Only the US has the power to calm its dispute with India

The US needs to step up and defuse the row over the charging of an Indian diplomat on charges of falsifying immigration documents so she could underpay her maid.

The continuing diplomatic row between the US and India over the Devyani Khobragade case is a lose-lose situation for both countries.

From the US point of view, Ms Khobragade is accused of exploiting her nanny by paying her lower than the minimum wage and then lying about it on a visa application. She stands charged with visa fraud.

From the Indian point of view, the US has violated the Vienna Convention by arresting a serving Indian diplomat, strip searching her, doing a DNA swab and cavity search, and keeping her in a cell inhabited by drug addicts, among others.

To make matters worse, Preet Bharara, US attorney for the southern district of New York, has issued a statement that casts aspersions on Indian laws and citizens.

“One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country. One wonders even more pointedly whether any government would not take action regarding that alleged conduct where the purpose of the scheme was to unfairly treat a domestic worker in ways that violate the law,” said the statement.

When you get on a high horse – as Mr Bharara has done – you have to make sure of the facts and history.

Underpaying a nanny is not exactly unusual in the US. In 1993, Zoe Baird and Kimba Wood, two of Bill Clinton’s choices for attorney general, had to drop out after it was discovered that they were underpaying their nannies. In 2010, Meg Whitman lost the California gubernatorial race when it was discovered that she had employed an illegal alien.

One wonders whether Mr Bharara is singling out Ms Khobragade for ignominy because he is confident that India will not retaliate. Even more pointedly, one wonders whether his own government has taken action regarding the routine employment of illegal aliens in restaurants and at home. And one wonders why there is precious little outrage from Mr Bharara for those Americans who are known to be breaking the law. Commentators in the US speculate whether this is because Mr Bharara has designs on higher office. Whether he has – to use common parlance — a thing against Indians even though, or because, he was born in India.

Whatever the case, Mr Bharara has compounded an already unnecessary arrest with his unnecessary words.

The matter could have been handled sensitively and quietly by summoning Ms Khobragade to his office and resolving it by making her pay back wages to Ms Richards or any of the other methods used to punish Ms Baird, Ms Wood and Ms Whitman, all of who were in similar situations.

Instead, Mr Bharara had Ms Khobragade arrested. By doing so, he has jeopardised decades of relationship-building between the world’s two largest democracies. By arresting Ms Khobragade, a serving diplomat, the US attorney’s office clearly violated the spirit of the law and the code enforced by the Vienna Convention.

The US government has distanced itself from Mr Bharara’s remarks, something that was conveyed by Wendy Sherman, undersecretary for political affairs, to her Indian counterpart. Now, both countries need to figure out a way to move forward and restore calm to their fragile friendship.

India has moved swiftly to transfer Ms Khobragade to the UN Permanent Mission thus providing immunity from future action. The US has the discretion to accord retrospective immunity. With this action, the matter could easily be settled.

Longer term, India needs to figure out its stance with respect to the US. There is nothing wrong with “playing hardball”, if the ends justify the means.

One supposedly mature politician has called for India’s stringent anti-gay laws to be used against US diplomats and their partners. Politicians in the opposition are demanding an outright apology from the US government.

In my view, there are two messages that India needs to send to the US. One is that it will not tolerate the US violating the spirit of the Vienna Convention. It has shown that it will take action when needled. It now needs to take action where the stakes are higher, as in the case of demanding David Headley’s transfer to India to be tried for his role in the 2008 Mumbai attacks.

Both countries need to move from pointing fingers and, instead, take the high road.

They need to think about reconciliation instead of name-calling. In my view, this process needs to be driven by the US.

Firstly, in this instance, the US is wrong and I say this as someone who – like Mr Bharara – was born in India and became a naturalised US citizen.

In my opinion, arresting Ms Khobragade when there are thousands like her – Indians and Americans both – who commit the “crime” of underpaying domestic help, is clearly an attempt by Mr Bharara to make a name for himself.

If she has, indeed, committed the alleged offence, it could have been handled far more quietly and without fuss.

The US needs to rein in Mr Bharara’s office rather than collude with it. It also needs to show the world that Mr Obama meant what he said during his remarks at Nelson Mandela’s funeral about absorbing the ethos and values that he lived by.

The US needs to do the right thing because peace and a constructive relationship between two large democracies is a higher stake game than the alleged injustice to the two women involved.

Shoba Narayan is the author of Return to India: a memoir