A Right Case For ICJ

Reflections on the Khobragade Episode

I Mallikarjuna Sharma

The unfortunate event of a deputy consul general of India in New York, US, being fraudulently implicated in a visa fraud case launched on the ground that she did not pay even minimum wages as stipulated by US laws to her domestic help, Sangeeta Richards, and moreover induced that woman to file a false affidavit escalating the amount of pay received by her as equivalent to $4200 per month as required by US laws to the US Visa authorities through electronic application sent from the computer of Devyani Khobragade, and for being arrested and detained for such a case in New York and being subjected to physical search including search of her anal and vaginal cavities as if she has been suspected of some serious drugs smuggling or other offences, and the resultant humiliation to and undermining of dignity and self-respect of not only that Consular Officer but also of the entire Indian nation for whom she is symbolically a consular representative in America entitled to due respect and immunities, is a very serious violation of norms of international law which needs to be immediately complained to the International Court of Justice [ICJ], the Hague by the Indian Government.[1]

First of all, the charge in the complaint by a police officer of the US that Devyani caused execution of two mutually contradictory wage agreements is itself dubious since both were said to be executed in India and so the offences if any, rightfully fall under the jurisdiction of Indian Courts. Especially the agreement of Sangeeta Richards receiving Rs 30,000 per month, executed in India, has not been submitted to the US Visa authorities at all but is a private possession of the executor and the domestic help which probably found its way to the investigating officer because of the treacherous role played by that ungrateful domestic help. It is to be noted here that Rs 30,000 per month for a domestic help is a very huge amount in Indian conditions and even many software engineers do not get that starting salary even under multinationals operating in India. And the amount of $4200 per month said to be demanded by US authorities for any such domestic help from India is grotesquely high and many average American workers themselves do not get more than $2000 per month in that country. The minimum wage in US anywhere does not exceed $10 per hour and even McDonalds pays its workers below the minimum wages that way. Even the diplomat does not draw more than $4500 per month salary and that way somebody wryly commented that even Salman Khurshid, the Union Minister in-charge, should be prosecuted by US authorities.

In this connection, it is pertinent here to note how one Sangeeta Bahadur, a diplomat, has vented out her grief and anger against some Indian critic of Devyani Khobragade's alleged misconduct of underpayment to her domestic help as follows:
"I wonder how well acquainted you are with diplomatic life and the so-called privileges we are granted and our 'cruelty' to the domestic helps we are permitted to take with us. As a serving diplomat, I am always amazed by the kind of uninformed, unjustified slander to which we are subjected by people who know nothing about our working and living conditions. Do you even realize that the sum the US government laws insist we pay our domestic help—4,500 dollars a month—is more than the salary of a diplomat with 20 years of service under his or her belt? Do you realize that we are given a puny allowance of around Rs 8,000 by the government to pay our domestic help and that the additional Rs 22000 that this particular diplomat was paying came out of her salary? Do you have any clue how those of us who are posted in countries like the US or UK are blackmailed by our domestic helps, who know they'd have the full support of the local authorities the moment they cry wolf—about not being paid enough or being beaten up, molested, not given a day off every week, being made to work longer than 8 hours a day etc, etc.... the list goes on?

Far more important than all that, aren't you and others who are feeling so gleefully righteous about what happened to this particular diplomat have any pride in yourselves as Indians? Aren't you shocked and horrified that a person who represents your country abroad—often under very difficult, even fatal circumstances—is being treated with such contempt and disrespect by a foreign government, handcuffed in public, jailed, disgraced and treated like a terrorist simply because she can't afford to pay the ridiculous amount she is expected to pay to someone who is an Indian national who is NOT there at the US government's expense and is NOT working for them? How much do you think the US diplomats pay the platoon of 'cheap' Indian servants they employ when they are in Delhi? Do you seriously think it's anywhere near even 450 dollars a month, let alone 4,500? I wouldn't even mind if they had declared the diplomat persona non-grata and sent her back to India. What they had no business doing was treating her the way they did and Indians like you are actually applauding them! Had we done something like this to one of their diplomats, Washington would have broken diplomatic ties with us and Obama would have read our PM the riot act on international media. That's because they respect themselves. Unfortunately, we never have and probably never will.

