Diplomatic Communications Are Sensitive, Can't Compel MEA To Deviate From Protocols: Delhi HC Declines Plea For Special Work Permit To OCI Cardholder

In doing so, the Court noted that diplomatic communications are sensitive and adhere to strict protocols to respect the sovereignty of receiving and sending States and thus, judicial intervention is not appropriate in such cases.

Justice Sanjeev Narula was considering the petition of a citizen of the United States of America and an OCI card holder.

In October, 2023, the petitioner applied for the role of Country Based Clearance Officer at the British High Commission, New Delhi and received an employment offer. The petitioner then submitted an application to the Foreigners Regional Registration Office (FRRO) to obtain the mandatory special work permit required for employment in diplomatic missions.

Meanwhile, the Consular, Passport and Visa Division of the MEA informed the petitioner that his application required approval from the Protocol Division, MEA, owing to his status as a third country national.

Subsequently, the FRRO rejected the petitioner's application. The FRRO advised the petitioner to approach the Protocol Division, MEA via the British High Commission. The British High Commission requested the Protocol Division, MEA to issue the requisite special work permit to the petitioner, however, it was rejected by the MEA.

The petitioner thus approached the Court against such rejection, seeking directions to the Consular, Passport and Visa and Overseas Indian Affairs Division of MEA to issue a No-Objection Certificate, along with directions to the MHA to approve his application for a special work permit.

No justification to employ third country national

The Court noted that the Protocol Handbook issued by the Protocol Division, MEA, provides that foreign representations must seek approval from the MEA, providing detailed justifications for appointments of third country nationals.

Here, it noted that the British High Commission's communication lacked the necessary justification for employing the petitioner.

Observing that diplomatic communications are sensitive and adhere to strict protocols, the Court stated that it cannot compel the MEA to deviate from these protocols. It stated that it is not within its power to direct the MEA to approve his application for a special work permit.

“The diplomatic communications are sensitive and adhere to strict protocols to respect the sovereignty and procedural norms of both nations involved. The responsibility to provide justifications for employment decisions rests unequivocally with the British High Commission. It is neither appropriate nor within the purview of this Court to issue a mandamus compelling the MEA to deviate from these protocols, especially when the initiating action is expected from the foreign state seeking the exception. Judicial intervention to facilitate such exchanges is beyond the Court's remit.”

Reciprocity in diplomatic relations

Referring to a clause in the Protocol Handbook of MEA, the Court noted that the permission to employ third country nationals is granted based on presumed assurances of reciprocity by the sending state.

Here, it observed that the British High Commission did not provide any written assurance of reciprocal arrangements regarding the employment of Indian nationals in their missions.

Noting that reciprocity is a foundational principle in diplomatic relations, the Court said that in the absence of an explicit assurance of reciprocity from the UK, the MEA was justified in exercising caution.

Referring to the advertisement from the UK High Commission in Washington, the Court noted that only U.S. citizens, permanent residents or dependents of diplomats with appropriate authorization were eligible. It remarked, “This, contrary to Petitioner's contentions, reflects a standard practice of prioritizing local nationals for employment within diplomatic missions, aligning with international norms and the Vienna Convention on Diplomatic Relations, 1961.”

On the British High Commission's approach in New Delhi, the Court was of the view that it deviates from the practice of prioritizing local nations by preferring third country nationals over the host country's citizens for local positions.

The Court stated that such hiring practices undermine the principle of reciprocity as well as raise significant concerns related to national security and public interest.

The Court agreed with the respondent authorities that the British High Commission's approach potentially contravenes the established diplomatic protocols and affects equitable employment opportunities for qualified Indian citizens.

Further, the Court referred to Article 8 of the Vienna Convention on Diplomatic Relations, 1961, which provides that members of the diplomatic staff of the mission should be of the nationality of the sending State. It further states that the receiving State has discretion to approve or deny appointments of foreign nationals within diplomatic missions. The Court observed that such discretion is important for safeguarding national security and ensuring that diplomatic privileges are not misused.

The Court remarked that the denial of a special work permit to the petitioner was “not a reflection on his personal integrity or capabilities but a prudent exercise of their mandate to protect national security.” It stated that diplomatic protocols and national interests must prevail over individual grievances.

It reiterated that the denial was based on founded on non-compliance of the procedures and the absence of requisite justifications from the British High Commission,

The Court thus dismissed the petition.

Case title: Kshitij Gupta vs. Union of India & Ors. (W.P.(C) 9449/2024 & CM APPL. 67808/2024)