ENVIRONMENTAL CHALLENGES BEFORE MODI GOVERNMENT: AN ANALYSISOctober 4, 2019
In recent years, the representation of females, as well as the queer desire and sexuality in film and television, has received widespread critical acclaim and public accolades. It is a welcome change and a step forward in breaking the taboo surrounding sex (especially the non- straight male dimension). One recurrent and prevalent way of breaking the taboo surrounding sex in mass media is the portrayal of characters using sex toys. The Cambridge Dictionary defines a sex toy as ‘an object that people use to increase their sexual pleasure’. Thus, sex toys can be categorized as a product used to enhance sexual pleasure. Although sexual pleasure remains a subject of stigma in the country, there is a growing worldwide acknowledgement of sexual pleasure as a basic human need. Additionally, the contemporary understanding of sexual health also seeks to encompass the sexual pleasure aspect. The World Health Organization discusses the possibility of having a pleasurable sexual experience in its well-known definition of sexual health.Therefore, it is an obvious corollary that the use of sex toys for its intended purpose is in consonance with the positively emerging idea of ‘a right to health’. However, this understanding is a far cry from the interpretation of government organs and resultant perception of the public in the country. An example of the afore-mentioned contrast could be the ambivalent representation of sex toys in mass media. Hardly any of the recent buzzes making films, shows etc. have taken up the exercise to show on screen, how and where sex toys have been obtained by the characters. The entry of sex toys into the narrative is like a sneaky mistress, often inviting disdain and humiliation for their users. Such treatment is likely to create an impression of restriction and illegality in the minds of the viewer. A more staggering example of vexatious reception of ex toys is by an organ of the government itself.
It was only last year that India’s patent office rejected a patent for a sex toy on the grounds of being morally degrading. The patent office incorrectly remarked that “The law views sex toys negatively and has never engaged positively with the notion of sexual pleasure”. Such a view of an office of the government on the subject matter is a testament to how the perception of the legality of the subject matter is coloured by a notion of morality. Morality here refers to the values and opinions of persons in a particular society regarding acceptable conduct, i.e. the notion of societal morality. However, it is important to understand that what the law prefers to take into regard is the idea of constitutional morality. According to the Apex court, “only constitutional morality and not social morality can be allowed to permeate rule of law”.Thus, any justification for actions on the ground of morality needs to be based on what the Constitution holds as appropriate for the society and not the restricted take of individuals. The fact that the office relied on Section 3(b) of the Patents Act (as amended) to justify its reasoning of how sex toys are seen as morally degrading by the law is also a glaring example of the regressive interpretation of the law. Section 3(b) of the act does not consider as an invention, any product, “the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment”. Whether or not sex toys fall within the ambit of restriction under the section can be analyzed in the light of the intended purpose and common usage. Interestingly, the vibrator was invented by respectable Victorian doctors as a device for female patients to help them achieve orgasms. Even in the parochial Victorian age, these devices were regarded as reputable medical instruments. The primary purposes for which sex toys are used today are masturbation, stimulation and contraception. To say that any of the above-mentioned activities are contrary to public order or morality is not just far-reaching but also absurd. As a matter of fact, doctors in current times are increasingly counselling couples to use sexual wellness devices for furthering intimacy. Masturbation has recognized health benefits and to include the contraceptive purpose of sexual wellness products within the ambit of the section would be absolutely ironic. It also wouldn’t be incorrect to formulate a feminist argument on the lines that, the change in flawed legality knowledge of like products may actually have an afar-reaching positive impact. If people are well informed about the legality of the product, it will enhance acceptance and accessibility. The informed use of sex toys in the society can help in encouraging sexual liberty and autonomy of women. It can also provide for a harmless outlet for sexually repressed individuals and hence reduce chances of the truly immoral and unethical outlet of such repression in the form of crime. It would be far better for society if sexually deprived and anxious individuals satisfy their sexual desire by-products intended for the purpose, rather than to objectify and exploit another being to gratify them. Further, preposterously and in complete indifference to what the future was going to hold, the patent office also stated that “Article 377 bans any sort of sexual intercourse that is termed to be unnatural biologically. Therefore, sex toys (sexual stimulation device), also known as adult toys are banned on the premises that they lead to obscenity and moral deprivation of individuals.”. The referencing of Section 292 and 377 of Indian Penal Code by the office and the aforementioned reasoning is clearly fallacious and derogatory even more after the 2018 landmark Supreme Court judgment Navtej Singh Johar & Ors. v. Union of India, decriminalizing homosexual sex. The judgement made am imminent observation, 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 The reason why this particular activity of a government office is so noteworthy is because it reflects the state of legal unawareness and existence of a trend of pseudo-moral interpretation of the law in everyday life. Recognizably, the executive’s perception of the legality of sex toys is deeply flawed in this case. It is in clear ignorance of judicial opinion on the legality of such products. In the case of Kavita Phumbra v. Commissioner of Customs (Port), Calcutta, Calcutta High Court clearly expressed that the sale of certain articles to adults (which are meant for stimulating sexual activity) should not be considered to be on the wrong side of the law.
