THE CASE OF NIRMALA DEVI DETENTION- OFFICIAL VIGILANTE JUSTICE

THE CASE OF NIRMALA DEVI DETENTION- OFFICIAL VIGILANTE JUSTICE

For those who have not been following the developments in Tamil Nadu, some brief admitted facts. Ms. Nirmala Devi is an assistant professor teaching Mathematics for undergraduate and postgraduate students in a Government aided college of Madurai district. There were WhatsApp and YouTube publications that indicated that while Ms. Nirmala Devi was talking to her students, she suggested to some of them that if they are willing to extend sexual favours to people in higher authority, they would have not only monetary incentives but also higher marks in their University examination. Further, it would be easier to have a good career in academics. Somewhere in the course of the conversation, the teacher mentions the name of the Tamil Nadu Governor and passes a comment to the effect that the Governor is no grandfather.

In fact, these publications were in the public domain for more than a month before the Government took cognizance of these reports. The office of the Governor of Tamil Nadu in an unusually swift move appointed a respectable bureaucrat with extensive experience in that region to probe into the matter and to provide a report to the Governor. Such a course of unusual action was justified ostensibly on the grounds that the Governor of Tamil Nadu is the Chancellor of Madurai University. Apparently, the college in which Ms Nirmala Devi was teaching was managed by a private trust wherein some of the trustees were involved in a power struggle. Almost contemporaneously after the registration of FIR and Ms Nirmala Devi’s arrest, the case was transferred to CBCID and it appears that they have lodged a report with the Madras High Court. Even the report of the retired bureaucrat has not yet been made public.

In pursuant of the FIR and in the course of the investigation, the accused Ms Nirmala Devi was arrested on April 16, 2018. Some more arrests of administrative and examination department staff of the University of Madurai was made, suspecting the further conspiracy. In fact, the arrest of these people and denial of bail to these accused received widespread admiration from the members of the academic community and the general public. The bail applications of all the accused were rejected and one bail application in Madras High Court was also withdrawn because the Counsel felt that there was no realistic chance of bail in view of the stiff opposition by the prosecution.

In my opinion, the continued detention of Ms Nirmala Devi is against the law and an instance of official vigilante justice. I say so for all the following reasons:

To begin with, Ms Nirmala Devi and her co-conspirators have been accused of the offence punishable under Section 5 of the Prevention of Immoral Trafficking Act. This Section seeks to punish those who procure or luring persons into prostitution and traffic vulnerable persons for these purposes. Mercifully, for Ms Nirmala Devi and company, the alleged victims are not minors. Apparently, they have not even lodged a complaint against the teacher with the police. They have possibly, lodged a complaint with the college administration. Probably vexed by the lack of appropriate action, some of the victims or very likely, by those who came into possession of these tapes, have put up of the conversation online. This, in my opinion, is a violation of the right to privacy of the person whose conversation was recorded without her knowledge or consent. People have no justification to do it unless they are a part of an authorized sting operation. Careful listening of the conversation suggests to me that Ms Nirmala Devi definitely made an indecent proposal to her students. A part of the indecent proposal suggested sexual favours to men in power, in exchange for monetary and career incentives. The girls, without any hesitation, refused the proposal and bluntly told the teacher not to pursue this topic any further. Thus, no offence was actually committed and at worst you can allege that there were some efforts of attempting the commission of the future offence.

Prostitution has been defined under Section 2 of the Prevention of Immoral Trafficking Act, thus as; “prostitution” means the sexual exploitation or abuse of persons for commercial purpose, and the expression “prostitute” shall be construed accordingly.

In my opinion, receiving monetary or professional incentives in exchange of sexual favours is not prohibited or punishable under the above definition. Organized exploitation of women and moving them from place to place, so that these persons will be used for sex trade to different places is definitely punishable under any of the sub-sections of Section 5 of the Prevention of Immoral Trafficking Act: “Procuring, inducing or taking 1[person] for the sake of prostitution.—

(1) Any person who—

(a) Procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or 1[person], whether with or without 2[his] consent, for the purpose of prostitution; or,

(b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or"

(c) Takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or

(d) causes or induces a  [person] to carry on prostitution,[person] to carry on prostitution," [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this subsection,—

(i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) is a minor, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

Nothing like this has happened in the present case.

Ms Nirmala Devi suggested to vulnerable yet major girls that if they agree to extend sexual favours, their lives will be better. Though she promised an incentive, this by no stretch of the imagination, is prostitution. At worst Ms Nirmala Devi was providing them with bad or immoral career counselling and she was not suggesting commercial prostitution or prostitution as a profession or avocation. Furthermore, there is no evidence to suggest that these girls moved or had been moved from one place to another for the purpose of providing sexual favours. Hence, no offence under Section 5 of Prevention of Immoral Trafficking Act can be been made out against Nirmala Devi.

I also did a quick check on the sentences that were meted up to offences under Section 5 of Prevention of Immoral Trafficking Act. Usually, these cases are not contested and one can witness plea-bargaining at its worst. In fact, in case of prosecution under Prevention of Immoral Trafficking Act, plea-bargaining has been going on even before it was officially sanctioned under the Code of Criminal Procedure. Usually, for first offenders, the sentence never exceeds 1-3 months, accompanied by a fine of about Rs.10,000-20,000. One has to accept that even if you claim that Ms Nirmala Devi unsuccessfully tried to lure her students to prostitution that will still not fall under the aggravated form of the offence. Hence, sentencing must be fair and just and should compare with earlier offenders, some of whom may be repeat offenders. Strictly speaking, even assuming that Ms Nirmala Devi is guilty, her defence lawyer is entitled to avail the benefits of Probation of Offenders Act and demand the judge to veil the sentence of imprisonment or at least to persuade him/her to grant a suspended sentence.

In these circumstances, if the investigation of the CBCID does not reveal that Ms Nirmala Devi has made these attempts with other students as well, then there is no need for the State of Tamil Nadu to initiate a prosecution and pursue it vindictively. If on the other hand, it turns out that this was the only attempt of Ms Nirmala Devi then we should give this matter a decent burial. This does not mean that the professor will go unpunished. There will be departmental proceedings. In due course, the findings of the Special Inquiry officer would enable the University concerned to evolve appropriate institutional norms to ensure that aberrations of this type do not occur in future.