So the disrespect and contempt will continue and Indians will keep patting themselves on the back for being on the side of 'justice'!"

Even the so-called self-righteous statement of the Manhattan Attorney Preet Bharara, apparently a 'more royal than the king' type of American citizen of Indian origin, only harps on Devyani Khobragade underpaying the domestic help and for that purpose tampering with and forging false documents for her Visa clearance. If it is just a question of underpayment and the enlightened US Government so much caring for the poor was in fury over an injustice done to a 'poor domestic help', the remedy was through civil action by labor officers for violation of Federal Labor Standards and in that event the maximum liability to be incurred by Devyani was a civil penalty equivalent to the rightful wages to be paid to that domestic help per US Minimum Wages standards added to that amount of unpaid wages. That is all what 29 USC CHAPTER 8—FAIR LABOR STANDARDS Act, Section 206 (Minimum Wages) and Section 216 (Penalties) prescribe and nothing more. But here the US authorities did not even move a step in that direction. They just foisted a criminal case against Devyani on the charge of forging a fraudulent affidavit for Visa clearance which could cause her imprisonment up to 15 years even. And it would have been enough for them to have notified Devyani through the Court of any such pending investigation and case and asked her to appear for examination by the investigators or before the Court on the indicated date and time. But they simply chose to arrest her, handcuff her as if she is an ordinary criminal, and then humiliate her by stripping and searching her cavities—this only shows their racist arrogance and power intoxication. Moreover the US Govt. on an urgent basis issued special visas to the entire family of Sangeeta Richards in India and got them 'evacuated' to US as a measure of witness protection and this raised many eyebrows from perspicacious observers and there are strong suspicions that all this was done to protect their own covert spying operations through that wretched woman—Sangeeta Richards and her husband and other involved family members.

It would be useful to quote this ‘self-righteous statement’ of Manhattan US Attorney Preet Bharara on US V Devyani Khobragade, Wednesday, December 18, 2013 :
‘‘There has been much misinformation and factual inaccuracy in the reporting on the charges against Devyani Khobragade. It is important to correct these inaccuracies because they are misleading people and creating an inflammatory atmosphere on an unfounded basis. Although I am quite limited in my role as a prosecutor in what I can say, which in many ways constrains my ability here to explain the case to the extent I would like, I can nevertheless make sure the public record is clearer than it has been thus far.

First, Ms Khobragade was charged based on conduct, as is alleged in the Complaint, that shows she clearly tried to evade US law designed to protect from exploitation the domestic employees of diplomats and consular officers. Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to US government officials. So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the US government about what she was doing. One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country. One wonders even more pointedly whether any government would not take action regarding that alleged conduct where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law. And one wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?

Second, as the alleged conduct of Ms Khobragade makes clear, there can be no plausible claim that this case was somehow unexpected or an injustice. Indeed, the law is clearly set forth on the State Department website. Further, there have been other public cases in the United States involving other countries, and some involving India, where the mistreatment of domestic workers by diplomats or consular officers was charged criminally, and there have been civil suits as well. In fact, the Indian government itself has been aware of this legal issue, and that its diplomats and consular officers were at risk of violating the law. The question then may be asked: Is it for US prosecutors to look the other way, ignore the law and the civil rights of victims (again, here an Indian national), or is it the responsibility of the diplomats and consular officers and their government to make sure the law is observed?

