Child welfare workers and activists, however, say that terms like "reasonable force" are ambiguous and hence can be misinterpreted and misused.

Kerala HC justifies reasonable force to discipline child activists disagreeImage for representation
news Corporal punishment Wednesday, January 02, 2019 - 17:51

In an order that has granted relief to a teacher who had allegedly jabbed a student while studying mathematics, the Kerala High Court has quashed a criminal case against him filed by the child’s parent. The court has said that the use of ‘reasonable force’ by parents and teachers is justifiable if the child or pupil is old enough to understand its purpose.

The court said that such acts were justified if reasonable force was used to chastise the child in “good faith” to discipline him/her. It also placed emphasis on the lack of physical injury and that the teacher in question did not use a cane or other such ways to punish the Class 2 student.

Child welfare workers and activists, however, say that terms like "reasonable force" are ambiguous and hence can be misinterpreted and misused. They also point out that the Right To Education (RTE) Act completely prohibits all corporal punishment.

J Sandhya, a former member of the Kerala State Commission for Protection of Child Rights, said, “The RTE does not specify the gravity of force you can use against a child, it just completely bans corporal punishment. The provision of the law should be followed. Putting ifs and buts in such matters can be misused by teachers.”

“There are certain norms set by UNCRC (United Nations Convention on the Rights of the Child), saying there should be no violence inflicted on children physically or mentally. As the country progresses, we have to stick to these norms,” she added. “I am really surprised to see such an order from the Kerala High Court.”

On the emphasis the court placed on lack of physical injury and use of cane, Sandhya argued, “There should not be any such excuses."

Andal Damodran, former President of the Indian Council for Child Welfare (ICCW) and International Forum of Child Welfare and the President of Indian Council For Child Welfare, asserted, “What do you mean by ‘reasonable force’? And today, you can discipline children in many ways without using force as well. You can talk to them, you can give them a time-out. And in this case, it was totally unnecessary. Why does a teacher have to hit a child, that too a Class 2 child, like that? There is no need for even tapping such a young child like this.”   

A senior official from Childline Kerala, who did not wish to be named, pointed out that teachers and parents need to know the difference among correction, discipline and punishment. “Their actions should be driven only by correction and discipline,” he said. He added that the child should be made to understand why an action was taken to correct or discipline him/her, while reiterating that all corporal punishment is outlawed under the RTE. He also agreed that “reasonable force” and “good faith” were open to interpretation, and hence could be misused.

The case

Justice Raja Vijayaraghavan heard a case against the teacher who had reprimanded a Class 2 student for making mistakes in mathematics. The child’s parent had registered an FIR in Feroke police station in Kozhikode under sections 323 (causing simple hurt) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act (causing unnecessary physical and mental suffering to the child), reports Live Law.

“The petitioner is alleged to have jabbed on her shoulders with his fist. In the evening, when the child complained of pain, her mother questioned her. She divulged about the incident, which took place in the morning,” the court order reveals. The incident allegedly took place on December 5, 2018.   

The child was then taken to the hospital, where she was treated as an outpatient and discharged the same day. The parent of the child registered a complaint against the teacher on December 7, 2018.

The teacher, meanwhile, had moved court under section 482 of the CrPC to quash the criminal proceedings against him. He had argued that he had chastised the child in “good faith” and for her benefit.   

“According to the learned counsel, no one has a case that the petitioner had used a cane or any other instrument or that he had used any force. No injuries were sustained by the child as well. The petitioner was in the process of teaching the child the nuances of mathematics and in order to keep her alert had only jabbed on her shoulders. The act committed by the petitioner cannot be said to be an act motivated by malice. The child was brought to the school by her parents for imparting education and the act, which was done, was moderate and reasonable and it was intended for the benefit of the child,” the court order reads.

The court observed that parents, teachers and other persons in loco parentis are “entitled as a disciplinary measure to apply a reasonable degree of force to their children or pupil old enough to understand the purpose to which the act was done. Section 79 and 80 of the IPC would come to his/her rescue, in those cases.”

Section 79 of the IPC refers to an act done by a person which is justified by law, or an act which is done in good faith. Section 80 says, “Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”

The Kerala HC also said that the case would be different if the punishment imposed on a child is given out of spite or for a non-disciplinary reason, or if immoderate or unreasonable force is used. It would be deemed unlawful in that case. “Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher to whom the parent has delegated or is deemed to have delegated his authority,” the order added.

The court focused on the lack of violence or injury marks on the child’s body. “The records also do not show that the chastisement by the petitioner was beyond the child's powers of endurance or that it was with any instrument of offence with intent to cause harm. None of the witnesses stated that she cried or that she was in such a discomfort that she had to be taken home. It is clear from the materials that the chastisement was done in good faith for the benefit of the child concerned and the punishment said to have been inflicted cannot be said to be either excessive or immoderate.”  

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