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BANGLADESH

Title:
BLAST v. Secretary of the Ministry of Education and others

Court:
Supreme Court of Bangladesh, High Court Division

Date:
January 13, 2011

CRC Provisions:
Article 19: Protection from abuse and neglect
Article 28: Education
Article 37: Torture and deprivation of liberty
General Comment 8 to the CRC: The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment

Other International Provisions:
International Covenant on Civil and Political Rights (ICCPR)
Convention on the Prohibition of Torture and Other Forms of Cruel, Degrading and Unusual Treatment or Punishment

Domestic Provisions:
Constitution: Article 27 (Equality before law), 31 (Right to protection of law), 32 (Protection of right to life and personal property), 35(5) (Protection in respect of trial and punishment – No person shall be subjected to cruel, inhuman, or degrading punishment or treatment), 44 (Enforcement of fundamental rights), 102 (Powers of High Court Division to issue certain orders and directions, etc.)
Government Servants Conduct Rules, 1979
Government Servants (Discipline and Appeal) Rules, 1985
Children Act, 1974
Section 89 of the Bangladesh Penal Code, 1860 (see below under “Notes”)

Case Summary:
Background:
There were numerous cases of corporal punishment in various schools (Madrashas, Primary Schools and High Schools). While there is no law that allows corporal punishment, it is widely imposed in schools and there is a systemic failure of the State to take action to investigate allegations. Many of the children were subjected to corporal punishment for behaviour that does not constitute an offence under any law (e.g., not doing homework, having long hair, etc.) and were physically assaulted to the extent that they needed medical treatment, became depressed and/or resorted to suicide. In many cases, the parents did not press charges in connection with their children being subjected to corporal punishment and the teacher simply paid the hospital bills.

An application was filed by public interest groups under article 102 of the Constitution alleging abuse and failure of the Government to comply with statutory and constitutional duties to investigate allegations of corporal punishment. Pending the issuance of this decision, the Court initially directed the Minsistry of Education and the other defendants in the case to (i) submit reports with regards to the measures taken to investigate, prosecute and punish those involved in the incidents of corporal punishment, (ii) issue a circular to all to refrain from imposing corporal punishment, (iii) take actions to eliminate corporal punishment, and (iv) monitor (in order to prevent) the imposition of corporal punishment by randomly visiting schools unannounced.

Issue and resolution:
Corporal punishment; violence against children. The Court found that corporal punishment was a violation of children's rights, and ordered that the practice be prohibited not only in schools, but across all settings.

Court reasoning:
The Court noted that Article 35, Clause 5 of the Constitution, which deals with trial and punishment, provides that “no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment” and reasoned that if any person is protected from such treatment after conviction of a criminal offence, then a child should not be subjected to such punishment for behavior which does not even amount to a criminal offense.

Looking in part to the Convention on the Rights of the Child, the Court emphasised that abuse has serious physical, psychological and emotional effects, causes truancy and children to drop out of school, and therefore “exacerbates the cycle of illiteracy and poverty.” The Court noted that corporal punishment was not in fact authorised as a form of discipline under the Penal Code and that regulations of schools did not provide for corporal punishment. In light of the CRC, the Court then went on to hold that not only was corporal punishment not authorised in education, it must be prohibited in all settings including schools, homes and places.

As such, the Court detailed steps to be taken by the Government to enact a blanket ban on corporal punishment. The Court directed the Ministry of Education to categorise corporal punishment as “misconduct” for all teachers at public and private schools and make any teacher imposing this punishment subject to a disciplinary proceeding. The Court noted that a teacher imposing corporal punishment would also be liable under existing criminal law and directed the Government to consider amending the Children Act, 1974 in order to make it an offence for parents and employers to impose corporal punishment upon children. The Court stated its view that any laws that allow corporal punishment of children or any other persons should be repealed immediately because they are in contravention of the fundamental rights set forth in the Constitution.

Excerpts citing CRC and other relevant human rights instruments:
“As we have noted from the materials placed before us, the severity of the punishment ranges from verbal abuse/rebuke to physical violence by the use of the limbs or other implements varying in size, shape and degree of lethalness. Conversely, the effect of the corporal punishment manifests in various forms and varies with the mental and physical state and stature of the child and can range from the not so visible psychological effect to the patent physical injury requiring hospitalisation and occasional death. Constant and prolonged rebuke can also lead to suicide of the child.

Article 19 of the Convention on the Rights of the Child (CRC) 1989 provides as follows:
19.1. 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.

2. 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.

In this context, Article 28.2 of the CRC provides as follows:
28.2. “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 dated 02.03.2007 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.

...

