Devyani Khobragade Case - Consular Immunity or Vulnerability?

Two acts which deserve to be condemned strongly occurred in the Indian deputy consul general Devyani Khobragade episode – firstly, prima facie, it appears that the officer violated the law of the receiving State, namely, the US and secondly, the public humiliation meted out to the official by the act of handcuffing by the law enforcement authorities. While indicting an Indian diplomat for breach of US laws may not adversely affect bilateral ties, the act of handcuffing a lady diplomat in public is likely to have repercussions. Now to the facts of the case and the legal analysis:

Devyani Khobragade, deputy consul general for political, economic, commercial and women’s affairs, Consulate General of India, New York, was arrested on the morning  of 13^th December 2013 for allegedly presenting fraudulent documents to the United States State Department in support of a visa application for an Indian national employed as a babysitter and housekeeper at Khobragade’s home in Manhattan.

The arrest of Ms Khobragade, 39, was announced by Preet Bharara, US attorney for the Southern District of New York.

According to the allegations in the criminal complaint unsealed in the Manhattan federal court, Khobragade prepared and electronically submitted an application for an A-3 visa through the website for the US department of state's consular electronic application center for an Indian national ("Witness-1"), who was to be the personal employee of Khobragade beginning in November 2012. The visa application stated that witness-1 was to be paid $4,500 per month in US dollars. Khobragade and witness-1 also signed an employment contract for witness-1 to bring to Witness-1's interview at the US embassy in India in connection with the visa application, which witness-1 did at Khobragade's direction. The first employment contract stated, among other things, that Khobragade would pay witness-1 the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.

The complaint said Khobragade knew that the first employment contract that she caused witness-1 to submit to the US state department in connection with witness-1's visa application contained materially false and fraudulent statements about, among other things, witness-1's hourly wage and hours worked. Prior to the signing of the first employment contract, Khobragade and witness-1 had allegedly agreed that she would pay Rs 30,000 per month, which at the time was equivalent to $573.07.

The complaint said at 40 hours per week, with approximately 4.3 weeks in a month, $573.07 equates to a rate of $3.31 per hour. However, Khobragade instructed witness-1 to say that she would be paid $9.75 per hour, and not to say anything about being paid 30,000 rupees per month. Khobragade also instructed witness-1 to say that witness-1 would work 40 hours per week, and that witness-1's duty hours would be 7am to 12.30pm, and 6.30pm to 8.30pm. She told witness-1 that the first employment contract was a formality to get the visa.

After the first employment contract was submitted to the United States department of state, Khobragade told witness-1, that witness-1 needed to sign another employment contract (second employment contract). Khobragade and witness-1 signed the second employment contract, which provided that witness-1's maximum salary per month including overtime allowance will not exceed 30,000 rupees per month. The second employment contract does not contain any provision about the normal number of working hours per week or month. The complaint said witness-1 worked for Khobragade as a household employee in from approximately November 2012 through approximately June 2013.

Khobragade, 39, was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively. 

Prosecution sources said Khobragade was not arrested from her home or from her office, “but from somewhere else in Manhattan.” According to some sources, she was arrested while dropping her children to school.

Khobragade, who was produced on Thursday afternoon before US Magistrate Judge Debra Freeman, was released on $250,000 personal recognizance bond co-signed by three people, prosecution sources said.

Rediff.com quoting a highly placed prosecution source stated “She has to surrender all travel documents and no new applications and her travel is restricted to the US with notice to pre-trial before interstate travel.”

“She is also not allowed to sponsor any visas, or have any direct or indirect contact with Witness-1 (the domestic worker) or the worker’s immediate family. She can, however, continue to work in whatever position she is working -- with the restrictions.”

While Bharara's office portrayed the Indian diplomat as having fraudulently brought a domestic help from India by promising mandatory US wages ($ 9.75 per hour) and underpaying her ($ 3.11 per hour), Indian officials presented a totally different and more complicated picture of the case. They said the housekeeper, Sangeeta Richard, has been absconding since June this year, and ''in this context the Delhi high court had issued an-interim injunction in September to restrain Ms Richards from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.''

