In this essay Vasundhara Sirnate situates the uproar over the arrest of former Indian Deputy Consul General in New York, Devyani Khobragade, in a matrix where sections of elite actors work to protect both Dr. Khobragade and their sources of privilege by selective disclosure of facts, including that consular immunity is much more limited than diplomatic immunity.
One of my first memories of living in Palo Alto, California, at the heart of Silicon Valley is that of Mark Zuckerberg, CEO of Facebook, routinely riding a bicycle to work down University Avenue and buying coffee like a regular person, standing in line behind a group of my friends. To an Indian the thought of a billionaire behaving like an aam aadmi (common man) was unique. I was struck by how he did not expect preferential treatment, had no bodyguards and wore trousers with one leg rolled up, as most bicyclists do, for braking purposes. I was also struck by how people responded to him with a “what’s up Mark”, or “hey Mr. Facebook” and how he acknowledged everyone in a non-superior fashion.
The world indeed seemed flat!
Contrast this behaviour with a comment made by Mani Shankar Aiyar, an Indian politician. He once stated, “Democracy in America apparently means the right of the lower orders to be rude to their social superiors.”1
Over the years in the US, I have found that as an Indian person there I have had more chances to interact with Indian political leaders, thinkers and high-ranking bureaucrats, than I would in India. In fact, on one occasion I was so surprised to see a Chief Minister of a South Indian state standing behind me waiting for a table with his family at an Italian restaurant, that I accidentally stepped on his toes. We both apologised to each other.
In India it is hard to meet and greet politicians if one possesses no social or economic standing. The point I want to make is a simple one. Indians venerate political and social power and we do this through various mechanisms – wealth,2 ritualised distance and the performance of obsequiousness. Elsewhere, I have argued that these systems that render Indian society uniquely hierarchical need to disappear if indeed a substantive democracy is to exist.3
The title of this piece is taken in part from C. Wright Mills’ influential work called The Power Elite, where he defines the “elite” as “those political, economic, and military circles, which are an intricate set of overlapping small but dominant groups [that] share decisions having at least national consequences. Insofar as national events are decided, the power elite are those who decide them." For Mills, the members of the power elite recognise each other through mutual “exalted positions”, stick up for each other, marry each other and share a common worldview about several matters. They not only work together but also play together by sending their children to the same prestigious institutions across the world. These attained pedigrees then become a sort of social currency – those who meet the requirements of the power elite without being born into that social class may be inducted into the elite and given a place amongst the privileged.
Recently, Devyani Khobragade’s arrest at the hands of the New York Police Department (NYPD) has caused uproar in India. The facts are rather simple. A functionary of the office of Manhattan District Attorney (DA), Preet Bharara, filed charges against Dr. Khobragade for two main reasons – she underpaid her maid, Sangeeta Richards, less than the US’s stipulated minimum wage for New York city, and, second, she submitted fraudulent visa documents to the US authorities. Now, the problem with Dr. Khobragade’s arrest was, as people have claimed, that as Deputy Consul General she had diplomatic immunity and so should not have been arrested.
To add insult to injury she was badly treated, the argument went, because she was strip-searched, the nation’s pride was assaulted because she was strip-searched, and, how dare America act in this manner with a Dalit woman from a friendly country. American authorities were dubbed racist, sexist, imperialist, etc. The criticisms keep rolling in.
However, apart from the non-mainstream internet media, there have been few voices that have dared to call a spade a spade – that Dr. Khobragade, if one reads the charges against her, allegedly did break the law in the US. Second, almost no one has chosen to focus on the fact that Ms. Richards, was in fact, underpaid below the legal limit.
This piece is meant to offer a couple of correctives and some perspective on the actions of both states.
First, I wish to point out that diplomatic immunity is not the same as consular immunity and that our leading voices on the Khobragade affair may have deliberately misled the Indian public on this matter.
