corporal punishment
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This article is written by M.Subhadra pursuing B.Com LLB(Hons.) from the School of Law SASTRA University. This exhaustive article deals with Corporal Punishment. This article mainly focuses on the injustice towards children. The article also talks about the various protections guaranteed to children under different legislations. The article is concluded by appreciating the steps taken by the Judiciary. 

Introduction

“The birth of every child brings the good news that God is pleased with the Human Beings” -Tagore

The use of corporal punishment in many schools has been prohibited in law and by the code of conduct of the school, but it still continues by claiming it is a means of instilling discipline. In India, Corporal Punishment is practised in schools and colleges. It is done to teach moral values and social behaviour. It is widely practised in India for a long time. The innocent children are the most affected ones. It involves inflicting physical pain and the children submit to such violence without question because of the fear and mental trauma they go through. They sometimes show signs being hurt in their behaviour which is left unnoticed. It affects the academic performance and behaviour of the child which may create an impact on the child’s dignity and self-esteem.

Law allows punishing a person physically only in the case of any criminal offences committed by the person and that too only by the prescribed authority in accordance with the laws of the land. There are teachers and parents who claim that it was done for the benefit of the child. But  Under Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015, “best interest of the child” is to be done for the welfare of the child (socially, physically, emotionally).   

What is corporal punishment

Corporal Punishment is the act of instilling violence on children.  It is to beat, hit, spank, swat, pinch or cane a child with belts, hands, sticks or any other tool. It is always an act of violation of children’s fundamental rights. As per the UN Committee on the Rights of the Child, 2006, Chapter III defines Corporal punishment as ‘any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (‘smacking’, ‘slapping’, ‘spanking’) children, with the hand or with an implement – whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, burning, scalding or forced ingestion’. As per Article 28 of the Convention on the Rights of the Child, the CRC not only prohibits the use of corporal punishment in any setting but requires that States Parties ‘take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity’. 

The difference between discipline and physical punishment

People always use these words interchangeably, but there are several differences between them.  Discipline is of two types positive and negative. It is a way of teaching children to follow the right behaviour. Positive discipline teaches a child about what is right and what is wrong in an understandable and polite manner. It is about making them aware of what kind of behaviour is acceptable and what is not. Punishment is the form of Negative Discipline. It is often imposed upon a child to get rid of a particular behaviour. Punishment focuses on past behaviour and does nothing to make the behaviour of the child better in the future. Children who have had the advantage of being corrected by positive discipline become independent and perfect. They come to know how to take care of oneself and how to mingle with others. 

Positive behaviour discourages misbehaviour. Using punishment is not the only way of disciplining a child. Punishment is always conditioning the child, rather than teaching it how to control itself. Punishment instils fear, it just makes him believe that if he does this particular act he is going to be punished. It does not make him understand why it is not encouraged to continue such behaviour. It changes the way the child thinks about himself. It does not allow him to act individually and decide what is right and why it is wrong and act accordingly. 

Punishment makes a child believe that he is not in control of himself. Punishing a child does not make him realise as to why he shouldn’t follow that behaviour. Discipline makes a realise his mistake and understand the mistake he has committed.  It gives a sense of understanding and a lesson on how to deal with emotions like anger and disappointment. 

Discipline fosters positive behaviour and a sense of belongingness. When the victim becomes positive, the relationship develops and teaches the value of care and affection by throwing lights on the mistakes done. Discipline teaches the kid what is expected behaviour and why is it so done. The result of punishment is fear and shame, the result of discipline is security. 

Methodological issues

Major issues that become a barrier in understanding corporal punishment is that: 

(a) ambiguity in conceptual and operational definitions of corporal punishment; and 

(b) limitations in the methods and procedures of assessing corporal punishment.

Ambiguity in Conceptual and Operational definitions of Corporal Punishment 

There are certain cases where the researchers have explicitly defined what is Corporate Punishment. In certain cases, they have not been described for the respondents to decide. Such individual conceptions vary among each other. The main reason for this limitation is the lack of consensus on conceptual understanding. Certain corporal punishments prefer milder spanking and non- abusiveness. The lack of agreed definitions does not limit the ability to go for many comparisons. It is important for harder punishments to be dealt with separately and establish the effect they had on children. 

Limitations in the methods and procedures of assessing Corporal Punishment

The problem mainly depends upon the variables assessed and the way they are analyzed. Children, while surveyed, are rarely asked to be the source of information. Thus with the little information that was obtained, it was very clear that children’s perceptions are strongly associated with specific outcomes. 

To completely understand the effect of corporal punishment on children is not enough if the frequency and severity of the punishment is studied, but there are also other variables that are important. These include: 

(a) Parents’ use of explanation or reasoning about why the child is being punished. 

