Cavity Searches in Intern(ation)al Relations

In the most darkly comic scene in Mohammed Hanif’s brilliant A Case of Exploding Mangoes, General Zia—the thinly mustachioed dictator of Pakistan from 1977-88—suffering from a bad case of worms, enlists the services of the physician of his Saudi friend Prince Naif. ‘Birather, bend please’, requests Dr. Sarwari, in a strange mixture of Arabic and American accents. Zia unfastens his belt, slips his trousers down and leans forward, laying his right cheek on his desk. His head is between two flags, Pakistan’s national flag and the flag of the Pakistan Army, as Dr. Sirawar slips a lubricated probing finger into his itchy rectum. The allegory is crystal clear: this is Pakistan being fucked by Saudi and US money and weapons during the anti-Soviet jihad in Afghanistan.

In Mohsin Hamid’s The Reluctant Fundamentalist, the terror attacks of September 11 provide the pivotal moment in the transformation of young Pakistani Princeton graduate Changez Khan from Wall Street analyst to Islamist radical. Watching 9/11 unfold on television while away on a work trip, Khan feels something akin to schadenfreude, as if the attacks were payback for the daily humiliation of being Muslim in America, giving vent to a reservoir of grievance hitherto fiercely suppressed, even denied, in his pursuit of the American dream. Returning to the US, Changez can see that Americans see him differently. In Mira Nair’s film version of the book, he is separated from his white colleagues at immigration and subjected to a cavity search: this is Pakistan being fucked by the US in the aftermath of 9/11.

When Devyani Khobragade, former Indian deputy consul-general in New York, was arrested on charges of visa fraud (stemming from her alleged misrepresentation of how much she would pay her maid on the visa application for the maid) and then subjected to the ostensibly routine procedure of a cavity search before incarceration, urban middle-class India was quick to read this as India being fucked by the US. But if cavity searches in Pakistani fiction operate as allegories for geopolitical fucking in which the stakes are immense, the prickliness of the Indian establishment and public can be gauged from its reaction to provocations of exponentially less magnitude. Indo-US relations were not exactly warm immediately before ‘Khobragate’ (grumbling over US (non-)planning for withdrawal from Afghanistan, its perceived failure to put serious pressure on Pakistan in the wake of the terrorist attacks in Mumbai in 2008; mutual recrimination over US anti-outsourcing policies and Indian ‘protectionism’; disagreement over the nuclear liability law and the distribution of the burden of climate change mitigation). But in the longer arc of the relationship between the two states, things have—since the conclusion of the Indo-US Civil Nuclear Agreement between 2005-08, recently claimed by Manmohan Singh as the crowning achievement of his Prime Ministerial career—never been better. Far from operating as metaphor for anything else, the cavity search and the supposed violation of diplomatic immunity that it represented were, at the most literal level, the indignities being complained of.

***

The case is complicated, but every middle-class Indian within earshot of a TV has by now not only a masterful grasp of its intricacies but also a vehement opinion on where the balance of truth, legality and morality lies. Those of you in this category should skip the next two paragraphs; for those of you not in this category, some background extracted from the impressively precise and coherent Wikipedia entry. Two questions. First, did Devyani Khobragade abuse her maid Sangeeta Richard? Richard alleges that there were two contracts—a ‘real’ contract promising about $3.3 an hour on the assumption of a 40-hour working week, well below the US minimum wage of $7.25, but converting into Rs. 30,000 per month (relatively generous for a domestic worker in India); and a ‘visa’ contract promising $9.75 entered into for the purpose of demonstrating compliance with US law in order to obtain the visa. Khobragade insists that she mistakenly put down her own salary on the visa form and that she could not possibly have contracted to pay the maid more than she herself earned. Second, if Khobragade did indeed violate US law, can she be prosecuted within the US legal system? The Indian government protested that diplomatic immunity protected her from such prosecution; the US government took the position that as a consular official she enjoyed immunity only insofar as her consular duties were concerned. The Indian government attempted to circumvent this argument by ‘upgrading’ Khobragade to a position in India’s Permanent Mission to the United Nations, in which capacity she would enjoy full immunity. The US government initially objected that the higher level of immunity would not apply retrospectively, but ultimately recognised this immunity even as it refused to withdraw the indictment against Khobragade.

