Devyani of the Indian Consulate in New York, unlike the daughter of Shukracharya, and the wife of the great sage Yayati, has become widely known in our country overnight for all the wrong reasons. Understandably, the unedifying episode is not receiving much attention in the American press or television. This diplomatic crisis will also pass in a few months and recede into the background, where it belongs. However, the unseemly row over the horrendous treatment of the Indian diplomat by the New York police has triggered an overdue correction in the historic lack of reciprocity in the immunities and privileges the two countries extend to each other’s diplomats. It is important that a mutually agreed and strictly reciprocal set of diplomatic immunities will not be put on the back burner once the current crisis blows over. Mutual reciprocity in such matters helps in avoiding the recurrence of similar incidents in the future. India-US bilateral relationship is too vital for both sides to allow such avoidable incidents to vitiate the atmosphere.
Extending certain privileges and exemptions from applicability of local laws and regulations (i.e. immunities) to Ambassadors and Consuls was considered absolutely necessary for the smooth conduct of relations between nation states. Hence these are generally held inviolable over the centuries. However, in this age of instant communications, the Ambassadors are no more the only ears and eyes of the decision makers at home. The archaic legacy of diplomatic immunities needs a critical re-evauation and re-tooling in tune with the transformational changes sweeping the world in the era of globalization, I contend. But, this brief article is not the place to indulge in such a digression! However, it should be asserted that till such an updating takes place and put into practice by all nations, the existing laws, norms, and practices governing diplomatic immunities all over the world are kept sacrosanct.
A hangover from the past
However, it may not be out of place to refer to another hangover from the past that affects the macro context of the current imbroglio. Western Ambassadors (and other diplomatic entourage down the line) enjoyed/received preferential treatment in colonial Asia and Africa. Over time, the leaders and people of the former colonies gained the self confidence and self-pride needed to deal with their white counterparts with equanimity –i.e. avoiding the double edged error of undue deference and needless hostility. Some of this hangover shows up on both sides now and then. This subterraneous racial tension is not too dissimilar to white-black relations in the US, say since 1960s. Be that as it may, a dispassionate analysis of the ongoing diplomatic crisis in India-US relations must be attempted here.
“Facts” of the case
On 12 December 2013, Mrs. Devyani Khobragade, Deputy Consul in the Consulate General of India in New York City, was arrested by the US Marshals Service on charges of visa fraud and exploitation of her domestic help (Sangeeta Richard). The allegations were that Devyani gave factually incorrect information in the form seeking US visa to her maid. Devyani was also charged with non-payment of minimum wages and forcing the maid to work long hours. Such exploitation, if proved, is in violation of the US laws and also civilised conduct on the part of the “masters!”
With a view to protect the missing maid’s family in India from “harassment,” the US Embassy in New Delhi gave visas to her mother and father earlier and purchased air tickets to enable them to come to the US. This indeed was an unprecedented “evacuation” clearly suggesting that the police authorities had planned the arrest of the Indian diplomat in advance. Till date Devyani’s complaint to the New York Police about the missing maid remains unanswered!
Reprehensible treatment
Whatever may be the merits of the charges against Devyani, the inhuman and utterly callous treatment accorded to her following the arrest was reprehensible and deserves strongest possible condemnation, even if she was not a diplomat. She was hand cuffed repeatedly, strip searched and cavity searched, and kept in a cell along with hard core criminals and drug addicts! Devyani broke down several times during the barbaric treatment. All this was done when the authorities were aware of her diplomatic status and hence entitled to exemption from local laws. The initial assertion by the law enforcing authorities that what was done to her is “the standard operating procedure” applicable to all criminals in the country is utter nonsense. It is clearly against established diplomatic practices all over the world and violates international laws and norms and contravenes the Geneva Convention. Above all the police behaviour in the case goes against all cannons of human dignity and decency.
Other noteworthy facets
Some not so extraneous facets involved make the complex case murkier. It seems that Sangeeta was ‘black mailing’ Devyani to change her visa status and allow her to take up additional employment, etc. There were feelers on her behalf for an out of court settlement in the order of $ 10.000.
There were reports that the high powered US Attorney of Indian origin (Preet Bharara), who “scalped” many a big fish like a State Senator, Rajat Gupta and Raj Ratnam of insider trading scandal, Straus Kahn of IMF indicted for misbehaving with the room service maid, had a personal agenda to advance his political ambitions. Naturally, this was subsequently denied by asserting that Bharara came into the picture only a few days before Devyani’s arrest.
In the entire furore over the ill treatment of the august diplomat, everyone in India has forgotten Sangeeta Richard, the maid and her rights for justice. It is common knowledge that exploitation and abuse of domestic help is prevalent all over the world.