(b) The timing of punishment in relation to when the child’s misbehaviour was discovered.

(c) The predictability of the punishment. 

(d) The perceived fairness of punishment. 

(e) The perceived deservedness of the punishment.

(f) The consistency with which a given infraction is punished from one time to the next.  

Laws regulating corporal punishment

The Constitution of India

The Constitution of India came into force in the year 1950. Since then it has been striving to ensure justice and equality. Article 21 of the Indian Constitution that guarantees the right to life and personal liberty explicitly states, the dignity of a child is being snatched from him when he is punished. Article 21A states that children between six to fourteen year should have free and compulsory education. When children have the fear of punishment and insult among their fellow classmates, they do not attend the school properly and some may even tend to leave permanently. 

Directive Principles of State Policy (DPSP) 

The State shall under  Article 39, direct its policy towards securing :

(1) That the health and strength of workers, men, and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

(2) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Indian Penal Code 

The Indian Penal Code was established back in 1860. It acts as a protector and has made various amendments for the welfare of its citizens. 

Section 305: Abetment of suicide of child or insane person; 

Section 323: Voluntarily causing hurt;

Section 325: Voluntarily causing grievous hurt;

Section 326: Voluntarily causing grievous hurt by dangerous weapons or means;

Section 352: Assault or use of criminal force otherwise than a grave provocation;

Section 354: Outraging the modesty of a woman;

Section 506: Criminal intimidation;

Section 509: Word, gesture or act intended to insult the modesty of a woman.

The Right to Education Act, 2009

As per Section 17(1)  and Section 17(2) of the Right to Education Act, 2009, nobody shall inflict any punishment on a child, neither physical nor mental. And if any person is involved in such an act, shall be made liable to disciplinary order. As per Section 8 of the Right to Education Act, it is the duty of the government to ensure compulsory admission and attendance of all the children between six to fourteen years.  

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The Juvenile Justice (Care And Protection Of Children) Act, 2015 (JJ Act)

As per Section 23 of the Act, when there has been any cruelty to the juvenile or the child, the offender may be punished with imprisonment which may extend to six months, or fine or with both. 

National Policy for Children, 2013 

It was adopted by the Government of India by 26th April 2013. It categorizes every person below 18 years of Age as Child and directs the state to ensure that all children between six to fourteen years are in school. 

R v Hopley (1860) 

Facts

The respondent, in this case, was a well off the person who was running a school in his home. The petitioner joined this school who was previously studied in a school nearby. The student was slow in learning and was found to be sluggish. The respondent received prior permission of the kid’s father to give to severe corporal punishment to put him in place. The kid was beaten up with a skipping rope and a walking stick. As a result of severe punishment, the kid was found dead the next day.   

Judgement 

Hopley was sentenced to four years of penal servitude and was incarcerated was convicted for manslaughter as he was in a parental position, that of a school teacher and was not convicted for murder. Till today the case is widely recognized by the name Eastbourne Manslaughter. 

Conclusion

corporal punishment should not be applicable as it is not an appreciable act in today’s society. It is still prevalent in India in many backward and rural areas. It makes the child arrogant and in some cases, it may become the reason for the child’s resistance to change. There are many other ways to make the child understand its mistake. A child inflicted by corporal punishment might resort to the same in future against some other kid.  The change we all expect happens only when a child dies or commits suicide. The situation should not be left until then. Even though corporal punishment has been banned by the Indian government throughout the country, this is been still followed by many. It might seem to be a better way of amending a child, it is highly advisable not to resort to such acts. 

The ban on corporal punishment is a big step towards a better tomorrow and which is commendable and the offender should be punished with severe imprisonment and should be taught the value of life. 

It is tantamount to child abuse and it needs to stop immediately. The citizens have to change their mindset to become zero-tolerant towards the injustice happening to a child. However, it is true that effective measures have been taken and awareness is being created and laws are being amended by the government of India. It is now the duty of the school management to stop these practices and work until such evil acts have been completely wiped off which does not seem unachievable. 

References

  • https://blog.ipleaders.in/corporal-punishment-india/#:~:text=Section%2017(1)%20of%20the,rules%20applicable%20to%20such%20person.
  • https://www.thoughtco.com/reasons-for-banning-corporal-punishment-2773347
  • https://www.tandfonline.com/doi/abs/10.1080/03055698.2018.1446330?journalCode=cs20
  • http://www.legalservicesindia.com/articles/punish.htm#:~:text=Tortious%                   20Liability%20of%20Teacher%20under%20English%20%26%20Indian%20Law%3A&text=Section%2047%20of%20the%20Education,funded%20pupils%20in%20independent%20schools.

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