US v Devyani Khobragade: BYOM Disaster of India?

US v Devyani
Khobragade : BYOM
Disaster of India?
Chandra Nath
Researcher in Security, Privacy, Law & Justice
The Khobragade BYOM ( Bring Your
Own Maid) affair has created more
sound and fury than many other in our
diplomatic relations with a friendly country.
Did our erring diplomat behave with responsibility?
Did MEA handle it with finesse the
foreign relations matters deserve? Did we as
a people behave with maturity? There is a
lot of gap between what is expected of us
as a nation and how the events turned out.
Did we learn any lessons from it? Did our
response teach the right lesons for our diplomats?
These are questions which need to be
considered as an aftermath of the diplomatic
fiasco.
Our MEA Reaction
It is interesting to study the reaction of our government
to this from the lessons learned perspective.
Then what are the lessons we should learn? What
did our elected Government do:
• Encourage “public servants” to break law.
• Give them immunity after they are caught breaking
law.
• Assure other public servants also that we will
save them if they are caught breaking the law.
• All public servants should be encouraged to steal
from the property of the their personal servants
(their wages are their property!)
• Swear in the Parliament that they will not allow
law and justice of the foreign lands to catch up
with their public servants because our work in
protecting our politicians and public servants
from our law has been successfully completed
and the only task currently left is to do the same
thing in foreign land law courts.
It is NOT US v India
If you still think after all the discussion in the media
that the contention is between India and USA, you
have not read the whole of discussion in depth. It
is a contention between the rights of a privileged
upper class foreign service officer of Indian origin
to exploit the vulnerabilities of a lower class Indian
maid and the rights of an Indian maid to exercise
her rights under laws to protect against “involuntary
servitude”! Our society should have such laws too
because we are a signatory to UN as USA is but
our society is so callous that we have not bothered
to protect the rights of domestic workers. There
are more domestic labor exploitation of maids from
Nepal and other Indian villages in India than there
are exploitation of maids in New York. The only
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difference is that exploiters in New York think they
are above law because they misuse the immunities of
their job in the embassy/United Nations. Since it is a
violation of US criminal law, the case is US v Devyani
Khobragade or else the civil case would have been
( and will be ) Ms Richard v Ms Khobragade! You
can decide whether you want to protect the right to
exploit or right to be protected against “involuntary
servitude”.If you thought it was India v US, you have
not understood the crux of the story being discussed
on the issue!
Where MEA got it Wrong
In USA, the prosecuting authority is under Department
of Justice and the diplomatic matters are under
Department of State. DoS can not influence or make
DoJ drop a charge made under law because that
would be obstruction of justice, a crime by itself!
Not even the Attorney, NY South District can drop
charges because he will be answerable to the possible
charge of obstruction of Justice!
Did the Maid Commit a Crime?
1. For the maid, to have aspirations to get the
green card one day is NOT a crime!
2. For the maid to strike a hard nosed bargain in
return for silence of crimes committed against
her ( for which punishment is 15 years in jail and
perhaps more than $1 Million in compensation)it
is NOT a crime.
3. If she had a lawyer, he would have done that for
her. Lawyer is not committing a crime
4. If she had gone to the immigration lawyer or
INS first, it is not a crime.
5. If she had reported violation of law to the authorities,
it is not a crime.
6. If she had run away from home, it is NOT a
crime.
7. If she had kept in touch with her husband in
India during her missing period, It is NOT a
crime.
8. If the husband did not reveal her whereabouts,
it is NOT a crime.
9. If she had taken advantage of anti-trafficking
statutes of USA, it is not a crime.
10. If she had taken advantage of the Victim Witness
protection programs of Federal Government,
either for herself or for her immediate family, it
is NOT a crime.
Did Ms Khobragade Commit a Crime?
1. If the employer had contracted to pay full minimum
wages with NO intention to pay the same
while asking for A3 visa, it IS a crime.
2. If the employer had kept secret from the authorities
about an alternative contract to pay less
than minimum wages, it IS a crime.
3. If the employer had not opened a bank account
for the maid in USA, it is a violation of law.
4. If the employer deliberately and willfully NOT
paid the maid as per min wages by check or e
transfer, it IS a crime.
5. If the employer had made the maid to work more
than stipulated hours ( as per contract and law)
and not paid over time, it IS a crime.
