Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal system and alternative care settings.

Article 4 of Chapter 9 of the Muluki Ain states that guardians and teachers shall not be held responsible for grievously hurting a child in the course of education or defence, and article 7 of the Children’s Act exempts “the act of scolding and minor beating to the child by his father, mother, member of the family, guardian or teacher for the interests of the child” from the prohibition of cruel treatment. In 2005 the Supreme Court ruled that the restrictive clause in article 7 was unconstitutional and declared the clause “or give him/her minor beating” null and void (Mr Devendra Ale et al v Office of the Prime Minister & Cabinet et al, Supreme Court decision 6 January 2005). The near universal social acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. Article 7 of the Children’s Act and the relevant provision in the Muluki Ain should be repealed to reflect the Supreme Court ruling and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home and all other settings where adults have parental authority.

The law should make clear that no child convicted of an offence can be sentenced to any form of corporal punishment, under any system of justice. Explicit prohibition should be enacted of corporal punishment as a disciplinary measure in all schools, all institutions accommodating children in conflict with the law, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 7 of the Children Act (1992) states: “No child shall be subjected to torture or cruel treatment. Provided that, the act of scolding and minor beating to the child by his father, mother, member of the family, guardian or teacher for the interests of the child shall himself not be deemed to violate the provision of this section.” Following a writ petition filed by the Centre for Victims of Torture in Nepal on 16 June 2004, the Supreme Court ruled that the restrictive clause in article 7 was unconstitutional and, in accordance with article 88 of the then Constitution (1990), declared the portion “or give him/her minor beating” null and void with immediate effect (Mr Devendra Ale et al v Office of the Prime Minister & Cabinet et al, Supreme Court decision 6 January 2005). The judgment also issued a directive to the Government “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”. However, there is also a legal defence for parental corporal punishment in Chapter 9 of the Muluki Ain (General Code) (1963), which punishes hurt and battery but states in article 4: “... if a person, who has a duty to protect or give education to somebody else, causes injury to the victim upon using a reasonable minimum amount of force, the act of causing injury shall not be deemed to be the offence of hurt in all these situations.” Provisions against violence in the Domestic Violence (Crime and Punishment) Act (2009) are not interpreted as prohibiting all corporal punishment in childrearing.

At a meeting of the South Asia Forum in July 2006, following on from the regional consultation in 2005 of the UN Secretary General’s Study on Violence against Children, the Government made a commitment to prohibition in all settings, including the home. The Ministry of Women, Children and Social Welfare is drafting a child bill and the Ministry of Law and Justice has drafted a Criminal Code and a Civil Code to replace the Muluki Ain, but we have no details of proposed provisions.

Schools

There is no explicit prohibition of corporal punishment in schools in the Education Act (1971) or the Education Regulation (2003), though severe punishment would be prohibited under article 7 of the Children’s Act (see above). The legal defence available to teachers was removed in 2005 by the Supreme Court ruling already noted but this has not been confirmed in legislation and the legal defence in the Muluki Ain applies (see above). As at November 2010 an Education Bill was under consideration but we have no details of its provisions.

Penal system

Corporal punishment is unlawful as a sentence for crime under criminal law. The Interim Constitution (2007) prohibits cruel, inhuman or degrading treatment (article 26). The Children’s Act, defining a child as under 16 (article 2), prohibits cruel treatment (article 7) and subjecting a child to handcuffs, fetters or solitary confinement (article 15), and does not provide for sentencing to corporal punishment (article 11). Under the Act, children aged 14-15 are liable to reduced sentences under criminal law (article 11) and older children face full sentences under criminal law: criminal law (the Muluki Ain and other laws) does not provide for judicial corporal punishment. The Abrogation of Some Criminal Cases and Remission of Punishment Act (1963) explicitly prohibited a number of cruel and humiliating punishments, including shaving the head of the offender, impaling/piercing the body, branding the body and forcing the offender to eat forbidden/inedible foods (article 5).

Maoist courts have been revived in a number of areas and sentences include physical punishment. However, this appears to be unlawful under article 100 of the Interim Constitution, which states that the powers of courts must be in accord with the Constitution and other laws. A new Constitution is yet to be drafted. In 2010, the Government was drafting sentencing legislation, including a criminal procedure code, but we have no further details.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions, though article 7 of the Children Act and the 2005 Supreme Court decision (see above) presumably apply. Article 15 of the Children Act prohibits the use of handcuffs, fetters and solitary confinement of children but does not refer to corporal punishment. There is no provision for corporal punishment in the Prisons Act 1963.