Second, unlike a lot of the other pieces that have focused on losses of bureaucratic privilege with respect to the Devyani Khobragade affair, I posit that this system of bureaucratic privilege is taken from a society that is hierarchical and that most official and organisational structures in India recreate hierarchy as the most common form of organisation. In theory, hierarchies exist everywhere. But in many countries, India included, hierarchies also embody structural violence, where ambitions, career graphs, pay scales, types of work to be done, and everyday treatment are meted out, checked or curbed keeping in mind a person’s place in this hierarchy. People want to rise through hierarchies because it guarantees a better social standing and many yes men and minions that can support chosen lifestyles, which depend on the ordering about of others. Our political representatives, bureaucrats, army officials, judges and police personnel are all part of the perpetuation of these structural inequalities. Once confronted with a more socially flattening society like the US, which is definitely not economically flat, our politicians seem to react with statements like Mr. Aiyar’s.
Third, I argue that the perpetuation of hierarchies itself becomes a key function of the organisations and individuals within them. The hierarchies become self-sustaining, as has been seen in the Khobragade affair, where virtually not a single bureaucrat from India’s diplomatic corps has raised the issue of whether the aggrieved domestic help in question, Ms. Richards, has indeed been severed from a fair wage and that Dr. Khobragade is legally in the wrong as far as the US laws are concerned.
Finally, I will comment on the mistreatment of Dr. Khobragade’s person by the US Marshals Service (USMS).
Diplomatic Versus Consular Immunity
A Deputy Consul General is technically a consular officer. A Deputy Consul General is covered under the Vienna Convention on Consular Relations (1963) and has consular immunity, not diplomatic immunity, unless the consular officer has been specially accredited that allows him/her to enjoy diplomatic immunity. The scope of consular immunity is considerably limited as compared to the scope of diplomatic immunity.
In recent debates in India surrounding the apprehension, handcuffing, strip-searching and detainment of Dr. Khobragade, there has been considerable sleight of hand in India by leading legal experts and members of the diplomatic corps and the media. She is technically a consular officer, who did not enjoy diplomatic immunity but had limited consular immunity, before her transfer to the UN Mission, which now grants her diplomatic immunity.
The charges against Ms. Khobragade as quoted by Manhattan US Attorney, Mr. Bharara:
“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.”
Mr. Bharara’s press release continues, “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.”4
The charges are fairly serious at this point. What is most disconcerting is that no one in India actually disagrees with the charges brought against Ms. Khobragade. In fact, the twist that has been given to a clearly legal matter, which has also been clearly violated by a consular officer, is that of her treatment at the hands of the USMS. Now, granted, the treatment was unnecessary and disproportionate in relation to the alleged offence committed. I also agree that they needn’t have strip-searched her for an alleged civil crime, not a criminal act. It is quite clear that the USMS and the NYPD overplayed their hand rather enthusiastically for reasons that can only be asked to the officers deployed at the time who were handling her case. This type of arbitrary police behaviour is not unknown in the US. As a woman, I am also sure she felt humiliated by this process and I have deep empathy for her treatment.
However, let’s try to take a look at this from the American state’s point of view. Strip-searches are done mechanically and are routine in the US and many European countries at airports, which thousands of people have to go through on a regular basis. A female agent, who always has gloves on, does them for women of any and every ethnicity, although in my experience, people of colour are more likely to be searched more thoroughly. The process never lasts for more than a few minutes and is conducted in privacy and can be likened to a medical examination, so impersonal is it in nature. DA Preet Bharara has already pointed out that strip-searches are done for concealed weapons, bombs, drugs and other materials that could harm the person or the persons they share a cell with. We can argue about the necessity of strip-searching at all for the alleged crime committed by Dr. Khobragade. In my mind, strip-searching was unnecessary keeping in mind her consular status, and as an act of the US state, was a response disproportionate to the alleged legal violation committed. However, to couch the strip-searching as a violation of an Indian woman’s dignity and thereby the Indian nation is a trumped up issue simply because unlike in India, where stripping by the police is an act of humiliation, strip-searching in the US is standard operating procedure for someone in custody.