6. If the employer had kept the passport or other
documents of the maid with the employer, it is
a violation of law.
7. If the employer had intimidated the maid or her
family by false charges or court orders, it is an
offence of intimidating the employee who blew
the whistle.
8. If the employer had publicized on the media
her personal information and intimate writings
like personal diary with out the consent of the
employee, it is a violation of law.
Publicizing her maids cheerful photo, or the information
that her children called her aunt etc. do
not prove that the employer had not committed the
crimes/offences/violations of law listed above. Of
course the defense lawyer will do every thing to obfuscate
the offences and he is being paid for this
job.
Is our nation so dumb?
Are we so hung up on protecting an IFS officer who
committed crimes and dumping an under paid Maid?
Why can’t we do some critical thinking?
Look at the new twist to the story. This is the old
trick defense lawyers use to malign the prosecution.
The maid did not complain she did not get $4500
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PM. Prosecution did not complain the maid was not
paid $4500 PM. The charge sheet complained that
she was not paid the minimum wages as per NY law.
Period. Yes, Prosecution included one sentence that
was wrong. One wrong sentence does NOT nullify
the charge of under paying the maid! Khobrgade
senior has succeeded in confusing the gullible Indians
and the media but can the lawyer confuse the judge
and the jury? This media trial and dismissal of
charges is total nonsense. Those who jump on to
the bandwagon of Uttam Khobragade are proving
themselves to be total fools. The SD NY Prosecutor
is no fool. Check his credentials and achievements
so far by googling “Preet Bharara”
It is a case of a consulate officer taking a maid
under certain legal conditions (A3 visa) and instead
of complying with the visa conditions, engaging the
maid into “involuntary servitude” by means of force,
threats of force, physical restraint, or threats of physical
restraint to that person or another person by
means of the abuse or threatened abuse of the legal
process. Now study all actions taken by Khobragade
after the maid was missing and you will find that
they used all means of the abuse or threatened abuse
of the legal process. If you do not understand about
it, go back and read the facts. The issue here is: Did
DK or her agents engage in any means of the abuse
or threatened abuse of the legal process?
Involuntary servitude
1. Asking NY police to apprehend the maid.
2. Confiscating her passport.
“But what is the scope of servitude? The European
Commission of Human Rights stated that ”in addition
to the obligation to provide another with certain
services, the concept of servitude includes the obligation
on the part of the ’serf’ to live on another’s property
and the impossibility of changing his condition.
Legal scholars interpreting the European Convention
for the Protection of Human Rights and Fundamental
Freedoms (European Convention) have suggested
that servitude refers to “the total of the labour conditions
and/or the obligation to work or to render
services from which the person cannot escape and
which he cannot change.” Scholars interpreting the
ICCPR have suggested that those “labor conditions”
suffered must be economically abusive and create a
dependent relationship between the individual and
her employer” Does Sangeetha’s condition qualify as
“involuntary servitude”? Some IFS fraternity argue
that because she went on official passport, it is NOT
“involuntary servitude” That is total nonsense and
lack of understanding of the law on “involuntary
servitude” and laws governing trafficking in human
labor. It is not the type of passport that determine
“involuntary servitude”. A valid passport issued by
the government and valid entry into the host country
does not preclude “involuntary servitude”. In fact,
it is condition precedent to “involuntary servitude”.
Look at the many writers on the subject have to advance
as their thesis. Here the blackmail is what the
person subjected to “involuntary servitude” suffers.
Just writing some non-sense and not understanding
the comparative rights of individual is total waste of
time of both the writer and the reader. Only advise
one can give these writers is to study and reflect
before you write.
3. Cancelling the passport.
4. Filing case in Delhi HC to deprive the right of
the maid to seek protection of laws of USA.
5. Filing FIR and getting an arrest warrant against
SR in Delhi.
6. Threatening SR’s family in Delhi and harassing
them with police help.
So, DK allegedly committed the offence already. Paying
lower than min wages is only the first offence.
The follow up actions were more serious offence of
“involuntary servitude” Those who do not understand
this tends to come up with bizarre comments
Do we really deserve respect?