Alternative care

Corporal punishment is lawful in alternative care settings. The legal defence was removed by the 2005 Supreme Court decision but this has not been confirmed in legislation and article 4 of Chapter 9 of the Muluki Ain applies (see above). Article 39 of the Children Act states that the powers of the chief of a children’s welfare home to punish a child do not include “to batter or detain the child in solitary confinement or to stop giving food and water to such child”, but does not prohibit all corporal punishment. Corporal punishment should not be used in residential institutions according to the Minimum Standards of Operations of Child Care Homes (2003) but there is no prohibition in law.

Prevalence research

A 2008 study in 71 child centres in Nepal involved interviews and focus groups with children, child centre staff and children’s biological parents. It found that punishments in child centres included hitting children, isolating them, locking them in the toilet, public humiliation, and forcing them to clean floors and toilets. (UNICEF & Terre des Hommes (2008), Adopting the Rights of the Child: A study on intercountry adoption and its influence on child protection in Nepal)

In a study in the schools of Kathmandu, 82% of students were found to suffer physical punishment in schools; 80% of students said that alternative methods can be used to discipline children. (Reported in The Rising Nepal, 24 December 2006)

In December 2003, the Centre for Victims of Torture (CVICT), in collaboration with UNICEF, conducted a focus group study on “Existing Systems of Discipline in Schools” among students, teachers and parents in four regions. The study revealed that corporal punishment was being used in most schools, more commonly in the private than the public schools. Physical punishment was most commonly used against primary school students, while psychological punishment was more common against secondary level students. Both were commonly used against lower secondary students. Many teachers and parents reported that they give severe punishment to children because they were unaware of alternatives to corporal punishment and knew little about the physical and psychological impacts of harsh punishments. (Reported in CVICT, Monthly Update, June 2004)

A study on barriers to education for children with disabilities in Nepal found that students with disabilities experienced corporal punishment at home and at school, and that this could contribute to the children’s lack of access to education. (Human Rights Watch (2011), Futures Stolen: Barriers to Education for Children with Disabilities in Nepal)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is concerned that corporal punishment and ill-treatment of children is prevalent in the family, in schools and in other institutions. The Committee is concerned about the provisions in the 1992 Children’s Act and the 1963 Muluki Ain (Civil Code) which provide for corporal punishment in the home, in schools and in other institutions and forms of childcare, which is in clear contravention of article 19 of the Convention. The Committee underlines the importance of specific legal prohibition of traditional practices which are harmful to children by law.

“The Committee recommends that the State party:

1. expressly prohibit corporal punishment and ill-treatment of children by law in the family, schools and other institutions;
2. expedite the process of amending the relevant provisions of the Children’s Act and the 1963 Muluki Ain to ensure compliance with article 19 of the Convention;
3. strengthen awareness-raising campaigns to inform parents, teachers and professionals working with children, particularly in institutions, as well as the public at large about the negative impact of corporal punishment and ill-treatment on children and actively involve children and the media in the process;
4. ensure that positive, participatory, non-violent forms of discipline are administrated in a manner consistent with the child’s human dignity and in conformity with the Convention, in particular article 28 (2) as an alternative to corporal punishment at all levels of society.

“The Committee recommends … that the State party:

i) adopt appropriate legislative measures to combat the use of corporal punishment in schools….

(21 September 2005, CRC/C/15/Add.261, Concluding observations on second and third combined report, paras. 47, 48 and 76)

“The Committee is concerned at the inadequate measures adopted to ensure that national legislation fully conforms with the principles and provisions of the Convention. The Committee notes in particular the lack of conformity of legislative provisions concerning non-discrimination including in relation to marriage, inheritance and parental property, torture and corporal punishment. The Committee is also concerned about the gap between existing legislation and its practical implementation.

“… The Committee also expresses its concern at section 7 of the Children’s Act which allows parents, members of the family and teachers to beat a child ‘if it is thought to be in the interest of the child’, as well as at the fact that, as recognized in the State party’s report, the views of the child are unlikely to be respected. The persistence of such traditional practices and attitudes seriously hampers the enjoyment of the rights of the child.

“The Committee is concerned that appropriate measures have not yet been taken to effectively prevent and combat any form of ill-treatment and corporal punishment of children within the family. It is seriously worried about the absence of adequate legislation and mechanisms designed to ensure the recovery and reintegration of child victims in the light of article 39 of the Convention.

“In the light of article 19 of the Convention, the Committee further recommends that the Government take all appropriate measures, including of a legislative nature, to combat any form of ill-treatment and sexual abuse of children, including within the family. It suggests, inter alia, that the authorities gather information and initiate a comprehensive study to improve the understanding of the nature and scope of the problem and set up social programmes to prevent all types of child abuse and neglect.”
(7 June 1996, CRC/C/15/Add.57, Concluding observations on initial report, paras. 10, 12, 19 and 34)

Universal Periodic Review

Nepal was examined in the first cycle of the Universal Periodic Review in 2011. No recommendations were made concerning corporal punishment of children. Examination in the second cycle is scheduled for 2015.