This article has been written by Nimisha Dublish of the Vivekananda Institute of Professional Studies (VIPS), GGSIPU, New Delhi. This article talks about corporal punishment, its legality, and how it affects the life of a child. 

It has been published by Rachit Garg.

Introduction 

“When we were kids, we used to get hit by our parents and teachers for not doing homework and for being undisciplined.” 

Almost every child has once heard this from their parents. A few years back, it was a normal practice followed by many people. It was considered usual to inflict physical injuries upon children who did not follow what they were told by their teachers and parents. Our parents and grandparents have told us their stories of getting punished and getting hit by a scale on their fists and even other body parts many times. After listening to all this, our reaction is like, “Why were they so harsh on you? We are glad that we were not born in that era when all this was normal.” But we fail to notice that this practice is not extinct yet. It is still followed by many people. These people consider physically punishing children a method of disciplining them. This is what we call corporal punishment. Adults deliberately inflict pain upon a child because of the child’s unacceptable or inappropriate behaviour. Adults believe that by taking immediate physical actions, children will not repeat this thing, and this would set an example for others as well, to stop the recurrence of the event. Children are hit on their body parts either by hands or sticks, belts, scales, or any other object that could cause pain and build fear in children’s minds. 

A child faces corporal punishment even in places which are meant to take care of and protect them, like schools, hostels, juvenile homes, etc. These practices are not only limited to institutions; they are followed in households as well. In today’s competitive environment, there are more cases of mental punishment. Psychological aggression has been proven to be more pervasive than physical punishment. Psychological aggression means controlling behaviour followed by adults that causes children to experience psychological pain.  

Corporal punishment has been the subject of debate since the evolution of children’s rights in the late 19th century. It has gained public attention to answer the question of whether it should be used as an effective parenting tool or not. It can be said that corporal punishment is a form of child abuse. 

Even today, punishing children is considered normal and acceptable behaviour in all kinds of settings, be it schools or families. Adults consider this a necessary practice to be followed in order to help children grow up to be responsible people. But do they really know to what extent they can use these practices? It is really difficult to draw a fine line between healthy control behaviour and aggressive behaviour. But yet teachers and parents face problems in distinguishing between both, which results in mental problems for parents, teachers and children. Now, the question arises of how a child would know that his rights have been infringed upon. How will he know to what extent the use of these practices is okay? This is what happens to the kids, they just don’t understand that their rights have been violated and even if these punishments hurt them, they don’t feel the importance of reporting the incident to others. This is because corporal punishments are disguised as love, care, protection, and a necessity to be followed for the betterment of the child. In this article, we will go through various aspects of corporal punishment and how it affects the development of children. Furthermore, to what extent can these be used by parents and how far is it legal? 

Meaning of corporal punishment

Corporal punishment means any punishment in which a certain amount of physical force is used with the intention of causing some degree of pain or discomfort, however light. This punishment is mostly given by using hands (spanking, slapping, punching, etc.) and/or by hitting (using a stick, belt, shoes, etc.). This can also include kicking, scratching, pinching, biting, or pulling the hair of children. However, these punishments can be in the form of mental abuse as well. These include humiliating, degrading, scaring, and threatening a child. It can be both physical and mental. There is no statutory provision defining the term corporal punishment in Indian law. Still, the Right of Children to Free and Compulsory Education (RTE) Act, 2009 defines the terms ‘physical punishment’ and ‘mental harassment’, and prohibits both of them under Section 17(1) and makes them punishable under Section 17(2) of the Act. 

In India, these practices are followed in schools and colleges to give students moral values and teach social behaviour. Culturally, this practice has been followed in India for a long time. A report by the Ministry of Women and Child Development shows that in India, two out of every three children are abused. 

Persistence of corporal punishment

There are several reasons why corporal punishment persists. One of the major reasons is that we mostly find it difficult to draw a line between corporal punishment and discipline. We fail to understand how it is different from discipline. People use corporal punishment to stop a child from misbehaving or behaving in a certain way. However, we fail to understand that positive discipline techniques can be used to make a child understand what is acceptable behaviour and what is desirable behaviour without having a fear of punishment. Another major issue is that during the training, teachers are not taught to think in a way that reflects why a child is behaving in a particular manner and what could be the reason behind it. Teachers are not well aware of positive discipline methods. It is observed that many times a child misbehaves if he thinks that he is not getting enough attention. When a teacher fails to control a child and lacks the skills to handle them, they strike out at the child, which results in the use of corporal punishment in physical, oral, mental, and other emotional manners. 

