In the Innately Indian, conservative environment, parental punishments are
perceived as an entitlement, and sometimes an immunity acquired through the
nature of the parent-child relationship. The deification of this unique
authority exerted by the parent on an actor that exhibits relatively higher
dependency, i.e., the child, has created appallingly disastrous consequences.
This Article attempts to trace the nature of the violence inflicted on children
at home by parents or any other persons with similar authority, the impact of
such violence thus inflicted, and the legitimacy of parental immunity offered by
the law in India.
Indian legislations and the criminal justice system inherently display an
attitudinal bias while approaching instances of child abuse by parents. From
corporal punishment to aggravated hurt, violence imposed by parents are
justified through cultural beliefs, religious distortions, and societal
perceptions, and dismally, the law has helplessly conceded to them.
trends could be found in section 89 of the Indian Penal code, 1860, and
provisions of the Juvenile Justice Act, 2015, and Right to Education Act,
2009, where, corporal punishment in
schools and child care institutions is prohibited, but at home are allowed [i]. When coveted international organizations, including the United Nations, support
'the right of a child from all
forms of violence,' are the Indian laws adequately offering such protection to
one of its most vulnerable actors?
Further, Is the justification for such
immunity, that parents, as an actor has the 'best interest of the child' true in
all circumstances? If not, then how can the law protect children from
illegitimate violence inflicted by parents, and how to incorporate a mechanism
for the regulation of such violence in the criminal justice system? The
author intends to answer all these questions through this article by
comparatively analyzing Indian legislations and the legal landscape in countries
where corporal punishment and illegitimate exertion of violence by parents are
A child is unfamiliar with what is 'familiar' to us. This ignorance makes them
socially vulnerable actors, susceptible to exploitation and abuse. And, the state, adhering to its egalitarian aspirations, has an obligation to protect the most vulnerable sections.
This paper attempts to analyze whether the state has an obligation to enact
for regulating corporal punishment or criminalize corporal punishment, for the purpose of extending
special social protection to one of its most unguarded subjects - children.
Here, corporal punishment includes all forms of physical punishment inflicted on a child by parents,
guardians, or any other persons with similar authority.
In this article, the author initially provides a theoretical background for
punishment by aligning with Locke's pedagogical arguments on education and punishment, and the postulates
of the critical political theory. In the second section, a detailed
scrutinization of the International and municipal law is made for ascertaining
the legality of corporal punishment. Further, the last section attempts to
deconstruct the legal arguments supporting corporal punishment in India.
- Theoretical Background
Lockean liberalism, and its antagonism to corporeal punishment
In 1693, when corporal punishment was a normalized parental entitlement, John Locke wrote:
- "Those children who have been the most chastised seldom make the best men[ii]." It is evident
that Lockean Liberalism supports the 'independence in action' that should be
made available to a child.
Though his conceptualization of 'parental power'
Treatises demands parents to "take care of their offspring, during the imperfect state of childhood,[iii]" an exertion of this power through corporal punishment was explicitly condemned. The indignation
for physical punishment can be found in his warning that "frequent beating
or chiding is therefore carefully to be avoided [iv]." As an alternative,
digressing from the social validation of passive violence inflicted on children,
Locke proposed the 'esteem and disgrace[v]' disciplining technique.
This form of
punishment, which requires parents to use "softer ways of shame and
commendation" to educate the child, passively stimulates their mental
faculties rather than imposing tangible harm when they commit a wrong[vi]. Thereby preserving the child's autonomy and bodily integrity while concomitantly aiding them to differentiate virtues
and vices. Despite the suggestion that a child should be the subject of the
parent's control, Locke copiously advocates for the child's right to liberty,
admittedly with certain reasonable restrictions[vii].
Accordingly, a child should be given the opportunity to be the authority
and source of their actions, primarily for gratifying natural human tendencies
that desire liberty and independence. It is, therefore, a settled fact that
children have a rightful claim to liberty, which is equal in proportion and
similar in application to that of any
other Individual. Then, does the state have an obligation to foster, and sometimes defend the right to
life and liberty of a child, when it is breached by their parents or guardian?
If yes - can the state regulate the private sphere by monitoring the intimate,
familial engagement between parents and children?
Within the bounds of the private sphere; An analysis of the state's power to regulate familial
The Aristotelian compartmentalization of society into Oikos (family),
constituting the private sphere and Polis representing the public sphere,[viii] was
a formal validation of the existence
of two distinct social realms.
This dichotomy was further reflected in countless political theories,
and most recently, in liberal feminism. But, among them, critical theorist -
Martin Heidegger's argument that individual authenticity is best expressed in
the private sphere compared to an impersonal collective identity in the public sphere[ix] succinctly explains the plurality of an individual's social
subsistence. Further, supporters of the public/private divide contend that the
private sphere, arguably placed away from political scrutiny,
experiences minimal governmental intervention. In Justice Marshall's words, it
is "a sphere of private autonomy which government is bound to respect[x]."
