India’s response: privileging race versus gender

Questions of race and racial discrimination were central to Indian foreign policy even before India achieved independence. Mazower argues that the end of the 1940s marked the end of a European era at the UN and a shift away from Empire and Eurocentrism, locating this particularly first in the rise of Japan and then India. ^{Footnote 40} India participated in the drafting of the Universal Declaration of Human Rights, and India’s complaint to the UN about the treatment of Indians in South Africa marked it out as a preeminent spokesperson on the question of race on a global stage and the ‘leading anti-colonial voice in world politics’. ^{Footnote 41} However, the anti-racist language that was championed at the San Francisco Conference by India, Egypt, Mexico, Panama, Brazil, and Cuba was resisted by a number of white settler colonies such as New Zealand, Australia, and Canada. ^{Footnote 42} For Indian High Commissioners in South Africa, Canada, and Australia during the 1950s, this meant having to navigate the limited bilateral avenues afforded to them to discuss racial discrimination, particularly on questions of immigration and family reunification. ^{Footnote 43}

In a similar vein, the Indian High Commission in London frequently raised questions about the fate of Indian immigrants with their British counterparts. Vernon argues that through the late 1960s and early 1970s, as politicians resorted to increasingly inflammatory language about migrants, the discretionary powers granted to immigration officers at Heathrow meant that racialized harassment was common. ^{Footnote 44} Enoch Powell’s infamous speech had singled out dependents as posing a particular threat to Britain, and many immigrants complained of the racist language used by immigration officers. ^{Footnote 45} In 1978 there were 390,000 persons of Indian origin in Britain and the High Commission was particularly concerned about the ‘discourtesy, delay, detention and denial of entry’ of Indians landing in Britain. ^{Footnote 46} Arguing that the attitude of immigration officers was often ‘unduly hard and somewhat arbitrary’, they focussed their efforts on ‘stopping harassment and detention of genuine visitors’. The most vocal complaints about the mistreatment of visitors were about prominent men, including the journalist Sunanda K. Datta Ray who chronicled his misfortunes at Heathrow, ^{Footnote 47} or the complaint filed by the Indian High Commission about the treatment meted out to the eminent historian and subsequent Governor of West Bengal, Professor Nurul Hasan. ^{Footnote 48} For the Indian High Commission, there was a clear link between this harassment at the border and the new Nationality Bill being proposed, which would make it ‘increasingly difficult for persons from the Indian subcontinent and other non-white people to acquire British nationality’. ^{Footnote 49} It was this anxiety about who would be allowed into Britain and on what terms under the new Conservative government that quickly became the focus of the Government of India’s foreign policy vis-à-vis the United Kingdom. This new focus on immigration and race relations equally alarmed the British, who felt that it was a ‘growing threat to good Indo-British relations’ particularly as a consequence of the extensive media coverage of particular incidents. ^{Footnote 50}

In light of these existing conversations about the treatment of Indians in Britain, the story about Mrs K then broke in the media. A month after the original incident it was a topic of protracted debate and discussion in both the Lok Sabha and the Rajya Sabha. A close analysis of these debates provides us with some preliminary clues as to why race rather than gender became the axis along which India chose to protest about this case. It also provides us with some additional clues as to why India’s international engagement on the issue did not follow the sustained trajectory that it did on the question of apartheid in South Africa.

Indian Parliamentarians were quick to point out that Mrs K may not have been the only victim of such degrading medical tests. The Joint Council for the Welfare of Immigrants (JCWI) had its origins in anti-racist activism around egregious cases involving dependent women and children who had been denied entry into Britain. ^{Footnote 51} In 1969, Vishnu Sharma of the JCWI had compiled a dossier of five girls who had been ‘tested’ at Heathrow, but the Home Office had insisted that ‘the immigration authorities do not ask and would have no reason to ask the Port Medical Officers to make this kind of check’. ^{Footnote 52} The MP Bhupesh Gupta pointed out that he too had corresponded with the Indian Workers’ Association in Britain in the late 1960s and that they had repeatedly complained to him about such testing. He noted the cases of two women from Gujarat, aged twenty-four and twenty-seven, residing in the London Borough of Brent who had confided in their social worker that they had been subjected to such testing upon their arrival in Britain. ^{Footnote 53} The IWA had raised the matter with the Indian High Commission, but the women were reluctant to take the issue further and it was dropped.

