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The child is father of an adult. The child is an abridged adult with rights which cannot be abridged. The Child is a person for all practical purposes. The child observes, thinks and imitates or reacts to happenings around. The child is a person. Either at home or school, the child is subjected to disciplinary practices while, child should be part of those processes. If the indiscipline of the child could be complained, ascertained and responded to, where is the way to find and establish the indiscipline of the adults. Every adult feels that he is having every right to discipline the child. Do they have?
The discipline is not taught, it is learnt. The text books give information. The communication through teaching is imparting education. To attain wisdom, an abundant amount of common sense has to be added to education, which then includes discipline. Discipline is an attitude, character, responsibility or commitment. The discipline is basically internal, while the attempt to impose it would be an external process. One has to internalize the process of education and discipline. Discipline and education go together in letter and spirit.
The Child's education is mostly from observation and imitation. Their participation depends upon their developing capacity, which again depends upon the surroundings and family.
Information is a prelude of participation. If child does not have sufficient information he cannot effectively participate. Such a participation should be meaningful. One has to talk in terms of chances rather than rights as the child does not and cannot know how to participate. Without participation the discipline within him will not develop. Right to drive, he may have. But a chance to drive, he may not get. It may be like giving a discourse in driving without putting him in driver's seat.
How to teach cycling? Will you give him text book on cycling or explain the parts and technique of the machine, importance or greasing or oiling, or give a lecture on speed or slow cycling, diligence or negligence on road? Will you leave him with a cycle? Or follow him closely till he learns it? He has a right to cycle. He must have a chance to cycle.
Firstly the child must have a chance to know, what, why and how.
Secondly, a chance to think over
Thirdly, a chance to express, explain and ventilate the views or grievances.
Fourthly, a chance to alter the perceptions around, either at home or school.
Finally, a chance to know the response.
For Example: Parents or teachers lie before children. A father wants his son to tell the caller by phone that he was not at home. You are teaching him that one should lie and also when and how and for what. It may be inevitable for you to tell a lie. Then explain the son why is opting to lie, why he should not lie otherwise etc. First do not allow him to handle your situation. He should be allowed to handle his own situations. The discipline starts with either lying or not. The necessary communication with child equips him with ability to participate. The character is communication. The best character is the best communication. The company builds and reflect the character.
There are three benefits of communication.
1. Message reaches successfully.
2. Receiver knows and develops to receive the communication.
3. Receivers also learns how to communicate.
Generally a negative experience and adverse conditions prevailing around will seriously influence a child and may make him similar person with similar character. But at the same time it may result in making child a positive person or a person with character diametrically opposite to what he has seen.
Dhruv emerges an unbiased king, after he becomes victim of bias of his father and step mother. Prahlad learns to be democrat from dictatorial attitude of father Hiranya Kaship. These incidents prove that discipline and education are participative learning processes.
The Supreme Court in National Anthem school declined to impose any penalty on two students belonging to Jehowa Witnesses, who did not participate in singing national anthem as their religious tenet did not permit any singing except songs in praise of God. The case stands as an example that not joining the voice in singing national anthem itself is not an act of indiscipline or unpatriotic attitude and invites no punishment.
Discipline in School and Corporal Punishment:The time has come to re-examine the saying 'spare the rod and spoil the child'. Children are at receiving end both at their own homes and schools from parents, teachers and non-teaching school authorities. Almost all schools inflict corporal punishments on students for various reasons. Kodandam was one such practice in vogue a generation ago. Kodandam means hanging errant boys upside down and thrashing. This was a savage punishment meted to errant schoolboys. In another version, they were hung upside down over red chillies, which were lit. The boys suffered, both from the beating and the pungent smell of the burning chillies- says V. Gangadhar, in his column 'slice of life' . Most of the teachers use cane or foot ruler. Head master himself wielded the cane in the general assembly. Slaps, pulling ear lobes by sharp nails, Mottikay (kuttu in Tamil) on the head where the clenched fist of the teach was brought down with considerable force, Gichchadam (killu in Tamil which means pinch) were some old generation methods of corporal punishment. A heavy log used to be chained to the leg of errant student. The punishment would extend for one week also, during which he has to drag it to and from school. Now the method of inflicting pain is changed but corporal punishment as a conceptual method of imposing discipline continues.
