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We can talk our way out of the Devyani Khobragade row

India and the US need a bilateral agreement granting their consular officers privileges and immunities that are given to diplomats. Prabhu Dayal writes.

ht-view Updated: Jan 06, 2014 23:49 IST
Prabhu Dayal
Prabhu Dayal
Hindustan Times

The arrest of Indian diplomat Devyani Khobragade has triggered an unprecedented Indo-US row. The United States has expressed regret for the circumstances relating to the arrest but is unlikely to tender an apology.

It is necessary to address problematic issues, one of which is the US’ refusal to grant personal immunity to Indian diplomats posted at consulates.

Hitherto, India had been according immunity to US consular officers and their family members.

The booklet of instructions issued by the US State Department to law enforcement officers states that consular officials have only limited personal immunity but adds that in some cases the US and a country could have a bilateral consular agreement granting members of the staff of its consulates privileges and immunities approximating those accorded to diplomatic agents.

India and the US can have a bilateral agreement to accord personal immunity to consular officials. Recently, New York state prosecutor Preet Bharara revealed that 49 Russians were accused of Medicaid fraud. They allegedly furnished wrong information about their salaries in order to get Medicaid benefits.

Some of these cases date back to 2004, yet no action was taken against them. Why were cases relating to Russian consular officials hushed up while Khobragade was handcuffed and detained? This could be because of a bilateral agreement between Russia and the US which grants their consular officers privileges and immunities that are given to diplomats.

Until now there was no need for such an agreement as US consular officers in India were accorded personal immunity. However, recent incidents indicate that the two nations need a bilateral agreement.

Negotiations for such an agreement should be carried out in an atmosphere of goodwill rather than rancour. The State Department could also be asked to intervene and close Khobragade’s case as well as any others on its records.

Reciprocity is a time-tested mantra in diplomatic discourse. Countries accord privileges and immunities on a reciprocal basis. India should have taken appropriate action after the very first case when immunity was denied by the US.

Consequently, India allows its diplomats a domestic assistant who is sent abroad on official duty; an official passport is given and all expenses such as air fares, accommodation, boarding, medical cover, etc, are met by the government.

Thus, such persons are service staff members like home-based chauffeurs and security guards. The cash emoluments of domestic assistants are included in the salary of diplomats.

How should this issue be tackled? Such persons can be treated by the State Department as a special category of immigrant workers governed by foreign laws, as eminent Indian American attorney Ravi Batra has said. However, this issue cannot be resolved unless the US shows flexibility.

A dialogue between the ministry of external affairs and the State Department can resolve this systemic conflict while also preventing misuse of US anti-trafficking laws by unscrupulous persons.

Prabhu Dayal is former Consul General in New York

The views expressed by the author are personal

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