corporal punishment

This article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. The article covers a global view of the concept, history, and evolution of different types of corporal punishment, both for adults and children. It also explains the legal provisions of corporal punishment, both from an international and Indian perspective.

it has been published by Rachit Garg.

Introduction

Various forms of punishment have been imposed on human beings since time immemorial, either with the objective of disciplining them or as part of a penalty for committing certain offences. Corporal punishment is a form of punishment that inflicts physical pain on any individual. Corporal punishment is used by authorities for a variety of purposes, including child discipline and as part of criminal law punishments. Parents and teachers often use corporal punishment to discipline their children and students respectively. Certain courts of law in several countries use judicial corporal punishment for sentencing offenders.

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In contemporary times, the issue of the application of corporal punishment on human beings has become debatable, mostly because of the development of human rights laws internationally. While many openly support the imposition of corporal punishment, there are certain laws in several countries banning it, especially for children. The imposition of corporal punishment on adults is not without debate or controversy either.

The history and evolution of corporal punishment, contemporary international legal and social positions and laws across countries on it, and the issues surrounding corporal punishment have been further explored in the article. The legal and social perspective of India regarding corporal punishment has also been discussed.

What is corporal punishment

The word ‘corporal’ originated from the Latin word ‘corpus’ meaning “human or animal body.” The term “corporal punishment” refers to the form of punishment where a certain degree of physical force is used by any supervising adult to inflict pain or discomfort on individuals, both adults and more commonly on children. 

Corporal punishment on children is used to control their inappropriate behaviour to rectify or prevent repeating the offences committed and to make them adjust to their parents’ or teachers’ expectations. The UN Committee on the Rights of the Child, the Committee that supervises the application of the Convention on the Rights of the Child, defines corporal punishment as any kind of punishment where physical force is used to cause “some degree of pain or discomfort, however light.”

For adults, corporal punishment is used as a penalty or part of a penalty for any offence. It is also used on prisoners, and historically, on slaves. The definition under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not specifically include pain or suffering arising as part of “lawful sanctions.” However, any sanction considered lawful may still have elements of torture or ill-treatment. In this regard, the prohibition also extends to the application of corporal punishment on adults, as enumerated in General Comment No. 20: Prohibition of torture or other cruel, inhuman, or degrading treatment or punishment (1992), by the UN Human Rights Committee.

Types of corporal punishment

Some of the most commonly used methods of corporal punishment are as follows:

Flagellation or flogging or whipping

Flagellation, or flogging, is a type of corporal punishment where the victim is repeatedly hit with continuous blows on his or her body, especially in the back. It is sometimes also referred to as “whipping” or “caning.” It has been a very common method of corporal punishment used as judicial punishment as well as to maintain discipline in schools, prisons, armies, and homes.

The tools commonly used for flagellation are whips, canes, rods, sticks, straps, lashes, or other objects. The cat-o’-nine-tails was a whip with nine knotted lashes that was used in the Royal Navy and British Army, as well as for judicial corporal punishment in the United Kingdom. In India, whipping is recognised as a punishment for prisoners under Section 53 of the Prisons Act of 1894, under the supervision of the Superintendent or a Medical Officer.

Bastinado, also known as “foot whipping,” is a type of whipping where strokes of a cane are given to a person’s bare foot sole.

Throughout history, flagellation, especially with lashes or whips, has been associated with domination and slavery.

Beating

Beating is another form of corporal punishment usually used for prisoners and to make children disciplined. In beating, the victim is hit violently. Forms of beating may include spanking, slapping, pinching, pulling, or heating with any solid object.

Human branding or stigmatisation

Human branding, also known as stigmatisation, is a form of corporal punishment in which a visible mark is imprinted on the body of the offender. Historically, this method has been used on slaves and livestock and in criminal law by various European nations. In England, human branding was recognised by the Vagabonds Act of 1572, which was later repealed by an Act of Parliament. It was also a common practice for punishment given by the early colonial settlers in North America.

Human branding was common in India during the Mughal era, but it was later prohibited.

Blinding

Blinding is a form of historic corporal punishment that resulted in total or partial loss of vision. It was often used as corporal punishment in historical societies like the ancient Greek, Roman and Byzantine empire etc.

Mutilation

Mutilation as corporal punishment has been completely discarded due to its barbaric nature. It is a method of corporal punishment used to cause intense pain, humiliation, and permanent damage to body parts. Mutilation was also used as a method of judicial punishment in England and America until the 17th century.