The corporal punishment is a regular affair in thousands of schools everywhere. Children not only carry overload of text books and note books on their tender backs, but bear the brunt of canes for silly reasons like sox not matching the shoe or lace not being property knotted. The parents dare the sun-shine in the noon to offer lunch box to their kids, outside the gates of the convent schools, who do not allow them inside. They ask them to stand or 'kneel down' under hot sun. Sometimes students will be asked to complete the assigned writing work in kneel down position. Kneeling down on the earth is painful. A physical instructor who also happen to be a karate belt holder, uses his hard hand to severely injure the kid who do not follow the instructions. While playing or practicing drill with physical instructors, the punishments will be harsh and unbearable.
A boy receives slap from girl for not doing homework or not answering a query, or a girl from the boy. A school invented another imaginative method of getting the boy beaten up by girl studying in lower class. Another teacher takes the wrongdoing child along with him or her to each class of different year as per schedule to further inflict insult. While a schoolteacher prevents a girl from eating from her lunch box, the other does not allow the kid to attend the classes. These are special treatments.
II. Kinds of Punishments In Schools
There are three types of corporal punishments in schools.
1. Making the children stand as a wall chair (Goda Kurchee in Telugu),
2. Keeping the school bags on their heads,
3. Making them stand for the whole day in the sun,
4. Make the children kneel down and do the work and then enter the class room
5. Making them stand on the bench,
6. Making them raise hands,
7. Hold a pencil in their mouth and stand,
8. Holding their ears with hands passed under the legs,
9. Tying of the children's hands,
10. Making them to do sit-ups (Gunjeelu),
11. Caning and pinching and
12. Twisting the ears (Chevulu pindadam)
1. Slapping by the opposite sex
2. Scolding abusing and humiliating
3. Label the child according to his or her misbehaviour and sent him or her around the school
4. Make them stand on the back of the class and to complete the work.
5. Suspending them for a couple of days
6. Pinning paper on their back and labeling them "I am a fool", "I am a donkey" etc.
7. Teacher takes the child to every class she goes and humiliates the child.
8. Removing the shirts of the boys.
1. Detention during the break and lunch.
2. Locking them in a dark room
3. Call for parents or asking the children to bring explanatory letters from the parents
4. Sending them home or keeping the children outside the gate
5. Making the children sit on the floor on the classroom.
6. Making the child clean the premises.
7. Making the child run around the building or in the playground.
8. Sending the children to principals.
9. Making them to teach in the class.
10. Making them to stand till the teacher comes.
11. Giving oral warnings and letters in the diary or calendar
12. Threatening to give TC for the child.
13. Asking them to miss games or other activities
14. Deducting marks.
15. Treating the three late comings equal to one absent.
16. Giving excessive imposition.
17. Make the children pay fines.
18. Not allowing them into the class.
19. Sitting on the floor for one period, day, week and month.
20. Placing black marks on their disciplinary charts.
Normal range of punishments, which continue unabated, are caning, beating knuckles with stick or steel scale, kneeling down, standing on the bench and so on. Wall chairs (sitting as if on the chair without any one against the wall for half-an-hour to one hour), wall chairs plus a school bag on the head or thighs which cause more physical pain, running ten to twenty rounds around the school building or in the ground and sit-ups numbering hundreds are other range of punishments. Writing impositions for more than fifty times within a short time, which is physically not possible to complete, is a new type of punishment. If an English medium students talks in Telugu, he or she will be made to write, "I do not speak in Telugu" for fifty to hundred times, a mental punishment too.
Emotional consequences of unilateral disciplining processes:
Neither the religion nor the parenthood provided any legal authority physically injure the children for their so called 'indiscipline' and to enforce morality and character. Punishment may deter a child from repeating act of indiscipline to some extent, but it cannot improve his understanding of the subject or make him intelligent 'more' than 'his standard' earlier to the corporal punishment. Resorting to scolding and reprimanding students as a prelude to inflict punishment is common at homes and schools and excess of which always bring in civil or criminal liability. Some of the countries specifically banned the corporal punishment of children as it crossed the limits and assumed brutal propositions.
However, law basically does not agree with any excessive punishment to beings, which would be definitely a violation of personal right. The research studies show that the theory of corporal punishment was an ineffective discipline strategy with children of all ages and it is often proved to be dangerous. The punishment of such kind leads to create anger, resentment and low self-esteem. It teaches them violence and revenge as solutions to problems and perpetuates itself, as children might imitate what the adults are doing (www.stophitting.com/disathome/sureshrani.php).