But, over the last few decades, a marginal
deviation from this perception was found in legal and political discourses.
For Instance, in the wake of feminist activism, the power asymmetry in the private sphere was dissected, and a few unacceptable practices were criminalized[xi]. The criminalization of domestic
violence is quintessential to it. Therefore, the state has been regulating the
private sphere based on the nature of the illegitimate practice, continually occurring within the bounds
of a family.
These regulations are employed for protecting the rights of the
vulnerable actor, only in instances where the breach of the victims' rights
causes more harm than the preservation of the rule of governmental,
non-intervention of the private sphere. Then,
aligning with the trajectory of this transformation, the criminalization of corporal punishment or any direct or indirect form of violence inflicted on a child in their private spheres can be supported,
as such punishments violate the child's right to life and liberty.
rightful claim cannot be dismissed on the grounds that the state does not have the authority to regulate
the private sphere, as the harm caused due to non-intervention is higher. On
that account, it becomes important to analyze the legal harms caused due to
The primary objective of corporal punishment is either disciplining, correction, or reformation. Likely, consequentialism might support corporal punishments if they yield effective
outcomes and retributivism if they reform the child[xii]. Nevertheless, the
actual harm of such punishment lies in the means and not the end. The vexing
question is whether
the breach of a child's rights and autonomy for the purpose of reformation is justified? For answering
this question, an analysis of the rights available to a child under
International and Municipal law is indispensable.
- Traversing through International and Municipal Law
What the international law has to say about the right of a child against
A transnational attempt to recognize child rights was first initiated through the adoption of the
Geneva Declaration on the Rights of the Child, by the League of Nations, in
1924[xiii]. This document categorically recognizes a child's right against every
form of exploitation and
their entitlement to an upbringing that inculcates social consciousness[xiv].
Further, Article 25 of the Universal
Declaration of Human Rights, a document embodying the political aspirations
of every individual, grants a right to social protection to children[xv].
Resonating with this, the
UN Convention on the Rights of the Child, 1989 (hereinafter referred to as CRC) has comprehensively crafted an international framework for the protection of the rights of children.
Article 19 of this legal instrument mandates the state parties to extend
protection to children against all forms of violence, abuse, exploitation, and
maltreatment, by persons responsible for taking care of the child, including
parents and guardians[xvi]. The use of physical force by parents is, therefore,
a violation of Article 19 of CRC.
Indian legislations and the Rights of a child
Comparably, the spirit and scope of Article 21 of the Indian Constitution
promise a life with human dignity to all citizens[xvii] and prohibits violence
or force against children[xviii]. This was affirmed by the Delhi High court
while examining the constitutionality of corporal punishment in Parents Forum of
Meaningful Education v. Union of India and Another. It was observed that "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[xix]." In addition to this, along with a right against abuse under Article 21, a corresponding duty on the
state to protect children from abuse is recognized under Article 39(e) of the
constitution. To fulfill these state obligations as envisaged in the
constitution and other international directives, the Prevention of Offences
against Child Bill, which proposed making
corporal punishment an offense, was drafted in 2009[xx].
This Bill was later replaced by a bill on sexual
offenses that translated into the Protection of Children from Sexual Offences
2012[xxi]. Therefore, even though attempts to criminalize corporal punishment were made, the criminalization
of corporal punishment at home did not materialize into a legislation.
Hence, corporal punishment when committed by parents or guardians does not
invite any penal sanctions at the moment, as such actions fall within the
parental immunity provided under section 89 of the Indian Penal Code.
to this provision, an "Act done in good
faith for benefit of the child or insane person, by or by consent of guardian [xxii]" is not an offense unless
it causes death, grievous hurt, or infirmity.
Furthermore, this exception is
often justified by citing the common law ruling in R v. Hopley; where it was
affirmed that parents, teachers, and persons in loco parentis have a right to use
"reasonable and moderate[xxiii]" corporal punishment. This ratio was declared redundant on multiple occasions
by reason of the radical changes in parenting and child rights that transpired
after its pronouncement in 1860[xxiv].
Dismally, the redundancy of this
decision is acknowledged exclusively while considering corporal punishment
committed at school and other
care institutions, and not at home. Therefore, in India, only when corporal punishment surpasses
the earlier mentioned threshold of reasonability and becomes illegitimate,
the parent or guardian is liable under the following provisions of the IPC:
- Section 323 penalizes the act of voluntarily causing hurt [xxv
- Section 325 penalizes the act of voluntarily causing grievous hurt [xxvi]
- Section 352 penalizes assault and the use of criminal force [xxvii]
- Section 506 that penalizes criminal intimidation [xxviii]
- Legality of corporal punishment in India
Regardless of the availability of the above-mentioned provisions, corporal
an unabated occurrence that does not invite any legal sanctions, primarily because of the dependency
of the victim on the perpetrator and secondarily due to the stringent
criteria established for legally utilizing such recourses.
