Indian Diplomat, Indian Worker and American Law

This story is old. After chewing and re-chewing multiple times, this tale was pushed to the backyard. Just for the sake of curiosity, I would like to revisit the facts.

Characters in this story - both Devyani Khobragade, deputy consul general in New York, her maid Sangita Richard are Indians.

Khobragade hired Mrs Richard as a domestic help. According to written contract submitted as part of visa application, Khobragade agreed to pay $9.75/hour for a 40 hour work week. Application continued to state that Richard will make around $4500/month. So far so good, but the problem comes next. There was one verbal agreement between Khobragade and Richard. According to this, Richard’s salary would be 25,000 INR/month with an additional 5,000 INR for overtime. If we consider the exchange rates at that point of time, this would be around $573 ($3.31/hour).

It looks like neither Richard nor Khobragade informed anything about the second agreement to US authorities before she left India. Obviously they won’t agree on issuing a visa for an applicant whose salary would be less than legally accepted minimum wage.

Many things happened after that; Khobragade complained; India revoked passport for Sangita.

Khobragade was arrested by US Department of State's Diplomatic Security Service. According to Indian media, she was subjected to hand cuffing, strip search and cavity search.

As per the statement from Nikki Credic-Barrett (spokeswoman for the U.S. Marshals Service) "Khobragade was strip searched but not subjected to a cavity search... anyone taken to holding cells of the New York federal courthouse is automatically subjected to a strip search if they are placed among other prisoners".

As Khobragade was attached to Indian mission in US, this became a problem between two. India naturally invoked Vienna Convention on Diplomatic Relations (signed by both India and US) to get full immunity for Khobragade.

Article 29 and 30 of the convention says that (you can find the convention here http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf,

Article 29
"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

Article 30
"1.The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability."

As per Article 32, "The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State."

It is to be noted here that, as per artcle 34 "A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional..."

I think US could have inform and ask GoI to initiate actions against the diplomat (in case she would found guilty). Even though US prosecutors won’t get what they wanted (Khobragade might walk free from an Indian court), I still think this is the best way.

At the same time, I would like to ask some questions,

1. Khobragade might be well aware about US laws on minimum wages and Visas. Why she created a second agreement with Richard?
2. Isn't better for her to pay the full wages, in case she want to employ a house maid?
3. Arguments about her low salary won’t stay in this case. She is 'married to an American citizen, New York-born Aakash Singh Rathore, a Professor at the University of Pennsylvania'. Moreover it’s not the basic right of Khobragade to have a house maid. Because of her position, Khobragade's salary might be tax free.
4. What about Richard's version of the story? Indian media hardly focused on her version.
5. Are Indian and US administration so incapable of handling this entire sequence of events as a low key affair?

Still time is there. US and Indian officials can sit down and talk. There is no need to flex the muscles; US need to understand that their past run-ins with many other governments don’t paint them as a dove. Raymond Davis incident in Lahore didn't happen long time back. US can easily reach a settlement and put a full stop on this issue.

Indian government also have to do a lot of hard work. If I am not wrong, many Indian nationals are still held as hostages by pirates; many Indians are facing regressive working conditions and exploitation in foreign countries... Why government is not acting swiftly in those cases?

Relations between two nations are bigger than a couple of individuals or issues between them. After all both alleged victim and the accused are Indian nationals. It is better for both nations to find  a face saving measure and go on.

References

1. More skeletons tumble out of Devyani Khobragade’s cupboard - FirstPost
2. Devyani Khobragade incident - Wikipedia
3. 3 options available to US on Devyani Khobragade case: Sources - DNA
4. Leading to Devyani's arrest, a verbal deal and 'two contracts' - Financial Express
5. Diplomat arrest: PM says US action deplorable, Khurshid smells rat - The Hindustan Times
6. Devyani Khobragade incident: Both sides of the story - IBNLive
7. US agreed to deport Devyani Khobragade's maid before changing tack - TOI

ITRA – Policy Paralysis or Lack of Imagination?