The commitment of the New York
Police to fight against such exploitation should not be sidelined. However, the allegation against Devyani is yet to be established legally and this can happen only when the case comes for hearing before the appropriate court.
Yet another twist in the case came to the fore in the midst of the give and take between the two Governments following the arrest. It seems that Devyani’s temporary assignment earlier was valid till 31 December 2013. At the time of the arrest (12 December 2013), therefore, she had a higher level of diplomatic immunity. This was on record and the State Department was in the know of this material fact. Somebody there must have goofed, unless there was a deliberate decision to ignore it.
On the Indian side a similar error had transpired. There was no need to have deputed Devyani to the UN Secretariat once again when the earlier assignment was intact. There was no need to have acted in haste and then claim untenable retroactive immunity! Obviously in the heat of such controversies something goes amiss in all offices and both sides try their best to cover themselves and put the blame on the other party.
IFS lobby jumps in
It is worth noting that in less than a week after the arrest, the ill treatment of Devyani exploded in the public arena like a bomb. Media was agog with the humiliation and indignity heaped on the Indian woman diplomat. It is clear that Khobragade family enjoys a lot of clout among the powers that be. They were able to get a flat allotted to them illegally in the Adarsh Towers is evidence enough, it may be added.
There is another interesting dimension behind the overzealous response from the Indian Government. The elite Indian Foreign Service jumped into the fray to protect their “divine right” to have servants even while serving the nation abroad! They are naturally opposed to losing the privilege of “importing” domestic help from India on a contract basis and circumvent local laws and paying minimum wages whether they work in the US, England, or Switzerland! This is a kind of turf war and nobody wants to lose privileges. The IFS clan is now working on some kind of legal arrangement whereby their “domestic staff” is treated as employees of the Government of India! There are some hassles, but we can trust our past masters in procedural innovation to come up with a suitable arrangement to protect their not so vital interests! In a way this is good, if this long standing “servant problem” of the IFS in all countries is taken care of as a consequence of the current diplomatic row between India and the US. This could become Devyani’s enduring gift to her biradari!
The way out in sight!
Since both sides are determined to not let this unsavoury episode undermine the vital bilateral equation, there has to be a way out of the mess. Passions were high on the Indian side. Even mild mannered Salman Khurshid “vowed” not to enter Lok Sabha “if I fail to restore Devyani’s dignity.” John Kerry, the US Secretary of State expressed “regret” and “concern” over the circumstances of the arrest. The Indian Government initiated several actions with a view to enforce strict reciprocity with respect to the immunities enjoyed by diplomats on both sides, which need not be catalogued here. The Government of India is insisting that the US “drop” the case against Devyani. Many people in India welcomed New Delhi’s “rare display of spine” in dealing with the US.
“The US Government requested India to withdraw the diplomatic immunity Devyani enjoys so that they could pursue the case. This means that the Americans have finally recognised her immunity and that she could not be arrested. The Government of India rightly refused to accede to the US request. The US was within its right to ask India to withdraw her from the country. On the night of 10 January Indian time, Devyani was on her way back home. In response to the US stand, India has asked the American diplomat involved in “evacuating” Sangeeta Richard’s family to leave the country within 48 hours… A strict and unambiguous reciprocal regime in the conduct of diplomacy between the two should now be urgently worked out and put in place as soon as possible. It is time for the two countries to be back in business so to say. The bilateral equation is too vital for both nations to let the ugly episode to hurt or hinder it in any way.”
However, the New York Police is equally adamant. They insist that they cannot drop the case and are legally bound to proceed with it in due course. This is not in the jurisdiction of Washington DC, they point out. The State Department helpfully says that the case will take some time to come up before the court again. Since Devyani is out on bail, she is free to leave the country any time she wants. However, if she is in the US, when the case comes up again, she is bound to be arrested again, the State Department clarified. May be here is the honourable way out both countries are looking for. But, there is a hitch. What happens to the $250, 000 paid for the bail? May be the IFS clan will find a way of circumventing the liability. The GOI may quietly pay up. Some creative accounting could come to the rescue. I have a better idea. Since the Khobragade family is seemingly very rich, they could forfeit the bail amount. That would be the ideal (adarsh) atonement for Devyani’s indiscretions abroad and illegal acquisition of wealth at home!! But, it would be too much to expect such things to happen; Kejriwal or no Kejriwal!
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Dr. B. Ramesh Babu
The writer is a specialist in International Relations and American Politics and Foreign Policy. He is currently Scholar in Residence, Foundation for Democratic Reforms, a think tank and advocacy group based in Hyderabad. He is also a Visiting Professor at the University of Hyderabad. Formerly he was the Sir Pherozeshah Mehta Professor and Head of the Department of Civics and Politics at the then University of Bombay.[/column]