INTRODUCTION

The word tort is derived from an old French word meaning "wrong" and from a medieval Latin word tortum, also meaning "wrong. In a popular sense, it means a crooked act. Tort is a wrong involving a breach of a civil duty owed to persons unlike a criminal wrong that involves a breach of a duty towards the society. Tort is a mosaic in which the principles of distributive 1 and corrective2 justice are interwoven, and in situations of uncertainty and difficulty, a choice is made between the two approaches. The law of tort aims at seeking compensation, allocating or redistributing losses, seeking primary remedy in the form of an injunction, expelling the profits made by the wrongdoer due to the wrong caused, specific restitution. Definitions of tort as given by some famous jurists like Salmond and Winfield: Salmond :Tort is a civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or a breach of trust or other merely equitable obligations. Winfield :Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages. Trespasses to person and to property are one of the various kinds of tortuous liabilities. Every unlawful entry onto another's body or property is trespass, even if no harm is done to the property. Assault and battery are categorized under the tort of trespass to person.

It is the principle stating that there should be fair allocation of assets and losses According to Coleman, corrective justice states that individuals who are responsible for the wrongful losses of others have a duty to repair the losses
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Battery:Battery is the intentional and direct application of force to another person. It is when someone intentionally touches another without his/her consent. The culpable touching may take several forms, subject only to the rule that the contact must be direct. In Dodwell v. Burford3, when the defendant struck the claimants horse such that the horse was thrown and injured, the defendants action amounted to battery. In Cole v. Turner4, Holt C.J declared that, the least touching of another in anger is battery. If two or more persons meet in a narrow passage and one touches another gently (without any violence), it will not amount to battery. If any of them uses violence or struggles about the passage to that degree so that it hurts another, it amounts to battery. Assault:An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on him. In many cases, a person may be guilty of an assault without being guilty of a battery or both of assault and battery. It refers to threatening someone with bodily harm, attempting to put someones life in harm. Assault is coupled with intention and ability to do the act. Suppose anyone strikes another person on any part of his body in a communication, it does not amount to assault, as there was no intention for that act. Assault is not limited to verbal threats only. Even if a persons gestures relate to any kind of threat that amounts to assault as such act makes another apprehend a future injury.

3 4

Dodwell v Burford (1669) 1. Mod Rep 24 Cole v. Turner(1704) 6 Mod, 149

VARIOUS PRIVILEGES TO BATTERY

The following, are used as privileges in cases of battery, which if accepted may defeat a claim for battery:1. DEFENCES: Under this privilege, there are three categories namely, self-defense, defense of others and defense of property. Self-defense states that depending on the circumstances, a person is justified in using reasonable force to protect himself from physical harm. An act of selfdefense must ordinarily be proportionate to the threat. That is, if X believes Y might pinch him, depending upon the context it is reasonable to push the person away, but it is not reasonable to hit the person with a baseball bat. Defense of others is the act of using reasonable force to protect others. It usually occurs in the context of one family member protecting another. Some jurisdictions do not permit this defense unless there was an actual threat or battery against the other person while others do. Defense of property is using reasonable force to defend ones belongings from theft or damage if there is any kind of threat or force to his property. In most jurisdictions, there is no privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. While there are some jurisdictions, which permit the use of significant and even deadly force to prevent the theft of property. Merchant's Privilege: Most jurisdictions grant merchants the right to apply reasonable force to detain shoplifters, or other persons who the merchant reasonably believes are attempting to steal the merchant's property.

