By Jyotshna Yashasvi (CNLU) & Sourav Kumar (NLSIU), Law students at CNLU, PATNA & NLSIU, BANGALORE (respectively)
In 2019, when we are in the 30th year of adoption of CRC, securing and enforcement of child right has still not been possible. Hence, it is an urgent need to discuss and devise ways to achieve the goals that were intended to be achieved through CRC 1989. The problem is so universal that around 60% of the children falling in the age range of 2 and 14 are subject to regular physical punishment by their caregivers.[1] This number is so large that the affected children are spread across communities, regions, ethnicity, socio-economic background, etc. Impact of such violence is that the victim themselves can become perpetrators when become adult.[2] Perpetration of violence against children has the worst impact if it is done at schools because it affects learning and cognitive abilities.
The efforts of the government in India have resulted in enrollment of a large percentage of the children in schools, however, the government and the society have failed to develop the schools into a place conducive for learning. The major reason behind such failure use of corporal punishment as a disciplinary measure. Corporal punishment is an act of punishment which involves the use of physical force against someone. A school is a place that is supposed to be the place where a child can acquire knowledge in a free and stress-free environment. However, the reality is that mostly the environment in elementary schools is intimidating because children are often meted out with corporal punishment for various reasons.
Article 19 of the UN CRC is the core provision which states that the signatory states should ensure the protection of children from all kinds of violence through legislative, administrative, social, and educational measures.[3] Article 28(2) and 37(a) of the UN CRC[4] mandates that the signatory states need to prevent torture and corporal punishment directed towards children at the learning place. These provisions put the dignity of a child at the highest pedestal. Beating or punishing a child in schools in front of other students hurts the dignity of the child and takes away his/her confidence and instills a fear of school. Corporal punishment hampers the learning process by severely affecting the mental health of the child in an indirect but obvious way.
The Constitution of India also provides the right to protection against such corporal punishments. Article 21 of the Constitution provides a fundamental right to life and dignity[5] and clearly, subjecting children to corporal punishment is a violation of dignity. It also hampers the right to education because many children under fear start to avoid schools. Various directions in this regard have also been given to the state under the DPSP.[6]
Several provisions in the penal law of the country also make corporal punishment an offense. Section 323 and 325 of the IPC, which make causing hurt[7] and grievous hurt[8] a crime, is clearly violated when a teacher subjects a child to corporal punishment. Lately, the judicial position has also been clarified on this issue. In the case of Hasmukhbhai Gokaldas Shah v. State of Gujarat[9], Gujarat HC has clarified that corporal punishment to a child is not recognized in law and is totally unwanted. Further, various provisions of the RTE Act 2009 and JJ Act 2000, establishes children’s rights against such corporal punishments.
Clearly, the Indian state has made an ample number of laws to protect the right of children but has still failed in achieving the goals enshrined in the UN CRC. The reason behind this failure is that these rights provide only formal protection, and there is a need to move towards the substantive protection of children. The biggest problem in our opinion is the normalization of corporal punishment in society.
In our society children are considered to be secondary citizens, and exercise their rights through their caregivers. Thus, there is a meta-narrative in the society that the use of corporal punishment by a teacher is in benefit of the child. Legislations have failed in this regard and thus, there is a need to shift our focus on sensitization of parents and the teachers. We also need to change the attitude that normalizes violence and hides it. The teachers should be trained to ‘ask the children question’[10] in order to determine, how their particular conduct will affect a child. Empirical evidence suggests that awareness, education and sensitization program has resulted in significant decrease in such violence against children. Such sensitization programs have successfully been implemented in Turkey, Liberia, the USA, Croatia and Sweden.[11] This problem is so widespread but still hidden because of lack of awareness and normalization of such infringement of child rights. In our opinion, the Indian state must see corporal punishment as a problem as big as child marriage and focus on awareness programs in order to fulfill its obligation under the UN CRC 1989.
References
[1] UNICEF, Hidden in Plain Sight A statistical analysis of violence against children, 8 (2014). [2] UNICEF, Ending Violence Against Children: Six Strategies For Action, 4 (2014). [3] Convention on the Rights of the Child. art. 19 (1989). [4] Convention on the Rights of the Child. art. 28(2) & 37(a) (1989). [5] Indian Const. art. 21. [6] Indian Const. art. 39(e) & 39(f). [7] Indian Penal Code § 323 (1862). [8] Indian Penal Code § 325 (1862). [9] 2009CriLJ2919; (2009)2GLR984. [10] The idea is inspired from radical feminist method of discourse of ‘asking the women ‘question’ which involves analyzing the impact of a certain action on the marginalized section, which is ‘child’ in this discourse. [11] UNICEF, Ending Violence Against Children: Six Strategies For Action, 14 (2014).
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)