Human Rights advocacy
Spare the rod and save the child
Possible legal ways to eliminate torture in educational Institutions
Ehsanul Kabir
This is a pathetic story of a minor schoolboy of Dhaka City. Suppose his name is Dipu aged about 12 years and student of class IV. The name of his favourite teacher is Khorshed Alam who beat him (Dipu) indiscriminately and mercilessly on the plea of not preparing his class reading. Being repeatedly hit by the cane, the victim fell sick. First the boy was admitted to DMCH. Later, he was shifted to a private hospital where three days after, Dipu died.
Soon after the incident all the teachers of the School including the alleged Khorshed Alam, went into hiding. Dipu's mother, on the very day of his son's death filed a murder case against the teacher Khorshed Alam. Police inquest report said there were black spots on the forehead and lips of the dead boy. Dipu's body was exhumed from graveyard after the filing of murder case by his mother. Doctor said blood clots found in the head, back, hands and legs of schoolboy. Dipu's exhumed body suggest that he had been beaten severely.
Now the case is under proceeding. Parents and Teachers usually impose some sort of corporal punishment over the children under their control. How far that is justifiable? From legal perspective, the basis of justification depends on the purpose, circumstance and reasonability of the force applied. Punishments for offences or misbehaviour of the child is one class while punishments for not following dress code or carrying number of note books or not doing the assigned homework etc, is different one. Whether law favours imposing the corporal punishment at all? If favours, does it confine to control the offensive behaviour or misbehaviour? Or extend to all sorts of simple, technical or some other activity, which cannot be categorised as evil? In the present article we will discuss about the trend of torturing (both psychological and physical) of Children in Educational Institution by their teachers and the possible legal ways to eliminate this violence.
Liability under different principles of law:
a) Imposing harm or corporal punishment on children in schools could be against the general principles of civil liability, which may result in payment of damages in an action for tort, i.e., civil wrong.
b) The general principles of criminal liability for assaulting, causing injury or harm resulting in prosecution under Sections 89, 319, 320, 349, 350, 351 of The Penal Code.
c) Violation of the principles laid down in the Convention on Child Rights.
Constitutional Safeguard
Article 35(5) of the Constitution of Bangladesh clearly states that no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. This provision ensures that the power to punish is exercised within the limits of civilised standards.
Criminal Liability
Criminal Liability requires malice on the part of teacher. Negligence and unreasonableness can replace malice and make him liable in certain circumstances, for causing simple injury or grave injury under the Penal Code. In Gonesh Chandra Shaha Vs. Daj Somani, 68 CWN 1081 it was held that teacher who caned the students and inflicted fist blows, causing bodily injury and loss of tooth, would be criminally liable and would not be benefited for having acted in good faith for the benefit of the victim. If teacher exceeds the authority and inflicts unreasonable punishment he would lose the benefit of Section 88 of the PC which protects acts done in good faith.
Protection for act done in good faith under Section 88 PC will not extend to grievous hurt and excessive use of force. Causing hurt (S 319), Grievous hurt (S 320), using force (S 349), Criminal force (S 350), Assault (S 353) are also offences that could result in prosecution of parents or teachers.
Law and legal systems are expected to protect the children from abuse of authorities either at home or at schools or at systems of administration of justice duly considering their childhood, innocence and incapacity to understand. Children below seven years are exempted from criminal liability.
Their act is not treated as an offence at all. Similar exemption is extended to children of above seven years and under twelve of immature understanding under Section 83 of PC. In essence, a child cannot be subjected to ordinary methods of physical punishments including imprisonment for the offences owing to their age and incapacity of formulating a malicious intention. Thus for being a student and having committed a wrong of not doing home work or violating a dress code, should not include any corporal punishment.
The Penal Code Section 88 protects an act, which is not intended to cause death, done by consent in good faith for person's benefit. Master chastising pupil fall under this clause. A head teacher who administers in good faith a moderate and reasonable corporal punishment to a pupil to enforce discipline in school is protected by this section and such an act is not crime under Section 323. Section 89 of the Penal Code protects an act by guardian or by consent of guardian done in good faith for benefit of child under 12 years. However the same section says that this exception will not extend to cause death, or attempting to cause death, causing grievous hurt.
These provisions extend to teachers having quasi-parental authority i.e., consent or delegation of authority from parents also, of course, with exceptions. Using excessive force, causing serious injury, purpose being very unreasonable can turn the act of the guardian or teacher with the consent of guardian, an offence, because such incidents are outside the scope of "good faith" and this act is not crime under Section 323.
