The National Commission for Protection of Child Rights (NCPCR) recently announced that it would initiate steps to get the Indian Penal Code amended if any section of the code stood in the way of punishing those accused of practising corporal punishment in schools. This announcement and the self-imposed ban on this horrifying practice — euphemistically termed “disciplinary action” against “erring” students, in a Kolkata school that has been facing legal action following the suicide of a 12-year-old student in February 2010 a couple of days after he was caned and flogged by the principal — have led to another round of informative and intensive media coverage of this social malaise.
Reacting strongly to the practice of corporal punishment in schools, West Bengal Chief Minister Buddhadeb Bhattacharjee said his government had framed a set of rules to ensure that the cruel punishment was not given. He told the State Assembly, in a written statement, that fear was an impediment to a student's mental growth and that the authorities should ensure that the atmosphere in schools did not induce such anxieties.
In the opinion of the NCPCR, which has taken up the case of the 12-year-old in light of his father's complaints against the principal and four teachers, Sections 88 and 89 of the IPC enable teachers to inflict corporal punishment on their students and get away with it. The two sections say that nothing should be considered an offence if it is done “in good faith for the benefit of a person under 12 years of age.” Union Human Resource Development Minister Kapil Sibal has reportedly asked NCPCR Chairperson Shanta Sinha “to frame and issue tough guidelines to get rid of corporal punishment in schools” on the grounds that the Right to Education Act bans such offences.
What, however, is beyond one's comprehension, is the persistence of this medieval practice in the face of court orders banning this practice; ratification of international conventions relating to protection of children's rights, including the right to live and the right to dignity; the National Charter for Children of the Government of India 2003, and so on. But then, it is not a problem only of India.
Developed countries such as the United States and Canada are no exceptions. New York banned corporal punishment in public schools but the practice remains legally protected in 20 States. In Britain and some other European countries, the laws have been changed and corporal punishment has been banned.
Most incidents in government schools
In India, the practice is prevalent in most States, without any change in the applicable laws and rules. According to a study conducted by the Union Ministry of Women and Child Development with samples from 13 States, 65 per cent of school-going children are reportedly subjected to corporal punishment. Also, 62 per cent of the incidents of corporal punishment take place in government and municipal schools. Only extreme cases such as death and suicide tend to draw public attention and only a handful of cases are taken to courts.
Post-Independence, one could notice a progressive improvement in the response of courts to the issue. The early approach was based mainly on English law, which recognised that a schoolmaster might inflict corporal punishment on a pupil for purposes of ‘correction' or for enforcing school ‘discipline.' Justice R.N. Dutt of the High Court at Calcutta stated this while passing an order in respect of a case relating to corporal punishment (Ganesh Chandra Saha vs Jiw Raj Somani, 1964) on April 10, 1964: “The English law also recognised that while the child is at School, the school master is in the position of a parent, that parental authority is delegated to the School master and the School master represents the parent for the purposes of correction.”
The judge was disposing of an appeal petition against an order of conviction and sentence under Section 323 of the IPC (Punishment for voluntarily causing hurt). The case of the complainant, a student, was that he was caned and flogged by the petitioner, the headmaster, on the grounds that he had stolen a book from a fellow-student. The magistrate convicted the headmaster and sentenced him to pay a fine of Rs. 15 in default to suffer simple imprisonment for three days. In the appeal court, however, the practice of corporal punishment by a “school master” with “the delegated parental authority” and “for the purpose of correction” was examined to decide whether it was an offence under Section 323 of the IPC. The matter was considered together with, and in the light of, Section 88, IPC (an act not intended to cause death, done by consent in good faith for person's benefit) and Section 89, IPC (an act done in good faith for the benefit of a child or an insane person, by or by consent of guardian).
The High Court Judge came to the conclusion that the headmaster had “committed no offence under Section 323 of the Indian Penal Code” in view of the provisions of Section 88 of the Code, “which finds support in these authorities.”
The appeal was allowed, the conviction and sentence set aside, and the headmaster acquitted. The judgment was delivered at a time when the influence of English law over the judiciary was still strong. Seen against this background, the NCPCR opinion about Sections 88 and 89 of the IPC gains significance. Instead of protecting children, the sections, in fact, were only being used to protect teachers from getting punished for committing violence against children. It also needs to be understood against the backdrop of some recent progressive judgments.
On this issue, which affects the physical and mental well-being of millions of boys and girls across the country, the judiciary has certainly come a long way since 1964. Interpreting old laws from new angles, several recent judgments relating to women, children, industrial labour, domestic workers, and people belonging to religious minorities and oppressed castes indicate a more healthy rights-based approach.
Take, for instance, the December 1, 2000 judgment of the Delhi High Court ordering a ban on the practice of corporal punishment in schools. Allowing a writ petition filed by the Parents Forum for Meaningful Education (PEFMA) and another, the Bench comprising Justice Anil Dev Singh and Dr. Mukundam Sharma struck down Rule 37 (1) (ii) and (4) of the Delhi School Education Rules, 1973, holding it violative of Articles 14 (Equality before Law) and 21 (Protection of Life and Personal Liberty) of the Constitution.
They also directed the State “to ensure that children are not subjected to corporal punishment in schools and they receive education in an environment of freedom and dignity, free from fear.”
Before striking down the rule, the judges took the high ground, quoting extensively from the Constitution of India, the Universal Human Rights, and the Geneva Declaration of the Rights of the Child. Stating that “subjecting the child to corporal punishment for reforming him cannot be part of education,” the judges called attention to the long-term consequences of the punishment such as disdain and hatred for teachers, development of a fear psychosis, irregular attendance at school, and an increase in the dropout rate.
They dismissed as untenable the concept of a school discipline based on physical punishment.
It is a pity that a decade later, there has been no follow-up from governments and the reactionary practice continues to the detriment of school education, particularly in rural areas, where a large number of innocent children, especially girls from deprived families, are hapless victims.
With education being in the Concurrent List of the Constitution and several High Courts banning corporal punishment, the Centre is in a position to take the initiative to ban the practice across the land.
Role of the media
Here the news media, particularly the Indian language press and television, can play an influential role. By uncovering facts on the ground, by setting up a communication network that encourages victims and their parents to safely report incidents of corporal punishment, and by providing more space and time to coverage of this issue, they can increase public pressure on schools and governments to act firmly and in accordance with the law, as humanely interpreted. Journalists should also probe the connection between the toleration of corporal punishment and school dropout rates, especially among girls from poor families in rural India. Covering such major issues affecting millions of children of school-going age must be taken up in a big way as part of the social responsibility of journalism and, in particular, its agenda-building function.