Nepal Judgment

Nepal Supreme Court declares “minor beating” defence unconstitutional

The Supreme Court
Special Bench
Hon'ble Judge Mr. Chandra Prasad Parajuli
Hon'ble Judge Mr. Min Bahadur Rayamajhi
Hon'ble Judge Mr. Rajendra Kumar Bhandari

ORDER
Writ number 57 of the year 2061 (2005)

Subject: Petition for the issuance of necessary orders or decrees including certiorari mixed mandamus.

Petitioner(s)
Mr. Debendra Ale, age of 52 years, a permanent resident of Ward No. 2, Chapali Bhadrakali VDC, Kathmandu District, and serving at the Center for Victims of Torture (CVICT)----1
Advocate Mr. Shyam Babu Kafle, age of 31 years, a permanent resident of Ward No. 5, Murtidhunga VDC, Dhankuta District, and at present residing at Ward No. 3, Kathmandu Municipal Corporation, Kathmandu District----1
Dr. Bidur Osti, age of 43 years, a resident of Ward No. 4, Mahangkal VDC, Kathmandu District----1
Advocate Mr. Satya Narayan Adhikari, age of 30 years, a permanent resident of Ward No. 4, Dudhauli VDC, Sindhuli District, and at present residing at Ward No. 3, Kathmandu Municipal Corporation, Kathmandu District----1

Vs. Respondent(s)
His Majesty’s Government, Office of the Prime Minister and Council of Ministers, Singhadurbar, Kathmandu----1
His Majesty’s Government, Ministry of Education and Sports, Kathmandu----1
His Majesty’s Government, Ministry of Law, Justice and Parliamentary Affairs ----1
The Parliament Secretariat----1

The facts of and order in this instant Writ Petition falling under the jurisdiction of, and filed in, this Court, pursuant to Articles 23 and 88 (1), (2) of the Constitution of the Kingdom of Nepal, 2047 (1990), are as follows:

The Writ Petition reads that, out of the Petitioners, Petitioner Mr. Debendra Ale is serving for the Center for Victims of Torture which has remained active for the establishment of the right against torture since 15 years ago; Advocates both Mr. Shyam Babu Kafle and Mr. Satya Narayan Adhikari have been engaged in legal profession and involved particularly in the establishment of the right against torture since eight years ago; and Dr. Bidur Osti has been involved in the treatment of the children who are victims of torture. So, given that the Petitioners have a meaningful relation with torture and maltreatment committed against children, they have filed this Petition in this Court for the settlement of legal and constitutional issue involved in this matter.

The Preamble of the Constitution of the Kingdom of Nepal, 2047 (1990) guarantees the human rights of each and every citizen of Nepal, which clearly and ipso facto includes the students studying in schools. Article 26(8) of the Constitution confers obligation on the State to make necessary arrangements for the safeguard of the rights and interests of children. Article 14(4) ensures that no person shall be subjected to physical or mental torture nor shall be given any cruel, inhuman or degrading treatment. Section 7 of the Act relating to Children, 2048(1992) also prohibits acts of torture against children, and provides for certain privileges. However, the Education Act, 2028(1982) and the Education Regulation, 2059(2003), which provide for, inter alia, the terms and conditions of service of teachers imparting education to children, have no provisions prohibiting torture, cruel, inhuman or degrading treatment inflicted on or given to students nor do they have any provisions to prevent such acts. Moreover, Article 19 of the Convention on the Rights of the Child, 1989, which applies as law pursuant to Section 9 of the Nepal Treaties Act, 2047 (1990), provides that states parties are to take necessary 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. According to Article 28(2) of that Convention, states parties are to ensure that school discipline is administered in a manner consistent with the child’s human dignity; and Article 37 prohibits subjecting any child to torture or other cruel, inhuman or degrading treatment or punishment. Similarly, Article 7 of the International Covenant on Civil and Political Rights, 1966, Article 5 of the Universal declaration of Human Rights, 1948, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 clearly provide that no one shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. However, the school children are deprived of the enjoyment of the said right.

