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India: Human trafficking, not diplomatic impunity

AHRC-STM-013-2014
January 13, 2014

A Statement from the Asian Human Rights Commission

The debates so far, concerning the arrest of an Indian diplomat in the US, on charges of visa fraud, have omitted the nature of the crime the officer has committed. The crime alleged against the officer, is that of furnishing false documents to obtain visa for a migrant labour to the US. Read with the complaint made by the officer's domestic maid - the migrant labour brought to the US - the offense would amount to human trafficking.

The response by the Government of India, in support of its officer aboard, could at best be viewed as a resonation of the privileged Indian philosophy, one that always seeks to claim privilege against equality before law. When the law draws no exceptions for an accused, irrespective of the class and status the accused enjoys in private and official life, the Indian elite often claims unfairness.

An Indian elite arrested, held during pre-trail detention with others having similar legal status (accused and arrested of crimes), and having to undergo procedures set forth for those held in pre-trial detention is an exception in India. In countries where law-enforcement, generally, doesn't discriminate according to social status, things differ.

It is the lack of appreciation for equality before law, a concept seldom practiced in India, which has reflected in the Government of India's response to the arrest of its officer in the US. The Indian media's response is equal to that of the Government. No talking head or news outlet highlighted the serious nature of the crime the officer is accused of, one involving human trafficking. This despite many Indian editors having pledged their support to prevent the crime of human trafficking in the region. Is the Indian media simply unaware that importing migrant labour with an intent to pay wages lower than the statutory minimum wage, thereby exploiting the vulnerability of an 'imported domestic maid', is, in fact, human trafficking? What disconnects the dots?

India has ratified the United Nations Convention against Transnational Organised Crime on 5 May 2011. However, the Government of India's position concerning the diplomat's case is that "the maid" in question had "signed voluntarily" an employment contract, for a lower rate of wages and therefore the case would not be one of human trafficking.

The problem with this position is that law prohibits contracting out. In addition, it has placed the accused officer in a precarious position of having to prove her onus in getting her maid to sign an employment contract that the officer knew would violate US law.

Further, the government's position confirms the charge against the officer – that the officer did, in fact, file visa papers in the US knowing that the content is false. To say the least, the Government of India's position, intended to save its officer accused of visa fraud and human trafficking, would corroborate the charge against the officer. One may only feel sorry for the quality of legal advice the government has received in this case.

Worse still is the Minster for External Affairs' promise to the Indian parliament, that he would not return to the House, without settling the case with authorities in the US. This underlines the minister's disrespect for the country's obligation under international law to prevent human trafficking and the belief that his office can threaten and bully the process of law in other jurisdictions. What the minister negated through his assurance in Parliament is his constitutional promise that his office will uphold the rule of law at all costs. Unfortunately, the parliamentarians applauded the Minister's promise to violate the law in India and his avowed attempt try and force an alien jurisdiction to do the same.

The Government of India's subsequent act, to assign the officer charged with the crime in the US to India's permanent mission at the United Nations in New York, is the most dismal of actions linked to this controversy. It not only reduces India's stature among the member states at the UN, but also strengthens allegations against India that its participation at the UN is often limited to window dressing. At the very least, India should not have joined the infamous league of states that use the UN as a repository of diplomats charged with serious crimes.

The officer in question has left the US after being ordered to leave the country by the US government, following the Government of India's refusal to revoke the officer's diplomatic immunity to allow the US government to prosecute the officer. The US government, for its part, understands such a 'diplomatic spat' quite well. It has also resorted to such crude behaviour when its own officers, or US citizens contracted by the US government, have been charged with crimes outside the US.

In the Raymond Allen Davis incident, the US government not only claimed that one of its defence contractors, charged for murder in Pakistan, enjoys full immunity – a tactic that failed to appease the Government of Pakistan. The US government also paid USD $ 2.4 million to the victims' families and helped relocate some of the family members of those murdered, thereby subverting all processes of civilized law in a case of murder.

Forcing the Indian diplomat out of the US implies that the prosecution against the officer in the US will be in abeyance. Perhaps this was the best way out for the US – to drop the persecution against the officer and still pretend it has not subverted its own rule of law framework, budging to pressure from an alien government.

Equality before law is, however, a universal concept. It is not something for selective application, to protect privileged US or Indian citizens. And, it is not a punishment.

It is guaranteed in the Indian Constitution too. The country and its people would have had a great cause to hold their head high in esteem, had the government chosen to allow the criminal case to proceed, as the rule of law warrants.

Unfortunately, the Indian government has chose to use its infamous influence to protract the law from taking its course. It has chosen not to protect the equally important rights of yet another Indian, who, albeit poor, has approached US authorities with a complaint of having been duped and trafficked into the US.

The Government of India's actions, so far, reiterate that the country and its system serves the privileged and that there are two categories of citizens in the country: one that the government serves, the other that doesn't exist.

ENDS

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