The Us-India Spat Over Devyani
It could cost heavy if for no real reason relations between the most powerful country in the world and the largest democracy in the world worsen
It was such an indecent, infuriating and insulting act by the US that almost all Indian middle-class families, who have some member or friends in the US, and for whom America is the most—‘loved’ destination, felt outraged. In fact, every Indian, even many in the countryside where the community TV informs of all the happenings, felt anger at the US’ most barbaric act and anguish for the Indian diplomat Devyani Khobragade (39), Deputy Counsel-General.
She was arrested by the US State Department officials on the street while she was dropping her child at her school, manacled and then at the prison strip searched, subjected to repeated cavity searches, only done in case of drug dealers and addicts, made every Indian furious at what most feel has been an act of arrogance and total disregard of the friendly ties between the US and India.
How could the US, supposedly a liberal and civilised country, behave in such a barbaric and uncivilised manner? Every country has its own set of procedures and Americans must have followed its own. But, what about the immunity assured under the Vienna Convention? Does the US feel it is above such restrictions or the State Department considers its rules can over-ride international treaties and agreements?
Pawan Varma, former Indian Ambassador, said that the arrest and humiliating behaviour with Devyani was in utter disregard of the Article 29 of the Vienna Convention. It says, “ Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32. Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties.”
But the US State Department disregarded this Article. Varma added that the US has its own interpretation of the Article 29. Kanwal Sibal, former Foreign Secretary, said the same thing: “The Vienna Convention can be interpreted the way a nation wants to. The US interpretation has been rather restrictive. …they unilaterally decided that the woman diplomat was not covered by it.”
But when it comes to their own, the US cries loudly that the Vienna Convention is being flouted. Former Ambassador Raji Dogra reminded of the case of the CIA contractor based in Pakistan and attached to the US Consulate in Lahore. He murdered two Pakistanis in a shoot-out on a Lahore street. The Americans invoked Article 29, unabashedly for an employee of a Contractor. Then the US fully respected the Vienna Convention. They also flouted Article 41of the Vienna Convention, which lays down that Consular officials are not liable to arrest except in cases of grave crime. She was charged with US Visa fraud on the basis of information provided by her maid while being interviewed for her visa. Couldn’t the State Department call Devyani and warn about the alleged false statement? It was no big crime. They could have asked Delhi to recall Devyani or declared her a persona-non-grata.
But the US authorities have been acting arbitrarily and insulting Indians. Until now, Delhi never took any strong measure. “The US considered uptill now India to be a weak country,” said former Foreign Minister K Natwar Singh. Whe asked whether he was satisfied with steps taken by Delhi in retaliation, Singh said he was. No more escalation of row should be done. “The steps taken are strong and must have given message to Washington to be careful.”
Devyani was also accused of paying less salary—the maid was getting Rs 30,000, free medical services, insurance, lodging and food. Devyani, by today’s foreign exchange rates, would be receiving Rs 230,000. Did the State Department want her to pay American wages, which if she did, she would not have been left for school fee and living in New York.
Sibal also clarified that the State Department crying that Devyani discriminated and paid her maid much less, was nothing but chicanery. They know what salary would be paid to maid of a diplomat because all details about her are affixed on her passport, which then are joined with the Diplomat’s passport. So when arresting Devyani, Americans did not bother to check what details of the maid were given in her passport. They must have, but they chose not to remember. As said the US has one set of rules for its own and another for diplomats of other countries. Worst behaviour is reserved for weak nations. All concur on this—former Minister K Natwar Singh, former Foreign Secretary Kapil Sibal and former Ambassadors Rajiv Dogra and Pawan Varma—that India because of its past tolerant attitude has been considered a very weak country.
But the inhuman conduct with Devyani, a woman, was too much. Apart from Mayawati, who planned to take out a massive protest march in favour of Devyani, a Dalit, the people’s and the media’s pressure left no alternative to the Indian government but to take strong retaliatory measures. Otherwise also, former President Abul Kalam, George Fernandes, when he was a minister, Amir Khan and Shah Rukh Khan have several times been detained and searched. No action was ever taken except a formal protest.
But this time following Devyani being strip-searched and arrested, her email to her colleagues jolted the government to take action.
I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, hold up with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity,” Devyani, the 1999-batch IFS officer, wrote in her e-mail. She thanked her colleagues for their support and said that during her confinement, she “got the strength to regain composure and remain dignified thinking that I must represent all my colleagues and my country with confidence and pride”.
The strong series of measures taken has jolted the perception of friendly ties between New Delhi and Washington. US consulate staff and their families have been asked to return their diplomatic ID cards; details of Indians employed, along with their bank accounts and PAN numbers, sought; names and salaries of teachers employed at US embassy schools sought; import duty waivers, including permits to import liquor, withdrawn; and security barricades outside the US Embassy in Delhi removed.
