Spare the Rod
P.G. Wodehouse’s quip that caning “stingeth like a serpent and biteth like the adder” cloaks the real face of corporal punishment in schools (CPS). It has no foundation in law. It is a barbaric practice with little justification. Unfortunately, there are too many wrongly perceived ambiguities in the laws applied by the various States of India. Teachers who inflict CPS need their head examined for the cruel pleasure they derive from inflicting pain on hapless children in the name of discipline.
What triggered off our present discontents is the suicide of a school boy, Rouvanjit Rawla, four days after he was caned by Sunirmal Chakravarthy, the Principal of La Martiniere Boys School, Kolkata. Evidently, the cane broke, but not the punishment. The fact that the Principal says he did not know the law applicable to West Bengal is unworthy. On 18 June 2010, after intense public controversy, the Board of Governors announced that CPS was abolished in La Martiniere. Meanwhile Principal Chakravarthy is vulnerable to civil and criminal action and possible dismissal from service as recommended by the National Commission of Children’s team which also canvases changes in the Penal Code to deal with caning specifically.
As far as West Bengal is concerned there was no ambiguity in the law. In Tapas Kumar Bagchi’s case (2004) there was a clear order by Chief Justice A.K. Mathur that (i) caning should not be resorted to as a corporal punishment (ii) the Director of School Education should circulate this and (iii) schools resorting to this shall be dealt with strictly by the State Administrator. At least, as far as caning is concerned, this legal message was clear as crystal. In Rekha Bharat’s case (2009) which was a well known cause celebre, criminal prosecution was continued in a case where the teacher’s whack on the head led to the death of the child. The judges spoke of how the statements in the “case diary were quite spine chilling...One has to rub one’s eyes to be sure whether it is a crime thriller depicting the tale of a sordid killer…”. So neither La Martiniere nor Principal Chakravarthy had a leg to stand on as for as their legal excuses for their actions were concerned. Apart from an apology, the decent thing for La Martiniere to do is to sack the principal, after due inquiry, and offer both apology and compensation of at least Rs.20 lakhs, if not more.
While the Calcutta rulings are on caning and punishment resulting in death, the issue needs to be discussed on the wider considerations of the rights of the child. The Delhi High Court through Justice Anil Dev Singh struck down the Delhi School Education Rules of 1973 which dealt with “corporal punishment”. Here caning was a part of the wider issue of corporal punishment in schools.
Why Justice Dev Singh was not elevated to the Supreme Court shows faults, bias and favouritism in our judicial appointments system. Along with other visionary judgments (such as those on elections) Justice Dev Singh looked at the gruesome reported instances, examined the life and liberty (article 21) and other constitutional provisions and laid down that the infliction of pain on students through “light punishment” was also impermissible as it could “degenerate into an aggravated form”.
The Delhi Judgment rightly isolates and injuncts “physical pain”. But, after the judgment, a wider approach was implanted in section 23 of the Juvenile Justice Act, 2000 to discipline those incharge of or with control over children to protect the latter from unnecessary “mental or physical suffering”. To inflict this could attract jail upto 6 months plus unlimited fine. This is the more incisive test. In Tyrell’s case (1978) the European Court in Strasbourg discussed this threadbare. Birching was found to be a degrading punishment. But, the Court added to the repertoire of tests by further examining the mental consequences of humiliation to the child. Any punishment attracts humiliation. Shame and public obloquy come to all but the shameless. The test of the European Court was that the “humiliation or debasement involved must attain a particular level … other than the usual humiliation” flowing from being found guilty. So what was degrading was not just the painful assault, but also excessive.
Teachers, even parents, may regard this ‘humiliation’ test as going too far. Imagine a teacher who has chalk or a stone thrown at her. Prohibited from physical corporal punishment, is she precluded from sending the thrower to the corner or to stand on his chair with a dunce cap on his head? This would surely be humiliating. But, here too, some element of proportionality would decide the issue. Discipline yes. Pain no. Punishment – no more than necessary. I think the test in Section 3 of the India’s Juvenile Act of 2000 puts it well by injuncting “unnecessary mental or physical suffering” by threat of jail or fine. Teachers are allowed to impose discipline but they cannot be cruel. The nexus between Rouvanjit’s caning and his suicide cannot be wished away because the school’s Diocese Board says so.
The La Martiniere incident represents a legitimate middle class outrage. But why do these issues achieve public notoriety only when well off kids are involved. Children in cheap government and other schools are cut, bruised, damaged, killed and driven to despair by cruel and humiliating punishment every day. We cannot also overlook beatings and humiliation in the place of work. Parents feel free to punish their children – sometimes without remorse on a day to day basis. Both civil and criminal liabilities lie. Any lacunae are now plugged by the Section 23 of the Juvenile Act 2000 which is not restricted to schools but “whoever has the actual charge of or control over a juvenile or child”. This includes parents and employers alike. Parents cannot claim ownership of their children. 26 countries restrain parents and 112 countries forbid schools from imposing corporal punishment.
Unfortunately, even if the law speaks with protective concern, it remains immobilized. Children cannot go to court. Few want to go to court for them. Children cannot be protected through law circulars. The National Commission on Children banned corporal punishment in school on 9 August 2007 on the basis of the Delhi judgment and by wrongly assuming it was decided by the Supreme Court. There is little follow-up to the Union Ministry letter of 17 December 2007 against caning. The letter itself shows ignorance of Indian law but relies on the National Policy on Education (1986) and article 28 of the UN Convention of the Rights of the Child requiring school discipline to be imposed “consistent with the child’s dignity”. India’s legislation of 2000 is wider and applies to parents, guardians, store helpers, the chotus who work in tea shops and dhabhas and those in factories and hazardous trades. What is needed is a machinery of enforcement including social and legal support.
The La Martiniere incident has ruffled middleclass sensitivities. But while India pampers its richer children and pedigree dogs, most of the kids in most schools are unprotected by society and the state. The legislation is inadequate. The courts do not convict. And worse of all, the callous treatment meted to most children continues hidden from the public domain.