Other MPs had similar tales to tell. Sitaram Kesari, the MP from Katihar, provided details of several such cases including that of a pregnant woman who was subject to a gynaecological examination, and who consequently gave birth to a baby girl who died. ^{Footnote 54} M.V. Chandrashekhara Murthy raised the question of eight women who were allegedly victims of ‘virginity testing’ in 1968. Accusations that these practices were well known and that neither the High Commission of India (HCI) in London, nor the Ministry of External Affairs (MEA) had stepped in earlier, were levelled at Foreign Minister Atal Bihari Vajpayee. In the words of Jyoti Basu, ‘this practice has been in existence for more than six to seven years…they should have protested against it and seen to it that it is abolished…why did they sleep over the matter all these years?’ ^{Footnote 55}

In his response, Vajpayee admitted that the practice was not limited to Mrs K alone nor to Heathrow. He suggested that the ‘medical border’ extended to the subcontinent itself, and alleged that in 1978 there were ‘34 cases in New Delhi alone where the British High Commission requested medical opinion on the marital status of women applicants from a lady doctor’. ^{Footnote 56} He also cited the Commission for Racial Equality, which purported that Mrs K’s case was not unique as ‘there had been comparable cases in recent years’. ^{Footnote 57} Vajpayee’s admission incensed those who continued to ask why the MEA and the HCI had not done anything about them: ‘Does the Indian High Commission lack adequate machinery of its own to collect and compile and pursue matters relating to the interests of Indians living in Britain? Does this not amount to incompetence and inefficiency of the High Commission as a whole?’ ^{Footnote 58} It is in Vajpayee’s response to these accusations of neglect and incompetence that we can find the contours of the argument that India would make before the UNHRC. He was keen to avert any discussion of the manner in which the practice of gynaecological examinations, sanctioned by the Home Office for those awaiting entry clearance, had moved the hypothetical border from Britain to India. Instead, he highlighted that within a day of The Guardian’s article a strong protest had been lodged with the British in both Delhi and London and that this had borne fruit in the form of the Home Secretary’s instructions that there was to be an immediate end to such examinations. He tried to evade the question of Mrs K’s treatment by pointing to the larger question of race and racial discrimination in Britain. ^{Footnote 59} Dismissively referring to Mrs K’s gynaecological examination as ‘certain obnoxious practices which were resorted to by the British in the name of controlling immigration’, he further argued that what India wanted was ‘true racial harmony…whereby people of Indian origin can live in peace and honour in that country and visit Britain without fear of harassment and embarrassment’. ^{Footnote 60}

This pivot from the question of what might be seen as a case of sexual assault to one that was about racial discrimination in Britain was critical to how the debate subsequently unfolded. Linking this discrimination to the longer humiliation of imperial rule, it was suggested that ‘most of the officials in the Immigration Department are known for their racial fanaticism.’ ^{Footnote 61} As Kanak Mukherjee, an MP from West Bengal, thundered:

Another MP raised a similar question about whether only Indian women had been the victims of gynaecological examinations or whether European or American women had been victims of the same tests. The peculiar implication of such a query was that if other women too had been tested then perhaps this was simply a measure of immigration control and not one specifically directed at South Asian women. Later that year in bilateral talks between foreign policy officials, the British deduced that as long as they demonstrated ‘sensitivity to Indian interests in race relations in Britain, the Indian Government is generally unconcerned about our immigration policy so long as it does not appear to be racially discriminatory’. ^{Footnote 63} A visit from Home Office officials to the subcontinent later in 1979 suggested that this opinion was more broadly held, and that ‘there is a belief that the controls applied to nationals of these countries are not applied to other foreign and Commonwealth citizens seeking entrance to the United Kingdom’ ^{Footnote 64} . These arguments suggested that both India and Britain were mutually and primarily concerned with who was the focus of these techniques of immigration control, rather than the actual rules. For India in particular, this episode was not about the humiliation suffered by Mrs K herself, but a reminder that her citizens were relegated to second class status even when attempting to legally enter Britain.

Whilst framing this discourse to highlight the racialized nature of the harassment faced by Indians, Vajpayee simultaneously had to evade and deflect charges of incompetence and accusations that the MEA had not tackled these cases for a decade. To do so, he shifted the discourse to highlight immigration issues that predominantly affected male migrants and focussed his ire on the British Nationality Bill that was being debated in Westminster, which would have a particular effect on fiancés who had not met their prospective spouses who were settled in Britain and who would then be ineligible to enter Britain without an entry certificate. ^{Footnote 65} Natarajan has argued that India’s foreign policy regime has consistently sought to privilege the upper caste, male migrant as the ‘ideal’ and through its passport scheme sought to ensure that those of a lower caste or a lower class would not be seen as India’s representatives abroad. ^{Footnote 66} To move the discussion away from the gendered dimension of the complaint to racialized immigration control, Vajpayee sought to vindicate the Government of India’s non-intervention on behalf of the women who had complained earlier. He argued that ‘the whole difficulty is that those who are subjected to this test are asked to give written consent and in their anxiety to seek entry into the United Kingdom, they have been allowing themselves to be subjected to this practice’. He posited that these women could have avoided this by simply ‘refusing to enter England if she is asked to be subjected to such type of treatment’. ^{Footnote 67} Belying the economic and racial vulnerability of the women, Vajpayee suggested that the primary fault centred on the desire of the women themselves to emigrate, and that they possessed the agency necessary to refuse immigration officers at Heathrow. As scholars like Kimberlé Crenshaw have argued however, viewing discrimination from a single vis-à-vis intersectional lens precludes understanding the full extent of subordination that women may be subjected to in particular circumstances. ^{Footnote 68} Here, Vajpayee’s argument formed part of the broader pattern of logic that the practice of such tests to monitor borders themselves was not problematic, and that the women ought to have raised a fuss at the border itself and not willingly signed the documents presented to some of them. Moreover, by arguing that ‘this practice has been there since long but we know, Indian women are modest and the prospective brides would never like this to be publicised’, Vajpayee further suggested that these vulnerable women had had ample time and capacity to withstand the pressure of bodily scrutiny at a foreign border, and deflected from the race and gender power hierarchies inherent within this bordering arrangement that were facilitated by the Indian Government’s own reified stereotypes of the chaste, Indian woman. ^{Footnote 69}