2. DISCIPLINE: In some jurisdictions, upholding discipline is a privilege to assault and battery. In such cases, an individual is given the responsibility of using a reasonable amount of force to exert discipline on someone and to prevent them from hurting themselves, others and property. Hospital workers, mental asylum employees, teachers and parents can all use the discipline privilege in certain areas. These people are legally authorized to apply physical restraint or battery in order to discipline others. In most jurisdictions, parents are legally authorized to apply reasonable physical discipline upon their children. This is a defense to battery and is known as parental authority. In some jurisdictions, school teachers are permitted to apply a certain level of physical restraint or discipline against students which is reasonable and not extreme in nature. This defense of battery is known as quasiparental authority. This excludes corporal punishment as corporal puinshment had been entirely abolished by the Education Act, 1996 of England5. Corporal punishment of minors within domestic settings is lawful in all 50 of the United States and, according to a 2000 survey, is widely approved by parents. It has been officially outlawed in 29 countries. Corporal punishment in schools is still legal in some parts of the world, including 20 of the States of the USA, but has been outlawed in other places, including Kenya, Japan, New Zealand, and nearly all of Europe except the Czech Republic and France.6 Section 89 of the Indian Penal Code speaks about an act done in good faith for benefit of child or an insane person, by or by consent of guardian. The Bombay High Court had held in G.B. Ghate v. Emperor7 that a schoolteacher commits no offence if he inflicts moderate corporal punishment on a pupil. In that case the boy was 15 years of age and the School teacher gave 5 or 6 strokes with a cane as the boy was guilty of misconduct in his class. It was held that
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By the Education Act, 1999 http://en.wikipedia.org/wiki/Corporal_punishment 7 G.B. Ghate v. Emperor, AIR 1949 Bom 226

the school teacher committed no offence, in view of the provisions of Section 88 of the Indian Penal Code as the punishment was for correcting the boy and for maintaining school discipline.

TEACHERS BATTERY AND THEIR PRIVILEGES; DISCIPLINE IN EDUCATIONAL INSTITUTIONS

A person with parental responsibility in relation to a child is authorized to do certain acts , and also empowers others to act, in a manner which might not constitute a tort .Such a person has a right to control the childs movement whether this action is designed to protect the child from any harm .It may consist of reasonable punishment for disobedience, use of abusive language, indiscipline, indecent attitude, lack of interest in studies or homework, quarrels and adults frustration etc. This right is preserved by the Children and Young Persons Act 19338 passed in England. According to the old view, authority of the schoolteacher existed , as same as that of a parent. A parent, when he places his child with a school teacher, he delegates to him all his authority ,as far as necessary for the welfare of the child. 9 But according to the modern view, the schoolteacher has his own independent authority to act for the welfare of the child. The authority is not limited to offences committed by pupil upon the premises of the school, but may extent to acts done by such pupil while on the way to and from the school. Punishment must be designed to maintain discipline and not be arbitrary. It must be reasonable in all the circumstances considering the age and strength of the child . An unreasonable punishment, with bodily harm is a battery. According to modern attributes
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It is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland. It consolidated all existing child protection legislation for England and Wales into one act. It was passed a year after the Children and Young Persons Act 1932, broadened the powers of juvenile courts and introduced supervision orders for children at risk. The 1933 Act raised the minimum age for execution to 18, raised the age of criminal responsibility from 7 to 8

Ratanlal and Dhirajlal The Law of Torts 26th edition 2010 by Justice G P Singh

of child care, it is suggested that if a punishment results in over harm or more than temporary pain then it is considered unreasonable. Factors that decide the punishment is reasonable or not are: 1) The nature and context of defendants behavior 2) The physical and mental consequences in respect of child 3) The age and personal characteristics of child 4) The reason given by the teacher for administering the punishment School teachers are permitted to apply certain level of physical restraint or discipline against students which is reasonable in nature . In some jurisdictions, upholding discipline is a battery privilege. A teacher is given the right to use reasonable amount of force to discipline someone and prevent them from hurting themselves or others or destroying property. This defense of battery is known as quasi-parental authority. Different reasons and defenses for punishment by teachers
1) In common law a schoolteacher had the power to punish a child to impose

discipline and this is probably rested upon the need to maintain order and discipline in the school10 2) A teacher guides his/her student at each stage of his/her life. The teacher gives preliminary foundation to his/her career, so he/she can punish him/her with the intention of injecting good qualities to a reasonable extent. 3) Punishment acts as a deterrent for future wrongdoing, where it works to

discourage either the child in repeating the offence or doing any wrong or where it serves to discourage others from committing the same or similar offences, by creating a fear in child mind about the consequence of the act. Punishments are sometimes instill morals in a child and discourage him from doing it in future.

