KARUNAPALA AND OTHERS

KARUNAPALA AND OTHERS

VS.

SIRIWARDHANA AND OTHERS

SUPREME COURT
DE ABREW, J.
FERNANDO, J.
THURAIRAJA, J.
SC/FR/97/2017
SEPTEMBER 17, 2020

Fundamental rights-Article 11 of the Constitution-Cruel and degrading treatment-Slapping of a student (child) across the face by the teacher-Loss of hearing-Penal Code (Amendment) Act, Nos. 22 of 1995 and 16 of 2006, section 308A-Cruelty to children a punishable offence-United Nations Convention on the Rights of the Child, Articles 28, 37

The teacher in charge of discipline in Puhulwella Central College slapped a student of 15 years of age across the face for being seated on a culvert during school hours in breach of the principal's general warning to children against such conduct. Although the child was in severe discomfort soon after the incident, the school authorities failed to provide the child with any medical attention. Later the child was admitted to the Colombo National Hospital, where it was diagnosed that the child had suffered a "perforated ear drum" and "conductive hearing loss" in the left ear. A treatment plan was suggested inclusive of psychological counselling. The parents of the child filed this application alleging violation of the child's fundamental rights guaranteed under Article 11 of the Constitution.

Held :

1. Article 11 of the Constitution states that "No person shall be subjected to torture or to cruel, inhuman or degrading treatment - or punishment".

2. The United Nations Convention on the Rights of the Child (UNCRC) was adopted in 1989. Sri Lanka signed the Convention in 1990 and ratified it in 1991. The Convention stands strictly against corporal punishment and other cruel or degrading forms of punishment towards children. More than 100 countries have banned corporal punishment of children in schools. The rejection of corporal punishment is not synonymous with the rejection of discipline.

3. Article 37 of the UNCRC states that "No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment."

4. Article 28 of the UNCRC mandates that state 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 UNCRC.

5. Section 308A introduced to the Penal Code by the Penal Code (Amendment) Act, No. 22 of 1995, makes cruelty to children a punishable offence. The Penal Code (Amendment) Act, No. 16 of 2006, encapsulates psychological or mental trauma in the definition of "injuries" found in section 308A.

6. A teacher may be in violation of the statutes in relation to corporal punishment despite the intention of the teacher being the best interests of the child, inculcating discipline in the child, maintaining overall school discipline etc.

7. The Education Ministry Circular No. 12/2016 dated 29.04.2016 gives full effect to the UNCRC. The circular recognises that the responsibility of teachers towards students derives from the concept of loco parent is which essentially means "in the place of parents". This circular reiterates the aforesaid legal provisions.

8. Corporal punishment as a method of disciplining children has been proved to be ineffective and harmful to the growth and well-being of the child.

9. The fundamental right of the child guaranteed under Article 11 of the Constitution was violated.

Cases referred to :

1. Bandara v. Wickremasinghe [1995] 2 Sri LR 167

2. Wijesinghe Chulanganiv. Waruni Bogahawatte (SC/FR/677/2012, SC Minutes of 12.06.2019)

3. Parents Forum for Meaningful Education v. Union of India and another 89 (2001) DLT 705

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Thishya Weragoda with Sanjaya Marambe, Sewwandi Marambe, Meinusha Gamage and Sashya Karunokalage for the Petitioners.

Harishke Samaranayake for the 1st and 2nd Respondents.

Swasha

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