It is the obligation of the Respondents to do away with torture and maltreatment to be inflicted on and given to the school children in the name of discipline and maintain the school as a holy temple of education. But the Respondents do not appear to take concern over it and remain active in practice. The time when the children study at school is a time when the children make rapid physical and mental development. So, if the school children are subjected to torture or other cruel, inhuman or degrading treatment, it will have negative and long-term impacts on the fragile child mentality; and it will certainly cause irreparable loss and damage to themselves, their families and the nation. It appears, in the practical life, that in the name of punishment, teachers are subjecting the school children to inhuman or degrading treatment such as making them rooster, causing them to sit down and stand up holding ears, feeding them grass and making them naked. The organization where the Petitioner is serving has conducted a study of a school, which shows occurrence of events that the teachers beat some children studying at that school to fracture their arms, hanged them on the ceiling fan, forcefully inserted a stick into their anal and locked them up in toilets, godowns and classrooms for their failure to do homework; and as a result, some students left the school. Moreover, the Human Development in South Asia, 1998 published by the Oxford University Press, Karachi, on its page 14, published a fact that in Nepal 14% students dropped out schools because of the fear of teacher. Paragraph 292 of the second and third joint periodic report submitted by Nepal to the United Nations Committee on the Rights of the Child in 2002 recognizes the fact that in Nepal students are subjected by teachers to physical punishment. For such a situation, proviso to Section 7 of the Act relating to Children, 2048(1992) has played a major role. The proviso provides that the mother, father, guardian or teacher may give the child minor beating for the sake of his or her interests. Some provinces of neighboring countries India and Pakistan and a number of countries including Sweden, Philippines, Uganda, Fiji and Kenya are prohibiting subjecting the children studying at school to torture and maltreatment. However, the Respondents have not made any efforts to prevent subjecting the children studying at schools to torture or other cruel, inhuman or degrading treatment or punishment.

Hence, the proviso to Section 7 of the Act relating to Children, 2048(1992) is inconsistent with the conventions joined by Nepal and the Constitution of the Kingdom of Nepal, 2047 (1990), as mentioned above. This has consequently infringed the right of the children, who are the future of the country, to education and the right against torture or other cruel, inhuman, or degrading treatment or punishment; and there is no other adequate and effective legal and constitutional remedy is available to have that provision declared void. So, they have prayed for a certiorari order thereby declaring void the proviso to Section 7 of the Act relating to Children, 2048(1992), pursuant to Article 88(1) of the Constitution. In addition, they also request for the issuance of a mandamus or other appropriate order or decree, pursuant to Articles 23 and 88(2) of the Constitution, thereby ordering the Respondents to pursue effective measures to prevent any kind of torture or other cruel, inhuman, or degrading treatment or punishment inflicted on or done to, and being inflicted on or done to, the students within and outside schools.

A show cause order has been issued by this Court which reads, inter alia, that the Petition be referred after submission of Affidavits by the Respondents within 15 days or after expiration of the time-limit.

The Affidavit filed by the Parliament Secretariat reads that the Petitioner has failed to clearly mention in the Writ Petition as to the grounds and reasons why that Secretariat has been made Respondent. The vague and illusive Writ Petition is prima facie dismissible. The Parliament Secretariat merely plays the role of a facilitator in the smooth operation of the activities of Parliament. So, the Writ Petition unnecessarily naming that Secretariat as the Respondent in respect of the Act made by Parliament in exercise of its jurisdiction, in accordance with the legislative process, should be dismissed.

The Affidavit filed by the Respondent Office of the Prime Minister and Council of Ministers reads that the Petitioner has failed to clearly mention in the Writ Petition as to which of the acts of that Office has violated which of the Petitioner's rights. The Petition, which has also made this Office as the Respondent without any grounds and reasons, is, therefore, dismissible. Given that it is the jurisdiction of Parliament to make or amend any Act, there is no reason for making that Office as the Respondent in respect of the Act made by Parliament. Hence, the Writ Petition should be dismissed.

The Affidavit filed by the Respondent Ministry of Law, Justice and Parliamentary Affairs reads that Section 7 of the Act relating to Children, 2048(1992) prohibits subjecting children to torture or cruel treatment. The proviso to this Section provides that where parents, family member, guardian or teacher scold children or give them minor beating for their interests, such acts will not be deemed to violate that Section. Disregarding the general provision of Section 7, the proviso to Section 7 allowing such persons to scold children or give them minor beating in the interests of children cannot be interpreted as implying that torture and cruel, inhuman or degrading treatment is not prohibited. Chapter 2 of the Act relating to Children, 2048(1992) provides for the rights and interests of the child, Chapter 3 provides for the protection of the child, Chapter 4 has welfare provisions and Chapter 5 provides for working hours and rest. This shows that a number of provisions have been made to prevent such cruel, inhuman and degrading treatment to such children. Sections 53 through 57 of that Act provide for punishment and procedures for the same in the event of infringement of the rights of such children. So, the allegation made by the Petitioner that no initiation has been taken to make a separate law to prevent torture and maltreatment committed against children and punish the offenders is not based on fact. Hence, the proviso to Section 7 of the Act relating to Children, 2048(1992) is not consistent with any of the conventions joined by Nepal and the Constitution of the Kingdom of Nepal, as claimed by the Petitioner. So, the Writ Petition should be dismissed.

