Author Details :-

T. ROSHINI Chennai Dr.Ambedkar Government Law College Pudupakkam.

ABSTRACT

“ The state has no place in the bedrooms of the nation.”- Pierre Elliot Trudeau

Sexual pleasure is a human right, according to the World Health Organization and the Declaration of Sexual Rights by the World Association for Sexual Health, which was ratified by international bodies including the United Nations. Sexually stimulating items, whether manual or electronic, are used to increase the enjoyment of the sexual activity. The use of sex toys in India is morally and legally debatable since they are used for sexual enjoyment. Nearly 70% of the sex toys produced worldwide are made in China. The sex toy industry in India has moved from underground operations in seedy alleys to our living rooms because of the boom in e-commerce. For so long, this sector was prevented from growing because sex toys were socially and morally taboo. The confusion surrounding the use and selling of sex toys was further exacerbated by the ambiguous interpretation of antiquated regulations. As of right now, India doesn’t have any laws that either prohibit or allow the selling of sex toys. However, the sale, display, advertisement, import, or export of sex toys may be prohibited under Section 292 of the Indian Penal Code due to obscenity. The right to privacy includes the right to sexual privacy. Law has no business interfering with the private decisions made by adults. But if the activities are not consensual, legal regulation is crucial. This research article delves into the legal status of sex toys in India, exploring the provisions and regulations governing their possession and use. Through an analysis of relevant laws, court rulings, and societal attitudes, this paper aims to provide a comprehensive overview of the current legal framework in India regarding sex toys.

Keywords: Market, Sex Toy, Sexual Disability, Patentability, Privacy, Obscenity.

INTRODUCTION

Sexuality and its expressions through various means, including the use of sex toys, have historically been sensitive topics in India. Rooted in cultural conservatism, India’s legal landscape concerning sexual products like sex toys reflects a complex interplay of traditional values, modernization, and legal interpretations. While sexual practices and preferences are increasingly viewed as personal choices worldwide, India’s legal framework remains conservative and often ambiguous regarding the legality of sex toys. The global market for sex toys has witnessed significant growth in recent years, with a wide range of products catering to diverse preferences and desires. However, in countries like India, where traditional values and societal norms play a significant role in shaping laws and regulations, the legality of sex toys remains a contentious issue. The most popular toy is vibrators, often known as personal massagers, which vibrate around your genitals to stimulate sexual excitement. It can also be used to stimulate male genitals. Vibrators come in a variety of forms and sizes, and some of them may even be used inside the vagina. They are currently considered to be the most trusted companions of women. Dildos, penis rings, anal toys, and other adult toys are available. Indian marketplaces are gradually adjusting to the varied toys based on demand. Given India’s socioeconomic situation, adult toys are mostly acquired through e-commerce websites. Through their websites, e-commerce companies enable variety, quality, and the provision of essential information regarding sex toys in India. Websites like Snapdeal, thatspersonal.com, and besharam toys. in, love treats. in, and others are instances of this type. The lack of clear guidelines and conflicting opinions among lawmakers, health experts, and cultural critics have only added to the ambiguity surrounding this topic. This article aims to dissect and analyse the legal status of sex toys in India, addressing the foundational laws, judicial interpretations, societal perceptions, and recent developments that shape this contentious issue. By scrutinising these aspects, the article seeks to provide clarity on whether sex toys are legally permissible in India, the factors influencing their legality, and potential future trajectories.

SEX TOYS: AN ETHICO-LEGAL CONUNDRUM

Sex toys, manual or electrical, are objects used to enhance sexual pleasure by providing the required stimulation. Employed as means of sexual gratification, the sale and purchase of sex toys is morally as well as legally controversial in India. According to an analytical survey titled, “India Uncovered: Insightful Analysis of Sex Products Trends in India” conducted by ThatsPersonal.com, a sexual health and wellness product retailer, a sixty five percent rise was recorded in the sale of sex toys when people were compelled to stay indoors during the lockdown owing to Covid in the first half of 2020. The buyers were both men as well as women and belonged to metropolitan cities as well as small towns. Boom in E-commerce has brought the sex toy industry, out from clandestine operations in dark alleys to our living rooms. The industry which was hitherto in a nascent stage is booming and all set to go local. China accounts for almost seventy percent of worldwide production of sex toys. India, which is a fast growing market for such merchandise is set to change this by several local manufacturers prepped to jumping onto the bandwagon of sex toy production.