India decided that American staff at consulates would be treated at par with which Indian diplomats are treated in consulates in the US. All personnel posted in consulates and their families have been asked to turn in their diplomatic ID cards immediately.The Ministry making a distinction between consulate and embassy staff—the US has four consulates in Mumbai, Kolkata, Chennai and Hyderabad—instructed that details of all Indians employed at the consulates have to be shared. The US staff at the consulates have been asked to provide details of the employment of their spouses or dependents along with tax details, bank account numbers and salary details.
External Affairs Minister Salman Khurshid said that a process has been “put in motion” to deal with the issue effectively. “We have put in motion what we believe would be an effective way of addressing the issue…we have expressed our deep distress and sense of disquiet, that has been very very strongly felt, in the strongest words possible.” Most, including Natwar Singh, Sibal and Pawan Varma, said they were satisfied with the measures taken but Varma added that these measures must be sustained. A senior serving diplomat who was posted in Washington said that the measures should be kept effective until the US relents.
Varma said that through backdoor negotiations matter must be resolved early. Otherwise if relations between world’s most powerful country and India, the largest democracy in the world, sour it would not be a good development for the world. Former Ambassador TP Srinivasan also said in rediff.com: “Whatever be the eventual solution, grievous damage has been done to her personally and to the relations between the two countries. He said the arrest and handcuffing of Devyani was undoubtedly a national humiliation for which the US should be held responsible. It is immaterial whether she was guilty of violating laws, whether she was entitled to diplomatic immunity or whether India-US relations are at a low ebb.
As long as she was not guilty of a criminal act and not a threat to law and order, there was no justification for the high-handed behaviour of the US Attorney for the Southern District of New York.There was nothing in the alleged crime which necessitated her detention for a whole day in a cell like an ordinary criminal. The case, as it has emerged from press reports, is related to a technical irregularity, nothing more.
It is an established convention that Indian diplomats are allowed to take one or more India-based domestic assistants (IDBAs) at government expense precisely because domestic help is essential to let the diplomats perform their representational duties and because hiring such services in Western countries is prohibitively expensive. Some years ago, the US government began insisting that IDBAs should have contracts, indicating their wages, which should not be below the minimum wages in the country, and hours of work, etc for facilitating the issue of the necessary A3 visas. Everyone knew that no Indian diplomat, or for that matter, any other diplomat would be able to pay nearly $10 per hour. The diplomats themselves are not paid that much!
This is why, as Sibal said, contracts are produced for visa purposes and they are given accommodation, food, clothes, medicine etc and wages, which are reasonable by Indian standards. Many such domestic help lured by Indian employers, restaurants and others in the early days of their stay, simply deserted the diplomats and made a living. A very few took recourse to the law either to hurt the diplomats, who may not have treated them well or to seek asylum under the US laws on human rights, human trafficking. The maid of former Consulate General Prabhu Dayal took recourse to such blackmailing.
Sreenivasan said the US authorities, which are aware of the existence of such a technical irregularity in several cases, should have normally alerted the consulate and sought a solution. Even in more serious cases, the two countries have withdrawn their diplomats by mutual agreement to avoid the operation of the law. The most unlikely theory is that something went terribly wrong in India-US relations recently and the US decided to teach India a lesson. But none of these would ever justify the public humiliation of the acting head of the consulate of a friendly country. Former Ambassador Rajiv Dogra said that the US behaviour possibly stems from its desire to pressurise India on Afghanistan and Iran.
Hopefully, a solution could be found quickly but along with this something should be done to rid diplomats of the risk of facing ignominy caused by unscrupulous India Based Domestic Assistants. In the latest move to resolve the issue without the ego of either countries being affected, the Indian government moved Devyani Khobragade to Permanent Mission of India (PMI), where no doubt would be left of her having full diplomatic immunity for her remaining stay in the United States, with immediate effect.
The complication is that she would have to apply for a fresh diplomatic card through the UN Secretariat, which would ultimately go for clearance to the US State Department. Here is where the Indians are hoping that Washington will show some positive intent by issuing the card and, in doing so, extend full immunity to her.
If this process were to go through, sources said, it would ensure that Khobragade would not be subjected to any arrest or custodial interrogation in the future. The order, sources said, was issued on December 17. By transferring Khobragade to India’s UN mission, the government is aiming to get her full diplomatic immunity as the Permanent Mission of India is covered by the Vienna Convention on Diplomatic Relations besides other UN rules.
India has opened a way for satisfactory solution to end the furious spat between the two countries. Hopefully, saner elements in the US Administration would let her join the PMI. Otherwise, India could possibly recall her.
By Vijay Dutt