The Affidavit filed by the Respondent Ministry of Education and Sports reads, inter alia, that rule 133 of the Education Regulation, 2059 (--) provides for the code of conduct required to be observed by teachers. The rule provides that teachers should consider obedience, discipline, good faith, cooperation, sympathy, patience and good character as the main goals. In order to prevent torture, maltreatment and inhuman treatment against students, legal provisions alone are not sufficient; and support of all of the students, teachers, civil society and guardians is essential to that end. The issues raised by the Petitioner in the Petition seem reasonable. With a view to improving the educational standards of school, management of community schools has been transferred to the local body, management committee or organization, based on the prescribed grounds. This has, to some extent, prevented degrading treatment or acts to be given to or done against the children. The issues mentioned by the Writ Petitioner in the Petition are of serious nature and suggest some events taking place on some occasions. The School Inspectorate has been set up in that Ministry, school monitoring and supervision has been speeded up, and the Education Act and the Education Regulation have been amended from time to time lest such events do occur.

In this instant Writ Petition enlisted in the cause list and referred to this Bench in accordance with the rules, the learned Advocate Mr. Agni Kharel, for the Petitioner, has pleaded that Article 14(4) of the Constitution of the Kingdom of Nepal, 2047 (1990), guarantees that no one is to be subjected to torture. Article 5 of the Universal Declaration of Human Rights, 1948, Article 7 of the International Covenant on Civil and Political Rights, 1966, the Convention against Torture, 1984 and the Convention on the Rights of the Child, 1989, to all of which Nepal is party, prohibit not only subjecting children to any kind of physical punishment but also doing inhuman, degrading and cruel treatment to children. In addition, Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990, Rule 17 of the United Nations Standards Minimum Rules for the Administration of Juvenile Justice, 1985 and Section 54 of the United Nations Guidelines for the Prevention of Juvenile Delinquency, among others, prohibit acts of torture against children; and Nepal is bound to observe these provisions according to the Nepal Treaties Act, 2047 (1990). So, there does exist a situation that the proviso to Section 7 of the Act relating to Children, 2048(1992) should be declared void. There is also a situation that in the Affidavit filed by the Respondent Ministry of Education and Sports, the Respondent admits the Petitioner’s claim, mentioning that the issues raised by the Petitioner are of serious nature and are occurring in the practical life, and seem to be valid. According to psychiatric specialists, subjecting young and supple children to physical and mental punishment results in certain activities such as affecting their personality development, diminishing their interest in study, making them cry in sleep, startling, sudden high palpitation and being more pessimist. Various research works reveal that physical and mental punishment to be given in the name of discipline brings about negative results rather than positive ones; such negative results include development of anger and passion on children, diminishing their self-respect, increasing the fleeing of retaliation, pursuing violence as a way of resolution of problems, decreasing the feeling of love, affection and trust between students and guardians, making habit of telling a lie. Consequently, it will defeat the national objective of making them good, civilized and well-educated citizens in the future. Physical punishment has been fully prohibited by law in countries such as Austria, Croatia, Cyprus, Denmark, Finland, Germany, Latvia, Norway and Sweden whereas physical punishment has been restricted by order issued by their supreme courts in countries such as Israel, Italy, Canada and Zambia.

On the one hand, there is a legal and factual situation as mentioned above while on the other hand the State has not been able to properly control physical and mental torture and maltreatment to which children are subjected.

Even the Education Act, Regulation and Teachers’ Code of Conduct do not seem to prohibit torture, inhuman and degrading treatment to which children are subjected. Torture is not an essential method of teaching. Section 7 of the Act relating to Children prohibits torture on children but its proviso allows minor beating and scolding. If this proviso is removed, it will be in harmony with the objectives of the Act relating to Children, 2048(1992) and other human rights related conventions. So, this provision should be declared null and void by an order of certiorari; and a mandamus be issued to prevent physical punishment and other cruel, inhuman and degrading treatment or punishment or maltreatment being inflicted on or given to children in and outside schools; and a directive order should also be issued in the name of the Respondents, thereby requiring them to pursue appropriate effective measures to prevent such activities.