Vajpayee’s insistence that this was a case of racial rather than gender discrimination, and his reassurances that the High Commission had been discussing the question of race for some time, was only partially sufficient to appease Indian MPs however. Recognising India’s clout within the Commonwealth, several argued that India ought to either use it as a platform to humiliate Britain or withdraw from it completely. Jagjit Singh Anand railed against the Commonwealth, arguing that it was useless ‘if its platform cannot be used to discipline the Whites in the Commonwealth and they continue to practice discrimination against non Whites alone’. ^{Footnote 70} Others suggested that protests lodged with the British by the HCI in London and the MEA were inadequate, thus India needed ‘to take some serious action like our disassociation from the Commonwealth’ and that in India’s absence ‘…there will be no Commonwealth’. ^{Footnote 71} India’s relationship with the Commonwealth had always been of importance to the British because it was a test case whereby a country, committed to being a republic, had been allowed to join an institution predicated upon loyalty to the British monarch. ^{Footnote 72} India’s membership had paved the way for other colonies to join, and had demonstrated that the Commonwealth was a flexible institution. In the negotiations that followed the ‘virginity testing’ scandal, India could envisage using its diplomatic clout within the Commonwealth to negotiate entry and exit into Britain. Nevertheless, any such re-negotiation had to be carried out within the parameters of Indian conceptions of sovereignty, and by 1971 India was more wary of challenging the status quo on sovereignty following the influx of ten million refugees into eastern India from East Pakistan. ^{Footnote 73} Vajpayee was cognizant that medical tests per se were not illegal, and that Britain would argue that it had sovereignty over its own immigration laws. Thus, given the public outcry and protests in Birmingham, London, and New Delhi, India could use this moment to harness such disquiet into a broader argument about race relations and immigration laws, and the treatment of mostly male visitors to the United Kingdom. Raising the issue at the UNHRC as a matter of racial discrimination at a time when the apartheid question in South Africa was equally prominent on the agenda would be an ideal avenue to place British laws under the spotlight. These debates in the Lok Sabha and the Rajya Sabha indicated how Indian parliamentarians saw this scandal: as an act of racial discrimination by a former colonial power, and evidence of bureaucratic mismanagement by their own government. The Indian response from this point onwards would coalesce around harnessing and responding to these two factors.

A cover up: the United Nations Commission on Human Rights and the British response

While Vajpayee dismissed quitting the Commonwealth as a potential retaliatory move in response to the humiliating treatment suffered by Mrs K, this moment opened up diplomatic possibilities for India that had hitherto been closed off. Restrictions on the free movement of non-white British subjects had a long history that extended beyond the shores of Britain to Australia, South Africa, and Canada (which had refused entry to Indian migrants who were British subjects that arrived on the Komagata Maru). ^{Footnote 74} However, the British had always resisted the idea that the theme of racial discrimination and particularly its own immigration laws were available for international discussion. During the debates that led to the founding of the UN, they had repeatedly expressed their concerns about the implications of human rights provisions. Eventually, the Foreign Office had prepared a special memorandum entitled ‘World Organization: Racial Equality and Domestic Jurisdiction’, which argued that any internal immigration policy would not come under scrutiny because of the inclusion of Article 2(7) of the UN Charter. ^{Footnote 75} Former colonial states such as Britain and France, alongside white settler states, organized themselves on principles of racial hierarchy and were publicly and privately resistant to any prospect of institutionalizing regimes of governance that would question how such hierarchies operated. ^{Footnote 76}

During his visit to India in 1980, Lord Carrington, the Secretary of State for Foreign and Commonwealth Affairs, thus echoed the British line that Her Majesty’s Government unequivocally sought to ‘promote harmonious race relations’ for those who were ‘legally settled’ and such people had ‘no reason to fear compulsory repatriation’. ^{Footnote 77} Aware that the new Conservative government’s manifesto on immigration had aroused consternation in the subcontinent, the British were keen to argue that immigration law was not discriminatory. However, Mrs K’s treatment threatened to torpedo that argument. India now had a cause that was both morally just, and one that could be used to assert that Britain’s immigration laws were now not immune to external debate. Britain responded by arguing that India’s insistence on raising this issue in the international arena, despite an apology, was irrational and overblown. By painting India as an immature international actor, the British tried to suggest that what they perceived to be a minor fracas could now disturb a mutually beneficial relationship. The British were keen to deflect attention from their immigration laws, and prepared a robust response to the claim that ordinary Indian visitors were disproportionately being harassed at Heathrow by citing Home Office figures to suggest that merely 0.5% of Indian visitors were turned away. Citing these figures to dismiss Indian claims of a pattern of racial harassment was an attempt to downplay any accusation that such harassment was systemic and a reflection of inequalities in global migration processes. Thus, by assuaging India’s concerns over these specific issues, and simultaneously suggesting that broader questions of racial discrimination were merely consequent to the ‘hysterical’ coverage of Mrs K’s case, Britain and India could eventually find common ground by 1982.