Here is a case of a maid who has taken steps 1...m,
none of which is a crime. Here is a case in which
the IFS Officer has taken steps 1..n, each and all of
which are crimes, and crimes against the lowly house
maid. And yet, our government is more gung ho
about immunity against criminal actions of its officer
than bring justice for criminal actions against the
victim, who is a maid, who is also an Indian citizen.
And we are prepared to risk diplomatic relations with
a friendly country rather than bring justice against
the criminal actions of its officer. Here is a case in
which the IFS officer committed criminal breach of
trust against a lowly maid (for which the punishment
is 10 year’s imprisonment even by our laws IPC
409 and consequent dismissal from service) and our
government is only interested in getting the officer
out of the criminal case and bring her back unscathed.
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At least that is what the country’s External Affairs
minister has sworn in the Parliament! A capitalist
country like USA is striving to book our officer and
protect the rights of the house maid. And we could
not care less for the rights of the maid! This is what
happens when people in positions of authority do not
have any sense of justice in them. No wonder Plato
said that the rulers should be philosopher who can
judge what is right and what is wrong and whose
rights are in conflict with whose rights and to decide
what is the right thing to do and that requires the
sense of justice of a philosopher. Instead of this, we
have executives who can not weigh the conflicting
rights but would jump to conclusion based on false
pride and total lack of sense of justice. And we call
ourselves a great nation! An emerging power that
needs to be respected! Do we really deserve respect
of even the lowly citizen of the country leave alone
those of the other nations? You be the judge.
The Key Legal Questions
There are three main legal issues: (i) whether the Indian
official is immune from prosecution? (ii) whether
she was immune from arrest in the first place? and
(iii) Is Indias response to the incident legally tenable?
The key legal question that has arisen in this
episode is whether the Indian consular official is entitled
to immunity from prosecution. Her lawyers have
asserted that she is immune from US jurisdiction.
It is not clear whether India has similarly asserted
that she is immune though India has demanded an
apology which suggests that they think the US has
done something wrong. Most of the media have
reported the US position which is that consular officials,
unlike diplomatic agents, are not entitled,
under international law, to full immunity from criminal
jurisdiction. This is correct. Art. 43(1) of the
Vienna Convention on Consular Relations (1963),
which India and the US are both party provides that:
Consular officers and consular employees shall not
be amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in
respect of acts performed in the exercise of consular
functions.
What Does Justice Demand?
Without justice, decent political society would decline
into anarchy or tyranny. Yet each of us (like
Ms Khobragade ) would like to pursue his/her own
interest, (of saving money by paying below stipulated
minimum wages) unimpeded by civic obligations(of
complying with applicable laws), while others shoulder
our common responsibilities. This inclination is
significantly fortified by certain current notions of
justice, or political right, which designate consent as
the fountain of legitimacy (secret second contract)
and posit a “social contract” as the basis of authority.
But this is patently wrong ethically speaking or
speaking from the point of view of justice. Should
some body who breaks the law intentionally, knowingly,
deliberately and willingly be not punished is
the question. A just society based on rule of law
will catch and punish such law breakers. A society
that protects such law breakers is essentially unjust.
The question is: Do we want to be just or unjust?
The question is: Whether we should cooperate when
effort is made to arraign such offenders and give
them public trial ? The question is: Is it just to
frustrate the process by invoking “diplomatic immunity”
which did not exist in the first place? The
question is: Is it right to frustrate the effort by invoking
objection to the process/procedure where as
there can not substantial objections to the ultimate
aim of justice and is it right to use these procedural
objections to subvert ultimate justice? If you are
for justice, you will be for indicting Ms Khobragade
and not defending her action of under paying her
maid for personal saving of money. She did not do
it for the prestige of the national sovereignty! If
some one says so, it is despicable indeed. And Papa
Khobragade says so and that is what is deplorable
about those who support what Papa Khobragade
says in defense of his daughter! If you are for justice,
you can not agree with Papa Khobragade or baby
girl Khobragade. Does the maid’s desire to get the
green card ultimately reduce the the gravity of crime
committed by Ms Khobra? No. Yes, if Ms Khobragade
can prove in a court of law that she did NOT
under pay the maid and the maid was making up or
telling a lie only for her personal benefit of getting
a green card, then proceedings should start against
the maid for perjury. For this a trial in an open and
independent court should take place. That is exactly
what Papa Khobragade and baby girl Khobragade
do NOT want. Now, it is easy to determine where
justice lies. Papa Khobragade supporting his daughter
is understandable. Why should others support
her because she brought disgrace to our nation and
spoiled an important diplomatic relationship is the
question we should ask ourselves. Justice demands
that the rights of the under privileged should be
protected with vigor. If the maid committed any
crime of false accusation, she should be punished too.