My purpose here is not to defend the strip-searching practices of any government in the world. I think with the introduction of body scanning technology this wouldn’t be required at all and shouldn’t be required simply because these are acts of domination by the state over the person of an individual. However, I would be lax if I did not point out that the difference in the intent of the act of stripping/strip-searching between the US and India is something that people in India have missed.
What would a non-jingoistic view of the Khobragade affair look like? Let me step back a bit to my first point about the difference between diplomatic and consular immunity. First, Ms. Khobragade has consular immunity, where she is not immune to civil/criminal proceedings against her. In fact Article 41 of the Vienna Convention on Consular Relations explicitly says “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 titled “Immunity from jurisdiction” states:
“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.
2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.”
It is quite clear from the above clauses that Ms. Khobragade’s second contract with her employee, Ms. Richards, was clearly outside of her official role as an Indian state agent and was done personally, without either authority (Indian or American) being aware of it, to the best of our knowledge.
The question to ask then is why is there such outrage in India about this? A second question is, what is the outrage about?
Leading diplomats, politicians and media personnel have deliberately and wilfully led the Indian public into a state of uber-jingoism masquerading as patriotism. This also explains why there has been a mad scramble to send Ms. Khobragade off to the UN, to retroactively introduce diplomatic immunity for her through a back channel.
The only thing that Indians can disagree about here is whether the alleged crimes committed by Devyani Khobragade are “grave”. Apparently, as far as the US State Dept. is concerned, the flouting of minimum wage legislation is indeed a grave matter. Most Indians, who have been supporting Ms. Khobragade do not seem to think so. In a classic move reminiscent of a pot calling the kettle black, media personnel like Arnab Goswami supported by a slew of well-spoken diplomats, called this a case of a violation of “diplomatic” immunity and have taken the view that an almost mechanical and routine strip-search of a woman is more jarring to our international prestige than the fact that this consular officer flouted the law of a friendly state, wilfully underpaid a national of her own state, allegedly used the Indian state’s machinery to put pressure on the family of her domestic help and actively forged documents designed to hoodwink a foreign government. Either way, as I am sure many would agree, it is hard not to chuckle when India self-righteously talks about human rights, equal pay for equal work and the dignity of women.
How the US has assaulted the privileges of the Indian ruling class
In many ways, what the US has done is to show that no one is above the law. It has repeatedly done this through arrests of prominent celebrities, children of politicians, and even international figures like Dominic Strauss Kahn, whose flight was detained while the NYPD marched in to arrest him for the alleged rape of a hotel employee in Manhattan.
I must point out however, that there is a double standard. The US is also quick to protect one’s own (like Raymond Davies), irrespective of the crime committed5. Actually, most countries do, as is evident in how even India is also reacting to this case.
The problem with the arrest of a consular officer is that it sets a precedent. It sends the signal that in the US no one is above the law and it points out clearly that diplomatic and consular immunity are both limited and that the power of the US state over the elites of foreign countries cannot easily be trumped. However, most commentators have also missed the fact that the US has done a remarkably good job of keeping its elite and their spawn well under the law. Yes, there are cases where affluent people get better deals legally, as is the case almost everywhere, but comparing the US’s track record of disciplining its elites with those of other elites of the global south, does show that the American state can strong-arm its own wealthy and privileged people.
The agents of this disciplining are people like Manhattan DA, Preet Bharara. Mr. Bharara is also the attorney responsible for the charging and arraignment of several highly prominent US government officials and representatives, that landed him on the cover of Time magazine in February 2012, with the accompanying title “This man is busting Wall Street”, for his regular busts on high profile speculators who thrived on insider trading. In his list on conquests, we find Senator Vincent Leibell, Senator Hiram Monserrate, NYC Councilman Larry Seabrook, and Yonkers City Councilwoman Sandy Annabi. He also helped convict NYPD policeman Gilberto Valle, who was plotting to rape, kill and eat women.6 He also exposed corruption charges around New York State Senator Malcolm Smith.