Third, Ms Khobragade, the Deputy General Consul for Political, Economic, Commercial and Women's Affairs, is alleged to have treated this victim illegally in numerous ways by paying her far below minimum wage, despite her child care responsibilities and many household duties, such that it was not a legal wage. The victim is also alleged to have worked far more than the 40 hours per week she was contracted to work, and which exceeded the maximum hour limit set forth in the visa application. Ms Khobragade, as the Complaint charges, created a second contract that was not to be revealed to the US government, that changed the amount to be paid to far below minimum wage, deleted the required language protecting the victim from other forms of exploitation and abuse, and also deleted language that stated that Ms Khobragade agreed to ‘‘abide by all Federal, state, and local laws in the US’’. As the Complaint states, these are only ‘‘in part’’ the facts, and there are other facts regarding the treatment of the victim—that were not consistent with the law or the representations made by Ms Khobragade—that caused this Office and the State Department, to take legal action.

Fourth, as to Ms Khobragade's arrest by State Department agents, this is a prosecutor's office in charge of prosecution, not the arrest or custody, of the defendant, and therefore those questions may be better referred to other agencies. I will address these issues based on the facts as I understand them. Ms Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded. She was not, as has been incorrectly reported, arrested in front of her children. The agents arrested her in the most discreet way possible, and unlike most defendants, she was not then handcuffed or restrained. In fact, the arresting officers did not even seize her phone as they normally would have. Instead, they offered her the opportunity to make numerous calls to arrange personal matters and contact whomever she needed, including allowing her to arrange for child care. This lasted approximately two hours. Because it was cold outside, the agents let her make those calls from their car and even brought her coffee and offered to get her food. It is true that she was fully searched by a female Deputy Marshal ~ in a private setting ~ when she was brought into the US Marshals' custody, but this is standard practice for every defendant, rich or poor, American or not, in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself. This is in the interests of everyone's safety.

Fifth, as has been reported, the victim's family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim's family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-a-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending.

Finally, this Office's sole motivation in this case, as in all cases, is to uphold the rule of law, protect victims, and hold accountable anyone who breaks the law—no matter what their societal status and no matter how powerful, rich or connected they are.’’

It may also be noted that India's foreign affairs spokesman had given a fitting reply, dated 19-12-2013, to the so-called self-righteous statement by the Manhattan US Attorney Preet Bharara, in regard to this unjust and unwarranted prosecution launched against Devyani in the following terms:
‘‘...there is only one victim in this case. That victim is Devyani Khobragade —a serving Indian Diplomat on mission in the United States.

The action taken against her was not in keeping with the Vienna Convention. There were no courtesies in the treatment that was meted out to the diplomat, under the normal definition of that word in the English language.

The statement includes remarks about equality before the law of both the rich and the poor. Not only is this a rhetorical remark that is not conducive to resolving "inaccuracies", it is also not a feature of the law that is exclusive to the office of the Manhattan US Attorney.

The statement in question acknowledges that legal processes were in place in India. Yet, incredibly, it invites speculation about why it was necessary to evacuate the family of Ms Richards and about the action purportedly being taken against them. The implication of this remarkable admission 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. It needs to be asked what right a foreign government has to "evacuate" Indian citizens from India while cases are pending against them in the Indian legal system.

The statement underlines the compulsion that is felt by the Manhattan US Attorney's office "to make sure that victims, witnesses and their families are safe and secure while cases are pending."

This is precisely why, when there is a prior legal process already underway in India, the Manhattan US Attorney should consider it obligatory to enable justice to take its course in India in the first instance. When the legal process in another friendly and democratic country is interfered with in this manner, it not only amounts to interference but also raises the serious concern of calling into question the very legal system of that country.

This statement is one more attempt at a post facto rationalization for an action that should never have taken place in the first instance.’’

