Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira J. De Abrew, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application which was filed in the matter of violation of Fundamental Right guaranteed under Article 11, 17 and 126 of the Constitution.
Petitioner 3 (minor) was a student at Puhulwella Central College and petitioner 1 and 2 were the father and mother of the child petitioner. Respondent was the Art Teacher, Teacher in Charge of Discipline and Sectional head of Puhulwella College.
On 13-02-2017 petitioner attended school, as usual, 1st and 2nd periods of the day allocated for Agriculture, the Petitioner was made part of one of three groups in the class and was directed to plough a designated area of the school grounds at the plant nursery in order to plant vegetables. During the execution of this exercise he had felt fatigued and had sat on a half wall near the plant nursery for a short amount of time prior to resuming this activity. He further stated that while he was washing his hands and tools, two students had approached him and told him that the Respondent asked him to come to his office, Respondent also admitted to this and added that on seeing the Child Petitioner seated on the culvert during the previous period, he had summoned him and reminded him that the Principal had previously warned them not to sit on that specific culvert as it was dangerous and questioned him as to why he had done so even after the warning. It was observed by the material submitted that the Respondent had slapped the child petitioner across the face and the blow landed on his face, upon his left ear after which he felt excruciating pain, severe discomfort, and been startled and disoriented. When Respondent was informed about the petitioner’s condition he did not take it seriously after which he informed the class teacher about the incident and that he wanted to go home because he was in pain to which the class teacher did not pay any attention and advised him not to exaggerate and tell the incident to his parent. It was further alleged that no staff member offered any form of medical assistance to the Child petitioner, he himself had bought 2 Panadol pills as painkillers from the school canteen.
After the Child Petitioner returned home from school at the end of the school day, he told his grandmother that the Art teacher had slapped him and that his ear was aching. Thereafter the Child Petitioner was taken to the Kirinda-Puhulwella Rural Hospital and his ear had been examined. The Doctor has commented that there is eardrum damage and recommended that he be admitted to the Matara General Hospital. The Child Petitioner was thereafter transferred to Karapitiya Teaching Hospital on 14-02-2017 for further investigation and had returned to Matara General Hospital on the same day. A statement was recorded by the Police while the Child Petitioner was at the Matara General Hospital and the Petitioner was thereafter discharged. However, as there had been no conclusive treatment, the Child Petitioner continued to be in excruciating pain after returning home. Being unsatisfied with the treatment at the previous hospitals, petitioner 2 after discussing with Petitioner 1 decided to admit the Child Petitioner to Colombo National Hospital on the 15-02-2017 for treatment and further investigation.
The medical investigations written by the Doctors of the Colombo National Hospital, demonstrated that the finding was that one of a perforated ear drum and that the Child Petitioner was suffering from “conductive hearing loss” on the left ear in hearing low frequencies. The Petitioners believed this to have been caused by the assault on the Child Petitioner by Respondent as the Child Petitioner did not have any history of hearing loss prior to this incident. The report from the Audiology Department made the comment that there was normal hearing in the right ear, but that there was Mild Conductive hearing loss only at low frequencies in the left ear.
The Court discussed Article 11 of the Constitution, Article 37 of Child Rights Convention, Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment all of which dealt with Violation of Fundamental Rights (Corporal Punishment and torture).
The Court further relied on the judgment of Bandara v. Wickremasinghe, (1995) 2 SLR 167 where it was held that,
“I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action.”
The Court further dealt with the contention of the respondent where he had stated that he did not know any details of the Child Petitioner, and bore no personal grudge against the Child Petitioner prior to this incident and thus that there was never any malicious intent on his part, the Court explained that there was a requirement of malice or intent required for the violation of Article 11 or Article 17 of the Constitution. Further, it is established through the circulars by the Education Ministry, in circular 12/2016 paragraph 2.4, that even with the best interest of the child and the discipline of the school in mind, a teacher may be in violation of all relevant provisions in reference to Corporal Punishment. Thus, the intention of the perpetrator is irrelevant to the illegality of Corporal Punishment, be it a teacher, parent, guardian or any other adult under who’s care or contact that the minor may be in, for the sole reason that it is the duty of the State to protect children from all forms of physical violence.
The Court held that, I must also recognise that the elimination of the practice of Corporal Punishment may not be achieved through isolated incidents, but a profound understanding by those entrusted with the care of children that violence is not a justifiable means to the end of discipline. Cruelty, violence, physical harm, particularly in the view of setting an example is condemned by all major faiths of our country, which forms the bedrock of our culture. The Dhammapada, profoundly states as follows:
“As one instructs others, so should one act; if one would tame others, one should first be well tamed. Truly, it is very hard to tame oneself”
It is thus clear, that those guiding and instructing impressionable children, do not set a suitable example in impulsively engaging in violent acts that harm children in the name of disciplining them, as children are only likely to carry forward this behavior. If teachers aim to instill self-discipline and non-violence in children, they must set the example by instilling the same values in themselves. While this is difficult practice, if one is to expect this of children, they are to reflect it and expect it of themselves.
The Court allowed the application finding that Fundamental Rights of the Child Petitioner enshrined in Article 11 of the Constitution had been violated by the Respondent and the State. The Court after careful examination of all facts and relevant matters, especially permanent lifelong damage to the Child Petitioner’s hearing ability ordered compensation of Rs. 1,50,000 from the Respondent to the Child Petitioner and a further sum of Rs 5,00,000 by the State to be paid to the Child Petitioner.[Hewa Maddumage Karunapala v. Jayantha Prema Kumara Siriwardhana, Case no. SC/FR/97 of 2017, decided on 12-02-2021]
Suchita Shukla, Editorial Assistant has put this story together