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That is justice. National pride and jingoism have no
place in this issue of crime and punishment.
Signals we are giving for our future
IFS bureaucracy
Crime by Indian Law Too
“Maids vs. Indian Diplomats” (Search this term to
get good reading material of earlier cases) is some
sad stories from India or Indian diplomats and have
nothing to do with India v US. If we refuse to learn
from it, we will repeat it over and over again. Don’t
blame USA for their laws protecting against “involuntary
servitude” . Don’t forget that we are also
required to pass such laws under our obligations to
United Nations. Just think about such “involuntary
servitude” right now right in Delhi or for that matter
in almost all major cities of India. Previously
it was a Nepali maid v Indian diplomat. Now it is
an Indian maid v Indian diplomat. Should we not
think positively rather than try to sweep this matter
under the carpet quoting national pride. National
pride should be to eliminate all forms of exploitation
and “involuntary servitude”. We want all Indians
to be really proud of our society and culture (
and not pseudo proud protecting criminal behavior).
That would mean we behave not reprehensibly. That
would mean we do not act feudal. That would mean
we do not take shelter under diplomatic immunity
for people who broke the law and violated the rights
of a lowly maid. That would mean we also pass laws
against “involuntary servitude”. That would mean
we punish these IFS officers who are “public servants”
under our law of “criminal Breach of Trust” IPC
409 for stealing property of a lowly maid ( underpaying
salary is stealing property of the maid and
our constitution protects life, liberty and property
of all citizen!). John Locke(1632-1704) stated his
belief, in his Second Treatise, that nature on its own
provides little of value to society; he provides the
implication that the labor expended in the creation
of goods gives them their value. This is used as
supporting evidence for the interpretation of Locke’s
labor theory of property as a labor theory of value,
in his implication that goods produced by nature are
of little value, unless combined with labor in their
production and that labor is what gives goods their
value. Locke believed that ownership of property is
created by the application of labor. In addition, he
believed property precedes government and government
cannot “dispose of the estates of the subjects
arbitrarily”. Thank you John Locke. I wish we really
understood you when we included your words in our
Indian Constitution.
Let us for the moment assume that what we and our
government did/responded was right, legal and just.
What are the signals we are giving for our future IFS
bureaucracy and future maids? 1. Encourage our
officers to break or at least ignore the laws of the land
where they are posted because we will always bail
them out. 2. Lie to the foreign governments where
ever and whenever possible. 3.Ignore their feelers
to settle the matter. 4.Declare open diplomatic war
when their law enforcement acts as per their law.
5 Demand our representatives be treated specially
even when their laws do not have any provision for
any special treatment.(In Florence v. Board of Chosen
Freeholders (2012), the United States Supreme
Court ruled that strip-searches are permitted for
all arrests, including non-indictable, minor offenses.)
6.Get diplomatic immunity retrospectively to allow
our diplomats to escape the laws. 7.Assure all our
IFS officers that whenever they break the laws of the
receiving country, we will save them,if necessary, by
getting immunity even retrospectively! 8. Whenever
our IFS officers are expelled from the receiving countries,
we will receive them back with honor and even
consider them for honors and awards for the heroism
shown by them in upholding our sovereignty! 9. Our
citizens who go abroad and “diplomatic maids” will
never get justice in our country and if any thing will
be slapped with criminal charges for demanding their
rights for the minimum wages as per the law exactly
the way they will not be protected by any minimum
wages and laws against “involuntary servitude” as
per the directions of ILO and UN. 10. When these
maids are back on our soil, they will be condemned
to long terms of imprisonment for daring to complain
against their working conditions, the violation
of law of minimum wages and that too in a foreign
land! (How dare you complain about violation of
laws against your mistress and that too in a foreign
land?) “Strange it is, that men should admit the validity
of the arguments for free discussion, but object
to their being “pushed to an extreme;” not seeing
that unless the reasons are good for an extreme case,
they are not good for any case. Strange that they
should imagine that they are not assuming infallibility
when they acknowledge that there should be
free discussion on all subjects which can possibly be
doubtful, but think that some particular principle
or doctrine should be forbidden to be questioned because
it is so certain, that is, because they are certain
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that it is certain. To call any proposition certain,
while there is any one who would deny its certainty
if permitted, but who is not permitted, is to assume
that we ourselves, and those who agree with us, are
the judges of certainty, and judges without hearing
the other side.”–ON LIBERTY by JOHN STUART
MILL 1860.