This study revealed that the children whose parents use corporal punishment to control antisocial behaviour show more antisocial behaviour themselves over a long period of time. This is regardless of race, socio-economic status and regardless of whether the mother provides cognitive stimulation and emotional support. A consistent pattern of physical abuse exists that generally start as corporal punishment and then gets out of control. As the child grows, the depression or violence in them gradually develops.
If persons are more hit during their childhood, it is more likely that when they reach the adulthood, they hit their children, spouses or friends. A frequently hit child will be a problematic person tomorrow. There another serious consequence, the probability of children assaulting the parent in retaliation also will increase with the corporal punishment. The same attitude may reflect in the schools against the teachers also.
Besides attitudinal change there may be a psychological disadvantages also. The children might begin to believe that it is good to use violence. They develop bullying tactics against weaker person. This eventually leads to degrading, it contributes to feelings of helplessness and humiliation, robbing a child off self-worth and self respect leading a child to withdrawal or aggression. All these changes lead to breaking of relationship. Ultimately it all leads to erosion of trust between teacher and a child or a parent and a child. Another dimension is it will result in increased risk of child abuse as a disciplinary measure and poor performance on school tasks compared to other children.
The unilateral process of penal disciplining the children either at home or at school will lead to three kinds of reactions. FEAR, HATRED & ANGER. These three will contribute adversely and in the long run, children are moulded into complex personalities. If a child is battered or bullied for talking, his anger may make him an introvert, probably a thinker with less initiative, and to withdraw from groups and companies and can be branded as shy person. If his reaction is hatred, he starts hating school and society. If the anger is the reaction, an angry young man will take birth. If he suffers most without these feelings, which very rarely happens, that child may develop a commitment not brow beat any body in his life time.
The corporal punishment interferes with the right to development and participation as it leads to antisocial behaviour. The theme of Child Rights Convention, that an adult should recognize the child as the person which means promoting their liberty, privacy and dignity. The brutal disciplinary processes hampers psychological growth of a person.
Two Schools of Thought:
Then the question is why do the parents or teachers punish children? There are two schools of thought, one arguing for the need of taming the uncontrollable kids and the other for not using the cane at all, and the debate goes on in every meeting or workshop. School managers argue that some of the parents wanted them to beat the children to make them behave well. If the consent of parents could be taken for such punishments it would amount to conspiracy of parents and teachers to violate the rights of children, and provides any authority or protection or defence to the teachers inflicting such punishment.
The Law And ChildhoodWho can punish whom? What is the crime for which punishment can be inflicted? Whether Parents or Teachers or School managers have any adjudicatory authority to decide circumstances under which a punishment can be inflicted, the quantum, method and timing or punishment?
According to law, the adjudactory authorities alone have authority to hear complaints, try the contentions and draw the conclusions as liability and penalty. The corporal punishment, especially envisages a legal process and appropriate authority to fix the guilt according to established and enforceable law. Not otherwise.
It is both a crime and a civil wrong for holding some one guilty and inflicting penalty, without legal authority.
In India, the education system itself promotes corporal punishment. Teacher is assumed a respectful and thus powerful position. This power includes power to inflict corporal punishment.
A Public Interest Litigation was filed by Parents Forum and Meaningful Education (AIR 2001 Del 212), challenging the provisions of the Delhi School Education Rules 1973 providing for corporal punishment to a student. The rule 37 states the form of disciplinary measures as may be adopted as detention during the break, for neglect of class work, but no detention shall be beyond school hours, secondly to those students who attained age of 14 years as a fine, expulsion and rustication. It states that corporal punishment may be given by the head of the school in cases of persisting impertinence or rude behaviour towards teachers, physical violence, intemperance and serious forms of misbehaviour with other students. It contains some exceptions like corporal punishment should not inflicted on the students who are in ill-health. It shall not be severe or excessive and shall be so administered so as not to cause bodily injury. It imposes a limit of ten strokes with cane on student's hand with a condition that such a punishment be recorded in the Conduct Register of such a student. The government justified the rule as necessary for inculcating discipline. The Division Bench of Delhi High Court held that corporal punishment was not keeping with a child's dignity. Justice Anil Dev Singh and Justice Mukundakam Sharma, said that it was cruel to subject a child to physical violence in school in the name of discipline or education. It was held that inflicting physical punishment on a child is not in consonance with his or her right of life guaranteed by Article 21 of Indian Constitution. "Just because child is small he or she cannot be denied of these rights…. Even animals are protected against cruelty. Our children are surely cannot be worse off than animals" said the High Court. The Court also said that there had been instances where children have been traumatized and beaten in schools causing grave injuries to them on account of their innocent pranks, mistakes and mischief.