This industry was held back for so long as sex toys were proscribed by moral strictures and were cultural anathema. Muddled interpretation of archaic laws further augmented the perplexity associated with sale and usage of sex toys. As on date, there is no legislative provision in India that expressly bars or permits sale of sex toys. However, Section 292 of the Indian Penal Code can be invoked to restrict the sale, exhibition, advertising, import or export of sex toys on the ground of obscenity. Under the law a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. The law provides higher punishment if such obscene objects are sold, let, or circulated to a person below 20 years of age.

An English Law Judgment (Hicklin 1868) further reaffirmed by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (1965) is used as the touchstone to determine obscenity; and accordingly any publication or object is deemed obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences. This has to be seen on the basis of the overall impact that material may have on the social morality of contemporary society without impinging on an individual’s constitutional freedoms. What is punishable under law is ‘obscene behaviour’. However, determining what is obscene is a subjective exercise depending upon the diffuse concept of morality. In the case of Kavita Khumbhra v. Commissioner of Customs (port), a 2011 judgement by Calcutta HC, certain goods (sex toys/adult games) that were imported by the appellant for being further sold to adults only, were confiscated by the Additional Commissioner of Customs by applying charges of obscenity under Section 292(1) of the Indian Penal Code, 1860. The Court held that the order of confiscation was not sustainable in law. In light of the morals of present day society the goods in question cannot be called so obscene as to render them prohibited articles.

In the absence of clear cut laws, there is no uniformity in our approach. In 2018 Indian patent office had invoked provisions relating to ‘Obscenity’ and Section 3 (B) of Patents Act (contrary to morality) to reject a Canadian firm’s plea to patent a vibrator. Earlier sex toys were sought to be prohibited on grounds of being used for illegal purposes as carnal intercourse against the order of nature (sodomy) was totally prohibited by virtue of Section 377 IPC. In September 2018, a five-judge Constitution Bench of the Supreme Court decriminalised consensual homosexual sexual activity among adults (Navtej Singh Johar v.UOI).

Right to sexual privacy is an integral part of Right to Privacy. Law has no business to intervene with what adults choose to do in private. But legal regulation is essential where the acts are non-consensual. Usage of sex toys by minors may be prohibited in the interests of their health. For adults, the non-consensual usage of such toys is punishable under Section 376 (digital rape) and Section 377 of the IPC. At the risk of sounding cliché I would like to reiterate that India is the land of kamasutra and Indians have been a sexually liberated lot. In the 21 st century, the new morality is more subjective and individualised. It is not necessarily bound by marital ties, honours the concept of consent and has pleasure intrinsic to it. People across the globe have embraced this new morality and we are no different.

SALE OF SEX TOYS IN INDIA

Adult lifestyle goods have long been offered on the black market, frequently by street sellers. Sex toys are so readily available and simple to locate that one might easily find them in the Palika Bazaar in Delhi or the Crawford Market in Mumbai. In the last few years, the e-commerce market for adult or sex toys has experienced a boom due to the wide variety of toys available. Global Sex Toys market to reach $54.6 Billion by 2026. The global market for Sex Toys was estimated at US$35.1 Billion in the year 2020, so this is not a new phenomenon. In the absence of their customary escapes through sexual releases, the epidemic may have also driven individuals to accept their sexual urges and embrace self-pleasure. Sales of sex toys increased by 65% during the pandemic-related countrywide lockdown.

Numerous studies published in online peer-reviewed publications examined the relationship between the pandemic and sexual behaviour, demonstrating how people changed their sex practices in a society where physical contact with another person posed a health risk. Adult items are big business in India, whether it’s because of rising knowledge of sexual wellness, pandemic-induced loneliness, or (and this is most likely) a combination of both. The first sex toy store in India opened in Goa’s Calangute under the name Kama Gizmos, but it closed down two months after opening due to a lack of a trade license. This proves once more that e-commerce platforms have a monopoly on the sex toy market and are the only options for consumers to satisfy their needs.