Amputation

Amputation is the removal of a body part as corporal punishment for a crime. The use of amputation as judicial corporal punishment has been in existence since ancient times. Ancient Romans and Greeks used to amputate various body parts of offenders. The practice was also common in ancient Indian judicial punishment. Hands or fingers were chopped off in cases of theft, depending on the gravity of the offence. For sexual offences and adultery, male offenders were castrated, and female offenders were subjected to rhinotomies (amputation of the nose). With time, the practice of amputation as a punishment was abolished in India. 

Amputation as punishment was practised in England, Denmark, and several other European countries as well until the 16th century.

Amputation as a mode of judicial corporal punishment is still used in countries like Saudi Arabia, the United Arab Emirates, Iran, etc. However, international human rights groups are trying hard to stop the barbaric practice of amputation.

Stoning

Stoning is a barbaric form of capital punishment that was commonly used to be awarded to sex offenders and as punishment for adultery during medieval times. The guilty person was made to stand in a trench with a group of people throwing stones at the person until he or she experienced a slow and painful death from trauma. 

In 2008, a 13-year-old girl was stoned to death in Somalia for adultery. There are some reports that stoning as a method of punishment is still being used in Iran.

History and evolution of corporal punishment

Corporal punishment has been an integral part of human civilisation and has been in existence since ancient times. The first documented instance of corporal punishment was around 2000 BC in Egypt, where tomb robbers were beaten. Corporal punishment was prevalent across ancient Greek and Roman society. However, some thinkers and educators advised against the application of corporal punishment. The Old Testament contains written accounts of affirmative views regarding corporal punishment. According to historian Philip J. Greven Jr. in his book Spare the child: the religious roots of punishment and the psychological impact of physical abuse (1990), some people support or justify the application of corporal punishment on children by using the Bible’s book of Proverbs. The Quran and Sunnah also mention corporal punishment.

The use of corporal punishment has been prevalent throughout history. During the 5th century of the Christian era, people had a common belief that corporal punishments might be able to save them from God’s wrath, often epidemics like the plague. During the 6th century, the Tang Code in China set a schedule of offences and punishments, including corporal punishment.

Corporal punishment was a commonly used method during the Spanish Inquisition when Muslim and Jewish populations were persecuted under the supervision of Catholic monarchs for several centuries.

During the 15th and 16th centuries, Protestant leaders like Luther, Calvin, and Knox supported doctrines of strict punishment and discipline for children. In England, King Henry VIII passed the Whipping Act of 1530, which authorised corporal punishment for petty offences. Queen Catherine II passed the Charter of the Nobility, 1785 which exempted nobles from corporal punishment.

In India, several ancient legal texts such as the Dharmasastra, Daṇḍaviveka, and Manusmriti, etc. mentioned the application of corporal punishment only in cases of criminal offences. Corporal punishments in India were also prevalent during the Sultanate and Mughal era. The British passed the Whipping Act of 1909 to authorise whipping in addition to the punishments under Section 53 of the Indian Penal Code.

Evolution

With the global development of human rights law, advocacy for the prohibition of corporal punishment, both as a method of child discipline and as a form of state punishment, became more prominent. The last public whipping as state-awarded corporal punishment in the United States of America (USA) was in 1952 in the state of Delaware. In 1972,  the same public whipping post was removed. Corporal punishment was banned in prisons in the state of Arkansas, USA, for the first time in the case of Jackson v. Bishop (1967), thus signalling the end of corporal punishment in US prisons.

In India, the  Whipping Act of 1909 was subsequently repealed in 1955 through the enactment of the Abolition of Whipping Act of 1955. The Code of Criminal Procedure, 1898, was further amended, and the sentence of whipping was entirely stopped.

In the United Kingdom, judicial corporal punishment was abolished in 1948 through the Criminal Justice Act of 1948. However, corporal punishment such as flogging persisted for prisoners. Finally, it was prohibited by Section 65 of the Criminal Justice Act of 1967.  

Subsequently, corporal punishment for children was outlawed. In 1783, Poland was the first country to ban corporal punishment for children. Sweden became the first country to ban corporal punishment by parents in 1979 by amending the Parenthood and Guardianship Code.

By 2022, 64 nations across the world have banned corporal punishment for children, including at home. 28 more nations are committed to reforming their existing laws to start a blanket ban on corporal punishment.