This is a man, as Shekhar Gupta notes in the Indian Express, that India should import as its first lokpal.7
Doubtless, Preet Bharara, with his dogged tracking of criminals and corrupt public servants, is someone who would have checked his facts before taking on the Indian diplomatic corp. However, the threat that people like Mr. Bharara present is shared by elites and ruling classes in both India and America. People like Mr. Bharara are people who are not swayed by power or the rituals of power that guarantee its perpetuation. They are backed by a scary single-mindedness of purpose, which in an anti-colonial movement, for instance, would be worthy of praise. In India, Mr. Bharara and Indian-commentators like him have been branded lackeys of white people, wannabe white people, and by BJP ideologue, Sheshadri Chari, as Indians trying to be American to impress their white masters.
In India people like Mr. Bharara are rare and even if they did exist, as they undoubtedly occasionally have, the political system has interfered in the functioning of local law enforcement agencies to ensure that nothing comes of corruption, rape, or criminal charges against someone from the power elite. The number of people in the Indian parliament with cases pending against them is rather alarming. If we begin to view Indian society where power and privilege is concentrated in a few hands, repeatedly shown in surveys that show how little people trust their representatives, we can begin to make more sense of the outrage surrounding Dr. Khobragade.
Let’s be realistic. The backlash about this is about protecting collective privileges. There is no other way to explain why leading members of our diplomatic core would repeatedly use the term diplomatic immunity when they are well aware she was entitled to limited consular immunity. There is no other way to explain why they would willingly overlook her violation of very well-known American laws and then deliberately shift the focus of the debate on her body and its alleged violation at the hands of the US state.
In point of fact, some such bureaucrats and diplomats have once again blamed the Indian government for not paying its overseas officials enough. If Dr. Khobragade, earned less than 5,000 USD per month, how could she possibly pay her maid 4,500 USD, goes the counterfactual argument. We are then made to feel rather sorry for a well-heeled, middle-class woman who is struggling just like anyone else to pay her bills and sustain her family. Almost everyone in the media today is unapologetic about the fact that Ms. Richards’ husband and family were allegedly threatened by Dr. Khobragade’s father, so much so that, they were flown out before the latter’s arrest. This itself has been seen as evidence of a conspiracy, when a cursory look at the immigration laws in the US will tell us that it is not unheard of for the US to fast track the evacuation of an alien’s family, under getting political asylum, if they are innocent people being threatened by their home country’s governments.
In many ways, this issue has snowballed into a diplomatic tussle with irresponsible commentators asking for US nationals and diplomats to be similarly treated. Yashwant Sinha even commented that same sex couples should be arrested under Indian law. Almost no one in India is arguing for the US Federal law to take its course, however.
The silence over minimum wages
Ms. Richards, who upon going to the US, may have learned much more about her rights. The public is still unaware about the cause of her leaving employment without warning, but from preliminary reports, it does not appear to be a case of physical abuse or any such thing. She was over worked, say the charges against Dr. Khobragade, and didn’t get leave as often as she may have wanted it. For most Indians, this is not alarming. I have now heard people argue that it was not as if Ms. Richards was being beaten up and locked up somewhere without food.
True, she wasn't. And I can also see how this would appear to be fair treatment for most Indians, given that in recent months we have heard of cases of maids being sexually assaulted, beaten to death, beaten and locked up without food in bathrooms, by respected denizens of middle class India. As we routinely convert dollars in rupees, the fact that she earned about 25,000 INR per month seems like a king’s ransom. So indeed, the questions go, what is Ms. Richards complaining about?