SALE OF SEX TOYS IN OTHER COUNTRIES OF THE WORLD

Comparing the sale of sex toys and its legality in the following countries belonging to the different continents of the world: The Red Light District in Amsterdam, Netherlands, where the sex business operates openly and without moral connotations, is well-known. The sole restriction on the selling of sex toys to minors applies to the nearby sex stores, which are also lawful. Despite having a robust sex business, Thailand continues to ban the selling of sex devices. This is so that they don’t violate the nation’s list of restricted things, which classifies them as obscene goods. Anyone found selling, purchasing, or in possession of sex toys faces a sentence of up to three years in prison, a fine of up to 60,000 Thai baht ($2,000), or both. Due to the perception that sex toys are “against the perspective of Thai society,” the government has maintained the prohibition on them. In Australia, the sex toy business is legal there, and in 2018 sexual wellness goods began to be subject to ISO (International Standardization Authority) safety regulations. In the UK, the sale of sex toys is allowed. To operate a sex store, or any location where sex toys, books, or films are sold, one must obtain a licence from the local government. In the case of the USA, various states and provinces have different laws governing sex toys. For instance, in Alabama, the sale and possession of sex toys are prohibited, except for purchases made for medical needs. The Texas Obscene Device Law makes it against the law to own more than six dildos. Similarly to this, the top court of New York state reversed the 2015 ruling and said in 2017 that it might limit the number of sex stores. Therefore, it is clear from the regulations that are now in place in nations like India, Thailand, and the USA, that the reason that sex toys are outlawed is due to their perceived obscenity. However, the sale of sex toys is not connected to public morals or obscenity in the UK, Australia, or the Netherlands.

ABSENCE OF EXPLICIT BAN ON SALE OF SEX TOYS IN INDIA

There is no explicit law in India that either prohibits or explicitly regulates the sale of sex toys. However, the sale of such products can be said to be regulated primarily by obscenity laws, followed by laws which generally regulate quality of goods and protect consumers’ interests. No product category explicitly describes products that can be generally identified as falling under the class of products as sex toys, including no explicit Harmonized System of Nomenclature (HSN) classification.

1. OBSCENITY LAWS: While there are no laws directed to specifically regulate product categories such as sex toys, there are several other laws which require due consideration and assessment. Some of the laws and their applicability are described as under:
2. INDIAN PENAL CODE: There is prohibition on sale of ‘obscene’ goods in India. The import, sale, distribution of obscene objects may invite punishment of imprisonment up to two years along with fine under the provisions of Indian Penal Code, 1860 (IPC). However, what can be said to be ‘obscene’ goods is not unequivocally clear in law and it can always be perception based. An object is treated as obscene if it appeals to the prurient interest, tends to deprave, and corrupt persons, or is lascivious. However, the moot question is whether sex toys by themselves are obscene goods or not. In many jurisdictions such as the United States of America, United Kingdom, and Australia even though there are laws surrounding obscenity, sex toys are not considered to be obscene by themselves. In other words, sex and obscenity are not synonymous with each other. However, the lines between sex and obscenity, from a legal perspective, are blurred in India. It is a fact that the novel ‘Lady Chatterley’s Lover’ by D.H. Lawrence was banned in India in 1964 for being obscene, whereas in the UK, the same book was allowed to be published and was adjudged by the courts in 1960 as not being obscene. On the other hand, the judicial approach to obscenity is undergoing a paradigm shift in India. Indian courts have started applying a “Community Standard Test” acknowledging that notions of obscenity change with time and societal norms. Thus, it is quite possible that sex toys by  themselves may not be held to be obscene by Courts. In fact, the Calcutta High Court has explicitly held that sex toys are not obscene, and the law declared by the High Court of a state is binding on all authorities and tribunals of that state. Despite positive judicial developments, sex toys are still not openly sold in India. This may be because there are laws which regulate indecent representation of women.

