There's a new jobs crisis – we need to focus on the quality of life at work

British workers face low wages, but are also being hurt by job insecurity, stress and the demand of long hours

• 
• • Ha-Joon Chang
  • The Guardian, Sunday 22 December 2013 20.30 GMT

David Cameron addresses workers at a factory in Britain. ‘The dominant free-market ideology has convinced Britons that consumption is the ultimate goal of life, and that their work is only a means to gaining the income to buy the goods and services to derive pleasure from.’ Photograph: Stefan Rousseau/AFP/Getty Images

With economic growth now picking up and unemployment inching its way downwards, things are beginning to look up for Britain's economy. Except that it does not seem that way to most people.

David Cameron may be in denial, but most people in Britain are experiencing a "cost of living crisis", as Labour puts it. Growth in nominal wages has failed to keep up with the rise in prices. With real wages predicted by the Office for Budget Responsibility not to recover to the pre-crisis level until 2018, we are literally in for a "lost decade" for wage earners in Britain.

Worse, the crisis for British wage-earners is much more than the cost of living. It is a work crisis too. Take unemployment. For most people this results in a loss of dignity, from the feeling of no longer being a useful member of society. When combined with economic hardship, this loss makes the jobless more likely to suffer depression and even to take their own lives, as starkly shown by Sanjay Basu and David Stuckler in The Body Economic. There is even some evidence, published in the British Medical Journal, thatout of work people become more prone to heart diseases. Unemployment literally costs human lives.

On this account British workers have been doing badly since the financial crisis began. Though the unemployment rate has fallen, it still stands at 7.4%. Most people find this rate acceptable, if regrettable – but that is only because they've been taught to believe that full employment is impossible. We may not be able to go back to the mid-1960s and the mid-70s, when the jobless rate was between 1% and 2%, but a rate much lower than today's is possible, if we had different economic policies.

There is also the issue of job security. The feeling of insecurity is inimical to our sense of wellbeing, as it causes anxiety and stress, which harms our physical and mental health. It is no surprise then that, according to some surveys, workers across the world value job security more highly than wages.

On this account too, British workers have been doing very poorly. The rise in the number of zero-hours contracts is only the most extreme manifestation of increasing insecurity for the workforce. The 2010 European Social Survey revealed that a third of British workers feared losing their jobs – giving Britain, together with Ireland, the highest sense of job insecurity in Europe.

Then there's the issue of the quality of work. Even if you are getting the same real wage – which most British workers are not – wellbeing is reduced if your work becomes less palatable. It may have become more strenuous because, say, the company has just turned up the speed of the conveyor belt in the factory, as happened to Charlie Chaplin in Modern Times. Or the stress level may have increased because the company reduced your control over your work, as Amazon did when it decided to attach GPS machines to its warehouse staff.

Whatever form it takes, any deterioration in the quality of work can harm the worker's wellbeing. And this is what has been happening to many employees in Britain.

The European Social Survey also revealed that a quarter of British workers have had to do less interesting work. The 2012 Skills and Employment Survey revealed that British employees are now working with much greater intensity than before the crisis; the proportions of jobs requiring high pressure, high speed and hard work all rose significantly from 2006.

And then there is the issue of commuting. Britons spend more hours travelling to and from work than any other workforce in Europe. But to make thing worse, the quality of the commute has been deteriorating. The failure to invest in transport has meant more crowded and more frequently disrupted journeys in many regions of the country. Recent surveys have also revealed that more and more people are working while they commute, at least in part to cope with increased workload.

Once we take into account all these dimensions, it becomes evident that the "cost of living crisis" is only one – albeit important – part of a broader problem that is afflicting most people in Britain.

Despite the graveness of the situation, this wider crisis – perhaps we can call it the "general living crisis" – is not seriously discussed because over the last few decades we have come to neglect work as a serious issue.

During this period, most Britons have come to see themselves mainly – or even solely – as consumers, rather than workers. The dominant free-market ideology has convinced them that consumption is the ultimate goal of life, and that their work is only a means to gaining the income to buy the goods and services to derive pleasure from. At the same time, the decline of the trade union movement has made many people believe that being a "worker" is something of an anachronism.

As a result, policies are narrowly focused on generating higher income, while any suggestion that we spend money on making jobs more secure and work less stressful, if it is ever made, is dismissed as naive. Yet this neglect of work-related life is absurd when most adults of working age devote more than half their waking hours to their jobs – especially if we include the time spent in commuting and, increasingly, out-of-hours work. We simply cannot ignore this when judging how well we are doing.

If we are to deal with the "general living crisis" we need to radically change our perspectives on what is a good life. We need to accept that consumption is not the end goal of our life, and stop measuring our wellbeing simply on the basis of earnings. We need to explicitly take the quality of our work-related life into account in judging our wellbeing. Let's start taking work seriously.

'If an issue of morality is to be decided by majority, then fundamental right has no meaning'

Maneesh Chhibber : Sun Dec 22 2013, 05:59 hrs 

 

 

Retd Delhi HC Chief Justice and the man behind a landmark verdict decriminalising homosexuality, Justice A P Shah feels the Supreme Court setting aside that order is unfortunate. At this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, he also talks about his new assignment as Law Commission chief, where he is looking into electoral reforms, live-in relationships and age of juvenility

Maneesh Chhibber: Can you explain how you wrote your Section 377 judgment?

I wouldn't like to comment on the Supreme Court judgment but that doesn't bar me from speaking about the rights of LGBTs, the Constitutional morality we talked about in the high court case, and the government's position.

Let me start with this — some speak of this as a 'western disease'. First of all, it is not western. Temple imagery and essential scriptures show there is some evidence of homosexuality being practised in this country... The British brought in Section 377 and there is the presumption that one of the reasons was (they feared) their army and daughters would be tainted by Oriental vices... What is so startling is that Section 377 travelled back to England. Later it was repealed, in the sense that their judicial committee recommended that for consenting adults it should not be a crime.

This is the position in almost all of Europe, US.

There are critical nuances of the (Supreme Court) judgment which I would not like to go into, but I would like to tell you about how far it is permissible for the State to legislate on the ground of public morality. What is envisaged by the Constitution is not popular morality. Probably public morality is the reflection of the moral normative values of the majority of the population, but Constitutional morality derives its contents from the values of the Constitution.

