Krittika Biswas, the eighteen year old daughter of Debashis Biswas, a Vice-Consul serving at the Indian Consulate General in Manhattan was falsely accused of sending obscene emails to her school teacher and subsequently wrongfully arrested and kept in custody for more than 24 hours in February 2011. She was also sent for more than a month to a special suspension program by her school despite being cleared by investigators. On 6th May 2011 Ms Biswas filed a notice of claim stating that she was suing New York City for $ 1.5 million. The girl is reported to have claimed diplomatic immunity. However, a State Department spokesman, Mark Toner said that immunity did not extend to family members of diplomats. "As a family member of consular officer, rather, she does not enjoy immunity from jurisdiction or inviolability," he told reporters.
Indian Consul General in New York stated that the US State Department was wrong in its reading of the Vienna Convention on Consular Relations and asserted that diplomatic immunity is extended to family members of consular officers.
Insisting that Toner had got it wrong, Dayal pointed to article 53 (2) of the Vienna Convention on Consular Relations, 1963, which says "Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention..."
The State Department, however, said that it was sticking by Toner's earlier remarks.
This incident involving the Consul’s daughter has resulted in a spat between both the countries. This paper seeks to examine the role of consuls and the nature and extent of immunity available to Foreign Service officers posted in Indian missions abroad.
Consuls – Roles and Functions
There is an assumption that diplomats and consuls hold the same office. Although diplomats and consuls work hand in hand to create and develop foreign relations between States, they are different; not only in the function that they perform, but also in the immunities and privileges that are afforded to them.
Their primary duty is to protect economic interests and any trade relations between the sending and receiving State. Other consular duties include issuing passports, the registration of birth and the solemnising of marriages, executing notarial acts and exercising disciplinary jurisdiction over the crews of vessels belonging to the sending State. The protection of the sending State’s nationals who find themselves in difficulty in the receiving State is an important function and failure of the receiving State to allow right of access to and communication with such nationals may result in action being initiated before the International Court of Justice (ICJ), as did Germany and Paraguay against the US. McClanahan states three provisions with reference to communication and contact with nationals of the sending State. Firstly, that consuls shall be free to communicate and have access to nationals of the sending State and vice versa; secondly, that consuls are to be informed swiftly by the authorities of the receiving State regarding the arrest and detention of any of their nationals, and the nationals shall be informed of such rights; and thirdly, that consuls have the right to visit the nationals and arrange for their legal representation.
The rights, privileges and immunities of consular officers
Article 53 of the Convention provides –
(1) Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.
(2) Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.
Article 41 of the Convention provides –
(1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
(2) Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
(3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.
The definition of “grave crime” depends on the statute obtaining in the receiving State and its interpretation by its judiciary. By no stretch of imagination can sending obscene or threatening emails by a student to his or her teacher be construed as a grave crime.
Consular immunity offers protections similar to diplomatic immunity, but the protection is not absolute and as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.
In general, consular privileges and immunities are dramatically more limited in scope than those afford¬ed to diplomats, particularly with respect to immunity from the jurisdiction of the receiving state. Consular officers and other employees at consulates have criminal, civil, and administrative immunity only with respect to acts performed in the exercise of consular functions. With limited exception for serious crimes, consular officers cannot be arrested or detained pending trial. Members of the consular staff, however, have no such protection.
The family members of consular employees have es¬sentially no immunity from the jurisdiction of the host state as they do not perform official acts. The determination of whether something qualifies as an “official act” or “consular function” is generally determined by the courts of the receiving state.
In order to appreciate the scope of immunity available to family members of a consular officer, it is relevant to make reference to Article 37 of Vienna Convention on Diplomatic Relations, 1961 which reads as follows:
The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.
This article provides for a near total immunity to both the diplomat and his family from arrest and detention in any form, inviolability of his person, residence and premises, immunity from criminal jurisdiction, exemption from taxation and social security. This level of immunity is not available to a consular officer and his family.
Article 42 of the 1963 Convention provides for notification of arrest, detention or prosecution. The article stipulates that in the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.
In his essay, “Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities”, Mitchell S. Ross says “The executive branch possesses exclusive jurisdiction to determine whether an alien in the United States has diplomatic immunity. President Jimmy Carter delegated this function to the Secretary of State in 1978. The Secretary of State's power to confer or deny immunity is strictly a political determination and is not subject to judicial review.”