The long history of India raising questions about racial discrimination at the UN was pivotal to both the British and Indian responses to this incident. As Gorman has argued, India had used the UN as a forum to challenge imperialism within the international system, and the British resistance to this centred on the argument that any remaining colonial affairs in the 1950s were an ‘internal’ matter. ^{Footnote 78} Throughout the 1940s and 1950s, India had pursued an annual UN resolution on the racialized treatment of Indians in South Africa and against apartheid. For white settler-states that were at the receiving end of India’s trenchant critiques on race, there was a desire to circumvent the argument that racism was a global issue. Their response was to delegitimize India’s critiques by dismissing them as ‘irrational’, ‘emotional’, or even ‘imperialist’. Britain’s response echoed that of South Africa, Canada, and Australia who countered India’s anti-racist agenda at the UN in the 1950s by arguing that it came from a place of deep emotion and was therefore ‘irrational’, and that it was perhaps an imperialist disguise for India to create its own ‘Brown Empire’. ^{Footnote 79} While the British were willing to admit that gynaecological examinations were abhorrent, they asserted their right to control their own borders, and repeatedly referred to immigration laws as an ‘internal’ issue. In a similar vein, Indian complaints were sought to be downplayed as an overreaction to a reasonable request from an immigration official.

The first official line of defence was that an ‘examinees consent is implied unless he or she objects’, and that between 1971-79 there had been four examinations of women from which two women (who had said they were fiancés) were found to be pregnant. ^{Footnote 80} It was argued that an internal examination had been carried out only ‘to confirm pregnancy in any examinee where suspicion of pregnancy had been aroused from external clinical examination’, but it was suggested, somewhat absurdly, that this was necessary as Heathrow lacked the facilities to carry out a simple urine dipstick test to detect pregnancy. Thus, an invasive medical examination, that was not backed by any relevant British medical authority, ^{Footnote 81} was justified on the grounds that women ‘particularly from certain cultural backgrounds’ would not have pre-marital sex and if they were found to be non-virgins, or pregnant, then such women were either wives or imposters and could be refused entry without the relevant entry certificates. ^{Footnote 82}

Speaking in the House of Commons on 19 February 1979, the MP Jo Richardson argued that while Mrs K’s ordeal was of course unfortunate, ‘it does not follow that it was unreasonable for the officer concerned to have suspicions’. She then proceeded to blame this on the ‘evasion of immigration rules by such girls claiming to be unmarried and dependent when they were in fact married to their Indian husbands and were thus not eligible to settle in the UK with their parents’. ^{Footnote 83} The women in question, ranging from fiancés to wives and dependants, were infantilized through such language and simultaneously portrayed as capable of complex deception over immigration laws. Richardson’s remarks reflected the power relations that informed the interrogation, humiliation, and intimidation involved in immigration encounters at airports and her argument further underscored the power relations that characterized such aspects during immigrant encounters at airports. Such encounters would have been both an assertion of state sovereignty and a reminder to the migrant woman of their vulnerable and subordinate status. This would have been reinforced by subjecting certain migrants, in this case South Asian women, to greater scrutiny than others. ^{Footnote 84}

The original British response had thus been to reassert the legality of their actions and to remain dismissive of Indian complaints. With a session of the UNHRC looming however, word began to filter through that the Indian delegation was considering raising the issue under Item 20: ‘Implementation of the Programme of the Decade to Combat Racism and Racial Discrimination.’ Adding to British anxieties was the identity of India’s representative at the UN. Vijaya Laxmi Pandit, the formidable sibling of India’s first Prime Minister, Jawaharlal Nehru, was a seasoned diplomat whose first foray in international diplomacy had been a series of searing and successful interventions on the question of race in South Africa. ^{Footnote 85} During the UN talks in San Francisco, her ‘electric presence’ was noteworthy enough to be picked up by the American press, and she was revered and known as a diplomat of renown. Additionally, India had played a critical role in the creation of the UNHRC itself, using it as an ‘engine through which to drive such hope’ of a possibility when ‘older paradigms could be rejected and the world could be fashioned anew’. ^{Footnote 86} India’s role on the South Africa question had also allowed the Commission to think beyond the lens of national sovereignty and accorded it greater power and scope than originally envisaged. This historical context and the presence of Pandit naturally made British diplomats in Geneva particularly nervous.

