Deputy consul case: Be afraid of Preet Bharara

After India’s deputy consul general in New York was arrested for allegedly falsifying visa papers to underpay her domestic maid, the government, and the media, arrested in outrage. The consul was handcuffed! In front of her children! She was strip-searched! She was kept in jail with drug offenders! The Indian government swiftly took retaliatory action against US diplomats in India. The maid was smeared freely in the press, declared an absconder, and the US government accused of some nefarious business, especially when it turned out that the maid’s husband and child had been brought to the US.

Preet Bharara, the US attorney for the southern district of New York and the man behind the charges, discusses these allegations and, despite being constrained by his position on the things he is allowed to say, rebuts most of them very nicely here.

Preet Bharara’s name is now familiar to many Indians for his role in this story. But in the US, he is much better known for other things: if you search Google News for current stories, you will find examples like this. Basically, he has successfully targeted many Wall Street executives for insider trading, the latest being SAC Capital’s Michael Steinberg. He has not lost a case yet in prosecuting insider trading, convicting 77 of 77 defendants with ten pending cases. This is clearly a man who does his homework. But because one of those 77 defendants was Rajat Gupta, apparently Bharara is being accused by some in South Block of targeting Indians!

There is no doubt that, in his statement on the consul case, Bharara is saying much less than he knows. The Indian government has behaved in this matter with unbelievable stupidity and arrogance without ascertaining the facts — to the extent of moving the diplomat to the UN office and retrospectively claiming diplomatic immunity (which will be received only if the US State Department accredits her). Now one wonders whether the US values its relations with India sufficiently to go along with this ploy. But the more interesting question, to me, is what else Bharara has up his sleeve (this is after all the third recent case involving just the NY consulate…)

At the end of the day, the way we in India treat domestic help is a scandal, and, increasingly, an international one. The government and the media are right to be angry but have the wrong target.

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What to do when the Supreme Court issues a contemptible judgement?

I, like many others, was not paying much attention to the impending Supreme Court verdict in the appeal of the Delhi High Court’s verdict quashing the criminalization of gay sex in Section 377. The Delhi HC’s arguments seemed so common-sensical, and international opinion so strong, that it seemed inconceivable that the Supreme Court would not uphold the verdict. The inconceivable occurred yesterday.

A bench of two judges declared the following in reinstating the ban on gay sex:

  • In its “anxiety” to protect the “so-called rights” of LGBT people, the HC “extensively relied upon the judgments of other jurisdictions”.
  • “The High Court is not at all right in observing that Section 377 IPC obstructs personality development of homosexuals or affects their self-esteem because that observation is solely based on the reports prepared by the academicians.”
  • And most shocking: The HC “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC.”

Since when did it become OK to discriminate against a group because their numbers are small? Why is a discriminatory law OK if prosecutions under that law are rare? Why “so-called rights” — do LGBT people not have rights? Don’t all courts, all over the world, rely upon judgments in other jurisdictions? And should academicians stop giving advice to courts now?

They conclude that it is the legislature’s job to change the law, if required. This is the same court that just ruled against red beacons on cars for all but a small category of officials (which includes Supreme Court judges!), last year banned sun-film on car windows (nowhere outlawed in the motor vehicle act, which only prescribes the minimum transparency of the windows), mandated CNG fuel in Delhi public transport, banned street food in Delhi… It is not the court’s job to legislate on those things. It is, however, the court’s job to strike down discriminatory legislation.

This judgment will not be looked on kindly by history, nor will its authors Justices Singhvi and Mukhopadhyaya.