Two sets of legal proceedings are currently adjudicating these questions. Richard quit without notice in June 2013 and, supported by an anti-trafficking programme in an organisation called Safe Horizon, initiated legal proceedings against Khobragade in the US after unsuccessfully seeking an out-of-court settlement through a lawyer. Khobragade for her part reported Richard’s disappearance to US and Indian authorities, and lodged complaints with the NYPD and Indian police alleging extortion and blackmail. Acting on these complaints, the Indian government revoked Richard’s passport. A Delhi court issued a non-bailable arrest warrant against Richard, which was forwarded to US authorities; the court also issued an injunction restraining Richard from pursuing any action relating to her employment in a court outside India. Finding themselves pressured by the Indian authorities and alleging harassment by Khobragade’s father, Richard’s family in India—some of whom worked for the US embassy in New Delhi—leveraged their contacts with the embassy to obtain ‘T’ visas, intended to enable victims of human trafficking and their relatives to travel to the US. Shortly before Khobragade was charged with visa fraud and arrested, the Richard family in India were ‘evacuated’ to the US, allegedly at the US embassy’s expense. After nearly four weeks of ‘dialogue’ marked by outrage and bitterness on the Indian side and bewilderment, muted regret and the occasional impassioned defence of US legal process from the Americans, Khobragade was allowed to leave the US. Separated from her husband and children (all US citizens), the indictment against her means that she would have to submit to the jurisdiction of a court if she were ever to return. Almost immediately, India retaliated by expelling US diplomat Wayne May, who is believed to have been the key official assisting Richard’s family. This is only the second time India has expelled a US diplomat. (If I’ve got something wrong, go correct the Wikipedia entry and do your good deed for the day.)

The complexity of the case has been condensed into two kinds of narratives. In the first, Khobragade abuses her maid—but this is difficult for middle-class Indians to digest because the ‘abuse’, such as it is, is indistinguishable from their everyday treatment of millions of domestic servants. In the second, the wily Richard cleverly exploits the stringency of US labour law and the white liberal guilt/saviour complex to emigrate to the US. Both narratives might also stand together, suggesting a victimless crime in which neither of the states and societies implicated can take the high moral ground.

I am less interested in the factual and legal argument that will undoubtedly continue to dominate discussion (and I have left unmentioned here other intriguing dimensions of the case, such as Khobragade’s Dalit caste background, and her implication in a corruption scandal). I am more interested in the public affect that surrounds the case—in particular the leap to identification in which the corporeality of Khobragade becomes conflated with ‘India’. At one level this isn’t surprising because agents of the state are thought to personify the state: it is their actions that make states actors. This also underlines the rationale for diplomatic immunity as the necessary lubricant for intercourse between states. At another level, the automatic identification is surprising because all the key dramatis personae here are Indian. One obvious question of course was what about the maid? Whether or not her story turns out to be true, the possibility that infringement of her rights by a fellow Indian, an agent of the state no less, might be more damaging to Indian prestige than the, no doubt objectionable, treatment of that agent by the US state, took time to enter into the mainstream reaction. Above all, what does it say about the class constitution of Indian izzat that neither the foreign policy establishment nor the media and public at large can summon anything approaching the levels of outrage provoked by the mistreatment of an elite foreign service officer in response to, say, the killing of Indian fishermen by US naval fire, or the deaths of Indian labourers working on the 2022 Football World Cup stadium in Qatar? (The International Trade Union Confederation estimates that 4,000 migrant workers—most of whom are from Nepal and India—will die in the course of constructing the stadiums as a result of brutal working conditions on building sites. The Indian ambassador in Qatar says that 82 Indian workers died in the first five months of 2013 and that more than 700 have died in Qatar between 2010 and 2012.)

