Case laws & Legal Provisions against Child Harassment-As many parents do not know which laws & which provisions of the statutes deal with the harassment of the children which has become a routine practice nowdays by the educational institutes to inflict so (like withholding marklist of the child, separating the child from the regular classroom, insulting the child for payment of fees directly/indirectly, not taking the attendance of child etc.) for the want of excessive, illegal & capitation fees, so as per the requests of the parents, the organization hereby provides some basic information about some statutory provisions and case laws in simple words as follows:
That many educational activist & even lawyers always insist on national laws only and neglect the very important international aspect of this issue. The national as well as international aspects are explained as follows-
Case laws & Legal Provisions against Child Harassment by the Schools-
A) International Aspect-
That before the important provisions of the domestic laws of The Right of Children to Free and Compulsory Education Act, 2009 & The Juvenile Justice (Care and Protection of Children) Act, 2015, are explained, as above mentioned, many educational activist & even lawyers forget that there is an international aspect in the form of the convention of The United Nations of November 20, 1989 which is known as the ‘Convention on the Rights of the Child’. The government of India acceded to the Convention on December 11, 1992. National Policy on Education was modified in the year 1992 accordingly.
The important articles and their applicability was very well dealt by the Hon’ble Delhi High Court in Parents Forum For Meaningful Vs Union Of India & Ors.- Writ Petition No.196/1998, On 01/12/2000 the Hon’ble Delhi High Court declared a ban on the practice of corporal punishment in the schools. Allowing a writ petition filed by the Parents Forum for Meaningful Education (PEFMA) and Ors., the Bench comprising Hon’ble Justice Anil Dev Singh and Hon’ble Justice Dr. Mukundam Sharma struck down Rule 37 (1) (ii) and (4) of the Delhi School Education Rules, 1973, holding it violative of Articles 14 (Equality before Law) and 21 (Protection of Life and Personal Liberty) of the Constitution. The Hon’ble High Court also directed the State “to ensure that children are not subjected to corporal punishment in schools and they receive education in an environment of freedom and dignity, free from fear.”
The Complete judgement above mentioned is attached below-
Parents Forum For Meaningful Vs Union Of India & Ors.
The facts of the case & references to the relevant articles of this international convention in brief are given as follows-
The Para 2 of the Judgement above mentioned reads as-
‘2. The first petitioner is a parents forum which is registered under the Societies Registration Act XXI of 1860. The second petitioner Smt. Kusum Jain is its President. The petitioners have moved this writ petition by way of public interest litigation seeking inter alia banning of corporal punishment to students in schools. Though in the petition the petitioners also challenges Sub-Rule (1)(b)& 1(iii) of Rule 37 of the Rules, which provide for expulsion and rustication of a student from school, at the time of hearing, however, the learned counsel for the petitioners only advanced arguments relating to the vires of the provisions dealing with corporal punishment. At this stage it will be convenient to set out Rule 37 which reads as under:-
“Rule 37. Forms of disciplinary measures-
(1) The following shall be the disciplinary measures which may be adopted by a school in dealing with-
(a) all students-
(i) detention during the break, for neglect of class work, but no detention shall be made after the school hours,
(ii) corporal punishment.
(b) students who have attained the age of fourteen years-
(2) For the avoidance of doubts, it is hereby declared that the disciplinary measures specified in clause (b) of sub-rule (1) shall not be imposed on any student who has not attained the age of fourteen years.
(3) Fine may be imposed on a student who has attained the age of fourteen years in the following cases, namely:
(i) late attendance;
(ii) absence from class without proper application from the parent or guardian;
(iv) willful damage to school property;
(v) delay in payment of school fees and dues;
(4) (a) Corporal punishment may be given by the head of the school in cases of persisting impertinence or rude behavior towards the teachers, physical violence, intemperance and serious form of misbehavior with other students.
(b) Corporal punishment shall not be inflicted on the students who are in ill-health.