However, even to this date, 15 nations in the world still have a partial ban on corporal punishment, and 29 states recognise corporal punishment such as whipping, flogging, and caning as legal, according to End Corporal Punishment, an initiative under the Global Partnership and Fund to End Violence Against Children, launched in 2016 by the then UN Secretary-General.

Judicial corporal punishment

Corporal punishment awarded to any individual as a penalty or part of a penalty by a court of law is known as judicial corporal punishment. It was commonly used as a judicial punishment in many countries but has been abolished in most regions of the world. But it is still used as a means of sentencing in many former British colonies, Muslim-majority nations, and among followers of Shariah law. The judicial use of corporal punishment now mostly involves flogging and caning.

Some of the former British colonies where judicial corporal punishment is still awarded are Singapore, Barbados, Botswana, Brunei, Swaziland, Tonga, Trinidad and Tobago, Zimbabwe etc.

The Constitutional Court of South Africa decided that the caning of juvenile males under the age of 21 was unconstitutional in 1995 in the case of S v. Williams and Ors. The Abolition of Corporal Punishment Act of 1997 abolished judicial corporal punishment.

The issue of judicial caning in Singapore garnered international attention in 1994. An American teenager, Michael P. Fay, was arrested and sentenced to a jail term of four months and six strokes of the cane, along with a fine of S$3,500, in 1994. The appeal against the order was heard in the High Court. It was later dismissed by the then Chief Justice Yong Pung How. 

Singaporean laws regarding offences punishable by caning were influenced by the British legal system during the colonial era. The Vandalism Act of 1966, under Section 3, provides caning as punishment for vandalism with “not less than 3 strokes and not more than 8 strokes,” along with a fine of a maximum of $2,000 and an imprisonment term of a maximum of 3 years in accordance with the procedures as laid down in Division 2 of the Criminal Procedure Code 2010.

Malaysia and Brunei, two of the neighbouring countries of Singapore, also have judicial caning on their statute books. Apart from that, many countries, such as the United Arab Emirates, Qatar, Iran, Nigeria, and the Aceh province in Indonesia, etc., recognise judicial whipping or caning. Judicial corporal punishment is also legal and widely recognised in Afghanistan.

In April 2020, the Supreme Court of Saudi Arabia abolished flogging as judicial corporal punishment, though other forms of judicial corporal punishment, such as amputation, are still legal.

International conventions against corporal punishment

Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights also prohibit the use of torture and “cruel, inhuman, or degrading treatment or punishment,” but do not specifically mention corporal punishment. In the case of George Osbourne v. Jamaica (2000), the UN Human Rights Committee decided that corporal punishment awarded to persons accused of crimes is contrary to Article 7 of the Covenant. 

Article 1 of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment defines torture as an act of inflicting ‘severe’ mental or physical pain with intentions such as obtaining any information or confession, punishing someone for any offence he has committed or is suspected of having committed or to intimidate or coerce with the consent of any public official or lawful authority. So it can be concluded that the application of severe corporal punishment to prisoners also constitutes torture.

Corporal punishment is prohibited by several international human rights conventions. The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, prohibits any kind of torture, degrading or inhuman treatment or punishment under Article 3.

The United Nations Standard Minimum Rules for the Treatment of Prisoners directly mention the prohibition of corporal punishment for prisoners.

Laws against corporal punishment for children

Traditionally, the imposition of corporal punishment on children has been a culturally accepted practice in many countries, including India. In fact, using corporal punishment in educational institutions had also been considered a normal part of the learning process for a very long time, even in the recent past. Even in the 21st century, many still have the same attitude that corporal punishment is necessary for children in order to discipline them. 

Humiliating and abusive treatment is not only a violation of children’s rights to protection from violence but also counterproductive to the learning process. It also sets off the idea of the acceptability of violence in a child’s mind and perpetuates the vicious cycle of violence in turn. A study by the World Health Organisation (WHO) found that corporal punishment on children has a number of negative effects on their physical and mental health, socio-emotional development, cognitive processes, and other areas.

International laws against corporal punishment for children

It has been internationally recognised that corporal punishment violates the rights of children and hurts their human dignity and physical integrity. Article 19 of the Convention on the Rights of the Child protects children against all forms of physical and mental violence from parents, legal guardians, and caregivers. It also requires the state parties to take appropriate legal, social, educational, and administrative measures to protect children from any kind of violence, abuse, maltreatment, or exploitation.

It also outlines all the protective measures State Parties should undertake, such as the implementation of proper social programmes and procedures to support the child and the caregiver in case of any maltreatment.

