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I. Introduction
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.
Physical Punishments:
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)
Emotional Punishments:
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.
Negative Reinforcement
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.
IV. The Law And Childhood
Who 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.
Legal Position:
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, 2000
Section 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 Battery
The 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.
In Nepal:
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.
Bangladesh:
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 Authority
A 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.
V. A.P. Education Code & Corporal Punishment
Government 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.
VI. Conclusion
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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