On the subject of Indianness, the fact that the New York prosecuting attorney Preet Bharara, who offered a particularly robust defence of Khobragade’s treatment by US authorities, is of Indian origin has added a further interesting dimension to the case. Bharara has been vilified in the Indian media for going after Khobragade with such alacrity. Some have accused him of seeking ‘trophy “scalps” as a springboard to public office’; the subtext of this insinuation is that in talking tough with his own ‘racial’ kind, he better performs assimilation into his adopted country. Others see a ‘sophisticated racism’ at work in which Bharara provides a brown face for white prejudice. Writing more generally about reactions to the case, Swapan Dasgupta draws a line between middle-class Indians in India ‘with a reasonable exposure to the West’ and overseas Indians. The former, in his judgment, intimately familiar with the servant ‘problem’, embraced the wily maid narrative; overseas Indians tended to berate the abusive diplomat. But it is his reading of the overseas Indian mentality that is especially interesting. Resentful about their inability to afford domestic help in their host countries—a luxury they are happy to enjoy on visits back to India—overseas Indians apparently sublimate their envy and resentment into a pious disgust at the manner in which Indians at home habitually ‘exploit’ servants. Having exorcised themselves of the accumulated sins of the homeland through the act of emigration, overseas Indians then proclaim that India might redeem itself by importing the transactional social relationships of the West into labour relations in India.

Dasgupta’s reading of the situation is obnoxious on so many levels that it is difficult to know where to begin. Although it is true that some overseas Indians have reacted in ways that are critical of Khobragade and supportive of Richard, his reading insultingly ignores the many reactions from Indians in India, including notably from trade unionists weighing in on Richard’s behalf, that have expressed exactly the same critique. Indeed his account effectively reframes a left/right ideological debate in India over the treatment of domestic servants, as one between overseas Indians and Indians at home. But lest this be read as straightforwardly narrow-minded nationalism, it is worth pointing out that there is something more insidious at work here. As a member of the right-wing neoliberal intelligentsia, prominent on the TV circuit, Dasgupta exemplifies the kind of liberalisation that this demographic embraces: yes to capital, no to labour law. Indeed stronger labour law is implicitly characterised in arguments like his as the sort of ‘transactional social relationship’ that perverts the putatively intimate, but conveniently non-monetized, relationships that characterise loyal domestic service in middle-class Indian households (‘we treat them like part of the family’). And while I could not disagree more with Dasgupta’s framing of public reaction, assume for a moment that he is correct and ask what follows. In other words, ask that centuries old question that India has debated in its engagement with modernity: so what if Indians borrow ideas from abroad? One wonders if Ram Guha’s latest tome Gandhi Before India will be read as the story of how an out of touch overseas Indian, radically disenchanted with what passed for politics in his homeland and after a nearly twenty year absence from it, came back with a few good ideas.

***

Meanwhile, all of this drama intersected unexpectedly with That Other Great Debate About How Our Cavities Are Used, namely the furore over the Indian Supreme Court’s devastatingly retrograde judgment reinstating the criminalisation of sodomy by overturning the Delhi High Court’s ruling of 2009. The first link seemed to come from senior BJP leader Yashwant Sinha’s suggestion that now that the Supreme Court had recriminalised homosexuality, same-sex partners of US diplomats in India should be expelled from the country as a retaliatory measure for Khobragade’s mistreatment. As this post makes clear, not only was there precedent for Sinha’s suggestion, but this precedent also puts ‘Khobragate’ in perspective as simply the latest episode in a longer game of tit-for-tat between the US and Indian foreign policy establishments. It turns out that Khobragade is not the first Indian diplomat to have been accused of labour law violations by her domestic help. In a remarkably similar case in 2010, Neena Malhotra—also working in the Indian consulate in New York—faced similar allegations from her maid Shanti Gurung. A New York court found in Gurung’s favour and awarded her $1.5 million in compensation for ‘barbaric treatment’. Malhotra has appealed, but didn’t attend the hearings having returned to India before Gurung filed suit. In a new posting in India as joint secretary in the visa division, Malhotra is reported to have refused a visa in November 2013 to the spouse of a gay US diplomat citing the non-recognition of gay marriage under Indian law, allegedly in retaliation for the humiliation she suffered in the US. Using its considerable influence with the Manmohan Singh government, the US Embassy in New Delhi is said to have successfully lobbied for Malhotra to be transferred out of her job and for the gay spouse to be granted a visa; but unsatisfied with its pound of flesh, the US foreign policy establishment is believed to have exacted further revenge through their handling of the Khobragade controversy. Delhi Durbar reports that the Manmohan Singh government might well have buckled under pressure and given way on Khobragade, but was prevented from doing so by its own foreign policy bureaucrats who were still seething over the punishment of, not one but two, of their own at the behest of the Americans.

