Last week, after more than three weeks of delay, the US signalled its acceptance of Devyani Khobragade as a member of India’s permanent mission to the UN, and therefore her right to full diplomatic immunity. But it did this as part of a deal with New Delhi that required her to leave the country immediately. While allowing her to leave, the US government has taken great pains to “reassure” its own people that it has not dropped the charge of making false declarations in her application for a visa for her erstwhile maid, Sangeeta Richard.
Should she ever come back to the US, Devyani will be arrested, face the same criminal charges and be subjected to the same police procedures as any other American citizen, i.e, as a common criminal.
Devyani’s return has been treated as a victory by the Indian media and been quietly cheered by most other countries across the developing world as a first step towards the US’ acceptance of the need for a level-playing field in the treatment of each others’ nationals. But the victory is a pyrrhic one and the step a very small one indeed.
What the statements from both sides of the world are silent on is the question: What will this mean for the future? What if the government wishes to send Devyani back to the US as its ambassador on some future date? Will the US refuse to give its agreement to her posting?
What if India decides to appoint her as its Permanent Representative to the UN? Will it twist a future secretary general’s arms into refusing his approval? What if New Delhi wishes to send her on a delegation to the US or the UN? What if she becomes the foreign secretary of India and is required to accompany the prime minister on a state visit to the US? Will the US put pressure on India not to send her? Will it still threaten to arrest her the moment she sets foot on American soil? As of now, that is precisely what the American prosecutors say they will do.
‘My Advice To Devyani Is To Stay Away From The Limelight’
The deadlock may have been broken in the Devyani Khobragade issue but it was a clear indicator that all is not well with Indo-US ties. Some believe that it will take months before it becomes business as usual. But in a chat with Ashhar Khan, Foreign Minister Salman Khurshid paints a positive picture
Devyani Khobragade is finally back home from the US. How do you see this development?
The development is that she is back. But the episode is something that shouldn’t have happened. We tried our best to resolve the issue at the earliest. Now, we have put her out of any distress. Some loose ends remain to be tied. We will continue our parleys with the US State Department and find a solution.
Do you think that the affair could have been handled differently?
I don’t know. If you mean that it should not have happened, that she should not have been arrested, the answer is yes. But if you mean something else, then the answer is no. We couldn’t have done anything other than what we did.
Did the US authorities get in touch with the Ministry of External Affairs in October regarding the Devyani case?
We were in touch with the US authorities all the time; there were a lot of discussions. But at no time was there any indication that it could reach such a point. Normally under these circumstances, if a country has a problem, they tell you to withdraw the person from service, but no such indication was given. It was given now and that’s why we withdrew her.
Thus Devyani may have been spared imprisonment in the US as a common criminal, but she has not escaped another form of punishment — the blighting of her future career in the Indian Foreign Service. What is worse, the US decision has separated her from her family, not for a few weeks, months or even years, but quite possibly forever. Her husband can prevent this only by leaving his current, tenured, professorial appointment and seeking a new job in a different country in the middle of his academic career. If he does not do so, the marriage will become a distant, transcontinental one in which the children will be the main victims.
Therefore, the US’ “magnanimity” has only replaced a cruel form of torture with another refined and more prolonged one that will change the lives of four people for the worse. And all this will be done in the name of human rights.
The questioning of the US actions must, therefore, continue. However valuable the Indo-US relationship may be, the time for mending bridges has not yet come. The issues raised by Devyani’s arrest cannot be allowed to subside into obscurity once again. India must take them up and hammer out a clear set of guidelines that are in consonance with US wage laws, for the employment of non-US citizens by consular officials and other Indian citizens residing in the US.
This is all the more urgently needed because Sangeeta is not the first maid or domestic servant to have used the charge of wage slavery to put herself or himself on the American citizenship track. The publicity her case has received virtually ensures that there will be many more.
To see what went wrong, it is necessary to re-examine the case against Devyani Khobragade. In the chargesheet drawn up by an agent of the US State Department’s Bureau of Diplomatic Security, Devyani stands accused of two serious transgressions of American law: One, she grossly underpaid and overworked her maid after bringing her into the country, which amounts to trafficking in wage slaves, and two, she gave false information on her request for a visa for her maid.
The first charge has two components: that she had promised to pay Sangeeta “around $4,500” a month, and that she would be paid $9.75 an hour. In fact, she paid only $3.31 an hour, which is far less than the federal and New York minimum wages. The $4,500 assertion, dutifully echoed in a press release by the Southern District of New York, has turned out to be a huge blunder. A screenshot of the relevant page of the DS-160 visa application, obtained by PTI, shows that the relevant column had asked for Devyani’s salary and not that of the maid.