Attributing Motive for US Legal
Action
One of the India media article reads: ”One former
US diplomat said it was inconceivable that this could
have happened without the sanction of the highest
level at the State Department (Secretary of State
John Kerry) and the U.S ambassador to New Delhi
(Nancy Powell)”. This is bizarre indeed because the
the fundamental constitutional provision of separation
of powers is obviously not understood by these
critiques. The truth is even if they wanted, they
could not have prevented the prosecutor and any
attempt to pressurize the prosecutor will instantly
draw the charge of “obstruction of justice” which
itself is a crime. “Obstruction of justice” is a criminal
offense that involves interference, through words
or actions, with the proper operations of a court or
officers of the court. There will be sharks waiting in
the political side lines waiting for the blood of the
high and mighty in case of an “obstruction of justice”.
Here is a country where even President of USA could
not prevent charges being leveled against himself.
Here is a country that guard the independence of judiciary
very fiercely. When you only have experience
of the executive in India frustrating the delivery of
justice by every action possible, it is very difficult to
understand this. Human learning needs time and exposure
to learn some very simple concepts even! Just
writing some things and not understanding the comparative
rights of individual and the Independence
of the judiciary is total waste of time of both the
writer and the reader. Even if the “former diplomat
to USA” ( and not “former US diplomat” ) has said
what he is supposed to have said, the author should
have questioned the very contention. If a “former
US Diplomat” has stated what ever he purported to
have stated, would you be kind enough to reveal the
name of the former US diplomat. It is inconceivable
for any US diplomat to have stated as he could not
have been unaware of the independence of judiciary
in USA and inability of State Department (Secretary
of State John Kerry) and the U.S ambassador to
New Delhi (Nancy Powell) to influence the decision
making in the Department of Judiciary in USA or
the New York South District Federal prosecutor. No
one can influence him even in a criminal case against
even the New York Governor belonging to the ruling
party at the federal government. A balanced article
is one that is unbiased by ones identities and petty
national pride and jingoism. Only advise to authors
in Indian media is: Do study and reflect before you
write, Mr Author!
Some Patently Faulty Journalistic
Response
One article in the Indian media reads: “The State
Department last week legally backed the insistence
of its law-enforcement brigade that Devyani Khobragade
did not enjoy diplomatic immunity at the
time of her arrest, and therefore US authorities were
not wrong in arresting and detaining her”, author
is implying that the Law-enforcement brigade is doing
a wrong thing by enforcing the laws and also
implying that the State department is colluding with
the “Brigade”. When there is crystal clear evidence
against the consul, Department of State may be compelled
to do the right thing or else they may be
“obstructing justice” which is again a crime under
the law. So, the writers proposition itself is biased
perhaps by nationalistic and jingoistic reasons and
are not motivated by desire to uphold the Rule of
Law. The writer should have been more unbiased in
his reporting. What is the right thing to do seems
to be lost in this nationalistic and jingoistic fervor.
Learn to uphold the Rule of Law and not protect the
law breaker from the clutches of the law. Unbiased
reporting is the sine qua non of good journalism!
Patently Faulty IFS Fraternity
Response
Mr Prabhu Dayal, the ex-Consul General is questioning
the jurisdiction of US Courts to determine
whether Ms Khobragade had broken the applicable
laws. The jurisdiction and guilty/ not guilty as per
applicable laws are both legal issues to be decided by
the SD NY Federal Court and Mr Prabhu Dayal is
not the legal expert on the matter. Why didn’t Ms
Khobragade take the help of Diplomatic immunity
and run away from the trial rather than challenge the
Prosecutor Mr Preet Bharara in the court? Because
she was advised by her lawyer to leave by the first
plane. Why? Because he realized that the risk of
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prison sentence for 15 years is NOT worth taking
and the facts, rules and analysis clearly point to the
inference of her culpability in the criminal matter
before the court. Massaging these legal issues in the
media or in the comment columns (and coming to
the inference that Observer is “incorrect”) do not get
any one any where. The court is the only place these
will eventually be decided. If India wants to close the
Consulates or force US to close consulates in India is
a different issue altogether. There are more people
seeking immigrant and non-immigrant visa in India
than those seeking these in the US. These people will
have to travel to Delhi for visa interview and if that
is the cost you are imposing on many Indians on this
silly but straight forward issue of an employer paying
below minimum wages in NY, the matter can not be
called “amicably settled”, diplomatically speaking.
