VIOLENCE IN SCHOOLS A REGULATORY OVERVIEW

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1 VIOLENCE IN SCHOOLS A REGULATORY OVERVIEW Regional Expert Roundtable on Prevention of Violence in Schools in South Asia Colombo, Sri Lanka 25-27April,

2 THE REGULATORY OVERVIEW TYPES OF LAWS AFFECTING THE SCHOOL REGIONAL RESPONSES TO CORPORAL PUNISHMENT & TRANSGENDER VIOLENCE KEY TAKEAWAYS AT THE REGIONAL LEVEL WHOLE SCHOOL APPROACH: KARNATAKA CHILD PROTECTION POLICY FOR EI THE WISH LIST 2

3 What laws regulate a school? Education Specific laws The Constitution Penal/Crimi nal Laws Child Specific Legislation Incident specific responses Policies on Children, Health etc. Regulatory Compliance laws 3

4 Key implications No umbrella provision on violence Violence specific regulations (e.g., corporal, cyber crimes/bullying, gender based violence) No prevention focus No direct visibility of International commitments in the classroom Children as right holders - international realm In the classroom: NOT right holders - recipients of protection Limited/ No Direct Access of children to justice systems 4

5 Corporal punishment and the regulatory framework Maldives Afghanistan Pakistan Bangladesh Bhutan India Nepal Sri Lanka 5

6 Corporal Punishment (CP) LEGAL RESPONSE Has an Act of Parliament been passed? Other Govt initiatives e.g., state regulations, notification s, Circulars Afghanistan Bangladesh Bhutan India Yes Article 39 of the Education Act, 2008 prohibits CP in all schools. Yes Ministry of Education adopted UN s Global Child Friendly Schools Strategy (CFS) No (law currently being drafted) None specifically but Child Care and Protection Act 2011 prohibits harsh or degrading punishment - Yes The Teacher and Student s Code of Conduct (1997) and ministerial directives; decree of the chief abbot Partly Yes - For non minority non religious schools for children b/w 6-14 years by RTE Act, 2009 Yes Central level & educational boards. Some states: such as Tamil Nadu, Goa, Delhi, AP etc. CP banned 6

7 ISSUE Corporal Maldives Punishment.. Nepal Pakistan Sri Lanka Has an Act of Parliament been passed? Other Govt initiatives e.g., state regulations, notifications, Circulars Not specifically punishment to be proportional to age & not be physically or psychologically harmful. (Protection of the Rights of Children, s. 10) Yes The Ministry of Education: No CP to be e administered but no legal action on the same yet. Not specifically Supreme Court removed proviso to S. 7 of the Children Act, 1992 which allowed teachers(and parents) to punish children through CP. No Despite Court directions no definitive action has been taken till now. Yes partly The RTE Act, 2012, prohibits corporal punishment in govt schools b/w 6-14 year olds in Sindh, Punjab and Islamabad Capital Territory. Khyber Pakhtunkhwa Child Protection & Welfare Act, 2010 Yes/No Several bills have been proposed in the parliament No. CP is still lawful in schools Acceptable use of criminal force article 341 Penal code states as an illustration that a schoolmaster flogging is not using force illegally. Yes Ministry of Education in 2001 & National Plan of Action for Promotion 7& Protection of

8 Corporal Punishment (CP) LEGAL RESPONSE Prevention initiatives Key Challenges Afghanistan Bangladesh Bhutan India Yes NGO led with Govt 9 Lead Infancy of Educational system. Lack of awareness. Since 2008 no further action by Govt on CP Yes - NGO lead CP cited as the top most reason for dropouts Yes - Teacher training/alternative methods to discipline Culturally appropriate correction methods permitted u/ the Child Care and Protection Act 2011 Bhutan Education City Act 2012 silent on CP Yes Difference in law and practice. Complete eradication has not been attained. 8

9 Corporal Punishment.. M U N D K U R L A W PA R T N E R S ISSUE Maldives Nepal Pakistan Sri Lanka Prevention Yes NGO lead child friendly teaching methodology and promoted fear free education. Yes 2014 National Campaign. The Punjab Education Foundation (PEF) partnered with 2000 schools /29 districts Yes Children s hotline/district child protection committees in schools/workshop s/ children s clubs National Plan of Action Key Challenges S 44 of the Penal Code allows the teachers to use force to prevent or punish a student s misconduct. Gap b/w law and practice Defense under the penal code Recognized form of punishment provision for courts to order CP for persistent truancy - removed Whipping is permitted on male children Defense of promotion of welfare 9 available.