Recently in Tamil Nadu, the Education Minister advised parents to pursue remedies for mental and physical torture. The Schools were instructed to avoid corporal punishment (The Hindu, 18th June 2003). A fifth Standard student was allegedly caned for being a slow writer. New set of revised Tamil Nadu Education Rules had been framed wherein the Rule 51 is replaced with a provision recommending every child to be given an opportunity to learn error of his or her ways through corrective measures. While making it clear that the school shall not cause mental or physical pain to the child. The imposition and suspension from class are some of the corrective measures suggested. However, these rules did not define torture and punitive measures were not prescribed for violations. A 16 year old boy Ram Abhinav, a student of class 10 in Southern City of Chennai committed suicide after allegedly being thrashed by a teacher for skipping school on his birth day. He left a note saying that he was killing himself because he did not want to go to school.
Goa Assembly passed recently (30th April 2003) Goa Children's Act, 2003 to ban the corporal punishment.
Law and legal systems are expected to protect the children from abuse of authorities either at home or at schools or at systems of administration of justice duly considering their childhood, innocence and incapacity to understand. Children below seven years are exempted from criminal liability. Their act is not treated as an offence at all. This means that there can be no corporal punishment even under penal provisions based on the principles of doli incapaxi. Similar exemption is extended to children of above seven years and under twelve of immature understanding under Section 83 of IPC. In essence, a child cannot be subjected to ordinary methods of physical punishments including imprisonment for the offences owing to their age and incapacity of formulating a malicious intention. Thus for being a student and having a committed a wrong of not doing home work or violating a dress code, should not invite any corporal punishment.
Indian Penal Code Section 88 protects an act which is not intended to cause death, done by consent in good faith for person's benefit. Master chastising pupil fall under this clause. A head teacher who administers in good faith a moderate and reasonable corporal punishment to a pupil to enforce discipline in school is protected by this section and such an act is not crime under Section 323.
Section 89 of Indian Penal Code protects an act by guardian or by consent of guardian done in good faith for benefit of child under 12 years. However the same section says that this exception will not extend to cause death, or attempting to cause death, causing grievous hurt. These provisions extend to teachers having quasi-parental authority i.e., consent or delegation of authority from parents also, of course, with exceptions. Using excessive force, causing serious injury, purpose being very unreasonable can turn the act of the guardian or teacher with the consent of guardian, an offence, because such incidents are outside the scope of good faith.
Juvenile Justice Act, 2000Section 23 of new 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, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessarily mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
This section has no exceptions to exempt parents or teachers. Though it is intended to punish cruelty by those in authority, it equally applies to parents and teachers also. The whole purpose of the Juvenile Justice Act 2000 is to translate the objectives and rights enshrined in Convention on Child Rights which include separation of juveniles in conflict with law from ordinary judicial proceedings to avoid corporal punishment.
Child BatteryThe Child battery is one of the serious forms of domestic violence, over which the controls are not specified, in penal systems till Juvenile Justice legislation came in 1986, which is now replaced by Act of 2000. The principles of criminal liability are not totally absent as they could be inferred from different ambiguous provisions prior to these Acts also. This provision should be used to control the child battery at homes and schools.
Laws in Sri Lanka, Bangladesh and Nepal
The Penal Code of Sri Lanka does not include the parental or guardianship 'right of reasonable chastisement' as a general defence for a prosecution causing physical harm to a child of the nature and type criminalised by the code. However, it is provided that reasonable use of corporal punishment would not come within the scope of offence. This suggests that a parent have a legal right to cause simple injury. However, a parent whose use of corporal punishment involves conduct that is an offence according to other provisions in the Penal Code cannot use parental authority as a defence for criminal liability under the penal code. Earlier, in 1889 Corporal Punishment Ordinance permitted sentences of whipping to be passed on male child offender limiting the strokes depending on the age. Females were totally exempted. The Children and Young Persons Ordinance 1939 also permitted the court to impose a sentence of corporal punishment on boys under 16 limited to six strokes with a light cane. The Children and Young Persons Ordinance of 1939 modeled on the English statute of 1933 created a special offence of cruelty to children under 16 years of age. Education Ordinance 1939 in Sri Lanka permitted for failure to attend the schools. Corporal Punishment is used as method of discipline within the family and mainly on boys in schools in Sri Lanka. Savitree argues that the constitutional remedy could be used to challenge the abuse of authorities, which include police, government and private schools which are under administrative control of Ministry of Education in Sri Lanka, who use corporal punishment against children.
