Dollar vs rupee quarrels in foreign officials' households

Veenu Sandhu & Joel Rai, business standard, New Delhi, December 21, 2013: Former ambassadors say that invoking local laws in cases regarding employment of domestic help, as in the Khobragade-Richard incident, undermines diplomatic norms and bilateral ties.

The happenings in New York over the past few days, and the reaction of the Indian establishment to the arrest of Devyani Khobargade, deputy consul-general of the Indian Consulate at New York, has put the limelight not only on diplomatic niceties, but also on the recurring theme of Indian officials and the employment conditions of their domestic staff.

Khobragade, arrested for allegedly disclosing wrong information about the financial agreement with her maid,Sangeeta Richard, and for paying Richard less than the amount stipulated under laws in the United States, is not the first foreign-posted Indian diplomat to have faced legal action. In 2010, US-deputed Neena Malhotra was sued by her maid, Shanti Gurung, for $1.46 million dollars for alleged non-payment of contracted wages. Prabhu Dayal, consul general in New York, faced litigation from his help, Santosh Bhardwaj, on similar charges.

More than the nitty-gritty of individual wage agreements, what has got the goat of the Indian government in the current case is the way Khobragade was arrested and allegedly subjected to strip searches and lodged with common criminals at the police precinct. It appeared to be action disproportionate to the alleged crime. Taking a tit-for-tat position, the Indian government has decided to review the diplomatic status of US State Department staff in India, at the Embassy and in its consular offices. India says Khobargade's diplomatic status was not respected, while the New York district attorney's office says she was a consular official who did not enjoy full immunity.

Immunity from legal action in the country of a diplomat's posting, or the "receiving" country, as the parlance goes, is determined by two pacts, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. Rajiv Dogra, former Indian consul-general to Karachi who has also served as ambassador to Romania and Italy, explains that there is a distinction under the two Vienna Conventions regarding immunity for a diplomat in an embassy and an official holding a post in a consulate.

"Under the Vienna Convention on Consular Relations, consular officials enjoy immunity for all their official actions and in any civil suit," he says, "but not in the case of a grave crime." On the contrary, diplomats, he adds, cannot be legally arrested on any charges. Thus, while Khobargade faced arrest under US criminal laws, in an earlier example from December 2012, Anil Verma, a high-ranking official in the Indian High Commission in London, escaped arrest on charges of spousal violence because of his diplomatic status (he was, recalled to India immediately after the incident).

However, minor misdemeanours have always been handled discreetly by state departments, often with the delinquent officials quietly brought back to their home country. The very meaning of the common phrase "handling things with diplomacy" harkened to this courteous management of unsavoury incidents, leaving neither the "sending", nor the "receiving" country and their ties, affected. In recent times, though, there have been more incidents of the Khobragade type that have brought a temporary chill into ties between countries. As Vivek Katju, former ambassador to Afghanistan, wrote in an article in The Indian Express: "Over the past four decades, the US and the European countries have unilaterally eroded these [diplomatic] approaches and have allowed their local laws to intrude more and more into areas relating to the working of embassies and consulates and the conduct of diplomats and consular officials. Thus the initiative is passing from the foreign offices to prosecutors and courts who cannot and do not want to the view the issue through the larger perspective of bilateral ties."

* * *

This is what seems to have happened in Khobragade's case. Preet Bharara, District Attorney for South New York, pursued the letter of the law in going after the Indian diplomat for having filed false information (regarding the financial terms of her agreement with Richards) and for underpaying the domestic help. Bharara is reputed to have clamped down on officials from other countries posted in New York too, though there are media reports claiming that he has refrained from taking action against Russian officials, despite provocations, for fear of the fallout on US-Russia relations as well reprisals from the Russian mafia. Says Dogra: "Khobargade enjoyed consular immunity, and hers was not a criminal offence by any stretch of imagination. Beyond the technicalities, there is also the issue of civil behaviour with a woman. No law says that a policeman can or should cross the limits of decency."

According to the case made out by Bharara, Richard was entitled to at least $9.75 per hour of work plus a day off per week, 40-hour work week, seven days off for health reasons and seven days of paid holidays. While Richards was indeed availing of all the non-working days, she had agreed to a salary of Rs 30,000, which the New York Attorney's office calculated to mean a little over $3 an hour.

Says G Parthasarathy, former ambassador of India to Myanmar, who also served in Australia, Pakistan and Cyprus: "The conditions for payment to the domestic staff of consular officials are set by the Indian government. It is the government that pays for their air passage, food and stay." He recalls a time when his domestic help fell ill during a tenure in Australia, "the Indian government paid for his treatment".

By Indian standards, Rs 30,000 for a domestic help, who also enjoyed free accommodation and food, plus amenities like free phone calls to India, is fairly high. By the given US norms, at $9.75 an hour, Richard would have drawn a salary of over Rs 1 lakh per month.

"America's argument that Khobragade was not paying her help according to rules is a farce which the Americans are aware of," says Parthasarathy. The law of the receiving country and the sending country can, and are often very different, especially when a Third World country is involved. "On rare occasions, issues do crop up because of this but they are settled between the governments concerned," adds Parthasarathy.

In the Vienna Convention on Consular Relations, there is a section related to exemption from social security in the receiving country. Paragraph 1 of the section says that consular members are exempt from social security provisions which may be in force in the receiving state. Paragraph 2, similarly, exempts private staff in the employ of consular members from social security provisions of the receiving state, provided they are not citizens of the receiving country and that they are covered by social security provisions of the sending state. In Richard's case, her salary and amenities could be said to have met these conditions, and, therefore, precluded the arrest of Khobragade.

* * *

Officials point out that domestic dispute often have a genesis in cooks, nannies and housekeeping staff realising once they are abroad that they could earn more if they left their jobs with their Indian employers. Richard, it is believed, also wanted to work elsewhere on her days off from the Khobragade household. But she was told that doing so would violate the rules under which she was employed with the consular official. Because the domestic helps travel with the diplomatic officials on an official passport, their seeking employment outside that household requires a change in the passport and visa status.

Parthasarathy recalls how, when he was the high commissioner in Australia, the Italian ambassador to Australia of his time offered the cook at Parthasarathy's residence a salary that was ten times what he was getting. "Once my term was over, I got my help permission from the Indian government to change his visa status. His passport was also changed from an official one to a general one. Only then was the cook free to work with whoever he chose to."

There is anger against the actions of the United States against Indian diplomats. "We in India have been unilaterally extending diplomatic privileges even to American consular officials. That's a sign of weakness," says Dogra. In India, all American State Department staff, whether working in the US embassy or in consulates, have been extended immunity from legal actions - unlike in the US. Dogra cites how Krittika Biswas, 18, the daughter of Debashish Biswas, then the vice-consul at Manhattan, was handcuffed, treated badly and threatened by police officers after she was arrested, wrongly, for sending offensive email to her teachers in New York. As daughter of a diplomat, she was eligible for immunity, but that cut no ice with US prosecutors. "It later emerged that the mails were sent by a Chinese student, but that student wasn't arrested. Isn't that a case of discrimination?" asks Dogra.

To prevent these unnecessary hiccups in bilateral ties, the Indian government is contemplating categorising all domestic staff of its diplomats as government employees. This will prevent any action being taken involving the financial terms of their employment in the country of their posting. The external affairs ministry had already approached the finance ministry for approval of the measure, and the Khobragade incident may influence a quick response.