Types of corporal punishment

Majorly there are two broad categories in which the types of corporal punishment can be classified-

Domestic corporal punishment

This is also known as the punishment of children given by their parents. This includes smacking, spanking, or slapping. This practice has been outlawed in many countries and was first prohibited in Sweden in 1979. However, in some countries, it is still legal but is restricted by law to an extent. Restrictions, like not hitting on the head, defining an age limit for giving punishments, etc., have been imposed. In Canada, it can be seen that though giving corporal punishment is legal, it can only be the parents or legal guardians who can follow this practice. Also, the child should be between 2-12 years of age. Only open and bare hands can be used, and hitting on the head with belts, paddles, etc. is prohibited. 

Institutional corporal punishment

There are many children who face corporal punishment in institutional setups like colleges, schools, etc. When a teacher fails to take control over a child’s behaviour, he/she tends to lose his/her temper and ends up inflicting corporal punishment upon the child. It’s been since time immemorial that we have been listening to such incidents. Many times, this exceeds the limit and the child ends up being severely hurt.  

Consequences of corporal punishment

1. When parents use the methods of corporal punishment on their kids to control and manage their behaviour, they tend to teach their kids that this is acceptable behaviour and a means to deal with conflicts. These children turn out to be angrier as adults and are more likely to hit their children and use the same method of hitting and beating.
2. This kind of behaviour results in increased aggressive and destructive behaviour in kids who undergo corporal punishment. They tend to have low self-esteem, anxiety issues, depression, and suicidal thoughts and carry an emotional scar for life. It is now universally recognised that corporal punishment hinders the development of children to their full potential. 
3. Harmful psychological and physiological responses are triggered when children not only undergo sadness, fear, anger, and shame but also feel threatened, which activates a neural pathway, creating physiological stress. 
4. Direct physical harm can cause severe brain and physical damage, death, or physical disabilities. Anxiety disorders can lead one to attempt suicide and use drugs and alcohol. Mental stress like this has a huge impact on children’s academic and occupational success. 
5. Notable changes can be seen in children like poor moral internalisation, increased antisocial behaviour, increased aggression, criminal behaviour, migraine, cardiovascular disease, arthritis, obesity, and damaged family relationships. 

Preventive measures against corporal punishment

1. Norms and value programmes shall be conducted to transform these harmful social norms pertaining to child-rearing and child discipline. 
2. Laws shall be introduced which ensure that children are equally protected against assault as adults are and aim to increase awareness. There is a need to shift attitudes towards non-violent child rearing and parents should realise their responsibilities. 
3. To nurture a non-violent and caregiving nature in parents, information and skill-building sessions should be held. 

Support for parents

It is understandable that parents also undergo stress and might have poor mental health conditions. This can be because of several reasons, like poor financial status, work pressure, family conflicts, etc. But this doesn’t mean that they should adopt strict corporal punishment measures to discipline their children. Parents should not vent their frustrations on their children. Rather, they should learn stress management and adopt positive disciplinary strategies. Such stressors do tend to increase a more strict approach than a calm approach towards children. Parents should take help from health professionals and analyse themselves on the pointers given by the professionals. By addressing the stressors, parents improve their ability to implement an optimistic disciplinary strategy. 

A legal perspective on corporal punishment

The following is a legal perspective on corporal punishment:

International laws and conventions related to corporal punishment

Article 28(2) of the United Nations Convention on the Rights of the Child (UNCRC)

Article 28(2) of the UNCRC mentions the requirements to be fulfilled by the State parties. It says that the parties shall take all the necessary measures in order to keep a check on the schools’ discipline and administer them. It shall be the responsibility of State parties to ensure that these are in line with the child’s human dignity and conformity with the present Convention. 

Article 29(1)(b) of the UNCRC

Basically, Article 29(1)(b) of the Convention lays emphasis on the fact that the State parties shall agree to the education of the child and should be directed to the development of respect for human rights and fundamental freedoms. These steps shall be taken for the principles enshrined in the Charter of the United Nations.

