Feb. 7 deadline for Devyani defence

The deadline for the defence attorney to reply to the Southern District Court of New York in the case against Devyani Khobragade, the former Deputy Consul General of India whose arrest sparked off a diplomatic crisis, is February 7 2014.

Following this the judge in the case, Shira Scheindlin of the District Court, may call for oral arguments from both sides before issuing a final ruling on whether the indictment stands or is dismissed on the grounds of Ms. Khobragade’s immunity claim.

The response from her lawyer, Daniel Arshack, will follow a January 31filing by the prosecution, the Manhattan U.S. Attorney Preet Bharara, who has challenged the claim that Ms. Khobragade was cloaked in diplomatic immunity at the time of her arrest and during the time she was alleged to have underpaid and exploited her domestic employee, Sangeeta Richard.

However regardless of whether Judge Scheindlin dismisses the case or not Ms. Khobragade is unlikely to ever be able to enter the U.S. without submitting to the jurisdiction of U.S. courts because the prosecution is free to proceed with a fresh indictment against her at some point in the future when Ms. Khobragade has no immunity.

As it stands the senior Indian diplomat, who was whisked off U.S. soil on January 9 after the State Department granted her full diplomatic immunity honouring her transfer to the Permanent Mission of India to the United Nations, faces a criminal indictment for visa fraud linked to allegations made by Ms. Richard, an Indian national.

Ms. Khobragade’s arrest on the streets of New York and subsequent strip-search in the custody of U.S. Marshals led to New Delhi undertaking retaliatory measures and sent the bilateral relationship into a tailspin for weeks.

Yet what is evident regarding the case brought by the U.S. Department of Justice against Ms. Khobragade is that because it is a criminal and not a civil case, no trial in absentia is possible, and no further examination of the underlying facts of the case will therefore happen as long as Ms. Khobragade does not submit to the jurisdiction of U.S. courts.

Nevertheless, as the State Department pointed out to the Indian embassy on January 9, a warrant may be issued for her arrest in any case because a pending indictment, indicating probable cause, is sufficient grounds for such a warrant.

This stands in stark contrast to the civil case brought by the U.S. against another senior Indian diplomat in New York, Neena Malhotra, who along with her husband Jogesh was accused of exploiting her domestic employee Shanti Gurung and in 2012 was slapped with a $1.5 million fine in absentia.

In both cases Indian courts have issued injunctions on any further litigation in the U.S. by the plaintiffs.