In the case of Krittika Biswas, assuming without admitting that the family member of a Consular officer was not entitled to immunity from jurisdiction and from arrest or detention, the local authorities in the US, particularly the New York Police Department ought to have notified the Indian Consulate about the arrest of the girl and permitted consular access as provided in the said Convention. It must be noted that this case is not the first instance of the US being in violation of the letter and spirit of the Vienna Convention on Consular Relations, 1963. The US has been guilty of serious breaches in the past. In 1996, Paraguay came to know that its national Angel Francisco Breard was imprisoned in the United States and had been sentenced to death after being convicted of culpable homicide. However, the national was not given consular access. Paraguay initiated proceedings against the US before the International Court of Justice for violations of the Vienna Convention on Consular Relations, 1963. “The Court unanimously indicates the following provisional measures:
The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;
II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”
In the case of LaGrand Brothers, too, the accused were denied consular assistance under the Vienna Convention. The facts of the case are as under:
On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They were subsequently charged and convicted of murder and sentenced to death. The LaGrands were German nationals, having been born in Germany. While they had both lived in the United States since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the LaGrands should have been informed of their right to consular assistance, under the Vienna Convention, from their state of nationality, Germany. However the United States authorities (the State of Arizona) failed to do this even after they became aware that the LaGrands were German nationals. The LaGrand brothers later contacted the German consulate of their own accord, having learned of their right to consular assistance. They appealed their sentences and convictions on the grounds that they were not informed of their right to consular assistance, and that with consular assistance they might have been able to mount a better defense. The federal courts rejected their argument on grounds of procedural default, which provides that issues cannot be raised in federal court appeals unless they have first been raised in state courts.
Diplomatic efforts, including pleas by German ambassador Jürgen Chrobog and German Member of Parliament Claudia Roth, and the recommendation of Arizona's clemency board, failed to sway Arizona Governor Jane Dee Hull, who insisted that the executions be carried out. Karl LaGrand was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter LaGrand was then executed March 3, 1999, by lethal gas.
Germany then initiated legal action in the International Court of Justice against the United States regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied for the Court to grant a provisional court order, requiring the United States to delay the execution of Walter LaGrand, which the court granted.
Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional order. In its judgment, the U.S. Supreme Court held that it lacked jurisdiction with respect to Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution, which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With respect to Germany's case against the United States, it held that the doctrine of procedural default was not incompatible with the Vienna Convention, and that even if procedural default did conflict with the Vienna Convention it had been overruled by later federal law—the Antiterrorism and Effective Death Penalty Act of 1996, which explicitly legislated the doctrine of procedural default.
The U.S. Solicitor General sent a letter to the Supreme Court, as part of these proceedings, arguing that provisional measures of the International Court of Justice are not legally binding. The United States Department of State also conveyed the ICJ's provisional measure to the Governor of Arizona without comment. The Arizona clemency board recommended a stay to the governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter LaGrand was executed on March 3, 1999.
Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S. violated international law by failing to implement the provisional measures. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.
On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. The ICJ also found that its own provisional measures were legally binding. The court also found that the United States violated the Vienna Convention through its application of procedural default. The court was at pains to point out that it was not passing judgment on the doctrine itself, but only its application to cases involving the Vienna Convention.
Given its past track record, it is not surprising that Krittika’s rights as foreigner and that of a family member of an Indian envoy were denied by the US. However, the critical aspect is whether the teenager was entitled to immunity. It must be said that though the US authorities, particularly the NYPD were responsible for mishandling the case by their acts of wrongful arrest and detention, in view of the foregoing analysis on diplomatic and consular immunity, immunity may not have been available to Krittika Biswas from arrest and detention.
Lastly, what does India need to do? Indo-US relations are quite strong and bilateral ties cannot become hostage to unfortunate incidents like that of Ms Biswas and frisking of Indian dignitaries at US airports. The official Indian reaction to Ms Biswas’ case has by and large been circumspect, while the Indian media has been less than mature in its coverage of the incident. Having said that it is necessary for India to convey to the US, its displeasure and the fact that there is a sense of outrage in India in the way this case was handled by the US authorities. If the US Administration is not sensitive to Indian concerns, then India may be forced to adopt a similarly narrowed interpretation of the Vienna Convention while dealing with its consular officers stationed in India.
 The Supreme Court of Hong Kong in the case of Juan Ysmael v S.S. Tasikmalaja ILR 1952 Case No. 94 stated that some of the functions of a consul are similar to those of diplomats, but these functions do not transform a consul into a diplomat.