A Hug And Rethinking The Limitations On The Child Rights Commissions

hug photo
Photo by timlewisnm cc

“In the first place God made idiots. This was for practice. Then He made School Boards.” — Mark Twain

These words seem to carry relevance even today in the 21st century as it did back in 1897 when the author penned these words.

On the 12th of this month, the High Court of Kerala passed an order against the Kerala State Child Rights Commission as well as an individual student. The facts of this case revolves around a purported public display of action by two 12th standard students of the St. Thomas Central School Trivandrum. During the School Arts Festival which took place on 21st July, 2017, a Class 12 student hugged his female friend after her performance. A complaint was filed thereupon by the class teacher, and the students were barred from attending classes for the next few days. The charge? Hugging. It was apparently against the code of conduct of the School which bars not only students hugging, but even shaking hands.

The parents of the students were hauled up by the management. Pictures from the Instagram accounts of the students were clandestinely collected by way of screenshots to prove apparent obscene, lascivious and prurient behaviour. The female student was slut-shamed and her parents insulted. The male student was called names tantamount of being desperate and sexually abhorrent. Subsequently, the enquiry commission of the school ordered the immediate dismissal of both the students.

The male student, represented by his Father, got an interim relief order from the Child Rights Commission of Kerala (hereinafter “commission”) against the impugned enquiry commission order. The management of the school, by way of a writ petition, contested the jurisdiction of the Commission to (a) pass interim relief orders and (b) to pass orders to be followed by the school at all.

The High Court of Kerala on the 12th of December, 2017 passed a judgment against the Commission’s order, upholding the validity of the school’s decision. As much as one would wish for the High Court to have upheld the validity of the Commission’s order, the Court was technically correct in rejecting the authority of the Commission.

The Court has observed that the Commission had no authority to pass interim orders under Section 14 of the Protection of Child Rights Act, 2005. As per the Court, the Commission’s invocation of powers of a Court, enshrined in the Code of Civil Procedure 1908, ( CPC) must be limited only to functions relating to enquiry and investigation, and not beyond. In the opinion of the Court, invoking Section 94 (e) [Authority of the Court to pass interlocutory orders] and Section 151 [Saving of Inherent Powers of Court] of the CPC by the Commission was beyond its authority. The Court substantiates its point by stating that Section 14 uses the word ‘enquiry’ and not ‘trial’ and therefore only those provisions enshrined in the CPC with regard to ‘enquiry’ may be invoked by the commission. It is argued that functions of interim orders and inherent powers are for broader purposes of trying suits. That is to say, the power of the Commission from the CPC is limited only to compelling presence of witness, issuing summons and other enquiry related powers only.

Although this amounts to a very reductive reading of Section 14 of the Child Rights Act, Section 15 of the Act buttresses this position of the Court. As per Section 14, the Commission has all powers of a court, trying a suit, while enquiring matters before it. Be it as it may that the Commission has only those powers of the Court will trying suits, it however has all powers of the Court while trying suits. ZenitMataplast v. State of Maharashtra (2009) is an important Supreme Court judgment on the conditions for passing interim orders. The Supreme Court has stated that interim orders may be passed during the course of trying a suit, if three condition of prima facie case, balance of convenience and irreparable injury, is satisfied.

It may seem that the Commission was well within its power to pass an interim order reinstating the student, given that it would be part of trying a suit. However, Section 15 of the Act unequivocally states that the Commission, after conducting an enquiry, the Commission may only recommend measures (interim and otherwise) to the Government, Higher judiciary or any other authority. Therefore it is clear that the legislative intent itself is to give the Commission limited powers.

While the High Court was technically correct in invalidating the Commission’s order, it is surprising that it would not invalidate the School’s order invoking its inherent power under Section 151 of the CPC considering the Court went to the length of empathizing with the children’s future in the judgment. It is all the more surprising that no censure came from the Court against the School’s acts of slut-shaming the children or illegally procuring their Instagram posts as perverse “evidence”.

While the order of the Commission is commendable, keeping in mind the best interests of the students concerned, the disproportionate quantum of the school’s punishment and balancing the ends of justice, it is unauthorized to pass orders, interim or otherwise. The body, as per the functions listed for it under The Act, is meant to be merely a body to engage in awareness, policy-research, advocacy and formulating guidelines and support systems. In terms of grievance redressal mechanisms, the body is relegated a mere quasi-judicial role to conduct enquiries and recommend actions to a higher authority.

Needless to say, in a time and age where education is being consistently exploited, commercialized and rampantly abused, relegating such limited powers to a Commission exclusively meant to deal with Child Rights does not behove of such a body. Schools and Universities continue to use archaic, patriarchal and regressive notions of morality to curb the rights of students under the pretext of discipline. Under the pretext of in-loco parentis, Schools and Universities continue to extend the violence of the familial home on students even in academic institutions. A strong body with the power to quash such ill-informed orders is the need of the hour, and such weak foundations of important institutions such as the Child Rights Commission is antithetical to provide for such a framework.

Sabarish Suresh is a law student at the O.P Jindal Global University, Haryana. He is interested in Criminal Law and Human Rights and also actively writes on gender and sexuality.

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