On 23 February 1979, Mrs Pandit made a speech before the UNHRC on the question of ‘virginity testing’. Referring to the 1978 World Conference on Racial Discrimination and its references to immigration, she highlighted the ‘gross indignity’ suffered by ‘an Indian immigrant lady at Heathrow Airport in London’. ^{Footnote 87} Having outlined what happened to Mrs K, Pandit asked, ‘are we living in this year of grace 1979 or in some dark age when proof of virginity was a pre-requisite for marriage and is now extended to entry into a foreign country!’ Pandit argued that ‘though there is nothing overtly discriminatory in the Immigration Act, the actual working of the immigration system is such that a racially discriminatory bias against people from the Indian sub-continent is built into the whole system.’ Having digressed from highlighting the treatment of Mrs K, Pandit was now free to raise broader concerns about the discriminatory aspects of British immigration law. Quoting MP Jo Richardson from the Parliamentary adjournment debate, Pandit repeated her line that, ‘If an Australian girl had been asked to prove she was a virgin by an Immigration Officer, she would have hit the bloke across the ear.’ Pandit was careful to assert that Britain had the right to frame its own immigration policies, but she argued that they needed to be concomitant with ‘human dignity’ and the ‘elimination of racial discrimination’. In particular she wanted to raise the question of x-rays for determining the age of applicants carried out, she alleged, by ‘airport employees…not qualified to operate the machines’. This question was sufficient to ‘warrant a charge of racial discrimination’ and India was going to ask the Commission to collect information ‘on the treatment of immigrants, not only by British immigration authorities, but also by those of other countries who receive immigrants’. ^{Footnote 88}

Pandit then tabled a draft resolution and asked the Secretary General to ask the Sub-Commission on the Prevention of Discrimination and Protection of Minorities to examine the issue and to report back the following year. ^{Footnote 89} India began pushing for a vote on the issue and Britain was now equally desperate to avert this from happening. It was clear that Sir James Murray, Britain’s representative at the UNHRC, would have to personally intervene.

The British tried to deflect from the growing criticism before the vote by mirroring language that had been used in debates about race and racial questions in the UN by white-settler states. They attempted to suggest that this was a minor question, a one-off incident that had been blown out of proportion and was being manipulated by those with a vested interest in embarrassing Britain. They further suggested that Indians were ‘particularly sensitive’ about immigration issues in light of the incident at Heathrow ^{Footnote 90} and that the complaint at the UN was an example of where ‘they [India] had over done matters’. ^{Footnote 91} Conscious that any discussion about immigration would zero in on the new immigration rules being proposed by the then Conservative Party in opposition, the British continued to suggest that the issue was one that was being raised simply to ‘excite the media and immigrant lobbies’. ^{Footnote 92} By using language that was dismissive of the deeply racial connotations of the incident, the British were keen to emphasize that given the apology in the Commons, India’s action was simply an ‘emotional human rights initiative’ that had been forced by parliamentary and public opinion. ^{Footnote 93} Echoing the diplomats from the 1940s and 1950s, the aim of such patronising language was to imply that India’s complaint, emerging from the emotional, irrational East and a product of their anti-colonial distrust of the West, could not be taken seriously.

Britain’s second line of defence was to argue both that such medical examinations were legitimate, and that ‘what happened at Heathrow can hardly be described as a practice, let alone a practice that was racially discriminatory against Asian women’. ^{Footnote 94} Thus, not only was the immigration officer simply trying to ascertain whether or not Mrs K had borne children, but the number of attempts ‘to abuse the Immigration Rules by married daughters claiming to be unmarried’ rendered it legitimate to carry out such investigations. In fact, the defence went a step further to claim that in the absence of ‘comprehensive and reliable’ evidence about births, deaths, and familial relationships in India, medical tests were justified in lieu of such documentary evidence. ^{Footnote 95} Such a rationale proposed that this was not a case of racial discrimination and simply a matter of internal immigration regulations. Moreover, it was further deemed entirely legitimate to examine migrant women from the subcontinent to enforce these immigration rules, because it was also argued that they came from a unique community and ‘culture in which childbirth would be a good indication of marital status’. ^{Footnote 96} The circularity of using gendered and racist tropes to justify these immigration practices to evade charges of racism was particularly stark.

Underlying the threats and dismissive attitude of the British was the very real concern that what would surface was that the practice of gynaecological examinations was not simply a one-off. For long there had been complaints about the gendered nature of questioning that took place in British High Commissions in South Asia. Questions such as ‘How long did you spend with your husband on the wedding night?’ were common and any answer perceived to be mendacious would result in refusal of entry. ^{Footnote 97} However, interrogations at these High Commissions were not just verbal in nature. In a memorandum from the High Commissioner stationed in New Delhi, it was admitted that the practice ‘took place on a larger scale than we have so far admitted’. Referring to Vajpayee’s insistence that there were at least thirty-four cases of such examinations at the High Commission in New Delhi in 1978, the British tried to suggest that in these cases ‘not all such examinations would have been intimate’ and while British-approved doctors may have examined women for signs of childbirth, these would not necessarily have been vaginal tests. ^{Footnote 98} Though the British were willing to privately admit that the practice was more widespread, their tactic in public was to be dismissive of India’s argument. This left open the possibility that India could use this as the basis of their complaint at the UNHRC.