Massaging the immunity, jurisdiction and criminal
guilt issues in the media and comments can only get
thus far and no further. Mr Bharara has a very high
conviction rate going by his record so far and he is
not a fool to indict with out jurisdiction and probable
cause. I would any day give his legal opinion more
weightage than that of Mr Prabhu Dayal. I am just
being prudent in my judgement!
Some Patently Faulty Indian Public
Response
Indian media’s inference (The US Court or its prosecutor
are not legally the competent authority to
file these charges and to decide the merit of these
charges) is defective in law. US prosecutor knows
what he is doing and if he screws up, his case will
be dismissed by the judge and then Ms Khobragade
could file case for compensation for misery and mental
agony and claim $ millions. Indian media’s effort
seems to be like a common man advising a heart
surgeon how to conduct heart surgery because he
also has a heart! Indian media seems to be advising
the US Prosecutor who is acting under law to provide
“Crime Victim and Witness Protection”. Do we really
think we could advise the Federal Prosecutor with
out even reading the appropriate provisions of the
law? Media seems to be concerned with the type of
visa and not the purpose for which law mandates
to provide assistance for victims and witnesses! Incidentally,
the family was given the T visa. A T
visa is a type of visa allowing certain victims of human
trafficking and immediate family members to
remain and work temporarily in the United States
if they agree to assist law enforcement in testifying
against the perpetrators. I think Indian media need
to do more thorough legal research before we can
comment more purposefully and usefully for the less
well informed readers.
Some Patently Faulty Government
Response
James Stuart Mill said: ”Strange it is, that men
should admit the validity of the arguments for free
discussion, but object to their being “pushed to an
extreme; not seeing that unless the reasons are good
for an extreme case, they are not good for any case.”
If you analyze our MEA actions wrt Ms Khobragade
episode, it looks as if we are going to support
our diplomats/consuls no matter what crimes they
commit including murder. When a public servant
commits a crime as a private individual ( and that
is what has happened in Ms Khobragade’s case) the
privileges/immunities should be with drawn and they
are to be made to face the courts as private individuals.
Instead we extend fresh diplomatic immunities
hoping that it will take effect with retrospective effect.
There is lot of lack of critical thinking in the
way we dealt with the private crime of an Indian
official. A responsible and just government would
not have created diplomatic immunities where non
existed just to protect the pubic servant from being
prosecuted for crimes committed by the public
servant knowingly, willingly and recklessly! If the
government does this, then they are committing a
criminal breach of trust against the victim of the
crime. The amnesia of the IFS bureaucracy is so
great that they have pronounced even with out a trial
that the only victim is MS Khobragade and not the
lowly maid whose rights were violated by this public
servant. Are we devoid of power of critical thinking
to this extend? National pride and jingoism should
not have been allowed to over come the acute need
for bringing justice to the victim of the crime. By
bringing in the “green card” angle, the government
is pulling wool over the eyes of the public. The only
question worth asking is: Did Ms Khobragade commit
a crime? If the answer is yes (and this can only
be decided by a fair trial in an open and independent
court and Ms Khobragade did forgo an opportunity
to prove her innocence by taking the immunity route
and escaping from law) then, she should face the
rigors of law including imprisonment awarded by an
independent court. Ms Khobragade is currently just
a fugitive!
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Total Bias Against the Maid
In the imaginary society, one might or might not
be intelligent, rich, or born into a preferred class.