3. INDECENT REPRESENTATION OF WOMEN ACT: The Indecent Representation of Women (Prohibition) Act, 1986 (IRW Act), explicitly bans any portrayal of women that is likely to deprave, corrupt, or injure public morality or morals. A violation of IRW Act may result in imprisonment up to 5 years and fine up to INR 1,00,000. The packaging, imagery and supporting literature of sex toys contains descriptions which may be considered ‘indecent’. This discourages public exhibition of the sex toys. The implementation on this law was apparent recently by the action taken by the Maharashtra Cyber Police against the over-the-top platforms such as Alt Balaji and Ullu, for streaming ‘indecent’ contents on the platforms.
4. INFORMATION TECHNOLOGY ACT AND GUIDELINES: In addition to the above discussed hurdles, the Information Technology Act, 2000, explicitly prohibits the publication or transmission of lascivious or prurient material in electronic form. This legislation defines such material as content that is sexually explicit or arousing in nature. In line with these provisions, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, impose a significant responsibility on intermediaries. They require intermediaries (online platforms that list sex toys) to not only prevent the hosting of obscene materials on their platforms but also to implement effective content removal mechanisms.
5. CONSUMER PROTECTION RULES: Furthermore, the sellers of sex toys and the online platforms listing such products are responsible for product details, images, and descriptions. The Information Technology Act provides a shield to the online platforms against third-party content liabilities, contingent on compliance with the Consumer Protection (E-Commerce) Rules, 2020. These rules place the onus on platforms to ensure sellers offer precise and truthful product information. This regulatory framework significantly influences the sale and marketing of sex toys in India’s e-commerce landscape, preventing misrepresentation and requiring accurate labelling and imagery to distinguish between sex toys and other items.

RECENT DEVELOPMENT AND FUTURE DIRECTIONS

Recent years have witnessed growing advocacy for sexual rights and freedoms in India, catalysed by social movements, legal challenges, and evolving public discourse. Activist initiatives and legal challenges have sought to challenge the stigma surrounding sex toys, advocating for legislative reforms and judicial reinterpretations. Proposed amendments to archaic laws and increased public awareness campaigns signal a shifting paradigm towards greater acceptance of sexual diversity and individual autonomy. However, challenges persist amidst resistance from conservative quarters and legal ambiguities, necessitating continued advocacy and legal reforms to secure comprehensive sexual rights in India. Despite the changing legal landscape and shifting societal attitudes towards sexual expression, challenges remain in destigmatizing the use of sex toys in India. Deep-rooted taboos, moralistic attitudes, and the fear of social censure often deter individuals from openly discussing or exploring their sexuality, including the use of sex toys. Additionally, the lack of clarity in the legal framework surrounding sex toys creates uncertainty for vendors and consumers alike, leading to a thriving underground market and potential risks associated with unregulated products. Education, awareness campaigns, and open dialogues are crucial in debunking myths and misconceptions surrounding sex toys and promoting safe, consensual sexual practices.

CONCLUSION

The legality of sex toys in India remains a contentious issue shaped by cultural conservatism, legal interpretations, and evolving societal norms. While global trends towards sexual autonomy and personal freedoms provide compelling precedents, India’s regulatory framework continues to reflect cautious attitudes towards sexual diversity and individual liberties. This research article has examined the historical, cultural, legal, and international dimensions influencing the legality of sex toys in India. By elucidating these factors, the article contributes to ongoing discussions on sexual rights, advocating for informed policies that balance societal values with individual freedoms.

In conclusion, the legal status of sex toys in India is a nuanced and evolving issue that requires careful consideration of individual rights, cultural sensitivities, and public health concerns. While the current legal framework may pose challenges for those advocating for the decriminalisation and regulation of sex toys, progressive judicial decisions and changing societal norms offer hope for a more inclusive and informed approach to sexual wellness. As we navigate this complex terrain, it is imperative to foster open conversations, respect diverse viewpoints, and work towards creating a supportive environment where individuals can explore their sexuality safely and responsibly. Only through a holistic understanding of the legal, social, and cultural dimensions of this issue can we move towards a more inclusive and equitable society for all.