Bad Gone Good?

It’s been some time since I last blogged but, in the meantime, I’ve followed with keen interest the diplomatic crisis between the United States and India concerning the Indian diplomat, Devyani Khobragade.  While this particular crisis seems to have been resolved with the United States’ freeing of Khobragade, much remains to be seen how this incident will affect other aspects of the India-U.S. relationship in the future. 

My interest here is less about that future, but an under-remarked upon aspect of how some Indian politicians responded last month to the sexual humiliation of Khobragade by U.S. authorities—namely, these Indian politicians’ threatening of U.S. diplomats in India (along with their accompanying partners) with prosecution under India’s newly-reinstated Section 377.  Section 377 of the Indian Penal Code, again, states that  “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall be liable to fine.”

I find this threat to prosecute Section 377 both horrifying and fascinating.  The threat is horrifying for fairly obvious reasons.  The threat is fascinating, however, not only in what the threat reveals about the nature of sovereigns’ fundamental concerns—here we have not tit-for-tat diplomacy, but a kind of hole-for-hole reciprocity—but also in what it suggests about the possibility of progressives’ ability (or not) to rehabilitate the meaning/use of regressive laws. 

Put another way, (some) Indian politicians seem to have discerned “carnal intercourse against the order of nature” in U.S. authorities’ strip- and cavity-search of Khobragade and, as a result of this 377-like offence, suggested that U.S. diplomats’ cavities should themselves not be entitled to privacy protections.  And in that observation lies an embedded one that standard U.S. detention practices involve rape (aka ‘unnatural carnal intercourse’)—and should be prosecuted as such.

More generally, while we often hear of ‘the misuse of well-intentioned laws’ (e.g. the use of Equal Protection doctrine to forbid affirmative action) or ‘the law on the books v. the law-as-practiced’ (with the latter always being a disappointment compared to the former), I wonder whether the Khobragade incident hints (however perversely) at the possibility of ‘bad law gone good.’  Are there other examples of the progressive rehabilitation of regressive law that other readers can think of? 

Comments

[Paul Horwitz]

I think I'm missing something. Where's the "gone good" part of the "bad law gone good" equation?

[Jeff Redding]

Paul, sorry to take so long to reply - I've been out of the country. What I was trying to suggest was the potential reusing of Section 377 (or analogues elsewhere outside of India) to vigorously prosecute police overreaching and misconduct.