Having found an opportunity to raise questions that had been repeatedly sidestepped by the British in the preceding decades as irrelevant to any bilateral debate, India perceived this as an opportunity to force the British to put race and race relations on the common agenda. By creatively deploying the more global language of race to circumvent the argument that immigration laws were an ‘internal’ matter, the Indians were also aware that in order to win a diplomatic victory they might have to dilute the more aggressive language deployed by Pandit. These amendments would help to counter the claim of a mere, irrational overreaction from a politically sensitive postcolonial nation. The Indian Prime Minister at the time, Morarji Desai, was more circumspect about why the matter was of importance, ^{Footnote 99} and admitted that the case at the UN ‘was simply a ploy to calm public opinion and reassure them that the Government had Indian interests at heart…Nothing would come of it…the incident was finished’. ^{Footnote 100} This more moderate approach suited the British as well who tried to negotiate with Pandit to see if the Sub-Commission that reported on immigration procedures could be persuaded not to vote on the Indian resolution. Simultaneously, it was suggested that Sir James Murray would make a speech in Geneva where he would express regret, but not apologize for the incident, and rebut the allegation that it ‘demonstrates a systematic practice of discrimination in the application of our immigration policies’. ^{Footnote 101} Emboldened by the message from New Delhi about Desai’s reluctance to push the case, Murray approached Pandit to ask that the Indian resolution not be put to vote. ^{Footnote 102}

Within a few days, Pandit was willing to accept the possibility of removing any specific reference to the UK in the resolution, as long as the Indians could have access to the Home Office rules on how their immigration officers operated. ^{Footnote 103} The British remained reluctant to provide the Indians with any confidential instructions however. A brief stalemate had been reached. India sought reassurance about the broader question of racial harassment at the British border, and was willing to threaten to revert to the ‘tougher text’ of the old resolution to force the British to comply. It was at this point that the Swedish delegation stepped in to broker a consensus and India withdrew the proposal for an ‘inquiry into the indignities and hardships suffered by non-white immigrants in Britain’. In return, Murray’s speech contained a more fulsome apology to Mrs K, and both sides agreed to have a ‘forthright exchange of information and facts’ before the next session in 1980. ^{Footnote 104} This conclusion meant that the question of race relations could now be placed more regularly on the bilateral agenda, which fulfilled the diplomatic victory that India was seeking. Meanwhile, having the diplomatically embarrassing episode at Heathrow erased in favour of milder language was equally satisfactory for the British.

Despite Britain’s dismissal of India’s position as ‘hysterical’, events in Geneva in 1979 demonstrated how the potential for racial embarrassment at the hands of a former colony prompted them into a more conciliatory negotiating position. The episode also demonstrated that India’s anti-racist agenda in the global sphere could be creatively re-deployed for diplomatic purposes in a different manner from the South Africa episodes of the 1940s and 1950s. In the late 1970s and early 1980s, India’s goals had now shifted, just as the world had. While race and ideas about racial norms could be utilized as political tools to negotiate items on a bilateral agenda, they had to transcend the experience of a single woman at Heathrow Airport. The universalizing language of race constituted an attempt to both embarrass Britain, and to achieve the more immediate goal to halt certain provisions of the 1981 British Nationality Act (BNA). Meanwhile, the British were embarrassed and troubled by the possibility that their immigration rules might become the source of an annual discussion in Geneva. Behind the scenes it was noted that following the ‘deplorable speech by the Indian delegation’, Britain should take stock and prepare ‘prophylactic measures’ including deterrence in the form of ‘collecting a fat dossier of information about violations of human rights in India, starting with the caste system and debt bondage’, which was deemed a ‘relevant’ question as the Indians had paired immigration and human rights. ^{Footnote 105} The goals moving forward would be to meet the Indians halfway, while continuing to find ways to embarrass them in the UNHRC in return. ^{Footnote 106}

India, the UNHRC and the British Nationality Act, 1981

If the 1979 session of the UNHRC had seen India dilute its outrage over virginity testing at Britain’s borders, the issue would then slowly disappear from the Commission’s agenda over the next three years. For India, the key to any negotiations at the Commission was the pending Nationality Bill in the UK, the possible curtailment of the rights of male migrants from India to move to Britain as fiancés, and the availability of South Asian women. The political use of race constituted a veneer through which a broad complaint addressing the ‘treatment of non-white immigrants’ was tactfully narrowed to protect the immigration experiences and rights of a particular group of migrants. ^{Footnote 107} India used the negotiations prior to the 1980, 1981 and 1982 sessions of the UNHRC in Geneva to ensure that their objections to the new Nationality Bill would be aired.

