There were numerous cases of corporal punishment in various educational institutions. 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 (eg, not doing homework, having long hair, etc). They were physically assaulted to the extent that they needed medical treatment, became depressed and some of them resorted to suicide. In many cases, the parents did not bring charges in connection with their children being subjected to corporal punishment against the teacher and the teacher simply paid the hospital bills.
Against this backdrop, an application was filed by public interest groups Bangladesh Legal Aid and Services Trust and Ain O Shalish Kendra 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 Ministry 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.
In its judgment delivered on January 13, 2011, the High 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.
The court noted that Article 35, Clause 5 of our Constitution 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 behaviour which does not even amount to a criminal offense.
Looking in part to the Convention on the Rights of the Child (CRC), 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.
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.
