Saturday, February 8, 2014

Outrage and the Khobragade affair

On 12 December 2013, the deputy consul general of the Indian consulate in New York, Devyani Khobragrade, was arrested on charges of visa fraud.  She was charged with “[causing] a materially false and fraudulent document to be presented, and materially false and fraudulent statements to be made, to the US Department of State in support of a visa application for an Indian national employed as a babysitter and housekeeper at her home in New York”. The housekeeper, Sangeeta Richards, alleged that she was underpaid and mistreated at Khobragade’s home. 

Dubbed “Nannygate”, this incident precipitated an unexpected crisis in India and created a rare diplomatic rift between the two supposed allies. While the case does indeed merit serious attention for the plethora of issues involved (primarily, the issue of diplomatic immunity and domestic workers’ rights), the way it was covered in the Indian media (December 2013-January 2014) was largely one-sided and occasionally blatantly sensationalistic. What started off as an ‘operational setback’ in Indo-US relations soon became a full-blown crisis, provoking the most vociferous protestations and strident displays of indignation on television and in print. The Indian government’s ‘unusually strong response’ was lauded and the US’ intransigence and seemingly intractable position on the matter was excoriated as poor judgment – the underlying implication being that the Americans would be hurt by their ‘tactless’ handling of the matter as ‘they’ had more to lose in the equation. The merits of the case were obscured by the emotive valence invested in the diplomatic falling-out. However, as it unfolded, the tenor of the coverage changed as well. Nationalistic pride and outrage gave way to equivocation. This shift may be explained by the trenchant position of the US on the matter and the evidently counterproductive impact of jingoistic invective.    

Initial news reports were relatively restrained. The arrest was described as an “operational setback” in Indo-US relations – “already on a plateau on account of policy paralysis in New Delhi and a crisis of confidence in economic decision-making in India”. The Indian embassy in Washington was said to have “conveyed its strong concern to the US government” and urged the Americans to “resolve the matter with due sensitivity”. 

However, the case escalated immediately thereafter and precipitated a full-blown media storm in India. Politicians denounced the arrest as an ‘insult’ to and ‘slap in the face’ of India; an attack on India’s ‘honour’ and ‘sovereignty’. The foreign minister declared that he would not return to parliament if he failed to extricate the diplomat from the imbroglio and “restore her dignity”. In a series of announcements, the government rescinded certain privileges accorded to US missions and set in motion a slew of ‘retaliatory’ measures aimed at ‘downgrading’ Indo-US relations. It announced dates for the revocation of airport passes, import and customs clearances, and withdrew the identity cards of all US diplomats in India. It asked the US embassy in New Delhi and the US missions in Kolkata, Chennai, Mumbai and Hyderabad to submit details of salaries paid to all personnel (Indian and foreign), specifically earmarking for scrutiny the visa and employment details of all teachers at American schools. Politicians and civil servants cancelled scheduled meetings with members of a visiting American Congressional delegation. Narendra Modi, the leader of the Hindu-nationalist Bharatiya Janata Party (BJP), the party considered most likely to win the federal elections in 2014, announced on Twitter, “Refused to meet the visiting US delegation in solidarity with our nation, protesting ill-treatment meted to [sic] our lady diplomat in USA.” Another BJP leader, describing the arrest as “savage” and “barbaric”, suggested opprobriously that India ought to “take action against US personnel in India [with] same-sex companions following the Supreme Court order against gay sex”. (On 11 December, the Supreme Court of India overturned a 2009 Delhi High Court order decriminalizing gay sex.) Most prominently, the government ordered the removal of security barricades outside the US embassy in New Delhi. The removal of the barricades made for spectacular television news and inspired grandiloquent headlines such as, “We’ll bulldoze you, Uncle Sam!” The government’s ‘retaliatory’ rhetoric was matched in tone and fervor only by the media’s overeager lambasting of the US. 

Humiliation’ was the key notion underscored by the reportage. Much was made of the fact that the arrested diplomat was a woman. Infusing belligerent nationalism with conservative outrage, the ‘humiliation’ of a ‘woman diplomat with two children’ was seen as especially execrable. The fact that she was arrested in public, strip-searched in custody and temporarily placed in a general prison (before being let out on bail) formed the basis of this perception. On the whole, the main point of contention was the treatment meted out to Khobgrade – the way in which she was arrested received far more attention than the substance of the allegations. “Searing” descriptions of the US Marshals’ protocol on the conduct of strip-searches were embedded in front-page reports, a latent prurience undergirding the outrage at her treatment. Also inviting censure was the revelation that she was allegedly handcuffed upon her arrest (a claim that is denied by the US) and housed in a general population cell “with common criminals and drug addicts”. 

Indian officials, reading the Vienna Convention on Diplomatic Relations, which prohibits the arrest or detention of a diplomat unless the head of the mission approves, believed Khobragade was entitled to diplomatic immunity. The Americans, citing the Vienna Convention on Consular Relations, which grants immunity only for acts committed in the line of work, argued that it could not be invoked in Khobragade’s case. 