The learned advocate for the petitioner brought to our notice one decision of the Delhi High Court in Parents Forum for Meaningful Education and Another Vs. Union of India and another, AIR 2001 (Delhi) 212. The case concerned Rule 37(1)(a)(ii) and (iv) of the Delhi School Education Rules, which empowered teachers to impose corporal punishment. Striking down the said Rule, a Division Bench of the Delhi High Court, after going through the national laws and the provisions of the Convention on the Right of the Child (CRC) observed, inter alia, as follows:

“20. The child has to be prepared for responsible life in a free society in the spirit of understanding, peace, and tolerance. Use of corporal punishment is antithetic to these values. We cannot subject the child to torture and still expect him to act with understanding, peace and tolerance towards others and be a protagonist of peace and love. It was probably for this reason Mahatma Gandhi said that “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 begin 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 hungering.

21. Child being a precious national resource is to be nurtured and attended with tenderness and care and not with cruelty. Subjecting the child to corporal punishment for reforming him cannot be part of education. As noted above, it causes incalculable harm to him, in his body and mind. In F.C. Mullin v. Administrator, Union Territory of Delhi and others MANU/SC/0517/1981: 1981 CRiLJ306, the Supreme Court held that every limb or faculty through which life is enjoyed is protected by Article 21. This would include the faculties of thinking and feeling. Freedom of life and liberty guaranteed by Article 21 is not only violated when physical punishment scars the body, but that freedom is also violated when it scars the mind of the child and robs him of his dignity. Any act of violence which traumatises, terrorises a child, or adversely affects his faculties falls foul of Article 21 of the Constitution. In saying so we are also keeping in view the Convention on the Rights of the Child which in clear terms cast an obligation on the state party to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, maltreatment, torture, inhuman or degrading treatment, exploitation including sexual abuse while in the care of the parent, legal guardian or any other person who are in the care of the child. The signatory state is also obliged to protect the dignity of the child. We have relied upon the Convention in consonance with the decision of the Supreme Court in Bandhua Mukti Morcha v. Union of India and others MANU/SC/0552/1997:[1997]2SCR379, wherein the Supreme Court relying upon the Convention on the Rights of the Child made use of the same and read it along with Articles 21,23,24,39(e) and (f) and 46 to hold that it was incumbent on the State to provide facilities to the child under Article 39(e) and (f) of the Constitution. It was also observed that child cannot develop to be a responsible and productive member of the society unless and environment is created which is conducive to his social and physical health.”

From the above case we note that the existing law of the country concerned allowed corporal punishment in the school setting and those provisions were struck down by the superior court.

...

We wish to express our appreciation for the timely publication of the guidelines dated 31st October, 2010. The Constitution in Article 35(5) provides that no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. This clause relates to punishment upon conviction for a criminal offence. In our view it is all the more applicable to persons who have not committed any offence and who cannot be subjected to such treatment for acts and behaviour which does not amount to a criminal offence. Moreover, Bangladesh is a signatory to the Convention on the Rights of the Child (CRC) 1989; therefore, it is incumbent upon all authorities to implement the provisions of the Convention. In this regard we take support from the decision in the case of Hussain Muhammad Ershad Vs Bangladesh and others, 21 BLD (AD) 69. In that case B.B. Roy Chowdhury, J. observed as follows:

“The national courts should not, I feel, straightway ignore the international obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments.”

Similarly it was held in the case of State vs Metropolitan Police Commissioner, 60 DLR 660 that being a signatory to the Convention Bangladesh is obliged to implement the provisions thereof.

“Article 28 of the Convention 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.”

Follow Up:
The Ministry of Education published a circular stating that corporal punishment is prohibited in schools, that it constitutes misconduct and that measures will be taken against perpetrators under the Penal Code, the Children Act and through departmental action (Ministry of Education Circular No. 37.031.004.02.00.134.2010, 8 August 2010, Regarding the Ending of Corporal Punishment on Students in Educational Institutions, available at http://www.crin.org/resources/infodetail.asp?id=23058).  The Ministry also issued relevant Guidelines which came into effect in April 2011. Prohibition is yet to be confirmed in legislation, but an Education Bill was being drafted as of 2011 according to the Global Initiative to End All Corporal Punishment of Children (http://www.endcorporalpunishment.org/pages/progress/reports/bangladesh.html).

CRIN Comments:
CRIN believes this decision is consistent with the CRC. As noted by the Court, Article 19 of the Convention on violence against children has been interpreted by the Committee on the Rights of the Child to mandate the prohibition of all forms of corporal punishment in all settings. With this in mind, the Court's order that the Government ban and prevent corporal punishment from being imposed on children not only in school, but also at home and in the work place, is very much in line with Bangladesh's obligations under the CRC.

Citation:
Bangladesh Writ Petition No. 5684 of 2010

Link to Full Judgment:
http://www.blast.org.bd/content/judgement/wp_5684of2010.pdf

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.