As these new Immigration Rules, which would eventually become part of the British Nationality Act of 1981, were being debated in Britain, politicians and officials of the Home Office were acutely aware that the international ramifications of the changes could be significant. Framed as restrictions designed ‘to curtail the exploitation of marriage as a means of primary immigration’, the White Paper that outlined the changes stated that ‘if the parties to the marriage have not met’ then they would not be permitted entry, even if the women in question were UK citizens by birth. ^{Footnote 108} Civil servants were aware that since the rule that admitted Commonwealth citizens who had a UK-born grandparent had not been altered, there would be little complaint from the ‘old Commonwealth’, i.e. Australia, Canada, and New Zealand, but this rule would disproportionately affect South Asian women born in the UK who were part of arranged marriages where they had not met their fiancés, and where the marriage was both consensual and legal. ^{Footnote 109} Given that this violated the right to family life, some feared that the rules could be challenged in European courts, as occurred in cases concerning East African South Asians in 1973, or equally worse in the Human Rights Commission. ^{Footnote 110}

By early 1980, these new immigration rules were the chief focus of bilateral discussions between Britain and India. ^{Footnote 111} The Indians as ever were quick to acknowledge Britain’s sovereignty over its own borders and its right to introduce ‘whatever legislation on immigration thought necessary’, but admitted that there were misgivings about the discriminatory aspects of such proposals. Narasimha Rao, India’s Foreign Minister, raised the question of the ‘right of entry for male fiancés for women born in Britain and those not’, and proposed bilateral talks to discuss race and immigration. ^{Footnote 112} As scholars like Nadine El-Enany and Devyani Prabhat have identified, the 1981 BNA both ‘brought preferential Commonwealth migration to a complete halt’ and grounded citizenship on the right of abode and settlement, thus depriving those without a patrial connection of the automatic acquisition of citizenship by birth through parentage. ^{Footnote 113} As both scholars have further argued, the 1981 BNA formed part of a longer trajectory of nationality and immigration legislative changes from the 1960s which ‘created demographic changes within the UK through a process of successive and exclusive cumulative exclusion’, vis-à-vis demarcating ‘a clear territorial decolonisation’, effectively implying Britishness as commensurate with whiteness through the territorial nation-state. ^{Footnote 114} In the subsequent debates at Geneva, India thus utilized race and racial discrimination as a veneer to argue for more lenient immigration rules for Indian men going overseas in search of a British wife.

As the next session in 1980 approached, the British continued to maintain the defence that the practice of virginity testing was ‘appalling and indefensible’, but again simply a one-off that was unreflective of wider immigration policy. ^{Footnote 115} Simultaneously however, they remained worried that the next session in Geneva would be dominated by discussions of Britain’s immigration policies such that ‘virginity tests may be dragged willy nilly into a wider debate’. Senior officials had warned that it would be difficult to let the issue of ‘virginity testing’ drop, but argued that there was ‘little doubt’ that if the immigration rules were laid down during the UNHRC session, then ‘the Indians will renege and will launch an emotional human rights initiative, probably on the husbands and fiancés issue’. ^{Footnote 116} There were frantic attempts behind the scenes by civil servants to stop the new nationality rules from being tabled in Westminster before this session. ^{Footnote 117} There were also fears that the Indians, who had been previously persuaded to drop the more aggressive language about the British, would see this new legislation as a ‘slap in the face’. ^{Footnote 118} It was determined that the matter would now be referred to as the ‘allegations of so-called “virginity testing”’ to emphasize that these were simply allegations and that the tests were not to test for virginity, but rather to determine marital status. ^{Footnote 119} If gynaecological examinations were not of significant concern for the Indians, who were primarily worried about harassment faced by businessmen and tourists, the new immigration laws affecting fiancés, and x-ray testing, then the British hoped that the original matter could now be said to have been dealt with and the Indian complaint abandoned, by responding to these, specific concerns. ^{Footnote 120} By the time the session ended in 1980, the Indians were persuaded by the British to agree to a statement that said that the ‘two governments are continuing their consultation’ with the hope of a more favourable outcome in the thirty-seventh session. ^{Footnote 121} For another year, Britain had avoided humiliation in Geneva by deflecting attention from the original case.

By 1981 the British were even more confident that the matter would be dropped. ^{Footnote 122} In the end this suited both the Indian and British interests. An enquiry by Sir Henry Yellowless, the Chief Medical Adviser, had been unequivocal about gynaecological tests and instructed that ‘under no circumstances were medical advisors to be asked for an opinion as to whether a woman had borne children or had sexual intercourse’. ^{Footnote 123} This gave greater heft to the British claim that the practice had been eradicated and that Mrs K’s case had been a one-off, hence it was necessary to move this from an international discussion to the bilateral realm. The final outcome of both the 1980 and 1981 sessions led to the matter being kicked forward to the next sessions and returned to the arena of bilateral debate, thus evading any discussion of potentially discriminatory immigration legislation.

Simultaneously, India’s new government under Indira Gandhi was keen to repair relations with Great Britain and avoid international scrutiny of the Emergency era, particularly as her democratic detour had hurt India’s image. ^{Footnote 124} By 1982, a plan was thus made to visit Britain, revitalize cultural diplomacy by organizing the Festival of India in Britain, and undertake discussions about nuclear technology. ^{Footnote 125} In a moment of national crisis for Mrs Gandhi, the lofty internationalist agenda of the original complaint—Mrs K and the bodily integrity of migrant women—could be sacrificed for more limited political goals. The British too were more belligerent by 1982 and suggested that they wanted to give New Delhi an incentive to drop the case because ‘otherwise we risk a situation where our immigration practices remain an annual subject of attention by the Human Rights Commission’. ^{Footnote 126} With the visit from Indira Gandhi looming in March 1982 at around the precise time that the UNHRC would meet again in Geneva, the British were keen to minimize the discussion around race and immigration, while pointing fingers at the Indians and their own flawed human rights record both in Bihar ^{Footnote 127} and concerning issues that were already on the UN’s radar, including violations of child labour. ^{Footnote 128} The Indians stressed that though the issue could be brought to its conclusion, the final text would be more ‘saleable’ (sic) to Indian Ministers if it explicitly referenced the points that they outlined, including ‘the British Government’s commitment to a multi-racial society and to a non-discriminatory immigration regime’ and the assurance that virginity testing would not recur. ^{Footnote 129}

