Corporal Punishment in India: A Primer14.139.58.147:8080/jspui/bitstream/123456789/1043/1...Corporal Punishment in India: A Primer Anuroopa Giliyal Foreword by : Prof. (Dr.) Ranbir

Corporal Punishment in India: A Primer

Anuroopa Giliyal

Foreword by :Prof. (Dr.) Ranbir Singh

National Law University, DelhiSector-14, Dwarka, New Delhi-110078, India

D E L H I

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D E L H I

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CONTENTS

Foreword i

Acknowledgments ii

Introduction iii

1. Section I Corporal punishment: An Overview 1

1.1 What is Corporal Punishment?

1.2 The Problem in India

1.3 Impact on the Child

1.4 Corporal punishment in different settings

a) Schools

b) Institutions

c) Homes and Families

2. Section II Legal Framework 15

2.1 Child Rights Law in India

2.2 Corporal Punishment and the Law in India

a) Indian Penal Code, 1860

b) Juvenile Justice (Care and Protection) Act,2000

c) Right of Children to Free and Compulsory

Education Act,2009

d) Goa Children’s Act,2003

e) Personal Laws

f) Protection of Women from Domestic Violence Act,2005

g) Tort Law

h) Ban on corporal punishment in schools

2.3 Role of Statutory Bodies

a) Commission for Protection of Child Rights

b) Committee for the Rights of the Child

c) Juvenile Justice Board

3. Section III International Standards and Best Practices 37

4. Section IV Recommendations for Law Reform 43

4.1 Proposals to achieve prohibition of all corporal

punishment of children

4.2 Amendments in the existing laws

a) Indian Penal Code,1860

b) Code of Criminal Procedure,1973

c) Juvenile Justice(Care and Protection) Act, 2000

d) Right of Children to Free and Compulsory

Education Act, 2009

4.3 Proposal for a comprehensive law

4.4 Alternative proposals in the interim period

4.5 Measures for effective implementation of the law

4.6 Conclusions

References 57

Appendix 63

i. List of cases

ii. List of legislations

iii. Relevant legal provisions from Indian Laws

iv. Excerpts of select judgments

v. Relevant provisions from the Convention

of the Child, 1989

vi. General Comment No.8 (2006) to the

Convention of the Child

vii. Summary report on status of ban all over the world:

Global progress towards prohibiting all

corporal punishment

FOREWORD

Every child has a right to be protected from all forms of violence. This

protection should be available in all spheres of children’s lives and the adults

who have the custody of children are responsible to ensure such protection. Yet,

in reality, all forms of violence including the one that is covered in this

monograph, corporal punishment is on the rise in all settings of children’s life.

On many occasions, it is the ‘so called’ guardian, a person having authority over

the child or in a position of trust is the perpetrator of such acts and children are

vulnerable in such situations due to their tender age or a dependency

relationship with that person.

In the international arena, torture and violence to any person, more so, to

children is severely condemned. The human rights instruments have criticized

torture in penal systems and any judicial or extra judicial violence. They also

recognize right to dignity, integrity and life free of violence and fear amongst

other things. Recently, in the 13th session of the briefings to the

Human Rights Council for the Universal Periodic Review of this phase, it was

stated from UK that corporal punishment of children breaches their rights to

respect for human dignity and physical integrity and to equal protection under

the law.

The UN Convention on the Rights of the Child, 1989 specifically addresses the

rights to protection, development, survival and participation of children. The

Convention also urges states to take measures towards protection of children at

home, institutions, work place and educational institutions. Further, it specifies

that no child should be subjected to torture or other cruel, inhuman or degrading

treatment or punishment. India being a signatory to the Convention has made a

commitment to protect the rights guaranteed under the Convention.

In India, numerous local and national level studies demonstrate that abuse of

children is widespread and that the law does not explicitly prohibit in many

settings, primary one being home. To complicate things further, there are

provisions under the criminal law that are interpreted to provide justifications to

protect the actions of adults. Corporal punishment is in violation of both the

human rights in general and specific rights of children laid down under the

Convention. Hence, addressing corporal punishment is important and measures

i

need to taken to sensitize people to the fact that violence against children is also

a human rights violation. In April, 2012, the University has also organised the

South Asia Consultation on Legislation to End all Corporal Punishment in

collaboration with the Global Initiative to End all Corporal Punishment, UK and

the National Commission for Child Rights, India, which is the genesis of this

work.

This monograph presents an overview of various aspects including the enormity

of the problem of corporal punishment of children and the legal remedies

available in the existing law. It also identifies many such areas that require

intervention through law reform and supportive measures to deal with the

menace of corporal punishment. Finally, options are also presented as

alternatives to tackle the situation.

Prof (Dr.) Ranbir Singh

Vice- Chancellor, National Law University, Delhi

ii

ACKNOWLEDGEMENTS

This work originated with the South Asia Consultation on Legislation to End all

Corporal Punishment of Children hosted and organized by the National Law

University, Delhi with Global Initiative to End All Corporal Punishment and the

National Commission for Protection Child Rights. A presentation put together

few months back for this consultation at NLUD is now developed into a

monograph with the support of many people.

I would like to thank National Commission for Protection of Child Rights for

asking the National Law School of India University (NLSIU), Bangalore to

depute me to the NLUD and to Prof. Venkata Rao, the Vice- Chancellor and

Prof. Nagaraj, Registrar NLSIU for wholeheartedly agreeing to depute me.

I am also grateful to NLUD especially to Prof. Ranbir Singh, Vice- Chancellor

and Prof. Krishna Deva Rao, Registrar at NLUD for giving me an opportunity to

be part of this process during my deputation. I would like to thank Mr. Peter

Newell, Coordinator of the Global Initiative, Dr. Shantha Sinha, Chairperson

and Mr. Lov Verma, Member Secretary of NCPCR, Ms. Karuna Bishnoi,

UNICEF and all other participants at the Consultation including representatives

fromother South Asian countries, practicing lawyers, the teaching faculty and

students at NLUD for their inputs that has contributed immensely in

strengthening the proposals for law reform.

My sincere gratitude to the team at Centre for Child and the Law (NLSIU) for

readily agreeing to depute and spare me for six months without which this work

would not have been possible.

I want to express my heartfelt gratitude to Prof Babu Mathew under whose

guidance this monograph was prepared. I thank him for encouraging me to

participate in the consultation, to venture into preparing this document and for

his continued support and guidance required for the completion of this work. I

would also like to thank him for the guidance he has given in the last 6 months in

all the tasks that were assigned to me.

I am also grateful to Dr. Sushila, Dr. Sarasu Esther Thomas and Aarti Mundkur

for their inputs to specific sections of this monograph. My special thanks to

iii

Roopa Madhav, for her critical comments on various drafts of this document

which has helped immensely to fi alise the document and bring it to this shape

and to Padma Krishnamachari for all her help with language and being a

constant support in many ways.

iv

INTRODUCTION

It is said ‘no violence against children is justifiable and all violence against 1children is preventable’. Yet, corporal punishment, a common form of violence

2against children is a regular phenomenon across culture, class, caste, gender

and education.

But Children are Different…..

‘When one uses para llels with the campaign against violence against

women, people respond: “But children are different”. Yes, of course

they are different. The babies and small children who, research

suggests are the victims of most corporal punishment in the home are

different in that they are very small and very fragile. Children’s

vulnerability, their developmental status, their dependence on adults

and the huge difficulties they face in seeking protection for themselves:

all these differences suggest that they should have more, not less

protection from being hit and hurt’. ‘It should be shaming to all of us

that children are the ones singled out in our laws for less protection 3from assaults on their fragile bodies, minds and dignity.’

The Author is a Researcher at the Centre for Child and the Law, National Law School of India University, Bangalore. This document was prepared during her deputation period with the National Law University, Delhi.

The author wishes to acknowledge the contributions made by participants of the South Asia Consultation on Legislation to ban all corporal punishment of children held on April 18th- 20th, 2012 at National Law University, Delhi. The feedback from the participants especially the teaching faculty at NLUD helped her crystallize and develop her ideas and recommendations for law reform which she had presented at the Consultation and subsequently formed part of the report (unpublished) prepared by Global Initiative to End all Corporal Punishment and shared at the South Asia Follow Up Regional Consultation on the UN Study on Violence Against Children held between 26th -30th May, 2012 at Colombo.

1 Pinheiro, Paulo Sergio, (2006) World Report on Violence against Children, United Nations Secretary -General’s study on violence against children, United Nations at www.unviolencestudy.org last accessed on 14th April, 2012. 2 Kacker,L, S. Varadan & P.Kumar,(2007)Study of Child Abuse- India 2007, New Delhi: Ministry of Women and Child Development at wcd.nic.in/childabuse.pdf last accessed on 12th March, 2012 . This study indicates that abuse of the children is present in all spheres of their lives including home, schools, working place, institutions and streets.3 Peter Newell, Co ordinator of Global Initiative to End all Corporal punishment, Speech on ‘Why is challenging all corporal punishment so important?’ February, 2009 at http://www.unicef.org/india/reallives_5388.htm last accessed on 21st July, 2012.

v

This document is divided into four major sections. In the first section, an

overview of the problem in general and data of incidence in different locations is

presented to demonstrate the gravity of this problem. The second section will

examine the law relating to corporal punishment of children in India, response

of the courts to the issue prior to and after independence, and developments in

the recent years. International standards laid down in the Convention on the

Rights of the Child and the laws in other countries are examined in the third

section. The last section recommends reform of the existing laws, proposes

alternatives to deal with the problem in the interim period and additional

measures for effective implementation of the law.

vi

SECTION - I

CORPORAL PUNISHMENT:

AN OVERVIEW

SECTION - I

CORPORAL PUNISHMENT: AN OVERVIEW

Corporal punishment of children is a common phenomenon in India. This

section substantiates this reality and briefly highlights the concerns that arise 4when punishment is meted out in various settings .

1.1 What is Corporal Punishment?

5The UN Committee on the Rights of the Child (Committee) views,“ ‘Corporal’

or ‘Physical’ punishment as any punishment in which physical force is used and

intended to cause some degree of pain or discomfort, however light. Most of

them involve hitting (“smacking”, “slapping”, “spanking”) children, with the

hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it

can also involve, for example, kicking, shaking or throwing children,

scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay

in uncomfortable positions, burning, scalding or forced ingestion (for example,

washing children’s mouths out with soap or forcing them to swallow hot 6spices)” . In the opinion of the Committee such corporal punishment is

invariably degrading.

7Most countries in the South Asian region do not permit corporal punishment

but through judicial interpretation a large number of perpetrators are protected

under law when instances are challenged. To illustrate this, interpretations of

provisions under the Indian Penal Code, 1860 relating to assault, hurt or similar

acts that is invoked in cases of corporal punishment can be examined. The letter

of the law does not make any distinction between adults and the children. The

Courts and the law enforcing authorities however respond differently when 8

perpetrators are parents, immediate family members or a person in loco

4 “Settings” is used to mean both public and private settings including institutions (custodial or otherwise), schools and family, thus covering all those involved with children in the settings: carers etc in institutions, teachers in schools and parents and relatives at home. 5 The UN Committee on the Rights of the Child is a body of independent experts that monitors the implementation of the Convention on the Rights of the Child by its State parties.6 UN Committee on the Rights of the Child, General Comment No.8, 2006: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading forms of Punishment (Ats.19; 28, Para 2;and 37 inter alia) 2 March 2007, CRC/C/GC/8, para 117 Countries such as Sri Lanka, Bangladesh & Pakistan have provisions similar to Section 88 & 89 in General Exceptions of the Indian Penal Code,1860.8 In India the jurisprudence in this area is still in its infantile stage and hence we do not have cases

9parentis, assumed to have acted for the benefit of the child. For instance, when

any of the above offence is committed against an adult, prosecution of the

accused and justice to the injured person become primary concern of the State

but when invoked for corporal punishment of child, Courts through 10

interpretation gave the benefit of defence to the adult and rarely recognize it as

an act of violence against the child.

Across the world, there are only 32 countries which have explicitly prohibited 11

corporal punishment of children by law . Corporal punishment of children is 12

either legally permitted or justified in many countries.

Human rights instruments and regional bodies have condemned all violence 13

against children and the Committee on the Rights of the Child has

recommended to all the State parties to prohibit corporal punishment and asked

them to report on the progress. While some countries have banned all forms of 14corporal punishment by law, India has gradually addressed the issue and

15 16prohibited corporal punishment in its penal system, in institutions and

where acts by parents and family members are challenged. Cases by teachers were challenged when there has been visible injury.9 ‘Loco parentis’ means ‘in place of a parent’. Reasonable chastisement is seen as an essential part of child’s upbringing. Parents and any person acting in the place of a parent is expected to discipline the child, if required, with punishments. Teachers are believed to play that role in school and hence consequences of their acts are interpreted as done in good faith for the benefit of the child and have availed the benefit of the defences under the Indian Penal Code.10 Section 88, the Indian Penal Code, 1860- Act not intended to cause death, done by consent in good faith for person's benefit : Section 89 of the Indian Penal Code- Act done in good faith for benefit of child or insane person, by or by consent of guardian.11 Summary of progress towards prohibition of all corporal punishment of children (May,2012) at http://www.endcorporalpunishment.org last accessed September, 2012.12 Many states in India had separate Education Acts and Rules laying out forms of corporal punishment that are permitted and also the procedure in which they are to be administered. Based on that, in cases that were challenged, the Courts considered the reasonability of the punishments that were inflicted on the children. 13 Corporal punishment was condemned in a series of decisions of the European Commission on Human Rights and judgements of the European Court of Human Rights; see in particular Tyrer v. UK, 1978; Campbell and Cosans v. UK, 1982; Costello-Roberts v. UK, 1993; A v. UK, 1998. European Court judgements are available at http://www.echr.coe.int/echr as cited in General Comment No.8 of the UN Committee on the Rights of the Child. See note 6 para 23: See also Arts 19 & 37, Convention on the Rights of the Child14 See note 1115 See Section 15, Juvenile Justice (Care and Protection) Act, 2000. This provision lays down the form of punishment that can be given to a juvenile in conflict with law. The punishments do not include any form of corporal punishment; See also note 60.16 Cruelty to children or juveniles in conflict with law is prohibited and is punishable under S.23 of Juvenile Justice Act, 2000; See also note 60

Corporal Punishment in India: A Primer2

17 18schools but is yet to deal with homes. Recently, the government of India has

made a commitment to end all corporal punishment of children in all settings 19including homes. Earlier in response to the second report, the CRC Committee

stated thus, “The Committee notes the decision of the New Delhi High Court of

December 2000 regarding prohibition of corporal punishment in the schools

under its jurisdiction, but remains concerned that corporal punishment is not

prohibited in the schools of other states, in the family, nor in other institutions

for children, and remains acceptable in the society.” “The Committee strongly

recommends that the State party prohibit corporal punishment in the family, in

schools and other institutions and undertake education campaigns to educate

families, teachers and other professionals working with and/or for children on 20

alternative ways of disciplining children.”

1.2 The Problem in India

A study undertaken by the Ministry of Women and Child Development

(MWCD) in 2007 in thirteen states revealed the gravity of this problem and the

high incidence of all forms of abuse of children. Of the total sample of over

12,000 children, 69% of them were physically abused. The study also found

high instances of emotional and sexual abuse. According to the study, an

overwhelming majority of children (65.01%) reported being beaten at school 21

which meant two out of three children are victims of corporal punishment.

The study also indicated that abuse of children is seen in all spheres of life

including home, school, work place, care institutions and on the streets. 22

Punishing children is considered an acceptable way of life by many in India;

17 Section 17, Right of Children to Free and Compulsory Education Act, 200918 India does not have any specific law that permits corporal punishment at home but it does not explicitly prohibit it either. Like in many other cultures, a home is considered a private space in India and interference as invasion of privacy. Hence, in the case of a child subjected to cruelty at home, neighbours or even the child protection agencies are reluctant to intervene solely on the basis of suspicion without sufficient evidence to establish the same. Further, the law also does not expressly make it mandatory to report such a case.19 Ministry of Women and Child Development, (2011), Third and Fourth Combined Report on the Convention on the Rights of the Child, Government of India pp 79-81 at http://wcd.nic.in/crc3n4/crc3n4_1r.pdf. accessed on 24th April, 2012; See also 3 (ix) of the National Policy for Children 1974, Government of India, Department of Social Welfare, New Delhi, the 22nd August, 197420 CRC/C/15/Add.228, Concluding Observations: India, para s 44&45, 26 February 2004.21 See generally note 2. The study showed that of the total children being beaten in schools, 54.28% were boys and 45.72% were girls.22 Saath Charitable Trust, (2006) Impact of Corporal Punishment on School Children: A Research

Corporal Punishment: An Overview 3

23with a majority of them experiencing it in schools and homes. Parents believe it

24as an essential part of upbringing of a child. Only a few children, of over 6,000

interviewed, denied having experienced corporal punishment in schools, thus

accounting for 99.86% of the sample in a study by the National Commission for

Protection of Child Rights (NCPCR) conducted in 7 states of the country in the 25

age group of 3-17 years. It is also found to be prevalent on a large scale in

alternative care institutions with 56.37 % of the sample being subjected to 26 27physical abuse by staff members and work settings.

Traditional views on child rearing have largely contributed to this attitude and

thus treating abuse of children in familiar settings as trivial and not needing

intervention. Schools are expected to discipline children through whatever

means. Guardians and family members are believed to have full control over

their children and are allowed to exercise their will over them. The continuance

of corporal punishment at homes can also be accorded to the lack of any legal

sanctions on violent parental behavior and the reluctance of the law enforcing

authorities and general public to interfere in domestic affairs of others.

Corporal punishment can be cruel and humiliating and has both short term and

long term negative physical and psychological impact on the child. In recent

years, media reported several instances that have affected children so deep to be 28manifested in very disturbing ways. Despite this, the issue has not been dealt

with the seriousness it deserves and our country has been slow to put in place

mechanisms to check violence against children in all settings.

