in the death or may cause grievous physical injuries to the children. Moreover, corporal punishment can impair the cognitive abilities and other development of the child. The children who are subject to regular corporal punishment may over time develop aversion against studies aftermath of which is increased dropout from educational institutions. More often than not the children who get subjected to abhorrent physical abuse develop anti-social behavior. Reckless and unreasonable deployment force against minors perhaps creates future adults who adhere to the ideology of violence against children. 

LAWS PERTAINING TO CORPORAL PUNISHMENT 

International laws

UN Convention on Right of the Child (UNCRC) is the most widely-ratified international law. It consists of 54 articles fostering human rights for the children.

  • Article 19 (1) :- obligates every states to create legislative, administrative and social measures to protect children from all forms of physical or mental violence and abuse
  • Article 37(a) to (d) stipulates states to protect children from cruelty or any kind of abuse and to save liberty for the children 
  • Article 28(8) provides that schools should only administer discipline in a manner consistent with human dignity and with conformity to the present convention (UNCRC).

INDIAN CONSTITUTION AND OTHER LEGAL PROVISIONS 

  • Article 21 and 21A ascertains dignity of the children under right to life and provides for free and compulsory education till the age 14
  • Article 39 (e) and (f) stipulates the state to provide healthy environment for the development of the children and to secure tender aged children from exploitation.

Hansmukhbhai Golakdas shah vs State of Gujaratvi:- In this case it was held that violence wreaked against child infringes the dignity of the child guaranteed under article 21 of the Indian constitution.   

Section 17(1) of the Right of Children to Free and Compulsory Education Act, 2009 prohibits usage of mental harassment or physical punishment against children

There are several penal provisions under Indian Penal Code, 1860 that can be invoked against perpetrators who use corporal punishment against children. Some of them are:-

  1. Section 305: Abetment of suicide committed by a child;
  2. Section 323: Voluntarily causing hurt;
  3. Section 325: Voluntarily causing grievous hurt;
  4. Section 326: Voluntarily causing hurt by dangerous weapons or means;
  5. Section 352: Assault or use of criminal force otherwise than a grave provocation; 
  6. Section 354: Outraging the modesty of a woman;
  7. Section 506: Criminal intimidation
  8. Section 509: Word, gesture or act intended to insult the modesty of a woman

CONCLUSION

Even creation of million laws against corporal punishment will not work until and unless it’s strictly executed on the grounds. Moreover, redefining teacher-student and child-parent relation to more liberal relation than one in which one hold authority over another, is important to reduce corporal punishment against children. People need to be aware of the laws against corporal punishment. Every teacher or parent must strictly observe child rights in their milieu.

“THE TRUE CHARACTER OF A SOCIETY IS REVEALED IN HOW IT TREATS ITS CHILDREN”- NELSON MANDELA

References

  1. https://www.researchgate.net/publication/26592639_Who_is_A_Child_The_Adults'_Perspective_within_AdultChild_Relationship_in_India
  2. https://www.jstor.org/stable/25766393
  3. https://www.who.int/news-room/fact-sheets/detail/corporal-punishment-and-health#:~:text=Corporal%20or%20physical%20punishment%20is,physically%20punished%20by%20school%20staff
  4. https://www.business-standard.com/article/current-affairs/88-of-marginalised-children-beaten-at-school-91parents-okay-with-it-118112200092_1.html
  5. State of Florida v. Rayder, No. 70-62 16, Criminal Court of Record, Dade County,  Florida (1970).
  6. 2009 Cri LJ 2919

 About the Author: This post is prepared by Vyshnav S, Law student at Shree Narayana Law College. He can be reached at vyshnavwrites@gmail.com

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