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NEED FOR QUASI PARENTAL AUTHORITY AS A DEFENCE IN LAW OF TORTS

Submitted to – Dr. Aneesh V. Pillai [Faculty: Law of Torts]

Submitted by- Soumya Jha Semester - III Section - A Roll No-154

DATE OF SUBMISSION – 1 st September 2014

NEED FOR QUASI PARENTAL AUTHORITY AS A DEFENCE IN LAW OF TORTS Submitted to – Dr.

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, C.G.

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TABLE OF CONTENTS

ACKNOWLEDGEMENT

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RESEARCH METHODOLOGY

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INTRODUCTION

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CHAPTERS

i.

Global Economic Crisis – An Introduction

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ii.

Causes of Economic Slowdown

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iii.

Indian Economy and Its Features

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iv.

Impact of Global Meltdown on Indian

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Economy

  • - Negative impact

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  • - Positive impact

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  • - Inference

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CONCLUSION

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References

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ACKNOWLEDGEMENT

At the outset, I would like to express my profound gratitude and deep regards to my teacher, Dr. Aneesh V. Pillai for putting his trust in me, giving me a project topic such as this, providing me with all the help and resources possible and also for showing his faith in me to deliver.

My gratitude also goes out to the extremely helpful and cooperative staff and administration of HNLU for the infrastructure in the form of library and IT lab that was a source of great help for the completion of this project.

-Soumya Jha

(Semester-III)

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INTRODUCTION

Tort is a large area of private law concerned with compensating those who have been injured by the wrongdoing of others. Unlike criminal law, which involves the State, law of torts involves private parties who institute legal actions against each other for damages. Unlike contract law, where two parties agree to their respective rights and obligations, in law of torts, it is the society, through its judicial and legislative systems, that imposes obligations on everyone to act in consideration of the rights of others. The law of Torts is mainly judge- made law: courts over the centuries have defined people rights and obligations with respect to their fellows. These are constantly in flux and change to meet new technological and social concerns. Further ahead, it lays down various remedies available to the injured party for their injury arising in the due course of the tort committed on them.

However, to curb the misuse of this law by giving unreasonable and unrestricted powers in the hands of the victim party, the defendants are also provided with various defenses under this law for proving their defense. Some of which are: Volenti Non Fit Injuria, Inevitable Accident, Act of God, Act of Necessity, Act in relation to Private Defense, Statutory Authority, Quasi-Parental Authority so on and so forth.

This paper hereunder envision to understand the specific defense of Quasi-Parental Authority in torts and hence lays down its essential ingredients, circumstances favourable for using this as a defense, present status of India in regards to the same and most importantly, it’s need as a defense in the law of torts in India

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CHAPTER –I

QUASI-PARENTAL AUTHORITY-

(MEANING & CONCEPT)

Parental or quasi-parental authority is a specific defense in torts by virtue of which a defendant can be excused of the tortuous liability arisen under the aforementioned relationship between the parties. Parental authority can be defined as the ensemble of rights and powers that the law accords to the father and mother with respect to the persons and the goods of their unemancipated minor children, to the end of their accomplishing the duties of protection, education and support that are incumbent on them 1 . Quasi- parental (parent- like) authority means authority of a person to act in a manner which is similar to that exercised by parents on their children. It is a provision in torts made for the persons who are either parents or share an authority similar to that of parents for their protection against tortuous liabilities.

There are also several kinds of authority in the way of summary force or restraint which the necessities of society require to be exercised by private persons. And such persons are protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority is the most obvious and universal instance. 2

For example, custodians of lunatics. Persons having the lawful custody of a lunatic, and those acting by their direction, are justified in using such reasonable and moderate restraint as is necessary to prevent the lunatic from doing mischief to himself or others, or required,

school

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according to competent opinion, as part of his treatment. This may be regarded as a quasi-

paternal power ; but the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court

of law) to use in studying the best method of education. The standard must be more

strict as

medical science improves. A century ago lunatics were beaten, confined in dark rooms, and the like. Such treatment could not be justified now, though then it would have been unjust to hold the keeper criminally or civilly liable for not having more than the current wisdom of experts. In the case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified.