In United States:
In Goss v. Lopez , the US Supreme Court decided that the constitutional protection on cruel and degrading treatment did not apply to school discipline and that parents could bring a civil action for damages against the school and obtain necessary relief. In case of Ingraham v Wright (498F. 2d 248 (5th Cir. 1974) it was held that corporal punishment did not violate the Eighth Amendment's ban on cruel and unusual punishment on the basis that the Constitutional protection was not necessary because schools were open institutions where children are free to leave and they were under the scrutiny of the public eye. The standards of due process were fully met by existing procedures in law, so notice and hearing prior to the enforcement of corporal punishment were also not considered to be required. Ingraham was a student of Drew Junior High where he was 'punished' for being slow to leave the auditorium stage and was held to face down on a table by Deliford, a teacher and the deputy Principal, while the principal Willie J Wright hit him on the buttocks at least twenty times with a wooden paddle. Doctors diagnosed as hematoma and he was prescribed icepacks, pain pills and laxative and advised bed rest for a week. It took three weeks for him to recover and sit properly. Wright hit his schoolmate Roosevelt Adams on the wrist which became swollen and could not use the arm for a week.
A number of other cases were also happened in school. Ingreham and Adams sued the school for damages and injunction relief against the use of corporal punishment. As the verdict went against the plaintiffs they took the case to Fifth Circuit Court of Appeals where it was held that punishment was excessive, if not cruel, it was disproportionate to the offence charged and degrading to the children in the institution. It was overruled by a five justices' bench asserting that issues of constitutionality and the due process clause need not be applied as it was open for the parents and students to leave the school if the corporal punishment became so severe as to be unacceptable in a civilized society then it becomes unconstitutional. It does not mean that remedy was not available, it means that state law remedies are extremely rare to correct abuse and that the remedy was open. There is a need for law in US to bring excessive corporal punishment into purview of wrong for which action under torts is available.
In United States, most of the northern states have strong laws against corporal punishment, those states include California, Michigan, Lava, New Jersey, Alaska, Washington, West Virginia. Almost half of states legitimized the corporal punishment. However even where it is legitimized, only reasonable corporal punishment by children or guardians is protected. Prohibition of corporal punishment in family day care, group homes/institutions, child care centers and family foster care varies from state to state.
The statistics show that there were over one million occurrences during 1986-87 wherein 10 to 20 thousand requested medical treatment. On an average there are about 1.5 million cases of corporal punishment reported. Excessive corporal punishment attracts application of civil and criminal laws from the beginning of the independent US. In Texas, over 3000 paddlings per month were reportedly given in Dallas Schools, some only because the student did not address the teacher as 'sir' or for incorrect spelling. The goal now in US is to make a uniform law all over the Country to ban this practice.
Sweden was first to ban all corporal punishment of children in 1979, while other European countries such as Denmark, Norway, Finland, Austria, Cyprus, Italy, Croaia and Latvia made no corporal punishment laws. There is a strong movement going on against corporal punishment in schools in Germany, Switzerland, Poland, Spain, Canada, New Zealand, Mexico, Namibia, South Africa, Sri Lanka, Jamaica, The Republic of Ireland, Belgium, Korea and the United Kingdom.
Article 7 of Nepal's Children's Act 1992 declares that 'no child shall be subject to torture or cruel treatment' but qualifies this by stating that the act of scolding and minor beating to the child by his father, mother, and any member of the family, guardian or teacher for the interests of the child himself shall not be deemed to violate the Act.
Juvenile Justice Act of India and Bangladesh Children's Act 1974 created an offence of cruelty to children, which covers parents and guardians and teachers also. Juvenile Justice Act does not authorize corporate punishment including whipping, while Bangladesh Act permitted whipping male child offender.
