Inside India's Diplomacy Debacle
Could the word "Khobragade" soon become a part of the English language?
"Khobragade (kho-braa-guh-dey): Noun. A person whose situation or predicament exposes the gulf in understanding between two cultures. Also, one who seeks relief from a charge under one set of laws by recourse to another, more contentious, legal frame or emotional appeal. Also: The tendency of human institutions, or states, to become hopelessly drawn into and enmeshed in a relatively trivial dispute at the expense of larger matters, leading to outcomes that please neither party, except to the extent that they displease the other side."
That might be just one of the long-term effects across language, law, diplomacy and cross-cultural relations of the Dec. 11 arrest of Indian diplomat Devyani Khobragade on charges of perjury and visa fraud, uncompromisingly initiated by Preet Bharara, the U.S. attorney in Manhattan, and just as doggedly contested by India. For a whole month, the long shadow of the dispute fell over all bilateral issues between the world's two largest democracies, unraveling the trust and goodwill built over years and threatening to become a salutary instance, as Indian journalist M.J. Akbar pointed out, of the spoiling of the ship for a half penny's worth of tar.
On Jan. 10, the two countries had just about managed to resolve the fracas through back channels before it got to court. Khobragade was put on a flight to New Delhi, informed she could return to the U.S. -- where she leaves behind a husband and two young children -- at the risk of facing trial. Leaving the U.S. in disgrace, she returned home to something of a hero's reception. In a reciprocal expulsion, New Delhi targeted American diplomat Wayne May and gave him 48 hours to leave India, apparently picking on him because he had used his position in New Delhi to help the family of Khobragade's maid join her in the U.S. last month.
The Khobragade affair tells us much about the workings of democracy and diplomacy -- and indeed about the tension between the two systems. In the beginning, what the international dispute served to reveal was the cultural gap between American and Indian notions of egalitarianism. At the heart of the matter was the U.S.'s argument that the prosecution of Khobragade was a straightforward matter of applying the rule of law to all those residing in its territory.
In India, the perception of both state and society that the arrest (and alleged strip-search) of Khobragade on allegations of paying her Indian maid a salary far below the American minimum wage was a violation not just of the diplomat's dignity but also a deliberate provocation to the whole nation. Nor could the Indian government afford to ignore what commentator Ashok Malik called "the near revolt in the Indian Foreign Service" over the issue. One of India's most powerful elites felt unambiguously that they had been disrespected, and the ire of a number of current or retired diplomats on national television succeeded in making Khobragade a new Indian icon, although at least one commentator wondered if "This is not about justice but an elite's ruffled feather."
The Indian middle and upper classes are accustomed to being allowed a slight cocoon of comfort and respect when they fall foul of the law -- if not to circumvent the law completely by means of a discreet bribe or the mention of a powerful person's name. When the rich and powerful magazine editor Tarun Tejpal was taken into custody last month on a rape charge, the details of his life in jail ("What, no ceiling fan?") drew gasps of horror in many Indian homes, which began subtly to accord Tejpal a sympathy they had never felt for him when he was free. In the eyes of many middle-class Indians, the arrest and humiliation of one of their own people on the trivial charge of underpaying a maid ("Can one ever underpay a maid?") was a barbaric act that couldn't be allowed to go unpunished.
But what punishment to mete out? In the past month, the Indian government has rescinded various "nonreciprocal" privileges and courtesies previously offered to American diplomatic missions in India, and it has stopped import clearances on goods such as liquor. The Washington Post called these measures "petty" and "irresponsible," but many Indians saw them as a delightful comeuppance for a superpower used to behaving unilaterally, arrogating to itself even the power to decide when the rules of law apply and when they don't. When Khobragade was sent home, the Indian government's reciprocal expulsion of May was its last move in a matter in which it has, at least at home, claimed victory.
In the Indian Express, public-policy scholar Kishore Mahbubani agreed, saying India had proved itself to be one of a handful of countries that could stare down the U.S. on the matter of its double standards:
On one hand, the US government is second to none in defending the rule of law at home. On the other hand, the US government is second to none in defending immunity for its officials from all foreign legal courts and judicial procedures.
When the International Criminal Court (ICC) Statute came into force on July 1, 2002, the US government undertook a massive campaign to get over a hundred foreign governments to sign what have been called "article 98 agreements" or "bilateral immunity agreements (BIAs)". These agreements stipulate that these countries would not send US citizens to the ICC. Similarly, the US Congress has developed a long-standing practice of extra-territorial application of its domestic laws on other countries and their citizens. But it is extremely reluctant to allow the extra-territorial application of other countries' laws on its own territory.
This schizophrenic attitude of the US government explains why virtually every other government in the world was quietly cheering on the Indian government as it insisted on total reciprocity in the treatment of Indian and American officials.
But resolution has put in the spotlight what seems to be an equally perplexing double standard or moral inconsistency: that of diplomatic immunity as a (sizable) refuge from the rule of law. After all, India had initially claimed that diplomatic immunity should have rendered Khobragade invulnerable to the treatment to which she was subjected, only to be told that she had the right instead merely to "consular immunity," which has a more circumscribed range. India then transferred Khobragade to its U.N. Mission in New York, which instantly conferred on her full diplomatic immunity -- an immunity that, to Bharara's great regret, recently allowed dozens of Russian diplomats to escape prosecution for misusing Medicaid in the U.S.
The U.S. government could only respond by asking for that immunity to be waived, so that pre-trial proceedings (which had been expected to begin Monday) could start. When India predictably refused the request, Khobragade was just as predictably expelled immediately from the U.S., allowing both governments to finesse the law in a manner that suited their own interests. In the end, a matter that the U.S. had so strenuously argued was primarily a question of the law was resolved by a short-circuiting of that very law through a set of highly technical moves and countermoves between the two states.
Watching all this, the average citizen is entitled to ask: Aren't then the notions of diplomatic immunity, consular immunity (a kind of country cousin), and equality before law at some basic level in conflict with one another (as Mitchell Ross argues), perpetuating the very same morally hollow class distinctions that India stands accused of holding to in its defense of Khobragade? And doesn't diplomatic immunity actually protect dozens of foreign diplomats in the U.S. from prosecution for domestic-employee abuse, as Tony Edson pointed out last week? Is the main revelation from the Khobragade case that the rarefied sphere of international diplomacy allows for possibilities that completely invert the logic of democracy, such as the availability -- to a large elite -- of legal trump cards and considerable state power?
No party emerges with credit in the Khobragade case, including the principal actor herself, who, according to the testimony of her proud father, left the U.S. with these parting words: "You have lost a good friend. It is unfortunate. In return, you got a maid and a drunken driver. They are in, and we are out." Perhaps petulance and class condescension are also meanings that should attach themselves to the nascent noun "Khobragade."
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