“R&D projects of Information Technology Research Academy (ITRA) in the areas of ‘Mobile Computing, Networking and Applications (ITRA-Mobile)’ and ‘IT based Innovations in Sustainability of Water Resources (ITRA-Water)’ have been launched... Shri J Satyanarayana, Secretary...further emphasized that the initiative is in line with the R&D framework of DeitY which has been drawn up to strike the right balance between basic and applied research and addresses some of the domains which have been emphasized by the R & D framework such as Agriculture, Water, Energy etc. He further stressed that R&D focus must culminate into transfer of technology and commercialization of research. 

14 team projects have been initiated at 44 institutions across the country in these two areas of ‘ITRA- Mobile’ and ‘ITRA-Water’. These projects are expected to enable in the generation of about 150 quality PhDs. More areas for initiation of R&D team projects are under consideration.” - GoI Press Release.

Because of curiosity I went through the list of participating institutions. You can see the list here -> http://medialabasia.in/itra/itra/index.php/getting-involved/menu-itra-institutions. Interestingly I am not able to find any private companies there.

It is good to promote R&D and commercialization of research; it is good to bring in academic institutions. But, why government is not so interested in bringing private companies? An academic-industrial partnership will create better results, than making these projects simply another government funded ones. Focus should not be on more PhDs but on the viability and real potential of these projects.

One can take a metal oxide, spend some three years, and come up with a PhD; but how far these PhD are useful for industry and(or) society? That’s what we have to focus on. There are hundreds of small and big Indian companies working on mobile and networking. Why don’t bring them in?

Sajeev.

2013 in Retrospective

This year is almost over; some more hours to go to see the beginning of 2014. When 2013 comes to an end, I am just thinking on what I did in this year? There are some bright lines, and of course some not so bright lines as well.

Three things 2013 taught me are,
1. Change - the only constant thing in the world;
2. Dedication - it is important to dedicate the life for a cause, no matter whether it is to pass an exam or to climb a mountain;
3. Priorities - life is full of priorities. Some things are more important than others. The early we realise the better it will be.

Knowing a fact is different from understanding the same. I don't know whether I really understood the above mentioned ones, probably not. May be I can add it to the list of resolutions for next year.

Wishing a bright and prosperous new year too all. May this year turn out to be better than all the previous ones...

Sajeev.

Silent Valley – Through the Valley of Silence

I was supposed to wake up early, supposed to have an early breakfast and supposed to take an early bus. But none of these things happened. I woke up late, skipped the breakfast and missed probably first and second bus. It was not supposed to start like that.

Some months back I and my friend Shihab discussed about visiting Silent Valley NP. This one is the closest NP to my home, school, collage; but I never been to these forests.

Unfortunately when only three days left for the D-Day, Shihab fell down from steps and expressed doubts about visiting the park. On that particular morning when I called him from Mannarkkad bus stand, he was not in a position to walk. Nothing else was planned for the day, so I decide to continue my journey and boarded an Anakatty bus to Mukkali.

Silent Valley

Let me spend the time to reach Mukkali to give you an overview about this national park.

Silent Valley NP, part of Nilgiri Hills and located in iconic Western Ghats, is one of the last stretch of land in Kerala not disturbed by any human activities. This small, ever green forest has a core zone and an associated buffer zone.

AKA Sairandhrivanam

According to legend, Draupadi - wife of Pandavas disguised herself as Sairandhri during their years in exile and served as queen Sudeshna's assistant - visited this place and reached the banks of river flowing through the forest. Drupadi and Pandavas were amazed by the view of a tiger and an elephant drinking water together both at dawn and dusk from river. After viewing these harmonious relations they decided to halt here.

First English expedition to these forests was during the time of Company in 1857 by a botanist called Robert Wight. They named this area Silent Valley because of the absence of Cicadas. During my visit I heard their sound; according to the driver and guide they exist on the sides of forest roads only - not inside.

Silent Valley was declared as Reserve Forest in 1914. However, timber available from these areas were so tempting that the lengthy hands subjected the land to forestry operations from 1927 – 76 (49 long years).

Administrators had other ideas also in the mind. In 1928, a location on Kunthipuzha River at Sirandhri was identified as an ideal place for hydro electric project. Later in 1958, project was revived and government conducted a study and survey of this area for a 120MW project at a cost of 17 crores. This decision resulted in one of the fierce movement for saving environment in Indian History (in 70s, aka ‘Save Silent Valley). In 1983 then Prime Minister, Indira Gandhi, decided to abandon the project and Silent Valley became a National Park (formerly inaugurated by Rajiv Gandhi in 1985); latter in 1986 this area was included in the core zone of Nilgiri Bioreserve.

