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Why India & the US must share blame for Khobragade row

Diplomatic row over Khobragade's arrest has also revealed how precariously poised the famed Indo-US relationship is at this juncture.

Nikhil Inamdar  |  Mumbai 

Devyani Khobragade
Devyani Khobragade

It isn't very often that you have the BJP, the Congress, senior journalists and former diplomats argue on the same side of the debate, cutting out the 'tu tu main main' and nodding in agreement with one another on primetime television. But the shocking arrest of Indian diplomat Devayani Khobragade seems to have made the impossible possible.

Across the political spectrum and in diplomatic circles, the overarching sentiment is that the punishment meted out to Khorbagade by the US authorities was totally disproportionate, the manner in which the case handled despicable and the public ignominy that she was subjected to needed to be countered with befitting tit for tat diplomacy.

The volley of attack from the Indian side seems to have worked at least partially, as a US State Department spokesperson stopped just short of saying sorry, stating that a review of what transpired was underway.

ALSO READ: Indo-US diplomatic clash: Full transcript of US briefing on the issue

There are two parts to the argument about Khobragade's arrest. The first is the nature of fraud she allegedly committed and the second the intrusive, and for a diplomat, almost barbaric nature of the arrest she was subjected to by a country with whom India claims to enjoy a special relationship. While on the first, India may have been guilty of transgressions, on the second, the US stands unambiguously accused of stepping out of line.

ALSO READ: US treatment of Indian diplomat "deplorable": PM

Khobragade has been charged on one count each of visa fraud and making false statements, and the US attorney's argument is that the diplomat in question flouted rules by falsifying in her affidavit that she was paying the minimum wage to the domestic assistant when she wasn’t, in effect breaking local laws. "Foreign nationals brought to the United States to serve as domestic workers are entitled to the same protections against exploitation as those afforded to United States citizens.”,Preet Bharara, the US attorney in Manhattan said in a press release issued on the case.

The US also says Khobragade did not enjoy diplomatic immunity under the Vienna Convention, as protection from the jurisdiction of US courts is granted only with respect to acts performed in the exercise of consular functions.

ALSO READ: Why Khobragade did not enjoy diplomatic immunity

Indian diplomats on the other hand dispute the basic premise of the American argument that Khobragade broke US laws and say she is being framed on a mere technicality. Minister of State for Human Resources Shashi Tharoor has gone on record to say that what Khobragade did was exactly what thousands of other diplomats in New York have done all these years when taking domestic assistants to the US. They simply "accept the minimum wage requirement when all concerned, including the US visa services and the State Department, know this is done pro-forma to have the paper work in order", according to Former Foreign Secretary Kanwal Sibal writing in the Hindustan Times.

If this is indeed true – there are serious questions on why all Indian diplomats were blatantly flouting US visa rules. Is it the US’s problem that India cannot pay US minimum wage to domestic assistants of diplomats?

Then there are also fresh revelations from the briefing that happened overnight that the Indian government was warned in September that Khobragade may have been involved in some kind of visa fraud. What did the government do about these warnings? Could this row have been avoided?

While India, if it has unwittingly or consciously been subverting US laws on visas, raises serious questions, New Delhi is justified in arguing that the US went overboard with its reaction.

First, it may be a case of misinterpretation rather than blatant flouting of rules. The Indian side argues that that US officials stamp visas for domestic assistants on official, not ordinary passports and hence domestic assistants cannot be subjected to local employment rules, especially when the diplomat employing them is earning a relatively smaller salary by US standards.

Secondly if everyone was flouting rules for years on end, why was Khobragade being singled out? Moreover, should she have been treated like a common criminal, handcuffed, strip searched and locked up in a cell alongside drug addicts? Would the US have behaved in a similar manner with a diplomat from Europe?

Former diplomat Lalit Mansingh believes this sort of conduct is in direct conflict with the rules of the Vienna Convention which states that consular representatives, whether or not they enjoy immunity, must be treated with due respect and that the receiving state must take every possible measure to prevent an attack on a person's dignity. In this instance, the US clearly did not uphold this principle.

Harsh reciprocal action has followed with a fuming New Delhi removing barricades outside the sprawling US embassy to signal its anger. India has also retaliated with a slew of other actions to downgrade the privileges American diplomats enjoy. Many are insisting India use its reciprocal leverage to further strip down privileges unilaterally offered to American consular diplomats and have even endorsed Yashwant Sinha's suggestion about applying section 377 on US diplomats by revoking visas given to companions of diplomats as they are not in compliance with India's own laws on homosexuality.

Despite the grandstanding, there may not be a quick fix solution to the problem as the US continues to maintain that this is a law enforcement issue and standard procedures will have to be followed. The jury is also still out on whether India can sustain its belligerent tone if the US doesn't budge. But the consensus seems to be that India needed to send an unequivocal message to the US about repeated instances of high handedness and this row has brought to the fore the larger issue of reciprocity, the fact that Indian diplomats in the US don't enjoy the same respect India accords to US officials.

At the same time, India also needs to realize that it has a serious problem with following laws. This is not the first case where an Indian diplomat has been charged for alleged mistreatment of maids, and it is all too known the charges Indian I.T. firms have faced on visa fraud.

It’s clearly not the last we've heard of this story, but the incident has also revealed how precariously poised the famed Indo-US relationship is at this juncture.

'Obama doesn't care about India. He didn't want to meet Singh in Washington, we insisted on the bilateral talks... The India file no longer goes to the White House. It did under Bush' HT's foreign affairs editor Pramit Pal Chaudhuri told CNN IBN, succinctly summing up how India and the United States seem to be only going backward on what was once lauded as a strategic relationship under George Bush Junior's tenure.

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First Published: Wed, December 18 2013. 15:46 IST