Consular officials feeling insecure and their families, vulnerable: Prabhu Dayal

Devyani Khobragade's arrest has resulted in an unprecedented Indo-US row which shows little signs of abating. Since I was Consul General in New York from September 2008 till February 2013, I feel duty bound to put the situation in a full and correct perspective.

Devyani worked as my Deputy towards the end of my term. Moreover, I also faced a lawsuit about which some misinformed comments continue to be made in some sections of the media. I met Sangeeta Richards several times at the Consulate. She not only seemed happy and cheerful but also struck me as being quite well groomed and educated--not the usual type of domestic worker. Given the recent history of problems faced by the Consulate, I advised Devyani to be careful. I also told her that there were plenty of people around who could misguide Sangeeta and create trouble.

Cases of desertion by domestic assistants are not new

Devyani Khobragade

For decades, domestic assistants accompanying our diplomats to the US have gone missing, preferring to stay there illegally and pursue their dollar dreams. Countless Security Guards, including many from the police and paramilitary services have also done likewise. Although the US authorities have been invariably informed whenever this has happened, they have done nothing to nab them. As is well known, the US has a very large number of illegal, undocumented aliens who provide cheap labour.

However, in October 2000,the US Congress enacted the Victims of Trafficking and Violence Protection Act(TVPA).In terms of this Act, our domestic assistants who now abscond can obtain a trafficking visa by alleging that they were subjected to involuntary servitude and not paid wages as per US laws. They can get a three year T Visa which gets converted to full resident status. Naturally, such persons allege that they would face extreme hardship if they were deported back, as Sangeeta Richards has done. In return, they have to cooperate with the law enforcement agencies against the alleged traffickers--their former employers. Then in 2010, New York State enacted the Domestic Workers Bill of Rights, after which there has been a spate of law suits filed by domestic workers.

It is no secret that many Indians go to the US and try to stay on by hook or crook. Thousands of Sikhs have managed to obtain political asylum by alleging that they are being persecuted in India and thus getting full resident-status. Privately, many of them admit that they only took the asylum route as it was the only way they could get a Green Card. However, the US authorities continue to give asylum visas to many Sikh applicants, blindly ignoring the fact that the Sikhs are a thriving community in India, and that our Prime Minister is himself a Sikh.

However, the asylum visa is not available to everybody.

This is where the TVPA has opened the doors to people like Sangeeta Richards who can obtain official passports as domestic assistants of our diplomats, get an A3 visa from the US Embassy, reach US shores, work there for some months, abscond and then obtain a T Visa. The visa fraud allegedly committed by Devyani Khobragade was in fact committed by Sangeeta Richards as she misrepresented her terms of employment to the US Embassy during her interview with the Consular officer for getting an A3 domestic worker visa which would later enable her to leapfrog to a trafficking T Visa.

Now, a few words about two earlier cases which took place in New York. Shanti Gurung worked as a housekeeper for Dr. Neena Malhotra, Consul for over three years. I met her often as she would come to the Consulate to attend functions such as Republic Day, Independence Day, Deewali, Baisakhi etc. as well as music concerts, and she was always happy and contented. I was shocked when she went missing on the eve of Dr. Neena's departure from New York on transfer and even more shocked when she filed a lawsuit a year later against her employer alleging confinement, forced labour, slavery, ill-treatment etc. No doubt, she did so to obtain a T Visa.

Mrs. Santosh Bhardwaj worked as my housekeeper for two years in India and four years in Morocco before joining me as my domestic assistant in New York in February 2009. Eleven months later, in January 2010 she absconded from the Consulate building where she lived. Seventeen months after that she filed a suit against me alleging slavery, forced labour, non-payment of full wages etc. She alleged that she was not given proper accomodation and was made to sleep in a storage area. She also made an allegation about an incident of sexual harassment. These allegations were prominently reported in the media. Six weeks later, her lawyers filed an amended suit in which the allegation about sexual harassment and being made to sleep in a storage area were voluntarily dropped. Under US judicial practice, a plaintiff enjoys absolute litigation privilege and can amend a suit by adding or deleting charges. However, these and many other allegations had already received wide publicity in the media and continue to be referred to even now. The fact was that she was not made to sleep in a storage area but was provided a fully-furnished one bedroom apartment in the Consulate building with heating, air-conditioning, television and attached bathroom and there were many witnesses to this fact. As regards sexual harassment, this charge was also completely false. The media gave very little coverage to the voluntary dropping of these charges. She was so well treated in Delhi and Morocco that she voluntarily went with us to New York. Did our treatment towards her suddenly changed so drastically in New York that it was tantamount to slavery and involuntary servitude?

