The Telegraph
Sunday , January 12 , 2014
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Flowers pluck thorn

- Soft touch also helped bring Devyani back

Washington, Jan. 11: Devyani Khobragade’s departure from New York on Thursday was so fraught with risk, so shrouded in doubt that the Indian government, unwilling to take any chances on her successful repatriation, issued a new diplomatic passport for her travel.

When the external affairs ministry transferred her to headquarters within only minutes of receiving a letter from the US state department on Wednesday evening granting Khobragade immunity, the diplomatic passport on which she entered the US was still in the custody of a court in New York as part of the legal proceedings against her.

It was assessed in New Delhi that attempting to retrieve her passport from the court would take time. There were also fears at that stage about prosecutor Preet Bharara creating roadblocks to her departure, although the Americans told Indian negotiators that it was unlikely that Bharara would refuse to recognise a state-to-state compromise on Khobragade over ending the diplomatic crisis.

When Indian officials in Washington and New York concurred with New Delhi’s assessment about delays in retrieving the diplomat’s passport, the external affairs ministry took the rare decision of issuing a second diplomatic passport to a citizen while the original document was still valid and in active use.

The issue of a second passport, the deliberate confusion about Khobragade’s travel plans, the formal announcement of her departure only after her aircraft had left American airspace, and finally, the tit-for-tat expulsion of a US diplomat from New Delhi all had shades of Cold War spy swaps between Washington and Moscow.

The last such dramatic swap was in July 2010, when a Russian and an American aircraft parked next to each other on the tarmac of Vienna airport under cover of a news blackout traded the spies across gangways in a step-by-step simultaneous operation.

Like in every mystery thriller and spy-like plot, there was a soft touch to the Khobragade denouement too. Two women played their part, albeit very different roles from James Bond’s women. In the Khobragade episode, flowers added the soft touch to the hard bargaining over the Indian diplomat.

Very recently, when Wendy Sherman, the under secretary of state for political affairs, got her grandchild, foreign secretary Sujatha Singh sent Sherman a bouquet of flowers for the occasion. Sherman is Singh’s counterpart in the bilateral diplomatic ladder and she has been the one communicating to secretary of state John Kerry what he was told about negotiations between the state department’s South Asia bureau and Indian diplomats on the ground.

An aide to Sherman said the foreign secretary’s gesture, which provided a human touch, made a deep impression on the under secretary at an emotional turn in her personal life. It also showed that playing hardball between states could go side-by-side with gestures that go beyond diplomacy, especially when women are involved.

An authorised reconstruction of events leading to Khobragade’s departure from New York has now revealed that India seriously explored options for a judicial settlement of the dispute between her and the US department of justice, in this case, personified by Bharara.

Legal sources here and in New York said, however, that the gap between India and the US over any such settlement was so huge that New Delhi put its foot down in negotiations with the state department on January 8 that the accused diplomat’s immunity as an official of the Indian mission to the UN be granted without any further delay.

It was in the nick of time because the following day a grand jury met and decided to indict the Indian diplomat.

Within hours of that firm Indian demand, the state department issued her immunity letter and followed it up later on the night of January 8 with a request to New Delhi to waive her immunity. India refused, but before communicating that refusal to Washington, transferred Khobragade to the external affairs ministry headquarters back home.

It is now clear that the confusion over whether Khobragade was expelled by the US was partly because India never told the Americans that she is being transferred to New Delhi. South Block’s contention — and rightly so — was that the transfer was an administrative step between the external affairs ministry and one of its middle-rank employees.

A source in New Delhi associated with the administrative process said: “Every time a counsellor in one of our missions anywhere is shifted out we do not tell the host government. Why should this be any different? We are trying to stick to normal processes and uphold our system.”

Because India did not tell the US about Khobragade’s transfer, the onus fell on the state department to tell Bharara that they were asking the accused diplomat to leave New York after India refused to waive her immunity. That put the prosecutor in a bind because he could not stand in the way of an expulsion by the state department.

Had India told the Americans about Khobragade’s transfer, it is likely that Bharara may have attempted to prevent her departure and insisted on bringing the accused to justice instead. That, in turn, may have prolonged the dispute and Khobragade may still have been in New York.

Sources said the Indian government did not directly get involved in any discussion on a judicial settlement of the dispute, but such negotiations with New York prosecutors were conducted by Khobragade’s lawyer appointed by the Indian consulate in Manhattan. It was felt that diplomats had no locus standi in such discussions which were best left to legal minds.

But a judicial settlement eventually left the table because the maximum concession that the Americans were willing to make was to reduce the felony charges against Khobragade to misdemeanour.

Those talks broke down when India made it clear that it will not brook even a minor criminal action against its diplomat who was entitled to full immunity. In the end, India’s insistence on upholding the Vienna Conventions and securing immunity for Khobragade one way or another carried the day.

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