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Disciplinary powers are not necessarily confined to conduct on school premises:Clerry v. Booth [1893]1Q.B.465

4) As teachers play a key role in our education system ,and they are the ones who

show the world to children, they have the right punish the child, when he/she misbehaves. Punishment is described as a deserved and appropriate consequence for doing evil. It is determined based on the fact that something is deserved, considering the actions of the child who has done the deed. The future is not considered like to find what will do most good in future. But the past is considered which tries to find who has done good or harm, in the past, and acting accordingly.

MISUSES OF THIS PRIVILEGE AND LEGAL PROVISIONS

Discipline and education go together in letter and spirit. To impose discipline on students, almost all schools inflict punishment on them. It may arise due to disobedience, indiscipline and other related reasons. A study conducted by UNICEF in three districts of the Frontier province has identified 43 types of punishment being given to students at schools11. Corporal punishment is often accepted as a way of enforcing discipline upon children both in school and in the home. Corporal punishment is commonly employed by teachers who want to impose their authority in a disorderly class with the belief that hitting a child will produce the desired obedience. Contrary to this, law provides that there can be no corporal punishment even under penal provisions based on the principles of doli incapax12 and in accordance with Section 8313 of Indian Penal Code. In essence, a child cannot be subjected to ordinary methods of physical punishments including imprisonment for the offences owing to
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http://www.dawn.com/2005/06/02/nat35.htm

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Children under ten years of age are doli incapax and cannot be prosecuted for criminal offences; children aged between 10 and 14 are presumed to be doli incapax but the presumption can be reversed if there is evidence of malice or knowledge.
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Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occassion

their age and incapacity of formulating a malicious intention. Thus, for being a student and having a committed a wrong of not doing home work or violating such other rules should not invite any corporal punishment. All the teachers and headmasters do not know the provisions of Education Code, where the rules made impose an obligation on Headmaster to maintain the record of corporal punishments inflicted on students with reasons which if proved to be inflicting harm on the students attracts action against the school authorities. Section 89 of Indian Penal Code protects an act by guardian or by consent of guardian done in good faith for benefit of child under 12 years. However the same section says that this exception will not extend to cause death, or attempting to cause death, causing grievous hurt. These provisions extend to teachers having quasi-parental authority i.e., consent or delegation of authority from parents also, with exceptions. Using excessive force, causing serious injury for unreasonable purposes can turn such acts offences, because such incidents are outside the scope of "good faith". Besides this, Section 23 of new Juvenile Justice (Care and Protection of Children Act), 2000 provides punishment for cruelty to juvenile or child without exceptions to exempt parents or teachers. Though it is intended to punish cruelty by those in authority, it equally applies to parents and teachers. The whole purpose of the Juvenile Justice (Care and Protection of Children) Act 2000 is to translate the objectives and rights enshrined in Convention on Child Rights which include separation of juveniles in conflict with law from ordinary judicial proceedings to avoid corporal punishment. The Education Rules 2000 on corporal punishment were laid down to limit indiscriminate corporal punishment of children in schools.

International human rights law reflects a global acknowledgment that corporal punishment of children is a violation of human rights. The U.N. Convention on the Rights of the Child contains at least eight specific provisions that are inconsistent with corporal punishment. For example, article 19, paragraph 1 states that nations must take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence...while in the care of parent(s) or any other person who is in charge of care of the child.14 However, reports of children suffering from severe physical trauma at the hands of their teachers have been occurring frequently in India and abroad. This can be substantiated in a recent case of child abuse in Vietnam where a 10 year-old female pupil was questioned by the local police and her teachers on suspicion of stealing 47,800 Vietnamese dong (US$3) from a student activity fund. Although facts showed the girls innocence, no apology has been made so far. She suffered a nervous breakdown and was driven mad, despite the fact that before this case, she had been an active and intelligent pupil.

