From cases in New York, to airport searches, and legal summons.
By Sujeet Rajan
NEW YORK: With the US acting like an avid storm watcher, and India wriggling like snakes thrown into a pit – over the arrest of Devyani Khobragade, it may seem odd to some observers as to how can sworn allies becomes foes overnight. But there’s history to this animosity between the two countries, emanating in New York City.
Even as bonds of friendship and business ties between the two countries were being forged in Washington, DC, and New Delhi, an increasing number of incidents which both considered egregious on the part of the other, threatened to crack open the hollowness of this friendship built more on economic needs, than cultural similarities.
Diplomatic niceties, however, meant that wrath, chagrin were kept in control. Steam was blown in the form of an apology given or received. The bonhomie teetered several times, stopped short of bitter exchange of words, stayed within diplomatic angst. Unfortunately for Khobragade, she unwittingly has become the victim and the lynchpin of this all-out war finally in the open, with the US drawing their gun first like in an old Western film.
It remains to be seen who shoots down the other – usually the hero in a western film rarely goes for his holster first – or if they both find the target, sever diplomatic ties, damage it irreversibly.
Six years ago, in 2007, Sri Srinivasan, who is now the United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, arguing as an Attorney on behalf of the US Solicitor General’s office – who ironically were in support of India against New York City – told a court that if New York City tried to force India to pay $16 million back taxes due on its properties in the city – it could “eviscerate†the Foreign Sovereign Immunities Act. He also appealed to dismiss the case against India brought about by the Southern District of New York. The State Department, he said, was worried there could be prompt retribution against American interests overseas.
At issue was the city’s grouse, starting in 1991, against India’s Permanent Mission building in Manhattan, on 235 E 43rd Street. It claimed that India receive tax exemption for the portions of the building used for their diplomatic mission, but are obligated to pay taxes on the 20 floors in the building devoted to housing diplomats, their families, and staff. India resisted paying the money, saying the building is covered by diplomatic immunity.
In 2008, a Federal court in New York ruled in favor of the city, ordering India to pay $42.4 million in back taxes. India, however, appealed successfully, and in August of 2010, got the order reversed. It was a bitter result for the city, who had got support from the Bloomberg administration and the then Sen. Hillary Clinton as well, in its move against India. It also happened under Preet Bharara’s watch, who had been sworn in as US Attorney for the Southern District in New York, a year ago, in August, 2009.
Almost around the same time as New York lost it case against India, in 2010, a case was filed by a maid, Shanti Gurung, against a Consul in the Indian Consulate, Dr. Neena Malhotra and her husband Jogesh, of several charges, including human trafficking, ill-treatment, and forced to work without pay. That case was decided in favor of the maid, who was awarded almost $1.5 million, in February, 2012. But the Malhotras had by then left for India. No money was paid, which technically was India’s obligation.
In June 2011, another case of a maid complaining against an Indian diplomat surfaced: this time, the Consul General, Ambassador Prabhu Dayal, was accused of several charges, including forced labor, and paying less than what was promised. Charges of sexual misconduct and being forced to sleep in a small enclosed space, a closet, were dropped. The case was settled out of court in 2012, for an unspecified amount of money.
As these cases against the Indian Mission and the Indian diplomats dragged on, Bharara was having a terrific stint in pursuing other high profile cases: bringing criminals to justice, and behind bars, like financial swindler Bernie Madoff, notorious arms dealer Viktor Bout, the Times Square bomber, Faisal Shahzad. He convicted scores of insider trading defendants, including Raj Rajaratnam, who was sentenced to 11 years, and Rajat Gupta.  Bharara’s office has also collected almost $500 million in settlements since its inception, including multi-million dollar settlements with Deutsche Bank and CitiMortgage for faulty lending practices, and has gone after cybercrime in a big way, prosecuted core members of the computer hacking groups, LulzSec and Anonymous.
Despite all this success, the one thing that seemed beyond Bharara’s reach seemed to be the Indian diplomats and the Indian Mission itself.
There are 289 foreign missions and consulates in New York City. There are scores of missions and consulates from the developing world, who pay wages to their staff far below the minimum wages mandated by law, reports have come out on that. But it’s India Bharara has targeted to set a precedent, the Deputy Consul General of the Indian Consulate, Khobragade, who has been arrested.
The way Bharara has gone after Khobragade, down to bringing the husband of the maid and their children, to the US in a covert manner – for her husband to be a witness in the case – suggest he has planned his case well. He is not leaving anything to chance, and the State Department gave him the signal to go ahead, contrary to their stand against the Indian Mission in the tax evasion case.
Even though the cases against Malhotra and Dayal were civil cases, this time, the case against Khobragade is a criminal one, could land her in jail for as much as 10 years. So why were those two cases seen as a civil matter, but the case against Khobragade to be determined criminal?
In India’s case, her grouse against America stems from several factors, which has often seemed irrational, insulting, racist, and even puzzling. There have been repeated, almost to the point of being made into a joke, of airport body searches of top Indian politicians, diplomats, and actors. Often times, a quick apology has been followed by another incident, making the apology seem more insincere than anything else.
And an increasingly used tactic of late, by some vested groups in the US, is to serve summons to visiting Indian politicians, to try them in the US courts for heavyweight cases in India. The Congress President Sonia Gandhi has been given time by a Federal court in New York till January 2, 2014, to respond to a Sikh group’s charges of involvement in the 1984 anti-Sikh riots after the assassination of Prime Minister Indira Gandhi. Summons has been issued against other politicians, including Union Minister Kamal Nath, Punjab Chief Minister Parkash Singh Badal, and even to the Prime Minister, Dr. Manmohan Singh.
Nothing has come out of these summons till date; the cases are played out by lawyers in courts around the country, without the defendant being present. But the Khobragade case is a warning to India and its politicians: they may ridicule it, scoff at the danger of being convicted in the US of a case in India, but the reality is that they could be prosecuted.
With the State Department making it clear that they are not willing to drop the charges against Khobragade, and Bharara himself issuing a stern statement, defending her arrest, there is a real possibility of her being jailed, if found guilty of the charges.
What happens then? Does India, apart from its action of withdrawing some privileges for American diplomats as they have already done, recall its ambassador – the new ambassador has yet to take up his post in DC – jail a couple of American diplomats back home, and let this become an issue which will blow out of proportion, cause a serious rift in matters outside of the diplomatic realm also, create perhaps a new world order.
For that, go back to the scenario of the old Western film. Who will blink first, who will shoot. We can only wait and watch this play out.
(Sujeet Rajan is the Editor-in-Chief of The American Bazaar.)Â
To contact the author, email to sujeetrajan@americanbazaaronline.com