What are Sex Toys?
Sex toys are such objects, which may be electronic or manual, which is designed to provide sexual stimulation and heightened sensuous pleasure by employing means of sexual gratification and a mechanism of creating a state of sexual novelty. Planned Parenthood describes sex toys as such objects which people use to have more pleasure during sex or masturbation.[1]
The sale and use of sex toys fall under a moral and legal grey area thereby making it controversial. However, according to a survey[2] titled, “India Uncovered: Insightful Analysis of Sex Products Trends in India” there was a 65% rise in the sale of sex toys when people were forced to remain indoors over the first six months of 2020.[3]
What is The Legality of The Sale of Sex Toys in India?
The reason why the sale and use of sex toys in India are considered to be in a lego-ethical grey area is that there is neither any statute nor any legislative provision which prohibits or permits the use and sale of sex toys. However, Section 292 of the Indian Penal Code, 1860 (IPC) deems the sale, advertisement, distribution and public exhibition of any obscene books, sketches, drawings, or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interests.
The question of whether obscenity through such acts may be deemed as lascivious or prurient is subjective and dependent on the facts of the case rather than an objective test. In the landmark ruling of Aveek Sarkar v State of West Bengal[4], the Supreme Court noted that the historic “Hickin Test” which was used as the benchmark to judge the instances of obscenity was flawed. The Apex Court, in its ruling, held that the “criterion of obscenity of any photography, book, or article, must be done through the contemporary mores and national standards and not the standards of a group of susceptible or sensitive persons.”
Why Is It An Ethico-Legal Taboo?
In the aforementioned section, it has been seen how legislatively, the sale and use of sex toys can be prohibited if the facts and circumstances categorise it as lascivious and/or prurient. Regardless of the prevalence of the provision, the sale of sex toys has skyrocketed in recent years with more people becoming aware of its use and usefulness. E-commerce platforms are branding these sex toys as products of health and well-being, thereby evading any direct or prima facie legal lacuna.
However, in 2015, a practising lawyer from Delhi filed a complaint against this very sale of sex toys under the garb of health well-being products tagged as, “massagers” usually by the E-Commerce platform Snapdeal. The complaint mentioned that his issue was not associated with ambiguous marketing but rather with the abetting of prurient and homosexual carnal activities.[5]
Sale and Use of Sex Toys as read with The Fundamental Right to Privacy
Article 21 of the Indian Constitution guarantees the Fundamental Right to all Indians a right to life and dignified liberty. Amongst its various unenumerated rights, or such rights which are not specified in the Article but are incorporated through various judgements over the years, the right of privacy and safety was one such unenumerated right after the foundation was laid down in the case of Justice K S Puttaswamy (Retd.) v Union of India stating[6] that, “Fundamental Right to Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.”
The landmark judgement also emphasised that the right to privacy is a powerful guarantee which preserves the sanctity of marriage, the liberty of procreation, the choice of family life and the dignity of being.
It has thus been held by proponents and advocates of liberty and Fundamental Rights for the people to partake in using objects of sexual pleasure that the judgement paves a clear way for the right to privacy being an inalienable right, irrespective of one’s sexual orientation and right to privacy in the activities undertaken in the bedroom. They should not be anyone’s business of concern.[7]
In a landmark judgement on the question of legality and morality of the sale and use of sex toys in India, the High Court of Calcutta held in its judgement of Kavita Phumbhra v Commissioner of Customs (Port)[8] which dealt with confiscation of certain articles by the Customs Authority of Calcutta on the ground of obscenity, the Hon’ble Court upheld the clause enumerated in the Fundamental Rights of the Constitution and stated,
“Regard being had 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 labelled 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.”
The Way Forward
It is well established that the market for sex toys in India is a grey area both legally and ethically. While there must be a regulation on the sale of toys purely as a precaution against any unlawful means of engaging in sexual activities, the Indian legislature can take cognisance of the issue from the international market where the sale and use of such goods is advised and encouraged by clinicians and medical practitioners for better therapeutic wellness and how an unregulated market can worsen the overall health and well-being of the populace
Conclusion
The facts and circumstances stated above make it clear that the path towards accepting a society where people use certain objects for their personal and sexual pleasure is not only a question of law but also a question of morality and ethical acceptance. While the Fundamental Right to Privacy law allows everyone to partake in activities which are personal and private without the interruption of or denial from any other person or the State, however as it has been seen in the complaint filed against the e-commerce giant Snapdeal for selling sex toys under the garb of personal welfare products, the society would require an intellectual awakening to accept the myriad ancillary forms of having carnal relationships with people regardless of their sexual orientation and also to engage in activities of personal gratification using the electronic or manual sex toys which, as long as do not harm any other person should be looked at purely as a means to achieve an end and not the end itself.[9]
[1]Planned Parenthood, https://www.plannedparenthood.org/learn/sex-pleasure-and-sexual-dysfunction/sex-and-pleasure/sex-toys (last visited Nov. 7, 2022
[2] Thatspersonal, http://www.thatspersonal.com/research-report-india-uncovered-2020.html (last visited Nov. 7, 2022)
[3] Vageshwari Deswal, Sex Toys: An Ethico-legal conundrum, TOI, Mar. 16, 2021
[4] (2014) 4 SCC 25
[5] Manu Balachandran, Snapdeal has just been taken to court for selling vibrators, Quartz, Feb. 25, 2015.
[6] (2017) 10 SCC
[7]Saumya Srivastava, Right to Privacy judgment should help us get rid of legal tangles and taboo on the sale of sex toys in India, The Leaflet, (Nov. 08, 2022, 7:08 PM) https://theleaflet.in/right-to-privacy-judgment-should-help-us-get-rid-oflegal-tangles-and-taboo-on-the-sale-of-sex-toys-in-india/
[8]2012(1) CLJ (CAL) 15
[9] Emily Stabile, Commentary: Getting the Government in Bed: How to Regulate the Sex-Toy Industry, Volume 28(2), Berkley Journal of Gender, Law and Justice, 2013, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1318&context=bgl
