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Thursday, May 26, 2022

Sparing the rod

Wider confusion over corporal punishment is reflected in our laws...

Written by Mani Gupta |
June 18, 2010 3:33:06 am

The heartbreaking suicide of 12-year-old Rouvanjit,attributed to humiliation and caning at the hands of his teachers and principal at school,poses difficult questions for our legal system and society. Many would still justify such forms of punishment to children as being in their interest. The legal regime too deals with this issue in a manner that reflects the dilemma faced by our society in dealing with this issue.

Article 21 of the Constitution protects every citizen’s right to life,which has been construed to mean by the Supreme Court,over the years,a right to live with dignity.

India ratified the Convention on the Rights of the Child in 1992. The National Education Policy of 1986 (as modified in 1992) spoke of an educational system from which corporal punishment would be excluded. And in 2003,the government formulated a National Charter for Children,which enshrines the right of children to be protected against corporal punishment,torture,exploitation,violence and degrading treatment.

Thus the National Commission for Protection of Child Rights (NCPCR) directed the state governments to create awareness regarding corporal punishment,and establish procedures whereby complaints against corporal punishment could be addressed. The Right to Education Act (passed recently) provides for disciplinary action in accordance with service rules against any person who inflicts physical punishment or causes mental harassment to a child. (This may be applied only for the benefit of children between the age of six and 14.)

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Courts too have taken a proactive stance in banning corporal punishment in schools. In Parents Forum for Meaningful Education v. Union of India,the Delhi High Court had struck down rules relating to corporal punishment in the Delhi School Education Rules as violating Articles 14 and 21 of the Constitution. The state was also directed to ensure that children are not subjected to corporal punishment in schools.

Further,the Calcutta high court in a PIL filed by Tapas Bhanja in 2004 had held that caning should not be resorted to as a form of punishment. It had further directed the director of school education to issue circulars to all schools informing them of the prohibition against caning. This judgment has been followed by the Calcutta high court in Re: Rekha Bhagat (2010) holding that an act of corporal punishment in the state violates against the judgment in Bhanja’s case as well as circulars issued by the state government.

In light of the above,why should incidents of corporal punishment go unchecked and those perpetrating them remain unfazed by the consequences? The answer is contained in the Indian Penal Code itself.

Section 89 of the IPC protects an act done in good faith for the benefit of a child under 12 years of age when the consent of the guardian or person having charge of the child has been — expressly or impliedly — obtained. Similarly,Section 88 protects an act which is not intended to cause death,done in good faith with the consent of a person for such person’s benefit.

The reasoning behind these provisions appears to be that an act which would otherwise constitute a crime,is protected from penal consequences if it is done in good faith — such as by a doctor. However,the courts have,in the past,interpreted these provisions as protecting an act of physical punishment against a student by a school teacher or principal.

The reasoning adopted by the courts for justifying an act of physical violence has been the principle of English law,which allowed a school teacher to inflict corporal punishment to a student for corrective purposes or for enforcing discipline. Further,teachers have also been treated to be in quasi-parental authority in old English cases.

In Ganesh Chandra Saha v. Jiw Raj Somani (1964),the Calcutta high court had observed that the implied consent of the parent or the student must be assumed as they have agreed to be under the discipline of the school and hence reasonable corporal punishment is protected under Sections 88 and 89 of the IPC. Later judgments and policies of course,contradict this stance.

However,the current regime of dealing with errant teachers under service rules and the IPC may not be sufficient or appropriate. In such cases and for the time being,the NCPCR may in its power recommend interim relief measures that would protect the child as well as deter others from following suit. For now,Rouvanjit’s case must cause the legal system and society to rethink its relationship with children and the nuances of determining what is for their benefit without consulting them.

The writer is a Delhi-based lawyer

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