The main arguments rose for the conservation forest was its uniqueness and her iconic (as well as endangered) Lion Tailed Macaque.

In 2001 Kerala State Electricity Board and Kerala government woke up and removed dust from Silent Valley files. This time they proposed another dam – just 3.5 km away from original position and 500m outside the park boundaries. This announcement was followed by another round of protests. Finally this eco-friendly (according to government) plan was moved to freezer. One positive fallout from this fiasco was the proposal to create a buffer zone. This buffer zone later increased the overall area to 236.74 Sq.Km.

Main rivers draining this park are Kunthipuzha (later joins with Bharatapuzha) – one of the last rivers in Kerala which has a clean catchment area and Bhavani (flows to eastern and cross borders).

In Silent Valley you can see birds like – “Malabar Parakeet, Malabar Grey Hornbill, Nilgiri Wood pigeon, White-bellied Treepie, Grey-headed Bulbul, Broad-tailed Grassbird, Rufous Babbler, Wynaad Laughing Thrush, Nilgiri Laughing Thrush, Nilgiri Blue Robin, Black-and-rufous Flycatcher, Nilgiri Flycatcher, White-bellied Blue-flycatcher, Crimson-backed Sunbird and Nilgiri pipit...Ceylon Frogmouth and Great Indian Hornbill” – Wikipedia.

... Red winged crested cuckoo, Malabar Pied Hornbill, Pale harrier...Black-and-orange Flycatcher... most abundant bird was the Black bulbul – Wikipedia.

Mammals include Lion-tailed Macaque, Niligiri Langur, Malabar Giant Squirrel, Nilgiri Tahr, Peshwa’s Bat (Myotis peshwa), Hairy-winged Bat etc – Wikipedia.

From Mukkali Forest office to Sairandhri forests

After going through several hairpins in Mannarkkad – Anakatty road, I finally reached Mukkaly. Forest office is located within a walkable distance.

There wasn’t any one waiting for a vehicle to go inside. Only a group form Bangalore was standing outside - but they already visited the park. Forest Department provide two type of facilities for tourists visiting the park – Jeep (Mahindra) and mini bus. Jeep can carry a maximum of 6 people - excluding driver and guide; minibus can carry 20+. If I am going alone, I have to pay around 1100. Hence I waited for someone to come. Two more people came and they were ready to take me in, but they may continue waiting for another two for rest of their friends.

I waited for another half an hour. No one came. Finally I decided to go alone. Forest officials requested me to wait for some more time. I want to see the forest with sun’s bright and soft early rays. Suddenly, a couple from Kottayam came and I went along with them.

We started our journey in an old Mahindra Jeep through the mud roads. Jeeps are good for that surface, but our jeep was not at an ideal vehicle for viewing forest. First of all it’s completely closed with a non transparent cover. Back seats are aligned perpendicular to driver’s seat instead of arranging it parallel.

We stopped first to sign in a forest check post and then to see animals/birds/lion tiled Macaques etc. At one place there was a small waterfall, we stopped there for drink some water and take rest.

After travelling some 23kms we reached Silent Valley’s core zone; another one and half km to reach the viewing post. From this multi-storey high viewing post one can see Kunthipuzha River Valley and many other forest ranges.

Strict rules are in place for core zone. Tourist can go only one and half km and then a trek to Kunthipuzha. One can see paper, coffee etc in the beginning of buffer zone but nothing in core zone. Only research scientists – with relevant records and advance permissions – can wander through the core zone.

I was interested in the one km trek to Kunthipuzha River. What’s the point of going to forest, if you can’t trek? But the couples were reluctant to go. I decide to go alone, but then the guide told that travellers can’t go alone. As per the rules he is required to accompany me. I informed the couple that, I would like to go for trekking and see the river. This will of course add another half to one hour waiting time to their schedule (but this is part of the package). In the end I agreed with the guide and dropped the plan.

I still regret that decision. I could have press the matter and go to river. I don’t know why I agreed with them. May be I don’t want to go against so many opinions at that time, maybe I don’t want somebody else to wait because of me. However, now when I am looking back I think that was indeed a wrong decision. I don’t know when I will visit Silent Valley again. Kunthipuzha, when I will see your origins?

