Law Watch
Corporal punishment is unconstitutional
Of late, a video of a madrasa teacher beating up an eight-year-old student mercilessly in Chattogram's Hathazari upazila got viral and stirred the whole nation. Such incidents go on to show how corporal punishment happens to be pervasive in some educational institutions, and how often the same is justified on grounds of 'amending' the students.
On many counts these instances are wrong. Such behaviour is criminal and is punishable as offence under the existing criminal law and also goes against a 2011 judgment handed down by the High Court Division and the Guidelines for the Prohibition of Physical and Mental punishment of the Students of Educational Institutions, 2010. The country has been actively working to enact a legislation categorically prohibiting corporal punishment and efforts are underway. These instances have to be taken seriously because, among others, these instances are unconstitutional, and in violation of the international obligations that Bangladesh has undertaken.
Article 35 of our Constitution deals broadly with protection of citizens in respect of trial and punishment. Article 35.5 provides that "no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment." The 2011 judgment interpreted this provision so as to opine against corporal punishment. The Court observed "it should be obvious that if any person is protected from "torture or to cruel, inhuman or degrading punishment or treatment" after conviction of a criminal offence, then it stands to reason that a child shall not be subjected to such punishment for behaviour in school.
Article 19 of the Convention on the Rights of the Child (CRC) 1989, of which Bangladesh is party, provides that 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 parents, legal guardian(s) or any other person who has the care of the child.
Article 28.2 of the CRC provides further that States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention." Article 37 of the CRC requires States to ensure that "no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."
General Comment No. 8 issued by the Committee of the CRC focuses on corporal punishment and other cruel or degrading forms of punishment with a view to highlight the obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children and to outline the legislative and other awareness-raising and educational measures that States must take. The Committee recognises that the practice of corporal punishment directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity.