Devyani has always been on the right side of the law, says sister Sharmistha

Sharmistha Khobragade, the sister of Devyani Khobragade, the Indian Foreign Service official at the eye of the diplomatic storm between India and the United States, has claimed her sister is innocent of all charges. Devyani was arrested last week and charged with falsifying the visa application for her domestic help, Sangeeta Richard, as well as paying Richard below the statutory minimum wage in the United States. The arrest caused a huge uproar in India, which condemned the action, insisted Devyani had diplomatic immunity and demanded all charges be dropped. However, the US authorities led by district attorney Preet Bharara have refused to change their stand and insisted that Devyani’s case will go to court, though, Devyani has been exempted from appearing in person for pre-trial processes in the case. Complicating the matter is the fact that Richard had allegedly tried to blackmail the Indian diplomat, demanding $10,000 and assistance in obtaining a long-term US visa, according to Khobragade’s attorney. At Khobragade’s request, the Indian government brought charges against Richard for breach of contract and obtaining a passport with the intention of immigrating to the US. That case is currently being heard in the Delhi High Court. [caption id=“attachment_1305085” align=“alignleft” width=“380”] Devyani Khobragade. PTI[/caption] Below is Sharmistha’s defense of her sister, that was posted on her Facebook page: Devyani’s detractors have two main arguments against her: 1) Devyani should not have hired a domestic servant if she could not afford to pay her the US minimum wages. 2) Devyani is not above the law and if she has violated it, she should be prosecuted and punished for violating it. These are humanitarian arguments, the positions that any good human being should take and the moral high ground that many Americans are taking. Devastated as I am about Devyani’s ordeal, the optimist in me is seeing a very faint silver lining around this dark cloud. People in India are starting to talk about amending labor laws in India to ensure that domestic servants get a fair minimum wage. This to my mind is the only good thing to come out of this mess. I would urge all of Devyani’s detractors to walk the talk now and to advocate strongly for this amendment. Should these laws be changed, Devyani is anyway on the right side of them. She always was, here and in the US. Let us assume for one minute that Devyani is a privileged Indian who has never lifted a finger in her life to do domestic work. This is patently untrue, but let us assume it anyway, just to humour everyone. Devyani is posted to the US and takes a domestic worker along to take care of house work and child care. In the US, minimum wages are 9.75 dollars an hour. The figures for minimum wage differ in the US (from USD 5.15 in Wyoming to a federal rate of USD7.25 per hour and a NY rate of 9.75 per hour) as well as outside the US. However I am sure that what does not differ is the intent behind the law that prescribes minimum wages. I am not a lawyer but I like to think that I can think logically. There is always a rationale behind a law. The rationale behind this one, it seems to me, is to protect the person who is getting a wage, to ensure that they make enough to have a decent quality of life and decent standard of living. What is a decent standard of living? A nice place to live? Adequate nutritional intake? Enough money to take care of your needs? And your family’s? Reasonable working hours? USD 9.75 an hour is supposed to achieve this. But USD 9.75 is not an absolute figure which can achieve this. In some countries, this can be achieved with far less. In some countries (Scandinavian countries come to mind) with a little more. The minimum wage figure is always relative to the circumstances of the person getting the wages. To illustrate, under the US federal law the hourly minimum wage for employees, who are in a position to be tipped, is much less (USD 2.13 per hour) than an employee who is not tipped (USD 7.25 per hour). The reason is that it is assumed that the person who is tipped, will be able to make up the difference through tips. If he does not then the employer is supposed to make up the difference. Another illustration is the ‘au pair’ program sponsored by the US state department. The United States au pair program offers qualified young people (age 18-26) the opportunity to live and study in the U.S. for one or two years in exchange for providing up to 45 hours of childcare per week. Au pairs are provided a private bedroom, meals, remuneration tied to the minimum wage (USD 195.75 per week). Do the math. Divide USD 195.75 by 45 hours. Do you get USD 9.75 per hour? Or USD 4.35? Devyani was bound by the contract to pay Sangeeta 9.75 USD per hour. She agreed to pay part of this in Indian rupees (Rs 30,000, to be precise) to meet Sangeeta’s family’s needs in India. The other part (after deducting Rs 30,000) was to be made in the US to Sangeeta directly in dollars. Devyani fulfilled both these financial obligations, in India and in the US. I can not divulge the details here because they will be revealed at the trial. But rest assured, requisite payment in dollars was made. Now let us imagine if Sangeeta had been in living in the US and Devyani met her in the US and hired her. Per law, Devyani is to pay no more than USD 9.75 per hour. She is not obliged to give her a place to stay, food, medical expenses, mobile phone, utilities or any thing else. Just USD 9.75 an hour. That works out to about USD 1560. Please think about the cost of living (rent, utilities, commuting, groceries, others) in New York. And then do the math and tell me if Sangeeta would have been able to send any money back home? I put to you that the arrangement that Devyani worked out with Sangeeta was the most humane one possible. It not only achieved for Sangeeta personally the outcome that the minimum wage law was trying to achieve, it also achieved it for her family. The second argument against Devyani is that she is not above the law. I fully agree. It’s just that a different rule applies to her because she is a diplomat. Vienna Convention was not written last week to defend Devyani. It predates her birth. Just as she is not above the law, so I would argue she is not above the Vienna convention either. If the US does not recognize the legitimacy of the Vienna convention, then why did President Obama invoke the Vienna convention in 2011 with regards to Raymond Davis? The laws and social reality should be in sync. Any dissonance is bound to cause problems. However, when the laws and the social reality are not in sync, do we condemn the people who have transgressed the laws (which in any case Devyani has not transgressed) or do we make an effort to remove the dissonance? Isn’t that what India is doing with regards to the section 377? As human beings, do we go by the spirit of the law or by the letter of it? Defending Devyani and advocating for fair minimum wages and social protection to domestic servants are not mutually contradictory. By all means, condemn the outrage at her treatment as ‘misplaced’ and ‘unworthy of a democracy’. By all means, be outraged at the treatment India metes out to their domestic servants in general. I am with you. But please know that in this particular case, there was no mistreatment. Whether you live in India or in the US, put your money where your mouth is. Start giving your servants (or urging your family in India to give their servants) fair wages. Start giving them PF and maternity leave. Start giving them paid holidays. These actions will be far more constructive than baying for the blood of a woman who has not wronged another woman.