Recently, two High Courts in the country passed important judgments on corporal punishment.
In Sibin SV v. State of Kerala, a school teacher was alleged to have assaulted a Class VI student with a cane. The student’s father lodged a complaint against the teacher, who was charged under Section 118(1), Bharatiya Nyaya Sanhita, 2023 (BNS) (voluntarily causing hurt by dangerous weapons or means) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) [punishment for cruelty to child]. The High Court granted bail to the teacher and also directed that in cases of criminal complaints against teachers in educational institutions by parents or students, a preliminary enquiry should be mandatorily conducted to establish a prima facie case before proceeding with the matter under Section 173(3)(i), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The Kerala High Court highlighted the disciplinary role of teachers and the fear of criminal prosecution amongst them when taking disciplinary measures against students. It noted that “parents are giving a free hand to the teachers to do the needful for better development of the mental health, physical health, discipline and of course educational need,” when they entrust children with schools and teachers. It then justified giving teachers freedom to impose disciplinary measures on students, given that “behaviour of the young generation” is particularly “alarming” today. It advised teachers “to carry a cane in their hand while they are in educational institutions” and even if it may not be used, “the mere presence of a cane with teachers will create a psychological effect in the student community by discouraging them from doing any social evils.” Further, it stated that cases are being lodged against teachers “alleging serious offences for silly matters” and “even when a student is pinched or pushed or poked without any malice, criminal cases are registered against them.” The Court finally said that for minor punishments without any malice by teachers in school, teachers should be protected from criminal prosecution.
In another case, Savitha Gowda v. State of Karnataka, a physical instructor at a school was accused of beating students with sticks for failure to obey her orders. She was alleged to have beaten a Class VI student, which led to registration of an case against her in 2023. The instructor was charged for offences under Section 82, JJ Act (corporal punishment), Section 324, IPC (voluntarily causing hurt by dangerous weapons or means), Section 201, IPC (causing disappearance of evidence of offence, or giving false information to screen offender) and Section 34, IPC (acts done by several persons in furtherance of common intention). She moved the Karnataka High Court seeking quashing of the proceedings against her.
The High Court referred to Rajan @Raju v. The Sub Inspector of Police & Ors and noted that the prosecution failed to establish “that the chastisement administered by the petitioner exceeded the child’s capacity to endure it.” It stated that the allegations do not satisfy the essential elements to constitute a case under Section 324, IPC and continuation of the proceedings will lead to abuse of the process of the law. Based on these reasons, the High Court quashed the case.
Section 2(24) of the JJ Act defines corporal punishment as “subjecting a child by any person to physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming the child.
Section 82, JJ Act punishes corporal punishment in a child care institution with fine, imprisonment, dismissal from service and debarment on working with children thereafter. Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 prohibits physical punishment and mental harassment to a child. Similarly, the National Charter for Children, 2003 under para 9 and the National Policy for Children, 2013, under para 4.6 (xv) provide for protection from corporal punishment. In 2021, the National Commission for Protection of Child Rights (NCPCR) issued Guidelines for Eliminating Corporal Punishment in Schools which states,
“Corporal punishment amounts to abuse and militates against the freedom and dignity of a child. It also interferes with a child’s right to education because fear of corporal punishment makes children more likely to avoid school or to drop out altogether."
It leads to children avoiding schools or dropping out from them. In corporal punishment cases, a common defence is Section 27, BNS/Section 89, IPC which provides protection to acts “done in good faith for the benefit of a person under twelve years of age”. The United Nations Convention on the Rights of the Child, 1989 (UNCRC), which India ratified in 1992, also provides protection of children from all forms of physical or mental violence and maltreatment under Articles 19, 28(2) and 37.
In Parents Forum for Meaningful Education v. Union of India & Another, Rule 37(1)(a)(ii) and Rule 37(4) of the Delhi School Education Rules, 1973, which provide for corporal punishment as a form of disciplinary measure, were constitutionally challenged. The Delhi High Court allowed the petition and struck down the Rules as they were violative of Article 14 and 21 of the Constitution. It also explained that infliction of corporal punishment has varied effects on different children and some children may learn to understand physical violence as a means to exercise control and violence. It importantly noted that, “to allow even minimum violence to children can degenerate into aggravated form” and “a teacher using the rod cannot every time be mindful of the force with which he may be hitting the child.”
In Sister Mercy Elizabeth Jose (Devasiya) v. State of Chhattisgarh, a teacher filed a petition for quashing a case against her under Section 305, IPC/Section 107, BNS (abetment of suicide of child or person of unsound mind). She was alleged to have abetted the suicide of a Class VI student she taught in her school. The Chhattisgarh High Court refused to quash the case and subsequent proceedings. It also recognised that corporal punishment to a child is a violation of Article 21 of the Constitution of India and it “scars the mind of the child and robs him of his dignity”.
In both cases, the Kerala and the Karnataka High Courts failed to consider the issue of corporal punishment from a child rights lens and justified the use of corporal punishment as benefiting children. They also failed to recognise children as rights-holders and made no detailed references to relevant protections against corporal punishment under the law. For instance, the UNCRC rejects “justification of violence and humiliation as forms of punishment for children” and advocates that minimum necessary force for the shortest necessary time period should be applied by teachers and others working with children. It asserts that a child is an individual person, “holder of human rights” and not “a possession of parents, nor of the State, nor simply an object of concern”. It also highlights that education to children should be imparted in ways that respects their dignity and use of corporal punishment does not align with this objective.
While the courts may be concerned about the implications of using criminal law against teachers, it is essential that corporal punishment is not justified for any reason including discipline and correction of students. In the Savitha Gowda case, the Karnataka High Court went a step further to introduce an illogical consideration under Section 324, IPC that the punishment meted to the student is not beyond what she could endure, displaying insensitivity and lack of understanding of the law. It did not offer any explanation as to how this led to the conclusion that essential elements to constitute an offence under Section 324, IPC were not satisfied in the case.
Corporal punishment is a violation of fundamental rights of children under the law including their right to life, dignity, physical integrity, health and education. Research on its effects note negative outcomes for children including physical harms, mental ill-health, low self-esteem, increased aggression, impaired socio-emotional and cognitive development, etc. Corporal punishment has no positive outcomes. It is also an example of the extreme power imbalance between students and teachers.
Elaborate guidance and training to ensure safe and proportionate methods to control a situation involving children is required. It is noteworthy that the NCPCR Guidelines for Eliminating Corporal Punishment in Schools has a dedicated chapter on “Affirmative Action in Schools Towards Positive Development of Children” which focuses on positive engagement with children, creation of conducive learning environment and guidelines to deal with different situations, agency of children and responsibilities of different stakeholders.
Courts need to understand the vulnerabilities of children as a class and approach cases of corporal punishment from a rights-based approach.
Ranu Tiwari is a Legal Researcher at Enfold Proactive Health Trust. She gratefully acknowledges Swagata Raha, Director - Research, and Shruthi Ramakrishnan, Associate Director - Research, Enfold Proactive Health Trust, for their detailed suggestions and assistance with editing and proofreading.