L'Affaire Khobragade: A tale of two narratives

Updated - December 04, 2021 11:37 pm IST

Published - December 19, 2013 10:23 pm IST - Washington

On the one-week anniversary of the fast-moving saga of Devyani Khobragade (39), the New York-based Indian diplomat arrested, strip-searched, then released on December 12 over a visa fraud felony, two distinct narrative arcs are discernible.

The first is the one advanced by the Government of India and embellished in the media with details supplied by the father of the Deputy Consul General, former bureaucrat Uttam Khobragade.

The second narrative stems from the U.S., which, except for an unanticipated, fiery statement by U.S. Attorney Preet Bharara on Wednesday evening, has been muted and limited to basic, factual releases, but in reality runs deep with historical precedents.

First narrative

The Indian telling of the tale has drawn attention to alleged improprieties by Sangeeta Richard, the Indian national who was in Ms. Khobragade’s employment as a babysitter and housekeeper between November 2012 and June 2013.

These included Ms. Richard asking for permission to work in another residence before June 23, and then “absconding” from the premises of Ms. Khobragade from that date onwards, allegedly “taking” a mobile phone and SIM card, around $200 in cash and some documents, all said to belong to Ms. Khobragade.

However, this narrative has avoided referencing the alleged visa fraud that the criminal complaint against Ms. Khobragade details, including the claim that she effectively paid Ms. Richard $3.31 per hour whereas the New York minimum wage is $7.25.

Further it is economical in addressing the allegation by Mr. Bharara’s team that under the contract she signed with Ms. Richard and submitted to the State Department to obtain an A-3 ‘domestic worker visa’ she had promised the equivalent of $9.75.

Broader issues

Mainstream and social media commentators have extended this specific issue into broader questions of whether Indian bureaucrats are paid on a sufficient scale to afford such arrangements in a higher-wage economy. There have also been suggestions to re-designate such workers as employees of the Indian government although it is unclear whether that would pass muster with Washington.

Not many Indian officials and political leaders outraged over the treatment of Ms. Khobragade have linked this case to the relatively neglected subject of minimum wage rights for domestic workers back home, in many countries a basic right and in this case a factor that may have helped avoid the controversy entirely.

Encountering Sangeeta Richard

As it turned out the disappearance of Ms. Richard owing to her alleged underpayment was followed by a telephone call to the Khobragade residence by an unidentified woman who claimed to be the legal representative of Ms. Richard, sometime around July 1.

That individual was said to have demanded that Ms. Richard’s employment there be terminated, that she be issued a fresh passport and visa so that she may work elsewhere, and that she be paid $10,000.

Within a week of receiving this phone call, on July 8, Ms. Khobragade along with a couple of consulate colleagues attended at meeting at the offices of a law firm called Access Immigration, where she came face-to-face again, and for the last time before her arrest, with Ms. Richard. At this meeting Ms. Richard apparently made the same demands as the person on the telephone earlier.

The very same day, and quite likely in the hours following the meeting with Ms. Richard, the Indian government revoked Ms. Richard’s official passport, a document that is neither a “normal” passport nor a diplomatic passport but one that legally binds its holder to an official role, in this case the employment of Ms. Khobragade.

Two pronged approach

The Indian side quickly moved forward with a two-pronged strategy, which entailed efforts to get cases registered against Ms. Richard both in India and the U.S.

In New Delhi they succeeded in filing an IPC Section 420 “cheating” complaint with the police on July 2, then an FIR on July 5. Anticipating a response in the U.S. Ms. Khobragade’s representatives on September 20 got the Delhi High to issue an injunction blocking Ms. Richard from initiating legal action against the diplomat on U.S. soil.

On November 19 a Metropolitan Magistrate of the South District of New Delhi – a neat but coincidental foil to the Southern District of New York that will be seen to be involved too – issued a non-bailable arrest warrant against Ms. Richard.

As cleanly as they succeeded in India, equally unequivocal was the failure of Ms. Khobragade’s lawyers to get traction in the U.S. with their filings.

Repeated attempts to register a complaint or a case, or information regarding the Indian court’s orders through the New York Police Department, the State Department’s South and Central Asia Bureau or the Office of Foreign Mission “did not get a response,” including messages sent to U.S. authorities on June 24, June 25, July 2, July 5, July 30, October 8 and December 6.

State Department response

There was one exception and that was the sole communication sent by the U.S. side: a “one-sided” letter from the State Department sent to the Indian Ambassador on September 4, “projecting the allegations of [Ms. Richards] disputing her terms of employment with Ms. Khobragade which were of concern to the State Department” and requesting the Indian embassy to look into it.

The response of the Embassy appears to have been to reiterate Ms. Khobragade’s arguments against Ms. Richard’s conduct. Why did they not consider stronger, even evasive manoeuvres that could have taken Ms. Khobragade out of harms way, including sending her back to New Delhi?

Apparently there was no warning within the State Department’s letter that Ms. Khobragade may face criminal charges or get arrested.

Second narrative

It is at this point that the second narrative arc becomes relevant. And it is centred squarely on the U.S.’ long history of combating the abuse of foreign domestic workers by diplomats on its soil.

The full import of this battle waged by multiple federal government agencies may not always be visible when observing a proximate issue such as the Khobragade-Richard dispute.

Yet it may have been at the back of Mr. Bharara’s mind when he said on Wednesday, “One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country…. where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law.”

He asked, for good measure why there was “so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?”

Historical precedents and legislation

The fact is that the U.S. has in recent years faced a slew of ‘maid abuse’ cases within the diplomatic community here. Even as far back as 2008 a government watchdog, the Government Accountability Office “identified 42 household workers with A-3 or G-5 visas who alleged that they were abused by foreign diplomats with immunity from 2000 through 2008, but the total number is likely higher.”

It further argued that the U.S. government’s process for investigating alleged abuse of household workers by foreign diplomats was “complicated” by three factors: immunity that could can pose constraints for law enforcement in collecting evidence, the heightened sense of vulnerability of workers owing to the status of foreign diplomats, and the length of time it takes to obtain a legal opinion from the State Department on the permissibility of using certain investigative techniques.

However an important blow for workers rights in this context was struck under former President George W. Bush in 2008, when the William Wilberforce Trafficking Victims Protection Reauthorisation Act was passed.

Under this law domestic workers must made aware of their rights in this country directly by consular officers and, most relevant to the Khobragade case, diplomats are required to have a contract with a domestic worker containing conditions of employment. It also requires the State Department to suspend the issuance of visas to a particular mission when the Department receives “credible evidence that a worker was exploited or abused and the mission tolerated the conduct.”

Bharara’s statement

With this paradigm as background Mr. Bharara was on Wednesday the first official to speak out vocally for Ms. Richard going beyond the clarification of basic facts, and in doing so he contradicted numerous prior comments, for example on the alleged handcuffing of Ms. Khobragade during her arrest.

Not only was she not handcuffed or restrained, he said, she was also not arrested in front of her children, who she was dropping off at school at the time. Mr. Bharara added that the arresting officers also did not seize her phone as was customary and gave her two hours to make calls, supplying her with coffee and food in the interim.

Much of the Indian government’s reaction in terms of retaliatory diplomatic measures was seen as a protest against the treatment of Ms. Khobragade, and that included her public arrest, handcuffing and strip-search.

The U.S. Attorney’s remarks give pause to those measures, as indeed did Secretary of State John Kerry’s expression of regret to Indian National Security Advisor on Tuesday.

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