(c) Where corporal punishment is imposed, it shall not be severe or excessive and shall be so administered as not to cause bodily injury.
(d) Where cane is used for inflicting any corporal punishment, such punishment shall take the form of strokes not exceeding ten, on the palm of the hand.
(e) Every punishment inflicted on a student shall be recorded in the Conduct Register of such student.
(5) Expulsion shall debar a student from being re-admitted to the school from where he is expelled but shall not preclude his admission with the previous sanction of the Director to any other school.
(6) Where a student is rusticated, he shall not be admitted to any school till the expiry of the period of rustication.
(7) No student shall be expelled or rusticated from a school except after giving the parent or guardian of the students a reasonable opportunity of showing cause against the proposed action.
(i) Expulsion or rustication shall be resorted to only in cases of grave offences where the retention of the student in the school is likely to endanger its moral tone of discipline.
(ii) Except in the case of any expulsion or rustication from an unaided minority school, the punishments of expulsion and rustication shall not be imposed without the prior approval of the Director.”
‘3. The above Rule inter alia provides that corporal punishment to a student may be administered by the Head of School in the event of continuous impertinence or rude behavior by the student towards the teachers and in case he indulges in physical violence, intemperance and serious form of misbehavior with other students. Where cane is used for inflicting corporal punishment, it imposes a limit of ten strokes on the hand of the student’.
Further Hon’ble Court has mentioned in Paras 6 to 9 as follows;
‘6. We have considered the submissions of the learned counsel for the parties. The matter needs to be examined in the light of certain provisions of the Convention on the Rights of the child adopted by the General Assembly of the United Nations on November 20, 1989 (for short ‘Convention on the Rights of the Child’), Articles 14, 21 and 39(f) and (g) of the Constitution, National Policy on Education.’
‘7.The Preamble to the Convention on the Rights of the child reflects that the state parties thereto, recognising the importance of the Child considered the necessity of bringing up the child in the spirit of the ideals proclaimed in the Charter of the United Nations, particularly in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. The Preamble recalls that in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.’
8. From the Preamble to the Convention it appears that the General Assembly while adopting the same kept in view the Geneva Declaration of the Rights of the Child of 1924, and the Declaration of the Rights of the Child adopted by the General Assembly on November 20, 1959, and recognised in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particulars in article 10) and in the statutes and relevant instruments of specialised agencies and international organisations concerned with the welfare of the Child.’
‘9.Article 19 of the Convention mandates the States Parties to take appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. Article 29 inter alia records the agreement of the States Parties for administering a system of education which develops the child’s personality, talents and mental and physical abilities to the fullest potential, and the preparation of the child for responsible life in the free society in the system of peace, understanding and friendship among all people. The Convention under Article 37(a) declares that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Articles 39 and 40 recognise the right of the child to be protected from any form of neglect, exploitation, or abuse, or any other form of cruel, inhuman or degrading treatment or punishment and to be treated in a manner consistent with his sense of dignity. At this stage it will be convenient to set out Articles 19, 29, 37, 39 and 40 of the Convention.
- States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
- Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
Further Para 11 of the judgement mentions;
- The Government of India acceded to the Convention on December 11, 1992. National Policy on Education was modified in 1992 before acceding to it. It is significant to note that the National Policy is in tune with the Convention inasmuch as it is against imposition of corporal punishment. At this stage it will be convenient to set out para 5.6 of the Policy which envisions this approach. This para reads as follows :-
“Child-Centered Approach 5.6 A warm, welcoming and encouraging approach, in which all concerned share solicitude for the needs of the child, is the best motivation for the child to attend school and learn. A child-centered and activity-based process of learning should be adopted at the primary stage. First generation learners should be allowed to set their own pace and be given supplementary remedial instruction. As the child grows, the component of cognitive learning will be increased and skills organized through practice. The policy of non-detention at the primary stage will be retained, making evaluation as disaggregated as feasible. Corporal punishment will be firmly excluded from the educational system and school timings as well as vacations adjusted to the convenience of children.”