Convention on Child Rights
Article 28(2) Convention on Rights of Child 1989 indicates that the school discipline should be administered in a manner consistent with the child's human dignity and the Convention. Article 28 says the education is a right and Article 29 says that the purpose of school education should be to assist the child in developing his or her personality talents, mental and physical abilities to their fullest potential. Article 3, 18 and 36 of the Convention deal with parental and adult responsibility in the private sphere and the right to protection from exploitation. Article 19 provides for measures to protect children against all forms of physical abuse and imposes an obligation on member states to protect children from all forms of physical or mental violence, injury or abuse. The CRC prohibits the torture or other cruel, inhuman or degrading treatment or punishment of Children in Article 37.
These provisions justify legal reforms that will impose criminal liability on parents or teachers and other adults who cause injury through violence and use corporal punishment. There must be a clear law and policy to curb domestic violence and battery of child by parents. Parents and teachers are legally accountable for violence and abuse of authority. However there is a need to spell this liability in clear terms of law for more certainty and to cause fear of law among them. Going by these norms, the concept of human rights and protection rights of children, it is to be understood that there is no 'minimum' acceptable term in corporal punishment.
Discipline in School and Corporal Punishment
The time has come to re-examine the saying 'spare the rod and spoil the child'. Children are at receiving end both at their own homes and schools from parents, teachers and non-teaching school authorities. Almost all schools inflict corporal punishments on students for various reasons. There are mainly two types of punishments in schools - i) Physical and ii) Emotional. The relationship between punishment and childhood we can analyse some questions: Who can punish whom? What is the crime for which punishment can be inflicted? Whether parents or teachers or School managers have any adjudicatory authority to decide circumstances under which a punishment can be inflicted, the quantum, method and timing or punishment? According to law, the adjudactory authorities alone have authority to hear complaints, try the contentions and draw the conclusions as liability and penalty. The corporal punishment especially envisages a legal process and appropriate authority to fix the guilt according to established and enforceable law, not otherwise.
It is both a crime and a civil wrong for holding some one guilty and inflicting penalty, without legal authority. In Bangladesh, the education system itself promotes corporal punishment. Teacher is assumed a respectful and thus powerful position. This power includes power to inflict corporal punishment. In India Public Interest Litigation was filed by Parents Forum and Meaningful Education (AIR 2001 Del 212), challenging the corporal punishment to a student. Justice Anil Dev Singh and Justice Mukundakam Sharma, said that it was cruel to subject a child to physical violence in school in the name of discipline or education. It was held that inflicting physical punishment on a child is not in consonance with his or her right of life guaranteed by Article 21 of Indian Constitution. "Just because child is small he or she cannot be denied of these rights.... Even animals are protected against cruelty. Our children are surely cannot be worse off than animal's"-said the High Court.
To prevent corporal punishment in educational instituions the following steps must be fulfilled:
a) The Education department must be well equipped with necessary personnel who can study the reasons for child behavior and teachers reactions and inspect the schools whether in private sector or public sector to oversee if any tormenting conditions are existing. In fact, auditing of behaviour in schools is more important than the financial auditing or verifying records.
b) The parents association should play a major role in checking the management of schools regarding these punishments. They have to regularly meet and bring collective representations to avoid isolated vindictive actions. It must be made mandatory for the school management to convene parents meeting regularly to address these issues.
c) Child Rights Committees in Schools also could play a role in checking the physical assaults in schools for trivial reasons. In the present circumstances it is necessary to prohibit the Corporal Punishment by enacting law.
Corporal punishments are envisaged for adults only in criminal cases. Then why children are subjected to physical thrashings for discipline or academic reasons? Bangladesh being a signatory to the UN Convention on Rights of Child is under an obligation to remove cruelty towards children by prohibiting the canes from schools. The Parliament should unhesitatingly enact a new law to prohibit all forms of corporal punishment in the name of discipline or making them to do home work. There should neither physical nor mental punishment in humiliating methods. The stress and strain imposed on child with terrorised atmosphere prevalent in the schools because of corporal punishments, cut throat competitions and increasing pressure for ranks lead them to leave the schools. Suicides are another major possible consequence of such terrible incidents in the schools. Let us all save their childhood. 'Spare the rod and save the childhood' should be the new slogan.
The writer is a student of 4th year, Department of Law, Dhaka University.