Convention on Child Rights:Article 28(2) Convention on Rights of Child 1989 indicates that the school discipline should be administered in a manner consistent with the child's human dignity and the Convention. Article 28 says the education is a right and Article 29 says that the purpose of school education should be to assist the child in developing his or her personality talents, mental and physical abilities to their fullest potential. Article 3, 18 and 36 of the Convention deal with parental and adult responsibility in the private sphere and the right to protection from exploitation. Article 19 provides for measures to protect children against all forms of physical abuse and imposes an obligation on member states to protect children from all forms of physical or mental violence, injury or abuse.
These provisions justify legal reforms that will impose criminal liability on parents or teachers and other adults who cause injury through violence and use corporal punishment. There must be a clear law and policy to curb domestic violence and battery of child by parents. Parents and teachers are legally accountable for violence and abuse of authority. However there is a need to spell this liability in clear terms of law for more certainty and to cause fear of law among them. Going by these norms, the concept of human rights and protection rights of children, it is to be understood that there is no 'minimum' acceptable in corporal punishment.
Liability under different principles of law:
Imposing harm or corporal punishment on children in schools could be against
a. the general principles of civil liability, which may result in payment of damages in an action for tort, i.e., civil wrong
b. the general principles of criminal liability for assaulting, causing injury or harm resulting in prosecution under Sections 89, 319, 320, 349, 350, 351 of Indian Penal Code
c. violate Juvenile Justice Act, and principles laid down by the Convention of Child Rights
d. the terms and conditions of the contract, breach of which may lead to suit for breach of contract with a remedy for payment of damages
e. the definition of "service" under Consumer Protection Act, 1986, and deficiency of service may lead to an action before the consumer forum for compensation.
f. the norms and procedure prescribed by the Government through GO Rules or Act, or judicial directions laid down by Supreme Court or High Court.
g. It may also attract departmental action.
Parents and Teachers usually impose some sort of corporal punishment over the children under their control. How far that is justifiable? From legal perspective, the basis of justification depends on the purpose, circumstance and reasonability of the force applied. Punishments for offences or misbehaviour of the child is one class while punishments for not following dress code or carrying number of note books or not doing the assigned homework etc, is different one. Whether law favours imposing the corporal punishment at all? If favours, does it confine to control the offensive behaviour or misbehavior? Or extend to all sorts of simple, technical or some other activity, which cannot be categorised as evil?
Tortious Liability of Teacher under English & Indian Law:Parents can justify an assault or battery by way of chastisement provided reasonable force by way of correction is used, according to Children and Young Persons Act 1933, section 1(17) of United Kingdom. At common law head and assistant teachers, both at boarding and day schools had the right to use reasonable force to correct the children under their tutelage Fitzgerald v. Northcote (headmaster, boarding school), Ryan v Fildes (assistant mistress, day school). Section 47 of the Education Act 1987 prohibits corporal punishment in schools and for state funded pupils in independent schools.
Use of force to punish a child as opposed to limited force needed to protect a child from harming himself or others will be no defence to an action for assault and battery. The defence of exercise of disciplinary powers will remain available to teachers in independent schools against fee paying pupils and this defence will not be available in acts involving beating the child.
The force used must be reasonable in the circumstances-presumably the offence, the age and physique of the child, his past behaviour, the punishment, the injury inflicted, are all material. Not only must the teacher use force which is objectively reasonable but also he himself must have thought it reasonably necessary in the circumstances. Thus parents or persons in loco parentis may, for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment.
The old view was that the authority of schoolmaster was the same as that of the parent. Thus a master also can inflict moderate and reasonable corporal punishment. The modern view is that the schoolmaster has his own independent authority to act for the welfare of the child. The old English cases center around the offences committed or evil exhibited by the students and the authority of the master to discipline them. Agreeing that the schoolmaster has such authority, the judicial decisions imposed a universal limitation that such a force must be moderate and reasonable. It was nowhere stated that corporal punishments could be inflicted for securing lesser marks or not passing the examination or not doing the assigned homework or not wearing dress or sox of the colour prescribed by the school authorities. The accepted use of force in a reasonable way was only for removing the evil or controlling the misconduct like smoking, fighting with fellow pupils, committing some offence like theft etc or for misbehaviour, but not for academic weakness. Thus in present day culture of convent school discipline with severe corporal punishment for study reasons, has no legal basis or justification under any circumstances.
Quasi Parental AuthorityA teacher has a quasi-parental authority to discipline the child and for that purpose use the force also. However, the use must be in all cases, reasonable one. Parents and other persons in similar positions are necessarily immune against liability for many acts like assault and battery. They have control, usually but not necessarily, of a disciplinary character, over those committed to charge.
