The Annals of the Indian Ostrich (Part 2): Devyani Khobragade

[This post is the second in a three-part series entitled “The Annals of the Indian Ostrich.”]

Part 2: The Politics of Privilege

Nearly the same day that the Indian Supreme Court ruled that the individual liberties of Indians must take a backseat to the black letter of the law (Part One of this series), an Indian consular employee in New York was arrested for violating U.S. law for committing visa fraud and providing false statements in order to gain entry for her Indian domestic servant.  Given that the Indian Supreme Court compelled its own citizens on the very same day to abide by an overturned British law from 1861, I assumed that the Indian government naturally would expect its citizens living in the United States to adhere to a valid American law from 2013.

I was mistaken.


Within twenty-four hours, much to the shock of Indian homosexuals, it was readily apparent in India that some Indians were above the law after all.  After Devyani Khobragade was handcuffed, booked, processed, fingerprinted, swabbed, and strip searched in New York (all standard protocol for anyone entering an American jail), India revolted and called her treatment “despicable” and “barbaric.”  To punctuate their protest, India burned images of Obama (I still don”t get the connection) and banned American diplomats in India from importing liquor, withdrew their airport passes, required American consular officials to tender identification cards that guarantee diplomatic immunity, and vowed to investigate the salaries of all Indian employees of the American embassy.  If that was not enough, senior government officials refused to meet a visiting U.S. congressional delegation, and security barriers were removed from outside the American embassy in New Delhi.  Affront enough, I thought?

Not quite. 

Yashwant Sinha, a BJP leader and former finance minister, delivered the coup-de-grace by recommending that the Indian government arrest the same-sex partners of American diplomats for violating section 377.  “So, following the rule book,” he said, “since same-sex relationships are illegal in this country, those diplomats who are into it should be arrested, just as those in the U.S. paying less wages are in the wrong following the U.S. law.”

Beneath his desperation lay this tagline: “If you’re going to enforce all your petty laws against our diplomats, then we will start enforcing all our petty laws against yours.”  That may be.  But putting aside the debate whether Devyani Khobragade was a diplomat with full immunity in the first place, the United States had made clear time and again that its wage laws were not petty.  And unlike India, which apparently has not been enforcing its liquor laws or identification restrictions against American diplomats, the United States has consistently and repeatedly enforced its wage laws against Indian officials.

In fact, Khobragade’s is the third wage law case involving an Indian consular official in New York and an Indian servant in three years. 

First, a complaint was filed in 2010 against Neena Malhotra, an Indian Consulate diplomat in New York, by her under-aged servant for trafficking and ill-treatment.  A federal magistrate awarded the servant $1.5 million, but the Delhi High Court prevented any enforcement of the judgment, stating that Malhotra enjoyed “sovereign immunity” while in the United States. 

Then, in 2011, India’s previous Consulate General ambassador in New York, Prabhu Dayal, was accused in a civil suit of labor violations by his live-in maid, who – like Mrs. Khobragade’s maid – disappeared and then went to the authorities.  The case was settled confidentially but not before Indian Foreign Secretary Nirupama Rao ordered a review of the policy sending domestic help abroad.

In both those instances, the U.S. government made no arrests of the Indian officials, even though in 2010 New York passed the Domestic Workers’ Bill of Rights which applies to all workers regardless of immigration status.  Also, beyond only Indians, the U.S. Government Accountability Office issued a report to a Senate subcommittee citing dozens of instances of domestic worker abuse by foreign diplomats. 

Despite the fair warning, and regardless of whether she held full diplomatic immunity, I thought it still would have been cleaner if the U.S. reached out to India regarding Khobragade specifically, before deciding to arrest her.

Turns out they did.

Three months prior to her arrest, the U.S. State Department on September 4 reached out to India and shared its “considerable concern” regarding the charges made against Khobragade.  Rather than taking the diplomatic hint and repatriating Khobragade back to India, India insisted that the United States extradite the maid back to India.  Five days later, India then took a move out of the Delhi High Court play book, which (much like it did for Neena Malhotra in 2012) issued an injunction against Khobragade’s maid restraining her from initiating legal proceedings against Khobragade outside of India.  Still ignoring the writing on the wall, on November 19, the Metropolitan Magistrate of South District, New Delhi issued a non-bailable arrest warrant against the maid, and on December 6, the arrest warrant was forwarded to the U.S. State Department requesting them to arrest the maid and extradite her back to India.  It was then, on December 12, that the United States arrested Khobragade.