For instance, untouchability was approved by the majority, but the Constitution prohibited untouchability as a part of social engineering. Sati was at one time approved by the majority, but in today's world, it would be completely inconsistent with the Constitution... In public morality and Constitutional morality, there might be meeting points. For instance, gambling. That would be prohibited by law, and that's also the perception of public morality.

I think the real answer to this debate is Constitutional morality. And this is the most important point — it has to be traced to the counter-majoritarian role of the judiciary. A modern democracy is based on two principles — of majority rule and the need to protect fundamental rights. The very purpose of fundamental rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and establish them as legal principles to be applied by the courts. It is the job of the judiciary to balance the principles ensuring that the government on the basis of numbers does not override fundamental rights.

(Editor's Comment - Does the judiciary have the power to create a new fundamental right?)

I would like to refer to my own notes and preparation. In case of a moral legislation, when it is being reviewed by a Constitutional court, then the rule of 'majority rules' should not count, because if the issue of morality is to be decided by the majority, as represented by the legislature and Parliament, then the fundamental right has no meaning. It is to be decided on the basis of Constitutional values and not majority rule.

About homosexuality being a disease... this is no longer treated as a disease or a disorder. There is near unanimous medical, psychiatric opinion that it is just another expression of human sexuality.

With this, I come to the last part, that 'What is the harm to the LGBT (with this law), that ultimately these provisions are not enforced'. It is true that in the last 150 years there might have been 200 prosecutions... But even when these provisions are not enforced, they reduce sexual minorities to — what one author (in a US judgment) has referred to — 'unapprehended felons'.

Apart from the misery and fear, a few more of the consequences of such laws are to legitimise and encourage blackmail, police and private violence, and discrimination. We could see some evidence that was placed before us, what is called the 'Lucknow incident'. This was a support group to create awareness about AIDS etc, they were arrested, and although they should have been released on bail immediately, they remained in custody for more than two months because of Section 377.

Rakesh Sinha: What was the first thought that crossed your mind when the Supreme Court overturned your ruling?

That it is unfortunate.

Coomi Kapoor: One reason for the conservativeness of the judgments of courts may be the ages of the judges.

I was 62, about to retire (at the time he gave the Section 377

judgment).

Seema Chishti: Do you think the big mistake in the rush for criminal law amendment in the wake of the December 16 gangrape was to not make it gender neutral? If that was made gender neutral, and you recognised man to man harassment, it would take away the need for 377?

There was an urgent need to make certain changes in the existing rape laws, there cannot be two opinions on that. I think it was touched with haste. Not only were there some lacunae but also it should have gone beyond the provisions which they made. Perhaps the government was not prepared to commit to the other reforms suggested by the Justice Verma committee.

Seema Chishti: Given the public mood to 'clean up' things, the Lokpal is being seen as a very important tool. Do you think we are running into a problem? We anyway had a problem about judges appointing themselves, and now we have a Lokpal who sits in judgment over elected persons. Who is going to monitor the monitors?

When the idea of appointing a Lokpal was mooted, it was on the lines of the institution of ombudsman in many countries. Ombudsman is not necessarily an anti-corruption body, it's about good governance. In India, administrative committees' reports found that this institution was necessary to fight corruption in high places. We have made a sort of an amalgamation of ombudsman and anti-corruption body, with more emphasis on anti-corruption. I have seen the Bills, appeared before the select committee of the present Lokpal Bill, and had seen the Jan Lokpal Bill conceived by Arvind Kejriwal and Prashant Bhushan. The Jan Lokpal Bill, I feel, is creating a monster.

The first thing is accountability. The other ombudsman institutions are accountable to Parliament, to the legislature. If you create an institution which is neither accountable to the executive nor the legislature, there will be no system of checks and balances.

The Lokpal Bill is not as strong as the Jan Lokpal Bill; thankfully, it's a much more balanced. The whole idea of the CBI being placed under the control of the Lokpal is not really a bright idea. You should not make one institution so strong that it can override all other institutions and constitutional systems.

Seema Chishti: And the judges appointing themselves?

Now, there is a Bill, but it is nothing new. In 1990, such a Bill was introduced by Dinesh Goswami. Unfortunately, the government had to go. There have been two reports of the Law Commission suggesting that there should be a judicial commission. In a 1993 judgment, the Supreme Court read the word 'consultation' to mean 'concurrence', and this is how the primacy is vested in the Chief Justice of India. It has been very strongly criticised. First, it's not transparent, and second, there is no input about the ability of a possible candidate because it's only a judges' committee, sitting in a closed room deciding about appointments, elevations, more like a club. It has encouraged a lot of sycophancy. Thankfully, the government has brought the Bill.

Prawesh Lama: There have been cases of rape law being misused. Recently, an NGO director committed suicide after being accused of assault. Should there be a mechanism to ensure laws aren't misused?

It is Indian tendency to give knee-jerk reactions. After the episode of December 2012, there were reactions. We go to extremes and forget rationality. Also, these laws will not work unless we have police reforms and judicial reforms simultaneously. What is the use of a very strict law if police are lacking in integrity or are inefficient?

Aneesha Mathur: The Delhi High Court has consistently given judgments saying that there should be a re-look at how police are dealing with these laws. Even in the Section 377 judgment, the Supreme Court said that exactly defining an unnatural act is not possible, and we'll have to see how the courts deal with it. What can the judiciary do to ensure there's no misuse?

The judiciary has its limitations. I know of half a dozen judgments of the Supreme Court on improving the present conditions, but there is no change in the situation. One of the criticisms labelled against PIL jurisdiction is that judiciary has to rely on the good faith of the executive. Have the orders passed on PILs changed the lives of ordinary Indians? Judiciary is no substitute for political activism or for legislative processes.

Krishna UPPULURI*: India's Deputy Consul General in New York Devyani Khobragade has been arrested as per the US laws. Can we use Indian laws to prosecute homosexual diplomats?

This would be going beyond the diplomatic limits.

Utkarsh Anand: Do you think Justice A K Ganguly should step down?

I should not talk on this issue.

Utkarsh Anand: A Supreme Court Committee was constituted to inquire into the allegations against him. Should the committee have indicted him while simultaneously saying that we don't have jurisdiction over retired judges?

It was a critical situation for the court. When something leaked in the media, the whole institution came under a cloud. What he was saying is absolutely correct because, even as per the Vishakha guidelines, the case would not fall within the powers of the Supreme Court Committee. But if the committee had simply said that it has no jurisdiction, it would have reflected very badly on the institution. I think the committee was right, the three judges were right. I read the order as an assurance to the people that the institution cares for these matters, though they can't take any action.

Maneesh Chhibber: One of the biggest problems of the judiciary is that it is a most exclusive club. Any transparency law, they are the last ones to implement it. Don't you think this hurts the institution?

I think transparency is the hallmark of any judiciary. All administrative decisions taken by the court should be on the website — how much is spent by the institution, how many cases are disposed of. All this information, and not only about pendency and disposal by the judges but also the entire functioning of the court should be in the public domain.

Ankita Mahendru*: What is your view on the legal process followed by the US in the arrest of Devyani Khobragade.

What I read in your newspaper is that this is the standard procedure. Where we are really missing the point is about the victim. What about the maid?

Amulya Gopalakrishnan: A lot of feminist activists want the rape law to be made gender specific for the victim and gender neutral for the perpetrator. Parliament did not do that. A lot of men who are raped are left out. Is it possible to draft a law like that?

The existing provisions can be slightly amended so as to make them gender neutral. The draft is not bad, it can be improved.

Vandita Mishra: Over the past few years, there has been a weakening of the political executive and the legislature. Parliament has not functioned as it should have. That has led to the judiciary overreaching in many cases. Do you think there are dangers to this?

After the Emergency, the judiciary took up the role of a protector of human rights of the marginalised and the disadvantaged. If you look at the PILs entertained by courts in those times, they were in the nature of social action, social interest litigation, not really a PIL. Slowly, the court expanded its jurisdiction and then we had (PILs on) good governance, corruption-free government or the rule of law, judicial appointments. But what happened after 2001 is that you could file a PIL about anything under the sun. Many of these PILs are not connected with human rights issues and that is the real danger. Some of the PILs entertained were about monkey menace, sealing of shops, traffic management or role of tourists in wildlife sanctuary. Just see to what extent courts have gone into policymaking. One example is the river linking case. Almost all experts said that it is not feasible. In spite of that, the court issued directions. Nothing happened thereafter, that is a different issue. Judicial activism is for issues for which there was earlier a legislative solution. This could be almost touching judicial imperialism or judicial adventurism.

The other problem is the creeping eliticism in the judiciary. I was shocked to see so much concern about the occupants of the Campa Cola building among the media and judiciary. What about the thousands of families who, for some beautification of the city and Commonwealth Games, are asked to move 20 km away from Delhi?

Maneesh Chhibber: In its review petition in the Section 377 case, the Centre is saying that while lawmaking is the sole responsibility of Parliament, it's the task of the court to judge the constitutional validity of laws. Isn't the executive ceding to the judiciary?

The court has to decide when it comes to a human rights issue. But if it is a policy matter, the legislature has precedence. If the Delhi High Court was right in its conclusion that there is violation of Articles 14, 15 and 19 and 21 — if that is the position — then it is the court which could deal with it, even if there is no amendment in the law. But that does not absolve the government from taking the call and making the amendment. They could have done it when the laws were changed in the wake of the Delhi gangrape case. There might be a lack of political will.

Rakesh Sinha: There is an ongoing debate on the age of juvenility. But child rights workers have concerns too.

We have taken it up, appointed an experts' committee in the Law Commission.

Muzamil Jaleel: What is your view on amendments in the UAPA or the Armed Forces Special Powers Act.

I have spoken against these laws several times. I feel that certain rights should not be compromised. It is the burden of democratic countries that they have to deal with the problem of terrorism, and they have to fight it with one arm tied down.

Prawesh Lama: Shouldn't police officers be punished when they arrest an innocent person and brand him a terrorist?

Apart from action against the concerned police officers, we should have laws to give some remedy to the person who has been wronged by the system.

Animal Farm - A Tale of two women

Meghnad Desai in the Indian Express

India's reaction to the arrest of Devyani Khobragade has been over the top. From a safe distance, the Indian political and diplomatic establishment was ready to almost declare war on America. The various past 'insults' have been detailed. Past ambassadors have thronged to TV channels to recount their experiences. India is about to retaliate and take away the rights and privileges of US diplomats.

All this and what for? The arrest of a person who is consular appointment but who is charged with some criminal activities. None of those activities pertains to her job as a diplomat for India in the US. They concern the payment and treatment of her domestic staff, another Indian woman. In our rush to defend Devyani Khobragade, we forget the plight of Sangeeta Richard. Which is natural because one is IFS and another merely a domestic servant. What rights could a domestic have in India let alone in New York? She should have been grateful that she got this fantastic opportunity to go and serve in Khobragade's household looking after her children at Rs 30,000 per month with board and lodging.

The realities of the situation are otherwise. As the US legal documents in this case show, Rs 30,000 per month is just $3.31 per hour on the generous calculation that she worked only 40 hours a week. In the visa application the salary was given not as $573.07 per month (which the Rs 30,000 would have amounted to in the days of the strong rupee) but $4,500. Richard was instructed to lie about her salary to get the visa. Thus Khobragade knowingly falsified an official document. But also paying only $3.31 per hour amounts to wage slavery as that is below the minimum wage. Since the declared salary was seven times higher than what Richard was paid, imagine how far below the minimum wage her salary was.

The American legal submission is worth reading as it is very detailed, though somewhat clothed in legalese. The fact remains that Khobragade is charged with something which can merit 15 years of imprisonment. Employing someone below minimum wage (having stated that you will not do so in the visa application) is an offence. It is not part of her diplomatic activity. Human rights of one Indian citizen have been violated by an Indian IFS official. No one in Parliament raises a word about that. Khobragade may be a Dalit (though from the creamy layer as she owns flats in the Adarsh complex in Mumbai), but Richard may belong to a Scheduled Tribe, so there is no 'lower than thou' kudos there.

US Marshall Service (USMS) personnel are not the friendliest of people, especially when they are arresting someone they think is a criminal. Papers show that the Americans were aware of Khobragade's diplomatic status, but concluded that her status was irrelevant to her crime. Still the USMS should not have strip-searched her since her crime involved no violence. She was unlikely to be carrying weapons. Nor should she have to be swabbed as there was no evidence of drug abuse. The apology has to be about the manner of arrest but not about the fact that she will be proceeded against.

The lesson is that before the entire establishment lurches into a hysteria of self-righteousness, we should ask whether there is substance to the story. From the statements of various retired diplomats, it would seem the government of India knows about this practice of falsifying visa documents and connives in it. It also shows that the government is very mean in the amount it is willing to pay its officers abroad to enjoy the sort of lifestyle they enjoy at home. If it costs seven times as much to have a servant in New York as in Delhi, either pay that much or tell the diplomats they have to do without home help, as most Americans do.

The stance India took was not a show of strength but one of petulance. The government admitted Khobragade's guilt when they transferred her to the UN. The injustice done to Richard and no doubt many other maid servants employed by IFS staff abroad still remains to be addressed.

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Taxpayer picked up $75,000 tab for deal between another diplomat, his maid last year

Amitav Ranjan in Indian Express : New Delhi, Sun Dec 22 2013, 09:13 hrs

It could ultimately fall on the Indian taxpayer to bail out Devyani Khobragade, the diplomat accused of underpaying her domestic help and falsifying documents to get the maid into the US.

A complaint of a similar nature against another Indian diplomat by his maid two years ago in New York had resulted in an out-of-court settlement, with the government of India footing the bill.

In December 2012, the Ministry of Finance approved the payment of $75,000 from the budget of the Ministry of External Affairs to a "former domestic assistant" who had filed a lawsuit against India's consul-general in New York, Prabhu Dayal, alleging inhuman treatment.

The settlement agreement stipulated that the deal's details would not be disclosed, or discussed with the media.

The maid, Santosh Bhardwaj, filed a lawsuit in June 2011, accusing Dayal of sexual harassment and demanding a massage from her in January 2010.

The complainant accused Dayal and his wife of making her work for long hours for $300 a month, taking away her passport, and forcing her to sleep in a storage closet. Bhardwaj demanded over $250,000 in damages and relief, but subsequently withdrew her charge of sexual harassment against the consul-general.

Dayal said the maid had run away because he had refused to let her work outside the consulate, which would have allowed her to make some extra money, but would have violated visa rules.

He denied having treated Bhardwaj badly, and said that she lived very comfortably in her own furnished room in the consulate, and was paid according to the rules.

Following an out-of-court settlement advised by the US court, the MEA, on November 21, 2012, sought Finance's sanction for $ 75,000 to settle the matter, official sources said. The argument was that the government should pay, because the consul-general had hired the maid in line with the government scheme of allowing servants during the overseas postings of diplomats.

The MEA argued that the allegation against Dayal was false, and he had been caught in blackmail resorted to by domestic helps in collusion with NGOs in the US. It backed the out-of-court settlement, saying that fighting a long legal battle would be costlier.

With the approval of the Department of Expenditure, the money was paid from the MEA's miscellaneous head, the sources said.

Despite several attempts, Prabhu Dayal, who retired from service after his New York stint, could not be traced for a comment. His whereabouts were not available even in the retired diplomats' directory.

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Poverty of the Indian Elite

Saba Naqvi in Outlook India

India cares about its honour. But its missions abroad apparently do not care about the rights of Indian labour. Consider the manner in which they have responded to the arrest and strip-search of India’s deputy consul-general in New York, Devyani Khobragade. The response has overwhelmingly been of a cosy clique out to protect one of its own. One could be forgiven for thinking that the mandate of the foreign service is to protect itself at the cost of the country’s less fortunate citizens.

In pursuit of that end, retired and serving officers have pulled out every argument about diplomatic immunity and Vienna Convention and gone ballistic against the US, a nation before which they usually bend quite happily and show no spine when real issues are at stake. Now, however, it has been verbal warfare for some days now. It helped that the media was also anxious to wrap up the entire story about Devyani Khobragade in the national flag and posit it as an assault on India’s dignity.

This is actually quite a bogus position if we believe in fundamental human rights. Why is no one talking about the rights of the domestic help (in the US or India)? Is the maid not Indian, only the diplomat is? And do we think that not only is it okay to pay people below the minimum wage in India but that the “right” should be extended to a certain class of Indians when they travel abroad? After all, the way this debate has been framed would suggest that middle-class Indians have some sort of divine right to domestic help—so much so that it is quite kosher for the nation’s diplomats (meant to uphold the law) to sign false documents about the salary they pay for service in their homes?

Is it being crazy or “anti-national” to wonder if the diplomat herself did not assault the national honour when she indulged in falsification, perjury and fraud? For, what kind of honour are we talking about when power and prestige seem to come from chest-thumping and bullying and has little to do with any humanitarian principle! What has become shockingly clear through this entire episode is that India has long abandoned its role as a nation that would speak for the less fortunate. For there was actually a time when India was a moral force in the world. Then the world extended real respect to its leaders and ideas. A “regret” by John Kerry after an almighty tantrum is not a reflection of that sort of respect.

Certainly, Devyani’s arrest should have been handled with greater sensitivity. Equally, it is true that the US applies different principles to itself and the rest of the world. But in the Devyani episode, we too have violated the spirit of one fundamental principle. For, a nation like India, with its millions who live on a subsistence wage, should be endorsing the imposition of a minimum wage. Instead, we have taken the position that seems to suggest that because our diplomats can’t afford to pay the US minimum wage, we expect the host nation to look the other way because heck, we are Indians and we need our maids and nannies! It’s actually quite path­etic that after having taken such a morally bankrupt position, we would subsequently gloat and say, see we showed them, Kerry called and apologised.

In this rather sorry tale, the maid, the other Indian in the story, has been mostly forgotten. If she is remembered, it is because the establishment has in an attempt to slander Sange­eta Richard, raised questions about her motives and even suggested that she is part of an “evangelical” conspiracy agai­nst India that operates in the US (the same conspiracy that denies Narendra Modi a visa, says one commentator).

Because labour is cheap in India and poverty rampant, certain wage laws have been enacted to protect the poor. Public servants should be held to a higher standard both in India and outside. The babus of the foreign service cannot hide behind diplomatic immunity and hold cheap Indian labour hostage to their needs.

Devyani now has a job in the UN, presumably with maids in tow. She also has a flat in the Adarsh Society in Mumbai besides 30 acres of farmland in Maharashtra that she inherited, a 5,000 sq ft plot in Alibaug and a plot in Noida. If she could not live without a maid, she should have paid the minimum wage in the US. Sangeeta Richard has complained about Devyani taking away her basic rights and treating her “like a slave”. Both as an Indian citizen and as a citizen of a world governed by ideas of justice and equality, Sangeeta has every right to seek a better life.

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The Other Side of the Story

Outlook India

Tell-Tale Charges
Sangeeta Richard’s husband Phillip in a petition to Delhi HC

• ”The treatment of Sangeeta by Devyani Khobragade is tantamount to keeping a person in slavery-like conditions or keeping a person in bondage.”
• ”Even though the contract stipulated that Sunday would be an off-day she worked from 6 am to 11 pm, minus 2 hours for church even on Sunday. She worked from 6 am to 11 pm on Saturday as well.”
• “Uttam Khobragade called Sangeeta’s family several times and threatened them that they would have to face dire consequences if she complains and that he would ruin their future, get them abducted and frame false charges of drugs against them.”
• ”At the immigration office, Devyani  falsely accused Sangeeta of theft, in front of the US Immigration Officer. Sangeeta asked what it was she had stolen. Devyani could not say and threatened her saying that she will come to know when she returns home.”

Sangeeta’s daughter Jennifer to “prakashs@state.gov” in July

• ”My mother used to sound unhappy whenever she talked to us on phone.She asked Devyani to send her back to India but Devyani refused her request.”
• “Uttam Khobragade forced police to come to our house at night around 11 pm. There were 5 policemen. From that day onwards police has started calling my father, my brother and me as well... He said to my father that he would destroy our future and not let my father continue with his job anymore.”
• ”We no more feel safe in our own house because of the phone calls we are getting and the words that Uttam Khobragade has said to my father. We really need your help to get out of all this trouble. It is like a mental torture on my family. PLEASE HELP US.”

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Much has been said on ‘Khobragate’ but almost none of it has come from Sangeeta Richard, the help, or her family. Though she is in the US, few know about her whereabouts; neither has she issued any statement after walking out of her employer’s house in June. Even her husband and two children—a son and daughter—are now in the US, having flown out of New Delhi days before Devyani Khobragade’s arrest, and remain incommunicado. In this context, one crucial document that adds fresh detail to the prevailing narrative is the petition her husband Phillip Richard had filed in the Delhi High Court in July this year.

The charges, culled from phone conversations he had with Sangeeta, cast Devyani in a somewhat different light, more a perpetrator than a victim. Phillip accuses her of treating his wife “like a slave”, making her work from 6 am to 11 pm everyday, “often without breaks”, and pleads for her to be punished. Even though she was entitled to a day off, the petition claims, she was made to work similar hours on Sunday, with a break of two hours for her to go to church. “She was even asked to stop eating if she had some work to do,” says Tariq Adeeb, Phillip’s advocate. Devyani reportedly also “confiscated” Sangeeta’s passport after the duo’s arrival in November last year “telling her that the original has to be submitted in the ministry”. “This was just a subterfuge to illegally keep Sangeeta’s passport,” the petition reads.

“If she couldn’t afford a help in New York, she should not have taken one. We have to give a domestic help’s work due dignity.”

As outrage over Devyani’s arrest and her maltreatment grew, there was little thought for Sangeeta. “If she couldn’t afford a help in New York, she should not have taken one. We have to give the work of a domestic help its due dignity,” says Rishi Kant, who works for Shakti Vahini, a Delhi-based organisation that works with domestic helps. New York-based Preet Bharara, the prosecutor in this case, also asked pointedly, “One wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?”


Weeks after her arrival, Sangeeta complained to Phillip about her “miserable work condition” and asked her employer to relieve her and have her sent to India. On June 23, a day after telling Phillip of her constant harassment, she went out to buy groceries. And has not returned since. Phillip even accuses Devyani of deducting Rs 10,000 from her salary when Sangeeta fell ill whereas her contract promised “full medical care”. His plea was dismissed on July 19, according to Adeeb, because the high court claimed “no jurisdiction on a crime committed on foreign soil”.

Devyani stands accused by US authorities of “visa fraud” and giving “false information”. While submitting details for a visa for Sangeeta, she clearly stated she would be paid $9.75 per hour, in line with the minimum wage requirements, but alongside she had executed a second contract that was signed by the two and concealed from US authorities. According to this, she would be paid a maximum of Rs 30,000 per month or $3.31 per hour.


The US complaint, based on statements by Sangeeta, even accuses the diplomat of instructing her not to mention being paid Rs 30,000 at the visa interview and claim that she would work stipulated hours. Phillip’s petition also adds that Devyani “took the signature of Sangeeta” on the second contract at the airport two hours before their departure. The diplomat’s father, Uttam Khobragade, has refuted these charges, claiming that Sangeeta was being paid $8.75, of which Rs 30,000 was being sent to her husband every month. They have even accused Sangeeta of “extortion”, claiming she asked for $10,000, a regular passport—hers was an official one secured for her by her employer—and immigration assistance. At a press conference in Mumbai, Devyani’s father reiterated that stand. “We paid her according to the minimum wage. Sangeeta seems to have used Devyani to go to the US,” he said. With Sangeeta herself still not having given her side of the story, the last word on ‘Khobragate’ is still awaited.
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A tale of two citizens

RUCHIRA GUPTA  in THE HINDU

  

In the Khobragade case, India had two standards: one for what a middle-class woman needs and feels and another for what a working-class woman needs and feels

India has two citizens, not one — Devyani Khobragade and Sangeeta Richard. India needs to stand by both. Both are looking for protection from unfair treatment. However, one is being blamed for speaking up while the other has been turned into a heroine, whose honour is tied up with India’s honour. Ms. Richard not only had to work for Ms. Khobragade in New York for less than the legal minimum wage but was also forced to sign documents saying she was earning more. When she objected and left her employment, her family in Delhi was threatened and cases were filed against her in a Delhi court for flouting her visa conditions.

Ms. Khobragade was picked up outside her daughter’s school for not paying Ms. Richard the legal minimum wage. She was humiliatingly handcuffed and strip-searched — a violation of the Vienna Convention, which lays down the guidelines for how diplomats should be treated.

While India has rightfully objected to the treatment of its diplomat, it needs to address the fact that she broke the law of the host country she was posted to.

The diplomat not only did not pay legal wages, she also falsified documents and then tried to intimidate the victim’s family by filing a case in the Delhi High Court. If Ms. Richard “stole” money and a phone as the Indian embassy press release says, then a police case ought to have been filed in New York and not Delhi, a city where Ms. Khobragade has connections and influence.

The victim and her family were hiding in fear of retaliation by Ms. Khobragade’s family and the government till they left Delhi for New York.

Both women are wives, daughters and mothers, and both are concerned about their families. While the government has expressed concern about the trauma of one woman’s daughter and family, there is only anger against the other woman’s family. One is a working-class woman, while the other is a well-placed government official and millionaire.

This class divide has influenced our reactions to both women. Our anger against Ms. Richard is based on our own sense of entitlement over the poor and the working class. We feel betrayed when they ask for anything that we have not conferred on them out of the “largeness” of our hearts.

We have two standards for what a middle-class woman needs and feels and what a working-class woman needs and feels. While we are quick to point out that the salaries of our foreign diplomats need to be raised so that they can afford to pay their domestic help according to U.S. standards, we omit to note that we have no minimum wages in India for our own domestic help. Only two States in India, Tamil Nadu and Kerala have any legislative protection for domestic workers. Routinely, domestic helps in India are exploited in terms of no. of working hours, pay, living conditions and leave. Live-in help in middle-class India usually work round the clock.

Perhaps that is why Ms. Khobragade did not feel she was doing anything wrong in breaking the U.S. law. Her outlook was conditioned and normalised by the working conditions of domestic help in India.

Standing by the weak

Empathy is a very revolutionary emotion. It is high time that the Indian government addressed the labour conditions of millions of domestic workers in India through legislation and fixing accountability on those who exploit them. Patriotism is not just about standing by the rich and powerful but about standing by Gandhi’s “last” (the poorest and weakest) individual or Ambedkar’s Dalit (oppressed) person. When Bharatiya Janata Party leader Yashwant Sinha calls for the government to take action against gay U.S. diplomats under Section 377 of the Indian Penal Code which criminalises homosexuality, or when Samajwadi Party’s Azam Khan offers a seat in his constituency to Ms. Khobragade, or former Uttar Pradesh Chief Minister Mayawati says that the Indian government was slow in reacting to Ms. Khobragade’s arrest because she was a Dalit, they are ignoring the very ethos of Indian democracy on which our nation rests.

India has a moral standing in the world as the country that won independence from British colonialism through non-violence. We demonstrated to the world that the means are as important as the end. Once again, when we take the moral high ground with the U.S., we can only do so if we stand by all the “oppressed” and not just one of them.

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An abuse of immunity?

DEEPAK RAJU

RUKMINI DAS in THE HINDU 

 

Notwithstanding the several privileges and immunities Indian diplomats and consular officers are entitled to, they have a corresponding duty under the 1961 Convention and the 1963 Convention to respect the laws and regulations of the host State

The arrest of Indian Deputy Consul-General Devyani Khobragade in New York and the alleged mistreatment she faced have resulted in a diplomatic row between India and the United States. The Indian stance, after initial assertions that she enjoyed “diplomatic status” and that she should not have been arrested, now appears to focus on the manner of her arrest and her subsequent treatment. The U.S. has sought to justify the arrest on the grounds that the proceedings do not relate to Ms. Khobragade’s official acts, and has asserted that it followed the “standard procedure” in relation to her treatment. On the diplomatic front, India is reported to have initiated some tough measures, including the removal of security barriers around the U.S. Embassy in Delhi.

Question of immunity

At the outset, it is important to draw a distinction between diplomatic agents of states and consular staff. While the 1961 Vienna Convention on Diplomatic Relations covers the privileges and immunities of diplomatic agents, the treatment that consular staff are entitled to is laid down in the 1963 Vienna Convention on Consular Relations. As the Deputy Consul-General at the Indian Consulate in New York, Ms. Khobragade was, at the time of her arrest, a member of consular staff, and not a diplomat.

Unlike the 1961 Convention, which vests diplomatic agents with absolute immunity from arrest, the 1963 Convention states that “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority” (Article 41(1)). Article 43 of the Convention goes on to vest consular officers with immunity from jurisdiction of the receiving State in respect of official acts.

It is evident that the allegations against Ms. Khobragade relate to her personal and not to her official acts. This means that she is not immune from the jurisdiction of U.S. courts in relation to this allegation. However, this in itself does not render the arrest legal. There may be situations where a country may have jurisdiction to try an offence, but an arrest would violate international law. An Indian domestic law analogy may be one where the police station has jurisdiction to investigate an alleged offence, a magistrate’s court may have the power to try the case, and yet an arrest may be illegal due to various reasons like the lack of a warrant where required, or arrest of a woman after sunset. Similarly, for Ms. Khobragade’s arrest to be legal, in addition to the U.S. possessing jurisdiction to try her for the offence, it needs to be established that the conditions laid out in Article 41(1) are satisfied: (i) that her arrest relates to a “grave offence” and (ii) her arrest was pursuant to a decision by a competent judicial authority.

The 1963 Convention does not define what qualifies as a “grave offence.” However, the rejection of an initial draft that suggested that arrest be restricted to offences that carry a maximum sentence of five years or more indicates that the Convention leaves it to each State to determine, under its own domestic law, whether an offence amounts to a “grave” one. The charges that have been levelled against Ms. Khobragade are categorised as felonies in U.S. law. This may be sufficient to meet the requirement of a “grave offence.”

As per the documents published in The Hindu, her arrest was pursuant to a warrant issued by Hon. Debra Freeman, United States Magistrate Judge for the southern District of New York, a judicial authority. Thus, both the requirements imposed by the 1963 Convention for the arrest appear to have been met.

Even if the arrest was legal, her treatment including handcuffing and a strip-search could amount to violations of Article 41(3) which requires that criminal proceedings against a consular officer be conducted “with the respect due to [her] by reason of [her] official position.”

In sum, the arrest itself appears to be legal. However, a challenge to the manner of the arrest and the subsequent treatment may be tenable.

Retaliatory measures

India has reportedly taken the following retaliatory measures: (i) removal of security barricades around the U.S. Embassy in New Delhi, (ii) withdrawal of airport passes and import privileges (iii) identity cards issued to U.S. diplomats to be turned in and (iv) refusal by several leaders including the Speaker of the Lok Sabha and the National Security Adviser to meet a visiting U.S. Congressional delegation. Some politicians have also suggested prosecution of same-sex partners of U.S. diplomats.

While some of these measures such as refusal to meet the delegation or withdrawing discretionary privileges are merely political in nature and are best left to the discretion of such politicians, other steps like reducing security measures at diplomatic premises and embassies may violate international law, specifically Article 22(2) of the 1961 Convention that imposes a special duty upon the host State (i.e., India) to take all appropriate steps to protect the premises of the mission against intrusion or damage, or disturbance of peace or impairment of its dignity.

Even presuming that the U.S. government is in breach of its international law obligations, it does not warrant retaliation by India, by means which breach international law. International law allows countermeasures (breach of international obligations in response to a breach by the targeted country) only as a last resort and in very narrowly defined circumstances. The only options available, that are viable in international law, are a withdrawal of discretionary privileges, declaration of certain members of the U.S. diplomatic and consular staff as persona non grata (which may be considered too drastic a step) or recalling of Indian consular staff and diplomatic agents posted in the U.S.

In terms of international dispute settlement, India has few, if any, legal options. Recourse to the International Court of Justice (ICJ), the only possible option, is not available in this case (unless the U.S. consents to the same), since the U.S. has not accepted the compulsory jurisdiction of the ICJ.

While the two countries attempt to iron out their differences through diplomatic and legal channels, Ms. Khobragade can, if she and the government of India so desire, avoid further encounters with the U.S. authorities by remaining in the Indian Embassy or the premises of the Permanent Mission of India to the U.N., which cannot be entered by U.S. authorities without authorisation from India.

Obligations of India and Indians

Notwithstanding the several privileges and immunities Indian diplomats and consular officers are entitled to, they have a corresponding duty under the 1961 Convention and the 1963 Convention, to respect the laws and regulations of the host State. Irrespective of how Ms. Khobragade was treated by U.S. authorities, we must not forget the original allegation that she is in violation of U.S. law.

This possible violation of host State law needs to be investigated by Indian authorities. It is imperative that India develop a framework to address misconduct of Indian officials abroad, who have been exempted from prosecution due to consular or diplomatic immunity. Though not an obligation under international law, such a step by India will go a long way as a goodwill diplomatic gesture. It will also ensure quick responses from other countries when pleading immunity on behalf of a national, since there would be an assurance that the offender would face legal consequences in one or other jurisdiction.

Also, India’s latest step of re-designating Ms. Khobragade as a diplomatic agent to the U.N., with a view to bring her under diplomatic immunity, may be viewed internationally as an abuse of the international legal process, given that Section 14 of the 1946 Convention on the Privileges and Immunities of the United Nations (which governs immunities of representatives of the Members to the U.N., since the 1961 Convention is silent on it) expressly states: “Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case where the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.”

(Deepak Raju recently graduated with an LLM in international law from the University of Cambridge. E-mail: deepakelanthoor@gmail.com; Rukmini Das is a research fellow at Vidhi Centre for Legal Policy, New Delhi. E-mail:rukmini.das@vidhilegalpolicy.in)

A question of talent

 
 

Art and graft

Mike Atherton

	Ramprakash's elegance seemed to encourage the notion he was unusually talented © PA Photos  Enlarge

Boy, he looked good. Sitting there in his crisp, grey suit, hair slicked back, tanned, square of jaw, he looked as if he could have played for another decade. But Mark Ramprakash had decided enough was enough. The runs had not flowed with their customary ease and, midway through his 26th summer in the first-class game, it was time to reflect on what had gone, rather than speculate about what was to come.

Rightly, the valedictories were gushing. This was a batsman, after all, who had scored over 35,000 first-class runs at an average of 53, and joined the elite group of those who have made more than 100 first-class hundreds. Because of the impact an expanded international game has had on appearances in domestic cricket, he could well be the last member of the club. At every level except the very top, he made batting look easy. He was a fine player.

Many pieces were written about Ramprakash in the days after his retirement, and many included the phrase "the most talented player of his generation". A few suggested his talent was unfulfilled, which seemed a little harsh, even if it reflected his travails in over a decade of Test cricket. The implication was that he had underperformed, a view based on a perception of the ability he was blessed with.

Talent. We have a curious relationship with it in English cricket. If it is generally defined as possessing either a natural gift, or a capacity for success, then our game invariably tags as talented those who enjoy the gift, but not necessarily the success. Many England cricketers who have struggled to establish themselves in the international game - Chris Lewis, Mark Lathwell, Owais Shah and Ravi Bopara, to name four recent examples - are routinely described as being among the most talented players of their time.

The notion of a natural gift has taken a battering in recent years, thanks in particular to the work of one scientist. The Swedish psychologist K. Anders Ericsson has gone a long way towards deconstructing the myths of talent by showing that elite performance is almost always the result of ferocious hard work, relentless self-improvement and specific, rigorous practice - all within a cultural context in which the appetite for self-improvement can flourish. In other words, few have reached the top without putting in the hours.

Ericsson's work is now widely accepted, but there are still some who believe in inherent or inheritable gifts. For sports such as basketball, which require genetically linked physical advantages, it is hard not to sympathise with this view. But whichever side of the divide you tread, it should be obvious that the term tends to be applied retrospectively. In describing someone as talented, we do not really mean they have some innate predisposition to perform; rather, it is a convenient way of explaining their achievements (or even, in English cricket, their shortcomings).

