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On December 12, Devyani Khobragade, India’s deputy consul general for political, economic, commercial, and women’s affairs in New York, was arrested on charges of committing fraud in the US visa application for her maid, Sangeeta Richard. Khobragade, who enjoys diplomatic status, was handcuffed in public and later released on bail of $250,000. A US State Department official said that Khobragade was not covered by the Vienna Convention on Consular Relations (VCCR) in this matter because “the Indian Deputy Consul General enjoys immunity from the jurisdiction of US courts only with respect to acts performed in the exercise of consular functions.”

The irony of the situation is hard to miss – it was barely nine months ago that India had detained the Italian ambassador to New Delhi, Daniele Mancini, and threatened to prosecute him because immunity from jurisdiction applies only with respect to acts performed in the exercise of diplomatic functions. There is also much schadenfreude going around over Khobragade’s arrest – many Indians are frustrated with how India’s rich and powerful seem above the law and are glad to see one of them face the consequences of their actions. Many twitterati have remarked that the real injustice – Khobragade’s mistreatment of her employee – should not be lost sight of when protesting the violation of consular protocol.

The fact is, regardless of the severity of Khobragade’s alleged fraud, the United States has violated international law on two counts at least, once by arresting a foreign consular officer and a second time by handcuffing the said consular officer. As Art. 41(1) of the VCCR states, “[c]onsular 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 second clause of the same article goes on to state that “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.”

From the cursory statements made by the US State Department and the US Attorney’s Office of the Southern District of New York, the case against Khobragade may be based on Art. 43(1), which declares that “[c]onsular 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.” This means that the United States does not consider the appointment of personal employees by a consular official as important to the execution of consular functions.

Historically, diplomatic immunity has been extended on the strength of one or more of three theories – personal representation, extraterritoriality, and functional necessity. The first suggests that a diplomat is, in a sense, the personification of the sovereign he represents; the second argues that diplomats’ offices, residences, and persons are to be treated as if they are always on their home soil; and the third theorises that immunity should be extended to diplomats only to the extent that they may be able to carry out their duties without hindrance. With the passage of time and shifts in the nature of the diplomatic venture, the first two theories have been abandoned for various reasons in favour of the third.

The theory of functional necessity leaves much room for interpretation as the US position in the Khobragade case shows. What is necessary for a foreign mission to function is likely to be seen differently by different people, and a consensus may be difficult to reach even among judges. However, there has been increasing clamour among activists and legal scholars for more a restrictive interpretation of functional necessity, particularly in cases of human rights violations. This demand is based on the preamble to the VCCR, which grounds the granting of privileges and immunities on the understanding their purpose “is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” Furthermore, it must be remembered that the Vienna convention was a reaction against the unlimited immunity that had been enjoyed by diplomats until then.

Many of the immunities enjoyed – abused – by diplomats were not conceived of by the drafters of the Vienna conventions and the treaty was not meant to extend to such actions. For example, in 1987, the ambassador of Papua New Guinea to the United States was held for driving under the influence and the State Department took the rare step of instructing the US Attorney to prepare a criminal case against him. Due to his diplomatic status, the ambassador could not be arrested but once he left the country, he would he not be allowed to return as a diplomat and thus be exposed to the criminal charge. In 2012, another Indian consular officer, Neena Malhotra, was fined by a New York City Magistrate Judge for the use of and barbaric treatment of underaged labour at her residence.

The logic behind a restrictive interpretation of functional immunity is that while a diplomat may be protected from some distractions to aid his purpose, there ought to be no need for him to violate the laws of his host state to do so. As many legal scholars have pointed out, a diplomat’s behaviour in his host country is best described by the Arabic proverb, يا غريب خليك أديب (ya ghareeb, khalleek adeeb) – o stranger, be thou courteous.

The US Attorney has restricted the charges against the Indian deputy consul to visa fraud and not filed any charges for either mistreatment or violation of US labour law yet. Is the application for an A-3 visa a consular function? The US Attorney does not think so, but it is difficult to argue that domestic help does not further the functioning of a consular officer. To illustrate the point, in the movie A Few Good Men, lawyer Daniel Kaffee asks Corporal Jeffrey Howard if the failure of the Marine Corps Guide to mention mess halls means that he had not been fed while on base. There are numerous unstated practices and understandings which resist easy codification and leeway must be given, in this case to the State Department and the Indian Consulate, in their interpretation.

Even if a case could be made for Khobragade’s immunity, her willful violation of US law is harder to refute. Indeed, the defence has claimed diplomatic immunity but is yet to deny the fraudulent visa application for which Khobragade has been charged. The United States would be well within its rights to declare Khobragade persona non grata. Such an action would be in line with the State Department’s history of taking a stricter view on functional immunity, but that still leaves Washington with having to explain the violation of the personal inviolability of foreign diplomats.

In Khobragade’s defence, it must be recognised that the Indian Foreign Service provides domestic assistants to senior posts in diplomatic missions. Although these are provided at government expense, they are not recognised as part of the mission staff by many host countries. Article 47 of the VCCR clearly states that “[m]embers of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.” However, the United States does not recognise domestic help as rendering services to the sending state. The US A-3 visa, for example, is reserved for “personal employees” of diplomats. This discrepancy between Indian practice and US law is something usually more honoured in the breach than the observed but nonetheless remains a wrinkle.

The Khobragade episode raises a more pertinent question than the one of diplomatic immunity – what kind of people is India’s Ministry of External Affairs (MEA) hiring to be the country’s face to the world? In the last two years alone, two Indian consular officers to the United States have been in the news on charges of fraud and mistreatment of employees. In this latest case, Khobragade’s name has already appeared in relation to the controversial Adarsh Cooperative Housing Society scam and yet she was chosen to represent India to an important international partner. Is the Indian Foreign Service so short-staffed that they need to appoint people with questionable backgrounds to important posts around the world?

It is highly unlikely that the MEA or Khobragade were unaware of US visa or labour laws. In effect, the Foreign Service officer knowingly and willfully violated the laws of a foreign power, one is tempted to say, with the same hubris shown at home. It is well known that appointments to countries of significance such as the United States, Russia, or Great Britain are handpicked by the government due to their sensitivity and importance. The question arises, how has the United Progressive Alliance’s MEA dropped the ball so badly in the last few years? Why is South Block hiring people of dubious repute?

In international politics there is no right or wrong, only sovereignty and the power to defend it. That, however, should not be taken to mean that it is a wise course of action for Delhi to send diplomats with question marks in their records to represent it in foreign capitals; it hurts the reputation of India and Indians to be represented by people who make the news for the wrong reasons. It certainly is not the way Delhi’s much touted soft power operates.

This post appeared on Daily News & Analysis on December 16, 2013.