Furthermore, Article 28(2) of the Convention mandates all the state parties to ensure that school discipline is administered in accordance with the Convention while maintaining the basic dignity of any child.

Similarly, Article 29(1)(b) of the Convention emphasises that the education of the child should be directed towards developing respect for human rights and fundamental freedoms in accordance with all of the principles enshrined in the Charter of the United Nations. 

Article 37(a) of the Convention requires state parties to ensure children’s protection from “torture, inhuman or degrading treatment or punishment.”

Apart from that, WHO has created an evidence-based technical package to support nations in preventing and responding to violence against children called INSPIRE.

In General Comment No. 8, the UN Committee on the Rights of the Child reaffirmed clearly the right of protection of children from corporal punishment. 

The Council of Europe supports the prohibition of corporal punishment of children both legally and in practice. Adopting various parental strategies can help in reducing the incidents of corporal punishment of children. The Council of Europe’s recommendation on policies to promote positive parenting is a recommendation of parental strategies that seek to provide parents with sufficient parental support and skills.

Decisions of the European Court of Human Rights

The issue of corporal punishment of children was challenged by the European Court of Human Rights in 1978 for the first time. The case of A v. the United Kingdom (1998) was the first case on corporal punishment brought before the Court. The Court ruled that the child rights of A, the victim, were violated due to corporal punishment of caning by his stepfather under Section 3 of the Convention.

In the cases of Campbell and Cosans v. the United Kingdom (1983) and Costello-Roberts v. the United Kingdom (1993), corporal punishment was condemned in state and public schools, respectively. 

A landmark judgement regarding corporal punishment was the case of Tyrer v. the United Kingdom (1978), decided by the European Court of Human Rights. In this case, Anthony Tyrer, aged 15, was sentenced to three strokes of birch cane by a local juvenile court due to unlawful assault. The Court held in six to one votes that judicial corporal punishment amounted to degrading punishment under Article 3 of the Convention.

Article 17 of the European Social Charter mandates that member states protect children from all kinds of ill-treatment and that children are entitled to “social, legal, and economic protection.” The Charter is monitored by the  European Committee of Social Rights (ECSR).

The legal position of India with respect to corporal punishment

In the view of the Convention, corporal punishment for children is invariably degrading. Currently, there is no statutory definition of the term ‘corporal punishment’ in Indian law.

A study titled Child Abuse in India: 2007 conducted by the Ministry of Women and Child Development reported that the majority of children are subjected to corporal punishment in their daily lives. This includes schools, orphanages, childcare facilities, hostels, juvenile homes, and even at the hands of family members.

The Government of India accepted the recommendations of global bodies to prohibit corporal punishment in all settings, especially in schools. While corporal punishment has been prohibited in India since 2010, there are no legal provisions banning its use at home or elsewhere. 

The National Policy on Education, 1986, modified in 1992, completely excluded corporal punishment from educational institutions. Corporal punishment in schools in India is completely banned for children aged from 6 to 14 years, according to the Guidelines for Eliminating Corporal Punishment in Schools formed by the National Commission for Protection of Child Rights (NCPCR).

The legal position of India regarding corporal punishment for children is based on values enshrined in the Constitution of India, 1950, the Indian Penal Code, 1860, and several other Acts. The laws protecting children against corporal punishment in India are discussed below:

Relevant Constitutional principles

Provisions in the Indian Penal Code (IPC)

Section 88 and Section 89  fall under General Exceptions in Chapter IV of IPC and cover harms committed without any penal consequences. An act committed for someone in “good faith” is not considered an offence under Section 88. Under Section 89, any act done in “good faith for the benefit of a person” under the age of twelve years is exempted from punishment. These two IPC Sections were used to justify corporal punishment in India legally. In 2008, the Gujarat High Court ruled corporal punishment illegal in the case of Hasmukhbhai Gokaldas Shah v. State of Gujarat (2008).

Section 305 states that the offence of abetment of suicide of a child under eighteen years of age is punishable with a death sentence, life imprisonment, or imprisonment of a maximum of ten years and a fine. However, in the case of K Kala vs The Secretary (2022), the Madras High Court did not hold Robert, the School Headmaster, guilty in the case of the suicide of a 17-year-old boy, Yuvraj, the son of the petitioner, even though he used to subject the victim and other students in the school to brutal corporal punishment and inhumane tortures and humiliations such as cutting hair in public, tearing trousers with the blade, beating them ruthlessly, and abusing them with filthy languages.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Rules prohibit all forms of corporal punishment in ‘alternative care settings’ for children. Cruelty to children under Section 75 of the Juvenile Justice Act, 2015 is a non-cognizable and non-bailable offence. Furthermore, the guilty will face rigorous imprisonment of up to three years or a fine of one lakh rupees or both. If the offence is committed by a person running an organisation or an employee, he shall be punished with rigorous imprisonment for a maximum of five years and a fine of up to five lakh rupees.

