Bangladesh 2011 Supreme Court judgment
Condemnation of all corporal punishment – 13 January 2011, Writ Petition No. 5684 of 2010
This judgment by the Supreme Court stated that corporal punishment in schools violated the Constitutional prohibition of torture and cruel, inhuman or degrading punishment or treatment
The judgment followed a writ petition filed as a public interest litigation in July 2010 by Bangladesh Legal Aid and Services Trust and Ain o Salish Kendra with the High Court in Dhaka, following several media reports of corporal punishment being meted out on children in government and non-government schools.
The Court referred in its judgment to the Convention on the Rights of the Child, quoting articles 19, 28 and 37, and using the definition of corporal punishment adopted by the Committee on the Rights of the Child in its General Comment No. 8 on the issue. The Court then confirmed that although the Constitutional prohibition of “cruel, inhuman or degrading punishment or treatment” is stated in relation to trial and punishment, “it stands to reason that a child shall not be subjected to such punishment for behaviour in school which cannot be termed criminal offence”. Reference was made to the Delhi Supreme Court judgment on school corporal punishment (Parents Forum for Meaningful Education vs Union of India and Another, 1 December 2000) and to the harmful effects of corporal punishment, and the current law on corporal punishment in Bangladesh was considered.
The Court stated:
Article 28 of the Convention [on the Rights of the Child] is relevant to the issue before us and we have no hesitation to hold that in the light of the Convention corporal punishment upon the children must be prohibited in all settings including schools, homes and work places. Children who are subjected to corporal punishment or indeed psychological and emotional abuse cannot be expected to develop freely and properly and will not be able to give their best to this society. We cannot ignore the effects of physical and mental torture on the proper development of children which will lead to inadequate achievement resulting in lack of education and poor prospects of better living standards which in turn will stoke the poverty cycle.
“There are by now 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. As this is for the benefit of children, who are citizens of this country and future flag-bearers of the nation, we believe that corporal punishment should be prohibited throughout the country in all settings. There should be a positive awareness drive aimed at all parents, teachers and others who take on the responsibility of caring for children that physical, psychological and emotional abuse of children can never be for their good.”
The Court ordered that laws relating to disciplinary action against teachers to be amended to identify the imposition of corporal punishment as misconduct, that all laws authorising corporal punishment be repealed, and that corporal punishment be prohibited in the home and workplaces.
“In order to make the prohibition of corporal punishment in the educational establishments effective, the laws relating to disciplinary action against the teachers, who impose corporal punishment on students are required to be amended. In this regard we hereby direct the Ministry of Education to ensure inclusion of a provision within the Service Rules of all teachers of public and private educational institutions of the country, by incorporating the imposition of corporal punishment upon any students within the definition of ‘misconduct’. Thus, any teacher accused of imposition of corporal punishment on any student will be liable to be proceeded against for misconduct and he or she shall face the consequence of such disciplinary proceeding as mentioned in the Service Rules. In addition he will be liable for any criminal offence committed in accordance with the existing laws of the land.
“With regard to the prohibition of corporal punishment within the home and work places, the government is directed to consider amending the Children Act, 1974 to make it an offence for parents and employers to impose corporal punishment upon children.
“We are of the view that laws which allow 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 persons, should be repealed immediately by appropriate legislation as being cruel and degrading punishment contrary to the fundamental rights guaranteed by the Constitution.”
Subsequent law reform
Following the ruling, the Government issued guidelines and circulars stating that corporal punishment must not be used in schools, but as at December 2014 legislation has not yet been reformed to clearly prohibit corporal punishment in schools and other settings, and provisions authorising corporal punishment in the penal system have not yet been formally repealed. However, the Government is committed to enacting prohibiting legislation. At a meeting of the South Asia Forum in July 2006, following on from the regional consultation in 2005 of the UN Secretary General’s Study on Violence against Children, the Government made a commitment to prohibition in all settings, including the home. In its written replies to questions from the Committee on the Rights of the Child in 2009, the Government identified “protection of children from corporal punishment at home, schools and institutions” as a priority. Ministry of Women and Children Affairs is involved in the South Asia Initiative to End Violence Against Children (SAIEVAC) activities aimed at prohibiting corporal punishment in all settings.