The suit alleged that I had not paid her wages at ten dollars an hour as per the contract. Here, I would like to draw attention to the website of the US State Department which states the following: 'As of March 2011, the Department has decided that no deductions are allowed for lodging, medical care, medical insurance or travel. As of April 2012,deductions taken for meals are also no longer allowed'. However, Mrs Bhardwaj worked for me in New York from January 2009 till February 2010 when deductions for perks were allowed by the State Department. If perks are included,the emoluments of my domestic assistant were considerably more than what she was to get under the contract. A fully furnished one bedroom apartment in the Upper East part of New York does not come for less than 2500 dollars! Added to this were the expenses towards water, electricity, heating, air-conditioning, food, medical cover,travel passages (including for home leave) plus a handsome salary.

The emoluments of all officials posted by MEA to Embassies and Consulates include salary and perks; the emoluments of a domestic assistant accompanying an India diplomat are built into the officer's own package, and also include salary and perks. It is only after March 2011 that the US State Department has begun to disallow deductions for perks for domestic assistants.

Litigation in the US is a very expensive and stressful process. Most law suits end up in an out of court settlement without acknowledgement of wrongdoing. I, too had no option but to settle the case.

India's view has been that the domestic assistants of our diplomats hold Official Passports and should be outside the purview of US labour laws. The US side has not agreed to this, insisting that US laws apply to them. This impasse continues.

What about the future?. We should either get the US to agree to our position or change our present arrangement relating to the domestic assistants. Our officers should not be caught in this sort of situation arising from how the Ministry of External Affairs interprets the emoluments given to domestic assistants and how differently the US authorities interpret them. This would prevent the sort of ordeal which Dr. Neena, Devyani and I myself have gone through. It is understood that MEA is trying to revamp the system and may itself sign contracts with domestic workers instead of officers having to do so.

Will this revamped arrangement shield officials posted at our Consulates fully? I am afraid not,for one must recall the case of Krittika Biswas, a 12th grade student and daughter of a Vice Consul serving under me in New York. She was arrested and handcuffed in front of her fellow students at her school on the charge of cyber-bullying one of her teachers although she asserted that she had a diplomatic passport. She was not allowed to contact her parents or anyone till evening, and was kept in a detention centre for twenty eight hours with prostitutes and drug addicts in the same manner as Devyani. My colleagues and I had to run from pillar to post to get her released. She was not taken back in her school but had to attend a sort of reform school. Later, it was discovered that it was not Krittika but another student who was responsible for the cyber-bullying, but he was not arrested. What can one make of this except that the New York law enforcement agencies were biased and high-handed?

The Krittika Biswas case makes me apprehensive that given the US position on immunity, even if were were to revamp our system relating to domestic assistants, we will not be able to guarantee that our officials in our Consulates will not be arrested or dragged into law courts for some reason or another in future. The US is a highly litigious country where suing people is a sort of favourite past time. Family members of Consulate officials are not given any ID cards and have absolutely no immunity. Hence,they are even more vulnerable. An atmosphere of fear already pervades our Consulate in New York, and the New York Consulate is no longer a sought after posting for this reason.

What are we to do in such a situation? Some of my former colleagues go to the extent of saying that if diplomats posted in our Consulates in USA do not enjoy immunity, then we should close down these Consulates and do all Consular work from the Embassy in Washington DC where our officials enjoy immunity. This is not so cynical as it may sound. Firstly, Consular work relating to passports, visas, OCI cards, PIO cards has already been outsourced. Instead of bringing the documents to the Consulates, the outsourcing company could courier them to the Embassy. Secondly, a large number of persons already send their applications to the Consulates by mail, and they would instead have to send these to Washington DC. What difference would it make if someone living in Boston has to send the application to Washington DC instead of to New York? Of course,the Embassy's consular Section would have to be considerably strengthened for handling the additional load. All other work such as information, culture, outreach and economic would also have to be done from Washington alone, which is not so difficult in today's age of instant electronic communications.

As regards all the endless protocol work involving receiving and seeing off delegations which keep coming to New York, it could be done by the Permanent Mission to the UN whose officials enjoy immunity. At present, the protocol load is shared by the Permanent Mission and the Consulate. Again, the protocol wing of the Permanent Mission will have to be augmented.

I know that this suggestion by my former colleagues may be dismissed as being too cynical. There is no doubt, however that our officers posted at the Consulate in New York have begun to feel very insecure after all these recent cases, and the same may also be true for the other Consulates in Chicago, San Francisco, Houston and Atlanta. How will India protect its diplomats posted to the Consulates given the US position on immunity?

Drastic situations call for drastic steps, and if we can't learn from bad experiences, then we alone are to be blamed. Foot-dragging will not get us anywhere.