As law is constantly evolving to reflect the changing times, legislators are unable to foresee every problem that might arise and pass laws to address all its facets. One such legal limbo is the sale of sex toys in India.
There exists no concrete categorization or demarcation under applicable laws for products that may fall under the category of “sexual wellness” or “sex toys”. The aforementioned terms have not been defined by any applicable regulations, however, the following regulations relating to ‘obscenity’ may govern such products to some extent:
The Indian Penal Code, 1860 penalizes selling, distributing, publicly exhibiting or in any manner circulating any obscene figure or object. The term 'obscenity' is defined as anything that is lascivious or appeals to the prurient interest or is something that tends to deprave and corrupt persons.
The Information Technology Act 2000 similarly forbids publishing or transmitting in electronic form any information that is 'obscene' in nature.
The indecent representation of women in any form in any advertisement relating to sale of any product or otherwise may attract penalties stated in Indecent Representation of Women (Prohibition) Act, 1986.
Hence, the advertisement or sale of any ‘obscene products and information' is prohibited under various regulations. Having said that, the meaning of the word, “obscene” is unclear and has not been construed in strict terms. It is subject to interpretation, based on the peculiar facts of each case.
While there is no clarity on products which amount to sex toys or sale of such products, it is also pertinent to note that there is no specific law in India that forbids the import of such products. The Customs Act of 1962, however, allows for the confiscation of any products that are prohibited by any other applicable law in force and the custom authorities have the discretion to stop or seize any products that they deem to be obscene.
Recently, the High Court of Calcutta in the case of Kavita Phumbhra v. Commissioner of Customs (Port)[1] observed that articles stimulating the enjoyment of sexual activities cannot be adjudged as obscene, provided they are for sale to adults and such sale is not done through obscene language or pictures. Thereof, it may be interpreted to mean that sex toys do not amount to obscenity.
Furthermore, the Supreme Court in the case of Rajendra Prasad Gupta v. Prakash Chandra Mishra & ors.[2], placed reliance on the earlier judgments of the High Court of Allahabad in the case of Raj Narain Saxena v. Bhim Sen & ors.[3] and Narsingh Das v. Mangal Dubey & ors.[4] and observed that prohibition cannot be presumed as a matter of general principle. Every procedure is to be understood as permissible till it is shown to be prohibited by the law. The general rule of interpretation is that the courts shall assume that an act is permitted unless expressly prohibited, and not the contrary (prohibited unless expressly permitted).
Placing reliance on the above rule of interpretation, as there exists no definitive law expressly prohibiting the buying or selling of sex toys in India, it may be assumed to be permitted.
Based on the review of the applicable laws, the following precautionary measures may be taken as a manner of abundant caution by e-commerce platforms if they intend to sell sex toys on their platform, until a concrete law to that effect is enacted in India:
A verification is undertaken by the platform to ensure that the users accessing such products are above the age of 18.
It is ensured that such products are not advertised in any manner that may be considered obscene in nature or such advertisement does not include any indecent representation of women.
Suitable disclaimers are added in the terms of use of the platform.