Indian Diplomat in a hot soup in New York: Both Sides to Blame
The senior diplomats from Bangladesh India and Pakistan when posted overseas are allowed to take domestic workers but the salary is to be paid by the diplomats.
The domestic workers, while living with diplomats in the US or Europe or Australia/or Canada, after sometime play up with their masters and often disappear for better pay and work as “illegal workers” in those countries in breach of visa of the host countries. Eventually the diplomats are held accountable for the disappearances of the domestic workers. Sometime they also complain of maltreatment by diplomats to the authorities in those countries. Church or human rights organizations take up take their case and such news are widely published in the media.
Under such above situations, some diplomats are recalled from their postings to headquarters for undermining reputation of the countries they represent.
Given the context, the Indian consular officer’s case is not unusual. Ms. Devjani Khobragade, (39), joined the cadre of IFS (Indian Foreign Service) in 1999. She has been working as deputy consul-general at the Indian Consulate in New York. She was arrested for visa fraud
Allegations:
The allegations are:
· Khobragade had stated on the visa application for her nanny, an Indian national named Sangeeta Richard, that she would be paid $4,500 per month. But Khobragade allegedly later made her sign a second contract reducing her salary to $537 per month, or less than $4 per hour.
· The maid has complained that Khobragade was paying her less than the minimum wage stipulated under US visa requirements.
· The Indian official is also accused of submitting false documents to obtain a work visa for her maid.
· She was accused of forcing her to work longer hours than agreed to.
Khobragade, has denied all the allegations including visa fraud and making false statements. Her lawyer Danial Arshack reportedly said that “This entire prosecution represents a significant error of judgment and an embarrassing failure of the US government.”
On 12th December, Khobragade was arrested and handcuffed as she dropped off her daughter at school and was kept in a cell with drug addicts before posting $250,000 bail. If convicted, Khobragade faces “a maximum sentence of 10 years.”
The U.S. State Department maintains that proper procedures were followed and that she was not covered under diplomatic immunity because the crimes were not committed in relation to her job as consular officer. Under some circumstances, consular officials, as opposed to embassy diplomats, can be arrested for crimes.
In a statement, the U.S. Marshals Service confirmed that Khobragade was subjected to the same “booking procedures” as other prisoners, including being strip searched — viewed in India as the most disturbing part of the arrest — and locked up with other female defendants.
Khobragade “was placed in the available and appropriate cell,” the statement said. “Absent a special risk or separation order, prisoners are typically placed in general population,” the statement said.
Indian-born Preet Bharara, the United States attorney for the Southern District of New York, whose office is prosecuting the Indian officer said the diplomat’s conduct showed that “she clearly tried to evade U.S. law designed to protect from exploitation the domestic employees of diplomats and consular officers.”
“And one wonders,” Mr. Bharara added, “why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?” . Bharara noted that the diplomat had underpaid the housekeeper and made her work more hours than her contract called for.
In a written statement on 18th December, he said that it was necessary to “evacuate” the housekeeper’s family which has been brought to the US. He said that the family “reportedly was confronted in numerous ways regarding the case.” Reportedly the family was threatened in India unless their daughter would return from the US.
It is noted she has been a consular officer as distinct from a diplomatic officer. The consular officials are regulated by the Vienna Convention on Consular Relations 1961 and the diplomats are by the Vienna Convention of Diplomatic Relations 1961. Although diplomats are posted as consular officers the immunities and privileges in international law are different and limited for consular officials from those of the diplomats.
Indian reaction:
The Indian government was outraged by the treatment meted out to Khobragade. Indian Prime Minister Manmohan Singh described Khobragade’s treatment as “deplorable” and Foreign Minister Salman Khurshid said it was his duty to restore the diplomat’s dignity.
Indian Foreign Secretary summoned the US Ambassador Nancy Powell and lodged a strong protest at the “unacceptable treatment” of Khobragarde Indian senior officials and ministers did not meet the US visiting Congressional delegation.
