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Devyani case: Why the US needs to apologise quickly!

Last updated on: December 20, 2013 14:21 IST

'If at all,' says Suhasini Haidar, Foreign Affairs Editor, CNN-IBN, 'Devyani Khobragade is to avoid facing a full trial, the process of that negotiation must start immediately, for which the current acrimonious atmosphere must be improved.'

'It is no more than the US was willing to do for Raymond Davis; the Italian government for its sailors; and India for Captain Sunil James and Vijayan in Togo.'

'Devyani Khobragade is not accused of charges anywhere as serious they were, and whether Preet Bharara's office recognises it or not, she is a diplomat who represents a proud country that has taken the insult to her as a personal insult to the country.'

Indian diplomat Devyani Khobragade

In international diplomacy, when someone drops the ball, it falls to pieces with a big resounding crash that echoes worldwide.

Clearly, someone in the line of communication within the United States State Department and the US Department of Justice, dropped the ball when it came to the handling of Devyani Khobragade's arrest.

The details, that are now well-known, are for the most part not contested by any of the parties -- that Dr Khobragade, left, was detained by the US diplomatic police after she had dropped her children at school; that she was then formally arrested; subjected to a humiliating strip-search; and possibly what are called 'cavity searches'; a DNA swab; and then kept in a lock-up for about four hours along with common criminals, before she was handcuffed and produced before the judge at a federal district court who granted her bail.

There are several reasons, put forth by the Indian government, and Dr Khobragade's lawyer, why this was not just a small error of judgment, it was just plain wrong.

The initial action by the diplomatic police means someone (or everyone) at the State Department was aware a diplomat was about to be arrested.

Why then didn't they simply ask her to surrender, at an appointed time at the court or police precinct?

Or why not arrest her and take her directly to the hearing?

There had been no indication that despite knowing of proceedings in the case since September, Dr Khobragade had made any attempt to flee the US.

None of the charges leveled against her by US Attorney Preet Bharara's office indicate that she was even slightly dangerous.

Finally, if the judge was prepared to give her bail just a short while after she was produced, clearly, there was little reason to subject a diplomat to that ordeal.

At the very least, someone forgot to inform the right people for the need to do so.

At the very worst, an over-zealous federal prosecutor decided to carry out the operation, despite knowing it was unwarranted.

In any case, it left Preet Bharara looking more like Inspector Javert, (who tossed Les Miserables hero Jean Valjean into prison for life for stealing a loaf of bread) than the evangelical hero he wants to project with the words from his statement that, 'This Office's sole motivation in this case, as in all cases, is to uphold the rule of law, protect victims, and hold accountable anyone who breaks the law -- no matter what their societal status and no matter how powerful, rich or connected they are.'

It took some days, but it would seem the US government now acknowledges the actions as a mistake, as Secretary of State John Kerry phoned India's National Security Adviser Shivshankar Menon to 'regret' the actions; for White House spokesperson Jay Carney to admit a review of the procedures applied with Dr Khobragade was underway; and for US Under Secretary of State Wendy Sherman to distance the government from Bharara's statements in a second telephone conversation with Foreign Secretary Sujatha Singh.

It does not take much therefore for the Obama administration to go the next step, apologise for the mishandling of a diplomat on US soil, and order an enquiry to find out who is responsible.

The apology is necessary, because only then can the two countries move on to the next, and completely separate chapter of the Devyani Khobragade case -- the case of alleged visa fraud and furnishing false information.

It is an open secret that there have been a slew of similar cases, based on complaints by domestic staff of Indian consulate officials. One official estimates at least 11 such cases in the past decade, including two in the public glare in the past two years -- involving former consul general in New York Prabhu Dayal and consular official Neena Malhotra.

Most of those domestic staff end up getting asylum status in the US (as victims of trafficking), while many other quietly slip through the cracks of America's immigration system.

It is entirely possible that Bharara's office decided to take up the case of Dr Khobragade's domestic help Sangeeta Richard in order to embarrass the Indian mission as well as the State Department for allowing the practice of dual contracts.

It is also entirely plausible that when Dr Khobragade obtained an injunction in the Delhi high court, Bharara -- who has taken on heavyweights like Raj Rajaratnam, Rajat Gupta and Dominique Strauss-Kahn in the past -- felt thwarted, and took the extreme measures of 'evacuating' Richard's family to the US just days before Dr Khobragade's shameful arrest.

Making matters more complex -- and perhaps the reason why India was reluctant to simply pull Dr Khobragade out of the consulate to safety once it was known that the case against her was fairly serious -- is that her husband is a naturalised US citizen.

Whatever the truth, two things are clear: India will have to undertake serious changes in its policy for Indian-born Domestic Assistants, IBDA -- to build a pool of IBDAs who work with the consulate, and can be designated as 'official staff,' out of the purview of US wage structures.

The other -- once the US clears the air with an apology for Dr Khobragade's treatment -- India will have to negotiate her release from the case itself.

While Indian officials have held a hard position, demanding that all charges must be dropped, in practice, they know that no sovereign government can announce such a thing publicly.

If at all Devyani Khobragade is to avoid facing a full trial, sequestered in the US, the process of that negotiation must start immediately, for which the current acrimonious atmosphere must be improved.

It is no more than the US was willing to do for Raymond Davis (the CIA operative arrested in Pakistan); the Italian government for its sailors; and India for Captain Sunil James and Vijayan in Togo.

Devyani Khobragade is not accused of charges anywhere as serious they were, and whether Bharara's office recognises it or not, she is a diplomat who represents a proud country that has taken the insult to her as a personal insult to the country.

'India and the US are friends,' Minister of External Affairs Salman Khurshid reminded us in an interview to CNN-IBN, 'And the least one expects of a friendship is that our dignity will be maintained.'

In the spirit of Auld Lang Syne this season, and as New York prepares to 'lower the ball' this New Year's Eve at Times Square, it may be time for the US to take the first step and lower the temperature.

Suhasini Haidar is Foreign Affairs Editor, CNN-IBN.

Photograph: Paresh Gandhi/Rediff.com

Suhasini Haider