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April 30, 2019

LAWS AFFECTING SALE AND USAGE OF ADULT TOYS IN INDIA

The market of Adult toys in India, though not officially, has been estimated to be around Rs. 10,000 Crore[1]. However, there have been several reported incidents of seizure by custom authority.[2] It is pertinent to note that there are no regulations that would directly give authorities any power to do so as the use and sale of adult toys in India is not per se illegal. Even Ministry of Corporate Affairs issued ITC-HS Code list does not give explicit acknowledgment of any articles related to adult/sex toys, pornographic articles etc.[3] Subsequently, it is not mentioned in restricted items list neither in Schedule 1 (for import) nor in Schedule 2 (for export) of ITC (HS) Classifications of Export & Import Items. However, there are few laws through which these authorities drive their power to restrict such goods. This blog would be discussing few of the archaic laws holds an effect on usage of adult toys in India. Further, constitutional perspective after the recognition of right to privacy is discussed.
Central Government can bring a notification under Section 11(1) of the Customs Act, 1962 (the Act) to prohibit the import and export of items based on the purpose mentioned in the clause (2) of the section. One such purpose is ‘maintenance of public order and standards of decency or morality’[4] Under Section 11(1), the Central government brought a notification in 1963 wherein it prohibited import of ‘any obscene book, pamphlet, paper, drawing, painting, representation, figure or article’[5]. Interpretation of figure and article is wide enough to include toys within this rule.
Moreover, Section 111 of the Act gives power to confiscate improperly imported goods, which also includes goods restricted under ‘any other law for time being in force’.[6] Similarly, the definition of ‘prohibited goods’ also include items prohibited under ‘any other law’.[7] Therefore, restriction is also imposed under Section 292 of the Indian Penal Code, 1860 (IPC) which prohibits sale of ‘obscene’ goods. Indian authorities have regularly considered adult toys as obscene and immoral. One of such incident was in 2018 wherein patent for ‘sexually stimulating vibrator’ was denied on the ground that it was contrary to ‘public order and morality’ under Section 3(b) of the Patents Act, 1970.[8] In addition to this, there are few other archaic laws such as the India Post Office Act, 1898 which prohibits post of ‘any indecent or obscene printing, painting, photograph, lithograph, engraving, book or card, or any other indecent or obscene article’[9]
Therefore, a lot depends on the idea of obscenity that administrative authorities possess. Some clarity on this term is given by division bench of Calcutta High Court in the case of Kavita Phumbhra v. Respondent: Commissioner of Customs (Port)[10]. The case was pertaining to confiscation of certain articles by Customs Authority on the ground of obscenity under Section 111 of the Act read with Section 292 of the IPC. The Court observed that the authorities failed to consider that where ‘a certain goods were to be sold to a certain section of the population i.e. the adults in the present case, they were expected to conduct themselves in a responsible and adult manner’. Therefore, goods that are specifically intended for the use of adults should not be obscene specifically when consumption is private in nature.  
Moreover, after the judgment of Hon’ble Supreme Court in the case of Justice K.S. Putttuswamy (Retd.) and Anr. v. Union of India and Ors.[11], such restrictions might also interfere with individual’s right to ‘sexual privacy’. In Navtej Singh Johar & Ors. v. Union of India[12], the Court has noted that human sexuality cannot be defined narrowly in terms of its function as a means to procreation and that the constitution protects the fluidities of sexual experience.[13] Although, the context in which the Supreme Court has recognized the right to ‘sexual privacy’ in both the judgments along with Joseph Shine v. Union of India[14], is of person’s right to choose his/her partner. However, the term itself holds a wide interpretation. Such restriction somewhere flows from the same idea that sexual activities that do not result in procreation are against the ‘order of nature’, which the Court admitted, was the basis of criminalizing homosexuality[15]. Therefore, restriction on such goods meant for private consumption may infringe a person’s right to sexual privacy.
It is important to mention that the restriction, which can possibly be made, is based only on the grounds of decency and morality. However, even if we were to look from the medical perspective, there are plenty of evidences that adult toys have positive affect on health.
For example, in the USA, use of genital vibrator is allowed under law for therapeutic use.[16] Subsequently, it is widely recommended by clinicians for medical purposes in the USA.[17] However, if we were to dig deeper from this perspective, it becomes complicated. Although usage of such articles is beneficial for medical purposes[18], there have been studies that unregulated market can have negative impact on health.[19]
In India, there is no law per se which would regulate adult toys in the market and medical regulation is too remote imagination. As of now, after the recent Supreme Court rulings recognizing sexual privacy, especially in Navtej Singh case (supra), the restriction based on ‘obscenity’ stands weak and should not be a ground in order to maintain ‘public order and morality’.
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REFERENCES

[1] Ancy K. Sunny, Why it is a good time for sex and adult toys in India, https://www.theweek.in/leisure/lifestyle/2019/03/28/why-it-is-a-good-time-for-sex-adult-toys-india.html, last visited 07/04/2019.

[2] Sunitha Sekar, Deepu Sebastian Edmond, A Curious game of cat and mouse revolving around adult toys, The Hindu (16 Feb., 2018).

[3] http://www.mca.gov.in/XBRL/pdf/ITC_HS_codes.pdf.

[4] § 11(2), Customs Act, 1962.

[5] Notification No. M.F. (D.R.) No. 41 dated 1st February, 1963.

[6] § 111(d), Customs Act, 1962.

[7] § 2(33), Customs Act, 1962.

[8] Decision for Application Number 4668/DELNP/2007 filed on 18/06/2007, http://ipindiaservices.gov.in/decision/4668-DELNP-2007-35516/4668-delnp-2007%20refusal.pdf.

[9] § 20, the India Post Act, 1898.

[10]  2012(1) CLJ (CAL)157.

[11] W.P. (Civil) No. 494 of 2012.

[12] W.P. (Criminal) No. 76 of 2016.

[13] ¶ 66, Part F, Page 82, Ibid.

[14] W.P. (Criminal) No. 194 of 2017.

[15] ¶ 42, Part E, Page 52, supra note 11.

[16] 21 C.F.R. §884.5960   Genital vibrator for therapeutic use, https://www.ecfr.gov/cgi-bin/text-idx?SID=28170601129cfb606b92d53ede0bcfcd&mc=true&node=se21.8.884_15960&rgn=div8.

[17] Infra. Debby Herbenick, PhD, MPH,* Kathryn J. Barnhart, MPH,* Karly Beavers,† and Stephanie Benge, Vibrators and Other Sex Toys are Commonly Recommended to Patients, But Does Size Matter? Dimensions of Commonly Sold Products, J Sex Med 2015;12:641–645.

[18] Id.

[19] Emily Stabile, Commentary: Getting the Government in Bed: How to Regulate the Sex-Toy Industry, Vol 28 (2), Berkeley Journal of Gender, Law & Justice, 2013, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1318&context=bglj.

ABOUT THE AUTHOR

Vivek Pandey is an undergraduate law student at Symbiosis Law School, Noida. 

 

 

In Content Picture: The Daily Dot

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