Article 37(a) of the UNCRC

This Article puts a special emphasis and expects the State parties to make sure that no child shall be subjected to any kind of torture or any other cruel, inhuman or degrading act, or punishment. 

Article 19 of the UNCRC

Article 19 of the Convention deals with the requirements to be fulfilled by the States. It discusses that the States shall take all the appropriate measures to let it be legislative, administrative, social, and educational measures. These measures are required to be taken to ensure the protection of a child from all forms of physical and/or mental violence. Violence shall include injury or abuse, neglect or negligent treatment of a child, maltreatment or exploitation, etc. 

Indian laws related to corporal punishment

Constitutional provisions 

Article 21 of the Constitution of India

Article 21 of the Constitution of India envisages the ‘right to life and dignity’. This also includes the ‘right to education’ for all children up to the age of 14 years. In the very landmark case of Unni Krishnan v. State of Andhra Pradesh (1993), the Supreme Court of India held that getting a basic education is an implied right under Article 21 read with the Directive Principles of State Policy (DPSP) on education under Article 41. The Court further added that these rights should be understood in context with the DPSPs, which includes Article 45 that provides that the state is to endeavour to provide, within a period of 10 years from the commencement of the Constitution, free and compulsory education for all children. The whole point of discussing this case here was that corporal punishments amount to abuse and, as a result, are against the freedom and dignity of a child. It tends to interfere with the child’s fundamental right to education because corporal punishment ingrains a fear that makes a child avoid school or drop out. These are the reasons which prove that corporal punishment is violative of the right to life. 

To put great emphasis on this provision, the Right of Children to Free and Compulsory Education Act, 2009 was introduced. This was introduced to make sure that children of age 6- 14 years must get free and compulsory education and their fundamental right to education is protected. 

Article 39 of the Constitution of India

Article 39(e) mentions the State to work hard so that children of tender age are not abused. Also, Article 39(f) directs the State to work progressively in order to ensure that children are given opportunities and facilities to develop themselves in a healthy and well-defined manner. It shall be ensured that the youth of a person is well protected against exploitation and moral as well as material abandonment. 

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

The legislation focuses on prohibiting both physical punishment and mental harassment under Section 17(1) and making it punishable under Section 17(2) of the Act. These sections say that no child shall be subject to physical punishment or mental harassment of any sort. 

The application of other legislation is not precluded in the RTE Act that is related to the violation of a child’s rights. For instance, offences under the Indian Penal Code, 1860 (IPC). The IPC deals with several offences varying in degrees of physical harm and intimidation, these can be used to prosecute an adult perpetrator for inflicting corporal punishment against children in an institutional setting. Depending on the situation and extent of the offence, Section 305 pertaining to abetment of suicide committed by a child, Section 323 pertaining to voluntarily causing hurt or Section 325, which is about voluntarily causing grievous hurt, and so on can be used.

A duty is enforced upon the government and the local authorities under Sections 8 and 9 of the Act to ensure that children who belong to weaker and disadvantaged groups of society are not discriminated against and are prevented from pursuing elementary studies. If corporal punishment is meted out to children for belonging to lower castes, even the provisions of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be used against the perpetrators.

Juvenile Justice (Care and Protection of Children) Act, 2000

Section 23 of the Act

Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 mainly covers the person who has the ‘actual charge or control over’ a child. The Section includes parents, guardians, teachers, and employers, or whosoever is in a position of authority over a child. 

Section 75 of the Act

Section 75 of the Act sets the punishment for the offence of cruelty against children. If physical or mental harm is caused to a child or if the child is assaulted, abused, exposed, or neglected by an employee or a person who has been entrusted with the care and protection of the child, the accused shall be liable for up to 5 years of rigorous punishment and up to Rs. 5 lakhs. In case children become physically incapacitated or mentally ill then the punishment may be increased up to 10 years. 