Had Mark J Smith, the agent who prepared the charge, done a little arithmetic, he would have seen that even had she been paid $9.75 an hour, Sangeeta would have had to work 66 hours a week to earn $4,500, far more than Devyani had committed herself to making her work in her visa application. But so great was his and his superiors’ eagerness to ‘get’ a diplomat, and so deep-rooted was their contempt for India, that no one at the State Department took the trouble to double check Smith’s chargesheet and spot the error. Nor, until today, has the US retracted the charge. Clearly, to admit that its bureaucrats are less than perfect will weaken its claim to be the sole superpower of the world.
The second part is no better founded. The State Department has accused the Indian diplomat of not only making a false statement and actually paying Sangeeta only $573.07 a month, but of making her sign a secret second contract not to be divulged to the visa authorities in which she has accepted this pay.
What the State Department has chosen to ignore is the fact that $573 was only the cash portion of Sangeeta’s emoluments. Devyani also provided her with a furnished room and met her food, health, transport (including fare back and forth from India) and communication expenses. All this was payment in kind whose monetised value comes to more than $1,500. A cursory search of the Internet reveals that even in the poorest boroughs of New York, not to mention Manhattan, it is virtually impossible to get a room for single (as opposed to shared) occupancy for less than $600 a month. In Manhattan, the rent begins at $800 and rises in the Upper East Side, where Devyani lived, to $1500 to $2,000.
If we take the notional rent for Sangeeta’s room as $800, and assume $400 for food, $250 for health insurance and $100 for transport, her actual emoluments came to $2,123 per month or $12.25 an hour for a 40-hour week. At $9.75 an hour, Devyani could have asked Sangeeta to work for 50.25 hours a week without violating her commitment to the US government. As for wage slavery, even at the minimum assessment of her gross salary, Sangeeta was earning only a shade less than the median US wage in 2013, which was $2,293 per month. In other words, almost half of all American salary earners earn less than what she was getting.
In anticipation of this defence, Devyani’s prosecutors have claimed that the US’ calculation of minimum wages does not include payments in kind. But apart from being illogical, this claim is most probably not sustainable under US law itself. Because neither US federal or any state minimum wage law states that the minimum wage must be paid in dollars irrespective of what else the employer pays to the employee in kind. US law does not make any such demand for the very good reason that if employers were required to meet expenses like health and housing, it would break the already fragile back of American industry.
It does not require an Einstein to figure all this out, so why did the US insist on making such a public spectacle of Devyani? Granted that the US has several million illegal immigrants working at a fraction of the stipulated minimum wage, and cannot therefore afford to appear complaisant when confronted by a high-profile case, why single out a female diplomat, albeit one without full diplomatic immunity, from a country that is one of the US’ few remaining friends in the developing world? Should the US State Department not have exhausted every effort to exonerate Devyani before publicly arresting her and violating her privacy?
And if it felt it had to arrest Devyani, why did it not also arrest Sangeeta? Should it not have reminded itself that if Devyani made a false declaration to the US visa office then so, knowingly, did Sangeeta, and that too in New Delhi, where she was not under Devyani’s control? Nor could Sangeeta claim that she only came to know of the discrepancy in wages after she arrived in the US, because her husband has been working for years at the US embassy in New Delhi. Why then did Washington not only exonerate Sangeeta of every crime, but also provide her with a special visa, and fly her family out of India at government expense?
The answer is obvious: it agreed not to prosecute Sangeeta if she provided information that would indict her employer. The assault on Devyani did not therefore simply arise out of a compulsion to observe due legal process once a violation of the law had been detected. However it may have begun, Devyani was deliberately targeted and everything that followed was carefully choreographed. What is not easy to understand is ‘why’. The only rational purpose one can detect for risking India’s anger is to pave the way for harsh controls on immigration and on the issue of work visas to Indians. US President Barack Obama is finalising an immigration Bill and its avowed purpose is to protect not just any American jobs but jobs in the most highly paid sectors of industry, where immigration is hurting the most.
The only other explanation is the rising self-righteousness of American policy. But there is something sick about American self-righteousness. In May 2011, the New York Police arrested the then International Monetary Fund chief Dominique Strauss-Kahn on charges of sexual molestation and violence against a maid at his hotel within two hours of her complaint, and handcuffed, jailed and destroyed the man before bothering to cross-check the allegations with the hotel’s register and CCTV cameras. Had it done so first, it would have found that Strauss-Kahn had checked out and left the hotel 25 minutes before the maid alleged that he had attacked her in his room.
And last month, the State Department’s attack on Devyani Khobragade began with much the same thing: a mistake that no rookie policeman, let alone an agent of the Bureau of Diplomatic Security, should have made. And so great was the eagerness to prosecute that no one higher up bothered to catch the elementary errors on which the case was built. Clearly, the desire to appear “good” is overwhelming both common sense and discretion in the US administration.