Wednesday, 19 February 2020

Devil’s Advocate

Updated: January 18, 2014 10:42 am

It is time to stop the economic downturn and make India MFN for investors so as to look into the glaring eyes of Uncle Sam

Dust seems to be settling down on the Devyani Khobragade ,39, Deputy Consul General in New York, on the almost a week-long fiery spat between Delhi, livid at her humiliation by the US Marshalls, and Washington, equally incensed at the unprecedented hard and aggressive reaction to her arrest. With now the additional threat of a possibility of contempt of court case against some members of the US Embassy in India, the US Prosecutor Preet Bharara might see virtue in closing the case against Devyani. He has reportedly been hunting for Indian scalps to exorcise his Indian-origin. What is better than an Indian envoy to hunt and incarcerate.

So far, it is understood that the US State Department would not object to her being posted by India at its Permanent Mission (PMI). Once there her diplomatic immunity cannot be questioned. But the condition put by the US State Department is that the case against her for false information for a passport and for paying salary much less than the standard set by the US Administration would not be dropped. But the first question is whether her passport would be returned to her to discharge her duties, then either she is brought back to India and Delhi tries to get the case against her to be dropped or if the case is not dropped she will have to be taken out of the US on some ground. But this means that she can never go to the US and it could declare her an absconder. In the meanwhile, all kinds of leaks, some subtle and some not so subtle, have surfaced to show up Devyani as a manipulator, go-getter and owning properties here beyond her means. It all means she is not exactly squeaky clean.

A General Indicts

Devyani has a habit of giving false certificates and the whole country is backing her or is this all stage managed for the government to show that it has a spine? Americans, however, have broken the spine, wrote Lt-Gen Harwant Singh (Retd). Indicting her further he said, “There are certain associations and cozy clubs in India, where members unite, when one of them is threatened with charges of wrong doing or when there is a common interest involved… .

“The recent case where an Indian diplomat (Devyani) in the United States was arrested, searched and locked-up, resulted in immature over reaction from the Indian government. The entire Foreign Service has, in one voice, condemned this action of the US State Department.”

As per the report of US Attorney: “Ms Devyani Khobragade (hereafter DK) was extended courtesy well beyond what other defendants are accorded. She was arrested in a discreet manner and not then handcuffed, nor her phone seized and she was allowed to make numerous phone calls, and was searched by a female officer in a private setting as is the practice in all such cases in the US.

“… . She is charged for willfully and knowingly falsify, conceal and cover up by ‘trick scheme and device’ material facts and made materially false, fictitious and fraudulent statement.

“These are serious charges and as per the US laws fall outside the normal diplomatic functioning. Unlike India, no one is above the law in the United States of America. “

Her father Uttam Khobragade’s, a 1984 batch IAS officer, name figured in the Adarsh Housing Society (AHS) scam. “It is alleged that both he and Devyani had got a flat each in this society as quid pro quo. She already has a house in Mumbai and the same was allotted under the state government’s 10 per cent reserve quota. Besides this, she has 10 other properties, inherited from father or purchased!”

The General thus feels that Devyani is an unsavoury character. “India’s response to this episode has been most inappropriate, immature, cozy club syndrome and undiplomatic… . India is about to retaliate and take away the rights and privileges of US diplomats. All this and what for?

“The arrest of a person who is consular appointment but who is charged with some criminal activities and none of those activities pertain to her job as a diplomat for India in the US. They concern the payment and treatment of her domestic staff, another Indian woman.”

The facts

But the fact is that the maid went on a diplomatic passport (with which she disappeared). She was not Devyani’s personal servant. Diplomats are allowed to take a help so that they have enough time to discharge their official duties and not for luxurious living. We must remember Devyani has two small children. However, the General has words of sympathy for the help, Sangeeta Richard. Her plight has been ignored, he says. “Which is natural because one is IFS and another merely a domestic servant. What rights could a domestic have in India, let alone in New York? She should have been grateful that she got this fantastic opportunity to go and serve in Khobragade’s household looking after her children at Rs 30,000 per month with boarding and lodging.” How much do accommodation, medical care and food cost in New York? Has it been calculated? Calculate and then see how much it comes to along with Rs 30,000.

