The U.S. may have secret agreements with some countries granting their officers at the consulates immunity. However, it felt no need for such an agreement with India as its consular officers were already afforded personal immunity

The arrest of Indian diplomat Devyani Khobragade and the humiliating treatment meted out to her has triggered an unprecedented row between India and the United States. Asking the U.S. to tender an apology has not helped in resolving the logjam. The U.S. is not used to tendering apologies, especially when it feels that its laws have been broken. Furthermore, the insistence on an apology has only hardened the U.S. position. Our objective should be to identify core issues which have precipitated this and earlier incidents with a view to finding both short-term as well as long-term solutions. In any case, the U.S. has expressed regret over the circumstance relating to the arrest.

One issue that has got highlighted time and again is the U.S.’s refusal to grant diplomatic immunity to persons whom it regards as Consular officials even if they are diplomats of the sending country.

On the other hand, India had been affording full personal immunity to diplomats and their family members posted at the U.S. Consulates in India. There are four such consulates at Mumbai, Chennai, Kolkata and Hyderabad. All U.S. diplomats at these consulates as well as their family members were issued ID cards which stated that they had personal immunity in civil and criminal matters. These cards were similar in this respect to the cards issued to U.S. diplomats posted at their embassy in New Delhi.

Such unilateral gestures in diplomacy are often taken for granted. Following Ms. Khobragade’s arrest, however, the Ministry of External Affairs (MEA) has withdrawn the ID cards of U.S. diplomats at the consulates and replaced them with cards which are similar to the ones issued by the State Department to diplomats posted at our consulates in the U.S. Moreover, as a reciprocal measure, no ID cards are now given to the family members of such diplomats. Reciprocity has also been enforced in some other issues. The U.S. Ambassador will not be treated any differently at Indian airports than the Indian Ambassador is treated at U.S. airports.

Previous incidents

One wonders why the MEA took so long to enforce reciprocity, which is a time-tested mantra in diplomatic links. Countries afford privileges and immunity on a reciprocal basis. Since we were not insistent on reciprocity, the U.S. side felt under no pressure whatsoever. Another diplomat working with me in New York and I were dragged to U.S. courts and accused of trafficking and human rights violations over nothing more than wage disputes. Krittika Biswas, a Grade 12 student and daughter of my vice-consul was arrested from her school in front of her fellow students on the charge of cyber bullying her teacher. She was handcuffed and kept in detention for 28 hours with prostitutes and drug addicts even though she denied the alleged crime and also said that she had a diplomatic passport. The U.S. authorities asserted that she did not have any immunity. My colleagues and I had to run from pillar to post to get her released. She was not readmitted to her school but was sent instead to a reform school. Later, it was found another student, and not Krittika, was responsible for the cyber bullying. He was neither arrested nor detained.

The MEA should have taken appropriate action after the very first case when diplomatic immunity was denied by the U.S.; it should have applied reciprocity then and there. This time, the mood is quite different. South Block is of the view that enough is enough.

Bilateral arrangements

Now that we have at long last enforced reciprocity in regard to diplomatic immunity, the State Department may be willing to find a feasible solution. It may not like to take the risk of some U.S. diplomat posted at a consulate in India landing in trouble with our law enforcement agencies, whose standard procedures would perhaps be as detailed as those of the New York police.

What is the way out of the deadlock? The booklet of instructions issued by the U.S. State Department to law enforcement officers gives us a clue. While stating that consular officials have only limited personal immunity, there is a paragraph on special bilateral arrangements which states: “In some cases, a country and the United States have concluded a bilateral consular agreement that grants to members of the staff of their consulates (provided they are not U.S. nationals, legal permanent residents, or permanently resident in the United States) privileges and immunities approximating those afforded diplomatic agents. Law enforcement officers should be aware that these arrangements are not uniform and the State Department identification cards issued to these persons reflect the appropriate level of immunity....”

Clearly, the U.S. can have a bilateral agreement with us on this matter if it feels that there is a need to do so. It has been widely reported in the media that 49 Russians working at their Permanent Mission in New York, the Consulate and the Trade Office have recently been accused of the crime of Medicaid fraud by Attorney Preet Bharara. The U.S. has placed this matter of alleged Medicaid fraud in the public domain only when all the Russians allegedly involved had left the country, are in the Embassy at Washington DC or in the Permanent Mission and cannot be prosecuted. This may be because of a secret, bilateral agreement between Russia and the U.S. which grants their officers and staff working at the consulates privileges and immunity that are given to diplomats.

The U.S. may have signed such agreements with some EU countries and China. However, it did not feel the need for such a bilateral agreement with India till now as its diplomats working in consulates were already afforded personal immunity. Now that India has enforced reciprocity, the State Department may be open to the idea of a bilateral agreement. If negotiations for such an agreement are carried out in an atmosphere of goodwill rather than rancour, the State Department could perhaps intervene and find ways of closure to the Khobragade case as well as other past cases which remain on record.

Let me clarify that I am not making a pitch for allowing diplomats posted at consulates in the U.S. to violate local laws with impunity, but only for affording them the sort of immunity as is given to their counterparts posted at the embassy in Washington DC.

Status of the assistant

In any such negotiations, India will also have to take up the issue relating to the unique status of an India-based domestic assistant. It is not that Indian diplomats are so spoilt or feudal (as has been suggested in some quarters) that they cannot do without domestic help. Most of them do not take such help on their postings. However, some do find it necessary to have such help for various reasons.

Then, there is the issue of representational entertainment. A senior official such as a consul general has to host a number of receptions, lunches and dinners in exercise of representational duties. Outside catering works out to be rather expensive, and senior diplomats are obliged to have a domestic assistant who can help them discharge their representational obligations.

Keeping all such factors in mind, the Government of India has been following a system of sending a domestic assistant with a diplomat to enable the latter to perform his functions. The government treats the domestic assistant as being on official duty. An official passport is issued to the domestic assistant, and the visa is applied through an official note verbale. All expenses such as to and fro air passage (as also the passage for home leave), accommodation, boarding and medical cover are met by the government. The cash emoluments of domestic assistants are built into the emoluments of the officers themselves. Generally, the domestic assistants save their entire cash emoluments. The India-based domestic assistant is not like the ordinary domestic worker in the U.S. who may be paid a wage of $10 an hour but has to meet the cost of accommodation, food, medical cover, etc.

Since the government bears all expenses of the domestic assistant, it considers the assistant as a service staff member like India-based chauffeurs and security guards to whom the MEA’s rules and regulations apply. However, the U.S. considers such persons as ordinary domestic workers who are covered by U.S. labour laws. India has to try and persuade the State Department to treat the India-based domestic assistant as a special category of foreign worker governed by the laws of India; this is what the eminent Indian American attorney Ravi Batra recently opined. A dialogue between the MEA and the State Department will give much needed clarity to the status of the India-based domestic assistant instead of prolonging a systemic conflict, resulting in more court cases.

(Prabhu Dayal was India’s Consul General in New York.)

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