Sajeev.

References

1. Wikipedia.

Right to Privacy, Snooping, Electronic Surveillance and Government of India (GoI)

"On November 15, a pair of investigative portals released a set of audio transcripts depicting an extraordinarily invasive and scrupulous surveillance of a young woman by the Gujarat Police." - The Hindu (Nov 22)

"Private detectives forge relations with policemen and unsuspecting people in telecom companies, as they have access to call data... Fresh arrests in a case relating to 'BJP' leader Arun Jaitley's call records being compromised have re-instilled fears on the snooping front... how private detectives were increasingly prying on personal details." - Business Standard (Nov 16)

We Indians generally don't care much about privacy. You can meet a person on a train and extract his family details in first 10 minutes itself. We often hesitate to say no... We often hesitate to say 'Sorry, its personal'.

An old friend once told me how much shocked he was, when heard about his salary details (break down structure) from future in-laws. This was not an isolated incident. Many times I got calls from marketing representatives on business phones, which I never shared. Spamming is an ever increasing problem.

These two incidents plus Radia tapes are shedding lights to dark areas of snooping into personal data, and compromising the right to privacy. Radia tapes revealed many things; but the point is, government was recording the conversation - according to some imaginary objectives. Worst part is, someone - who has access to these records – was ready to disclose this information to public. This raises new questions on how safe your private details are in government's hand.

Now I am really worried about the new initiatives from GoI. NatGrid, Aadhar etc may help government to manage and verify information. The million dollar question is, how secure this data with government? Access to NatGrid, Aadhar gives unprecedented privilege in the hands of many individuals in government. Will they live up to the expectation?

What you think about Aadhar id? Is it safe to reveal that id to someone else? If not, then what about our ids moving here and there in the files of gas agencies, banks, MGNREGA officials etc? Probably never in the history of India, any bureaucrat got the control such highly specific information. Here we are not talking about a name, address or phone number but fingerprints, iris images, unique ids etc.

Do you think this information is safe in government hands? Especially when,

"Investigations into Jaitley case revealed a group of private detectors had connived with police officers of the rank of assistant sub-inspectors, head constables and constable in the office of the ACP. These rogue policemen illegally sent mails from the ACP's office to service providers, seeking call details of politicians, businessmen and journalists. The scam was uncovered after one of the eight telecom service providers turned suspicious and decided to verify with the ACP concerned. So far, four policemen and a couple of private detectives have been arrested in the case."

We Indians need to think more about our privacy. Think twice before giving all your information in social networks. Think thrice before handing over PAN cards, Passport etc to someone else.

In a country which is much worried about terror networks and other internal and external agencies working 24*7 to destabilize the country, electronic surveillance is a good weapon in the hands of law and order officials. However in the absence of a strong and robust legal framework, these data may not be in the safe hands.

Suggestions

I think executive, legislatures and judiciary need to take a look into below mentioned points,

1. All snooping and surveillance activities should be in accordance with a new law passed by legislature not through an executive order.

2. Terms like public order, national security, destabilizing the country, public safety, defence of India rules etc should be defined clearly.

3. Any snooping activities should be authorised at very high level officials.

4. Any private information acquired using electronic surveillance and (or) not followed the due process of law and (or) leaked to public domain should be inadmissible as evidence in courts.

5. Any such individual, or government official leaking telephone calls and other private information to general public or a group should be prosecuted (exception can be given, if leaking is under extraordinary circumstances and in the best interests of nation).

6. Colonial era laws - like Indian Telegraph Act etc - which served the purpose of colonial overloads should be replaced immediately.

7. Every citizen should have the right to privacy. Until and unless it serves the best interests of the nation (as per the due process established by law), no citizen of India be subjected to electronic surveillance.

8. Government machinery should not be misused for making private and commercial gains.

9. People who have access to order surveillance and power to access very confidential information should also be responsible for the protection of information so acquired.

10. All surveillance requests should be authorized by a screening committee which includes at least a person each from judiciary and Ministry of Law.

I hope GoI will look in to recent incidents and come with a robust framework.

Sajeev.

Reference

1. Surveillance and its privacy pitfalls - The Hindu

2. Private sleuths have easy access to personal call details - Business Standard