Former NYC Indian diplomat Devyani Khobragade today got what can at best be described as a face shaving (no typo) limited victory with a U.S. judge dismissing the January 9, 2014 indictment against her.
Devyani’s win in court today was based essentially on a technicality – the judge accepted her attorney’s argument that she had diplomatic immunity at the time of her indictment on January 9.
The judge also vacated Devyani’s open arrest warrants, bail and bond conditions.
Devyani’s arrest and strip-search on December 12, 2013 on charges of visa fraud and making false statements about wages to be paid to her maid Sangeeta Richard led to a mighty furor in India with Indians behaving as if they themselves were disrobed.
U.S. District Judge Shira Scheindlin today agreed with Devyani’s attorney that since she had already been granted immunity:
the court lacked jurisdiction over her at that time, and at the time the indictment was returned, the motion must be granted….because diplomatic immunity is a jurisdictional bar, it is logical to dismiss proceedings the moment immunity is acquired. Even if Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal [see p.8 and p.12 of ruling].
Judge Scheindlin did not buy the U.S. government’s argument that the indictment against Devyani must not be dismissed because she did not have diplomatic immunity at the time of her arrest and had no immunity at the present time for non-official acts.
Why Face Shaving
We describe Devyani’s victory in court today as face shaving (and not face-saving) because the woman has already been badly shaven of her dignity and reputation following her arrest, strip-search, bail conditions and ultimate expulsion from the U.S.
Devyani’s expulsion also meant that she had to leave behind her husband (a U.S. citizen) and the couple’s two young children in America.
Also, today’s victory was not a complete one for Devyani since the Damocles sword of future indictment hangs over her head.
Not Full Victory
While dismissing the existing indictment, Judge Scheindlin allowed the U.S. authorities to bring a new indictment against Devyani.
In her ruling, the judge wrote:
However, if the acts charged in the indictment were not “performed in the exercise of official functions,” then there is currently no bar to a new indictment against Khobragade.
If a new indictment is not brought against Devyani, she may be able to visit her husband and children in the U.S. as a private citizen without fear of arrest or encountering further legal hassles.
It’s doubtful a new indictment will be brought against Devyani although the U.S. is keeping its options open.
The sequence of events suggests a political settlement to the Devyani Khobragade case:
January 8, 2014 – Devyani Khobragade gets Diplomatic Immunity (by virtue of her transfer from NYC Indian Consulate to United Nations) at 5:47PM
January 9, 2014 – Devyani indicted by grand jury on visa fraud and false statements charge
January 9, 2014 – Devyani ordered to get out of the U.S. after Government of India declines American officials’ request to waive her immunity
January 9, 2014 – Devyani leaves for India by evening flight
January 9, 2014 – Devyani’s attorney asks for case against her to be dismissed on grounds of diplomatic immunity
Jan-March 2014 – Negotiations between India and U.S. diplomats on Devyani’s legal tangle
Jan-March 2014 – India faces problems on export of generic drugs to the U.S. and continuing trouble over issuance of H1B visas; U.S. keen on selling arms, planes and power equipment to India
March 3-6, 2014 – U.S. Assistant Secretary of State for South and Central Asian Affairs Nisha Biswal visits India to repair ties
March 4-6, 2014 – Nisha Biswal meets Indian officials (including Foreign Secretary Sujatha Singh) who tell her that U.S. must resolve Devyani Khobragade case lest it act as a drag on other issues
March 12, 2014 – U.S. Court dismisses Devyani Khobragade indictment