In response to this, I looked at local wages in India, where for most States minimum wage per day for five hours and not per hour (as in the US), is less than $2.8 Many middle class Indians are not even aware of their State’s minimum wage legislations. Honestly, even the highest minimum wage rule in any Indian State is insufficient to provide a decent quality of life for a month. It is no surprise then that domestic workers are often also deeply indebted to their employers through loans, mostly given interest free.
Having stated that, the employment of lower classes in the households of middle class Indians has offered a variety of conditions in which domestic helpers find themselves. In the worst case there is abuse and in the best case, the employer becomes a benefactor for successive generations of the house help’s family.
As Kartikeya Date, an architecture student from UC Berkeley concerned about labour rights in both America and India has commented, “A simple test for a ‘decent wage’ is to ask if you can imagine living your life on that wage. If a maid makes Rs. 1,500 a month working 2 hours a day, 7 days a week, with no benefits, no weekends, and no formal medical care, then that is not a decent wage. It comes to Rs. 4,285 per month for a 40-hour workweek. The world's largest middle class is also going to employ the world's largest underclass of underpaid, overworked domestic labour (drivers, cooks, maids etc.). The fact of the matter is, that a middle class income does not allow us to hire someone just to help us get through our basic, day-to-day lives, without exploiting other people. We are able to exploit them because our exploitation is slightly less bad and even relatively emancipatory compared to what some of these people will suffer in their own homes.”
It is this pyramidal exploitation, which is patterned in the economic interaction between Dr. Khobragade and Ms. Richards. The diplomat doesn't get a decent wage and this enables/forces her to give her house help less than decent wage. The problem has arisen when Ms. Richards realised that she ought to be earning more and that she would not benefit as much by staying on in India with an entire family in service to diplomats.
Privilege and the Power Elite
In many ways, Ms. Richards’ rebellion against being in a perpetual position of gratitude to the middle classes for employing them is a wake-up call to middle class employers. And this, in my mind, is the crux of the public problem with her – that she seems thankless to Dr. Khobragade for her pay. Any way we look at it, none of this can provide an excuse for Dr. Khobragade’s actions. Ms. Richards acted to protect herself, as she has a right to, and reported a felony committed against the US state by an Indian citizen. The stature and personality of the person being charged has no bearing on her actions under the law.
The public expectation of better treatment may have some value given that the strip-search was unnecessary. However, we have to keep in mind that in the US this is standard procedure. We don't have to like it, but we have to deal with it! People of all ethnicities and all levels of class go through the prison system in the US and are treated in exactly the same way – from the Paris Hiltons to Bharara’s Wall Street honchos. Dr. Khobragade has herself said that she had “broken down” several times during the arrest, which may have caused the arresting officials to see her as a suicide risk, hence precipitating the search to divest her of any concealed item with which she could harm herself or others. We can broadly agree that we don’t like strip-searching, as a practice, and that it should be phased out with the introduction of body-scanning technology.
Essentially then, the Khobragade affair is not only at the intersection of international diplomacy, but is also rooted in a fundamental tussle between the middle class in India and their need to maintain privilege at the cost of keeping labour cheap either at home or overseas.
1. See Mani Shankar Aiyar’s “American Diary in Outlook, July 30, 2012. This piece can be found online at http://www.outlookindia.com/article.aspx?281668.
2. The veneration of political power through wealth has been articulated by Amit Ahuja, Jasjeet Sekhon and Pradeep Chhibber in “Speaking Cash to Power”, Outlook, March 25, 2012. The article can be found online at http://www.outlookindia.com/article.aspx?264856
3. See “The Politics of Exoneration”, available online at http://www.thehinducentre.com/the-arena/article5363909.ece
4. See full text at http://www.justice.gov/usao/nys/pressreleases/December13/KhobragadeStatement.php.
5. See Pawan Verma’s “Stop Running on Faith”, available online at http://www.asianage.com/columnists/stop-running-faith-653
8. For a look at local minimum wage rates consult http://m.paycheck.in/main/salary/minimumwages