The sex toy world might be uncharted territory for you or you might have heard about them on a show or from a friend. You could have even come across sex toys being sold in Delhi’s Palika Bazar or Mumbai’s Crawford market in India. It’s only natural for you to wonder whether buying and selling sex toys is safe or not in India.
What does the law say?
Currently, no laws specifically ban the import or sale of sex toys but their display and exhibition may violate Indian laws on grounds of obscenity. However, Section 292 of the Indian Penal Code (IPC) 860 deems “THE SALE, ADVERTISEMENT, DISTRIBUTION AND THE PUBLIC EXHIBITION OF OBSCENE BOOKS, SKETCH, DRAWING OR ANY OTHER “OBSCENE” OBJECT, ILLEGAL”.
Obscenity is a criminal offense under Indian law punishable by imprisonment and a fine.
Naturally, the next question is, Do Sex Toys Fall Under the Definition of “Obscenity”?
For any object to be considered obscene, it must be
- ‘Lascivious or appeals’ to prurient interests and
- Have a tendency to ‘corrupt or deprave.’
In 2011, The Calcutta High Court addressed the issue of whether sex toys sold in India come under the charges of “obscenity”. The Court held that the charges of obscenity cannot be held as they were not legally sustainable. Just because the toy brings out sexual desires, it cannot be labeled as ‘obscene’.
One of India’s largest e-commerce players i.e., “Snapdeal”, was dragged to court in 2015 for selling different types of “Sex toys and accessories.” Delhi-based Supreme Court lawyer, Suhaas Joshi, filed a complaint saying e-commerce players were selling products that were “aiding or promoting gay sex.”
Joshi further said that he wanted to “test the limits of India’s stand on homosexuality and its laws” and stated that there was no clarity if such products were legal or selling of such products was legal.
The Snapdeal Case
In Snapdeal’s case, the court asked the police to immediately investigate the matter which was complained about and submit a report to the court.
- It’s a myth that there is any specific set of Indian laws defining ‘sex toys’. There are certain laws that govern ‘obscenity’ and the producers have to keep this in mind when they are marketing the products.
Section 292 of the Indian Penal Code prevents the sale of any material or product that is ‘obscene’ in nature in India. But, no statement has been mentioned regarding the ‘Ban on Sex Toys in India’. No clear points have been mentioned or stated otherwise.
- As mentioned by the Indian laws, any individual who sells distributes, publicly displays, or has any obscene material in his/her possession, sketches, drawing, painting, or any obscene material which showcases ‘obscenity’, is punishable with both imprisonment and fine. Therefore, from the above-mentioned view, everything related to sex toys is banned by our so-called democratic government. Still, there is a list of Indian brands which sell various types of sex toys online. Many online Adult websites have been selling these various items in the nation and people have been actually buying them. Statistics show rapid growth in the number of buyers for adult stuff in India over the last couple of years. The main thing that the retailers or sellers have to keep in mind is the marketing strategy in order to make sure that the products that they are selling are legal from every perspective and are under the guidelines laid down by the government.
- The complaint states that the website was condoning gay sex and was displaying obscene adult products by indexing vibrators and lubricants.
- India is seeing a silent sexual revolution. Men and women both are buying adult products and are experimenting with their sex life.
On The Other Hand
Section 377 of the Indian Penal Code, which criminalizes different sexual activities “ averse the order of nature,” also comes into the picture in the current scenario. As the act itself is illegal, the toy simply becomes an aid to the illegal activity as well. But, there is nothing to worry about as long as an individual is being private about it. There is no proper law regarding this. A lot of speculation has been around this issue and its rapidly increasing growth in India. ‘Sex Toys’ has a wider concept and has even complex importing and exporting policies.
Some Frequently Asked Questions
Is keeping sex toys at home an offense?
No, keeping sex toys at home is not an offense unless the individual is private about their usage and functioning. Every individual has his/her private life and hence, they have the full right to do whatever they want to under those boundations.
Can you import sex toys? Is it legal?
The main question that arises here is how to classify which sex toys should be allowed for import and which should not be. From what I know, the obscenity laws of our country i.e. IPC 292, 293, and 294 are speculative when the issue comes to the import and sale of sex toys. According to the Calcutta High Court, any product or manual suggesting any kind of stimulation for the enjoyment of sex, if not expressed in any disheveled language, cannot be stated as obscene. So, yes import of sex toys is legal only if it doesn’t contain any obscene language or objectionable pictures.
Selling of sex toys – Whether any provision of the Information Technology Act is attracted?
Yes, a provision of the Information Technology Act is attractive. Section 67 of the Information Technology Act bestows the publishing of information that is obscene in any electronic form. The section states that whoever publishes or disseminates in electronic form any material which is salacious or tends to bestialize an individual shall be punished on the first conviction with imprisonment which may prolong to five years and with a fine which may extend to one lakh rupees and in the instance of second conviction with imprisonment which may prolong to ten years also with a fine which may extend to two lakh rupees.
Does the Right to Privacy protect the buying and selling of adult toys?
In the case of Justice K S Puttaswamy (Retd) v. Union of India, it was stated that:
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation.
“[I]t is privacy which is a powerful guarantee if the state were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of family life, and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”
This means that what happens in the private space of an individual, outside the purview of public scrutiny should remain untouched by state interference.
In KavitaPhumbhra v. Commissioner of Customs (Port), the High Court of Calcutta while adjudging the legality of certain products stated that:
“Regard to the prevailing social mores and standards of morals in our country the goods and items do not reflect anything obscene. Merely because the rules of some of the games may have an erotic and aphrodisiac content or may have a titillating effect for arousing sexual desires these items, without anything more, cannot be labeled as obscene. The rules of the game have not employed any offensive language. In our opinion, an article or instruction suggesting various modes for stimulating the enjoyment of sex, if not expressed in any lurid or filthy language, cannot be branded as obscene. If that not be so, books like Kama Sutra should also be banned on the charge of obscenity as this ancient Sanskrit treatise on the art of love and sexual techniques also candidly contains various instructions for heightening the pleasures of sexual enjoyment.”
Although there is no specific law prohibiting the sale of sex toys, sex toy sellers have to keep in the mind the obscenity clauses under Indian law. The normalizing conversation around healthy self-pleasure may help us all explore ourselves in a shameless healthy environment. After all, we are in the land of Kamasutra and Khajuraho caves.