So, India's MEA (Ministry of External Affairs) spokesman has pointed out that the action taken against Devyani was not in keeping with the Vienna Convention. Here it may be noted that though recently full diplomatic status was accorded to Devyani making her a part of India's UN diplomatic mission, actually she was only a Deputy Consul General, some say she was Acting Consul General, at New York, and Consulate staff of a country, though entitled to some sort of diplomatic immunity, are not entitled to and so not accorded full diplomatic immunity or protection. There are two separate Vienna Conventions in this regard—one for regular diplomatic personnel and the other for Consular Relations. If Devyani were to fall under the coverage of Vienna Convention on Diplomatic Relations, she would have had full diplomatic immunity as per Vienna Convention on Diplomatic Relations 1961. Article 29 of the said Convention stipulates that "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity; and Article 32(1) confers a blanket immunity when it says: ‘‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State’’. However, it is The Vienna Convention on Consular Relations 1963 which applies in the instant case and it does not confer such blanket immunity to the consular officer. Even so, it is pertinent to note that Article 40 of this Vienna Convention on Consular Relations 1963 under the sub-heading ‘Protection of consular officers’ says that ‘‘The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity’’. And Article 41 under the subtitle 'Personal inviolability of consular officers' says : ‘‘41(1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority’’. Further, Article 43 under the sub-title ‘Immunity from jurisdiction’ lays down that ‘‘43(1) Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions’’.

Further, even according to the handbook issued by the US State Department titled : ‘Diplomatic and Consular Immunity : Guidance for Law Enforcement and Judicial Authorities’, it is clearly indicated as follows:
‘‘PERSONAL INVIOLABILITY VS. PUBLIC SAFETY : Personal inviolability is enjoyed to some degree by a majority of foreign diplomatic and consular personnel. This inviolability generally precludes handcuffing, arrest, or detention in any form and forbids US authorities from entering the residences, automobiles, or other property of protected persons. Personal inviolability is, however, qualified by the understanding, well established in international practice, that the host country does not give up its right to protect the safety and welfare of its populace and retains the right, in extraordinary circumstances, to prevent the commission of a crime.

Thus, in circumstances where public safety is in imminent danger or it is apparent that a grave crime may otherwise be committed, police authorities may intervene to the extent necessary to halt such activity. This naturally includes the power of the police to defend themselves from personal harm.’’ [page 12, para 2 of the handbook]

It is quite clear that no such extraordinary circumstances were there to compel the US Police authorities to commit such excesses as arresting, handcuffing, cavity-searching and throwing into a jail/police lock-up of the person of Devyani Khobragade. Also, she has at least an arguable case for her that what all she did in recommending for the Visa clearance of the domestic help was in pursuance of her exercise of consular functions and so she will not be amenable to the jurisdiction of US Courts.[2] Then the same point has to be judicially decided and here comes into picture the necessity of an independent and impartial Court to decide this question. Obviously US would argue it has jurisdiction and the acts performed by Devyani Khobragade were not in pursuance of her official consular functions but the Government of India may differ and strongly plead that whatever Devyani Khobragade did was with prior intimation to and approval of the Indian Government and hence it is part of her consular functions and, in any case, falls under the jurisdiction of Indian Government. This intricate question as also the humiliating treatment meted out to a woman diplomat by arrogant police officers of the US have to be gone into closely by such independent and impartial Court which in the present context can be none other than the International Court of Justice, the Hague.

US Government to this day is unrepentant on this shameless atrocity committed by their police officers against Devyani, which amounts to humiliation of entire Indian nation too, and refuses to tender unconditional apology and withdraw the cases against Devyani. For this reason, Prime Minister and Foreign Minister should immediately cause a complaint made to and a case instituted in the International Court of Justice (ICJ), the Hague, and pending its disposal secure an interim order of stay of all criminal proceedings against Devyani Khobrafgade so that she can get some immediate relief and also it would do India proud in the international comity.

1.   As per latest information the US investigators goofed up the matters when what Devyani indicated as her own salary of $4500 pm or so was taken by them as the monthly salary she indicated for her domestic help Sangeeta Richards, and this makes their atrocity all the more arbitrary and mindless.

2. Also it transpires as per latest information on this topic that Devyani was also accredited as Adviser to UN Indian Mission as far back as in August 2012 and that confers her full diplomatic immunity as per Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13 February 1946.

Vol. 46, No. 33, Feb 23 - Mar 1, 2014