This anomaly can be
a thought experiment. An adult of sound mind approaching the authorities with a formal complaint against another for assaulting them is handled with utmost significance and solemnity.
Contrastingly, a child's complaint against parents for assault, without any
formal validation of its occurrence by an adult, undergoes the test of reasonability before acknowledgment or prosecution of the crime.
There is a duality in the standards for acknowledgment
of the same crime for an adult and a child. When a minor touch
constitutes assault for an adult under Section 352 of IPC, the same cannot be
applied to a child if the court or authorities, bound to take cognizance of
the crime, believes that such force was inflicted for the child's benefit.
This variation, originating from cultural beliefs and social value systems,
fundamentally makes three assumptions:
- Child, as a social actor, is a subject to possession of their parent or
guardian. Therefore, any claim advanced by them requires formal
authorization or validation from an adult.
- An extra-judicial actor, not associated with the state, here, parent or
guardian is given the authority to prosecute the child for a wrong they
- Any form of punishment or force succeeding in such informal
prosecutions, which incentivizes the child to exhibit socially or morally acceptable behavior, can be condoned
These assumptions are problematic on multiple dimensions.
The reason for the same is given below:
In Nicomachean Ethics, reiterating the first premise mentioned above, Aristotle
claims that "the product belongs to the producer[xxix]" and therefore children
to their parents. Aligning with this thought, speaking for proprietarianism, Jan Narveson argues that children are the property
of parents, and such ownership confers certain parental rights[xxx].
these opinions justify parental authority but simultaneously raise certain deep philosophical questions. If
the ownership is vested in parents, does the parent acquire all the rights
naturally made available to a property-holder, including exploitation rights?
yes, then all forms of abuse on the child could be defended on the grounds that
it is mere exertion of the
parents' right as the owner of the child. This conception is not only morally wrong but goes against the fundamentals of human existence. If proprietarianism is validated, it dilutes the authenticity
and validity of human rights, as it allows one human being to own another.
This ownership will inflate the aggregate violence in society, as the owner, by
virtue of their unparallel rights over their property, acquires legal immunity
against acts committed on their property. If implemented, this philosophy has
the potential to foster parental tyranny, where children are oppressed through
unjust use of power by parents or guardians.
On a secondary level, parenthood is
now regarded as a fiduciary relationship[xxxi] and not proprietorship under the
law[xxxii]. Hence, a child should be recognized as an independent individual
with autonomy and will, unassociated with their parent. This claim is not a
rejection of parental rights but an attempt to restructure it by arguing that
parents merely have a right to direct the child without using force.
Furthermore, it is valid to raise skepticism about parents' authority to prosecute a wrong committed
by the child and consequently award punishment, if required. Because neither
the Constitution nor the state has officially elevated parents as an entity
capable of prosecuting a wrong. In addition to this, the Indian Penal code
regards children to be doli incapax.
This pre-supposition can be found in
Section 82 of the IPC, which exempts children, under the age of 7[xxxiii], from
all forms of criminal liability as they are considered incapable of evil. A
similar supposition of a child's innocence could be traced in section 3 of the
Juvenile Justice Act, 2015, which has adopted the presumption of innocence principle[xxxiv]. Under this provision,
child shall be presumed to be innocent of any mala fide or criminal intent up to
the age of eighteen years [xxxv]."
Therefore, when the inability of a child to commit harm exists as a legal
presumption, the parents are not justified in prosecuting them for wrongs
according to the parents' interpretation of the term 'wrong.' At this juncture,
the principle of "Nulla poena sine lege [xxxvi]
" gains relevance as it conclusively mandates that a person cannot be punished for
committing an act that is not prohibited under the law. This, when read with
of the Indian constitution invalidates all extra-judicial prosecutions initiated by parents on children.
Additionally, Max Weber's definition of 'state
' as an entity with an absolute monopoly
over all forms of legitimate violence[xxxvii] renders the use of violence or
force by parents, even in the child's best interest, illegitimate. Then, because
of the above reasons, parents do not have a right to prosecute the child
informally and punish them by inflicting physical force, in the private setting
of their homes.
Childhood is supposed to be beautiful, devoid of terror, and away from pain. Every parent has
a duty to gift their children such an experience. If they fail to meet those
expectations, the state has an obligation to protect children, against all forms
of violence and exploitation, that may arise from parents. Therefore, corporal
punishment at home, which is a form of violence committed against children needs
to be regulated and criminalized for safeguarding the rights of individuals who
decide the course of our tomorrows.
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