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Hands off approach

A new juvenile justice act must also target cultural notions of discipline.

Respecting a legal ban on corporal punishment should become a contractual condition, so that teachers who continue to use corporal punishment risk losing their jobs. Respecting a legal ban on corporal punishment should become a contractual condition, so that teachers who continue to use corporal punishment risk losing their jobs.

By: Asha Bajpai

The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act), deals with two categories of children — those in need of care and protection, and children in conflict with the law. Now, the Juvenile Justice (Care and Protection of Children ) Bill, 2014 (JJ Bill), has been approved by the cabinet to replace the JJ Act. The bill introduces special provisions to improve child rights and incorporate international obligations in the legal framework. Corporal punishment and ragging have been made specific offences. Both corporal punishment and ragging at the school level legitimise the abuse of power, and violate dignity and privacy. It may teach the child that violence, aggression and abuse of authority is the way to make people behave the way you want, and thus prepares the ground for ragging at the college level or later.

Children are subject to corporal punishment in institutions meant to care for and protect them, such as schools, hostels, orphanages, juvenile homes and even families. Currently, a number of legal provisions under the Indian Penal Code can be used to prosecute someone who inflicts corporal punishment on a child at a school or a custodial institution. These include abetment of suicide committed by a child, voluntarily causing hurt or grievous hurt, causing hurt by dangerous weapons. But Sections 88 and 89 of the IPC provide immunity to a person inflicting corporal punishment on a child if such punishment is “in good faith for the child’s benefit”. This defence is incompatible with the Constitution and with India’s obligations under the United Nations Convention on the Rights of the Child, which protects children from torture and cruel treatment. So, Section 88 needs to be amended and Section 89 needs to be repealed.

Section 23 of the JJ Act criminalises an act that may cause a child mental or physical suffering, making it punishable with imprisonment for a term that may extend to six months, or a fine, or both. This provision does not clearly use the words “corporal punishment”, but it has been interpreted as cruelty to children. But many parents would prefer not to go through lengthy criminal procedures. Another factor that deters parents is the danger that school authorities will victimise the child. The Right to Education (RTE) Act explicitly prohibits physical punishment and mental harassment in schools, of children aged between 6 and 14. This provision is not being implemented. Neither are the National Commission for Protection of Child Rights’ guidelines on setting up corporal punishment cells.

It is now globally recognised that punishment in school, in any form, hinders a child’s development. All educational institutions are custodians of children during the time they are on their premises. It is the responsibility of the management/ administration of the school or institution to ensure that children are safe from all forms of violence, including corporal punishment. They must be held accountable for any violence.

Under the JJ Bill, the term, “corporal punishment”, includes physical punishment as well as verbal abuse. The Global Initiative to End Corporal Punishment, an international non-profit, recommends that respecting a legal ban on corporal punishment become a contractual condition, so that teachers and others who continue to use corporal punishment risk losing their jobs, in addition to criminal prosecution.

Ragging deters access to the fundamental right to education. The JJ Bill has made ragging in schools and junior colleges a penal offence, with punishment up to three years in jail if acts of ragging have not only generated a sense of embarrassment for the victim but also caused grievous physical or mental injuries. Expulsion of the perpetrator has been made mandatory. The students and the management of colleges and institutions have been made completely accountable under the proposed law. The Raghavan Committee report suggested that every school be required to arrange regular and periodic psychological counselling sessions for every student till the time she graduates. Parents and teachers should also be involved in such sessions.

Children must also be able to access help lines like Childline 1098. This information must be displayed in all schools and junior colleges. Children, staff, teachers and parents are aware of the new provisions, should the bill become law, on corporal punishment and ragging. Cultural notions relating to corporal punishment must be removed from the curriculum and from teacher training. Teachers, parents, staff and the school management must attend regular sessions on positive disciplining methods and anger and stress management strategies.

The new bill should also include a clause on action in cases of retaliation against victims, complainants and witnesses. Section 87(1), which can be used to punish those making false complaints or providing false information about the commission of an offence, will deter the reportage of such offences and needs to be removed.

For reform to succeed, legislation must be accompanied by a change in cultural notions and practices of discipline. For a law to be effectively enforced, it must be known and understood. This means engaging with the media, the private sector and civil society to create a public education campaign.

The writer is dean, School of Law, Rights and Constitutional Governance at the Tata Institute of Social Sciences, Mumbai

express@expressindia.com

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