RECENT JUDICIAL AND EXECUTIVE TRENDS JUDICIAL TRENDS:

There are innumerable cases which relate to the use of battery as a privilege to give way to discipline. There are cases all over the world. But, people also use battery in a wrong manner and justify it to be a means to maintain discipline. The following are some cases which depict the adverse use of battery on students in schools and other institutions: In November, 2008 hundreds of students were allegedly beaten by teachers, coaches and staff at Chicago Public Schools Islam Badr,a 11-year-old boy died on October 27, 2008 at Saad Othman Primary School in Alexandria, who hadnt done his homework, died of severe low blood pressure and heart failure from injuries inflicted by his primary school teacher.

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http://www.nospank.net/bitensk2.htm

In November, 2003, a Class VI student got hit by a teacher and inflicted five stitches on her right eyelid in a school in Ludhiana, India. In October, 2002, twenty students of a school in Chandigarh were beaten up ruthlessly by the teachers for not bringing books to school and they were also made to sit on the floor for three days.

Despite of the improper use of battery in some parts of the world, there are also a few cases where it was necessary to encourage corporal punishment for students with bad behaviour. This also includes the quasi-parental authority provided to the teachers of an institution. According to this authority the duty of bringing discipline in a child is delegated from the parents to the teachers. The following cases are proper examples of quasi-parental authority. In University of Kerala v The Council of Principals of colleges 15 in Kerala, Dr. Arijit Pasayat J. gave the judgement that whenever there is a case of ragging, the accused student will be given opportunity to explain and if his explanation is not satisfactory the authority would expel him from the institution. The regulatory institutions were also requested to intimate from time to time the progress being made and were also informed that the reports being received from individual higher educational institutions be consolidated and analysed and only the findings intimated to the Ministry for placing before the Committee. It was also decided that students are to be punished if found guilty of ragging. In Headmaster, Poilkav High School v Murali A. And others 16, the teachers of the school sent a written complaint to the headmaster stating all sorts of disturbances and indiscipline created by the students in and outside the classroom. Such disturbances did not allow the teachers to teach. A registered notice was sent to the father of the respondent proposing disciplinary action to be taken against the respondent. First sufficient opportunity was granted to the respondent and his father to explain the

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University of Kerala v The Council of Principals of colleges [2007]RD SC 375(9th April 2007) Kozhikode, Kerala;2nd March 1994

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allegations levelled against him and then under the natural justice, the decision was taken to dismiss the student (respondent) from the school. One of the pronouncements was that there was The Education (welfare) Act of 2000 which replaced the School Attendance Act of 1926 of Ireland. Main objective of this act is to improve school attendance rates for children at primary and post-primary levels. It also ensures that every child attends a recognised school or otherwise receives an appropriate education17. The code of behaviour states that proper measures should be taken against students who fail or refuse to follow the standards of behaviour when they are attending a school. These procedures may include suspension or expulsion from the concerned school18.

17 18

Section 10, Education Welfare Act,2000 Section 23[2(b, c)],Education Welfare Act,2000

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EXECUTIVE TRENDS ( GUIDELINES):

Certain guidelines have been issued by the National Commission for Protection of Child Rights (NCPCR) to deal with violence in schools systematically to control corporal punishments. Section 17 of Right to Free and Compulsory Education (RTE) Act prohibits corporal punishment and mandates states to take firm action against violators. Section 21 of Prevention of Offences Against Child (POAC), bans physical penalties to discipline students. First violation of the ban could earn imprisonment up to one year or fine up to Rs5, 000 or both. In case of subsequent violations, the imprisonment could extend up to three years and fine up to Rs25, 000. In the last three years, NCPCR has received several complaints of corporal punishment. Many such punishments have resulted in severe injuries or even death of children. Thus, NCPCR has framed guidelines to deal with violence in schools according to which, heads of schools will be held responsible for any act of violence or corporal punishment and teachers who inflict corporal punishment on students will be denied increment.19 The NCPCR directs the education departments of all the States to ensure that: 1. All children are to be informed through campaigns and publicity drives that they have a right to speak against corporal punishment and bring it to the notice of the authorities. They must be given confidence to make complaints and not accept punishment as a normal activity of the school. 2. Every school, including hostels, Juvenile Justice Homes, shelter homes and other public institutions meant for children must have a forum where children can express their views. Such institutions could take the help of non-governmental organisations for facilitating such an exercise. 3. Further a box where children can drop their complaints, even if anonymous has to be provided for in each school.
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http://www.dnaindia.com/india/report_govt-issues-fresh-guidelines-on-corporal-punishment_1412060

