Every time I disclose to someone that I co-founded a company that sells pleasure products, the first question I get is about the legality of the business — and rightly so. Even apart from the taboo surrounding anything to do with sex and sexuality in India, the pleasure business is a legal gray area. Google “Are sex toys legal in India?” and you’re likely to end up more confused than when you began. So I decided to apply my knowledge of law, gathered over 12 years as an attorney, to answering that question.
The laws around sex toys are supposedly covered under Section 292 of the Indian Penal Code and Section 11 of the Customs Act, 1962.
When importing such items, a person is at the mercy of the customs officer, who gets to decide whether a toy is obscene or not.
Section 292 of the IPC states that “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 it is likely to “deprave and corrupt.” The section goes on to say that anyone who sells, distributes, publicly exhibits, produces, possesses, advertises, profits from, imports, exports or conveys such items shall be punished with a prison term of up to two years, and fines up to 2,000 rupees. Second offenders face up to five years and 5,000 rupees.
The law exempts items and materials that are “in the interest of science, literature, art or learning” or kept for religious purposes. It also exempts ancient monuments and archaeological artifacts, which I’m sure will be a big relief for Indiana Jones.
Throughout the section, the language pertains only to visual and written depictions of “obscene” matters. How can sex toys be included in this definition?
When these provisions are cited in connection with sex toys, emphasis is placed on words such as “object,” for the purpose of including sex toys under its ambit. However, the very first principles of law oppose an interpretation such as this, and make it abundantly clear that the meaning of a word derives its color from items of a similar nature to the terms specified. Simply put, in interpreting the word “object” in the context of the law, the words around it in the specific provision must be considered. Doing so, we find that these all pertain to written publication, writing or painting. To extend this to include sex toys is an error apparent on the face of law and is wholly arbitrary and misplaced.
Further, the word “obscene” is not clearly defined or constant. The most common definition followed is the Hicklin Test. Laid down by the Queen's Bench in Regina v. Hicklin, this test of obscenity is based upon whether the “tendency” of the matter in question is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. In the absence of a clearer definition, a lot depends on an individual’s idea of what might deprave and corrupt someone.
When importing such items, a person is at the mercy of the customs officer, who gets to decide whether a toy is obscene or not. This could, by some stretch of imagination, still make sense if the toys resembled human organs, but if we are talking about silicone with a vibrating motor inside, can such an object be said to “deprave and corrupt?” The only thing that can be deduced from this is that even by a mere reference to sex, an object is deemed to be “obscene.”
Yet Indian courts have held time and again that the interpretation of statutes should be in consonance with the current and changing needs of society. With changing social values and norms, broader dissemination of knowledge, technological progress and more advanced audio and visual devices, perhaps some matters considered obscene 50 years ago are no longer considered as such. Acquisition of knowledge for enjoyment of sex through various means is not by itself a prohibited activity, provided it is not done through obscene language or pictures. Pleasure products are meant for adults and as such their importation for restricted sale to adults only should not be considered to be on the wrong side of the law.
Funnily enough, even though the Calcutta High Court has expressed this in no uncertain terms, the Customs Department across the country refuses to follow the principles laid down thereunder, so these products continue to be confiscated on a regular basis as they are automatically deemed to be “obscene.”
Interestingly, the view of the Customs Department — that anything remotely connected to sex is automatically obscene and hence liable to confiscation — also runs contrary to the position taken by the Supreme Court in recent times. The nine-judge bench of the Supreme Court in K.S. Puttaswamy & Ors. vs. Union of India ruled that the right to privacy and dignity is intertwined with the right to life and liberty. It further stated that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation and that this right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.
It is also important to note that, in Navtej Singh Johar & Ors. vs. Union of India, whereby the Supreme Court diluted Section 377 of the IPC to decriminalize same-sex relationships, it reiterated that majoritarian views and popular morality cannot dictate constitutional rights. The Court further stated that consensual sex is a matter of individual choice, and that human sexuality cannot be defined narrowly as a means to procreation.
In light of the above historical judgments, it is clear that what I do in my bedroom with another consenting individual is a matter of privacy, not to be governed by the state. So how can the state have the right to deny me the freedom to use sex toys in the privacy of my bedroom?
The current, erroneous interpretation of the word “obscene” not only takes away an individual’s right to do as they please, responsibly, in the privacy of their bedrooms, but also reiterates that the sole purpose of sex is procreation — the very interpretation that the Supreme Court in Navtej Singh purported to do away with.
In addition to respect for consensual sexual behavior and for individual sexuality, it is important to foster a society where individuals are unhindered in expressing love towards their partners. The law must be interpreted as per the requirement of changing times. The state has no business controlling the private lives of any citizen.
Shweta Sangtani is a litigating lawyer who has been practicing at the Bombay High Court since she graduated in 2010. She is also the co-founder and chief business officer of Sangya Projects, a India-based manufacturer of pleasure products.
