Both India and the US are raucous democracies whose citizens openly vent their feelings and are prone to much chest-beating and fist-thumping. So when India’s Deputy Consul General Devyani Khobragade stationed at New York was subjected to a humiliating arrest and strip-searched for alleged visa fraud and labour violations against the Indian maid she hired for domestic chores it resulted in a blizzard of recriminations that threatened to put a freeze on the cordial relations between the world’s most powerful democracy and the largest.

With so much verbiage on the subject, it is difficult to separate the grain from the chaff. It is apparent though that Khobragade was wrong in making a false declaration to US authorities that stated that she was paying the stipulated legal minimum wages to her maid but allegedly not doing so in reality. But the treatment meted to her for that act, given her diplomatic status and the fact that she had already alerted US and Indian authorities about her maid’s shenanigans, was harsh and misplaced.

A police car in front of India’s UN permanent mission in New York, where Indian diplomat Devyani Khobragade has been transferred for her to get full diplomatic immunity. AFP

At the end of the turbo-charged week, there were essentially three issues that needed to be sorted out. The first and most important is that India and the US need to reach an amicable solution over how to proceed with the Khobragade issue. The stand of the Ministry of External Affair (MEA) is that apart from an apology over the treatment meted out to Khobragade, the US should drop the criminal charges against her. John Kerry, US Secretary of State, did express regret over the incident but his department has so far not committed itself to dropping charges against her.

The State Department’s reluctance may partly be because of US district attorney Preet Bharara who investigated the case. Bharara has a reputation of being a giant killer, including felling the formidable Rajat Gupta in an insider trading case. The MEA’s argument is that Khobragade was clearly not involved in human trafficking of the kind that invites serious felony charges and such treatment. Bharara’s tersely worded rebuttal offered no remorse or avenue for reconciliation. So the US State Department would now have to agree to a diplomatic override to sort out the imbroglio. A solution seems to be emerging with India transferring Khobragade to its UN Mission in New York, which if accepted by both the UN and the US should give her diplomatic immunity from further arrests or attending the trial, though the case will continue to progress in the US court.

The second issue that needs to be settled is the diplomatic rules of the game. While citing the Vienna Convention that governs such interactions, the US and India have given their own legal interpretation as to the level and functions of diplomats that would be eligible for diplomatic immunity. That saw the MEA resorting to retaliatory tactics, resulting in earlier concessions made to US diplomats stationed in India being withdrawn. The sooner the foreign ministries of the two countries sit down together and reach an agreement on the issue the better for relations.

If these two issues — getting Khobragade immunity from trial and working out the diplomatic rules of the game for the future — are sorted out, then there is a third major issue: How to prevent another Indian diplomat from being charged with the same crime of paying less wages to their personal staff? If there was outrage over the treatment meted out to Khobragade in Indian Foreign Service (IFS) circles it was because at some point of their career they may have been in the same predicament and may have had to bend the rules or even break them.

The onus is now on the MEA to come up with innovative ways out. Senior diplomatic staff do require assistance in postings abroad to carry out their duties efficiently. Hiring locals to take care of their houses on such trips compromises their personal safety as well as exposes them to the dangers of being spied upon. It would also be unfair to expect the spouses of such diplomats to commit themselves to housework or babysitting on such stints and give up their own career opportunities. Also, there is an increasing number of women diplomats like Khobragade joining the IFS who would have to balance the needs of their jobs and running a home. For that they would need assistance at home.

With the salaries that the government pays them they cannot afford the mandatory minimum wages. So the MEA should push the government to come up with a workable alternative. There is a proposal by the MEA pending with the Union Finance Ministry for the past year asking it to treat maids as contractual employees, as are a legion of other office staff that diplomats have. This classification would mean that diplomats would have to pay them minimum wages as prescribed by India rather than the country they are posted in.

The Ministry of Finance has been reportedly reluctant to clear the proposal because it is concerned that such employees may over a period of time demand regularisation of their services and also want a pension. The Government of India needs to move quickly and find a solution. For it will set a terrible precedent if it starts defending an employee that has violated the law in another country, whatever be the reason.

raj@tribuneindia.com