Protecting children against corporal punishment

Source: By The Indian Express

Three private school teachers in Pune have been booked under the Juvenile Justice Act over allegedly thrashing three Class 10 students, and threatening to grade them poorly in internal assessments. A look at the legal provisions that bar corporal punishment, and who has the responsibilty to protect children against abuse.

What is corporal punishment?

By definition, corporal punishment means punishment that is physical in nature. While there is no statutory definition of ‘corporal punishment’ targeting children in the Indian law, the Right of Children to Free and Compulsory Education (RTE) Act 2009 prohibits ‘physical punishment’ and ‘mental harassment’ under Section 17(1) and makes it a punishable offence under Section 17(2).

According to the Guidelines for Eliminating Corporal Punishment in Schools issued by the National Commission for Protection of Child Rights (NCPCR), physical punishment is understood as any action that causes pain, hurt/injury and discomfort to a child, however light. Examples include hitting, kicking, scratching, pinching, biting, pulling the hair, boxing ears, smacking, slapping, spanking, hitting with any implement (cane, stick, shoe, chalk, dusters, belt, whip), giving electric shock and so on. It includes making children assume an uncomfortable position (standing on bench, standing against the wall in a chair-like position, standing with school bag on head, holding ears through legs, kneeling, forced ingestion of anything, detention in the classroom, library, toilet or any closed space in the school.

Mental harassment, meanwhile, is understood as any non-physical treatment that is detrimental to the academic and psychological well-being of a child including sarcasm, calling names and scolding using humiliating adjectives, intimidation, using derogatory remarks for the child, ridiculing or belittling a child, shaming the child and more.

What are provisions under the law against such punishment?

Section 17 of the Right to Education Act, 2009, imposes an absolute bar on corporal punishment. It prohibits physical punishment and mental harassment to children and prescribes disciplinary action to be taken against the guilty person in accordance with the service rules applicable to such person. Section 75 of the Juvenile Justice Act prescribes punishment for cruelty to children.

Whenever a child is assaulted, abused, exposed or neglected in a manner to cause physical or mental suffering by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, the punishment would be rigorous imprisonment upto five years and fine up to Rs 5 lakh.

If the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, then imprisonment may extend upto ten years.

Section 23 of the JJ Act, 2000 states: “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 term which may extend to six months, or fine, or with both.”

While Section 23 is likely to be applied most often to personnel in childcare institutions regulated by the JJ Act, it arguably applies to cruelty by anyone in a position of authority over a child, which would include parents, guardians, teachers and employers.

Meanwhile, the RTE Act does not preclude the application of other legislation that relates to the violations of the rights of the child, for example, booking the offenses under the IPC and the SC and ST Prevention of Atrocities Act of 1989.

In theory, corporal punishment is covered by all the provisions under Indian law that punish perpetrators of physical harm. While these provisions make no distinction between adults and children, in practice, corporal punishment in schools and other institutions tends not to be prosecuted because it is still accepted socially at several places.

Several provisions of the Indian Penal Code (IPC) relating to varying degrees of physical harm and intimidation can be used to prosecute perpetrators of corporal punishment against children in an institutional setting, depending on the situation and extent of the crime/act, including Section 305 pertaining to abetment of suicide committed by a child, Section 323 pertaining to voluntarily causing hurt or Section 325 which is about voluntarily causing grievous hurt, and so on.

What do NCPCR guidelines say about eliminating corporal punishment?

The NCPCR guidelines for eliminating corporal punishment against children require every school to develop a mechanism and frame clear cut protocols to address grievances of students.

Drop boxes are to be placed where the aggrieved person may drop his complaint and anonymity is to be maintained to protect privacy.

Every school has to constitute a ‘Corporal Punishment Monitoring Cell’ consisting of two teachers, two parents, one doctor, one lawyer (nominated by DLSA), counsellor, an independent child rights activist of that area and two senior students from that school. This CPMC shall look into complaints of corporal punishments.

Who is entrusted with the responsibility to ensure children are protected?

While a parent or caregiver can take the protection of the IPC and the JJ Act to file a police complaint in cases of corporal punishment, there are relevant authorities earmarked to ensure the protection of children in schools.

Under Section 31 of the RTE Act, the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCRs) have been entrusted with the task of monitoring children’s right to education. The state governments under their RTE rules have also notified block/district level grievance redressal agencies under the RTE Act.

In 2018, Maharashtra state education department issued a circular asking schools to adopt the NCPCR guidelines and conduct workshops for principals, teachers, support staff of all schools affiliated to any board on a priority basis. It asked schools to take an undertaking from teachers that they would not resort to any physical or mental harassment or discrimination against students.

In his written reply to a question in the Lok Sabha on corporal punishment, then union MHRD minister Prakash Javadekar had said on 18 July 2016 that “the Affiliation Byelaws of the Central Board of Secondary Education (CBSE) empower the School Managing Committee to place an employee under suspension if charged with cruelty with any student or employee of the school. CBSE has also issued guidelines to schools for ensuring an atmosphere free from fear in each affiliated school”.