Although Devyani Khobragade, the then Indian deputy consul general in New York in the eye of the diplomatic storm over alleged violation of American immigration laws last year, has returned to India, the fracas is far from over. For, the queries raised have widespread ramifications: Did Khobragade violate US laws? Did Americans exercise excess and violate international treaties in dealing with an Indian consular official? Did the incident put up a mirror to India’s global standing in terms dignity of labour?
The deputy consul general for political, economic, commercial and women’s affairs, Consulate General of India, New York, was arrested on December 13 last year for allegedly hoodwinking the authorities over the employment agreement she had with Sangeeta Richards, an Indian babysitter and housekeeper at her Manhattan residence.
“The 39-year-old Indian official was charged with one count of visa fraud and one count of making false statements (to the US authorities) which carry maximum sentences of 10 years and five years in prison respectively,” said Delhi-based Naveen Kumar, an international observer.
The US insists Khobragade’s indictment was as per law, with Preet Bharara, Manhatten’s top federal prosecutor, saying that she evaded American laws designed to protect domestic helps of diplomats and consular officials from exploitation. But, India has disagreed with the US authorities and condemned the arrest of Khobragade by American federal law enforcement authorities as well as her subsequent “strip search”. Foreign Minister Salman Khurshid has even blamed the US for fuelling a “mini crisis” by not allowing India a chance to recall Khobragade before her arrest.
In fact, so bitter was India’s reactions that Prime Minister Manmohan Singh not only described the treatment of the female consular official as “deplorable” but New Delhi even curtailed extra privileges extended to American diplomats in this country, ordered the closure of a club in the premises of the US Embassy in Delhi and even removed security barricades from outside the US mission in the posh diplomatic enclave at the heart of the city.
Singh also joined the anti-US protests brigade of Lok Sabha Speaker Meira Kumar, Home Minister Sushil Kumar Shinde, Congress Vice-President Rahul Gandhi, BJP’s prime-ministerial candidate for upcoming general elections, Narendra Modi, forcing Washington to attempt to defuse the tension.
On January 9, asked about the beleaguered Indo-US ties over the case, White House Press Secretary Jay Carney, as if to highlight his words represented the world’s most powerful man himself, said: “He (Barack Obama) worked very hard on US India relations in his first term, and will continue to do so in his second term.”
He said that Obama “believes strongly that we need to continue to build” the “important relationship”.
As revealed in the Manhattan federal court, Khobragade prepared and electronically submitted an application for an A-3 visa for Richards who was to be her personal employee beginning in November 2012 in New York. The visa application stated Richards was to be paid USD 4,500 per month. Prior to the application, the Richards’ complaint stated, Khobragade and she had agreed on a monthly salary of INR 30,000 per month (then $573.07).
Justifying Khobragade’s arrest, Bharara had said that “not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest false documents and be a part of her scheme to lie to US government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the US government about what she was doing”.
Agrees Indian lawyer Shameem Ahmad: “As per Richards’ complaint, at 40 hours per week, with approximately 4.3 weeks in a month, USD 573.07 is about USD 3.31 per hour. As per the US laws, this is ‘a legally insufficient wage’ for alleged ‘100 hours of work a week’. However, Richards was instructed to tell the US authorities that she would be paid USD 9.75 per hour, and not say anything about being paid a monthly salary of INR 30,000.
“This contradicts the first employment contract — based on which the visa application was filed — which stated that Khobragade would pay her help the prevailing or minimum wage, whichever is greater, which is an hourly salary of USD 9.75. The complainant also mentioned that Khobragade told her the first employment contract was a formality for the visa. By American laws, this was a crime. And, Bharara’s office upheld the law.”
Ahmad also points out that Philip Richards, Sangeeta’s husband, filed a petition in the Delhi High Court alleging that Khobragade and the Indian government held his wife in police custody in New York and kept her in “slavery-like conditions or keeping a person in bondage”. He claimed that UttamKhobragade — Devyani’s father — even telephoned Richards family in India and threatened them with dire consequences if they complained, a charge completely denied by the accused.
International lawyers and observers say that at the time of her arrest, the action that US officials took was in conformity with the rule of the land, despite India claiming it was an apparent violation of the Vienna Convention while America insisting that Khobragade — being a consular official at the time of her arrest — had only limited immunity “relating to her consular work”.
The experts also point out that as a consular official, Khobragade enjoyed only “immunity ration emateriae” (or functional immunity) as per the 1963 Vienna Convention on Consular Relations, which covered her only in her “official acts” or “acts performed in an official capacity”. She did not have the status as per the immunity ratione personae or status-based immunity, enjoyed by heads of states and diplomats.