Study Plan International (India) New Delhi pp. 55, 64 at planindia.org accessed on 24th April, 2012. This study was undertaken in one district each of 4 states covering 41 schools. The research team had interacted with over 1,500 school going children.23 National Commission for the Protection of Child Rights, (2010), Eliminating Corporal Punishment in Schools, New Delhi, India. See also notes. 2 &2224 See CRC/C/100, Aware- raising, Sensitization and Training, para 687, 14 November 2000. The CRC urges the nation states to address cultural acceptance of violence against children and to promote “zero tolerance” of violence. 25 See note 23 p 1426 See note 2 p 55.27 See note 1, pp 57-61: See generally Tulir, Centre for Prevention and Healing of Child Sexual Abuse (2006), Abuse among Child Domestic Workers: A Research Study in West Bengal, Save the children UK.28 The Telegraph, Shadow of fear in boy’s death, 14th February 2010 , Calcutta, India http://www.telegraphindia.com/1100214/jsp/bengal/story_12104211.jsp- accessed on 20th June 2012; The Times of India, 15-yr-old Chennai boy stabs teacher to death in classroom,9th February,2012, Chennai http:/ /art icles. t imesofindia. indiatimes.com/2012-02 09/chennai/31041128_1_science-teacher-classroom-boyaccessed on 20th June 2012


The National Policy on Education 1986 (modified in 1992) stated that “corporal 29punishment will be firmly excluded from the educational system…….” but

this did not make much difference in the school situation. Only 17 states/union

territories in India have prohibited corporal punishment in schools following 30the recommendations in the National Policy. State education rules had actively

31promoted corporal punishment as disciplinary measures describing the mode

in which corporal punishment could be administered by the teachers. This gave

them free rein to mete out excessive punishments often causing physical injuries

to children. In certain instances, Courts were approached challenging the

reasonableness of such acts under the Indian Penal Code (IPC). Although, the

law applies to adults and children alike, through interpretation, the general

exceptions contained in the IPC have been invoked in these cases giving the

benefit of the defence to adults accused of such offence. As per this defence,

actions done in good faith for the benefit of another do not become an offence.

Courts had consistently given the benefit of this justification to teachers in cases

of corporal punishment in schools. The trend has changed in the recent years

with High Courts condemning acts of violence to children and striking down 32

provisions in law that permitted corporal punishments in schools.

Apart from Section 23 of the Juvenile Justice (Care and Protection of Children) 33

Act, 2000(JJ Act) that makes cruelty to a child a punishable offence, there is no

specific provision in our law relating to corporal punishment of children that

provides penal sanctions. The Right of Children to Free and Compulsory

Education Act, 2009(RTE Act), has also brought in provisions that prohibit

29 Ministry of Human Resources Development (1998), National Policy of Education 1986 as modified in 1992, para 5.6, Government of India30 UNICEF, The Right to Protection and Dignity End Corporal Punishment available at http://www.unicef.org/india/child_protection_5386.htm last accessed on 26th june,2012 31 One such provision, Rule 37 (1) (a) (ii)& (4) of Delhi school education Rules, 1973 which laid down the disciplinary measures that could be taken by the teachers was struck down as violative of rights guaranteed under the Articles 14& 21 of the Constitution of India in Parents Forum for Meaningful Education and Another v. Union of India and Another by the High Court of Delhi AIR 2001 Delhi 21232 Parents Forum for Meaningful Education and Another v. Union of India and Another by the High Court of Delhi AIR 2001 Delhi 212; See also In Re: Rekha Bhakat 2010 CriLJ 113233 Section 23, Juvenile Justice (Care and Protection) Act reads ‘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 any manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine or with both’.


34physical punishment and mental harassment to the child. It provides for

disciplinary action against personnel of educational institutions who violate this

provision. Although the government has confirmed its commitment in the

country report to the CRC Committee, no concrete actions have been taken

against violations that take place in home settings.

1.3 Impact on the Child

Studies from different parts of the world show that corporal punishment does

not have any positive impact on the child. On the contrary, a number of short

term and long term negative impacts have been identified as consequences of

corporal punishment. Depending on the settings in which the child was hurt, the

impact may vary slightly but otherwise, it is well established that these

punishments can have a physical impact, cause psychological distress, 35

permanent physical disability and long-term physical or mental ill-health.

Physical impacts are the most obvious and may include mild or serious wounds,

bruises, fractures, or even deaths (succumbing to injuries). There are also

instances where the impact of threat of punishment or the actual punishment has

been so great on the children that they even end their own lives. Several studies

have found corporal punishment as major reasons for school drop outs and 36discontinuing education. The Convention on the Rights of the Child urges the

States to take measures to encourage regular attendance at schools and reduce 37drop- out rates.

The American Academy of Pediatrics has noted that “corporal punishment may

adversely affect a student’s self-image and school achievement and it may

34 See note 1735 See note 1, pp 63 & 128-13036 See note 1, p 130; See generally Save the Children, Ending Corporal Punishment of Children: Making it happen, September 2011 at http://www.crin.org/docs/resources/treaties/crc.28/SC-UK-ES-S.pdf last accessed on 20th June, 2012. See also Global Initiative to End all Corporal Punishment, Ending legalized violence against children- Global Report, 2006, p 30 a at http://nospank.net/globalreport.pdf last accessed on 22nd June, 2012 ; Addressing the issue of corporal punishment becomes important from the point of making right to education a reality. To ensure that right to education is fully implemented, it should not only be free and compulsory but create an environment in school that ensures that children do not drop out of school due to fear of punishments of or of teachers.37 Art 28(1)(e), Convention on the Rights of the Child ; See also Art 28(2), Convention on the Rights of the Child


38contribute to disruptive and violent behavior.” There are also a number of

studies that establish a close link between corporal punishment and increase in 39“aggressive, delinquent, criminal and anti social behavior in children”.

Corporal punishment has been found to be consistently related to poor mental

health; including depression, unhappiness, anxiety, and feelings of

hopelessness in children and youth. Factors most strongly associated with use of

corporal punishment by a caregiver are approval of corporal punishment,

experience of physical punishment as a child, anger reactions to conflict with

the child; attributions of the child’s behaviour to willful defiance, and marital 40and parenting stress .

1.4 Corporal Punishment in Different Settings

As noted above, punishment to children is not an uncommon occurrence and is

meted out in almost all different situations they encounter in their young lives.

In this section, the problems and issues that arise in each of the settings and the

protection available to the children in law (or lack of it) are discussed in brief.

a) Schools

Schools play a key role in the lives of children in their formative years as

children spend a considerable amount of time there. Traditionally, schools were

believed to be vested with the responsibility of disciplining the child and in

extension of the same principle; teachers were expressly authorized to

administer corporal punishment to achieve the desired goal. Many states in

India had separate Education Acts and Rules laying out forms of corporal

punishment that are permitted and also the procedure in which they are to be

administered. Based on that, in cases that were challenged, the Courts

considered the reasonability of the punishments inflicted on the children. For

38 American Academy of Pediatrics, Committee on School Health (2000),“ Corporal Punishment in Schools,”,Pediatrics 106:2 343 at http:/ /pediatrics.aappublications.org/ content/106/2/343.full.pdf+html last accessed on 4th July, 2012.39 Thompson Gershoff, Elizabeth( 2002), “Corporal Punishment by Parents and Associated Child Behaviors and Experiences: A Meta-Analytic and Theoretical Review”, Psychological Bulletin, pp 539–579, 4(128)40 United Nations Educational, Scientific, and Cultural Organization, (2005), Eliminating Corporal Punishment – The Way Forward to Constructive Child Discipline, Executive Summary, p 2 as cited in Human Rights Watch & American Civil Liberties Union (2008), A violent Education- Corporal Punishment of children in US public school, pp 54-55, USA


instance, in Delhi corporal punishment was recommended as a disciplinary

measure in schools under rule 37 (1) (a) (ii)& (4) of Delhi School Education

Rules, 1973 until it was struck down as violative of rights guaranteed under the

Articles 14& 21 of the Constitution of India in a PIL before the Delhi High Court

(Parents Forum for Meaningful Education and Another v. Union of India and 41Another by the High Court of Delhi) in 2001.

The forms of punishments in schools are both physical and psychological and 42often go hand in hand which may be degrading to the child. Most cases go

43unreported unless it results in visible injuries requiring medical attention and

such cases are comparatively lower than the actual incidence of corporal 44

punishment. Cases of physical injury have been challenged in the Courts and

till recently, High Courts have found it apt to treat such actions by a teacher as 45

protected under the Indian Penal Code.

Although there is evidence that the situation in schools is bad, a child faces the 46 47

worst form of physical abuse at home as compared to other settings. Most

common forms of punishment inflicted by teachers in schools are pinching,

pulling hair , boxing the ears, beating (with cane, with scale on the hand or on the

back), slapping on the cheek, threatening to be physically violent, made to stand

(outside classroom, with hands up, on the bench, on one leg) or to run several

rounds in the playground, squatting, kneel down, knotting the hair, not allowing

to use toilet, using abusive words, name calling based on caste, vulgar

language(abuse involving close relationships) and abusive language(with 48

sexist undertones) with girls. Children are also at times placed in a

41 See note 3242 See note1, p 116.43 There may be several reasons for underreporting of cases of corporal punishment against children. One of the major reasons is that a child is dependent on a guardian or parent to take appropriate action and the response from their end is largely dependent on their own views and attitude towards corporal punishment. 44 See note 2545 See 2.2 (a) of Section II ‘Legal Framework’ of this document for a detailed reference to judicial interpretations.46 See note 2, p 47. This study showed 50.9% children were subjected to physical abuse by their mothers while 37.6% children faced abuse in hands of their fathers and both put together, almost 89% children were subjected to physical abuse by parents.47 See note 2, p 48. The study revealed that the percentage of physical abuse inflicted by family members (48.7%) was higher than that of others (34.0%). In other settings, schools topped the list. The ‘other settings’ as referred in this study are teachers, employers, care givers, NGOs, peers etc48 See notes 22& 23. With minor variations in the types of punishment, two studies found these to be the common forms of punishments in schools.


disadvantageous position and experience corporal punishment

disproportionately in schools, viz., frequency and severity is greater, on the 49 50 51 52basis of age, sex, disability or caste.

b) Institutions

A large number of children come under the supervision of care authorities for a

short period and in several cases even for a longer duration. According to some 53estimates, as many as 8 million of the world’s children are in residential care .

Relatively few are in the institutions because they have no parents, but most are

in care because of disability, family disintegration, violence in the home, and 54

social and economic conditions.

Children also end up in the system for a variety of other reasons such as

abandonment, inability of the family to support the child, or absence of a kin to

take care of them if parents are dead, or the State in exercise of its duty to provide

care and protection or for offences committed by the child, takes them into 55

custody. Care institutions may include orphanages, special care homes, mental

health institutions, children’s homes or juvenile justice institutions which are 56

likely to expose them to other agencies such as police.

Globally, large scale institutionalization is discouraged recognizing the

49 See note 2 at p 53. It was found that amongst those children reporting corporal punishment in schools, 39% children are in the age group of 5-12 years followed by 33.47% children in the age group of 13-14 years and 27.53% in the age group of 15-18 years.50 See note 2, p 52. Out of those reporting corporal punishment in schools in this study, 54.28% were boys and 45.72% were girls.51 See note 38, p 552 De, Anuradha, and Jean Dreze. 1999. Public Report on Basic Education in India (PROBE) New Delhi: Oxford University Press on as cited in note 1, p 11. This report found that higher caste teachers were inclined to humiliate children from Dalit (‘untouchables’, or the lowest of the four castes) and other lower castes by labeling them as dull and incapable of being educated. : See also, note 23, p 27. This recent study also showed discrimination based on caste and children belonging to certain castes experiencing higher punishment.53 Dunn, Andrew, Elizabeth Jareg and Douglas Webb (2003), A Last Resort: The Growing Concern About Children in Residential Care, International Save the Children Alliance, London, http://www.savethechildren.org.uk/sites/default/files/docs/A_last_resort_1.pdf last accessed 2nd July, 2012 54 A/61/299, Protection and Promotion of Rights of the Children, para 55, 29th August 200655 See note1, p 17556 Specific mention of police is made here considering the high risks of torture that children who come in contact with law are at. The periodic reports published by the Asian Centre for Human Rights indicate the prevalence of torture of children in the custody. Reports are available at http://achrweb.org/reports.htm last accessed on 20th April, 2012.


resultant risks such as developmental damage, the danger of abuse and 57exploitation, social consequences and lack of quality care. In most of the

closed and isolated institutions, the child’s entire life; education, health services

and work, leisure and sleep is in the same place, and the institutions are very

much cut off from the rest of the community as is the case in large number of

institutions in India. In consonance with the international standards, the

Juvenile Justice Act, upholds the view that institutionalization should be the last 58

resort and only after proper inquiry.

59Cruelty towards children is prohibited in schools by law, and India has also

adopted a principle in the Juvenile Justice Act, that no harm shall be caused to a 60

child once he comes in contact with the law. Corporal punishment as a punitive

action for alleged crimes is prohibited under the Juvenile Justice Act but in

practice a child gets beaten in the institutions for minor infractions. Studies

indicate that children in care institutions are subjected to abuse by staff 61

members.

c) Homes and Families

Corporal punishment in the home settings is treated as a very delicate area for

intervention and has largely remained unaddressed. The Committee on the

Rights of the Child is of the view that prosecution and other formal interventions

(for example, to remove the child or remove the perpetrator) should only

proceed when they are regarded both as necessary to protect the child from 62significant harm and as being in the best interests of the affected child.

Family, the fundamental unit of society and the “natural environment for the

growth and wellbeing of all its members and particularly children, should be

afforded the necessary protection and assistance so that it can fully assume its

57 See Save the Children, (2009) Keeping children out of harmful institutions: Why we should be investing in family- based care, pp 6-10,UK 58 See Principle of last resort- Rule 3(2) XII, Juvenile Justice (Care and Protection of Children) Model Rules, 200759 See note 1760 Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreatment)-Rule 3 (2) VI, Juvenile Justice (Care and Protection) Rules, 2007.61 See note 2, p 55. The study found that 56.3% of children in the institutions were subjected to abuse by staff members. Within the institutions,

62 See note 6, para 41

the institutions for children in conflict with law had higher incidences of abuse (70.21 % ).


63responsibilities within the community”. It is also expected to be a haven for

children and a space that protects children from any adversities from outside.

Families in India have higher incidences of corporal punishments of children as

compared to other spaces and the reality is that they are being abused by their 64own parents. Studies indicate that most severe and cruel punishments are

65meted out at homes as compared to the other settings. Without disputing that,

one should tread very carefully in this private space on a case to case basis, it is

also crucial to note that homes and family happen to be one space where the

child is within the total control of the parents and also in the absence of an

effective law, it is a space where parents are not answerable to anybody and the

child could thus be in immense danger and not be protected.

Hitting with hands, fists or with objects (wooden, plastic or metallic objects),

shaking infants, burning, stabbing and kicking and pulling ears are some of the

common forms of punishment at home. There seems to be a correlation between

the age and frequency and severity of punishment and the younger age group 66children seem to experience it more.

Considering the high prevalence of abuse against children, it is imperative that

India should in furtherance of its commitment take measures to make all

violence against children punishable under law without any exception.

63 Preamble, the Convention on the Rights of the Child, 198964 See note 4665 See note 47;See also note 22, p 5666 See note 2, p 50


SECTION - II

LEGAL FRAMEWORK

SECTION - II

LEGAL FRAMEWORK

Few decades ago, there were legislations relating to school education that

expressly permitted corporal punishment as disciplinary measures and also laid 67down the procedure and mode in which it is to be administered to children.

While the High court of Delhi struck down such provisions from the Delhi

Education Act, many other states have made necessary amendments to their

State Acts. Although, currently there are no provisions that promote corporal

punishment in any setting in India, the mere existence of certain justifications in

law are creating a problem. As seen earlier, there is large scale violent

punishment administered to children in all sectors and adults often get away

using the defences available under criminal law.

Currently, the legal response to corporal punishment is a combination of

provisions prohibiting cruelty to children in sectoral legislations and relevant

provisions in the Indian Penal Code, Juvenile Justice Act, Protection of Women

from Domestic Violence Act (PWDV Act) and the personal laws. Before

examining the legal provisions that prohibit or prevent corporal punishment in

the country, it is useful to understand the limited legal architecture within which

child rights are sought to be protected.

2.1 Child Rights Law in India

As laws pertaining to children and their rights are not covered by a single

comprehensive law, violation of rights is dealt under specific provisions relating

to children in general legislations. A few special legislations deal with child

rights such as child labour, child marriage, juvenile justice, right to education,

sex selective abortions and sexual offences. Several other critical issues such as

sex trafficking, guardianship, adoptions, maintenance, hurt, assault, etc are

dealt with under a combination of laws and unless specifically laid down, they

are dealt with by the regular civil or criminal justice system.

India being a signatory to the Convention on the Rights of the Child has made a

67 Madras Education Act and Rules, Bombay Education Act and Rules and Delhi Education Act and Rules, 1973 are some such legislations under which corporal punishment by teachers have been challenged in the past.

commitment to protect the rights recognized by the Convention and to take

appropriate legislative, administrative and other measures for the

implementation of those rights. A positive step forward in this direction was the

Children’s Code Bill, 2000 prepared by the National Expert Group on Child

Rights under the Chairmanship of Justice V R Krishna Iyer. In 2009, there was

also an attempt to consolidate all provisions relating to offences against children

in the Prevention of Offences against the Child Bill (POAC Bill). However, both

these efforts were aborted at the pre- legislative stage.

The sub group set up to propose amendments to Juvenile Justice Act, has drafted

a comprehensive provision on corporal punishment in the Act. This is a

modification of the provision that was earlier suggested in the POAC Bill. The

State of Goa is the only exception, with a specific legislation titled ‘The Goa

Children’s Act, 2003’ bringing in all violations of child rights under one

legislation and has provisions for an exclusive adjudicating body i.e., a

Children’s Court to hear cases against the children. It has made corporal

punishment in schools an offence and mandates the State to take adequate

measures to protect a child from any form of abuse. At the national level, efforts

to have an exclusive legislation have not materialized till now.

