The regressive judicial discourse on Corporal Punishment in India

The narrative that corporal punishment is beneficial to the victim shaped the judicial discourse in favour of corporal punishment.

Corporal punishment in Indian schools is a deep rooted menace. Apart from having caused grievous injuries to children, it has also driven children to die by suicide and drop out of schools. Despite being an abhorrent practice, corporal punishment is often perceived and portrayed as legitimate by relying on orthodox Indian scriptures and adages. These scriptures and adages purportedly encourage inflicting physical harm on children to discipline them and also lay down that teachers are to be revered as Gods. Due to these factors, teachers have enjoyed a carte blanche in punishing students.

The legitimacy of corporal punishment was further entrenched by certain judgments of the High Courts in the 1900s. These cases involved teachers being booked for 'causing hurt' after they caned and punched students. The High Courts relied on old English decisions that upheld a school master's authority to inflict corporal punishment on students pursuant to his 'parental authority' over them. The High Courts also relied on a general exception recognized in the Indian Penal Code, 1860 that lays down that an act done in good faith for the benefit of a person is not an offence by reason of the harm caused.

The recognition of a teacher's parental authority to inflict corporal punishment and the narrative that corporal punishment is beneficial to the victim shaped the judicial discourse in favour of corporal punishment.

The judicial discourse on corporal punishment witnessed a sea change in 2000, when the Delhi High Court struck down a provision in the Delhi School Education Rules, 1973 that empowered the head of a school to inflict up to ten strokes of the cane on a student as punishment for misbehaviour. The Government of NCT tried its best to justify the rule by contending that moderate corporal punishment does not violate a child's human rights. This argument was categorically rejected by the Court.

The Court held that corporal punishment traumatizes children and amounts to cruelty, thereby violating the fundamental right to lead a dignified life. The Court even rhetorically remarked that when cruelty to animals had been criminalized, cruelty to children in the form of beatings, etc could not be countenanced.

Interestingly, the Court referred to reports that suggested that corporal punishment increases the drop-out rates and held that the rules that allow the infliction of corporal punishment were violative of the children's fundamental right to education. The Court also observed that allowing corporal punishment in schools violated India's obligations under international law to take steps to protect children from violence, torture and degrading treatment.

The language of the judgment radiates compassion, and importantly, the Court recognized the adverse effects of corporal punishment on mental health even if the injuries inflicted are not grave. Thereafter, there was legislative disapproval of corporal punishment in the Right to Education Act, 2009 and the Juvenile Justice Act, 2015.

Unfortunately, a few High Courts continue to cling on to the regressive belief that corporal punishment is beneficial to the victim and that a teacher has an implied authority to inflict corporal punishment.

Take the case of a school teacher who was prosecuted for assault after she slapped two students twice. The students later died by suicide, allegedly because of the humiliation they experienced. In 2020, the Himachal Pradesh High Court quashed the charges of assault and causing hurt against the teacher and held that a teacher's act of slapping her students did not amount to assault. The Court chose to rely on the old Indian and English cases that considered corporal punishment as legitimate, while ignoring the newer and progressive judgment of the Delhi High Court.

The Kerala High Court has gone a step further and recognized caning as a legitimate method of disciplining students even if the child is barely five years old, unless grave injuries are inflicted. The other recent decisions indicate that the Kerala High Court finds corporal punishment problematic only if the physical injuries are serious. This shallow understanding of corporal punishment ignores the mental trauma and humiliation punishments like caning can cause, even if the injuries are not serious.

It is unfortunate that the Indian judiciary has not freed itself from the yoke of orthodox English law while deciding the legality of corporal punishment. The recent decisions are oblivious to the fact that children are rights holders under the constitutional scheme and that the teachers' powers to maintain discipline must conform to constitutional standards and not Indian cultural norms or the English legal standards of the Victorian era.

Courts ought to bear in mind that children are a vulnerable class of citizens and that corporal punishment is a manifestation of the severe power imbalance between teachers and students. If the courts legitimise corporal punishment, schools will continue to function as sites of oppression. Criminal law ought to be interpreted and applied in the constitutional spirit so that non-state actors like teachers do not trample upon a child's right to lead a dignified life.

The author holds an LLM in Law & Development from Azim Premji University. His areas of interest are public law, legal theory and law & development. He tweets @rahulmachaiah

Bar and Bench - Indian Legal news