CHAPTER –II

WHAT IS A LEGITIMATE AUTHORITY

When a tort is committed in an attempt to discipline a child or a lunatic person or a drunk person, there exists a defense in torts called Quasi-Parental Authority.

AUTHORITY OF PARENTS

Parents and other adults who serve as custodians of minor children have the responsibility and authority to care for, educate, and discipline their children. The state confers wide discretion on parents on the manner in which they discipline their children, short of legal child abuse or neglect. Spankings, slaps on the wrist, and other physically coercive measures are regarded as normal parenting by many, and the state will not intervene when these measures are taken by biological parents 3 . For example, the Official code of Georgia Annotated, which is the compendium of all laws in the U.S. of Georgia, authorizing physical forms of discipline so long as there is no physical injury to the child 4 . Also law of Missouri establishes immunity for discipline, including spanking administered in a reasonable fashion 5 .

  • 3 Pg. 113, Sir Friedrick Pollock, THE LAW OF TORTS, London Steven and Sons Limited (4 th Edition, 1895)

  • 4 Ga. Code Ann. 49-5-180(5)(A) (1990)

  • 5 Pg. 115, Sir Friedrick Pollock, THE LAW OF TORTS, London Steven and Sons Limited (4 th Edition, 1895)

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Further, in the case of Th People v. Paul George Checketts 6 , it was held that a child under confinement by the parent’s for the former’s welfare would not amount to the tort of false imprisonment.

AUTHORITY OF GUARDIANS

Guardians for the purview of exercising parental authority includes Uncle, Aunt, Brother, Sister, Cousin, Teacher, Custodian etc 7 . The guardians can legally exercise the authority under quasi-parentship on the child. Similar was held in the case of Cleary v. Booth 8 , where it was held that the quasi-parental authority delegated on a schoolmaster, doesn’t not remain confined to the walls of the school. Further, imprisonment of a child by father as a punishment would not amount to False imprisonment, held in the case of Reg. v. Jackson 9

CHAPTER –III

QUASI-PARENTAL AUTHORITY

(A DEFENSE IN TORTS)

Quasi Parental Authority is a specific defense used by the defendants in cases of commission of specific torts like Battery, False Imprisonment etc.

In Battery

Similar to a biological parent who has the custody and control over the child, right to discipline the child in a reasonable manner rests with step parent, guardians, school masters so on and so forth. One essential ingredient in bring this authority under the purview of defense is the use of reasonable amount of force. Reasonableness is of the major importance here as the spanking a child, which amount to battery could tolerate the defense of parental or quasi

  • 6 773 So. 2d 1213

  • 7 Pg. 246, C.G. Addison, Addison on Torts: a treatise on wrongs and their remedies, Gale, Making of Modern

Law (2010)

  • 8 1993, 1 Q.B. 465

  • 9 1991, 1 Q.B. 671

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parental authority. However, Maim done by parents or guardians on the child cannot sustain this as their defense because the force used in Maim cannot be reasonable for disciplining a child 10 . Further ahead, in the case of David Lee v. State of Florida 11 , it was held that the parents using force in excess going beyond the test of reasonableness would suffer tortuous liability of maim.

In False Imprisonment False Imprisonment is another tort where the defense of parental or quasi-parental authority could be exercised by the parents when a minor child is falsely confined by the parents or the guardian for his welfare. Further ahead, in the case of Wilson v. Hammersmith 12 , that curfew on a child at night was not false imprisonment on the part of the parents. Hence, restriction of parents or guardians or confinement by the teachers or the school or hostel wardens with reasonableness does not amount to a tort. However, in case where the child was punished n a confinement for two days without any access to food or water was held to have amounted to tort 13 .

