New Delhi, May 6: A 145-year-old law that bans sex “against the order of nature” has landed the foreign ministry in a quandary.
The Canadian high commission has requested Delhi to clear diplomatic spouse privileges for two officials, a man and a woman, each married to a partner of the same sex.
Gay marriages, allowed in Canada, are not legally valid in India. Section 377 of the Indian Penal Code, which came into effect in 1862, bars sexual intercourse between two men and provides for a life sentence for violation. Lawyers and activists have filed a petition in Delhi High Court demanding its revocation.
Foreign ministry sources said that as Indian law does not recognise same-sex marriages, the Canadian requests cannot be granted.
A spokesperson for the Canadian high commission said the mission would rather not comment on the matter.
Indian police routinely arrest and punish gay men and lesbians although the law, many argue, only bars sexual intercourse. “This is unfortunate,” senior IPS officer Kiran Bedi said.
Anand Grover, head of the Lawyer’s Collective, which is fighting a legal battle to revoke Section 377, called the law an “archaic remnant of 17th-century British sensibilities.”
“Many countries are doing away with such laws. A country cannot join the European Commission, for instance, without first revoking any anti-sodomy law,” he said.
Denmark, South Africa, Belgium and the US state of Massachusetts allow same-sex marriages. Many of the rights that marriage brings are available through same-sex civil union laws in most European Union countries, including Britain.
An official at the Canadian mission said the requests for spouse privileges were made with the understanding that under the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963, diplomats and their families would be immune from Indian laws.
Foreign ministry officials, however, said the Vienna conventions bring immunity only from criminal procedure, not from the law of the land in which the diplomat is based.