“Though Khobragade was not immune from criminal prosecution in the US, she did have limited immunity from arrest pending her prosecution. Article 41 of the 1963 Vienna Convention on Consular Relations lays down that consular officials cannot be arrested or subjected to detention pending trial, except in cases of a grave crime and pursuant to a decision given by competent judicial authority,” explains Kolkata-based immigration lawyer Kausiki Chakraborty, who also deals with international cases.
At the same time, he points out that “the alleged violation of immigration laws, which in this case is more related to dignity of labour that Americans hold so dear to them, is in a private capacity rather than an official one. Therefore, Khobragade’s case has to be seen in this light”.
India claims her arrest was in violation of the Vienna Convention, but nowhere does it seem to be considering another major international Convention, the International Labour Organisation (ILO) Convention on Domestic Work (2011), which it signed but never ratified.
“Article 11 of the Convention clearly states that it is the member countries’ responsibility to ensure that domestic workers get minimum wage. India by signing the Vienna Convention and by not ratifying the ILO Convention has allowed Khobragade to claim her victimhood while denying the same to Richards. This is a fact, irrespective of whether charges against the diplomat are proved or not,” said Pinaki Basu, another expert on global issues.
The Foreign Minister, however, reiterates India’s official version. “My understanding of simple procedures of law is that she is not guilty,” he says.
The question now is whether Khobragade’s alleged crime was “grave” enough. Indeed, considering the closeness of India and the US, at the heart of which is a USD 100 billion annual trade, apart from cooperation on a range of issues, including counter-terrorism, regional security and defense, why didn’t Washington forewarn New Delhi? Why did the US not just detain Khobragade and let diplomacy take over before subjecting her to the humiliation of being handcuffed and strip-searched as she claims?
Then, there is the issue of the plight of domestic helps too and the lack of dignity of labour in India.
Ananya Bhattacharya, the head of Gurgaon-based domestic workers’ group – Gharelu Kaamgar Sangathan — that has counselled the family of Richards, says, “We had to try very hard to remind everybody that there are two Indian citizens involved in this case, not just one.” It does ring with some truth.
Baby Halder, a domestic help — she insists she continues to be one –- who is a global best-selling author, all thanks to her employer, recently said that it was Richards, and not Khobragade, who is the victim in the case. “I appreciate the domestic help’s courage in taking on her powerful employer, who I believe short changed her in terms of salary.Unfortunately, there is no respect for physical labour in India. The rich and the powerful feel that they have a right to exploit their domestic help,” she says
At the same time, views are divided on whether Richards’ condition can be equated to that of the helps’ plight in the country. “In a country where the pay-grade of a junior officer in the government, a midlevel police officer or a junior commissioned officer in the Army is within INR 25,000-34,800 pm, while a driver or a maid is considered to be paid ‘high’ if he or she earns about Rs 10,000 a month, Richards’ case cannot be considered in the same light. Then there are perks of living abroad. It would be also not realistic to draw a similarity between her case and the cases of abuse we hear of helps in the hands of their employers from across the country,” says SangeetaLall, a Bangalorebased IT professional who can’t think of her life without her ayah for her two-year-old, and her driver.
Manisha Gupta, working with an NGO, differs: “Sangeeta has gone all the way to the US, away from her parents, husband and children to give a better life to her family. We have had so many cases of abuse of domestic help by high officials and diplomats in the past. We have heard how hard life is for the Indian nurses, maids and menial workers in the Gulf. The Khobragade-Richards case is a wake up call for India. The government must if take steps to ensure Indian menial workers get their due, within the country or abroad.”
Even if in the investigations, Khobragade is found innocent, that should not deny Richards a fair chance to fight for her rights. It should make the government realise that we urgently need a comprehensive and effective law for domestic workers in India so that they are not denied that opportunity by a society which has still not come around to the minimum wage concept for domestic helps.
The Khobragade case is a quite disturbing one; India and the US seem to have got themselves into a fine mess, Washington with its overzealous officials led by Preet Bharara and New Delhi with its diplomatic sensitivity. Although Khobragade is back in the country, what concerns all is what the incident would mean to future Indo-US relations. For, the incident is perhaps the most serious crisis to the relationship since India’s Operation “Nuclear Shakti” way back in May 1998.
The Indian Foreign Minister, however, is optimistic. “The content of our relationship and the basic core of our relationship is very very strong and it is strong because there is a mutual commitment to the relationship. And I have emphasized this throughout this mini crisis, might call it a mini crisis, that I have emphasized throughout that the overwhelming concern is that our relationship remains intact because we value it, cherish it, and we believe it to be a very very important relationship,” he had told the media.
Anyway, one waits for the uncertainty to be laid to rest, given President Obama considers US relations with India, the world’s largest democracy, to be “one of the defining partnerships of the 21st century”.
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