Since one may occupy any position in the society
once the veil of ignorance ( ala John Rawls of Theory
of Justice) is lifted, the device forces the parties to
consider society from the perspective of all members,
including the worst-off and best-off members. In
this case, those who want to judge the issue, you
should put a veil of ignorance ( not knowing whether
you are going to be the exploitative foreign service
officer or the exploited maid) and decide whose rights
were violated by whom. Those who are unable to
put the veil of ignorance is not qualified to make a
justice oriented opinion. If you have bias towards
the IFS officer, you are biased against the maid. I
can understand individual biases. But for a whole
government and people of a country being biased
against a domestic maid is shameful indeed!
Rule of Law
And we want to save a “public servant” involved
in imposing involuntary servitude against another
citizen of the country! The possibility of Sangeetha
Richard getting a green card does not reduce the
nature of the alleged crime committed by the “public
servant”. And the jurisdiction of the NY SD Federal
Court and the “innocence” of the Indian Consul can
not be arbitrated in the Indian media but has to
be decided in the Federal Court. Why didn’t Mrs
Khobra challenge the Federal Prosecutor to prove his
case? Why did she take the first plane to leave USA?
Why did his lawyer advise her to leave? Of course the
defense lawyer will prolong even the most hopeless
case to extract as much fees he can and especially so
if the generous Indian tax payer is willing to save the
alleged criminal from sure prison sentence! Has any
one of you asked the the right question of why should
the Indian tax payer pay for saving a law breaker?
Writing drama with out understanding the rudiments
of the case may satisfy the misplaced national pride
of some people. Real national pride should be in
upholding the Rule of Law and NOT subverting it.
And we are also a nation who should be upholding
the Rule of Law. Our legal system like the US one,
also originated from the English common law where
the Rule of Law is upheld and no one is above law
including the King Emperor of Engalnd!
Justice is to be decided with out
biases
What is justice is to be decided with out biases of
nationality or race and that might be bitter sweet
for the liking of those who have inherent biases of
nationality and race! In English law, natural justice
is technical terminology for the rule against bias
(nemo iudex in causa sua) and the right to a fair
hearing (audi alteram partem). While the term natural
justice is often retained as a general concept, it
has largely been replaced and extended by the more
general ”duty to act fairly”. The basis for the rule
against bias is the need to maintain public confidence
in the legal system. Bias can take the form of actual
bias, imputed bias or apparent bias. The right to
a fair hearing requires that individuals should not
be penalized by decisions affecting their rights or
legitimate expectations unless they have been given
prior notice of the case, a fair opportunity to answer
it, and the opportunity to present their own case. In
Europe, the right to a fair hearing is guaranteed by
Article 6(1) of the European Convention on Human
Rights, which is said to complement the common law
rather than replace it. By running away from a fair
trial and right to be heard by a fair court and trial,
Ms Khobragade has forgone her own right. This can
not be compensated by trial through media either
by her or Papa Khobragade. Stare into the eyes
of natural justice for truth, not at the biased and
jingoistic opinions of individuals/media! What we
do not need are jingoists or boot-lickers!
Conclusion
The Socratic Method of arguing suggests: If you do
not want to be treated as a criminal in USA, do NOT
commit a crime on US soil. Instead, stupidly, we
(our Govt and some among us) are arguing: Change
the Laws of USA so that our actions are not a crime
there and change the SC ruling on strip stretch for
criminally accused when they are arrested! Ms Khobragade
was treated exactly as they would treat their
own citizens who commit a crime. Strip search is
for safety of the arrested accused against suicide and
more so for the safety of others in prison. To the
question people arrested for minor offences should
be “strip searched”, Justice Kennedy responded that
people detained for minor offenses can turn out to
be the most devious and dangerous criminals. He
noted that Timothy McVeigh, later put to death for
his role in the 1995 Oklahoma City bombing, was
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first arrested for driving without a license plate. One
of the terrorists involved in the Sept. 11 attacks
was stopped and ticketed for speeding just two days
before hijacking Flight 93, Justice Kennedy added.
Is there any case at all for us to make such a hue
and cry about? Mauritius Ambassador waived his
immunity and faced the court and pleaded guilty
and paid the fine and compensation to his maid in
2012. Why shouldn’t Ms Khobragade do the same?
Of course she wanted to escape prison because she
lied also. Current effort by the Defense attorney to
get the charges dismissed is unlikely to bear fruit
as that would be totally negating the strict laws
of USA against human trafficking and ”involuntary
servitude”.
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