Outraged Indian MPs have spoken out in parliament against the arrest and alleged ill-treatment of Khobragade. Arun Jaitley of the main opposition Bharatiya Janata Party (BJP) said India should take its bilateral relations more seriously and “insist on being treated like equals” by Washington. A protest took place outside the US embassy in New Delhi
Reports in India said airport passes and duty free arrangements suspended for American diplomats and their families. Security barricades around the US embassy in Delhi were removed. Indian authorities asked for detailed list of their domestic helpers and how much they pay them monthly as salary.
When the row was escalating to damage the overall bilateral relations, US Secretary of State John Kerry called on the National Security Adviser Menon to express his regret over the treatment of an Indian diplomat arrested in New York on suspicion of visa fraud (it is reported Indian Foreign Minister did not take the call from Kerry).
Meanwhile Indian government posted her in the Indian Permanent Mission in New York as a diplomat. It is argued that her new status will grant immunity from prosecution. However any added diplomatic immunity would not be retroactive. That means prosecution can proceed.
India wants the case to be dropped and the US to apologise for such barbaric treatment to an Indian official. The US reportedly has ruled out acceding to either of the Indian requests. The State Department spokesperson on December 20 said that : We take these allegations very seriously. We are not in any way walking back from these allegations or the charges. Again, this is really a law enforcement issue.”
Precedent:
It may be recalled Raymond Allen Davis was a former United States Army soldier, private security firm employee, and contractor with the Central Intelligence Agency (CIA). On January 27, 2011, Davis killed two reportedly armed men in Lahore, Pakistan. Although the U.S. government contended that he was protected by diplomatic immunity because of his employment with the U.S. Consulate in Lahore, Davis was jailed and criminally charged by Pakistani authorities with double murder and the illegal possession of a firearm.
On March 16, 2011, Davis was released after the families of the two killed men were paid $2.4 million in diyya (a form of monetary compensation or blood money). Judges then acquitted him on all charges and Davis immediately departed Pakistan.
The same Indian political class that is now up in arms enthusiastically supported New Delhi’s detention of the Italian ambassador earlier this year.
Both sides to blame:
The maid, Sangeeta Richards disappeared from work in June and since then the case is being reported back and forth between the Indian government and State Department.
Furthermore this isn’t the first case of this type involving Indian officials in New York. Gwynn Guilford points out that “in 2012, a New York judge directed an Indian diplomat to pay her former domestic worker $1.5 million in damages due to ‘barbaric treatment.” In 2011, India’s consul general in New York was charged with forced labor of his domestic helper.”
The Consulate of New York comes under direct control and supervision of the Indian Embassy in Washington. The Indian Ambassador should have foreseen that Khobragade, a deputy consul general would be in difficult position with the US authorities after the maid had disappeared in June.
The Ambassador should have understood that disrespecting US law and international norms would undermine India. .After almost six months have passed since the disappearance of the maid, neither the Indian government nor the Indian Ambassador took any remedial action. Normally in such cases the officer is transferred to headquarters and if necessary investigation starts against the officer.
On the other hand, whatever the allegations, the US authorities could have handled this more subtly. There was no need for hand-cuffs or strip searches or placing with common criminals. It was an error and misjudgment. It indeed was a humiliation of her position as a person representing India in the US.
The arrest of a consular officer was never just another case. If the state department did not know she would be strip-searched, it should have – and should have demanded special handling since the Department knew the case since June and should have informed the Justice Department with a view to handling the case with sensitivity and care. However their defence that the US authorities followed the procedures according to book was totally misplaced and wrong.
Another alternative avenue was open for the US which could have declared Khobragade persona non grata, demanded her immediate departure and refused further work visas for domestic help for Indian diplomats”
Observers believe that India over-reacted by removing the security barriers around the US Embassy in New Delhi. India is obliged under international law to protect the premises of the foreign missions from possible terrorist attacks and the US embassy could be one of their targets for various reasons.
Both sides should have worked together to ensure the case did not undermine vastly improved relations between the two countries. Observers say that India and the United States have allowed a minor legal case to become a major test in US-India relations is bureaucratic and public diplomacy failure on both sides. After all, tending to the big picture is supposedly what governments and foreign ministries do for a living.
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva
