Wendy Doniger Comments on Her Book & the Situation in India

Wendy Doniger has written this article for the New York Times about her book. Read this blog if you're not acquainted with the issue, and then her article. Read her article and skip my blog if you don't need the background. (My fellow Americans may find the background useful.)

A number of articles that have made The New York Times (including the "front page" of the online edition) about a lawsuit here in India that led publisher Penguin Books of India to agree to pulp copies of University of Chicago Hindu scholar Wendy Doniger's book The Hindus: An Alternative History. I've been following this story with some interest. I was shocked last year when an Indian scholar at the Jaipur Literature Festival made a comment that I thought innocuous and likely true (that lower caste members were now involved in more corruption and this was a sign of upward mobility). I thought it sounded like the Boston Irish politicians of late 19th and early 20th century, the forbearers of John F. Kennedy. However, the scholar, Ashish Nandy, had a criminal prosecution filed against him, and we exited JLF that night to meet an ongoing demonstration against him. The matter was resolved with a scolding of Nandy by the Indian Supreme Court and nothing more. But very different from the U.S.! 

Last year I learned that the U.S. and Indian legal systems share a great deal, owing to in large measure to the common British legal heritage. The primary drafter of the Indian Constitution, Dr. Ambedkar, received law and economics degrees from Columbia University (which I hear is a good school and that I know is quite expensive) and LSE. (Gandhi and Nehru were British-trained barristers.) However, when it comes to free speech, we see quite a divergence between India and the US.. Once the British cleared out of Indian and the old principalities were folded into the new nation, a number of centrifical forces still pulled at the fragile nation: religion and caste foremost among them. It appears that in order to try to engender a peaceful co-existence, no ill words were to be spoken about matters of religion or caste. 

While free speech can be--and regularly is--abused by some, in the U.S. we see it as the price we pay for free discourse (although that doesn't deter groups, often of the Christian Right, from attempting to suppress speech). The Indian law comes to a different conclusion, even criminalizing speech in certain instances, and thus l'affaire Doniger.

Read Doniger about how this has played out. India does have an important liberal element that has spoken loudly and clearly, although this was not enough to turn the tide in this instance, it gives hope for freer discourse in the future.

India Journal: Diplomatic Kerfuffle

A photo of India's deputy consul general in New York, Devyani Khobragade

On December 12, U.S. Federal Marshals arrested an Indian diplomat (Devyani Khobragade) in NYC for falsifying a visa application for a servant. The gist of the complaint claims that the servant was to have been paid one amount but was in fact paid much less, even less than the minimum wage. The diplomat was arrested while dropping off her daughter at school. The arrest was processed, and the diplomat was jailed until she posted bond.

We first read about this in The Hindu, that we subscribe to and that we consider one of the better papers. When I first learned of this Monday, I searched the NYT for a report, but I couldn’t find one. Today, the headlines in The Hindu reported about the retaliatory actions of a very unhappy Indian government, while the NYT reported about the retaliation in an article as well. The Indian government is indignant about the arrest and treatment that its diplomat received. The American authorities haven’t said much, but they seem to be treating it as a relatively unremarkable matter.

When I read about this arrest initially, I wondered about diplomatic immunity, but the Americans argue that lying on the visa application for the servant (done by the diplomat) and wage and hour violations are not covered by diplomatic immunity. In fact, there is a difference between immunities provided to diplomatic as opposed to consular staff. Given the lack of much argument about this from the Indian papers, I’m inclined to believe that diplomatic (or consular) immunity does not apply in this instance (but I’m no expert).

The Indian government and political class seem more upset about the treatment of the diplomat rather than the substance of the charges. My response is that the treatment doesn’t sound like anything special. Federal law enforcement, in my limited personal experience as well as my reading, can be heavy-handed indeed, but they probably played this one by the book. U.S. Marshals can be brusque, but they don’t tend to discriminate in that regard. I suspect that the diplomat received the same treatment as anyone else arrested on a federal felony charge.  (By the way, the issuance of an arrest warrant means that a judicial magistrate found probable cause to believe that the crime alleged had been committed.) Searches and jailing, I expect, would have followed normal procedures. (I’ve seen nothing to indicate the contrary.)