However, the most critical impediment in establishing a sense of legality of sex toys lies in the fact that the law in itself is not in complete acceptance of sex toys. There subsists a continued conundrum regarding the legal acceptance of such products in both juridical interpretation and statutory language. Since the overall legality of buying, selling, using and advertising has not been laid down in any court verdict, the stance of the judiciary appears to be in a quandary. This results in a continued apprehension in the minds of both buyers and sellers of such products. An example of uncertainty in the mind of the judiciary is when a case was filed with the metropolitan magistrate at Delhi’s Tis Hazari court by a Delhi based lawyer against e-commerce giant Snapdeal for selling sex accessories. The legality of the sale of the products was challenged on the grounds of violating Section 377 of the Indian Penal Code, along with other acts such as section 292, 292 A, 293 and 294 which prohibit obscenity in public. The immediate aftermath of the filing of this case was that the court ordered immediate investigating of the matter by the police and Snapdeal discontinued the sale of the products in question, for the time being. Although this is a pre-2018 Supreme Court judgment, decriminalizing homosexual sex and the case had no concrete outcome; Snapdeal eventually began selling the products again, but the apprehensive conduct of the court and Snapdeal is indicative of fear and confusion regarding the legality. The fact that the right to trade provided by Article 19(1) of the Constitution of the country was not even brought into the picture, speaks leaps and bounds about the complete absence of the necessary point of view in the legality debate.
Furthermore, the statues in themselves are somewhat condescending. Generally, when there is a restrictive law regarding the advertising of certain products, people would draw the conclusion that there is a dispute regarding its legality or that the product itself is harmful. Although the advertisements related to sexuality are deemed allowed, provided they are in line with the Indecent Representation of Women (Prohibition) Act 1986, the Drugs and Cosmetic Act 1940 and rules under the Cable Television Network Rules 1994, there are also provisions creating scope for misinterpretation. From a lay reading of Section 3 of the Drug and Magic Remedies (Objectionable Advertisement) Act (XXI of 1954), the advertisement of any drug intended for the purpose of maintenance or improvement of sexual pleasure is banned. In consideration of the wide meaning of the drug under the aforementioned act, including; “any article, other than food, intended to affect or influence in any way the structure or any organic function of the body of human beings or animals“, sex toys can be deemed to be falling within the purview. Hence, the advertisement of sex toys may be understood to be banned from the plain reading of the provision, although this is not what the law intends. When the constitutionality of the Drug and Magic Remedies (Objectionable Advertisement) Act was challenged in the case of Hamdard Dawakhana (Wakf) Lal v. Union of India and Others, the Apex court noted that the object of the legislation was to prevent self-medication. Interpreting the object in the context of sex toys is a particular task as sex toys can clearly not be regarded as prescribed drugs. The provision of this act creates deep lacunae with regard to the legality of sale and advertising of sex toys.
Thus, it can be said that there is hardly any legislation affording a clear picture of the legal position of sex toys and the existing laws and administrative conduct is discouraging. However, in the light of Apex Court decision emphasizing on right to life and privacy, there is sufficient reason to draw an affirmative conclusion. The ruling in Justice K.S. Putttuswamy (Retd.) and Anr. v. Union of India and Ors. affirms that the right to privacy, which is an established fundamental right can be extended to an individual’s right to ‘sexual privacy’. Hence putting, the aspect of sexual rights within the fundamental rights spectrum. There is no need to be afraid to, buy, sell, and use sex toys. It is absolutely legal.
 Navtej Singh Johar & Ors v. Union of India  WRIT PETITION (CRIMINAL) NO. 76.
 Kavita Phumbra v. Commissioner of Customs (Port), Calcutta  (1) CLJ (CAL) 157.
 Hamdard Dawakhana (Wakf) Lal v. Union of India and Others  AIR 554.
 Justice K.S. Puttaswamy v. Union of India  10 SCC 1
ABOUT THE AUTHOR
Pallavi Modi is a penultimate year student at National Law Institute University, Bhopal.
In content picture credit: Fotolia.com