2.2 Corporal Punishment and the Law in India

Legal provisions in the Indian Penal Code, Juvenile Justice Act, PWDV Act and

RTE Act form the basis of law relating to corporal punishment of children in

India. This section examines provisions that may be invoked in a case of

corporal punishment. Cruelty and definitions of abuse are broad enough to

cover instances of corporal punishment within their meaning. Hence, legal

remedies that can be sought for in cases of cruelty and domestic violence to

children are also discussed in this section.

a) Indian Penal Code, 1860and the Code of Criminal Procedure, 1973

A majority of cases involving corporal punishment are challenged under 68

Chapter XVI- ‘Of Offences Affecting the Human Body’ of Indian Penal Code .

68 The entire Indian Penal Code is divided into chapters consisting of offences relating to one specific area. This particular chapter ‘Offences affecting bodily injury’ is further divided into offences affecting life, causing miscarriage and injuries to unborn child and exposure of infants to danger, causing or actions that may cause bodily injury or threat to cause bodily injury, limiting mobility, kidnapping related and sexual offences.


As the title suggests, the offences in the chapter largely relates to physical

injuries and provisions and procedures that are applicable to adults are invoked

in the case of corporal punishment of children before the same adjudicating

bodies that hear cases of adults.

Provisions applicable under the Indian Penal Code can be broadly divided

into offences that,

i. cause bodily injury i.e., voluntary hurt (s. 323), grievous hurt( s.325),

criminal force (s.352);

ii. threat to cause bodily injury i.e., Assault (S. 352);

iii. restrict the mobility of a person i.e., wrongful restraint(S. 341) and

relating to wrongful confinement (Ss. 342, 343 344)

iv. Acts that result or that could result in death i.e., causing death through

negligence (s.304 A) or abetment of suicide (s.305)

On the basis of the severity of the punishments, they can be further divided into

offences-

(a) with punishments upto one year with or without fine (Ss.323,341,342&

352)

(b) with punishments over one year (Ss 304A,325,343&344)

(c) with death, life imprisonment or minimum of ten years imprisonment

with fine (S.305)

All the offences in the lists (a) and (b) above are bailable and are heard by the

Magistrate’s Court and some of them from list (a) and all of them from (b) and

(c) are cognizable in nature. This means that the adults accused of such offences

may be arrested without a warrant. Barring Sections 304A and 305, all offences 69

are compoundable, which means they can be compromised by the person

against whom the offence has been committed or in the case of a child, by any 70person who is competent to contract on behalf of such child. In some cases,

such offences can be compounded only with the permission of the Court.

However, in all offences against a child, prior permission of the Court is

mandatory.

69 See section 320, The Code of Criminal Procedure, 1973. This provision provides a list of offences under the Indian Penal Code that may be compoundable with or without the permission of the Court.70 Section 320(4), The Code of Criminal Procedure, 1973. This provision lays down procedure to be followed for compounding of offences in case of a person below the age of eighteen years.

Legal Framework 17

The existing criminal law does not have a clear provision for prosecuting a

person who has caused mental injury to a child. The Code is focusing more on

overt physical acts; acts that result in visible pain and injuries. The lacuna in

Indian Penal Code is also that it is not equipped to address the range of corporal 71 punishments administered to children listed earlier.

72The criminal law also applies the principle of de minimus non curat lex , and

thus corporal punishment unless resulting in considerable amount of pain or

injury would not have a cause for criminal prosecution. The law enforcement

authorities require a lot of persuasion to take the case seriously which is time

consuming and expensive and can act as a deterrent to initiate the process. The

criminal justice system may use the same yardstick for adults and children alike

if special protection clauses are not laid down. The above situation coupled with

the guardians’ reluctance to register an act that may seem insignificant to them

also lead to underreporting of such cases.

Many offences listed earlier are compoundable giving an opportunity to the

perpetrator to offer settlement. As experience suggests, the child’s family tends

to settle for a nominal sum of money to avoid the long drawn procedure in the

Court and the Courts are happy to dispose of as many cases as possible within a

short span of time. Although it is only with the permission of the Court that a

case involving a child is compromised, it is rare that a decision is taken in

consultation with the child disregarding the right to participation of the child 73

recognized under the Convention .

The major hurdle in criminal law for successful prosecution is the defences 74

under Chapter IV under Sections 88 & 89 in Indian Penal Code. Section 88 is

available to any act not intended to cause death and done in good faith for the

benefit of any person giving express or implied consent to suffer the harm.

Section 89 is available in acts done in good faith for the benefit of a person

below twelve years by or by consent of the guardian. These defences are used in

cases of corporal punishment to prove that injuries, if any, are the result of an act 75that was done in ‘good faith’ for the benefit of the child .

71 See note 4872 This is a latin maxim which means the ‘law does not consider itself with trifles’.73 See Article 12, Convention on the Rights of the Child74 See note 1075 See 4.1 of Section IV Recommendations for Law Reform for the proposed changes.


Moderate and Reasonable punishment in schools

Till recently, the validity of the rules that permit corporal punishment in schools

was not questioned for very long, instead, cases were before the Courts to

challenge the reasonability of a certain act of corporal punishment of the

teacher. The practice of corporal punishment was not challenged validates the

view that the guardian’s attitude towards an offence of this nature is very critical

to initiate such proceedings.

For several years the Courts have opined that moderate and reasonable corporal

punishment (borrowing from the English law notion of ‘reasonable

chastisement’), used to enforce discipline in schools, is protected under these

provisions. Many teachers have taken undue advantage of this defence even

when corporal punishment in schools has resulted in injuries and physical 76damage to children . The jurisprudence in this area is still in its infant stage and

therefore no prosecution has been initiated against the parents.

When cases are challenged, judiciary generally considered such matter with an

interest to justify the acts of teachers as done in ‘good faith’ and that it was

moderate and reasonable considering the task they were responsible for viz.,

disciplining the child based on the implied authority delegated to them by a

parent or guardian.

With respect to the applicability of defences and on the fact as to the amount or

nature of physical force which a school- master is entitled to use, Madras High 77

Court judgment in Sankunni v.Venkataramani is the first case. In this case,

based on the English Court decisions the Court decided that ‘a school teacher as

delegate of the parent may for the purpose of correcting the child inflict

moderate and reasonable corporal punishment’.

The instances brought to court in the early years after independence also

continued to believe in the same principle and indicated a certain tolerance

towards corporal punishment. The reasoning in the case below illustrates the

76 This defence was allowed in two cases where the child was beaten badly. In one case the child has had a loose tooth as a result of fist blows and suffered contusion of 6” x ½ in another case. See Ganesh Chandra Saha v.Jiw Raj Somani AIR 1965 Cal 32: 1965 CriLJ 24:M. Natesan v. State of Madras and Anr AIR 1962 Mad 216.77 AIR 1922 Mad 200 : AIR 1922 Mad 200: MANU/TN/0097/1922

Legal Framework 19

extent to which a Court interpreted the provision to provide the benefit of

defence under Section 88 to a teacher.

78In the case of Ganesh Chandra Saha v. Jiw Raj Somani, a child aged thirteen

years was beaten with a cane and was given fist blows by a teacher for having

stolen a book of another child. This punishment resulted in minor injuries and a

loose tooth and the High Court of Calcutta while applying Section 88 of Indian

Penal Code opined thus…. ‘From the facts it cannot be said that the beating was

intended to cause death’. ‘Beating was, clearly enough, for correcting him so

that he may no more commit theft in future. The beating must, therefore, be said 79

to have been for the benefit of the complainant.’

On the point whether the action was done in good faith the Court stated that

‘There were some strokes with a cane and there were some fists and blows

too…….’. ‘One tooth was found loose and that could have been caused by some

blow. But from this it cannot be said that the action of the petitioner was mala

fide i.e., not in good faith.’ The court further reasoned that ‘There is no doubt

that the petitioner's motive was to correct the complainant for his future good 80and to maintain discipline in the school,’

In response to the argument that the rules laid down in the circular sent by Board

of Secondary Education was not followed, the Court stated ‘This circular does

not totally prohibit corporal punishment but directs the Head Master to exercise

proper restraint when inflicting corporal punishment. Corporal punishment,

according to this circular should be administered to inflict pain only without any

bodily injury. There has, however, been some bodily injury in this case. But

merely because the petitioner exceeded the limits prescribed by the

administrative circular of the Board of Secondary Education, it cannot be said

that the petitioner has deprived himself of the protection given to him under 81

Section 88 of the Indian Penal Code.’

Since the child was above twelve years, the Court opined that ‘I have, however,

no doubt that implied consent to suffer such beating should be presumed from

the fact that the complainant was sent to the school for his education’ and further

78 AIR 1965 Cal 32: 1965 CriLJ 24.79 Id, para 680 See note 78, para 781 Ibid


added ‘Then again when a boy over 12 years of age himself goes to a school it

should be presumed that he gives an implied consent to subject himself to the

discipline and control of the School authorities and to receive such reasonable

and moderate corporal punishment as may be necessary for his correction or for 82maintaining School discipline.’

83Relying on the views of the Bombay High Court in G.B.Ghatge v.Emperor the

court found that the teacher had not committed any offence under Section 323 of

the Indian Penal Code in view of the provisions of Section 88 of the Code.

84In another case, the Court opined ‘It cannot be denied that having regard to the

peculiar position of a school teacher he must in the nature of things have

authority to enforce discipline and correct a pupil put in his charge. To deny that

authority would amount to a denial all that is desirable and necessary for the 85

welfare, discipline and education of the pupil concerned,’

86Recently, the High Court of Kerala in Abdul Vaheed v. State of Kerala allowed

the defence in a case where a teacher in a Madrassa beat a child on his back side

stating that ‘It is the duty of the teachers to have a restrained and controlled

imposition of punishments on the pupils under their care and charge. Unwieldy,

uncontrolled and emotional attacks or actions on their part cannot be accepted.

However, in this case, a Madrassa teacher, petitioner herein, gave beatings on 87

the gluteal region, only to make him to adhere the standards of Madrassa.’

However, this tolerant approach is now set to change as seen in Hashmukh Bhai 88v. Gokal Das Shah (2008) wherein the High Court of Gujarat rejected a similar

plea. In this case, the child from a Scheduled Caste was given fist blows by a

teacher and was alleged to have said insulting words relating to his caste for

starting the teacher’s scooter which was parked in the school compound. His

father was called to the school for a case of indiscipline of his child and was

warned that he will be rusticated if this was repeated. The child was found dead

on the railway track next day. In this case, the Court rejected the argument of the

82 See note 78, para 883 AIR 1949 Bom 226:MANU/MH/0153/194884 M. Natesan v. State of Madras and Anr AIR1962Mad216: MANU/TN/0243/196285 Id, para 586 2005CriLJ2054: ILR2005(1)Kerala452: 2005(2)KLT7287 Id,para 888 2009 CriLJ 2919: 2009GLH(1)526

Legal Framework 21

State that the teacher was guilty of abetting his suicide but rejected the plea of

defence under Sections 88 & 89 Indian Penal Code. The Court stated that

‘Corporal Punishment to child, in present days ………… is not recognized by

law. It is an archaic notion that to maintain discipline, child can be punished

physically by the teaching staff because of implied consent by the parents or 89

guardian’.

The Court also stated that the judgments which were considered authorities by

the Courts for a long time and referred by the teacher’s lawyer in his case did not

have relevance in the present time. ‘It must be noted that the decision of the

Bombay High Court in the matter of G.B. Ghatge (supra) is a decision before the

Constitution of India came into force. We respectfully disagree with the

principles laid down by the High Court of Calcutta and High Court of Madras

(supra)’ and added that ‘…….. accepting the principle as has been advanced by 90the Appellant's Counsel would be to put clock back years previous’.

Further it was stated ‘the trend of law is now changed and the colonial and

ancient principles of beating by teachers to the students no more get any

recognition. It is universally felt that children can be corrected by correctional

measures than physical punishment and, therefore, the defence that the case was

covered by exceptions, as mentioned in Sections 88 and 89 of the Indian Penal 91Code, has no relevance at all.’

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

Justice Act)

The current Juvenile Justice Act, replaced Juvenile Justice Act, 1986 and was

again amended in 2006. The Act covers two major sections of children viz.,

children in need of care and protection (CINOCAP); and juveniles in conflict

with law (JCL).

The Act was passed with an objective to consolidate and amend laws relating to

these children and also to provide care, protection, treatment and rehabilitation

services to them. Further, it was passed with the objective of adopting a child

89 Id, para 1990 Ibid91 Ibid


friendly approach while adjudicating and disposing cases relating to such 92children.

Section 23 of the Act criminalises cruelty to juvenile or child by a person who

has the custody or control over the child. The Preamble of the Act appears to

have created a divided opinion as to the scope of the provision and its

applicability to children who are not in state custody. The seemingly restricted

language of the preamble makes only the authorities responsible under the Act.

There is no problem however, in extending this provision to children in need of

care and protection and juveniles in conflict with law who have appeared before

the competent authorities irrespective of who has the custody of the child after

the competent authority has taken cognisance of the case.

The scope of Section 23 of the Juvenile Justice Act is not clear and is not tested

in the Courts till date for overt acts of cruelty. There is one case that has applied

this provision with relevant provisions of the Indian Penal Code to an omission

to take necessary steps to protect the children from harming themselves.

In Prafulbhai J.Vaghela and Anr.Vs. Pankaj Srikrishnakumar Saxena, Gruhpati 93

and Ors , the Gujarat High Court applied the provision (specifically with

respect to neglect) where two children studying in a boarding school went

missing and then found dead two days later on the banks of the river behind the

school. In this case, the accused had made an application to quash the FIR that

was filed against them with respect to the death of two children who went

missing from the Gurukul that the accused were running. While the Court

reasoned on various issues, with respect to applicability of S. 23 to the given

situation felt that the negligence of school authorities are also covered within the

Juvenile Justice Act. The Court hence opined that S. 23 of Juvenile Justice Act

would also be applicable to the accused along with provisions under Indian

Penal Code. After reasoning how the provisions of the IPC did not protect the

school authorities, it also opined that ‘It is further alleged that accused were

managing the Gurukul. They were responsible for security of the students. They

have failed in ensuring their safety. They have thus committed offence also 94punishable under Section 23 of the Juvenile Justice Act.’

92 The preamble, Juvenile Justice (Care and Protection) Act, 200093 MANU/GJ/0030/2011. The Court in an application for quashing of FIR rejected the application with the above reasoning.94 Id, para 14

Legal Framework 23

Corporal punishment is not permitted in the penal system under any law. Section

23 of the Act as discussed earlier and Rule 3 of the Model Rules 2007 in

Fundamental principle VI- Principle of Safety (no harm, no abuse, no neglect,

no exploitation and no maltreatment) make it amply clear that this basic

principle should not be compromised with and no corporal punishment is to be

inflicted on children within the institutions including the juveniles in conflict

with law.

Section 28 of the Juvenile Justice Act, states that when an act or omission that is

an offence under the Juvenile Justice Act, and is also and offence under any

other Act, the offender found guilty of such offences shall be liable to

punishment ‘only’ under such Act that provides for punishment which is greater

in degree. This provision defeats the purpose of S. 23 of the Juvenile Justice Act.

By making any offence that has higher degree of punishment mandatorily

applicable to an offence under this Act, other procedures which is not

necessarily desirable are brought in. For instance, a person accused of

subjecting a child to cruelty with visible injury will have to be tried both under

Juvenile Justice Act and the Indian Penal Code since the IPC carries a higher

punishment and those offences under Indian Penal Code are compoundable and

there is higher scope for the Court to encourage settlement. This may not always

work in the best interests of the children.

The Juvenile Justice Act does not have within its ambit any provision to hear

cases that involve offences against children, and therefore the child goes

through a criminal justice system which is not child friendly and not in

consonance with the objective as laid down in the preamble of the Act. The irony

is that a child, who otherwise may go through a relatively informal adjudication

process for the offence he / she is alleged to have committed, cannot avail the

benefit of such a treatment when subjected to cruelty within the institution.

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

Act)

The Constitution (Eighty Sixth Amendment) Act, 2002 introduced right to

education as a fundamental right under Article 21-A. As a result of deliberations

to make it a statutory right, the RTE Act was enacted in 2009. The objective of

the Act is to ensure that right to free education becomes a reality to all children in


India. Towards this end, the Act also proposes to create an environment that

enables children to access and pursue school education without fear.

95Section 17of the Act prohibits physical punishment and mental harassment to a

child in educational institutions and violation of the same would make the

person liable for disciplinary action under the service rules applicable to him.

Although the RTE Act takes credit for being the first legislation to prohibit

mental harassment to a child in school, the law does not extend the protection to

all school going children. The definition of the child under this Act means

children between the age of six and fourteen and hence leaves out children

above fourteen years and in the pre- school institutions. There are exceptions in

the law with respect to some provisions and are extended to schools that provide

pre- school education thus making it possible to follow the same in case of

corporal punishment.

Larger problem is with respect to initiating disciplinary action against the wrong

doer in school. The school may not be inclined to do so or to even co operate, for

fear of spoiling the reputation of the school or that it may pave way for parallel

proceedings under other laws. The mechanisms under RTE Act are not strong

enough to enforce it. An earlier draft of the Bill stated that the failure to prohibit

corporal punishment in a school would be a ground for de-recognition of such

school but the same does not find place in the current law.

d) Goa Children’s Act, 2003

The state of Goa is the first and the only state that has a Children’s Act in India. It 96has clearly prohibited corporal punishment in schools and abuse in all settings

recognizing it as an offence against a child. The law also provides for a

‘Children’s Court’ to try offences against children and with respect to children

who are in need care and protection or are in conflict with law, the Juvenile

Justice Act applies.