In light of the way LGBT rights have, for better and worse, become a marker of modernity, much about this sequence of events is interesting and ironic. It seems clear that the very parts of the Indian state apparatus charged with performing liberal modernity to the outside world in the interests of cultivating soft power and hard investment—the Indian Foreign Service—were quite prepared to throw at US diplomats in the course of this squabble an archaic regime that many of the urbane sophisticates who dominate the IFS might quite readily admit in private to be embarrassingly outmoded. The homosexual sub-plot in this whole affair seems to say ‘We might have these crazy laws that we are arguing about amongst ourselves, but the argument is ours to have and in the interim, you will play by those rules on our turf.’ One part of me wants to say the words cut, nose, spite and face. But another recognises the spectre of sovereignty that hangs over this dispute: for some Indians currently angry with the US, aside from outrage over the apparent violation of diplomatic protocol, it is not the fact of class conflict between the middle-class and its domestic help that is the embarrassment, so much as the extra-territorial adjudication of that conflict through US court proceedings and the issuance of anti-trafficking visas. But might things have turned out differently if the Indian Ministry of External Affairs and Indian courts had shown a greater sensitivity to Richard’s interests from the start, perhaps enabling this very Indian dispute to be adjudicated within Indian institutions?

***

Do a Google search for ‘cavity search’ and you will find results on the first page to be dominated by news of Devyani Khobragade. But searches of body cavities and a prurient interest in what happens inside them have also been a standard feature of the enforcement of homophobic laws. As Alok Gupta has written in this now well-known report, colonial prosecutions for sodomy typical identified ‘habitual sodomites’ by the shapes of their anuses. In Queen Emperor v. Khairati (1884) one of the first reported cases under the anti-sodomy provision (section 377) of the Indian Penal Code, a hijra defendant was convicted for submitting to sodomy on the basis that they demonstrated the ‘characteristic mark of a habitual catamite—the distortion of the orifice of the anus into the shape of a trumpet … which distinctly points to unnatural intercourse within the last few months.’ The report surveys the codification of ‘infundibuliform’ (funnel-shaped) anuses as a sign of the passive sodomite in medico-legal treatises (Ejaz Ahmed (1980): ‘patulous state of the anus, and the destruction of the folded or puckered state of the skin in this part’; Narayan Reddy (2003), who finds proof of habitual sodomy in an opening of ‘4 to 5 cm. in diameter through which rectum can be seen’; R. L. Gupta (1991), for whom proof lies in ‘the shaving of the anal hair but not necessarily the pubic hair’). Worse, this report and others have documented the extensive use of such ‘signs’ by police as a technique of identification, humiliation and torture of (mostly not middle-class) queer bodies in India and elsewhere. As the Supreme Court considers the many petitions seeking a review of its judgment of December 2013, it will need to decide whether it condones the state-sanctioned cavity searching of its most vulnerable subjects.

Buried in the history of the judicial interpretation of section 377, is this jewel of a definition of ‘carnal intercourse’ (from Khanu v. Emperor (1925)), on which the Supreme Court placed considerable reliance:

By a metaphor the word ‘intercourse’, like the word ‘commerce’ is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a détente of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.

Oddly, that reads as much like advice for the future conduct of Indo-US relations, as for how to get your rocks off.

2 thoughts on “Cavity Searches in Intern(ation)al Relations

  1. Pingback: Monday Linkage » Duck of Minerva

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