The US Government had subsequently been requested to locate Ms Richard and facilitate the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code, they added.

This is not the first time Indian consular officials have been involved in controversies involving domestic help. Earlier, Dr. Neena Malhotra who worked as a consul at the consulate in New York -- was asked to pay almost $1.5 million to her former domestic worker Shanti Gurung. Domestic worker Santosh Bhardwaj, Indian Consul General Prabhu Dayal’s housekeeper, had filed a lawsuit alleging forced labour and psychological coercion.  However, this is the first time a diplomat has been arrested. Earlier in 2011 Krittika Biswas, the daughter of a consular officer was arrested in New York on charges of sending obscene emails to her school teacher. (http://kumar-theloneranger.blogspot.in/2011/06/krittika-biswas-case-scope-of.html)

This brings the focus back on the extent and scope of consular immunity.

Privileges and immunities available to consular officials are governed by the 1963 Vienna Convention on Consular Relations (VCCR). Consular immunity offers protection similar to diplomatic immunity, but the protection afforded is not 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.

The relevant provisions, namely, Articles 40 to 43 of the Vienna Convention deal with immunity of consular officers.

Article 40 – Protection of Consular Officers

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent attack on their person, freedom or dignity.

Article 41 – Personal Inviolability of Consular Officers

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.

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.

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.

Article 42 – Notification of Arrest, Detention or Prosecution

In the event of 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.

Article 43 – Immunity from Jurisdiction

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:

Arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

By a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

It is also necessary and relevant to refer to the booklet published by the United States Department of State Bureau of Diplomatic Security entitled “Diplomatic and Consular Immunity – Guidance for Law Enforcement and Judicial Authorities”. At page 3 of this publication under the heading “Legal and Practical Basis of Immunity” it is provided as under:

“It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below, adherence to police procedures in such cases is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders.”

The booklet under the sub-heading “US Department of State Policy” at page 14 states:

“It is the policy of the US. Department of State with respect to alleged criminal violations by persons with immunity from criminal jurisdiction to encourage law enforcement authorities to pursue investigations vigorously, to prepare cases carefully and completely, and to document properly each incident so that charges may be pursued as far as possible in the US. judicial system. The U.S. Department of State will, in all incidents involving persons with immunity from criminal jurisdiction, request a waiver of that immunity from the sending country if the prosecutor advises that but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. Upon departure, the Department will request that law enforcement issue a warrant for the person’s arrest so that the name will be entered in NCIC.” NCIC refers to National Crime Information Centre.

Article 41 of the Convention clear states that 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. The Convention does not define the expression “grave crime”. Thus it will have to be inferred that the seriousness of the crime depends on the host country’s interpretation of the expression and on the decision of the judicial authorities. So also it is the prerogative of the host country’s court to decide whether the consular officer accused of such grave crime needs to be detained or not. In this case, the US is seen to be well within its rights to initiate action against the consular officer.

The immunity from jurisdiction as stipulated under Article 43 is only in respect of acts performed in the exercise of consular functions. This immunity is not absolute as in the case of immunity available to diplomatic agents.

The booklet referred to above unequivocally states that the State Department, in cases where a diplomat who enjoys immunity and is accused of a crime, will seek waiver of that immunity from the sending country but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Government will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. It is pertinent to note that Article 45 of the Convention provides for waiver of privileges and immunities.

The US authorities, both judicial and law enforcement may well have been within their rights to indict the Indian officer. However, humiliating the lady official in public by handcuffing her is in breach of the same Vienna Convention. Sub-para 3 of Article 41 states that 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 concerned authorities in New York probably did not deem it fit to follow all the relevant provisions of the Convention in letter and spirit while making the arrest thereby giving rise to a diplomatic spat between the two countries.

While India is within its rights to lodge a protest with the US the manner in which this incident has been handled, it must be reminded that it is in the process of prosecuting two Italian Marines on the charges of allegedly shooting and killing Indian fishermen outside India’s territorial waters in an Indian court and that India too will now be expected to follow the rules of International Law as applicable to that case.