As the US legal documents in this case show, Rs 30,000 per month is just $3.31 per hour. As she worked only 40 hours a week, she was paid Rs 30.000. In the visa application, her salary was given not as $573.07 per month (which the Rs 30,000 would have amounted to in the days of the strong rupee) but $4,500—which is approximately the salary of Devyani. The lawyer of Devyani has already filed an objection that most possibly she filled her salary instead of the maid. How could she pay Sangetta $4500 when Devyani was getting about the same amount?

But the General added, “India’s response to this episode has been most inappropriate, immature, cozy club syndrome and undiplomatic. India is about to retaliate and take away the rights and privileges of US diplomats.

“All this and what for? The arrest of a person, who is consular appointment but who is charged with some criminal activities. None of those activities pertain to her job as a diplomat for India in the US. They concern the payment and treatment of her domestic staff, another Indian woman.”

Sangeeta has, as said earlier, a diplomatic passport. She is not just ‘another Indian woman’, she went there on a diplomatic passport, which entails responsibilities on her as well as the Indian government.

Why US Embassy flew out Richards

18-01-2014Now what about the US flying out Sangeta’s husband and her children on Air-India’s Dreamliner to New York just three days before Devyani’s arrest? They were flown on T-visa (see Box) by members of the American Embassy despite court case pending. India is, after downgrading the privileges of the US diplomats, taking the right step to raise issues with the United States about the “evacuation” of the family of nanny Sangeeta Richard.

It is reported that the Indians are seized of the fact that some US embassy officials may have misused diplomatic privileges in booking tickets for the husband and children of Richard, and that the move could amount to contempt of court as the Richard family was facing a court case when they left India. The tickets for Philip Richard and the two children were booked in an Air India flight on December 10 (with an open return ticket valid up to March 3, 2014). The tickets worth Rs 1,00,895 were exempt from service tax of 4.50 per cent as per the norms followed in the case of diplomatic missions. This is being seen as misuse of diplomatic privilege, as tax exemption is offered to an embassy for its use and not for whisking Indian citizens away.


US LAWS TO PROTECT RUNAWAY DOMESTIC HELP


  1. Domestic Workers Bill of Rights (2001)

After the enactment of this Bill, there have been a plethora of lawsuits filed by domestic workers. “Devyani Khobragade may have fallen victim to a common menace—maids desperately seeking green cards. It is no secret that many Indians go to the US and try to stay on by hook or by crook.

“However, the asylum visa is not available to everybody. This is where the TVPA has opened the doors to people like Sangeeta Richard, who can obtain official passports as domestic assistants of diplomats, get an A3 visa from the US Embassy, reach US shores, work there for some months, abscond and then obtain a T Visa.

Says Dayal: “The visa fraud allegedly committed by Devyani Khobragade was in fact committed by Sangeeta Richard as she misrepresented her terms of employment to the US Embassy during her interview with the consular officer to get an A3 domestic worker visa, which would later enable her to leapfrog to a trafficking T Visa.”

Victims of Trafficking and Violence Protection Act (TVPA), 2010

In terms of this Act, domestic assistants who abscond can now obtain a trafficking visa by alleging that they were subjected to involuntary servitude and not paid wages as per US laws. They can get a three-year T Visa, which gets converted to full resident status.

Naturally, such persons allege that they would face extreme hardship if they were deported back, as Sangeeta Richard has done. In return, they have to cooperate with the law enforcement agencies against the alleged traffickers—their former employers.


Did Embassy interfere in judicial system?

cover-story6Then is the issue of the US interference in the judicial system. The MEA has made a public statement questioning the foreign government has to “evacuate” Indian citizens from India “while cases are pending against them in the Indian legal system”. The thinking is growing that this can amount to contempt of court.“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,” External Affairs Ministry said on December 19. The US Embassy spokesperson Lee McManis would not comment on the issue beyond referring to the state department.

“We are aware of the existence of allegations that the family was intimidated in India. Obviously, I can’t confirm those. But in general, we take those kinds of allegations very seriously,” an official said. The Richards are likely to be treated as part of a witness protection programme.