Parental authority ceases when the child attains 18 years. The control of a schoolmaster over his pupil is really delegated to him by the parents. The latter will be deemed to have impliedly assented to all the disciplinary rules and practices of the school, unless the child were sent there on the specific understanding that any such rule or practice of the school should not apply to the particular pupil, Mansell v. Griffin . The authority of the teacher extends to classroom, playground or outside the school. In R v. Newport Justice , it was held that if a master canes a pupil for fighting in the street or for smoking in public, it will not be considered as an assault. In India, these principles were imported and applied mostly. Thus the position in India is almost the same as in England, with regard to tortious liability of teacher imposing unreasonable punishment on the children. The authority of the Principle or Head Master to maintain discipline and to do such acts, as are reasonable for the upkeep for the necessary tone and standards of behaviour in a body of students . The right to take disciplinary action against student cannot be arbitrarily exercised.
Such an authority of parents or persons in loco parentis do not extend to inflicting corporal punishments for not studying well, failing in examination, not doing assigned work, wearing a sox of shade of color different from prescribed one. There is no absolute authority for teacher to beat or punish the child.
Even if the statutory bodies like Universities, Intermediate Board, Secondary Education Board, cannot infringe any fundamental right of the student to live with dignity. The law and procedure should not be with patent errors.
Departmental Action against misuse of authority by Teachers:Any excessive or unreasonable exercise of authority may attract the disciplinary action by department against the headmaster or teacher. Almost all the teachers and headmasters do not know the provisions of Education Code and ruled made there under which impose an obligation on Head master to maintain the record of corporal punishments inflicted on students with reasons. Such a violation should attract disciplinary action.
Criminal Liability:Criminal Liability requires malice on the part of teacher. Negligence and unreasonableness can replace malice and make him liable in certain circumstances, for causing simple injury or grave injury under Indian Penal Code. In Ganesh Chandra Shaha v. Jinraj Somani, and State v. H.A. Khandkar, it was held that teacher who caned the students and inflicted fist blows, causing bodily injury and loss of tooth, would be criminally liable and would not be benefited for having acted in good faith for the benefit of the victim. If teacher exceeds the authority and inflicts unreasonable punishment he would lose the benefit of Section 88 of IPC which protects acts done in good faith .
Protection for act done in good faith under Section 82 IPC will not extend to grievous hurt and excessive use of force. Causing hurt (S 319), Grievous hurt (S 320), using force (S 349), Criminal force (S 350), Assault (S 353) are also offences that could result in prosecution of parents or teachers.
Contractual Liability:If a parent imposes a condition that the school should not impose any corporal punishment over his child, the school would be liable for breach of that contractual term. Parent also can take legal action for violation of Education Code and rules by the management of schools.
Liability under Consumer Protection Act:Education is a service where it is under a contract for a fee. Only when imparting education is part of the statutory obligation, it does not amount to service within the meaning of Section 2(1)(o) of Consumer Protection Act, 1986. Service free of charge is not service under this section. In Tilak Raj of Chandigargh v. Haryana School Education Board, Bhiwani the State Commission observed that the imparting of education is not sovereign function and so it is a service. Whether inflicting corporal punishment unreasonably is "deficiency in service" is straightly not answered so far in any case. The Consumer Court has not got an opportunity to decide that question.
But from the principles of tortious and criminal liability, it can be stated that a teacher would be either liable for paying damages or for being prosecuted for excessive and unreasonable use of force over the child.
A.P. Education Code & Corporal PunishmentGovernment orders and Code:
The Government being a recognizing authority interested in general welfare of the people, it can impose restrictions or limitations or total ban on inflicting corporal punishment in Government or private schools.
Rule 39 of A. P. Integrated Educational Rules, 1966 lays down that corporal punishment shall not be inflicted in elementary schools. Rule 122 of the Andhra Pradesh Integrated Educational Rules 1966, deal with imposing various kinds of fines, corporal punishments, suspension, expulsion and rustication etc. There is a restriction on imposing a corporal punishment in Rule 122 (2), which says that corporal punishment shall not be inflicted in schools except in a case of moral delinquency such as a deliberate lying, obscenity of word or act or flagrant insubordination and then it shall be limited to six cuts on the hands and be administered only by or under the supervision of the Headmaster. Corporal punishment should never be inflicted in any recognised school on boys of classes XI and XII. The headmaster shall record in a register every case in which corporal punishment has been inflicted specifying the name, class and age of the pupil, the date the nature of the offence and amount of punishment.