Moreover, the New York authorities responded to the charge of ‘mistreatment’ by conducting an internal review of the arrest, which concluded that the lady was afforded courtesies beyond those extended to an American citizen. Nevertheless, Secretary of State John Kerry evinced empathy “with the sensitivities [voiced in] India about the events that unfolded after Ms. Khobragade’s arrest” and “expressed his regret, as well as his concern that we not allow this unfortunate public issue to hurt our close and vital relationship”.  

At the core of the New York district attorney’s ongoing case is the issue of visa fraud. In the Indian media, however, the issue of visa fraud was downplayed. Other than some equivocation around the purported salary of the maid, no refutation of the charge of fraud emerged in the public domain. In fact, this bureaucratic ‘misdemeanor’ (in legal terms, perjury) was later implicitly countenanced by the Indian establishment. In television news discussions, it was described as a ‘routine practice’ that the embassies of developing countries view as par for the course by virtue of their inability to pay the minimum wages benchmarked in host countries. The fact that Richards was paid a salary ‘far higher than domestic standards in India’ was used as an extenuation. 

Richards alleged that Khobragade forced her to sign a second contract before their departure for the US which stipulated the payment of a far lower salary than that originally stated in the visa application submitted to US immigration authorities (USD 560 against 1560). Clauses requiring the employer to “abide by all federal, state and local laws in the US” and protecting the employee from “other forms of exploitation and abuse” were reportedly expunged from this second contract. Richards also alleged that Khobragade confiscated her passport (an official Indian passport) upon their arrival in the US, made her work long hours with few breaks and deducted her salary when she was taken ill, in contravention of their contractual agreement. She left Khobragade’s Manhattan apartment in June 2013 (having started work in November 2012) without notice  and approached an American immigration lawyer and anti-trafficking agency. In a purported meeting in July between Richards and Khobragade mediated by the former’s lawyer, Richards demanded USD 10,000 as compensation, a regular passport (in lieu of her official one allegedly held by Khobragade) and immigration assistance. The Indian government, notified of Richards’ disappearance and the subsequent meeting, immediately revoked her passport, thus rendering her an illegal migrant. However, she was granted a T-1 visa (for victims of human trafficking) around the same time by the US State Department. 

Khobragade’s complaint of ‘aggravated harassment’ against Richards in a New York court was dismissed but her complaint to the Delhi Police, accusing Richards and her husband Phillip (based in Delhi) of conspiracy and extortion, was admitted by the Delhi High Court. In September, the court passed an interim injunction restraining the Richards from pursuing any action against Khobragade in a foreign court, and in November issued an arrest warrant for Sangeeta Richards in Delhi. Ironically, a July petition filed by Phillip at the same court, seeking punishment for Khobragade and the repatriation of his wife, was dismissed on the grounds that the court did not have “jurisdiction [over] a crime committed on foreign soil”. 

Phillip alleged that he and his family in Delhi were harassed by the Delhi Police at the behest of Uttam Khobragade, Devyani’s father and a former senior government official. On 10 December, Phillip and his children left Delhi for New York on T-2 and T-3 visas (for family members of victims of trafficking). Devyani Khobragade was arrested in New York two days later. 

The Richards’ “evacuation” from India was viewed as a deliberate ploy on the part of the US to undermine Indian sovereignty, judicial proceedings and offers of a diplomatic resolution. It was seen as reflective of a “trust deficit” between the two countries, or worse, a “conspiracy” by the US, aided by “overenthusiastic” human rights groups, lawyers and evangelical organizations, to “humiliate” India. The Richards’ conduct was thus viewed through the prism of ‘asylum-seeking stratagems’. Richards was accused of “preying on the gullibility of [American] do-gooders who are accustomed to viewing the Third World as an undifferentiated area of darkness”. By charging her employer with violating her human rights and “depicting herself as a victim of servitude [and] Indian tyranny”, Richards, as per this view, insidiously manipulated the Americans’ ‘pious humanitarianism’ in pursuit of her own ‘American dreams’. 

The Americans’ decision to provide visas to the Richards in spite of the Delhi High Court’s arrest warrant prompted sharp criticism in India: “The implication of this remarkable [decision] needs to be considered very carefully with regard to the implicit comment it makes about the Indian legal system, Indian law enforcement authorities, and the responsibility that legal officials of a foreign government seem to arrogate upon themselves with regard to the nationals of another country.” 

Indian commentators also criticized the hypocrisy and double standards at work vis-à-vis America’s disregard for local laws when its own agents and officials commit crimes abroad. The Raymond Davis affair in Pakistan was mentioned several times in this regard. The fact that American embassies have in the past steamrolled authorities in foreign jurisdictions and circumvented local laws to shield American agents from criminal prosecution rankled those who found its steadfast resolve in this case disingenuous and self-serving. (The US State Department refused to intervene in the ongoing investigation and expressed its unwillingness to comply with the Indians’ demands regarding the repatriation of the Richards.) 

