The villain in the Khobragade fiasco is neither the Indian diplomat accused of underpaying her help nor the US Attorney prosecuting her. Instead, it is the US State Department and the Ministry of External Affairs that must be held responsible
The arrest of Indian diplomat Devyani Khobragade is a mirror on the Indian Foreign Service, a mirror on us, and most importantly it’s a wake-up call to us. India has had a solid defence in this case and yet it has provided sub-standard representation to Ms Khobragade and to India, and also peddled a downright indefensible and incorrect narrative that has backfired badly.
First, the bile aimed at Mr Preet Bharara, US Attorney for the Southern District of New York, is misdirected. The villain of the piece is the US State Department — specifically the Diplomatic Security Service. If anyone had bothered looking at the original December 11 complaint, it was not Mr Bharara or even Ms Khobragade’s maid Sangeeta Richard who lodged the complaint but rather a Mark J Smith from the State Department’s Bureau of Diplomatic Security.
India and the US have an informal (and, on the face of it, illegal) agreement in place. Every visa official who has processed an Indian diplomat’s domestic help’s visa in New Delhi has known that the documents provided are not entirely true. Yet they know exactly what is ‘expected’ of them and so have gone ahead and processed these. Similarly, despite the obnoxious and bigoted Section 377 of the Indian Penal Code, US diplomats have sought and got permission to bring in their same-sex partners into this country, despite its illegality. In effect, the Ministry of External Affairs and the US State Department have had a wink-wink-nudge-nudge arrangement in place. To suggest that Mr Bharara has upset the apple cart is patently false —it is the State Department, fully cognisant of this arrangement, that has chosen to break the informal agreement. This was not the case of an independent, free radical crashing the party, rather it is one of the co-conspirators that ruined the party.
The Indian case is first, the arrest was illegal and second, the contracts were signed in India and hence, outside US jurisdiction. On both counts it is wrong. The Vienna Convention on Consular Relations is crystal clear on this score, and the US had every right to arrest Ms Khobragade. The relevant section (Article 41) which lays out consular immunity makes, in no unclear terms, an exception for “grave crimes”. The definition of “grave crimes” is entirely up to the host country.
Just as in India homosexuality gets you between 10 years to life, the US has every right to define visa fraud (a felony) as a “grave crime”. Each country is, after all, entitled to its own stupidity. While people are very happy to quote Articles 41.2 and 41.3 which talk of respect and dignity of the diplomat, what they forget is each of these sections are specifically caveat the exclusion of “grave crimes” specified in 41.1.
As for arguing that since the contracts were signed outside US jurisdiction and cannot be enforced in the US, the Department of State agrees. That is why Ms Khobragade has been booked on two charges of visa fraud, and not for avoiding minimum wage regulations. While the US has every right to arrest, it also has a very weak case.
India, on the other hand, is arguing its weakest card: “Right to underpay a nanny, right to misread the Vienna Convention”, painting us in the worst kind of elitist stereotype possible. As Ashok Malik pointed out earlier in this newspaper, the wage undertaking presented for visa purposes, promised “minimum wage in New York or prevailing wage, whichever is higher” — and agreed to make deductions for perquisites such as medical insurance, room rent, food and so on. The supposedly controversial second contract promised Ms Richard only Rs 30,000 per month. Far from the two contract system acting to indict Ms Khobragade, it can be persuasively argued that the second contract for Rs 30,000 per month did not invalidate the first, rather it supplemented it.
A basic calculation indicated that Ms Richard’s complete package was in line with the $4,500 figure. For example, going over Craigslist, not a single posh three bedroom apartment in the Upper East Side to Tribeca came under $5,800 per month — effectively $1,933 per bedroom per month. Similarly, calls made to three different insurance companies on Friday revealed rates for $920 to $1,200 per month for coverage that was still inadequate compared to the Government of India’s health cover. Other things like Ms Richard’s laundry, gas, electricity, clothing, calls back home, internet and her plane tickets spread over 18 months work out to $650 approximately. In effect, her package, given the deductibles specified in the first contract, does add up to $3,500 per month at the very least, on top of the $500 paid in cash, tax free.
Several IFS officers had argued in the past for avoiding this unnecessary risk, by monetising the full pay package of the hired help. Yet the Ministry of External Affairs chose not to protect its diplomats by changing the way it did business, and put forth emotional and factually incorrect arguments when matters came to a head. Moreover, the Ministry could have also gone on the offensive and claimed that since the charges against Ms Khobragade are of visa fraud, the processing officer at the US embassy in Delhi — and every officer who has processed a domestic help application in fact — should be arrested for knowingly aiding and abetting fraud. The law, after all, is the law because of consistency of application. The law shorn of consistency is tyranny. Yet this was not done.
The real crime here is by the State Department in whisking out Ms Richard’s husband, subverting the course of justice in India, and undermining Indian institutions. This requires serious retaliation including expulsion of the US Ambassador who is guilty either by omission or, worse still, by commission. Yet it would seem the Ministry couldn’t care less so long as its own mistakes don’t get called out.
Here then is the summary: Ms Khobragade is above board, Ms Richard’s visa documents were accurate, the US can arrest Ms Khobragade and a good lawyer will be able to rip apart the US argument in court. The problem is the Ministry of External Affairs. It has failed Ms Khobragade and it has failed India. To quote Talleyrand, often known as the Prince of Diplomats, “This is worse than a crime, it’s a blunder”.