Further Para 14 of the judgement mentions;
- Article 21 in its expanded horizon confers medley of rights on the person including the following rights:-
- A life of dignity.
- A life which ensures freedom from arbitrary and despotic control, torture and terror.
- Life protected against cruelty, physical or mental violence, injury or abuse, exploitation including sexual abuse.
All these rights are available to the child and he cannot be deprived of the same just because he is small. Being small does not make him a less human being than a grown up. We are not mentioning other rights flowing from Article 21 as they are not relevant for the purposes of present petition. Article 21 makes no distinction between a grown up person and a child. Whatever rights are available to the former are also available to the latter.’
Further Para 29 of the judgement mentions;
- Before parting with the case we would like to observe that fundamental rights of the child will have no meaning if they are not protected by the State. In Bhajan Kaur v. Delhi Administration, 1996 III AD (DELHI) 333, it was recognised by this Court that State cannot be a mute spectator to the violation of the rights guaranteed to a person under Article 21 of the Constitution. The State must intervene to secure the rights to an individual. In Usuf Khan alias Dilip Kumar and others vs Manohar Joshi and others, 1999 S.C.C. (Crl.) 577, it was held that the State is obliged to protect law and the Constitution. In discharge of that obligation the State was directed to take action with a view to ensure adequate security cover and protection to the petitioners. Therefore, the State cannot derive any consolation from the fact that the violators are schools and not the State. The State must ensure that corporal punishment to students is excluded from schools. The State and the schools are bound to recognise the right of the children not to be exposed to violence of any kind connected with education. The National Policy in tune with the Convention has adopted child centered approach, where corporal punishment has no place in the system of education. Even otherwise, India being a signatory to the Convention is obliged to protect the child from physical or mental violence or injury while the child is in the care of any person, may be educational institution, parents or legal guardian’.
After making such crystal clear observations, the Hon’ble Delhi High Court struck down the above mentioned rule as unconstitutional.
1) The Juvenile Justice (Care And Protection Of Children) Act, 2015-
That Section 75 of the Act above mentioned reads as follows;
‘Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees.
Thus the term ‘whoever’ includes every person having control or charge over the child. The provision includes physical punishment along with the mental harassment also as an offence and for causing, exposing or neglecting a child to cause him unnecessary mental harassment is also declared as an offence under this section.
That pursuant to the above provision recently the Delhi Trial Court recently convicted the Director & Principal of the school U/S.23 of the Juvenile Justice Act, 2000 (which was later amended to The Juvenile Justice Care And Protection Of Children Act, 2015 & the content of S.23 have been carried in the new amended act by S.75) & slapped fine of Rs.2.5 lacs & 2 months imprisonment for cruelty as they did not allow the 7yr old girl to sit in her class & further neglected her as her parents had raised the issue of uniform and stationeries of the school. Though the matter is at trial stage the latest order in this matter at present is attached here Rajwant Kaur @ Romi Vs. State
2) The Right Of Children To Free And Compulsory Education Act, 2009-
S.17 of the act above mentioned reads as follows;
Prohibition of physical punishment and mental harassment to child-
(1) No child shall be subjected to physical punishment or mental harassment.
(2) Whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service rules applicable to such person.
That many people know about this provisions and recently actions have been taken against some principals under applicable service rules and thereafter they have either been removed or resigned giving ray of hopes to the parents all over the country that if the laws are properly followed and matter is pursued well with use of such provisions and the case laws, good results can be achieved for sure.
The organization believes that those parents whose children have suffered physical and mental harassment by the education institutes can file the complaints before the police authorities and education department & if no action is taken they can further file the case before The State/National Commissions for Protection of Child Rights or can even appear in person if they follow and study the case laws and statutory provisions given above properly and by taking due diligence at the initial stages of their struggles.
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Founder President-Bharatiya Krantikari Sangathan
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