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HindustanTimes Sun,21 Sep 2014
L’affaire Devyani: No compromise on reciprocity
Leela K Ponappa
February 25, 2014
First Published: 23:23 IST(25/2/2014)
Last Updated: 23:25 IST(25/2/2014)

Two months after the eruption of a diplomatic dispute with the United States over the arrest of Indian diplomat Devyani Khobragade, the facts still remain poorly understood, leading to many ill-informed conclusions. Now that time has passed, a sober analysis of the facts would be useful.

It was Sangeeta Richard who sought to work with Khobragade after learning that the latter had been posted in New York. She was aware of the pay and benefits being offered, and was excited and happy to move to New York, according to her friends and family, who said so in sworn affidavits.

The full package paid to Richard was within the ambit of the New York minimum wage. The money remitted to India in a second contract, signed at Richard’s behest, as testified by witnesses, was her effort to prevent her husband from wasting her hard-earned money; this is not an unfamiliar problem.

Even in accordance with the minimum wage defined in the US, Richard would have at best earned around $1,590 a month, from which she would have had to deduct her housing and living costs. Her visa form seemed to ask for the employer’s salary, not the worker’s pay. It is absurd to claim, as the US did, that Khobragade made a false statement describing Richard’s salary as $4,500 a month, nearly three times the minimum wage estimate!

The US Embassy-prescribed contract requires the employer to repatriate the employee if the latter quits the job. When the US help was sought to enforce this contract, Khobragade was not helped and she was subsequently described as having tried to intimidate Richard into leaving the US.

Richard and those advising her made a demand tantamount to extortion in July 2013, asking for money, a new ordinary passport and the consulate’s assistance in securing an American visa for her to remain in the US.

There was one solitary US government communication in response to several Indian requests for help. This was a letter from the US state department on September 4, 2013, to the embassy. Although US officials later misleadingly described this letter as a “warning” of impending action against Khobragade, the letter is clearly not so. It urged the Indian Embassy to investigate Richard’s allegations and requested Khobragade for a ‘voluntary’ meeting to assist in the US investigation. It warned of prospective suspension of new visas for domestic help at the Indian Embassy if the allegations were found to be correct. However, there was no response to Indian requests for help to repatriate Richard.

Our embassy sent a detailed, factual and formal response to this letter, pointing out that India saw this matter as a dispute between a Government of India (GoI) official and a deemed official, whose contractual linkage was not only certified by the ministry of external affairs, but also partially underwritten by it; and that the Delhi high court’s anti-suit injunction required that any dispute between Richard and Khobragade be litigated in India.

It also urged the US to work with India to prevent illegal immigration. The American side neither disputed these arguments nor responded.

The condemnable manner in which Khobragade was arrested and treated speaks for itself. Overall, their action raised troubling questions over foreign States ignoring another nation’s judicial processes and intervening in disputes concerning the other State’s citizens. It raises questions about host States ignoring norms and conventions on diplomatic functioning, which cover all States equally, not only the powerful few.

On the alleged ‘mistreatment’ of Richard, how can it be argued that a send-home pay of Rs. 30,000 plus boarding and lodging, travel including a mid-term home leave airfare, local allowance and comprehensive medical cover, unavailable to most Americans, is an ‘unfair pay’? If monetised, Richard’s package is well above the American requirements even if one accepted that these apply.
Even if there were grounds for Richard to litigate, the Indian judiciary is the only forum for this. There is no reason for this case to be litigated in an American court when the parties to the dispute are Indians serving under the GoI rules and the job was established in India for an official location abroad, and facilitated by our government out of public funds.

Also at issue here is the US’ perception of India and its judiciary. The state department initiated, investigated and handled the entire matter, including ‘evacuating’ Richard’s family while the foreign secretary was on her first Foreign Office Consultations in the US. The US Embassy even claimed tax exemption for Richard’s family’s tickets.

What about the claim that Indian diplomats must pay the US minimum wage? So they should, but only to US nationals in the US, not Indian nationals hired by the GoI! The ministry of external affairs should never have agreed to the US’ terms for visas for an Indian domestic help from the outset.

Some commentators disapproved of the ‘disproportionate’ response. That would be a fair charge if we deferred defence contracts. In fact, strict reciprocity would have meant arresting an American consular officer for violation of any Indian law. None of that was done. The removal of unprecedented privileges and immunities accumulated by the US should have happened much earlier. This includes removing a 12-year-old closure of a public road to traffic. To suggest that security was downgraded flies against the facts: The US Embassy has more security than any other embassy in Delhi, and more than most Indian public figures.

Facts in the public domain show that US diplomats pay Indians below market standard, and that they do not provide medical or other benefits. Their hiring of domestic helpers has, until recently, been without contractual arrangement. As reported in the international media the American Embassy School may have committed serious offences such as visa fraud and tax fraud. The community centre in the embassy runs commercially, renting space to Indian shops. It levies a fee from non-diplomats to use embassy facilities.

Unfortunately, India’s approach to foreign diplomats has often been needlessly indulgent even when facilities are not offered reciprocally. Hopefully, our government has learnt that being unduly accommodating without safeguarding national interests is taken as a weakness.

Contesting violations of international law and practice and defending India’s laws should not require any approval from a foreign country or its apologists.

Leela K Ponappa is president, Association of Indian Diplomats, a former ambassador and a former deputy national security adviser

The views expressed by the author are personal


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