Confusion between Section 89 of the Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 for laymen in India

Section 89 of the Indian Penal Code talks about the acts which are done in good faith for the benefit of a child under twelve years by a guardian or guardian’s consent. If we go by this provision, then the corporal punishment given by the teacher to enforce discipline will always be protected under the said section. But let’s go as per Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which provides for an actual charge against the person who is responsible for the assault, abandonment, exposure, or the willful neglect of a child that causes mental or physical harm. It is clear that both these provisions can be contradictory to one another. Now, in this case, let us get into the concept of special laws and general laws and what they mean in layman’s language. The general law is applicable to every citizen of India. For example, the Indian Penal Code (IPC), Code of Civil Procedure, 1908 (CPC), Code of Criminal Procedure, 1973 (CrPC), Indian Contract Act, 1872 (ICA), etc. A special law is for a particular community or for a particular purpose. It applies to a particular place or especially to a particular member or members of a class of persons or things in the same situation, but not to the entire class. For example: UAPA, NDPS, POCSO etc. The general law’s ambit is restricted to that of the special law in a way that the general law does not have power over a special law in areas where it contradicts the special law. The Juvenile Justice Act, being a special law, will always prevail over the IPC in cases of contradictions. But it must be remembered that punishments given reasonably and in a bonafide manner for the betterment of children are mostly not considered unlawful by the courts.

Foreign countries’ take on corporal punishment

Sweden

In 1966, Sweden became the very first nation to outlaw corporal punishment of children. The law that permitted parents to use corporal punishment was totally replaced by inserting assault under the Swedish Penal Code. However, school corporal punishment was banned in 1958 itself. An amendment was made to the Children and Parents Code and the statement ‘Children are entitled to care, security, and a good upbringing’ was amended. No child shall be subjected to corporal punishment and this was not seen as a separate legal issue but was included and handled as per the criteria for assault. 

Australia

Corporal punishment at home is considered legal in Australia, provided that it shall be in a reasonable amount/degree. However, corporal punishment in schools is illegal. It is only in the state of Queensland (private schools) that it is allowed. No child’s head or neck can be smacked, and a child shall not be bruised or harmed to more than a reasonable degree. 

England

The Criminal Law of England talks about the general prohibition of common assault and battery. There are no legal measures that prohibit corporal punishment. The Children Act, 2004 of England provides for punishments that are immoderate and disallows the justifications for inflicting harsh injuries or actual bodily harm. However, a total ban on corporal punishment has been in discussion for a long time, and a poll in 2004 by the advocacy group of children showed that about 71% of the respondents supported giving children protection and immunity against the injuries that are inflicted upon them in the name of discipline. 

NCPCR and SCPCRs 

Both the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCRs) are trusted with taking care of children’s right to education under Section 31 of the Right of Children to Free and Compulsory Education Act, 2009. NCPCRs and SCPCRs are responsible for monitoring children’s rights to education. They perform functions like examining and reviewing the possible safeguards as provided by or under the Act and also recommend certain measures to be taken for their effective implementation. NCPCR inquired about the complaints pertaining to the children’s free and compulsory right to education. 

In the states where the Commission for Protection of Child Rights has not been formed, the government shall take appropriate measures to constitute an authority for the purpose of protecting children’s rights. Section 31 of the RTE Act talks about what NCPCR and SCPCRs are supposed to do and in what manner they should act. These are as follows-

1. Rights provided under this Act shall be adequately examined and safeguards shall be reviewed. Recommendations shall be made for the effective implementation of policies. 
2. Both NCPCR and SCPCRs in their capacities shall inquire into complaints pertaining to the child’s right to free and compulsory education.
3. Necessary steps shall be taken as provided under Section 15 and Section 24 of the Commissions for Protection of Child Rights Act, 2005.
4. As per Section 32(3) and Section 32(4) of the RTE Act, SCPCRs are considered as appellate authorities responsible for receiving appeals from aggrieved parties related to children’s right to education. These appeals shall be those which have not been addressed by the designated local authorities under Section 32(2).

Case laws related to corporal punishment

S. Jai Singh & Ors. v. State & Anr. (2021)

Facts

In this case, children were asked to do a duck walk on the school’s ground as a result of punishment for those who come late to school. But several types of research have shown that duck walking can cause knee joints to become more vulnerable to injury. It was seen that the staff and physical training mentors were of careless attitude and ignored this important fact.

Judgement

It was observed by the court that professional teachers should have knowledge of their field and keep themselves updated with the advancements. Teachers should act with more responsibility and caution because their actions can directly affect the physical health of the students and this cannot be brushed aside as a trivial issue. This case is a classic example of how teachers are duty-bound to keep themselves updated and informed about the scientific advancements happening in their field. 

The Bench found it appropriate to invoke the petitioners’ moral obligation to at least pay monetary compensation to the aggrieved families. 