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4. There has to be a monthly meeting of the Parent Teacher Association (PTA) s or any such body to review the complaints and take action. 5. The PTAs are to be encouraged to act immediately on any complaints made by children without postponement of the issue and wait for a more grave injury to be caused. In other words the PTAs need not use their discretion to decide on the grievousness of the complaint. 6. Parents as well as children are to be empowered to speak out against corporal punishment without any fear that it would have adverse effect on childrens participation in schools. 7. The education department at all levels-block, district and State are to establish procedures for reviewing the responses to the complaints of children and monitoring the action taken on the same. In order to stop corporal punishment, NCPCR has permitted the District Magistrate to take the following actions: (i) To get Block-wise meetings conducted for all the school headmasters on corporal punishment and to convey them that serious action would be taken against the school as a whole on any act of violence on children in the State. (ii) To conduct meetings with the District Education Officers, Block Education Officers as well as the Cluster Resource Centres 20 staff on the importance of protection of childrens rights and against corporal punishment in schools and to issue instructions to them that they would be held accountable for any instance of violation of childrens right and corporal punishment in school. (iii) To instruct every school headmaster to hold a general body meeting with all parents of the school as well as school education committees or parent-teacher associations on the NCPCR guidelines and the procedures to be adopted for protecting children and their rights in schools.21

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Cluster Resource Centres have been functioning as Centres of teacher empowerment, where the teachers share their experiences and innovative practices in the teaching learning processes . 21 http://www.ncpcr.gov.in/Guidelines/Guidelines_on_corporal_punishment_May_2009.pdf

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CONCLUSION AND SUGGESTIONS:

The practice of punishment needs justification. Punishment to adults is justified in case of wrongful acts but in case of children, punishment especially corporal punishment cannot be given for any unimportant reason. If the corporeal punishment that is given is gruesome enough to kill a person, then it is obvious that it is objectionable. Punishment is considered only to a certain extent. Children will develop fear and shy away from school if it is encouraged. On the other hand, children these days are more mischievous than the older generation. But punishing them in any inhuman manner is not welcome as some children are more sensitive and sensible these days. A serious interaction is required between teachers and parents regarding this. Since home is where the discipline starts, parents play an important role in this along with teachers. In certain cases, mild corporal punishment in schools is a necessity. A teacher guides the student at each stage of his life, giving primary shape to his/her career. He has the right to punish children as his intention is to inject good qualities. If students are left free and are not punished for their wrongful acts, the will not fear anyone or anyhting. They wont have respect for anyone nor will they discipline their lives. Instead, they will indulge in all sorts of wrongful acts and soon commit crimes. They will fail to perform their duties and lose their morals and involve in all sorts of detrimental and undesirable activities which are not expected or wanted. So certain appropriate punishment is required to moderate indiscipline behaviour of children. But the extent to which punishment should be given should be reasonable without turning the punishment into cruelty. It should not be too harsh such that it has a negative impact on children. The imtention of battery on children by the teachers should be moderate and with the motive of their betterment, and not have any kind of negative impact on them.

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BIBLIOGRAPHY
BOOKS REFERRED 1) Winfield and Jolowicz Tort 17th edition - W V H Rogers 2) Clerk and Lindsell on Torts 19th edition 3) Ratanlal and Dhirajlal The Law of Torts 26th edition 2010 - Justice G P Singh

WEBSITES REFERRED 1) www.google.com 2) www.wikipedia.org 3) www.timesofindia.org 4) www.jstor.org 5) www.jonathanpollard.org 6) www.indlaw.com 7) www.indiankanoon.com

JOURNALS REFERRED 1) All India Reporter 2) The Queens Bench 3) The Kings Bench 4) Modern Reports 5) Indian Penal code

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