After three years of warnings with other diplomats, and three months notice with Khobragade, the Indian government continued to stick its head in the sand and issued useless edicts from its own courts rather than solving the problem.  The reality is that there are few, if any, laws protecting domestic workers in India.  So when three Indian servants, one by one, go to America and are suddenly afforded rights, privileges, and protections, it is not surprising that the next one will learn from the past and assert themselves.  What is shocking, however, is that the Indian government and its diplomats have not learned from this past and would rather prefer to allow new incidences to occur year after year.  Instead of paying Khobragade more to cover her expenses, or instead of quietly bringing Khobragade back home after she violated United States law, India wasted its time by having casino spiele the Delhi High Court rule in absentia that Khobragade’s maid – who was already in America and already speaking to the authorities – was forbidden to talk to them. 

Sadly, all the attention in the media was focused on the powers that are afforded, or should be afforded, to diplomats and consular officials.  Much has been made as to whether Khobragade was treated correctly.  The answer depends on which standards are applied and should be applied.  Diplomatic immunity is a double-edged sword.  For every Raymond Davis or Christopher Van Gothem, who were accused of murder overseas and then brisked away home by the U.S., there is an Anil Verma or Alok Jha, who were recalled from duties after allegations of domestic violence and sexual misconduct, charges both nations swept under the “diplomatic rug.”  We all recognize the fallibility of our countrymen.

Personally, I would have liked more media attention on two points that I thought went missed.

First, for any Khobragade sympathizers, remember this.  Just as furiously as they protested the strip-search of the elite Khobragade overseas, even after she allegedly broke the law, Indian politicians must equally protest the real life cavity searches and assaults of innocent domestic servants in India — even after an election year.      

Secondly, India is not to be exclusively blamed for the Khobragade debacle.  The United States must have expected India to explode at some point.  Hardeep Puri, Meera Shankar, Praful Patel, George Fernandes, Azam Khan.  The list of Indian government officials, holding diplomatic status, who have been needlessly detained, frisked, strip searched, and body searched at U.S. airports is unjustifiable.  In fact, it is downright arrogant.  It happens once, you forgive.  Twice, you speak up.  Three times, you give “em hell.   

Yet the problem in each instance above was that India hardly spoke.  Consider this: if a former U.S. President was frisked at an Indian airport, imagine the national outcry.  Hell, it would probably be an international uproar.  But when it happened, not one time, but two times to former President Abdul Kalam, the Indian Ostriches were mute (compared to their reaction to Khobragade and, of course, Bollywood).  

There is an art in choosing your battles.  When Indian government officials and diplomats, with unquestionable credentials, are targeted at airports and treated unfairly overseas, year after year for absolutely no reason at all, THAT was the time for national uproar.  THAT was the time for political chest thumping.  But when you wait until the arrest of a diplomat with questionable immunity, who is accused of committing fraud in India and allegedly commits fraud overseas (for the same crime as two other Indian diplomats in the past two consecutive years), THAT is not the time to invade the Domino”s pizza in Bombay as payback.

I don”t blame India for being upset.  I blame India for being upset at the wrong time.  The Indian reaction wasn”t premature political ejaculation, it was the opposite.  It came to the party too late.  In true IST fashion.  Horribly overdressed as well.

For me, I could relate to the story from several angles.  On one hand, I am a former prosecutor and am well familiar with strip searches and how they are viewed even by Americans.  Once you go in jail, everyone gets strip searched.  Everyone.  On the other, I have represented families of Indian diplomats and I am well familiar with the courtesies that are afforded.  And as an Indian-American, though they picked the wrong battle, it was nice to see India finally stand up for a change.

I took some comfort after reading a recent INE Media, Inc. poll that revealed a majority of Indian-Americans believed that the arrest of Khobragade was justified.  It seemed to me that the Indian Ostriches were only in India.

I was wrong.

In the final piece, I will focus on the mixed reactions within the Indian-American community regarding the Gandhi statue in Cerritos and the GAP advertisement featuring a Sikh-American model.  As it turns out, the Indian Ostrich requires no passport at all for he resides throughout the U.S. as well.