Corporal Punishment

By Maxwell Pereira
mfjpkamath@gmail.com

When the ‘caning’ of Michael Fay, an American teenager in Singapore, occurred on May 5, 1994 for car vandalism – despite intervention and request for clemency from no less a person than President Clinton, my first reaction was to imagine that the Singapore authorities were definitely Jesuit products. That was influenced by my own childhood experiences and exposure to caning and corporal punishment (CP), which was then a part of the disciplining process.
In actual fact though, CP as part of penal legislation in the then British Malaya has historical roots in the criminal laws of England and India. When the Straits Settlements Penal Code Ordinance IV replaced the common law in 1871, it was based on the Indian Penal Code enacted in 1860 to unify the criminal laws of the various provinces in India. The offences punishable by whipping were broadly similar to the ones in England of the time. So ‘caning’ was entirely an outgrowth of British legal and judicial custom and practice…. negating the erroneous belief attributing CP to Islamic justice.
Even though Corporal punishment as a judicial penalty was abolished in the UK in 1948, and in India in 1955, caning was retained as a primary penal sanction in Malaya and Hong Kong. Singapore is one of sixteen countries, including Malaysia, Pakistan and Brunei, that mandate caning or flogging as punishment for criminal offences. But Michael Fay’s case exposed the differences between the legal philosophies that underpin many Asian countries and the USA, describing the incongruousness as a clash of civilizations.
For more clarity, corporal punishment has been described in dictionaries as the deliberate infliction of pain intended as correction or punishment. Historically, most punishments – whether in judicial, domestic or educational settings were corporal in basis. The practice held to differ from torture in that it is applied for disciplinary reasons and therefore intended to be limited, rather than intended to totally destroy the will of the victim.
The practice of CP is known to have existed in classical civilisations of Greece, Rome, Egypt and Israel, used for both judicial and educational discipline. Among varied practices, scourging and beating with sticks were common. These approaches to CP continued into Medieval Europe, encouraged by attitudes of the medieval church and the muslim world (as during muharram) towards the human body, with flagellation being a common means of encouraging self-discipline or penance. In particular this had an influence on CP in schools as educational establishments were closely attached to the church during this period. But even then the use of CP was seen as a cruel treatment of children.
New trends from 16th century onwards, witnessed judicial punishments increasingly made into public spectacles, with the heavy public beatings of criminals intended as a deterrent to others. But early writers on education also complained of the arbitrary manner in which children were punished.
CP attracted heavy criticism during 18th century, both by philosophers and legal reformers. Merely inflicting pain on miscreants was seen as inefficient, influencing the subject merely for a short period of time and effecting no permanent change in their behaviour. Critics wanted the purpose of punishment to be reformation, not retribution – thereby reducing the need for measures such as CP. This led to a diminution of CP throughout the 19th century in Europe and North America. Even so CP proved most persistent as a punishment for violation of prison rules, as a military field punishment, and in schools.
In the modern world, CP has been largely rejected in favour of other disciplinary methods. Modern judiciaries often favour fines or incarceration, whilst modern school discipline avoids physical coercion. And yet CP has remained a common way of disciplining children. Although outlawed in some European countries, most legal systems permit parents to discipline their children however they see fit, implying a belief that there is a distinction between reasonable punishment and abuse. And although CP is still used in many domestic settings it has been specifically banned in seventeen countries.
In terms of punishment in judicial and educational settings, the practice is almost completely abandoned in Europe and North America, whilst other societies in Asia retain widespread use of judicial corporal punishment, including in Malaysia and Singapore. In Singapore, male violent offenders and rapists are typically sentenced to caning in addition to a prison term. CP also dictated as a punishment in traditional Islamic Sharia law, and applied in countries like Saudi Arabia.
Corporal punishment exists in schools in many countries, although in many countries this practice has now been made illegal. CP in schools was often in the form of hitting the child's hand with a leather belt, or hitting the buttocks with a cane. Many educators use a milder form of CP by "spanking" – usually slapping the child's buttocks with the palm of their hand. Others punish their children with a switch, belt, paddle, or rattan cane although this practice is less common than in years past.
The debate on corporal punishment has triggered yet again, with the Karnataka High Court’s recent ruling on April 19 that punishing a child in good faith cannot be considered as an offence – interpreted in terms of section 88 of IPC. Locally, visages of corporal punishment continuing to exist in the Delhi School Education Act were struck down by Delhi High Court in December 2000; following which all school principals were addressed in a circular by the government and the CBSE in 2002 to ensure no child is subjected to any corporal punishment. At the instance of the NCERT there is also an effort to eschew all forms of violence in the school environment – including violence disguised as discipline.
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May 02, 2006: Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002
email: maxpk@vsnl.com, mfjpkamath@gmail.com; web: www.maxwellpereira.com