10 Summary of regulatory overview ISSUE OBSERVATION Multiple ways of addressing CP Specific ban by Act of Parliament e.g. Afghanistan Context of some other specific right eg Pakistan/ India (RTE) Part of general protection Bhutan Cruel Inhuman & Degrading treatment Constitutional and penal provisions Urgent Challenges Banned in all countries Most commonly used legal recourse Using CP as a form of punishment Good faith defense 10

11 Transgender Rights: International Law No binding legal international instrument identifying sexual orientation and gender identity Non binding CRC Committee General Comment (GC15) Member states have reporting obligations on discrimination and bullying in schools Yogyakarta Principles, 2006 applies human rights to sexual orientation/ gender identity endorsed by various UN bodies and presented to the UN General Assembly by the Special Rapporteur for Education as a human right Not accepted by Africa, Caribbean States, Arab League, Russian Federation 11

12 Transgender rights NEPAL PAKISTAN Transgender recognized u/law BANGLADESH INDIA 12

13 Country Initiatives NEPAL: Pioneer Self determination to be sole basis for gender identity: Supreme Court of Nepal 3 rd Gender included in the Census/passport PAKISTAN: Transgender = rights as citizens. (Supreme Court of Pakistan) But social stigma makes enforceability difficulty. BANGLADESH: Recognized in govt documents, passport. But legal framework to enforce basic rights not developed INDIA: Supreme Court led initiative; Recognized as economically & socially backward class reservation in educations and employment State Policy for Transgenders in Kerala 2015 addressing social stigma. Rights of Transgender Bill, 2015 underway 13

14 Summary Not all forms of violence are adequately covered at the international level At the regional level wide variance in responses Within the country wide variance in law and practice and conflict among existing laws e.g. India 3 rd gender but homosexuality is still a criminal offence Question: How do we move forward given what we have? Some approaches: Whole school response: Karnataka Response 14

15 THE REGULATORY TANGLE Varied definitions Conflicting obligations Inadequate Coordination 15

THE REGULATORY AUTHORITIES: CONFLICT OR HARMONY?

Department Safety and security are state subjects

of Home Affairs/ Police Law Child Protection

16 THE REGULATORY AUTHORITIES: CONFLICT OR HARMONY? Education Concurrent List MHRD Education Department Safety and security are state subjects Safety & Security State List Police Act Ministry of Home Affairs/ Police Law Child Protection Ministry of Women & Child Dev. Ministry of Health & Family Affairs 16

17 FROM TANGLED WEB. 17

18 TO SAFETY NET. 18

19 WHY DO WE NEED A M U N D K U R L A W PA R T N E R S COMPREHENSIVE POLICY?? To enhance safety/security/protection: Too many uncoordinated laws Low attention to violence in the home & other related environments Multiple types of protection needed under one roof Increase specialized capacity building Lack of experienced and trained social workers, teachers, medical staff (including counselors), police and judges Child-centric/ participative & inclusive institution building Child-friendly justice system & efficient law enforcement sector is a low priority Increase budgetary allocation Limited financial investments As per the budget analysis, child protection ranks at the bottom of the budgetary allocation for children 19

20 M U N D K U R L A W PA20R T N E R S Karnataka Child Protection Policy for EI Single policy applicable to all schools standard setting Consultative drafting Buy in from Education Department Issued as Operational Guidelines Interagency convergence identifies each stakeholder, with rights and responsibilities Customized child protection policy: Breaks down policy Standardized response mechanisms: for safety violations & sexual abuse violations Train the trainer modules prepared on entire policy 20

21 M U N D K U R L A W PA21R T N E R S Self Evaluation: Safety Check List Heads Infrastructural safety (18 Qs) Health (10 Qs) Transportation (9 Qs) Personal & Sexual Safety (5 Qs) Social & Emotional Safety (10) Procedure & Protocols for personal, sexual, social & emotional violations Emergency preparedness & disaster management (7) Cyber Safety (8) Sample questions Building code, fire safety, tobacco outside First aid kit, Annual check up, food safety Buses/ autos/ drivers/ attendants/ RTO Policy/ training/ curricula/disability incl Awareness classes/behavioral guidelines Divided into Child protection mechanisms (18 Qs) Reporting mechanism for abuse & safety (11 Qs) Other measures (13) Child friendly vocab/up-to-date map of school/ preparedness plan Policy/ orientation/ ewaste/ monitoring 21

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23 THE KARNATAKA EXPERIENCE CHALLENGES How will it be notified as law, policy, guideline, circular notification? Who will own it, Education Department, DWC? What penal provisions can be used for enforceability, accountability The Budget 23

24 WISH LIST creating a superhighway South Asian Court for Protection of Children/ Regional Children's Parliament call for action for children in the classroom as right holders Regional Convergence regulatory & data Bottom up focus school lead initiatives; incentives for compliance - safe school badge/star Institutionalize Accountability within Schools dbalagopal@mundkur.com 24

National Action and Coordinating Group against Violence against Women and Children (NACG) Terms of Reference

National Action and Coordinating Group against Violence against Women and Children (NACG) Terms of Reference A National Action and Coordinating Group against Violence against Women and Children (NACG)