Just about now U.S. Attorney Preet Bharara must have a sinking feeling that in ordering the the arrest of the Indian diplomat Devyani Khobragade he also cleared the arrest the whole of India. National affront, cultural slight, diplomatic insult, prosecutorial overreach and bilateral brittleness, everything seems to be flowing into the arrest controversy.
India has been relentless in its repudiation of Khobragade’s arrest with its Foreign Minister Salman Khursheed declaring in parliament that it his responsibility to bring her back to India and restore her dignity. All political parties united in their condemnation of the arrest. The extent of the disaffection in the aftermath of the arrest must have taken the U.S. government by surprise. Although publicly the State Department appeared to be standing its ground, it would be surprising if officials are not privately concerned at the sheer sweep of the Indian response. Even the normally reticent Prime Minister Manmohan Singh has described the arrest as “deplorable.”
Although Bharara has had a dream run as New York’s prosecutor, it appears that in Khobragade’s arrest he might have seriously underestimated its larger bilateral implications. In keeping with my weakness to look at the shallower aspects of any crisis, I was thinking about how he might be received at the Indian consulate in New York next time he goes to get an Indian visa. Just a thought worth considering.
Reading the details of the charges against the diplomat I have some basic contention about the figure of remuneration because that is at the heart of the matter. The charges say that Khobragade’s official employment contract that her domestic helper, identified as Sangita Richard elsewhere, cited to get her A-3 visa claimed that she would be paid prevailing or minimum wage, whichever is greater, “resulting in an hourly salary of $9.75.” The charges also speak of 40 hours of weekly work that Richard would have to put in.
A simple calculation, which can be done totally free on Google, tells me that at that rate she would have earned $1560 a month. This is such an easy multiplication that even an Indian diplomat could have done it. So the idea that Khobragade, even if she personally supervised Richard’s application (though A-3 requires that the prospective employee do the paperwork and not the employer), would have signed off on a salary of $4500 sounds pretty ludicrous. That is where the issue of a second employment contract comes in. It is the U.S. government’s case that Khobragade and Richard had another contract, whose terms were the real operative ones, which paid her way less than the minimum wage requirement in America. If indeed so, that is surely problematic for the diplomat.
India has reassigned Khobragade to the country’s Permanent Mission at the United Nations in order to give her full diplomatic immunity. The logic seems to be that now that she is out on bail and soon to be immune it might be easier to deal with the other fallout of the case. I am not sure if the diplomatic immunity makes any material difference to the case ex post facto. Perhaps it does in terms of what happens to her now. As pointed out by the Indian Express newspaper, Khobragade still needs a new diplomatic card that has to be cleared by the U.S. State Department. It remains to be seen whether one department of the U.S. government would take an action that might undermine the case of another department. Of course, this is not unheard of in the annals of US government. Whether the State Department can lean on the Department of Justice, under whose purview the case falls, and have the charges either fully dropped or altered significantly is a matter of speculation at this stage.
Of course, the State Department has to factor in the larger question of how this might damage bilateral relations with an important ally. New Delhi has made its displeasure so emphatically clear that there is zero room for Washington to misunderstand. The State Department has to do a rational cost benefit analysis of prosecuting a wage dispute of a relatively junior diplomat against its potentially serious fallout on a crucial strategic relationship. It may seem like a no-brainer but those are the most difficult challenges to resolve. With India having staked its national and cultural pride on Khobragade, the U.S. government has to find an honorable exit.
There is already a clamor in certain sections of India’s political opinion that one way to retaliate is to arrest the gay partner of at least one U.S. diplomat who was issued a visa with all the privileges of a spouse. Now that India’s Supreme Court has reinstated section 377 of the Indian Penal Code that criminalizes homosexuality, this political opinion argues a case can be made, however bloody-minded, that India too has its laws to follow like America does. The suggestion has come from Yahswant Sinha, a former Foreign Minister and a senior member of the main opposition Bharatiya Janata Party.
My point is that Bharara is unlikely to have seen how quickly and how much the arrest would lapse into something much bigger than his office. He can always take a strictly legal and prosecutorial stand on the matter but it seems to me that that time may well be over.