Although this law explicitly bans corporal punishment in schools, it does not

define corporal punishment. The Act defines only abuse to include abuse

95 See note 17 96 Section 4(12), Goa Children’s Act, 2003

Legal Framework 25

ranging from psychological, physical, sexual and verbal abuse to neglect,

cruelty, emotional maltreatment and any act by deeds or words which debases, 97degrades or demeans the intrinsic worth and dignity of the child. Abuse of all

forms is prohibited in other settings and the state is vested with the

responsibility to take measures towards this end.

e) Personal Laws

There is also recourse under the personal laws for cruelty towards children. For

instance, in a matrimonial dispute under the Hindu Marriage Act, 1955, cruelty

is a ground for divorce. Over the years, judiciary has interpreted cruelty to

include both physical and mental cruelty. Instances of cruelty towards a child by

one parent amounts to mental cruelty to the other and is considered a valid

ground for divorce. Similar principle is applied in custody matters. The custody

of the child is generally with the parents and in the case of legal separation; the

same is given to either parent depending on the resources of the parent, age of

the child and other relevant factors. Cruelty to a child by one parent, if

established would be a valid ground to deny custody to such person and helps in

successful claims for custody to the other party or other members of the family

such as grandparents.

Any person having custody or after getting custody through court orders also

can invoke provisions to ensure protection of the child. If the mother has the

custody of the child, she can seek an injunction against the father to stop hurting

the child. Since this order can be passed ex parte i.e., without hearing the other

party, the relief is quick, in most cases, one can get an injunction within twenty

four hours and hence can be effectively used to stop violence against a child.

The disadvantage however, is that all the disputes under the personal laws can

be initiated only by people who are governed by that law, meaning it is between

people who are related by blood, marriage or adoption. This also means that

legal action can be initiated on behalf of the child either by the guardians or in

cases where child is being abused by his guardians, by another member of the

family only. Normally, a family member is not forthcoming to do so against

another except in extreme cases. Hence, although this is an effective relief, it is

largely dependent on the willingness and ability of a person to initiate a process

97 Section 2 (m), Goa Children’s Act,2003


on behalf of the child.

f) Protection of Women from Domestic Violence Act, 2005 (PWDV Act)

The provisions of the Protection of Women from Domestic Violence Act, 2005 98can also be used to protect a child from the range of acts of cruelty that fall

within the definition of domestic violence under Section 3 of the Act. The

definition of violence broadly includes physical, sexual, economic, verbal and

emotional abuse.

This law makes provisions for the persons acting on behalf of minors to

approach courts for orders for protection, residence, custody, monetary reliefs, 99compensation etc . If the Magistrate is satisfied that there has been domestic

violence or that it is likely to take place, a protection order may be passed

prohibiting the respondent i.e., the person against whom a relief in a case of

domestic violence is sought, from contacting the child or communicating with

the child through any means. Such person can also be prohibited from entering

the shared household, i.e., the house that the child may have shared with the

respondent and where the child continues to reside and disturbing the peaceful

occupation of that space. An order for payment of medical expenses or any other

monetary relief can also be made. In addition to all this, an order directing the

respondent to pay compensation and damages for the injuries, including mental

torture and emotional distress, caused by the acts of domestic violence can also

be passed. Establishing the existence of a domestic relationship with the

perpetrator of domestic violence is however, essential to obtain any orders

under this Act.

There is no clarity on its applicability to abuse of children at home if the child

cannot establish domestic relationship with the abuser. It is generally

understood that a mother with a domestic relationship with the respondant

should be able to get the available remedies for herself and on behalf of her

child. Unlike the personal laws, the scope of this law is broad and any person

aware of the domestic violence including a service provider, NGO

representative etc could invoke the provisions of the PWD Act on behalf of the

98 Section 2(b), The Protection of Women from Domestic Violence Act, 2005. According to this provision defines a child means any person below the age of eighteen years and includes any adopted, step or foster child;99 Sections 18-22, The Protection of Women from Domestic Violence Act, 2005

Legal Framework 27

child.

The reliefs under this law are largely civil in nature and are preferred over

criminal prosecution. This could be advantageous to the child as it promises to

protect the child from any cruelty or any threat of cruelty without displacing the

child from his familiar environment. The Convention also stresses on the point

that the child should not be separated from parents unless it is in the best

interests of the child. It also gives the aggrieved person an option to exercise the 100

right to continue to be part of the family .

The PWDVA being a fairly new legislation, these options are still being tested

and the number of orders or the efficacy of the same is not known yet. However,

this law does present ample opportunities to explore options in the least

intrusive manner.

g) Tort Law

Compensation for the damages – physical, monetary, psychological etc can be

claimed by establishing tortious liability of the adult who administered corporal

punishment to a child. A suit in the civil court for such matters can be filed

irrespective of whether any other legal action has been initiated or not. The

outcome of one generally has no bearing on the other. This remedy is very useful

in cases where the children may suffer physical injuries/mental sufferings as a

result of punishment.

On the other hand, in a criminal proceeding for an offence of this nature, the

adult may justify his act under the provisions of Indian Penal Code as injuries

resulted from an act done in good faith for the benefit of the child. In such cases,

Judiciary may even allow this defence as it has done in the past in many cases

involving teachers. Besides, in criminal law, the intention to hurt needs to be

established. A successful criminal prosecution is difficult when such

requirements are coupled with defence available under the Code. Further, the

standard of proof required in criminal cases is of much higher order than the

standard required to be established before civil courts.

100 See Art 9, Convention on the Rights of the Child


An action in torts may be initiated in cases of corporal punishment in schools in

addition to the disciplinary proceedings for acts of physical punishment or

mental harassment to a child as contemplated under section 17 of the RTE Act.

The law does not make any distinction between government and non-

government schools for the purposes of fastening tortious liability upon the

wrongdoers. Hence, schools can be made independently or jointly liable along

with the primary wrongdoer.

In torts, each individual case will be looked into within the broad principles

evolved by the courts over the years. Further, the relief under tort law is very

different from criminal proceedings or the disciplinary action. Even if the

criminal court finds the accused guilty or disciplinary action is taken, the child

does not get compensated for the wrong done to him in such proceedings which

on the other hand is the main purpose of tort law.

In view of the above, in corporal punishment cases, remedies under law of torts

may be preferred alternatively, or in addition to the other remedies available in

law.

In a majority of actions in torts, it would be enough for fixing liability to

establish that the incident took place. On the other hand, in case of assault by a

teacher to succeed in criminal law, it is necessary to establish that the teacher

made a gesture with the ‘intention to’ or had ‘the knowledge’ that it would create

fear in the child. In tort cases, it is enough for the child to show that he was

threatened by such gesture and the intention behind such act is immaterial. Tort

law recognizes claims for wrongs as trivial as mere hostile touching without

consent of the child which may cause humiliation or mental agony forcing the

child to skip school.

The advantage of remedies under the law of torts is that it is not limited to or

circumscribed by statutory laws and is vast enough to include aspects that are

not covered under any statutory criminal or civil law. The law of torts keeps

evolving to suit the needs of the hour without being dependent on legislative

amendments as this branch of law is essentially judge made. However, this is an

area that has not been sufficiently explored in this context.

Legal Framework 29

h) Ban on Corporal Punishment in schools

The landmark judgment in this area was passed by the High Court of Delhi,

striking down rules that permitted corporal punishment. The High Court of

Delhi (2000) in Parents Forum for Meaningful Education and Another v. Union 101

of India and Another, the petitioners challenged certain provisions under

Delhi Education Act which permitted corporal punishment. The Court in this

public interest litigation struck down the provisions as violative of rights laid

down in the Constitution and also stated that it appeared to them that ‘corporal

punishment is not keeping with child’s dignity. Besides, it is cruel to subject the 102

child to physical violence in school in the name of discipline or education.’

The court also directed the state to ensure that ‘children are not subjected to

corporal punishment in schools and they receive education in an environment of 103

freedom and dignity, free from fear.’

Although the Delhi Education Rules permitted other forms of punishment such

as detention during breaks, rustication, expulsion and fine, the parents

association challenged only the clause which permitted corporal punishment as

inhuman. The High Court of Calcutta also passed an order in another PIL in

Tapas Kumar Bhanja v. State of West Bengal (2004) The Court opined ‘that

caning should not be resorted to as a corporal punishment by any....... Therefore,

the Director of School Education, Primary/Secondary is directed to issue a

circular to all the schools that this system of caning the student is strictly

prohibited and if any school resorts to this kind of caning then that will be dealt 104with by the State Administrator strictly.’

105Few years later, the same Court while hearing In Re: Rekha Bhakat, held that a

teacher who had resorted to corporal punishment and hit a child forcefully with

a duster causing injuries and death of the child has breached the order passed in

2004 in the previous case by the same Court. While condemning the acts of the

teacher, it also denied anticipatory bail to her.

The judicial response towards corporal punishment is gradually changing.

101 AIR 2001 Delhi 212 :89 (2001) DLT 705102 Id, para 15103 See note 101, para 28104 2004 (1) CLJ 210 as cited in In re: Bhakat 2010 Cri LJ 1132: 2010 (2) Crimes 759105 2010 Cri LJ 1132: 2010 (2) Crimes 759


However, so far such cases have been challenged only in the High Courts. If the

problem is taken up before the Supreme Court, it will be applicable to the whole

country.

2.3) Role of Statutory Bodies

This section examines three major statutory bodies that are vested with the

responsibility of protecting children’s rights. The laws detail out their functions

of these authorities and procedures to be followed while intervening in cases of

violation of their rights. They have quasi judicial functions and provide

inexpensive options for settling matters at the local level before approaching the

Courts.

a) The Commissions for Protection of Child Rights, 2005(CPCR Act) and

authorities under the RTE Act

The CPCR Act makes provisions for setting up a National Commission for

Protection of Child Rights and Commissions at the state level. Under this Act,

these statutory bodies have to perform important functions such as (i) to

examine and review the safeguards provided by or under any law for the time

being in force for the protection of child rights and recommend measures for

their effective implementation; and (ii) to inquire into violation of child rights

and recommend initiation of proceedings in such cases;

With the passing of the RTE Act, the Commissions have been given the

additional responsibilities 1) to examine and review safeguards for rights

provided by or under the RTE Act and recommend measures for their effective

implementation; 2) to inquire into complaints relating to child’s right to

education and to take necessary steps under the CPCR Act.

The procedure as laid down under the RTE Act states that any grievance under

the RTE Act if not resolved at the school level, (this is not a prerequisite to make

a complaint) complaint can be made to the local authorities as identified in the

Act. The local authority is expected to decide the matter within three months and

any person aggrieved by that order can approach the Commissions for

Protection of Child Rights and in the states where Commissions are yet to be

established, any authority that has been established by the State Governments to

Legal Framework 31

look into the complaints under RTE Act can be approached.

Hence, in effect the Commissions are the monitoring bodies in cases of violation

of rights guaranteed under Section 17 of the RTE Act and have the power to

inquire into complaints and to take appropriate action. The Act also does not

prevent an aggrieved person from approaching the Commissions directly. The

Commissions also have to follow the same course of action with the schools and

local authorities at the district level. The CPCRs also have the power to take suo

moto action, meaning the power to initiate action without a complaint.

In dealing with cases under RTE Act, the Commissions have the same power as

are vested on them under CPCR Act. When they receive a complaint, they have

powers to enquire into the matter, summon the other party and issue

recommendations to the concerned personnel in the Education Department for

further action. In the event the recommendations are not followed, the

complainant has the right to initiate proceedings in the Court.

The Commissions are constituted for a term of three years and there is

invariably a time gap before the next Commission is established and in most

cases, the new commission consists of new set of people who are not completely

familiar with the cases pending before them. This could cause a delay in

redressal of cases.

Although a large number of problems get resolved with the intervention of the

Commissions, the problem arises from the fact they are recommendatory

bodies. In the event, the school or other parties refuse to take action, the

complainants are forced to approach regular courts, which means loss of time

and money.

b) The Child Welfare Committee (CWC)

Child Welfare Committees are established under the Juvenile Justice Act with

the powers and responsibilities to address issues relating to child in need of care

and protection. Any child who is or is likely to be abused, tortured or exploited is 106within the definition of a child in need of care and protection. As per the Act,

CWCs are the final authority to dispose of cases for the care, protection,

106 Section 2(d)(vi), Juvenile Justice (Care and Protection) Act, 2000


treatment, development and rehabilitation of children. The functions of CWCs

and the procedures to be followed in child abuse cases are elaborated in the rules

of the Act.

CWCs have the function of conducting inquiry in all issues relating to and

affecting the safety and well being of the child and also ensure necessary care 107

and protection and immediate shelter. In many such cases, children produced

before the CWCs are sent to the homes run by government or by non-

government organizations as an immediate measure of protection. In cases of

violence, exploitation and abuse of children CWC is vested with the

responsibility to facilitate the filing of a police complaint and FIR and also 108 arrange for legal aid.

The procedure to be followed in instances where abuse takes place within the

residential facilities is different. In case of any abuse (physical, emotional,

sexual) or neglect by people who are responsible for care and protection of

children, the incident shall be reported to the Officerin- charge of the institution

and the report will be prepared and presented to the competent authority under

the Act i.e Child Welfare Committee or the Juvenile Justice Board depending on

the institution in which the incident took place. The competent authority will

order for an investigation and also direct the local police station or Special 109Juvenile Unit to register a case and take necessary action . The processes that

follow thereafter are the same as any other criminal case.

One of the main objectives of this law is to adopt child friendly approach in 110adjudicating and disposition of matters in the best interests of the child .

However, in a child abuse case within the institution, the child was probably in

custody of the State to be protected from a outside perpetrator is not only

traumatized again but also exposed to the public and is forced to go through the

regular criminal justice system. The protection of identity provided under the 111

Juvenile Justice Act for cases before the competent authorities and the essence

of the law to make it child friendly is lost when the perpetrator is within the

system.

108 Rule 27(9), Juvenile Justice (Care and Protection) Rules, 2007109 Rule 60(2) , Juvenile Justice (Care and Protection) Rules, 2007110 The Preamble, Juvenile Justice (Care and Protection) Act, 2000111 Section 21, Juvenile Justice (Care and Protection) Act, 2000

107 Rule 25 (d) & (f), Juvenile Justice (Care and Protection) Rules, 2007

Legal Framework 33

c) Juvenile Justice Board (JJB)

As per the Juvenile Justice Act every district should have one or more Juvenile

Justice Boards (JJBs) constituted by the State government with a Metropolitan

Magistrate or a Judicial Magistrate of first class and two social workers forming

a bench. They are vested with the functions of adjudicating and disposing

matters of juveniles in conflict with law. The magistrates have the power vested

on them under the Criminal Procedure Code.

With respect to abuse within the institutions, they are vested with similar

responsibilities as the Child Welfare Committee in intervening in cases of abuse 112

in the institution. In addition to that, the Board has the function of take

cognizance of offences under 23 to 28 of the Act which includes cases of cruelty

to children.

Similar problems as discussed in the previous section is encountered if the abuse

takes place in homes for juveniles in conflict with law such as observation

homes or the special homes. The irony is that when the child is alleged of an

offence, the procedure is expected to be in a child friendly manner. However, if

the same child who is protected from being exposed to the harsh procedures in

the adult courts, becomes a victim in the protective institution has to go through

procedures that are not child friendly.

112 See note 110


SECTION - III

INTERNATIONAL STANDARDS

AND BEST PRACTISES

SECTION - III

INTERNATIONAL STANDARDS

AND BEST PRACTISES

The international standards on any child rights issue is outlined in the

Convention on the Rights of the Child, 1989, and the discussions and comments

of the CRC Committee. India being a signatory of the Convention has made the

commitment to ensure that necessary measures are taken to protect the rights

under the Convention which includes protection of children from violence.

The Convention urges States to make necessary changes in their laws to ensure

that no child is subjected to torture or cruel, inhuman or degrading treatment or

punishment. In this context, the Convention uses generic terms such as

‘physical and mental violence’, ‘injury’, ‘abuse’, ‘maltreatment’. As stated in

the CRC Committee, corporal punishment is degrading, hence in violation of

the rights laid down under the Convention.

With respect to school education, the Convention clearly states that appropriate

measures to ensure school discipline is administered in a manner consistent with 113the child’s human dignity and is in conformity with the present Convention,

which again is a reference to the fact that children should not be humiliated in 114schools as is the practice in India . As evidenced in the research studies, some

forms of punishment that are administered in schools in India may not

physically hurt as much as it humiliates or degrades the child.

The Convention makes specific recommendations that measures should ensure

that the child is protected from all violence and abuse while in the care of 115parents, guardians or any other person who has the care of the child making it

clear that the prohibition should be complete and the rights are protected in all

settings of children’s lives. The Committee has made a recommendation that 116

culturally accepted violence should not be condoned .

India has also adopted changes in law in penal system, institutions and schools

almost in the same sequence as any other country. Like many other countries

113 Art 28(2), Convention on the Rights of the Child114 See note 48115 Art 19(1), Convention on the Rights of the Child116 See Note 110

where children are dependent on the family for support, India is grappling with

the mode in which it should be made applicable in the domestic settings without

disturbing the available support from families. We have not yet taken measures

to prohibit corporal punishment in all settings and are out of step with

international recommendations on this front.

Laws in other countries

Corporal punishment should be prohibited not only because it causes pain and

injury to the child or that it has a negative impact on the child but also as it is not

in keeping with the international standards recommended under the human

rights instruments.

The Scandinavian countries were the first ones to have banned corporal

punishment by law, as early as in 1979 in Sweden and in 1983 in Finland

followed by Norway in 1987.

In Sweden prohibition was through amendments to its Parenthood and 117

Guardianship Code and the language explicitly states that ‘Children are

entitled to care, security and a good upbringing. Children are to be treated with

respect for their person and individuality and may not be subjected to corporal

punishment or any other humiliating treatment.’ The process that was initiated

by a multi-disciplinary Children's Rights Commission, with a draft bill clarified

that, "The primary purpose of the provision is to make it clear that beating

children is not permitted. Secondly,…….. to create a basis for general

information and education for parents as to the importance of giving children

good care and as to one of the prime requirements of their care. The proposed

provision should, in the long term, contribute towards reducing the number of

cases of acts of physical violence on children". It also proposed a "recurrent

general parent education programme".

