Diplomatic immunity ensures that a diplomat can carry on with his official duties in a host country without fear. This immunity, however, applies only to his official duties. If a complaint is made against a diplomat concerning his official work, diplomatic immunity comes into play and the police cannot arrest him immediately.
But in criminal offences where the penal code kicks in, diplomatic immunity has no role to play. Only the President of India and the Governors of states enjoy legal immunity in such cases. It does not extend to even MPs or MLAs, who can be arrested in such cases, provided an intimation is forwarded to the offices concerned before they are taken into custody.
In the case of French diplomat, Pascal Mazurier it is clear that he does not enjoy diplomatic immunity. In fact, the Bengaluru police could have immediately arrested him even if he did as the immunity does not extend to criminal cases. Based on the prima facie case against him, there was absolutely no need for the Bengaluru police to put off his arrest, as in cases of murder, rape and so on, they don't need to wait for any clarification on the matter from higher authorities. Theoretically, therefore, there was no need to involve the ministry of external affairs before making the arrest. The police only needed to send an intimation to the French Consulate or Embassy before doing so.
Its, however, not difficult to understand why the police acted the way they did as it is always important to act with extreme care in cases involving two nations. Another reason why the police chose to act with caution could be that the complainant was the wife of the accused and the possibility of family bickering leading to the lodging of a false complaint could not be ruled out.
Relations between the two nations could have been at stake if the complaint had turned out to be false or if there was any other legality under which the official could have sought protection. India and France have signed and ratified many bilateral treaties including the Vienna Convention on Diplomatic Relations. Considering that international relations were involved, they perhaps wanted to have clarity on whether the accused, who is a French national, enjoys diplomatic immunity. It appears the police preferred to play it safe by waiting for the Centre to clarify on this issue and acting only after receiving it.
— The writer is a former judge of the Karnataka High Court and a senior advocate