The Petitioner Advocate Mr. Shyam Babu Kafle and learned Advocate Mr. Rajendra Ghimire, along with the said Advocate, have jointly presented a Note of Pleadings, supporting the above contents and setting out full details.

For the Respondent, learned Deputy Government Attorney Mr. Brajesh Pyakurel has pleaded that recent jurisprudential norm is that it is not adequate only to make a law and prohibit any certain behavior; and the court should hold any action to be true or false based on the actual application of that law in practice. The Court should pay much attention to the matter whether the matter that the Petitioner intends to get fully prohibited is possible in practice or not. The law has also provided for separate punishment for any one who commits acts of torture and degrading treatment. Sections 53 through 57 of the Act relating to Children, 2048(1992) provides for punishment and specifies procedures in that respect. The proviso to Section 7 has been included for protection having regard to the situation of practical application. In such a situation where there is a principle of criminal law that defense is available where one commits homicide in the course of having protection, the claim that minor beating and scolding should also be fully prohibited has no ground and reason. According to Article 88(1) a Petition may be filed in this Court to have a law inconsistent with the Constitution declared void. However, it cannot be claimed that the proviso to Section 7 of the Act relating to Children, 2048(1992) is inconsistent with the Nepal Treaties Act, 2047(1990). In this respect, this Court has already expressed its viewpoints in various cases. Hence, given that the Petitioner’s claim is neither justifiable nor in consonance with law from both theoretical and practical viewpoints, the Petition should be dismissed and the order as sought by the Petitioner should not be issued. He has also presented a Note of Pleadings supporting the said contents.

In this instant Writ Petition, where this day has been appointed as the day for pronouncement of decision, upon having regard to the said pleadings, Petitioners’ claim, Affidavits submitted by the Respondents, Notes of Pleadings presented by both parties and other related materials, as well, have been studied; it appears to decide as to the following questions:

Whether or not the proviso to Section 7 of the Act relating to Children, 2048(1992) is inconsistent with the Constitution of the Kingdom of Nepal, 2047 (1990) and the human rights related conventions to which Nepal is party?
Whether or not the order as sought by the Petitioner should be issued?

First of all, let us consider the first question. Section 7 of the Act relating to Children, 2048(1992), which has been issued with a view to making timely legal provisions for the physical, mental and intellectual development of children by protecting the rights and interests of children, seems to provide that no one shall subject a child to cruel and torturing treatment; provided, however, that any act by the mother, father, family member, guardian or teacher to scold child or give him/her minor beating for the sake of his or her interests shall not be deemed to violate this Section. The Petitioner seems to pray for voiding the provision, out of the said provisions, which provides exemption that a minor beating and scolding carried out by the mother, father, family member, guardian or teacher for the sake of the child’s interests is not considered as the commission of cruel and torturing treatment since this provision is not consistent with the Constitution and the conventions to which Nepal is party. In the context where Article 11(3) of the Constitution of the Kingdom of Nepal, 2047(1990) provides that special provisions may be made by law for the protection and advancement of the interests of women, children, the aged or those who are physically or mentally incapacitated or those who belong to a class which is economically, socially or educationally backward, and Article 26(8) provides that the State is to make necessary arrangements to safeguard the rights and interests of children and ensure that they are not exploited, the Act relating to Children, 2048(1992) has been issued for the protection of the rights and interests of children and has come into force since 2050.1.1(13 April 1993). The Preamble of that Act reads that it is expedient to have physical, mental and spiritual development of children by safeguarding their rights and interests. The Constitution of the Kingdom of Nepal, 2047(1990), in Article 14(4), provides that no person who is detained during investigation or for trial in any criminal offense or for any other reason shall be subjected to physical or mental torture nor shall be given any cruel, inhuman or degrading treatment; and any person so treated shall be compensated in a manner as determined by law. In such a situation where the Constitution has guaranteed that no one can subject any person, including one who is arrested and detained in connection with a criminal offense, to physical or mental torture or give any cruel, inhuman or degrading treatment even to a person who has been arrested or detained on a charge of criminal offense, it cannot even be imagined to allow any kind of torture or cruel, inhuman or degrading treatment to any person not accused of any criminal offense or not held in detention. Again, it cannot also be said that such right available to a person who is held in detention during investigation or for trial cannot be guaranteed for any person other than such person. It is, therefore, clear that the State is to ensure conditions where the people can enjoy respectful life free from torture. The Constitution is the fundamental law of the land. Enactment of any law or performance of any act contrary to the letter and spirit of the Constitution is not consistent with the Constitution. Any law which is made contrary to or is inconsistent with the Constitution is invalid to the extent of such inconsistency, by virtue of Article 1 of the Constitution.