This amendment was made with an objective to prevent and reduce violence 118against children in the long run. A study by Dr. Durrant demonstrated that

Sweden has been successful in achieving that objective and has seen a

117 See http://www.endcorporalpunishment.org/pages/progress/prohib_states.html#sweden118 Durrant, Joan E (2000) A Generation without Smacking- The impact of Sweden’s ban on physical punishment’ Save the Children available at http://www.endcorporalpunishment.org/ pages/pdfs/GenerationwithoutSmacking.pdf last accessed on 28th July, 2012


considerable decline in corporal punishment in the last 30 years. The percentage

of people supporting corporal punishment even in its mildest form has gone

down from 53% in 1963 to 11 % by 1994 as is seen in her study.

Similar bans are followed in the recent years in Congo, Kenya, Poland and

Tunisia 2010. In South Sudan it was introduced even before they got

independence. Prohibition was confirmed in Article 21 of the Child Act (2008),

entitled “Right to Protection from Torture, Degrading Treatment and Corporal

Punishment”: “Every child has the right to be protected from torture, cruel,

inhuman or degrading treatment or punishment, and in particular:

(a) no child shall be sentenced to capital punishment or life imprisonment;

(b) no child shall be subjected to corporal punishment by chiefs, police,

teachers, prison guards or any other person in any place or institution,

including schools, prisons and reformatories; and,

(c) no child shall be subjected to a group punishment by chiefs, police,

teachers, prison guards or any other person in any place or institution,

including schools, prisons and reformatories.”

Although Scandinavian countries were the pioneers in this field, over the years

32 countries have banned corporal punishment in all settings. The

developments in this field has shown that majority of the South Asian countries 119

do not on one hand permit it but are also reluctant to prohibit it explicitly.

119 See note 9

International Standards And Best Practises 39

SECTION - IV

RECOMMENDATIONS FOR

LAW REFORM

SECTION - IV

RECOMMENDATIONS FOR LAW REFORM

4.1 Proposals to achieve prohibition of all corporal punishment of

children

There is a broad consensus worldwide that corporal punishment should be

prohibited in all settings of children’s lives and that it should not be condoned. In

India, there is clearly a need for amendments in the extant laws. Necessary

recommendations are required for total prohibition of corporal punishment to

children by law and for its effective implementation.

Amendments proposed below are applicable to all settings of children’s lives,

unless specific exceptions are made (such as in the case of compounding of

offences). The amendments should ensure that the prohibition is applicable to

all children up to the age of eighteen years.

Although it would be possible to develop the proposals further, at this stage only

areas for amendments are identified and broad recommendations are made

without making any textual amendments. Experience suggests that clarity on

ideas and policies is a very valuable step before drafting of the legislative text

actually commences. So what follows are some ideas for amendments.

This section proposes amendments to the existing laws that have a bearing on

the issue of corporal punishment and various options are presented for legal

reform. It also looks at other proposals comprising of a) possibility for a national

legislation that is comprehensive to cover all offences against children and b)

other interim measures to address immediate concerns when the legal reform is

underway.

Violence against a child is a common occurrence and the distinction between

abuse and corporal punishment is subtle. While it is not only difficult to

distinguish the intention or purpose behind each act of violence, it is also a futile

exercise to do so in familiar settings such as homes, schools and institutions

where the child is in the custody of the wrongdoer. Hence, recommendations in

this document are made to end all cruel, inhuman and degrading treatment of

children as laid down under the Convention for Rights of the Child (CRC) and

not focus on specifics of prohibited action.

REFERENCES

REFERENCES

Reports & Research Studies

1. Csáky, Corinna Keeping children out of harmful institutions: Why we

should be investing in family- based care, Save the Children, UK(2009)

2. De, Anuradha, and Jean Dreze. Public Report on Basic Education in India

(PROBE) New Delhi: Oxford University Press (1999)

3. Durrant, Joan E A Generation without Smacking- The impact of Sweden’s

ban on physical punishment’, Save the Children (2000)

4. Human Rights Watch & American Civil Liberties Union, A violent

Education- Corporal Punishment of children in US public school, USA

(2008)

5. Kacker,L, S. Varadan & P.Kumar, Study of Child Abuse- India 2007, New

Delhi:Ministry of Women and Child Development (2007)

6. Ministry of Women and Child Development, Third and Fourth Combined

Report on the Convention on the Rights of the Child , Government of India

(2011)

7. National Commission for the Protection of Child Rights, Eliminating

Corporal Punishment in Schools, New Delhi India (2010)

8. Pinheiro, Paulo Sergio, World Report on Violence against Children, United

Nations Secretary General (2006)

9. Saath Charitable Trust, Impact of Corporal Punishment on School

Children: A Research Study Plan International (India) New Delhi (2006)

10. Tulir, Centre for Prevention and Healing of Child Sexual Abuse Abuse

among Child Domestic Workers: A Research Study in West Bengal, Save

the children UK (2006)

Articles/Papers

11. American Academy of Pediatrics, Committee on School Health,“ Corporal

Punishment in Schools ,”, Pediatrics 2 (106) (2000)

12. Andrew Dunn, Elizabeth Jareg and Douglas Webb, A Last Resort: The

Growing Concern About Children in Residential Care, , International Save

the Children Alliance London(2003)

13. Save the Children, Ending Corporal Punishment of Children: Making it

happen, September 2011

14. Thompson Gershoff, Elizabeth “Corporal Punishment by Parents and

Associated Child Behaviors and Experiences: A Meta-Analytic and

Theoretical Review”, Psychological Bulletin, 4(128) ( 2002)

15. UNICEF, The Right to Protection and Dignity – End Corporal Punishment

http://www.unicef.org/india/child_protection_5386.htm

International Documents

16. A/61/299, Protection and Promotion of Rights of the Children, 29 August

2006

17. CRC/C/100, Aware- raising, Sensitization and Training, 14 November

2000.

18. CRC/C/15/Add.228, Concluding Observations: India, 26 february 2004.

19. The Conventions on the Rights of the Child, 1989

20. UN Committee on the Rights of the Child, General Comment No.8: The

Right of the Child to Protection from Corporal Punishment (2006)


Newspaper Reports

21. The Telegraph, Shadow of fear in boy’s death, 14 February 2010, Calcutta,

India

22. The Times of India, 15-yr-old Chennai boy stabs teacher to death in

classroom, 9 February 2012, Chennai

Useful links

23. www.endcorporalpunishment.org

24. http://nospank.net

25. http://www.crin.org

26. http://achrweb.org/reports.htm

27. www.savethechildren.net

References 59

APPENDIX - I

LIST OF CASES

LIST OF CASES

1. Abdul Vaheed v. State of Kerala: 2005CriLJ2054; ILR 2005(1)Kerala452;

2005(2)KLT72

2. G.B.Ghate v.Emperor: AIR 1949 Bom 226

3. Ganesh Chandra Saha v. Jiw Raj Somani: AIR 1965 Cal 32; 1965 CriLJ 24

4. Hashmukh Bhai v. Gokal Das Shah: 2009 CriLJ 2919; 2009 GLH (1)526

5. In Re: Rekha Bhakat: 2010 CriLJ 1132

6. M. Natesan v. State of Madras and Anr: AIR1962Mad216;

7. P. Sankunni v. C. S. Venkataramani: AIR 1922 Mad 200; AIR 1922 Mad 200

8. Parents Forum for Meaningful Education and Anr v. Union of India and

Anr: AIR 2001 Delhi 212

9. Prafulbhai J.Vaghela and Anr. v. Pankaj Srikrishnakumar Saxena, Gruhpati

and Ors

10. Tapas Kumar Bhanja v. State of West Bengal: 2004 (1) CLJ 210

APPENDIX - II

LIST OF LEGISLATION

& POLICIES

LIST OF LEGISLATIONS AND POLICIES

Legislations

1. Indian Penal Code, 1860

2. Juvenile Justice (Care and Protection) Act, 2000

3. Code of Criminal Procedure, 1973

4. Right of Children to Free and Compulsory Education Act, 2009

5. Protection of Women from Domestic Violence Act, 2005

6. Hindu Marriage Act, 1955

Policies

7. National Policy for Children 1974, Government of India, Department of Social Welfare, New Delhi

Bills

8. The Protection of Child from Sexual Offences Bill, 2010, NCPCR

9. The Prevention of Offences against Child Bill, 2009

APPENDIX - III

RELEVANT LEGAL PROVISIONS

IN INDIAN LAWS

RELEVANT LEGAL PROVISIONS

IN INDIAN LAWS

Relevant Legal Provisions in Indian Laws

I Criminal Procedure Code, 1973

Section 320(4)- Compounding of Offences

(4) (a) When the person who would otherwise be competent to compound an

offence under this section is under the age of eighteen years or is an idiot or a

lunatic, any person competent to contract on his behalf, may, with the

permission of the Court compound such offence. (b) When the person who

would otherwise be competent to compound an offence under this section is

dead, the legal representative, as defined in the Code of Civil procedure, 1908 (5

of 1908) of such person may, with the consent of the court compound such

offence.

II Goa Children’s Act, 2003

Section 2(m)- Child Abuse

“Child abuse” refers to the maltreatment, whether habitual or not, of the child

which includes any of the following:—

(i) psychological and physical abuse, neglect, cruelty, sexual abuse and

emotional maltreatment;

(ii) any act by deeds or words which debases, degrades or demeans the intrinsic

worth and dignity of a child as a human being;

(iii) unreasonable deprivation of his basic needs for survival such as food and

shelter; or failure to immediately give medical treatment to an injured child

resulting in serious impairment of his growth and development or in his

permanent incapacity or death;

Section 2(i)- Competent Authority

“Competent authority” means the Secretary to the Government in charge of the

Department of Women and Child Development;

Section 4 –Education

4 (1) That State shall endeavor to promote holistic education. Universal

application of joyful learning processes should be ensured.

(12) Corporal punishment is banned in all schools.

26 [(15) Any contravention or non-adherence of the provisions of this section

shall be dealt with by the Competent Authority only and shall be punishable

with a fine which may extend to Rs. 50,000/-.]

III Indian Penal Code, 1860

CHAPTER IV General Exceptions

Section 88- Act not intended to cause death, done by consent in good faith for

person's Benefit

Nothing which is not intended to cause death, is an offence by reason of any

harm which it may cause, or be intended by the doer to cause, or be known by the

doer to be likely to cause, to any person for whose benefit it is done in good faith,

and who has given a consent, whether express or implied, to suffer that harm, or

to take the risk of that harm.

Section 89- Act done in good faith for benefit of child or insane person, by or by

consent of guardian

Nothing which is done in good faith for the benefit of a person under twelve

years of age, or of unsound mind, by or by consent, either express or implied, of

the guardian or other person having lawful charge of that person, is an offence

by reason of any harm which it may cause, or be intended by the doer to cause or

be known by the doer to be likely to cause to that person:

Provisos-Provided-


First- That this exception shall not extend to the intentional causing of death, or

to the attempting to cause death;

Secondly- That this exception shall not extend to the doing of anything which

the person doing it knows to be likely to cause death, for any purpose other than

the preventing of death or grievous hurt, or the curing of any grievous disease or

infirmity;

Thirdly- That this exception shall not extend to the voluntary causing of

grievous hurt, or to the attempting to cause grievous hurt, unless it be for the

purpose of preventing death or grievous hurt, or the curing of any grievous

disease or infirmity;

Fourthly- That this exception shall not extend to the abetment of any offence, to

the committing of which offence it would not extend.

Section 90- Consent known to be given under fear or misconception

A consent is not such a consent as it intended by any section of this Code, if the

consent is given by a person under fear of injury, or under a misconception of

fact, and if the person doing the act knows, or has reason to believe, that the

consent was given in consequence of such fear or misconception; or

Consent of insane person if the consent is given by a person who, from

unsoundness of mind, or intoxication, is unable to understand the nature and

consequence of that to which he gives his consent; or

Consent of child unless the contrary appears from the context, if the consent is

given by a person who is under twelve years of age.

Chapter XVI : Of Offences affecting the human body

Section 304A- Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not

amounting to culpable homicide, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.]

Appendix-III 73

Section 305- Abetment of suicide of child or insane person

If any person under eighteen years of age, any insane person, any delirious

person, any idiot, or any person in a state of intoxication, commits suicide,

whoever abets the commission of such suicide, shall be punished with death or

104[imprisonment for life], or imprisonment for a term not exceeding ten years,

and shall also be liable to fine.

Section 321- Voluntarily causing hurt

Whoever does any act with the intention of thereby causing hurt to any person,

or with the knowledge that he is likely thereby to cause hurt to any person, and

does thereby cause hurt to any person, is said "voluntarily to cause hurt".

Section 323- Punishment for voluntarily causing hurt

Whoever, except in the case provided for by section 334, voluntarily causes

hurt, shall be punished with imprisonment of either description for a term which

may extend to one year, or with fine which may extend to one thousand rupees,

or with both.

Section 325- Punishment for voluntarily causing grievous hurt

Whoever, except in the case provided for by section 335, voluntarily causes

grievous hurt, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.

Of Wrongful Restraint and Wrongful Confinement

Section 339- Wrongful restraint

Whoever voluntarily obstructs any person so as to prevent that person from

proceeding in any direction in which that person has a right to proceed, is said

wrongfully to restrain that person.

Exception- The obstruction of a private way over land or water which a person

in good faith believes himself to have a lawful right to obstruct, is not an offence

within the meaning of this section.


Section 340- Wrongful confinement

Whoever wrongfully restrains any person in such a manner as to prevent that

person from proceedings beyond certain circumscribing limits, is said

"wrongfully to confine" that person.

Section 341- Punishment for wrongful restraint

Whoever wrongfully restrains any person shall be punished with simple

imprisonment for a term which may extend to one month, or with fine which

may extend to five hundred rupees, or with both.

Section 342- Punishment for wrongful confinement

Whoever wrongfully confines any person shall be punished with imprisonment

of either description for a term which may extend to one year, or with fine which

may extend to one thousand rupees, or with both.

Section 343- Wrongful confinement for three or more days

Whoever wrongfully confines any person for three days, or more, shall be

punished with imprisonment of either description for a term which may extend

to two years, or fine, or with both.

Section 34- Wrongful confinement for ten or more days

Whoever wrongfully confines any person for ten days, or more, shall be

punished with imprisonment of either description for a term which may extend

to three years, and shall also be liable to fine.

Section 350- Criminal force

Whoever intentionally uses force to any person, without that person's consent,

in order to the committing of any offence, or intending by the use of such force to

cause, or knowing it to be likely that by the use of such force he will cause injury,

fear or annoyance to the person to whom the force is used, is said to use criminal

force to that other.

75Appendix-III

Section 351-Assault

Whoever makes any gesture, or any preparation intending or knowing it to be

likely that such gesture or preparation will cause any person present to

apprehend that he who makes that gesture or preparation is about to use criminal

force to that person, is said to commit an assault.

Explanation- Mere words do not amount to an assault. But the words which a

person uses may give to his gestures or preparation such a meaning as may make

those gestures or preparations amount to an assault.

Section 352- Punishment for assault or criminal force otherwise than on grave

provocation

Whoever assaults or uses criminal force to any person otherwise than on grave

and sudden provocation given by that person, shall be punished with

imprisonment of either description for a term which may extend to three

months, or with fine which extend to five hundred rupees, or with both.

Explanation- Grave and sudden provocation will not mitigate the punishment

for an offence under this section. if the provocation is sought or voluntarily

provoked by the offender as an excuse for the offence, or if the provocation is

given by anything done in obedience to the law, or by a public servant, in the

lawful exercise of the powers of such public servant, or if the provocation is

given by anything done in the lawful exercise of the right of private defence.

Whether the provocation was grave and sudden enough to mitigate the offence,

is a question of fact.

III The Protection of Women from Domestic Violence Act, 2005

Section 2 (f) -Domestic Relationship

‘Domestic Relationship’ means a relationship between two persons who live or

have, at any point of time, lived together in a shared household, when they are

related by consanguinity, marriage, or through a relationship in the nature of

marriage, adoption or are family members living together as a joint family;


Section 2(s) - Shared Household

"shared household" means a household where the person aggrieved lives or at

any stage has lived in a domestic relationship either singly or along with the

respondent and includes such a household whether owned or tenanted either

jointly by the aggrieved person and the respondent, or owned or tenanted by

either of them in respect of which either the aggrieved person or the respondent

or both jointly or singly have any right, title, interest or equity and includes such

a household which may belong to the joint family of which the respondent is a

member, irrespective of whether the respondent or the aggrieved person has any

right, title or interest in the shared household;

Section 3- Definition of domestic violence

For the purposes of this Act, any act, omission or commission or conduct of the

respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being,

whether mental or physical, of the aggrieved person or tends to do so and

includes causing physical abuse, sexual abuse, verbal and emotional abuse

and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to

coerce her or any other person related to her to meet any unlawful demand

for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to

her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the

aggrieved person.

Explanation I.-For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a nature as to

cause bodily pain, harm, or danger to life, limb, or health or impair the

77 Appendix-III

health or development of the aggrieved person and includes assault,

criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses,

humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule

specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the

aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the

aggrieved person is entitled under any law or custom whether payable

under an order of a court or otherwise or which the aggrieved person

requires out of necessity including, but not limited to, household

necessities for the aggrieved person and her children, if any, stridhan,

property, jointly or separately owned by the aggrieved person, payment

of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable

or immovable, valuables, shares, securities, bonds and the like or other

property in which the aggrieved person has an interest or is entitled to

use by virtue of the domestic relationship or which may be reasonably

required by the aggrieved person or her children or her stridhan or any

other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities

which the aggrieved person is entitled to use or enjoy by virtue of the

domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission,


commission or conduct of the respondent constitutes "domestic violence" under

this section, the overall facts and circumstances of the case shall be taken into

consideration.