To say that U.S. and Indian norms for the treatment of women differ a good deal is a titanic understatement. As Hari Kumar points out in the NYT, for airport searches in India, women go through a separate line and go behind a screen for personal searches beyond the metal detector. Thus, we have an issue of diplomatic protocol as well as a difference about how the genders are treated. As to an arrest while dropping (or picking up) a child at school, I can only say that this wouldn’t appear to be any different from what law enforcement officials would do with any other person sought for arrest. Once they have an arrest warrant, you can expect them to do whatever is required of them to apprehend the subject. Federal law enforcement officials don't operate like the constable in an Agatha Christie country house mystery.

All of this happened in NYC, which has a long history of dealing with diplomats accused of crimes, especially since the location of the U.N. there. Given that the subject is an Indian diplomat, one has to assume that the highest levels of prosecutors and State Department officials were advised of the plan and approved of it. The Hindustan Times reports: 

While the state department is reviewing if all the correct procedures were followed,[State Department spokesperson] Harf stressed that the Indian embassy in Washington had been informed of the allegations against the consular official as long ago as September.

As a consular official, Khobragade does not have full diplomatic immunity, but has consular immunity which "only applies to things done in the actual functions of one's job," Harf added.

The diplomat had been arrested by the State Department's diplomatic security bureau, and then handed over to the US Marshals Service (USMS) to be processed through the court system.

In a statement, the Marshals confirmed she had been strip-searched and "was subject to the same search procedures as other USMS arrestees held within the general prisoner population in the Southern District of New York."

Although it did not confirm reports that Khobragade was placed with drug addicts, the statement added that she was held in a cell with other female detainees.
"Absent a special risk or separation order, prisoners are typically placed in the general population," the Marshals statement said, adding she had been put in an "available and appropriate cell."

Khobragade was released on a bond the same day, and after a review of her case the US Marshals found that the service had "handled Khobragade's intake and detention in accordance with USMS policy directives and protocols."

"All indications are that appropriate procedures were followed. But nonetheless. We understand this is a very sensitive issue, and we're continuing to review exactly what transpired," Harf told journalists on Tuesday.

One interesting sidebar: the head prosecutor is an NRI. What difference, if any, did that make? I don’t know, and I’ve seen no conjecture about it. 

The main point that I’d make to any Indian readers is that I’m not aware of any sub-text to the arrest. I’ve not read anything, nor can I conjecture about, any ulterior motive for the arrest. If the diplomat had been from Pakistan, Brazil, or Canada, I don’t know why the matter would be handled any differently.  Remember that when International Monetary Fund chief Dominique Strauss-Kahn was arrested in New York City he had to do a perp walk. It's not kind, gentle, or considerate, but it does convey a powerful message about law enforcement.

American-Indian relations have been good, and one can only hope that this whole thing will pass without untoward gamesmanship on either side. I don’t know what the Americans have to gain from it.

For American readers, this should provide a glimpse of how delicate our relations with other countries can be. We’re the big boys on the global block right now, and nations will easily take offense if they perceive the U.S. as disrespectful or callous about their dignity and standing. (Most nations can tolerate, if the price is right, to have their interests thwarted, but not their honor.)

The retaliation by the Indian government seems more annoying than threatening. Taking down traffic barriers around the embassy will likely reduce the amount of business that the embassy can do, which, based upon my visits there, is quite a bit. Very many Indians want to travel to the U.S. to see family, go to school, or to emigrate, so I’m not sure that this is a wise move. The other acts I think more annoying than harmful. 

In any event, it shows how touchy the diplomatic world can be.Let's hope that the matter is soon laid to rest.