Right of Children to Free and Compulsory Education (RTE) Act, 2009

The Right of Children to Free and Compulsory Education (RTE) Act of 2009 completely prohibits both ‘physical punishment’ and ‘mental harassment’ under Section 17 and makes it a punishable offence.

Under Section 31 of the Act, statutory bodies like the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCRs) monitor and safeguard the rights of children. 

Section 32 provides the procedures for the redressal of any grievance related to the rights of a child. Under Section 32(1), a complaint can be filed with the local authority with jurisdiction, which will be decided within three months under Section 32(2). The decision of the local authority can be appealed to the State Commission for Protection of Child Rights under Section 32(3) and Section 32(4).

Other Relevant Acts

Other relevant Acts in this regard are the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act of 1989 and the Protection of Civil Rights Act of 1955. 

An adult belonging to the general caste can be prosecuted for atrocities against children of scheduled castes and tribes under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act of 1989. 

If any child is discriminated against or subjected to corporal punishment on the grounds of untouchability, the manager or trustee of any educational institution or hostel can be prosecuted under the Protection of Civil Rights Act of 1955.

Critical analysis

It is a settled fact that corporal punishment has not been legally abolished across the world. A criminological inquiry into corporal punishment will be helpful for criminologists to understand its continued use. 

The UN opposes the use of corporal punishment, including capital punishment on offenders. Similarly, the UN Committee on the Rights of the Child has prohibited the use of corporal punishment for children in both schools and at home. However, there is a huge imbalance between the legislation against corporal punishment and its practical implementation. The reasons behind this are the different cultural, economic, political, and social characteristics of a nation. 

In some nations, corporal punishment is institutionalised and judicially recognised. It is still routinely imposed in Middle-Eastern countries with traditionally conservative social and economic societies. Some of the former British colonies also have judicial corporal punishments. Colonialism has also played a great part in institutionalising corporal punishment in their cultures, as in the case of Singapore. Studying the socio-cultural background of common corporal punishments in these countries can help one understand the background of the prevalence of corporal punishments in these countries.

Conclusion

Corporal punishment has turned out to be the most common method of physical abuse, dominance, and bullying. The practice of corporal punishment is one of the most controversial in modern times. Although corporal punishment has been made illegal in many countries across the world, there are other countries where the practice of corporal punishment is widespread. In many countries, it is still used as a method of punishment and to discipline children. The attitude towards corporal punishment varies regionally, depending on cultural norms.

The use of corporal punishment on children, especially by teachers and parents, adversely affects the child’s future. Various scientific research and debates regarding the issue are going on. Proper implementation of the legal ban on corporal punishment can stop the practice. Apart from that, government campaigns and the media can play a huge role in eradicating corporal punishment.

Frequently asked questions (FAQs) on corporal punishment

What is the use of corporal punishment?

Corporal punishment is used as a disciplinary method for children. It is also used for adults, especially prisoners and criminals. Known as judicial corporal punishment, courts of law in certain countries sentence corporal punishment as a penalty or part of a penalty.

What are some methods of corporal punishment in school?

Methods of corporal punishment include hitting, slapping, spanking, shaking, punching, kicking, choking, electric shock, confinement in small spaces, excessive exercise, and fixed postures for long periods.

What are the instruments commonly used in corporal punishment for children?

Instruments used in corporal punishment for children include leather straps, switches, baseball bats, and fists.

What are some laws in India that protect children from corporal punishment in India?

The Constitution of India protects the fundamental rights of children. There are certain provisions in the Indian Penal Code that protect children from violence. Acts that specifically protect children from corporal punishment are the Right to Education Act of 2009 and the Juvenile Justice Act of 2015.

Apart from that, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 protects children belonging to scheduled castes and scheduled tribes from the atrocities of general caste adults. The Protection of Civil Rights Act of 1955 can be used to prosecute an offender, especially a manager or trustee of any educational institution, in specific cases on the ground of untouchability.

References

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