Ambika S. Nagal v. State Of Himachal Pradesh (2020)

Facts

In this case, the child was slapped by the teacher as a measure to control the child from misbehaving in class. It was contended that the teacher hit the child with a fist and blew. After the medical examination, it was found that there were 5 ecchymoses, but they were of trivial nature and didn’t amount to greater physical harm. But it was said that one tooth of the child was found loose, and that is only possible if someone has given a blow. It cannot be ascertained whether the act was done in good faith or not. 

Judgement

The Court in this case pointed out that it depends on the circumstances whether corporal punishment was given out of fury or excitement. This also depends on the injuries received by the child. Implied authority is granted by guardians or parents when they send their children to school. This doesn’t inflict any punishment on teachers. There is no general principle that can be applied to all situations. In this case, it was seen that the teachers have restrained control over the degree of punishment that they can inflict upon a child with due care. It was found in this case that the actions of the teacher were bonafide in nature, and as a result, the FIR was quashed and proceedings pending were set aside.

Mathew E T v. State Of Kerala (2020)

Facts

In this case, the music teacher was under the impression that the student was making fun of him, and to this, the teacher went ahead and inflicted injury upon the student. The teacher pinched the victim in his right arm and then smacked his head. The guardian of the victim filed an FIR against the teacher for corporal punishment along with certain sections under the Indian Penal Code. 

Judgement

The Court in this case noted that it cannot be said that the nature of the injury was that gross and had exceeded the ordinarily accepted norms. It might be possible that, because of the very nature of the profession of a music teacher, he might have acted a bit too strictly and could have adopted other methods for correcting the behaviour of the child. Also, it cannot be said that the act was assault as per Section 75 of the Juvenile Justice Act. The term ‘assault’ is not defined by JJ Act. In light of these facts and observations, the Court quashed the FIR and set aside the proceedings. It would be unfair and unjust to make the petitioner face criminal proceedings.   

Conclusion

“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.” — Kofi Annan

Corporal punishment has been abolished in many countries, but it is still followed behind closed doors. However, some countries allow corporal punishment to an extent or degree. But who can decide what should be a reasonable amount of force that one can use on a child to discipline him by corporal punishment? No one can decide this, and probably this is the reason why we still see many such cases where teachers almost lose their temper and punish children physically. A child goes through many moods and zones as he /she grows up. There are several problems that they might be dealing with. For example, they may be struggling to find their own identity. Adoption of corporal punishments only makes it worse for them to cope with their life traumas and situations. 

People of our society still believe in age-old customs of ‘spare the rod and spoil the child’ and end up punishing their children unreasonably. The Government of India has banned corporal punishment practices throughout the country. However, the laws of the UN Convention on Child Rights treaties are not yet implemented at the school and student levels. The practice of corporal punishment in classrooms and homes continues to exist. Developing countries have adopted agendas to promote awareness regarding corporal punishments and their effects on children’s mental and physical health. It cannot be said that the child shall not be scolded or shall not be hit. But only corporal punishment in physical ways should not be the method of punishment. Both teachers and parents should adopt more effective ways of punishment for the good upbringing of a child. This can be done in collaboration with health doctors and psychologists. Last but not least, it is imperative to remember that punishments are all about teaching the virtue of accountability to children. Corporal punishment should always be used as the last resort for the same and if at all exercised, must be done only with extreme caution and reasonableness.

Frequently Asked Questions (FAQs)

How many countries have allowed corporal punishment?

Around 33 countries around the globe have allowed corporal punishment but with some restrictions. 

How many countries have banned the physical punishment of children?

As per the Global Initiative to end all corporal punishment of children, there are around 59 countries which have fully prohibited corporal punishment in all setups. 

How does corporal punishment affect students?

Corporal punishment has been associated with a whole range of negative impacts on children. It affects a child physically and mentally. This results in psychological and emotional harm, poor performance at school and college, etc.

References

• https://www.livelaw.in/columns/corporal-punishment-article-21-a-of-constitution-of-india-indian-penal-code-child-rights-physical-assault-203325
• https://www.un.org/development/desa/family/wp-content/uploads/sites/23/2020/06/Freer_Expert-Group-Paper_Corporal-Punishment-Physical-Abuse_June2020.pdf
• https://www.who.int/news-room/fact-sheets/detail/corporal-punishment-and-health

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