Moreover, Section 9 of the Nepal Treaties Act, 2047(1990) has imposed additional obligation on the Kingdom of Nepal. Article 9(1) of that Act provides that if any provision contained in a treaty to which the Kingdom of Nepal or His Majesty's Government has become party following its ratification, acceptance, approval or accession by Parliament is inconsistent with the law in force, such law shall, for purposes of that treaty, be invalid to the extent of such inconsistency, and the provision of that treaty shall be applicable as if it were the law of Nepal. Article 5 of the Universal Declaration of Human Rights, 1948, Article 7 of the International Covenant on Civil and Political Rights, 1966, Articles 19, 28(2) and 37 of the Convention on the Rights of the Child, 1989 and Articles 1 and 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, to which Nepal is a party, prohibit any kind of torture or other cruel, inhuman or degrading treatment or punishment. In such a situation where the provisions of the above-mentioned treaties to which Nepal is a party fully prohibit any kind of torture or other cruel, inhuman or degrading treatment or punishment, it is not proper and lawful to make laws in a manner contrary to the provisions of those treaties.

Today’s children are tomorrow’s future. The State has to create such environment as is conducive to their overall development. The environment conducive for development and the opportunity to develop their personality while spending a respectful life free from torture are the most essential elements for the overall development of children. Even the Affidavits filed by the Respondents admit this fact. In a situation where the various reference materials produced by the Petitioner are real, various kinds of torture and punishment inflicted or imposed on children by teachers or guardians in the pretext of maintaining discipline cause adverse impacts on children. Also, there is a situation that the Petitioner has brought various events of infliction of acts of torture on children in practical life to the information of this Court. Occurrence or commission of such acts of torture is not in consonance with law.

It also appears from the materials submitted by the Petitioner that universally laws have been made fully restricting physical punishment to be imposed on children in the course of discipline or in the name of child welfare. As at 15 April 2003, 27 states of America have restricted physical punishment in schools; and physical punishment has also been restricted in countries such as Austria in 1989, Croatia in 1999, Cyprus in 1994, Denmark in 1997, Finland in 1983, Germany in 2000, Latvia in 1998, Norway in 1987, Sweden in 1979 . Similarly, physical punishment has also been restricted in Israel in 2000, Italy in 1996 and Canada in 2004 by virtue of their Supreme Court judgments, and Zambia in 2000 and the West Bengal of India, by virtue of their High Court orders. In addition, the facts show that physical punishment has been prohibited in other countries by way of law and governmental directive, as well. There seems no reason for Nepal not to take an initiative in the universal campaign against physical punishment or torture.

Then, let us consider the second and last question. Based, inter alia, on the spirit of Articles 14(4) and 25(8) of the Constitution of the Kingdom of Nepal 2047(1990), treaty related legal obligations created by the commitments made by Nepal at the international sector, universal campaign against physical punishment or torture done to or inflicted on children, and obligation of the State to create environment for the overall development of the child, out of the provisions of the proviso to Section 7 of the Act relating to Children, 2048(1992), viz. “any act by the mother, father, family member, guardian or teacher to scold the child or give him/her minor beating for the sake of his or her interests shall not be deemed to violate this Section”, the portion “or give him/her minor beating”, is not appropriate and is contrary to the spirit of Articles 14(4) and 25(8) of the Constitution of the Kingdom of Nepal 2047(1990). So, that portion is hereby declared null and void with effect from this date, pursuant to Article 88(1) of the Constitution of the Kingdom of Nepal, 2047(1990). A directive order is also hereby issued to the Respondent Office of the Prime Minister and Council of Ministers, et al, hereby asking the Respondent to pursue appropriate and effective measures to prevent physical punishment as well as other cruel, inhuman or degrading treatment or punishment or abuse being imposed or inflicted on and likely to be imposed or inflicted on children. It is also ordered that a duplicate copy of this Order be sent to the Respondents through the Office of Attorney General for their information and that the case file be dealt with and handed over as per the rules.

Bench officer: Mr. Narishwor Bhandari (Gazetted Second)

Done on Thursday, the 22nd day of the month of Poush of the year 2061 (6 January 2005).

Back to Judgments