Private Junior Colleges emerged as new houses of torment. The craze of parents for securing a seat in Medicine or Engineering course is the real culprit. Private corporate educational shops are exploiting them. Knowing full well that their adolescents are going to be tormented in the name of intensive coaching, parents are encouraging and getting them admitted.
It is revealed during the consultation meetings held by NALSAR in the process of preparing the report on implementation of Convention on Rights of Children, that the children flee from their homes and schools because of the tyranny of parents and teachers respectively. The indiscriminate beatings by the parents frustrates the child and forces him to get out of the House, which eventually make them street children where all kinds of perils are ready to attack him. The street influences him or her to become either a delinquent or awaara. The Child is exploited, exposed and suffered to lose his childhood. There are several horrible experiences narrated by children saying that they turned to labour because they could not stand the beatings and insults from the teacher either for not responding to attendance call or not doing some prescribed home work or for failing to answer the questions properly. If child is not responding to teaching or defying the instructions it could be mostly a question of psychology of that child, which the most of teachers in school do not understand. Some times a child specific approach is needed to understand him/her and shape up to the requirements. Instead of adopting proper and required treatment towards the children, parents and teachers who draw quasi parental authority from them, inflict corporal punishment, reflecting their imbalance or frustration. How can a child improve in understanding a lesson if battered up by the elders?
In almost all private, convent, English medium schools, which mushroomed with the sole purpose of making money, impose very strict discipline which leads to stringent actions even for minor violations like not cleaning shoe, or wearing a different color sox or a shirt without ironing. Some times the punishment extends to parents also. It is the common sight in cities and towns that parents, mostly mothers, waiting outside the gate of schools under the hot sun to hand over lunch box or meet the principal as instructed through the kids. Generally, neither the students nor their parents complain against any teacher for beating the kids, because of the fear of their vindictive attitude. These fears are not unrealistic. There are several instances where a child has to leave the school in the middle of an academic year, because children are subjected to severe torturing methods hampering their education and mental peace, because the parents brought the corporal punishment to the notice of principal.
The Education department must be well equipped with necessary personnel who can study the reasons for child behaviour and teachers reactions and inspect the schools whether in private sector or public sector to oversee if any tormenting conditions are existing. In fact, auditing of behaviour in schools is more important than the financial auditing or verifying records.
The parents association should play a major role in checking the management of schools regarding these punishments. They have to regularly meet and bring collective representations to avoid isolated vindictive actions. It must be made mandatory for the school management to convene parents meeting regularly to address these issues.
Child Rights Committees in Schools also could play a role in checking the physical assaults in schools for trivial reasons.
The corporal punishment is prohibited against elementary school children and against students of class XI and XII. Then why should there be corporal punishment for children studying classes in between. There appears to be no reason for such discrimination. It needs to be amended.
Need to prohibit the Corporal Punishment by law
Corporal punishments are envisaged for adults only in criminal cases. However greater a civil wrong may be, there are no corporal punishments. Even in cases of malpractice in examinations, the codes and rules do not talk about cane cuts or fist blows. Then why only children are subjected to physical thrashings for discipline or academic reasons?
India being a signatory to the UN Convention on Rights of Child is under an obligation to remove cruelty towards children by prohibiting the canes from schools. It is an important element of a child's protection rights as envisaged by the
Convention to lay down national policy and legislation on use of corporal punishment in schools.
The Government should unhesitatingly introduce a legal provision not in rules but in the main text of the law of A.P Education Act 1982 itself, prohibiting any form of corporal punishment in the name of discipline or making them to do home work or some other observation of code.
There should neither physical nor mental punishment in humiliating methods. The stress and strain imposed on child with terrorized atmosphere prevalent in the schools because of corporal punishments, cut throat competitions and increasing pressure for ranks lead them to leave the schools. Suicides are another major possible consequence of such terrible incidents in the schools. The plight of junior college students, who are cornered to commit suicides due to meaningless competition and ambitious craze for professional courses is already rocking the morale of the students and parents and affecting the commercial profits of the coaching colleges which are functioning as Tuition Mills. School children should not be driven to such an unfortunate situation. We shall not wait for some school students also to commit suicides for us to act upon. Let us all save their childhood. 'Spare the rod and save the childhood' should be the new slogan.
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