The language of the Indian text that was proposed at this point is worth considering in some depth. It read:

This language made evident that the Indians were echoing a narrative that chimed with what the British desired, while also asserting that they were going to keep an eye on how these immigration laws were being enforced. During the South Africa debates, the use of race as a political category for diplomatic purposes had been part of a larger conversation about decolonization and the rights of overseas Indians. This was influenced by perceptions of the UN as a forum whereby a ‘more equitable relationship between North and South’ would come to fruition through questions on decolonizing territories and Apartheid. ^{Footnote 131} By the late 1970s and early 1980s however, when political decolonization was almost complete, ‘race’ as a political emblem embodied different meanings when compared to its previous deployment. Here, ‘race’ was more about the afterlife of decolonization. In particular, India was concerned with how the global order remained deeply discriminatory for these newly decolonized countries, how immigration laws within the Commonwealth were emblematic of such discrimination, and more self-interestedly how its own domestic constructions of the ideal migrant and advocacy concerning the rights of male migrants could be internationalized. The British were in fact marginally unhappy with the language, because it suggested that India might (legally) be able to intervene in the application of immigration laws under Britain’s jurisdiction. Eventually the text said that ‘…the two governments have agreed that they would continue to hold such bilateral consultations as may be necessary. They are therefore of the view that no further action is necessary by the Commission in regard to Resolution 7’. ^{Footnote 132}

The championing of a deracialized world of border controls might have seemed progressive on India’s behalf, particularly as the language of Pandit’s speech in 1979 had arguably reinvigorated India’s historical position as a champion of anti-racism measures at the UN. Yet, the final text of the resolution demonstrated that India was wary of its own human rights record being examined. India’s willingness to drop the case was reflective then of the limitations of a nationalist project aiming to create a decolonial world. In the decades since Independence, critics had pointed out that India under Indira Gandhi had opened up the political space to right wing Hindu majoritarianism ^{Footnote 133} while any hopes of a feminist revolution had been thwarted by legislative changes that remained gendered. ^{Footnote 134}

India’s treatment of Mrs K in the aftermath of the UNHRC case was reflective of such an approach - despite how the trauma of her experience influenced her return to India, there is no evidence that any legal help was offered to Mrs K. ^{Footnote 135} In contrast to her disappearance from much of the archival record, Mr K visited India in February 1982 and spoke to multiple newspapers about how his wife had temporarily deserted him after her humiliation at Heathrow, alongside how he and his wife were seeking compensation from the Home Office. However, when confronted in Parliament on whether the Government of India would support the ‘thousands of British women’ who would support Mrs K’s claim in the High Court, ^{Footnote 136} Narasimha Rao retorted that Mrs K’s case was ‘particular’ and that Britain had provided an ‘unconditional’ apology. ^{Footnote 137} These declarations sharply contrasted with Rao’s response concerning Mr K’s case, where he revealed that he had ‘made available to him through the Ministry whatever material we had with us’. ^{Footnote 138} Rao’s willingness to offer legal help to Mr K to indirectly secure compensation for his wife’s desertion was incongruous with his dismissal of Mrs K’s case as a singular instance, thereby eliminating the possibility that India would aid any women with similar complaints thereafter. His willingness to help Mr K, a British national and businessman, to seek compensation for his experiences of his wife’s ordeal further echoed colonial constructions of gendered privileges that permitted the legal decree of ‘restitution of conjugal rights’ within Indian domestic law, while Mrs K herself had been erased from public debate through a process of state sanctioned forgetting. ^{Footnote 139} Additionally, Rao’s comments deflected from the fact that tests continued, and were documented, at subcontinental High Commissions. Though the exact numbers of migrant women who underwent virginity tests will never be able to be quantified, Smith and Marmo argue that it ‘was far from an isolated practice’. ^{Footnote 140} By 1982, Indira Gandhi had indicated to her diplomats that the complaint should be dropped at the UN, and these numbers were also brushed under the carpet by the Indians who were happy to accept the British argument that while these examinations were not the basis for immigration decisions, they could accelerate the process of entry clearance. Any woman who was choosing to see a doctor at a High Commission in the subcontinent for such examinations was thus doing so of her own volition. By the time that both countries had told the UNHCR that a resolution to Mrs K’s case had been found, it was apparent that India’s initial resolution had thus centred more on protecting the perceived conjugal rights of a particular type of migrant, as opposed to championing gender justice when faced with discriminatory immigration policy and practice.