VIENNA CONVENTION ON DIPLOMATIC RELATION: IR

VIENNA CONVENTION ON DIPLOMATIC RELATION: IR

NEWS: Ministry of External Affairs (MEA) Request to Kenya on Diplomatic Immunity Waiver

 

WHAT’S IN THE NEWS?

  • The Ministry of External Affairs (MEA) has formally requested the Kenyan government to revoke the diplomatic immunity of a Kenyan diplomat’s son, so that he can be prosecuted for allegedly sexually assaulting a minor girl in India.
  • The case involves the application of Indian laws related to child protection, criminal justice, and international diplomatic immunity.

 

Indian Laws Involved in the Arrest

  1. Protection of Children from Sexual Offences (POCSO) Act, 2012
    • Section 10: Covers aggravated sexual assault, prescribing stricter punishment for crimes against minors.
  1. Bharatiya Nyaya Sanhita (BNS), 2023
    • Section 75(2): Deals with offenses involving the sexual exploitation of minors, replacing previous provisions under the Indian Penal Code (IPC).
  1. Criminal Procedure Code (CrPC)
    • Section 188: Allows prosecution of foreign nationals for offenses committed within India, ensuring that crimes committed on Indian soil are subject to Indian legal jurisdiction.
  1. Diplomatic Relations (Vienna Convention) Act, 1972
    • Governs the implementation of the Vienna Convention on Diplomatic Relations (1961) in India.
    • Recognizes diplomatic immunity but also allows for situations where the sending country (Kenya in this case) can waive immunity, enabling legal action against the diplomat or their dependents.

 

Vienna Convention on Diplomatic Relations (1961)

  • Established to define international principles for the treatment of diplomatic representatives between countries.
  • Adopted on April 14, 1961, at the United Nations Conference on Diplomatic Intercourse and Immunities in Vienna.
  • Aims to foster friendly international relations and ensure effective diplomatic communication without undue interference from host countries.
  • India ratified this convention and implemented it through the Diplomatic Relations (Vienna Convention) Act of 1972.

 

Key Provisions of the Vienna Convention on Diplomatic Relations

  1. Diplomatic Immunity
    • Diplomats are exempt from criminal and civil laws of the host country.
    • Ensures that diplomats can perform their duties without fear of prosecution or harassment in the host nation.
  1. Protection from Arrest or Detention
    • Diplomats cannot be arrested or detained by the host country’s law enforcement agencies.
    • The host country must respect and protect their person, liberty, and dignity at all times.
    • Family members of diplomats also enjoy the same immunity as the diplomat.
  1. Inviolability of Diplomatic Premises
    • Diplomatic buildings, including embassies and consulates, cannot be entered or searched by host country authorities without permission from the sending state.
    • This ensures the protection of confidential diplomatic activities and documents from unauthorized access.
  1. Mission Size Limits
    • The host country has the right to restrict the number of foreign diplomatic personnel.
    • This measure can be used for reasons of national security or to maintain balance in diplomatic relations.
  1. Persona Non Grata (Unwelcome Diplomat)
    • A host country can declare any diplomat as ‘persona non grata’ at any time.
    • No explanation is required for expelling a diplomat from the country.
    • This measure is used if a diplomat is engaged in activities contrary to the interests of the host nation.

 

Conclusion

  • The case has sparked diplomatic discussions between India and Kenya, focusing on legal accountability versus diplomatic immunity.
  • The Indian government, through MEA, has sought Kenya’s cooperation in waiving diplomatic immunity for the accused, allowing prosecution under Indian law.
  • This case also highlights the challenges in handling legal cases involving foreign diplomats and their families within the framework of international conventions.

 

Article 14 of the Indian Constitution related to diplomatic immunity

Provision:

  • Article 14 guarantees “Equality before the law” and “Equal protection of laws” to all individuals within the territory of India.
  • It ensures that no person is discriminated against arbitrarily by the state and that laws apply equally to all persons, including citizens and foreigners within India.

Key Principles of Article 14

  1. Equality Before Law
    • Borrowed from British Rule of Law principle.
    • Ensures that no individual enjoys special privileges and that all are subject to the same laws in similar conditions.
    • Government actions and laws must not be arbitrary.
  1. Equal Protection of Laws
    • Derived from the 14th Amendment of the U.S. Constitution.
    • The state must treat equals equally but can classify people reasonably based on intelligible differentia (logical distinction).
    • Laws can treat different groups differently if there is a valid reason and objective behind it.

Exceptions to Article 14

  1. Reasonable Classification
    • The state can classify individuals into different categories if:
      • There is intelligible differentia (clear distinction).
      • The classification has a rational nexus (logical connection to the objective of the law).
    • Example: Higher tax rates for higher-income groups.
  1. Diplomatic Immunity
    • Diplomats and their families enjoy immunity from legal prosecution under the Vienna Convention on Diplomatic Relations (1961).
    • This immunity is an exception to Article 14, allowing foreign diplomats to avoid criminal and civil proceedings in India unless their home country waives immunity.
  1. Special Provisions for Foreign Nationals
    • Foreigners do not enjoy all fundamental rights like Indian citizens.
    • The government can restrict foreign nationals from certain activities, such as land ownership and government jobs.
  1. Protective Discrimination (Affirmative Action)
    • The state can provide reservations and benefits to socially and educationally backward classes, SCs, STs, OBCs, and economically weaker sections.
    • Examples: Reservation in education and jobs, special welfare programs.
  1. Special Legal Immunity for Constitutional Authorities
    • The President and Governors have immunity from legal proceedings for actions taken in their official capacity (Article 361).
    • Judges have protection against lawsuits for judicial acts.
  1. Martial Law and Emergency Provisions
    • In times of war, external aggression, or armed rebellion, the government can restrict fundamental rights and enforce special laws.
    • Example: Preventive detention laws during emergencies.
  1. Laws Related to Special Groups
    • Armed Forces personnel, police, and bureaucrats have different service rules and disciplinary laws.
    • Example: The Army Act, 1950, and Police Act provide different legal treatment than civilians.

Conclusion

  • Article 14 provides a fundamental right to equality, but reasonable exceptions exist based on legal, diplomatic, administrative, and social grounds.
  • The diplomatic immunity granted under international conventions is one such exception, as seen in the MEA’s request for Kenya to waive diplomatic immunity in the recent case involving a Kenyan diplomat’s son.

 

 

 

Source: https://indianexpress.com/article/india/mea-seeks-waiver-diplomatic-immunity-kenyan-diplomat-son-9849009/