Corporal Punishment By Teachers Not Crime Unless Penal Law Provides But Extreme/Sadistic Actions Can Constitute Offence: Kerala High Court
The Kerala High Court has observed that caning of students by teachers or corporal punishment would not constitute an offence under the BNS and Juvenile Justice Act, (Care and Protection of Children) Act 2015, as the statutes stand now.
The Court however underscored that it is not excluding a case where any "corporal punishment is inflicted on any vital part" of child's body, nor was it excluding any "sadistic tendencies" exhibited by the teachers. It said that these would be exceptional situations which would constitute an offence.
The court was considering the culpability component in the context of BNS and Juvenile Justice Act, (Care and Protection of Children) Act, 2015 when a teacher canes a student in order to discipline him/her.
Justice C Jayachandran in his order said:
"Thus, in the light of the Child Rights Convention, the legislations enacted/amended under its inspirational impact, namely the J.J Act and the Right of Children to Free and Compulsory Education Act etc., and especially in the light of Section 17 of latter enactment, it is only logical to conclude that a teacher is disentitled to inflict corporal punishment on a child. Nevertheless, in order to constitute an offence out of the conduct of inflicting corporal punishment, the same should have been expressly declared as an offence in the penal statute concerned. This Court is, therefore, not voting in favour of the teachers inflicting punishment on children, even if it be to discipline or reform them. All what this Court hold is that, the said conduct going by the penal statutes concerned, as it stands now, is incapable of constituting an offence. I cannot therefore set and subscribe my hands to the proverb 'Spare the rod, Spoil the child'. By holding as above, this Court is not saving/excluding a case where any corporal punishment is inflicted on any vital part of the body of the child. Nor is the above discussion intended to save sadistic tendencies, if any, exhibited by the teachers, in the matter of infliction of punishment. Those are exceptional situations capable of constituting an offence, which are to be dealt with appropriately, as per law"
Background
The court was hearing three separate criminal miscellaneous cases which dealt with charges against teachers accused of caning and physically punishing young students to discipline them.
Amicus Curiae Adv Jacob P Alex, drew the Court's attention to the International Conventions on Child Rights. He pointed to Article 28 (2), which mandates that school discipline must respect the child's human dignity. Article 16 (1) of the Convention was also emphasised, which stipulates that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family et.c, nor to unlawful attacks on his or her honour and reputation.
The court's attention was invited to section 17 of the Right of Children to Free and Compulsory Education Act, 2009, which stipulates that no child shall be subjected to physical punishment or mental harassment.
Relying on judgement by the Supreme Court in Union of India and other v Agrica LLP and Others (2021 (14) SCC 341), it was submitted that the treaty obligations should be honoured and should be harmoniously construed, when a State law is interpreted. It was submitted that Corporal punishment is violative of the recognised fundamental rights to life, liberty, dignity, bodily integrity and privacy of the child guaranteed under Article 14, 221 of the Constitution. “It is an archaic notion that the child can be punished physically by teachers in order to maintain discipline,” he added.
The counsel for the petitioners argued that corporal punishment on children is not explicitly criminalised in India through penal Statutes. The Constitutional allegiance of India is dualistic in nature wherefore the international conventions will not become automatically enforceable in India, unless incorporated in the domestic law. The counsel submitted that criminal law must be interpreted strictly. “The maxim nullum crimen sine lege - no crime without law applies. You cannot punish someone for conduct that isn't defines as a crime.” he added
Respondents opposed the arguments of the petitioners on the premise that a cane can become dangerous.
Findings
The Court explored the definition of Corporal Punishment as laid down in JJ Act, 2015 and the punishment for committing such offence as laid down in section 82 of the Act.
It said that a teacher who subjects a child to corporal punishment in a school for the purpose ofdiscipling or reforming the child, cannot be charged with an offence under section 82 of Act.Section 2(24) encompasses any act which subjects a child to physical punishment for the purposeof disciplining or reforming him/her; however, such corporal punishment inflicted by a teacher isnot an offence in terms of Section 82 of the J.J. Act.
It said that JJ Act, 2015 was engrafted after taking stock of necessity to align the domestic law in tune with the Child Rights Convention and has specifically excluded the conduct/act of a teacher inflicting corporalpunishment for the purpose of discipling a child.
“This can only be taken as a conscious omission - and not an inadvertent one," it noted.
The court observed that it is not legitimate to infer an offence, unless it is so expressly declaredby a statute. Relying on A K Gopalan v State of Madras (1950) it stated that however morally wrong the objectionable conduct be, the same will not constitute an offence,unless it is expressly declared so by the Statute.
"This Court, therefore, conclude that the conduct of a teacher caning a student, within reasonable and justifiable limits, so as to inflict minimal punishment for the purpose of disciplining and reforming a child, cannot constitute an offence under Section 82 of the J.J. Act. It may be realising the limitations of the offence under Section 82 that the Investigating Agency has not incorporated the said offence; instead, what is alleged is the commission of the offence under Section 75 of the J.J. Act, which will be dealt with separately during the course of this judgment," it said.
The court held that since the instrument used in the present case is a cane, it does not answer the requirement of aninstrument for shooting, stabbing or cutting, or an instrument which is likely to cause death whenused as an offence the section 118 will not be attracted.
While deciding whether the conduct of the teacher would answer the parameters in section 75,the court compared the terms abuse and assault.
The Court observed that if a gesture is shown tothe child, so as to create an apprehension of use of criminal force against the child, it may be anoffence in terms of Section 130 of the B.N.S. However, to constitute an offence under Section 75 of the J.J. Act, it should also be established that such a gesture was 'unnecessary'.
The court stated “One may have to lift the veil and find out the bona fides of the teacher in expecting thatthe child should attend the classes and perform well”. Thus, conduct cannot be considered as unnecessary, unless such punishment is found to be disproportionate; or actuated by malafide or ulterior motives, it said.
It thus quashed the FIR registered against teachers which are subject matter of two quashing petitions. However, the court distinguished the case in the third quashing petition where the accused was a temporary dance teacher who was accused of beating a victim child, using a PVC pipe on her thigh repeatedly, in view of the nature of the post of the accused and the object used for inflictingcorporal punishment.
The court held that although the offences under Section 324 IPC (which is Section 118 BNS Voluntarily causing hurt or grievous hurt by dangerous weapons or means) and Section 75 of the J.J Act cannot be sustained, the offence under Section 323 (punishment for voluntarily causing hurt and prescribes the punishment for it), as originally canvassed in the F.I.R, is "prima facie sustainable"
"It is left open for the Investigating Officer to file a fresh final report, or for that matter, incorporate necessary changes in the presentfinal report so as to alter the offence as one under Section 323 of the Penal Code and to proceedwith the matter in accordance with law," it said.
Case Title - XXX v State of Kerala and batch
Case No- Crl. MC 8067/2024, Crl MC 9017/2024, Crl MC 10077/2024
Counsel for the Petitioners - P Jinish Paul, Sneha V, P M Abdul Jaleel, K Shameer Mohammed, K N Muhammas Thanveer, Althaf Ahmed Abu,
Counsel for Respondents - CN Prabhakaran - Sr Public Prosecutor, Maya MN - Public Prosecutor, Mansoor B H, C K Rafeeque, K B Nidhinkumar, Sakeena Beegum, Sudeep Aravind Panicker, A S Dileep, P B Binod, K Y Sudheendran, Suseela Dileep, K N Harishankar,
Amicus curiae - Jacob P Alex