And now on the alleged misdeeds of Devyani: If she has acquired or inherited properties in India, suitable law provisions are available to prosecute her. But if she, an envoy, is troubled in the US, the Indian government has the responsibility to defend her. And it is no overreaction if India retaliates and takes away the special privileges accorded to them in India. In fact, in the first place, these privileges should not have been given. But this UPA government has been prostrating itself before Uncle Sam for its own reasons. Now that Devyani has got accreditation from the United Nations, the State Department should assent to it. If it does not, then it would be a very serious matter.

In any case, it is time to reflect on the fact that could the US dare use the same felon-like treatment to any diplomat of Brazil, China or even Pakistan? In fact, Pakistan has shown how to fix the US although it being dependent on Washington for dollars and arms. As one commentator said, India and Pakistan should hold bi-yearly meetings like the meet of Army top brass to deliberate on how to deal diplomatically with the US.

A former envoy raises curtain

Prabhu Dayal, recently retired India’s Consul General in New York, although he will be accused of the ‘cozy club’ of Indian diplomats’ club, has given his views on Sangeeta Richards, the runaway domestic help of Devyani, and the present cause of her troubles. “Devyani worked as my deputy towards the end of my term. Moreover, I also faced a lawsuit about which some misinformed comments continue to be made in sections of the media.

“I met (Devyani’s domestic help) Sangeeta Richard several times at the consulate. She not only seemed happy and cheerful, but also struck me as being quite well-groomed and educated—not the usual type of domestic worker.

“Given the recent history of problems faced by the consulate, I advised Devyani to be careful. I also told her that there were plenty of people around who could misguide Sangeeta and create trouble.”

Himself in trouble by his domestic help, Dayal—the Foreign Office paid $75,000 for a settlement with her—said in Mail Today: “Cases of desertion by domestic assistants are not new. For decades, domestic assistants accompanying our diplomats to the US have gone missing, preferring to stay there illegally and pursue their dollar dreams. Countless security guards, including many from the police and paramilitary services, have also done likewise.”

Dayal indicts the US authorities of donning hardly anything to nab them, although they are invariably informed whenever a employee has done the disappearing trick. It is well known that the US has a very large number of illegal, undocumented aliens, who provide cheap labour. Two laws have been enacted by the US after which there have been plethora of lawsuits by domestic help (see Box).

Sangeeta Richards has used these laws to pursue her desire to get a Green Card in the US and allegedly sued Devyani in the hope of a settlement of a hefty amount as in the case of Dayal’s maid. The US Embassy in India allegedly used the Victims of Trafficking and Violence Protection Act (TVPA), 2010, to whisk away Sangeeta’s husband and children from India. It also paid for the tickets of those flown away.

Gautam Kaul, DG, ITBP (retd), said: “They were taken away in a manner like evacuating them from an enemy territory.” Why such favours for the Richard family? Could they be valuable ‘assets’? It is alleged that Richard was living at the Aurangzeb Road in New Delhi at the residence of a US Political Consular. Their flight was just three days before the arrest of Devyani. What a coincidence! The whole sordid episode reads like a story of conspiracy as alleged by the Foreign Minister Salman Khurshid.

Why US dares India, but Pak makes it cringe, what solution?

As one commentator said India and Pakistan should hold bi-yearly meetings like the meet of DGMOs to deliberate on how to deal diplomatically with the US. But the jokes apart, it is time for India to arrest the global downturn in economy because of which the US has stigmatised India for its poverty. India has to match the West at its own game. It must focus on economy and make India most favoured destination for investors once again. This is when it would be possible to stop the McCarthyism in the US against India. The country would be able to curb US Prosecutor Preet Bharara, who by hunting for Indian scalps is trying to exorcise his Indian origin and form his over-show of loyalty to America.

One would like to see the US reaction if one or two defence deals are dropped. It is taboo to mention Narendra Modi but he has shown how he has made the West forget 2002 and pursue him for investments in Gujarat. If he comes in power, one would like to see how the Bhararas and the US diplomats conduct themselves. He does not have sons or daughters working in the US!

 

 

By Vijay Dutt

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