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India, Take a Look in the Mirror

The crimes of which Devyani Khobragade stands accused are serious indeed

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December 26, 2013

This article originally appeared in the New York Daily News on Dec. 26, 2013.

By Juliet Sorensen

The arrest in New York of India’s deputy consul general, Devyani Khobragade, on federal charges has outraged Indian officials. They assert that the search of Khobragade, who was charged with lying about her nanny’s wages and hours in order to get a visa to bring her into the United States, was “barbaric” and “despicable.”

In a fast and furious response to Khobragade’s arrest, the Indian government has removed the concrete security barriers surrounding the American Embassy compound in New Delhi and, according to Indian news reports, demanded that the embassy provide details about all the Indians it employs, as well as the names and salaries of teachers at the American Embassy School.

Khobragade’s father chimed in at a Mumbai news conference over the weekend, going so far as to claim that the domestic worker at the center of the case, Sangeeta Richard, is a CIA agent aiming to tarnish Khobragade’s reputation.

Instead of engaging in such retaliation and conspiracy theorizing, India should examine the seriousness of the offense with which Khobragade is charged — especially since she is the not an outlier, but the third Indian diplomat in New York in recent years to be accused of exploiting a domestic servant.

To start, while much attention has been paid to the supposedly outrageous circumstances of Khobragade’s arrest, these must be put in perspective. The U.S. attorney has stated that she was taken into custody discreetly, without handcuffs. She had the opportunity to make multiple phone calls with her own cell phone in the agents’ car. She was searched by a female agent in a private setting in accordance with standard safety procedure for all federal arrestees.

The umbrage expressed by Indian officials about this relatively tame treatment fails to acknowledge the gravity of the underlying crime.

The complaint asserts, first, that Khobragade paid the worker in question at rates well below the minimum wage required by New York and federal law. This would be, essentially, a form of theft.

Last fall, Khobragade informed the baby-sitter in India that she would pay her the equivalent of $3.31 an hour — less than half of the current minimum wage of $7.25 an hour — for a total monthly salary of $573, or an annual income of $6,877. This included $82 a month for an unspecified amount of “work on Sunday, after hours, and for parties.”

The complaint further states that Khobragade prepared a visa application on the servant’s behalf that falsely stated that the servant would be paid $4,500 a month, approximately eight times the actual salary she was paid. Finally, in preparation for her employee’s visa interview at the U.S. Consulate in Delhi, Khobragade allegedly gave the servant a phony employment contract to provide to the consulate and told the employee to lie during the interview about the wages and hours she expected to work in New York.

It’s also crucial to understand: This is not some parochial U.S. law. If Khobragade is found guilty of the crimes of which she is accused, she will have not only have broken American law, but will have breached international labor law and India’s own constitution. As a diplomat, Khobragade is bound by State Department requirements for employee visas — employees must earn at least minimum wage and work a recommended 35 to 40 hours a week.

Moreover, India itself has passed a series of laws protecting the fundamental rights of workers, including ratification of the constitution of the International Labor Organization, a treaty that requires signatory countries to regulate conditions of labor, including minimum wage, maximum hours and “protection of the interests of workers when employed in countries other than their own.”

In other words, the same core protections for workers in the United States are recognized by the international community in general and by India in particular — the same core protections Khobragade appears to have cast aside for the sake of cheap baby-sitting.

From the moment of arrest, U.S. authorities must treat all criminal defendants — including but not limited to international diplomats — humanely and in a manner consistent with our Constitution and rules of criminal procedure. Khobragade deserves due process of law, which includes both rules related to pretrial arrest and the presumption of innocence.

But it is a crime to make knowingly false statements on a document required for immigration to the United States. That crime is all the more serious when it is done to exploit an employee in violation of international human rights norms. India is right to ensure that its diplomat has her day in court. It should also reflect upon its nonchalance toward fraud in furtherance of abuse of domestic workers.

-Juliet Sorensen is an assistant professor of law at Northwestern University.