Another criticism pertained to the “tut-tutting in the western press about [the] low wages paid to domestics [sic] in India”. As one commentator put it, “None of these reports mention that even middle-class Indian incomes scarcely cross what are considered poverty thresholds in western countries. The point, after all, is to be judgmental… A species of McCarthyism, if you will, but one that stigmatizes poor nations…” Here, an added dimension was the vilification of Preet Bharara, the US Attorney for the Southern District of New York: “Interestingly, McCarthy in this case happens to be of Indian origin. Bharara is an Obama nominee who’s reported to harbor political ambitions. If he goes up for high political office, acquiring a few Indian scalps on the way and thereby exorcising his origins would be useful.” (Bharara successfully prosecuted Indian-American businessman and hedge-fund billionaire Raj Rajaratnam and former McKinsey & Co. CEO Rajat Gupta, among others, for insider trading in 2011-12.)  

Notwithstanding these criticisms, the fact remains that this case, which provided ample opportunity for India to reflect on its treatment of domestic workers, instead became a test case of muscular diplomacy. The issue of workers’ rights was relegated to the periphery. One cannot argue that the case lends itself seamlessly to an analysis of workers’ rights in India (Richards’ salary and benefits far surpassed those of domestic workers in India, and her case, therefore, can hardly be considered representative), but surely some degree of extrapolation and intersectionality would have been apposite? The issue of minimum wages for various categories of manual workers (observed largely in the breach), labor laws, workplace conditions, treatment of workers, timely payment of wages, pensions, and recourse to workplace and commercial justice are all pertinent areas of concern. These concerns are rarely ever addressed in a comprehensive manner. One could also dispute the claim that the economic melioration of low-wage earners is circumscribed by the comparatively low income threshold of middle-income families. The upper classes and middle classes (the middle classes were estimated at 250 million in 2007 by McKinsey & Co.) comprise a large number of households who earn incomes on a par with their western counterparts. One would thus expect an incremental and corresponding increase in lower-rung wages.    

Moreover, the issue of diplomats in the US underpaying their employees is one that the State Department does not take lightly. According to a report published by the Government Accountability Office (GAO), between 2000 and 2008, 42 diplomats were accused of abusing or mistreating their foreign employees. One third of the accused diplomats were from Africa, 15 percent from Asia and 2.5 from Europe. The law was strengthened in 2008, leading to a number of cases against diplomats from, for instance, India, Taiwan and Mauritius. The charges in this case and ongoing trial are, therefore, neither unique nor unprecedented. 

In the end, the Indian government even spurned the offer of a plea bargain and suspended jail sentence, demanding that the US drop all charges against Khobragade. In the face of incontrovertible evidence that the diplomat did indeed provide false information in her employee’s visa application, the US found it impossible to do so. As a result, Khobragade, whose husband and children are American citizens, was ordered to return to India.  

The prospect of general elections in 2014 no doubt played its part in ratcheting up the political rhetoric in India. But the demagogic hectoring and anti-American diatribes, on television news channels in particular, were impelled by other factors. A few argued that one of these more imperceptible factors may have been a sense of entitlement – an overweening belief in the ‘right’ to employ domestic workers, and enjoy the lifestyle enjoyed by the upper and middle classes in India, on one’s own terms and conditions, abstracted from local laws and circumstances. Some critiques of the American position were indeed justified and necessary. Several others were petulant and born of an obstinate refusal to recognize any wrongdoing on the part of the diplomat. This anomalous situation gave rise to an array of responses – from a querying of American double standards in diplomatic affairs on the one hand to homophobic posturing and allegations of conspiracy on the other. 

Furthermore, a question needs to be asked about the priorities of the Indian Foreign Service. Between July and November 2013, more than 130,000 Indian laborers working in Saudi Arabia (of a total of 2.8 million expatriate Indians there) were forced to leave the country after the introduction of the ‘Nitaqat’ (classification) policy and tougher migrant labour laws. In the ensuing confusion, allegations emerged of Indian embassy officials demanding bribes from the beleaguered workers for the rendering of basic consular services. These allegations caused not a murmur of protest in India. In December 2013, a riot erupted in Singapore’s Little India district and around 400 Indian workers, mainly employed in the construction industry, were said to have been involved. In the aftermath of the riot, an indeterminate number of people were interrogated in police custody, around 28 were charged with rioting, more than 50 were deported and more than 3000 workers across the city were informally questioned. (Singaporean law does not allow legal representation during the process of interrogation, making consular vigilance and assistance all the more crucial.) Questions were asked by Singaporean rights activists about the possible underlying causes of the riots; concerns were raised about the workers’ living conditions; allegations were made about employers routinely deducting workers’ salaries to pay off company levies. The Singapore riots received the bare minimum attention in India. 

Why is it that the welfare of millions of expatriate Indian workers matters so little to the Indian government and its diplomatic arm, or perhaps to the doyens of public opinion, in comparison to the welfare of a single officer? 

The answer, of course, lies in the logic of class and its immutable hold on Indian society.

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