CHAPTER –IV

QUASI-PARENTAL AUTHORITY IN INDIA

There hasn’t been many cases of quasi-parental authority in India. However, in an attempt to exercise the authority under the ambit of quasi parental or parental, there has been a deviant shift to the increasing number of corporal punishment in India 14 . UNICEF, for the purpose of it defined corporal punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting

  • 10 State v. Singleton, 41 Wash. App. 721

  • 11 (1869) L.R. 4 H.L. 171, found in W.E.B. Ball, Principles of Torts and Contracts, London Steven

and Sons Limited (1880)

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(“smacking”, “slapping”, “spanking”) children, with the hand or with an implement. In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.” Further ahead, it quoted that Two out of three school going children in India are physically abused says the national report on child abuse by the Ministry of Women and Child Development in 2007. The crime is rampant in every single district of the country.In addition to the same, it included other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child. Article 21 of the Constitution protecting the ‘right to life’ is the first point of reference. The Child Rights Charter 2003 of India specifically states “All children have a right to be protected against neglect, maltreatment, injury, trafficking, sexual and physical abuse of all kinds, corporal punishment, torture, exploitation, violence and degrading treatment.”

Prohibition and elimination of corporal punishment in schools is identified as a priority in the 2005 National Plan of Action for Children and the report on child protection in the National Plan for 2007-2012. The National Policy on Education (1986, modified 1992) states that “corporal punishment will be firmly excluded from the educational systems.”

In August 2007, the NCPCR also wrote to all chief secretaries with detailed guidelines recommending practical steps for the elimination of corporal punishment. In December of the same year, the Human Resource Development Ministry also wrote to all Chief Secretaries recommending that corporal punishment be prohibited in all schools in the jurisdiction of the state government as it “severely affects the human dignity of the child, thereby reducing his/her self esteem and self confidence”.

A Right to Education Bill (Bill No. LXV of 2008), which would achieve prohibition, has

been

placed

in

Rajya

Sabha

and

awaits

enactment.

It

categorically states:

No

child

shall

subjected

be

to

physical

punishment

or mental harassment.

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Whoever contravenes the provisions shall be liable to disciplinary action under the service rules applicable to such person.”

CONCLUSION : WHETHER OR NOT NEEDED

Children due to fear are often silent and submit to violence without questioning. They sometimes show signs of deep hurt in their behaviour but this often goes unnoticed, perpetuating further violence on them. More often than not, when a teacher uses violence on children it is an outburst of his/her personal frustration. V.K. Vijayan, Professor, Institute of Mental Health, Kilpauk is of the opinion that corporal punishment not only affects the emotional behaviour and academic performance of a child, but also leads to reduction in self esteem and dignity of child. There is a large body of international research detailing the

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negative outcomes of corporal punishment. Some of the conclusions are presented below:

Escalation: Mild punishments in infancy are so ineffective that they tend to escalate as the child grows older. The little smack thus becomes a spanking and then a beating.

Encouraging violence: Even a little slap carries the message that violence is the appropriate response to conflict or unwanted behaviour. Aggression breeds aggression. Children subjected to physical punishment have been shown to be more likely than others to be aggressive to siblings; to bully other children at school; to take part in aggressively anti-social behaviour in adolescence; to be violent to their spouses and their own children and to commit violent crimes.

National commissions on violence in America, Australia, Germany, South Africa and the UK have recommended ending corporal punishment of children as an essential step towards reducing all violence in society.

Psychological damage: Corporal punishment can be emotionally harmful to children. Research especially indicts messages confusing love with pain, and anger with submission are the most psychologically harmful. “I punish you for your own sake. You must show remorse no matter how angry or humiliated you are.”

References:-

Bibliography

  • - Sir Friedrick Pollock, THE LAW OF TORTS, London Steven and Sons Limited (4 th Edition, 1895)

  • - C.G. Addison, Addison on Torts: a treatise on wrongs and their remedies, Gale, Making of Modern Law (2010)

  • - W.E.B.Ball, Principles of Torts and Contracts, London Steven and Sons Limited (1880)

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  • - Ratanlal & Dhirajlal’s, The Law of Torts, LexisNexis India, (26 th Edition, 2013)

Webliography

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