Khobragade case: does diplomatic immunity entail diplomatic impunity?
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The Great Indian Middle Class, it appears, has a domestic worker problem. When in India, they display a predilection for starving, torturing, locking up domestic helps, and underpaying or withholding their wages. When abroad, they want the same privileges they enjoy at home. If the law of the alien land does not gel with these time-honoured Indian practices, then it is a matter of national prestige that they get away with them abroad just as they do at home. And anyone who dares to speak for the rights of the domestic worker is anti-national scum that should go back to the hole they came from.
This, admittedly, is a caricature of India’s position—both official and unofficial—in the diplomatic row involving the Devyani Khobragade case. But going by the national outrage that greeted the news of Khobragade’s arrest, one could be forgiven for concluding that employing a domestic worker is a fundamental human right for India’s middle classes. Fortunately, for the rest of the world—it isn’t.
Of course, the manner of Khobragade’s arrest, which allegedly involved strip-search and a cavity search, is condemnable. But it deserves condemnation because it was an assault on human dignity, not because the personhood of Khobragade is somehow more worthy of protection from such indignities compared with lesser beings simply by virtue of her having become a surrogate of India’s international prestige.
In fact, a lot of rubbish has been written—and spoken on national television—about diplomatic immunity in this case. First of all, Khobragade was not a diplomat—she was part of consular staff. (Now, of course, with the Indian government coming to her rescue by assigning her to India’s permanent mission to the United Nations, she’s acquired full diplomatic immunity). The relevant diplomatic provision that applied to her was not the 1961 Vienna Convention on Diplomatic Relations but the 1963 Vienna Convention on Consular Relations. It is only the 1961 Convention that grants absolute immunity to a diplomat from the jurisdiction of the host country. The 1963 Convention grants immunity only in respect of official acts, not personal ones.
The US’s legal case against Khobragade is to do with her personal act, not something she did in her official capacity as the deputy consul general for political, economic, commercial and women’s affairs at the consulate general of India in New York. So the focus needs to be on the case itself, and unlike what prime time pseudo-nationalists would have you believe, it is not one between the US and India, but between two women, neither of whom is more Indian than the other.
Khobragade is a millionaire. She owns a flat in Mumbai’s Adarsh housing society, 30 acres of farmland in Maharashtra, a 5,000 sq. ft plot in Alibaug, and another plot in Noida. And she works in the Indian foreign service. Her salary might appear modest compared with the US minimum wage, but she was no more entitled to an Indian nanny in America than the nanny in question, Sangeeta Richard, was entitled to American wages in America—which, incidentally, she legally was entitled to. If Khobragade did not want to pay her the minimum wages as per the law of the land, she had multiple options.
One, she could have chosen not to go for a posting that did not allow her to maintain a lifestyle of her choice. Two, if she wanted the New York posting so badly, she could have opted to do all the domestic work herself. Three, she could have chosen not to take Richard along with her to US, and instead hired a part-time nanny in the US in keeping with her budgetary constraints.
But she chose none of these perfectly legal options. Instead, she pursued a course of action that involved, according to the chargesheet framed against her, visa fraud, perjury, falsification of documents, and exploitation of another Indian woman in a foreign land, which is pathetic considering that her official duties in the US also involved being an upholder of women’s rights.
Anybody who cares to read the full text of the complaint against Khobragade can only wonder how she hoped to get away with her actions, which amounts to a felony under US law. Does diplomatic immunity mean diplomatic impunity?
The US state department’s publicly available website on visas on diplomats and foreign government officials, in its section on employing personal servants, clearly states: “If the employer does not carry the diplomatic rank of Minister or higher…the employer must demonstrate that he or she will have sufficient funds to provide a fair wage and working conditions, as reflected in the contract.”
And precisely to prevent the employer from drawing up a one-sided, exploitative contract, it also lays down what the contract must say. Among other things, the employer must undertake to pay the domestic help the legal minimum wage or market rates, whichever is higher. Khobragade knew all this, for she did draw up a contract along these lines to get Richard’s visa cleared. But then, she drew up another, unofficial contract that was illegal as per American law, and which stipulated payments for Richard that were much less than what she was entitled.
The visa rules on the website further state: “The US Government considers “involuntary servitude” of domestic workers, as defined under the Trafficking Victims Protection Act (TVPA), to be a severe form of trafficking in persons (TIP) and a serious criminal offense.” So the critical question here is: Was Richard a victim of human trafficking? If she was, then the Indian government—and the outrage-mongers in the media who have been busy painting Khobragade as some sort of a victim and demanding an apology from the US—has a lot of answer for.
The United Nations, which considers human trafficking as a “grave violation of human rights”, defines it as consisting of three elements: the Act (what is done), the Means (how it is done), and the Purpose (why it is done). It might be interesting to see whether the circumstances of Richard’s employment by Khobragade fit the definition.
The Act of human trafficking includes “recruitment, transportation, transfer, harbouring or receipt of persons”. The Means includes “threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability…” The “Purpose” includes “exploitation, which includes …forced labour, slavery or similar practices…” As per the UN guidelines, to ascertain whether a particular circumstance constitutes trafficking, the relevant domestic legislation—in this case, the US law—should be considered.
Khobragade’s treatment of Richard definitely fulfils the first requirement: recruitment, transportation, harbouring of a person. As for the second and third parameters, the petition filed in the Delhi high court by Richard’s husband, Phillip is rather damning.
According to Phillip’s petition, “Uttam Khobragade called Sangeeta’s family several times and threatened them with dire consequences if she complains and that he would ruin their future, get them abducted and frame false charges of drugs against them.”
It further alleges that, “even though the contract stipulated that Sunday would be an off-day, she worked from 6am to 11pm, minus 2 hours for church even on Sunday,” adding, “The treatment of Sangeeta…is tantamount to keeping a person in slavery-like conditions or keeping a person in bondage.” These allegations, taken together, clearly add up to a charge of human trafficking, and merit a thorough investigation—not brushing under the carpet in the name of national honour.
National honour resides in protecting the exploited, standing up for the weak, and in upholding justice—not in being party to attempted intimidation of the oppressed. But this is clearly too much to expect from a state that has shown little concern for the plight of domestic workers within its own borders, and has so far refused to ratify the International Labour Convention (ILO) 189 that mandates decent working conditions for domestic workers.