In looking for examples of talent, we nearly always exaggerate the importance of an eye-catching moment, or a graceful style. Aesthetics outweigh almost everything else. Ramprakash's feats were far from modest, but it was his elegance - the ease with which he appeared to play, the extra time he appeared to enjoy - that encouraged the notion he was unusually talented.

Very few observers, by contrast, would describe South Africa's Graeme Smith as naturally gifted. With his wide, ungainly stance, strangling grip, and closed-face back-lift, he makes batting look hard work. And yet his method makes perfect sense. In an era where bowling at fourth stump is accepted practice, and when fielders in the arc between wicketkeeper and point often outnumber the rest, Smith's refusal to hit in areas traditionally regarded as left-handers' strengths gives him an advantage. More than 8,500 Test runs at nearly 50 as an opening batsman suggest he possesses talents that transcend mere aesthetics (or their absence).

Most of us are prone to this weakness of falling for the kind of talent that a moment of brilliance implies: a breathtaking stroke, a scintillating piece of fielding. As a result, we underestimate the gifts given to those who achieve consistently, if not spectacularly. After watching a young Dwayne Smith, the West Indian all-rounder who had made a rapid century on Test debut, smash a length ball from Steve Harmison over midwicket and out of the ground in Trinidad some years ago, I turned to my companion and said: "I've just seen the next great West Indian batsman." One shot was enough to fool me. All through the disappointing years that followed, I kept expecting what I thought was exceptional talent to blossom. It never did.

We are apt to hold too narrow a definition of what constitutes talent. One of Ramprakash's contemporaries was Graham Thorpe. More than a decade ago in Colombo, I watched him score a hundred against Sri Lanka's spinners in conditions that could not have been more testing, with the sun beating down and the pitch disintegrating into dust. His strokeplay was not eye-catching; in fact, the innings was devoid of any flowing shots at all. But what an innings it was - one of the finest I ever saw from an England player.

That day, Thorpe revealed so many different aspects of his talent. He played the ball off the pitch later than any of his team-mates. It takes a particular gift to let the ball keep coming and coming until the bowler is almost yelping with success, but he adopted a kind of French-cricket technique, keeping his back-lift low, and turning the blade with his wrists at the last moment to pierce gaps that most others would have needed satellite navigation to find. His talent was to adapt to his surroundings. As for my own career, I take an innings of 99 at Headingley against South Africa in 1994 as one that revealed my own special - for want of another word - talent. It was after the dirt-in-the-pocket match at Lord's and, in the intervening week, I had to cope with an unusual degree of public interest, with a tabloid tracking my every movement. Between Tests, I had not been able to practise, and there had been no county match for Lancashire.

The attention was not on my batting, but on my captaincy and character. I had been forced to sit through two torturous televised press conferences, and to listen to a range of critics, from the comedian Jimmy Tarbuck to the chairman of the Headmasters' Conference, who sought my resignation. It was an uncomfortable time, and before I walked out to bat, I had not given a moment's thought to the innings. I scratched around for a couple of hours before lunch, and forced myself into some kind of rhythm by dint of nothing more than pure bloody-mindedness. But what I had managed to do, between walking to the middle and facing the first ball, was to put the events of the previous fortnight to the back of my mind. I am certain that, in the same circumstances, not many of my contemporaries could have played that innings, that day.

The ability to shut out the noise and the clamour is something I see now - to a far greater degree - in Alastair Cook. It is not an aptitude that stands out, is easily recognised, or regarded as exceptional. Hidden from view it may be but, set against the requirements for success at international level, with all its pressures, it is a talent as important as the ability to play a good-looking cover-drive. It is only now, after over 7,000 Test runs and more hundreds than any other England player, that observers (I have been more guilty than most) are starting to think of him as gifted.

Barring injury, illness or misfortune, Cook - who is only just entering his prime - will probably become the greatest batsman England have ever produced; greatest, that is, in terms of run-scoring, record-breaking and hundred-making. The adjectives that accompany most of his innings are hard-working, focused, driven, effective, pragmatic - as if these attributes, and Cook's supreme thirst for self-improvement, are not identifiable talents in themselves.

They are submerged beneath a game that sometimes stands out only for its ordinariness. Yet Andy Flower has commented upon his world-class facility to score through the leg side and off his hip, a gift those at Essex quickly recognised; his ability to shut out extraneous detail, and his concentration levels, speak of a particular talent too. The way he out-thought and outmanoeuvred India's spinners during consecutive hundreds in Ahmedabad, Mumbai and Kolkata over the winter revealed a cricketing intelligence not shared by many of his team-mates. His hundred in Mumbai was certainly less spectacular than Kevin Pietersen's, but can we really say Cook is less talented? He simply possesses different strengths.

Talent may or may not be innate but, in all its facets, it certainly exists to be developed, honed and crafted. The more humdrum aspects of the game - the ability to work hard, stay focused, adapt to circumstance, bring your best game to the crease time and again, despite all the distractions - are all gifts, just as much as sweet ball-striking.

One of the sweetest strikers in the English game right now is Bopara. The consensus is that he is more naturally gifted than Cook but, as he sat at home over the winter, watching him compile hundred after hundred, how Bopara must have wished for some of his talents - the ability, for example, to put a run of bad scores behind him, or to compile the kind of ugly runs that would keep him in the team from one game to the next until form returns, as Cook did memorably against Pakistan at The Oval in 2010.

In one of his more poetic moments, Friedrich Nietzsche said: "All great artists and thinkers are great workers, indefatigable not only in inventing but also in rejecting, sifting, transforming and ordering." Cook is indefatigable in ordering his gifts, but no doubt it will be his Essex team-mates, Shah and Bopara, who are remembered as the more talented.

Being tagged as supremely talented also diminishes Ramprakash's achievements, because the implication is that the game came easily to him. If it looked that way, it was on the back of unstinting hard work. Having played with him for over a decade, I would not disagree with anybody who called Ramprakash the most dedicated batsman of his generation. As for the most talented? Well, that depends on your definition.