Section 18- Protection orders

The Magistrate may, after giving the aggrieved person and the respondent an

opportunity of being heard and on being prima facie satisfied that domestic

violence has taken place or is likely to take place, pass a protection order in favor

of the aggrieved person and prohibit the respondent from-

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person

aggrieved is a child, its school or any other place frequented by the

aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved

person, including personal, oral or written or electronic or telephonic

contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held

or enjoyed by both the parties, jointly by the aggrieved person and the

respondent or singly by the respondent, including her stridhan or any other

property held either jointly by the parties or separately by them without the

leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give

the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

Section 19- Residence orders

(1) While disposing of an application under sub-section (1) of section 12, the

79 Appendix-III

Magistrate may, on being satisfied that domestic violence has taken place,

pass a residence order -

(a) restraining the respondent from dispossessing or in any other manner

disturbing the possession of the aggrieved person from the shared

household, whether or not the respondent has a legal or equitable

interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any

portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared

household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared

household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate

accommodation for the aggrieved person as enjoyed by her in the

shared household or to pay rent for the same, if the circumstances so

require:

Provided that no order under clause (b) shall be passed against any person who

is a woman.

(2) The Magistrate may impose any additional conditions or pass any other

direction which he may deem reasonably necessary to protect or to provide

for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or

without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter

VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt

with accordingly.


(5) While passing an order under sub-section (1), sub-section (2) or sub-section

(3), the court may also pass an order directing the officer in charge of the

nearest police station to give protection to the aggrieved person or to assist

her or the person making an application on her behalf in the implementation

of the order.

(6) While making an order under sub-section (1), the Magistrate may impose

on the respondent obligations relating to the discharge of rent and other

payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer in-charge of the police station in

whose jurisdiction the Magistrate has been approached to assist in the

implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the

aggrieved person her stridhan or any other property or valuable security to

which she is entitled to.

Section 20- Monetary reliefs

(1) While disposing of an application under sub-section (1) of section 12, the

Magistrate may direct the respondent to pay monetary relief to meet the

expenses incurred and losses suffered by the aggrieved person and any child

of the aggrieved person as a result of the domestic violence and such relief

may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any

property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any,

including an order under or in addition to an order of maintenance

under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)

or any other law for the time being in force.

81Appendix-III

(2) The monetary relief granted under this section shall be adequate, fair and

reasonable and consistent with the standard of living to which the aggrieved

person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum

payment or monthly payments of maintenance, as the nature and

circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made

under sub-section (1) to the parties to the application and to the in charge of

the police station within the local limits of whose jurisdiction the

respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved

person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of

the order under sub-section (1), the Magistrate may direct the employer or a

debtor of the respondent, to directly pay to the aggrieved person or to

deposit with the court a portion of the wages or salaries or debt due to or

accrued to the credit of the respondent, which amount may be adjusted

towards the monetary relief payable by the respondent.

Section 21- Custody orders

Notwithstanding anything contained in any other law for the time being in force,

the Magistrate may, at any stage of hearing of the application for protection

order or for any other relief under this Act grant temporary custody of any child

or children to the aggrieved person or the person making an application on her

behalf and specify, if necessary, the arrangements for visit of such child or

children by the respondent:

Provided that if the Magistrate is of the opinion that any visit of the respondent

may be harmful to the interests of the child or children, the Magistrate shall

refuse to allow such visit.


Section 22- Compensation orders

In addition to other reliefs as may be granted under this Act, the Magistrate may

on an application being made by the aggrieved person, pass an order directing

the respondent to pay compensation and damages for the injuries, including

mental torture and emotional distress, caused by the acts of domestic violence

committed by that respondent.

IV Juvenile Justice (Care and Protection) Act, 2000

Preamble of the Act

An Act to consolidate and amend the law relating to juveniles in conflict with

law and children in need of care and protection, by providing for proper care,

protection and treatment by catering to their development needs, and by

adopting a child-friendly approach in the adjudication and disposition of

matters in the best interest of children and for their ultimate rehabilitation

through various institutions established under this enactment.

Section 14- Order that may be passed regarding juvenile

(1) Where a Board is satisfied on inquiry that a juvenile has committed an

offence, then notwithstanding anything to the contrary contained in any

other law for the time being in force, the Board may, if it thinks so fit,-

(a) allow the juvenile to go home after advice or admonition following

appropriate inquiry against and counselling to the parent or the

guardian and the juvenile;

(b) direct the juvenile to participate in group counselling and similar

activities;

(c) order the juvenile to perform community service;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he

is over fourteen years of age and earns money;

83Appendix-III

(e) direct the juvenile to be released on probation of good conduct and

placed under the care of any parent, guardian or other fit person, on

such parent, guardian or other fit person executing a bond, with or

without surety, as the Board may require, for the good behaviour and

well-being of the juvenile for any period not exceeding three years;

(f) direct the juvenile to be released on probation of good conduct and

placed under the care of any fit institution for the good behaviour and

well-being of the juvenile for any period not exceeding three years;

(g) make an order directing the juvenile to be sent to a special home,-

Section 21- Prohibition of publication of name, etc., of juvenile involved in any

proceeding under the Act

(1) No report in any newspaper, magazine, news-sheet or visual media of any

inquiry regarding a juvenile in conflict with law under this Act shall

disclose the name, address or school or any other particulars calculated to

lead to the identification of the juvenile nor shall any picture of any such

juvenile be published :

Provided that for reasons to be recorded in writing the authority holding the

inquiry may permit such disclosure, if in its opinion such disclosure is in interest

of the juvenile.

(2) Any person contravening the provisions of sub-section (1) shall be

punishable with fine, which may extend to one thousand rupees.

Section 23-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 wilfully 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 unnecessary mental or physical

suffering shall be punishable with imprisonment for a team which may extend to

six months, or fine, or with both.


Section 28-Alternative punishment

Where an act or omission constitute an offence punishable under this Act and

also under any other Central or State Act, then, notwithstanding anything

contained in any law for the time being in force, the offender found guilty of

such offences shall be liable to punishment only under such Act as provides for

punishment which is greater in degree.

Juvenile Justice (Care and Protection) Rules, 2007

Section 3- Fundamental principles to be followed in administration of these

rules

(1) The State Government, the Juvenile Justice Board, the Child Welfare

Committee or other competent authorities or agencies, as the case may be,

while implementing the provisions of these rules shall abide and be guided

by the principles, specified in sub-rule (2).

(2) The following principles shall, interalia, be fundamental to the application,

interpretation and implementation of the Act and the rules made hereunder:

VI. Principle of Safety (no harm, no abuse, no neglect, no exploitation and no

maltreatment ):

(a) At all stages, from the initial contact till such time he remains in contact

with the care and protection system, and thereafter, the juvenile or child or

juvenile in conflict with law shall not be subjected to any harm, abuse,

neglect, maltreatment, corporal punishment or solitary or otherwise any

confinement in jails and extreme care shall be taken to avoid any harm to the

sensitivity of the juvenile or the child.

(b) The state has a greater responsibility for ensuring safety of every child in its

care and protection, without resorting to restrictive measures and processes

in the name of care and protection.

XII. Principle of last resort

85Appendix-III

Institutionalization of a child or juvenile in conflict with law shall be a step of

the last resort after reasonable inquiry and that too for the minimum possible

duration.

Rule 60- Abuse and exploitation of the juvenile or child

(1) Every institution shall have systems of ensuring that there is no abuse,

neglect and maltreatment and this shall include the staff being aware of

what constitutes abuse, neglect and maltreatment as well as early indicators

of abuse, neglect and maltreatment and how to respond to these.

(2) In the event of any physical, sexual or emotional abuse, including neglect of

juveniles and children in an institution by those responsible for care and

protection, the following action shall be taken:

(i) the incidence of abuse and exploitation must be reported by any staff

member of the institution immediately to the Officer-in-Charge on

receiving such information;

(ii) when an allegation of physical, sexual or emotional abuse comes to the

knowledge of the Officer-in-Charge, a report shall be placed before the

Board or Committee, who in turn, shall order for special investigation;

(iii) the Board or Committee shall direct the local police station or Special

Juvenile Police Unit to register a case, take due cognizance of such

occurrences and conduct necessary investigations;

(iv) the Board or Committee shall take necessary steps to ensure completion

of all inquiry and provide legal aid as well as counselling to the juvenile

or child victim;

(v) the Board or Committee shall transfer such a juvenile or child to another

institution or place of safety or fit person;

(vi) the Officer-in-charge of the institution shall also inform the chairperson

of the management committee and place a copy of the report of the


incident and subsequent action taken before the management

committee in its next meeting;

(vii) in the event of any other crime committed in respect of juveniles or

children in institutions, the Board or Committee shall take cognizance

and arrange for necessary investigation to be carried out by the local

police station or Special Juvenile Police Unit;

(viii) the Board or Committee may consult Children’s Committee setup in

each institution to enquire into the fact of abuse and exploitation as well

as seek assistance from relevant voluntary organizations, child rights

experts, mental health experts or crisis intervention centres in dealing

with matters of abuse and exploitation of juveniles or children in an

institution.

VI Right of Children to Free and Compulsory Education Act, 2005

Section 17- Right of Children to Free and Compulsory Education, 2009 which

reads as

(1) No child shall be subject to physical punishment or mental harassment

(2) Whoever contravenes the provisions of sub-section (1) shall be liable to

disciplinary action under the service rules applicable to such person

87 Appendix-III

APPENDIX - IV

EXCERPTS FOR FROM SELECT

JUDGMENTS

EXCERPTS FROM SELECT JUDGMENTS

Moderate and Reasonable Punishments in Schools

1.) P. Sankunni v. C.S. Venkatramani, minor by next friend C.S.

Swatninatha Pattar: AIR1922 Mad 200; (1922) ILR 45 Mad 548

Judges: Oldfield J and Venkatasubbaih

This is a petition filed in the High Court of Madras challenging the order of the

lower court that awarded Rs.150 as damages to a Principal for assaulting a

student in his school. On the last day of the term and at the end of the last period,

the students including the complainant demonstrated their satisfaction by

clapping hands. The demonstration in the opinion of the principal had gone

beyond permissible limits and so he went into the class where the noise was

coming from. On entering he found that the complainant along with others was

shaking a rickety desk. It was alleged that although the other boys ran away, the

child continued to shake the desk. The principal (as admitted by him) has given

‘two slaps’ on the cheek of the pupil.

The question that the Court was addressing-

1.) Whether in the circumstances of the case if the slaps given to chastise the

boy was within the principal’s powers and if he should be liable to damages?

2.) If he is liable, are the damages excessive?

Below are the excerpts from the judgment in this case.

Oldfield, J.

‘But there is on the other hand clear support for what defendant's account

generally entails, that the line between mere exuberance and rowdyism was

transgressed and that a substantial breach of discipline was in question’

(para 2)

9) Prafullabhai J. Vagela and Anr v. Pankaj Srikrishnakumar Saxena and

Ors decided on 10/01/2011 Gujarat High Court

This application to quash an FIR was filed in the High Court of Gujarat

Judge: Akil Kureshi

The accused made this application to quash the FIR filed against him in a case of

the death of two children who went missing from the Gurukul they were running

and were later found dead on the banks of the river nearby. The two boys aged 11

and 10 were admitted to the Gurukul and one evening they went missing from

school. The complaint was filed alleging offences punishable under Sections

304 read with Section 114 of the Indian Penal Code as well as Section 23 of

Juvenile Justice (Care and Protection) Act, 2000 against the Petitioners. The

fathers of the children also filed special criminal petitions seeking for an order

for inquiry into the death of the children and also to take action against the

offenders. It was also alleged that the children had died due to the negligence of

people in charge of the gurukul.

The allegation against the accused is that timely search was not made and if it

was undertaken, the lives of the children could have been saved.

The question before the Court was

1) Whether the FIR should be quashed and the investigation be permanently

restrained?

Excerpts of the Judgment

After perusing all the documents on record, the Court opined thus-

‘This is a peculiar case where FIR is not lodged immediately upon

happening of the incident raising suspicion of involvement of accused in

commission of offences alleged. It is a case where FIR is lodged more than a

year after the incident during which time police had sufficient opportunity

and occasion to inquire into various details revolving around the incident.

From the perusal of the complaint itself, reference to the contents whereof

124Appendix-IV

shall be made shortly hereafter, it becomes clear that after detailed inquiry,

FIR has been lodged involving the present Petitioners in the said offence of

culpable homicide not amounting to murder under Section 304 of Indian

Penal Code besides Section 23 of Juvenile Justice(Care and Protection)

Act, 2000.’(para 6)

‘All these factors may attribute a degree of carelessness, negligence,

lethargy in safeguarding the inmates of the school or insensitivity towards

members of the family of boys, but can knowledge be attributed to these

accused that such acts were likely to cause death. In my opinion, answer has

to be in the negative. Whole case built up in the FIR and the attending

material is of accidental death. I do not see how elements of culpable

homicide would be attracted. This is not to suggest that in no case of

accidental death due to negligence, Section 304 of the Indian Penal Code

would not be attracted. In a given case if an act leading to death is so

negligent that the accused ought to have known that such act is likely to

cause death, Section 304 of the Indian Penal Code may be attracted.’ (para

29)

‘All the accused were part of the management of the Ashram. They were

responsible for safety and well being of the inmates. Ashram school

provides for boarding facility. Extremely young students are housed in such

a boarding. The school management and particularly, those in-charge of

the boarding facility were thus responsible for the safety of young students

residing in the hostel. Admittedly, the school and the hostel are situated in

the river bank. The premises are connected to the river through a gate. As

per the allegations in the FIR and the investigation carried out, such gate

was neither locked nor manned. Possibility of young students, out of

curiosity or for playing in the river bed, getting drawn to such area

therefore, ought to have been accounted for. As per the allegations even

after these boys were reported to be missing, the accused did not show

sufficient promptness in searching out the boys. They in fact, according to

the allegations, prevented the relatives of the boys from lodging the

complaint immediately. Even if such dilatory tactics may not have link with

intentionally causing death of the boys and may have been employed in

order not to damage the reputation of the school management, nevertheless,

may have contributed to the death of the boys. All these factors need to be


investigated and looked into by the investigating agency for the purpose of

finding out whether any case of causing death by negligent act is made out.

It is by now well settled that while exercising powers under Section 482 of

the Code of Criminal Procedure and examining the request of accused for

quashing of the complaint, if Court finds that not the offence disclosed in the

complaint, but some other offences are borne out from the allegations in the

complaint, entire complaint need not be quashed, however, investigation

for offences not disclosed but included in the complaint must be stopped. It

is also well established that FIR need not in all cases refer to sections under

which offences alleged in the complaint would fall. In my opinion,

therefore, though no allegations of offence under Section 304 of the Indian

Penal Code are made out in the complaint nor any material collected by the

investigating agency, nevertheless, entire complaint is not required to be

quashed. Investigation can be permitted for offence under Section 304A of

the Indian Penal Code.’(para 32)

‘Simultaneously in the FIR offence under Section 23 of Juvenile Justice

(Care and Protection) Act, 2000 is also made. This aspect also should be

permitted to be investigated. Above observations and conclusions I have

reached were on the basis of investigation made so far. While permitting

further investigation for offence under Section 304A of the Indian Penal

Code, the investigating agency is permitted to file its final report on the

basis of evidence that maybe collected once the investigation is over.’ (para

33)

The Court quashed the FIR as it pertains to Section 304 and permitted the police

to continue their investigations under Section 304 A and Section 23 of the

Juvenile Justice Act, 2000.

126Appendix-IV

10) Hasmukhbhai Gokaldas Shah v. State of Gujarat: 2009 CriLJ 2919;

2009 GLH (1) 526; (2009) 2 GLR 984

This application was made in the High Court of Gujarat

Judges: J.R. Vora and Z.K. Saiyed, JJ.

The accused was a Supervisor in a school in Ahmedabad district. The deceased

boy was a student in that school and on the fatal day, the teacher was informed

that the boy had started his scooter parked in the compound. It is alleged that

accused rushed in the compound and abused deceased boy and also uttered

derogatory words to lower the caste of the deceased. Accused also gave fists and

kick blows to deceased. The father of the boy called upon by the school

authorities in this regard. The father and student both met the accused in the

office of the school. The boy and his father were asked them to give apology and

sign apology letter, which was written and ready. The father of the child signed

such apology letter. Later it was found that the boy had committed suicide laying

down on tracks and was crushed under oncoming train. They found suicide

notes on the boy and father registered a complaint against the teacher thereafter.

The Court of a Special Judge, Ahmedabad (Rural) which convicted the teacher

of offences punishable under Sections 306, 323 of the Indian Penal Code as well

as under Section 3(1)(x) as well as under Section 3(2)(v) of The Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(SC ST Act)

and awarded a sentence of one year rigorous imprisonment and Rs. 1,000/- fine

for offence under 323 of the INDIAN PENAL CODE, and also sentenced him to

undergo rigorous imprisonment of 10 years and to pay fine of Rs. 10,000/- for an

offence of 306 of INDIAN PENAL CODE. He was also sentenced to undergo

rigorous imprisonment of three years and to pay fine of Rs. 3,000/- for an

offence under Section 3(1)(x) of the SCST Act and was also sentenced to

undergo life imprisonment for the offence punishable under Section 3(2)(v) of

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and to

pay fine of Rs. 10,000/-, out of the amount of fine, an amount of Rs. 20,000/- be

paid to the original complainant by way of compensation under Section 357 of

the Indian Penal Code.

This is an appeal against the order of conviction and sentence.


