Physical Punishment to Child is a Punishable Offense?
Meaning of lex talionis
The principle of lex talionis states ‘An eye for an eye and a tooth for a tooth’ this asserts that an accused of an offense shall suffer the same injuries which he had inflicted upon the victim.
Table of Contents
- Meaning of lex talionis
- Meaning of corporal punishment
- Corporal punishment and children
- Safeguarding rights against corporal punishment
- Punishment for corporal punishment under indian penal code
- Hashmukh bhai v. Gokal das shah
- Juvenile justice (care and protection of children) act, 2000
- Prafulbhai j.vaghela and anr. V. Pankaj srikrishnakumar saxena, gruhpati and ors
- Protection of women from domestic violence act, 2005
- Conclusion
Meaning of Corporal Punishment
Punishment in form of inflicting pain upon someone’s body is corporal punishment. Corporal punishments were used in ancient times to punish the wrongdoers of society by scratching, kicking, and beating, punching, biting, flogging, mutilation, blinding, or using other inhumane ways.
During the ancient period where death sentence could not be given for an offense, the accused were subjected to corporal punishment and this continued till the mid-18th century. Later during the initial 20th century, it started to fade away as the awareness of human rights increased which introduced non-violent penalties like imprisonment.
CORPORAL PUNISHMENT AND CHILDREN
Children are subjected to corporal punishment in school when they do any notorious act and in the house when they do not obey their elders. UN convention on the rights of the child addressed the right to protection, development, and survival of children from torture, degrading, or cruel behavior.
The Indian government has ratified the UN convention on the rights of the child in the year 1992 and undertook to spread awareness and stop corporal punishment in any form on children. Corporal punishment against children could be in form of slapping, kicking, punching, pulling hair, scratching, pinching, and forcing them to eat or swallow uncomfortable things, forced to stay in an uncomfortable position (making a student stand with hands up).
Initially, countries like Japan, Italy, and Mauritius have banned corporal punishment in school in the year 1970, later there was a rapid increase in the ban on these kinds of punishment in schools, and by the year 2006 more than 100 countries have banned the practices of giving corporal punishment in the schools. In Indian, there are efforts to in-curb the practice of corporal punishment but as per the studies of the Ministry of Women and Child Development in 2000 out of 12,000 children, around 8280 were physically abused, and around 7800 were beaten in school which means every two out of three children are subjected to corporal punishment.
Schools, institutions, and in fact family members believe that they have the authority over the child and to discipline them appropriate punishments should be given from time to time. Following traditional behavior of slapping, beating, pinching, or insulting a child will not bring any positive change rather the cruel and humiliation will have both short-term and long-term effects on the physical and psychological condition of the child.
SAFEGUARDING RIGHTS AGAINST CORPORAL PUNISHMENT
Provisions of the Indian Penal Code, Prevention of Domestic Violence Act, Juvenile Justice Act safeguards the right of children against corporal punishment. The same is briefly described as follow;
Punishment for Corporal Punishment under Indian Penal Code
The provision under which an action can be taken against corporal punishment is:-
- Section 323 states Voluntary hurt,
- Section 325 states Punishment for voluntarily causing Grievous hurt,
- Section 352 which states the punishment for assault or criminal force,
- Section 341 states Wrongful restraint,
- Section 342, 343, 344, 346 which states Wrongful confinement,
Acts resulting in the death of the child
- Section 304 A states Death through negligence
- Section 305 states abetment of suicide of a child
The accused party takes defense under Section 89 of the Indian Penal Code which stated that an act is done in good faith for the benefit of a person who is below the age of twelve years, or by consent of the guardian. The provision was quoted in Ganesh Chandra Shah v Jiw Raj Somani 1965, Calcutta High Court observed the facts of the case, where a child was beaten by stick and was given a blow of fist on the fact which resulted in minor injuries and a loose tooth. The defense of Section 88 IPC was taken by the accused. The Hon’ble Court stated that the beating was not intended to cause the death of the person but for stopping the complainant from committing theft in the future and for his benefit. Section 88 of IPC states that “Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”
Also in Hashmukh Bhai v. Gokal Das Shah (2008), a child who belonged to the schedule cast was insulted and beaten by the teacher because he started the scooter of his teacher. Later his parents were called to warn him about his behaviour. The next day the child was found dead and the teacher was held guilty for abatement of suicide. The Hon’ble Court stated that the child can be punished physically by the teaching staff were there in an implied consent by the parents.
Juvenile Justice (Care and Protection of Children) Act, 2000
The act was passed to protect, rehabilitate, and provide care, treatment to the child. Section 23 of the Juvenile Justice Act criminalizes act done by a person on the child who is having his custody. Though the term ‘custody of child’ is having a diverse opinion as the custody of the child is usually with a guardian and temporarily with school teachers and institution. The custody of a child can be given a broad term to protect the right of the child and the same has been stated in Prafulbhai J.Vaghela and Anr. V. Pankaj Srikrishnakumar Saxena, Gruhpati and Ors, The facts of the case are, two children who were studying in gurukul went missing and were later found dead near the river behind gurukul. Considering Section 23 of the act, the children were in the custody of the institution and the institution was negligent in taking care of the children. The institution failed to ensure the safety of the children in the custody and hence was liable under Section 23 of the Act.
Protection of Women from Domestic Violence Act, 2005
Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines violence and it broadly includes physical, sexual, verbal, and emotional abuse. Where the magistrate is satisfied that the child is under a threat of domestic violence the court may pass a passing order which can further prohibit the respondent to meet and communicate or even enter into the household of the child. An order of maintenance can also be passed in the favour of the child.
CONCLUSION
Every child has the right to be protected against torture, inhumane or degrading punishment, and treatment. Child-friendly measures should be introduced in society along with awareness for avoiding any corporal punishment to be inflicted on the child. Training institutes may be formed to educate children about discipline and manners. Law considers a child innocent even when an illegal act is done by him and is called ‘Dolly Incapax’. Punishing a child cannot be justified in any form rather reformative action should come into force where proper counseling and guidance shall be given to children.