NEW YORK (TIP): Did US attorney Preet Bharara overlook or chose deliberately to ignore the fact that Devyani Khobragade enjoyed full immunity when she was arrested on Thursday, December 12 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 at housekeeper at Khobragade’s home in Manhattan? As it now turns out, diplomat Devyani Khobragade was accredited as an advisor to the Permanent Mission of India to the UN, allowing her full immunity from personal arrest or detention, when she was picked up from her children’s school by US authorities.

India Government sources said Khobragade was accredited advisor to the Indian mission to the UN on August 26, 2013 to help the mission with work related to the General Assembly, and her accreditation was valid until December 31. The sources claimed the Convention on the Privileges and Immunities of the United Nations Article 4 Section 11A specifies “immunities from personal arrest or detention and from the seizure of their personal baggage” of all representatives of members to the United Nations. Section 16 of the same Article specifies that the expression “Representative” shall be deemed to include all delegates, deputy delegates, advisors, technical experts and secretaries of delegations. She was accredited as advisor on August 26 and was transferred to the permanent mission after the arrest and is currently holding the position of counselor.

Because she was attached to the permanent mission only temporarily (until December 31), the State Department was not required to issue its own identity card and it is possible that they may not have known about Khobragade’s status. Sources said this was all the more reason for the State Department to have informed India about the move to arrest Khobragade. As the diplomat was working as acting consul general, the US ought to have notified India about her arrest under the Vienna Convention on Consular Relations. The MEA joint secretary who handles the US desk, Vikram Doraiswamy, was in that country on the day Khobragade was arrested, but he wasn’t informed about it. The alacrity with which the US “evacuated” Khobragade’s domestic help Sangeeta Richard’s family, two days before the diplomat’s arrest, rattled New Delhi. Bharara later justified this in a statement saying the Justice Department was “compelled” to make sure that victim, witnesses and their families “are safe and secure while cases are pending”. As the case now unravels fast, several US officials, especially those who handled Khobragade’s arrest, may have opened themselves to claims for damages and liability.

The government has also discovered that the amount of $4,500 quoted by Bharara as salary promised to Sangeeta by Khobragade was actually just a mention of the employer’s salary on the help’s visa application form. The State Department’s own guidelines on diplomatic and consular immunity emphasize that law enforcement officials need to be sensitive because short-term official visitors from other States to the United Nations or to international conferences convened by the UN may enjoy full diplomatic immunity equivalent to that afforded to diplomatic agents. “Owing to the temporary nature of their visit, such officials will normally not have the usual official identity documents recognizable in the United States. Law enforcement officials (particularly in New York) should be sensitive to the existence of this situation and always coordinate with the US authorities indicated in the list of Useful Phone Numbers if confronted with an apparent offender appearing to fall into this category’,” it states. A diplomat’s daughter, Krittika Biswas, had last year filed a lawsuit in a NYC court seeking $1.5 million as damages for her wrongful arrest.