APPENDIX - V

RELEVANT PROVISIONS FROM

THE CONVENTION OF THE RIGHTS

OF THE CHILD, 1989

RELEVANT PROVISIONS FROM THE

CONVENTION OF THE RIGHTS OF THE CHILD, 1989

Article 12

1. States Parties shall assure to the child who is capable of forming his or her

own views the right to express those views freely in all matters affecting the

child, the views of the child being given due weight in accordance with the

age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to

be heard in any judicial and administrative proceedings affecting the child,

either directly, or through a representative or an appropriate body, in a

manner consistent with the procedural rules of national law.

Article 19

1. States Parties shall take all appropriate legislative, administrative, social

and educational measures to protect the child from all forms of physical or

mental violence, injury or abuse, neglect or negligent treatment,

maltreatment or exploitation, including sexual abuse, while in the care of

parent(s), legal guardian(s) or any other person who has the care of the

child.

2. Such protective measures should, as appropriate, include effective

procedures for the establishment of social programmes to provide

necessary support for the child and for those who have the care of the child,

as well as for other forms of prevention and for identification, reporting,

referral, investigation, treatment and follow-up of instances of child

maltreatment described heretofore, and, as appropriate, for judicial

involvement.

Article 20

1. A child temporarily or permanently deprived of his or her family

environment, or in whose own best interests cannot be allowed to remain in

that environment, shall be entitled to special protection and assistance

provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative

care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law,

adoption or if necessary placement in suitable institutions for the care of

children. When considering solutions, due regard shall be paid to the

desirability of continuity in a child's upbringing and to the child's ethnic,

religious, cultural and linguistic background.

Article 28

1. States Parties recognize the right of the child to education, and with a view

to achieving this right progressively and on the basis of equal opportunity,

they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education,

including general and vocational education, make them available and

accessible to every child, and take appropriate measures such as the

introduction of free education and offering financial assistance in case

of need;

(c) Make higher education accessible to all on the basis of capacity by

every appropriate means;

(d) Make educational and vocational information and guidance available

and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the

reduction of drop-out rates.

2. States Parties shall take all appropriate measures to ensure that school

discipline is administered in a manner consistent with the child's human

dignity and in conformity with the present Convention.


Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading

treatment or punishment. Neither capital punishment nor life imprisonment

without possibility of release shall be imposed for offences committed by

persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The

arrest, detention or imprisonment of a child shall be in conformity with the

law and shall be used only as a measure of last resort and for the shortest

appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect

for the inherent dignity of the human person, and in a manner which takes

into account the needs of persons of his or her age. In particular, every child

deprived of liberty shall be separated from adults unless it is considered in

the child's best interest not to do so and shall have the right to maintain

contact with his or her family through correspondence and visits, save in

exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt

access to legal and other appropriate assistance, as well as the right to

challenge the legality of the deprivation of his or her liberty before a court or

other competent, independent and impartial authority, and to a prompt

decision on any such action.

Appendix-V 136

APPENDIX - VI

GENERAL COMMENT NO. 8 (2006)

TO THE CONVENTION

OF THE CHILD

UNITED

NATIONSCRC

Convention on the

Rights of the ChildDistr.

GENERAL

CRC/C/GC/8

2 March 2007

134

Original: ENGLISH

COMMITTEE ON THE RIGHTS OF THE CHILD

Forty-second session

Geneva, 15 May-2 June 2006

general comment nO. 8 (2006)

The right of the child to protection from corporal punishment and other cruelor degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)

134 Re-issued for technical reasons

CONTENTS

Paragraphs

I. OBJECTIVES 1 - 3

II. BACKGROUND 4 - 9

III. DEFINITIONS 10 - 15

IV. HUMAN RIGHTS STANDARDS AND CORPORAL

PUNISHMENT OF CHILDREN 16 - 29

V. MEASURES AND MECHANISMS REQUIRED

TO ELIMINATE CORPORAL PUNISHMENT

AND OTHER CRUEL OR DEGRADING FORMS

OF PUNISHMENT 30 - 52

1. Legislative measures 30 - 37

2. Implementation of prohibition of corporal

punishment and other cruel or degrading forms

of punishment 38 - 43

3. Educational and other measures 44 - 49

4. Monitoring and evaluation 50 - 52

VI REPORTING REQUIREMENTS UNDER THE

CONVENTION 53


I. Objectives

1. Following its two days of general discussion on violence against children,

held in 2000 and 2001, the Committee on the Rights of the Child resolved to

issue a series of general comments concerning eliminating violence against

children, of which this is the first. The Committee aims to guide States

parties in understanding the provisions of the Convention concerning the

protection of children against all forms of violence. This general comment

focuses on corporal punishment and other cruel or degrading forms of

punishment, which are currently very widely accepted and practised forms

of violence against children.

2. The Convention on the Rights of the Child and other international human

rights instruments recognize the right of the child to respect for the child’s

human dignity and physical integrity and equal protection under the law.

The Committee is issuing this general comment to highlight the obligation

of all States parties to move quickly to prohibit and eliminate all corporal

punishment and all other cruel or degrading forms of punishment of

children and to outline the legislative and other awareness-raising and

educational measures that States must take.

3. Addressing the widespread acceptance or tolerance of corporal punishment

of children and eliminating it, in the family, schools and other settings, is not

only an obligation of States parties under the Convention. It is also a key

strategy for reducing and preventing all forms of violence in societies.

II. Background

4. The Committee has, from its earliest sessions, paid special attention to

asserting children’s right to protection from all forms of violence. In its

examination of States parties’ reports, and most recently in the context of

the United Nations Secretary-General’s study on violence against children,

it has noted with great concern the widespread legality and persisting social

approval of corporal punishment and other cruel or degrading punishment 135of children. Already in 1993, the Committee noted in the report of its

fourth session that it “recognized the importance of the question of corporal

135 United Nations Secretary-General’s Study on Violence against Children, due to report to United Nations General Assembly, Autumn 2006. For details see http://www.violencestudy.org.

142Appendix-VI

punishment in improving the system of promotion and protection of the

rights of the child and decided to continue to devote attention to it in the 136 process of examining States parties’ reports”.

5. Since it began examining States parties’ reports the Committee has

recommended prohibition of all corporal punishment, in the family and 137other settings, to more than 130 States in all continents. The Committee is

encouraged that a growing number of States are taking appropriate

legislative and other measures to assert children’s right to respect for their

human dignity and physical integrity and to equal protection under the law.

The Committee understands that by 2006, more than 100 States had

prohibited corporal punishment in their schools and penal systems for

children. A growing number have completed prohibition in the home and 138

family and all forms of alternative care.

6. In September 2000, the Committee held the first of two days of general

discussion on violence against children. It focused on “State violence

against children” and afterwards adopted detailed recommendations,

including for the prohibition of all corporal punishment and the launching

of public information campaigns “to raise awareness and sensitize the

public about the severity of human rights violations in this domain and their

harmful impact on children, and to address cultural acceptance of violence 139against children, promoting instead ‘zero-tolerance’ of violence”.

7. In April 2001, the Committee adopted its first general comment on “The

aims of education” and reiterated that corporal punishment is incompatible

with the Convention: “… Children do not lose their human rights by virtue

of passing through the school gates. Thus, for example, education must be

provided in a way that respects the inherent dignity of the child, enables the

child to express his or her views freely in accordance with article 12,

paragraph 1, and to participate in school life. Education must also be

136 Committee on the Rights of the Child, Report on the fourth session, 25 October 1993, CRC/C/20, para. 176.137 All the Committee’s concluding observations can be viewed at www.ohchr.org.138 The Global Initiative to End All Corporal Punishment of Children provides reports on the legal status of corporal punishment at www.endcorporalpunishment.org.139 Committee on the Rights of the Child, day of general discussion on State violence against children, Report on the twenty-fifth session, September/October 2000, CRC/C/100, paras. 666-688.


provided in a way that respects the strict limits on discipline reflected in

article 28, paragraph 2, and promotes non-violence in school. The

Committee has repeatedly made clear in its concluding observations that

the use of corporal punishment does not respect the inherent dignity of the 140child nor the strict limits on school discipline …”.

8. In recommendations adopted following the second day of general

discussion, on “Violence against children within the family and in schools”,

held in September 2001, the Committee called upon States to “enact or

repeal, as a matter of urgency, their legislation in order to prohibit all forms

of violence, however light, within the family and in schools, including as a 141form of discipline, as required by the provisions of the Convention ...”.

9. Another outcome of the Committee’s 2000 and 2001 days of general

discussion was a recommendation that the United Nations Secretary-

General should be requested, through the General Assembly, to carry out an

in-depth international study on violence against children. The United 142

Nations General Assembly took this forward in 2001. Within the context

of the United Nations study, carried out between 2003 and 2006, the need to

prohibit all currently legalized violence against children has been

highlighted, as has children’s own deep concern at the almost universal high

prevalence of corporal punishment in the family and also its persisting

legality in many States in schools and other institutions, and in penal

systems for children in conflict with the law.

III. Definitions

10. “Child” is defined as in the Convention as “every human being below the

age of eighteen years unless under the law applicable to the child, majority 143

is attained earlier”.

11. The Committee defines “corporal” or “physical” punishment as any

140 Committee on the Rights of the Child, general comment No. 1, The aims of education, 17 April 2001, CRC/GC/2001/1, para. 8.141 Committee on the Rights of the Child, day of general discussion on violence against children within the family and in schools, Report on the twenty-eighth session, September/October 2001, CRC/C/111, paras. 701-745.142 General Assembly Resolution 56/138.143 Article 1.

144Appendix-VI

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 - a whip, stick, belt, shoe, wooden spoon, etc. But it can also

involve, for example, kicking, shaking or throwing children, scratching,

pinching, biting, pulling hair or boxing ears, forcing children to stay in

uncomfortable positions, burning, scalding or forced ingestion (for

example, washing children’s mouths out with soap or forcing them to

swallow hot spices). In the view of the Committee, corporal punishment is

invariably degrading. In addition, there are other non-physical forms of

punishment that are also cruel and degrading and thus incompatible with the

Convention. These include, for example, punishment which belittles,

humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.

12. Corporal punishment and other cruel or degrading forms of punishment of

children take place in many settings, including within the home and family,

in all forms of alternative care, schools and other educational institutions

and justice systems - both as a sentence of the courts and as a punishment

within penal and other institutions - in situations of child labour, and in the

community.

13. In rejecting any justification of violence and humiliation as forms of

punishment for children, the Committee is not in any sense rejecting the

positive concept of discipline. The healthy development of children

depends on parents and other adults for necessary guidance and direction, in

line with children’s evolving capacities, to assist their growth towards

responsible life in society.

14. The Committee recognizes that parenting and caring for children,

especially babies and young children, demand frequent physical actions

and interventions to protect them. This is quite distinct from the deliberate

and punitive use of force to cause some degree of pain, discomfort or

humiliation. As adults, we know for ourselves the difference between a

protective physical action and a punitive assault; it is no more difficult to

make a distinction in relation to actions involving children. The law in all

States, explicitly or implicitly, allows for the use of non-punitive and

necessary force to protect people.


15. The Committee recognizes that there are exceptional circumstances in

which teachers and others, e.g. those working with children in institutions

and with children in conflict with the law, may be confronted by dangerous

behaviour which justifies the use of reasonable restraint to control it. Here

too there is a clear distinction between the use of force motivated by the

need to protect a child or others and the use of force to punish. The principle

of the minimum necessary use of force for the shortest necessary period of

time must always apply. Detailed guidance and training is also required,

both to minimize the necessity to use restraint and to ensure that any

methods used are safe and proportionate to the situation and do not involve

the deliberate infliction of pain as a form of control.

IV. Human rights standards and corporal punishment of children

16. Before the adoption of the Convention on the Rights of the Child, the

International Bill of Human Rights - the Universal Declaration and the two

International Covenants, on Civil and Political Rights and on Economic,

Social and Cultural Rights - upheld “everyone’s” right to respect for his/her

human dignity and physical integrity and to equal protection under the law.

In asserting States’ obligation to prohibit and eliminate all corporal

punishment and all other cruel or degrading forms of punishment, the

Committee notes that the Convention on the Rights of the Child builds on

this foundation. The dignity of each and every individual is the fundamental

guiding principle of international human rights law.

17. The preamble to the Convention on the Rights of the Child affirms, in

accordance with the principles in the Charter of the United Nations,

repeated in the preamble to the Universal Declaration, that “recognition of

the inherent dignity and of the equal and inalienablerights of all members of

the human family is the foundation of freedom, justice and peace in the

world”. The preamble to the Convention also recalls that, in the Universal

Declaration, the United Nations “has proclaimed that childhood is entitled

to special care and assistance”.

18. Article 37 of the Convention requires States to ensure that “no child shall be

subjected to torture or other cruel, inhuman or degrading treatment or

146Appendix-VI

punishment”. This is complemented and extended by article 19, which

requires States to “take all appropriate legislative, administrative, social

and educational measures to protect the child from all forms of physical or

mental violence, injury or abuse, neglect or negligent treatment,

maltreatment or exploitation, including sexual abuse, while in the care of

parent(s), legal guardian(s) or any other person who has the care of the

child”. There is no ambiguity: “all forms of physical or mental violence”

does not leave room for any level of legalized violence against children.

Corporal punishment and other cruel or degrading forms of punishment are

forms of violence and States must take all appropriate legislative,

administrative, social and educational measures to eliminate them.

19. In addition, article 28, paragraph 2, of the Convention refers to school

discipline and requires States parties to “take all appropriate measures to

ensure that school discipline is administered in a manner consistent with the

child’s human dignity and in conformity with the present Convention”.

20. Article 19 and article 28, paragraph 2, do not refer explicitly to corporal

punishment. The travaux prépara toires for the Convention do not record

any discussion of corporal punishment during the drafting sessions. But the

Convention, like all human rights instruments, must be regarded as a living

instrument, whose interpretation develops over time. In the 17 years since

the Convention was adopted, the prevalence of corporal punishment of

children in their homes, schools and other institutions has become more

visible, through the reporting process under the Convention and through

research and advocacy by, among others, national human rights institutions

and non-governmental organizations (NGOs).

21. Once visible, it is clear that the practice directly conflicts with the equal and

inalienable rights of children to respect for their human dignity and physical

integrity. The distinct nature of children, their initial dependent and

developmental state, their unique human potential as well as their

vulnerability, all demand the need for more, rather than less, legal and other

protection from all forms of violence.

22. The Committee emphasizes that eliminating violent and humiliating

punishment of children, through law reform and other necessary measures,


is an immediate and unqualified obligation of States parties. It notes that

other treaty bodies, including the Human Rights Committee, the Committee

on Economic, Social and Cultural Rights and the Committee against

Torture have reflected the same view in their concluding observations on

States parties’ reports under the relevant instruments, recommending

prohibition and other measures against corporal punishment in schools,

penal systems and, in some cases, the family. For example, the Committee

on Economic, Social and Cultural Rights, in its general comment No. 13

(1999) on “The right to education” stated: “In the Committee’s view,

corporal punishment is inconsistent with the fundamental guiding principle

of international human rights law enshrined in the Preambles to the

Universal Declaration and both Covenants: the dignity of the individual.

Other aspects of school discipline may also be inconsistent with school 144discipline, including public humiliation.”

23. Corporal punishment has also been condemned by regional human rights

mechanisms. The European Court of Human Rights, in a series of

judgements, has progressively condemned corporal punishment of

children, first in the penal system, then in schools, including private 145

schools, and most recently in the home. The European Committee of

Social Rights, monitoring compliance of member States of the Council of

Europe with the European Social Charter and Revised Social Charter, has

found that compliance with the Charters requires prohibition in legislation

against any form of violence against children, whether at school, in other 146institutions, in their home or elsewhere.

24. An Advisory Opinion of the Inter-American Court of Human Rights, on the

144 Committee on Economic, Social and Cultural Rights, general comment No. 13, The right to education (art. 13), 1999, para. 41.145 Corporal punishment was condemned in a series of decisions of the European Commission on Human Rights and judgements of the European Court of Human Rights; see in particular Tyrer v. UK, 1978; Campbell and Cosans v. UK, 1982; Costello-Roberts v. UK, 1993; A v. UK, 1998. European Court judgements are available at http://www.echr.coe.int/echr.146 European Committee of Social Rights, general observations regarding article 7, paragraph 10, and article 17. Conclusions XV-2, Vol. 1, General Introduction, p. 26, 2001; the Committee has since issued conclusions, finding a number of Member States not in compliance because of their failure to prohibit all corporal punishment in the family and in other settings. In 2005 it issued decisions on collective complaints made under the charters, finding three States not in compliance because of their failure to prohibit. For details, see http://www.coe.int/T/E/ Human_Rights/Esc/; also Eliminating Corporal Punishment: A Human Rights Imperative for Europe’s Children, Council of Europe Publishing, 2005.

148Appendix-VI

Legal Status and Human Rights of the Child (2002) holds that the States

parties to the American Convention on Human Rights “are under the

obligation … to adopt all positive measures required to ensure protection of

children against mistreatment, whether in their relations with public

authorities, or in relations among individuals or with non-governmental

entities”. The Court quotes provisions of the Convention on the Rights of

the Child, conclusions of the Committee on the Rights of the Child and also

judgements of the European Court of Human Rights relating to States’

obligations to protect children from violence, including within the family.

The Court concludes that “the State has the duty to adopt positive measures 147to fully ensure effective exercise of the rights of the child”.

25. The African Commission on Human and Peoples’ Rights monitors

implementation of the African Charter on Human and Peoples’ Rights. In a

2003 decision on an individual communication concerning a sentence of

“lashes” imposed on students, the Commission found that the punishment

violated article 5 of the African Charter, which prohibits cruel, inhuman or

degrading punishment. It requested the relevant Government to amend the

law, abolishing the penalty of lashes, and to take appropriate measures to

ensure compensation of the victims. In its decision, the Commission states:

“There is no right for individuals, and particularly the Government of a

country to apply physical violence to individuals for offences. Such a right

would be tantamount to sanctioning State-sponsored torture under the 148Charter and contrary to the very nature of this human rights treaty.” The

Committee on the Rights of the Child is pleased to note that constitutional

and other high-level courts in many countries have issued decisions

condemning corporal punishment of children in some or all settings, and in 149most cases quoting the Convention on the Rights of the Child.

