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Example 1: Court in Bangladesh finding that corporal punishment in school is a violation of children’s international human rights

Example 1: Court in Bangladesh finding that corporal punishment in school is a violation of children’s international human rights 

Project Type: Litigation: Blast v. Secretary of the Ministry of Education and Others, Supreme Court of Bangladesh, Writ Petition No.5684 of 210 (January 13, 2011).

Organizations

Ain o Salish Kendra (ASK)
Dhaka, Bangladesh
E-mail:  ask@citechco.net
Website:  www.askbd.org

Bangladesh Legal Aid Services Trust (BLAST)
Dhaka, Bangladesh
E-mail:  mail@blast.org.bd
Website:  www.blast.org.bd

Bangladesh Legal Aid and Services Trust (BLAST) and Ain o Salish Kendra (ASK) have long established track records of undertaking public interest litigation in the interests of the most marginalized populations.

Problem

Children studying in government and non-government primary and secondary education institutions in Bangladesh received corporal punishment from their teachers for offenses not recognized by law, including “not doing homework, failing to bring crayons to school, not saying prayers [and] having long hair.” The abuse was widespread and regular. According to a recent report by UNICEF: “most children in Bangladesh [were] regularly exposed to physical abuse at school, at home or where they work[ed] . . . . “ Indeed, 91% of children surveyed in that study experienced various levels of physical abuse while at school. Also, the corporal punishment the children received was sometimes so horrendously violent that the child victim would require hospital treatment. Forms of corporal punishment included canning, beating, and the chaining of children.

Even in the absence of such especial violence—as the Court in this case noted—“There cannot be any doubt that corporal punishment is detrimental to children’s well-being and has serious physical, psychological and emotional effects, as well as causing truancy and dropping out of school. This in turn exacerbates the cycle of illiteracy and poverty.” Although the Penal Code did not authorize corporal punishment as a form of discipline and school regulations did not provide for it, the State systematically failed to adhere to the constitutional and statutory obligations to investigate allegations of corporal punishment. Teachers would simply pay the hospital bills of the students they battered and avoid criminal liability.

Procedure 

Before the Supreme Court of Bangladesh, High Court Division, pursuant to Article 102 of the Constitution of the People’s Republic of Bangladesh (providing original jurisdiction to the High Court Division to receive applications arising from fundamental constitutional rights).

“If we are to reach real peace in this world, and if we are to carry on a real war against war, we shall have to being with children; and if they will grow up in their natural innocence, we won’t have to struggle, we won’t have to pass fruitless idle resolutions, but we shall go from love to love and peace to peace, until at last all the corners of the world are covered with that peace and love for which, consciously or unconsciously, the whole world is hanging.” – Mahatma Gandhi, quoted by the CRC and the Court.

Arguments and Holdings 

Applicable laws on Corporal punishment at home and at the workplace.

Constitutional Law                                                                                                                                      The plaintiffs argued that the corporal punishment of school children violated the punishment provisions of the Bangladeshi Constitution. Clause 5 of Article 35, which protects the rights of citizens with respect to trial and punishment, provides that “no person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment.” The Court found a violation of Article 35, reasoning that “it should be obvious that if any person is protected from ‘torture or . . . cruel, inhuman or degrading punishment treatment’ after conviction of a criminal offense, then it stands to reason that a child shall not be subjected to such punishment for behavior in school which cannot be termed criminal offense.”

Statutory Law
The defendants argued that various national statutes affirmed the imposition of corporal punishment. Specifically, the Code of Criminal Procedure, the Prisoners Act (1894), Whipping Act (1909), Cantonment Pure Foods Act (1966), Suppression of Immoral Traffic Act (1933), Railways Act (1890), and the Children Rules (1976) all affirmatively provide for the imposition of corporal punishment. But none of these national statutes provided for corporal punishment in schools. The Court read these statutes narrowly and therefore concluded that they did not affirmatively call for the imposition of corporal punishment in schools.

The Court also heard a statutory-based defense to corporal punishment. At first glance, section 89 of the Penal Code seemed to provide a defense for corporate punishment. The section provided that: “[n]othing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent . . . of the guardian . . . is an offense by reason of any harm which it may cause . . . .” However, as the Court rightly noted, the third proviso to section 89 explains “[t]hat this exception shall not extend to the voluntary causing of grievous hurt . . . unless it be for the purpose of preventing death or grievous hurt . . . .” Therefore, the Court found that section 89 did not excuse the imposition of corporal punishment.

Contract Law
The defendants then raised the argument that a parent provided consent to the corporal punishment of their children by agreeing to send their children to school. The Court reasoned that, unless there was an express agreement to the contrary, the parents did not consent to the corporal punishment of their children. The agreement between the parent and the school was for the school to provide the parent’s child with an education. Therefore, this contract-based defense to corporal punishment also failed.

“The contents of the writ petition and the additional affidavits filed by the parties have exposed the dark and sinister side of education in Bangladesh. The details of some of the incidents have stirred our conscience and left us feeling distraught at the thought of parents allowing their children to be beaten and teachers mercilessly beating their pupils for small indiscretions. Most importantly, it is distressing to note that some of the incidents have led to fatality.” – Md. Imman Ali, J., writing for the Court

Foreign and International Law
The Court declared the familiar precept that where there is no domestic law on point for the issue before the court, then the court should draw upon the international agreements entered into by the national government. Bangladesh had ratified that Convention on Rights of the Child (CRC), and the Court interpreted Article 28 of the CRC as prohibiting “corporal punishment upon the children . . . in all settings including schools, homes and work places.” The Court also looked to foreign law, noting that “[t]here are [were] numerous countries of this world, both advanced and less developed, who have adopted prohibition of corporal punishment both at home and in the education institutions.” Foreign and international law informed the Court’s understanding of the illegality of corporal punishment.

Arguments and Holdings 

Corporal Punishment at School
The Court ordered that the Service Rules of the nation be amended to prohibit corporal punishment. A teacher who practices corporal punishment would be liable for misconduct under the amended Service Rules, as well as liable for all criminal offenses committed as part of administering corporal punishment.

This was a sweeping and landmark decision by the Court. In addition to outlawing corporal punishment in schools across the nation, the Court recommended that the government amend the Children Act, 1974 to make it an offense for parents and employers to impose corporal punishment upon children. The Court also recommended the repeal of all existing domestic law allowing for the administration of corporal punishment, including whipping under the Penal Code, Code of Criminal Procedure, Railways Act, Cantonment Pure Food Act, Whipping Act, Suppression of Immoral Traffic Act, Children Rules, 1976 “and any other law which provides for whipping or caning of children and any other person.” “as being cruel and degrading punishment contrary to the fundamental rights guaranteed by the Constitution.”

 

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