147 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of 28 August 2002, paras 87 and 91.148 African Commission on Human and Peoples’ Rights, Curtis Francis Doebbler v. Sudan, Comm. No. 236/2000 (2003); see para. 42.149 For example, in 2002 the Fiji Court of Appeal declared corporal punishment in schools and the penal system unconstitutional. The judgement declared: “Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students” (Fiji Court of Appeal, Naushad Ali v. State, 2002). In 1996, Italy’s highest Court, the Supreme Court of Cassation in Rome, issued a decision that effectively prohibited all


26. When the Committee on the Rights of the Child has raised eliminating

corporal punishment with certain States during the examination of their

reports, governmental representatives have sometimes suggested that some

level of “reasonable” or “moderate” corporal punishment can be justified as

in the “best interests” of the child. The Committee has identified, as an

important general principle, the Convention’s requirement that the best

interests of the child should be a primary consideration in all actions

concerning children (art. 3, para. 1). The Convention also asserts, in article

18, that the best interests of the child will be parents’ basic concern. But

interpretation of a child’s best interests must be consistent with the whole

Convention, including the obligation to protect children from all forms of

violence and the requirement to give due weight to the child’s views; it

cannot be used to justify practices, including corporal punishment and other

forms of cruel or degrading punishment, which conflict with the child’s

human dignity and right to physical integrity.

27. The preamble to the Convention upholds the family as “the fundamental

group of society and the natural environment for the growth and well-being

of all its members and particularly children”. The Convention requires

States to respect and support families. There is no conflict whatsoever with

States’ obligation to ensure that the human dignity and physical integrity of

children within the family receive full protection alongside other family

members. 28. Article 5 requires States to respect the responsibilities, rights

and duties of parents “to provide, in a manner consistent with the evolving

capacities of the child, appropriate direction and guidance in the exercise by

the child of the rights recognized in the present Convention”. Here again,

interpretation of “appropriate” direction and guidance must be consistent

with the whole Convention and leaves no room for justification of violent or

other cruel or degrading forms of discipline.

parental use of corporal punishment. The judgement states: “… The use of violence for educational purposes can no longer be considered lawful. There are two reasons for this: the first is the overriding importance which the [Italian] legal system attributes to protecting the dignity of the individual. This includes ‘minors’ who now hold rights and are no longer simply objects to be protected by their parents or, worse still, objects at the disposal of their parents. The second reason is that, as an educational aim, the harmonious development of a child’s personality, which ensures that he/she embraces the values of peace, tolerance and co-existence, cannot be achieved by using violent means which contradict these goals” (Cambria, Cass, sez. VI, 18 Marzo 1996 [Supreme Court of Cassation, 6th Penal Section, 18 March 1996], Foro It II 1996 407 (Italy)). Also see South African Constitutional Court (2000) Christian Education South Africa v. Minister of Education, CCT4/00; 2000 (4) SA757 (CC); 2000 (10) BCLR 1051 (CC), 18 August 2000.

150Appendix-VI

29. Some raise faith-based justifications for corporal punishment, suggesting

that certain interpretations of religious texts not only justify its use, but

provide a duty to use it. Freedom of religious belief is upheld for everyone in

the International Covenant on Civil and Political Rights (art. 18), but

practice of a religion or belief must be consistent with respect for others’

human dignity and physical integrity. Freedom to practise one’s religion or

belief may be legitimately limited in order to protect the fundamental rights

and freedoms of others. In certain States, the Committee has found that

children, in some cases from a very young age, in other cases from the time

that they are judged to have reached puberty, may be sentenced to

punishments of extreme violence, including stoning and amputation,

prescribed under certain interpretations of religious law. Such punishments

plainly violate the Convention and other international human rights

standards, as has been highlighted also by the Human Rights Committee

and the Committee against Torture, and must be prohibited.


V. Measures and mechanisms required to

eliminate corporal punishment and other cruel

or degrading forms of punishment

1. Legislative measures

30. The wording of article 19 of the Convention builds upon article 4 and makes

clear that legislative as well as other measures are required to fulfil States’

obligations to protect children from all forms of violence. The Committee

has welcomed the fact that, in many States, the Convention or its principles

have been incorporated into domestic law. All States have criminal laws to

protect citizens from assault. Many have constitutions and/or legislation

reflecting international human rights standards and article 37 of the

Convention on the Rights of the Child, which uphold “everyone’s” right to

protection from torture and cruel, inhuman or degrading treatment or

punishment. Many also have specific child protection laws that make “ill-

treatment” or “abuse” or “cruelty” an offence. But the Committee has

learned from its examination of States’ reports that such legislative

provisions do not generally guarantee the child protection from all corporal

punishment and other cruel or degrading forms of punishment, in the family

and in other settings.

31. In its examination of reports, the Committee has noted that in many States

there are explicit legal provisions in criminal and/or civil (family) codes

that provide parents and other carers with a defence or justification for using

some degree of violence in “disciplining” children. For example, the

defence of “lawful”, “reasonable” or “moderate” chastisement or

correction has formed part of English common law for centuries, as has a

“right of correction” in French law. At one time in many States the same

defence was also available to justify the chastisement of wives by their

husbands and of slaves, servants and apprentices by their masters. The

Committee emphasizes that the Convention requires the removal of any

provisions (in statute or common - case law) that allow some degree of

violence against children (e.g. “reasonable” or “moderate” chastisement or

correction), in their homes/families or in any other setting.

32. In some States, corporal punishment is specifically authorized in schools

and other institutions, with regulations setting out how it is to be

152Appendix-VI

administered and by whom. And in a minority of States, corporal

punishment using canes or whips is still authorized as a sentence of the

courts for child offenders. As frequently reiterated by the Committee, the

Convention requires the repeal of all such provisions.

33. In some States, the Committee has observed that while there is no explicit

defence or justification of corporal punishment in the legislation,

nevertheless traditional attitudes to children imply that corporal

punishment is permitted. Sometimes these attitudes are reflected in court

decisions (in which parents or teachers or other carers have been acquitted

of assault or ill-treatment on the grounds that they were exercising a right or

freedom to use moderate “correction”).

34. In the light of the traditional acceptance of violent and humiliating forms of

punishment of children, a growing number of States have recognized that

simply repealing authorization of corporal punishment and any existing

defences is not enough. In addition, explicit prohibition of corporal

punishment and other cruel or degrading forms of punishment, in their civil

or criminal legislation, is required in order to make it absolutely clear that it

is as unlawful to hit or “smack” or “spank” a child as to do so to an adult, and

that the criminal law on assault does apply equally to such violence,

regardless of whether it is termed “discipline” or “reasonable correction”.

35. Once the criminal law applies fully to assaults on children, the child is

protected from corporal punishment wherever he or she is and whoever the

perpetrator is. But in the view of the Committee, given the traditional

acceptance of corporal punishment, it is essential that the applicable

sectoral legislation - e.g. family law, education law, law relating to all forms

of alternative care and justice systems, employment law - clearly prohibits

its use in the relevant settings. In addition, it is valuable if professional

codes of ethics and guidance for teachers, carers and others, and also the

rules or charters of institutions, emphasize the illegality of corporal

punishment and other cruel or degrading forms of punishment.

36. The Committee is also concerned at reports that corporal punishment and

other cruel or degrading punishments are used in situations of child labour,

including in the domestic context. The Committee reiterates that the

Convention and other applicable human rights instruments protect the child


from economic exploitation and from any work that is likely to be

hazardous, interferes with the child’s education, or is harmful to the child’s

development, and that they require certain safeguards to ensure the

effective enforcement of this protection. The Committee emphasizes that it

is essential that the prohibition of corporal punishment and other cruel or

degrading forms of punishment must be enforced in any situations in which

children are working.

37. Article 39 of the Convention requires States to take all appropriate

measures to promote physical and psychological recovery and social

reintegration of a child victim of “any form of neglect, exploitation, or

abuse; torture or any other form of cruel, inhuman or degrading treatment or

punishment”. Corporal punishment and other degrading forms of

punishment may inflict serious damage to the physical, psychological and

social development of children, requiring appropriate health and other care

and treatment. This must take place in an environment that fosters the

integral health, self-respect and dignity of the child, and be extended as

appropriate to the child’s family group. There should be an interdisciplinary

approach to planning and providing care and treatment, with specialized

training of the professionals involved. The child’s views should be given

due weight concerning all aspects of their treatment and in reviewing it.

154Appendix-VI

2. Implementation of prohibition of corporal punishment

and other cruel or degrading forms of punishment

38. The Committee believes that implementation of the prohibition of all

corporal punishment requires awareness-raising, guidance and training

(see paragraph 45 et seq. below) for all those involved. This must ensure

that the law operates in the best interests of the affected children - in

particular when parents or other close family members are the perpetrators.

The first purpose of law reform to prohibit corporal punishment of children

within the family is prevention: to prevent violence against children by

changing attitudes and practice, underlining children’s right to equal

protection and providing an unambiguous foundation for child protection

and for the promotion of positive, non-violent and participatory forms of

child-rearing.

39. Achieving a clear and unconditional prohibition of all corporal punishment

will require varying legal reforms in different States parties. It may require

specific provisions in sectoral laws covering education, juvenile justice and

all forms of alternative care. But it should be made explicitly clear that the

criminal law provisions on assault also cover all corporal punishment,

including in the family. This may require an additional provision in the

criminal code of the State party. But it is also possible to include a provision

in the civil code or family law, prohibiting the use of all forms of violence,

including all corporal punishment. Such a provision emphasizes that

parents or other caretakers can no longer use any traditional defence that it

is their right (“reasonably” or “moderately”) to use corporal punishment if

they face prosecution under the criminal code. Family law should also

positively emphasize that parental responsibility includes providing

appropriate direction and guidance to children without any form of

violence.

40. The principle of equal protection of children and adults from assault,

including within the family, does not mean that all cases of corporal

punishment of children by their parents that come to light should lead to

prosecution of parents. The de minimis principle - that the law does not

concern itself with trivial matters - ensures that minor assaults between

adults only come to court in very exceptional circumstances; the same will


be true of minor assaults on children. States need to develop effective

reporting and referral mechanisms. While all reports of violence against

children should be appropriately investigated and their protection from

significant harm assured, the aim should be to stop parents from using

violent or other cruel or degrading punishments through supportive and

educational, not punitive, interventions.

41. Children’s dependent status and the unique intimacy of family relations

demand that decisions to prosecute parents, or to formally intervene in the

family in other ways, should be taken with very great care. Prosecuting

parents is in most cases unlikely to be in their children’s best interests. It is

the Committee’s view that prosecution and other formal interventions (for

example, to remove the child or remove the perpetrator) should only

proceed when they are regarded both as necessary to protect the child from

significant harm and as being in the best interests of the affected child. The

affected child’s views should be given due weight, according to his or her

age and maturity.

42. Advice and training for all those involved in child protection systems,

including the police, prosecuting authorities and the courts, should

underline this approach to enforcement of the law. Guidance should also

emphasize that article 9 of the Convention requires that any separation of

the child from his or her parents must be deemed necessary in the best

interests of the child and be subject to judicial review, in accordance with

applicable law and procedures, with all interested parties, including the

child, represented. Where separation is deemed to be justified, alternatives

to placement of the child outside the family should be considered, including

removal of the perpetrator, suspended sentencing, and so on.

43. Where, despite prohibition and positive education and training

programmes, cases of corporal punishment come to light outside the family

home - in schools, other institutions and forms of alternative care, for

example - prosecution may be a reasonable response. The threat to the

perpetrator of other disciplinary action or dismissal should also act as a

clear deterrent. It is essential that the prohibition of all corporal punishment

and other cruel or degrading punishment, and the sanctions that may be

imposed if it is inflicted, should be well disseminated to children and to all

156Appendix-VI

those working with or for children in all settings. Monitoring disciplinary

systems and the treatment of children must be part of the sustained

supervision of all institutions and placements which is required by the

Convention. Children and their representatives in all such placements must

have immediate and confidential access to child-sensitive advice, advocacy

and complaints procedures and ultimately to the courts, with necessary

legal and other assistance. In institutions, there should be a requirement to

report and to review any violent incidents. 3. Educational and other

measures

44. Article 12 of the Convention underlines the importance of giving due

consideration to children’s views on the development and implementation

of educational and other measures to eradicate corporal punishment and

other cruel or degrading forms of punishment.

45. Given the widespread traditional acceptance of corporal punishment,

prohibition on its own will not achieve the necessary change in attitudes and

practice. Comprehensive awareness-raising of children’s right to protection

and of the laws that reflect this right is required. Under article 42 of the

Convention, States undertake to make the principles and provisions of the

Convention widely known, by appropriate and active means, to adults and

children alike.

46. In addition, States must ensure that positive, non-violent relationships and

education are consistently promoted to parents, carers, teachers and all

others who work with children and families. The Committee emphasizes

that the Convention requires the elimination not only of corporal

punishment but of all other cruel or degrading punishment of children. It is

not for the Convention to prescribe in detail how parents should relate to or

guide their children. But the Convention does provide a framework of

principles to guide relationships both within the family, and between

teachers, carers and others and children. Children’s developmental needs

must be respected. Children learn from what adults do, not only from what

adults say. When the adults to whom a child most closely relates use

violence and humiliation in their relationship with the child, they are

demonstrating disrespect for human rights and teaching a potent and

dangerous lesson that these are legitimate ways to seek to resolve conflict or

change behaviour.


47. The Convention asserts the status of the child as an individual person and

holder of human rights. The child is not a possession of parents, nor of the

State, nor simply an object of concern. In this spirit, article 5 requires

parents (or, where applicable, members of the extended family or

community) to provide the child with appropriate direction and guidance, in

a manner consistent with his/her evolving capacities, in the exercise by the

child of the rights recognized in the Convention. Article 18, which

underlines the primary responsibility of parents, or legal guardians, for the

upbringing and development of the child, states that “the best interests of

the child will be their basic concern”. Under article 12, States are required to

assure children the right to express their views freely “in all matters

affecting the child”, with the views of the child being given due weight in

accordance with age and maturity. This emphasizes the need for styles of

parenting, caring and teaching that respect children’s participation rights. In

its general comment No. 1 on “The aims of education”, the Committee has

emphasized the importance of developing education that is “child-centred, 150

child-friendly and empowering”.

48. The Committee notes that there are now many examples of materials and

programmes promoting positive, non-violent forms of parenting and

education, addressed to parents, other carers and teachers and developed by 151

Governments, United Nations agencies, NGOs and others. These can be

appropriately adapted for use in different States and situations. The media

can play a very valuable role in awareness-raising and public education.

Challenging traditional dependence on corporal punishment and other cruel

or degrading forms of discipline requires sustained action. The promotion

of non-violent forms of parenting and education should be built into all the

points of contact between the State and parents and children, in health,

welfare and educational services, including early childhood institutions,

day-care centres and schools. It should also be integrated into the initial and

in-service training of teachers and all those working with children in care

and justice systems.

150 See note 11.151 The Committee commends, as one example, UNESCO’s handbook, Eliminating corporal punishment: the way forward to constructive child discipline, UNESCO Publishing, Paris, 2005. This provides a set of principles for constructive discipline, rooted in the Convention. It also includes Internet references to materials and programmes available worldwide.

158Appendix-VI

49. The Committee proposes that States may wish to seek technical assistance

from, among others, UNICEF and UNESCO concerning awareness-

raising, public education and training to promote non-violent approaches.

4. Monitoring and evaluation

50. The Committee, in its general comment No. 5 on “General measures of

implementation for the Convention on the Rights of the Child (arts. 4, 42

and 44, para. 6) ”, emphasizes the need for systematic monitoring by States

parties of the realization of children’s rights, through the development of 152

appropriate indicators and the collection of sufficient and reliable data.

51. Therefore States parties should monitor their progress towards eliminating

corporal punishment and other cruel or degrading forms of punishment and

thus realizing children’s right to protection. Research using interviews with

children, their parents and other carers, in conditions of confidentiality and

with appropriate ethical safeguards, is essential in order to accurately assess

the prevalence of these forms of violence within the family and attitudes to

them. The Committee encourages every State to carry out/commission such

research, as far as possible with groups representative of the whole

population, to provide baseline information and then at regular intervals to

measure progress. The results of this research can also provide valuable

guidance for the development of universal and targeted awareness-raising

campaigns and training for professionals working with or for children.

52. The Committee also underlines in general comment No. 5 the importance of

independent monitoring of implementation by, for example, parliamentary

committees, NGOs, academic institutions, professional associations, youth

groups and independent human rights institutions (see also the Committee’s

general comment No. 2 on “The role of independent national human rights 153 institutions in the protection and promotion of the rights of the child”).

These could all play an important role in monitoring the realization of

children’s right to protection from all corporal punishment and other cruel

or degrading forms of punishment.

152 Committee on the Rights of the Child, General Comment No. 5 (2003), “General measures of implementation for the Convention on the Rights of the Child”, para. 2.153 Committee on the Rights of the Child, General Comment No. 2 on “The role of independent national human rights institutions in the promotion and protection of the rights of the child”, 2002


VI. Reporting requirements under the Convention

53. The Committee expects States to include in their periodic reports under the

Convention information on the measures taken to prohibit and prevent all

corporal punishment and other cruel or degrading forms of punishment in

the family and all other settings, including on related awareness-raising

activities and promotion of positive, non-violent relationships and on the

State’s evaluation of progress towards achieving full respect for children’s

rights to protection from all forms of violence. The Committee also

encourages United Nations agencies, national human rights institutions,

NGOs and other competent bodies to provide it with relevant information

on the legal status and prevalence of corporal punishment and progress

towards its elimination.

Notes

160Appendix-VI

APPENDIX - VII

SUMMARY REPORT ON STATUS

OF BAN ALL OVER THE WORLD:

GLOBAL PROGRESS TOWARDS

PROHIBITING ALL CORPORAL

PUNISHMENT