In this article, Aseem Nandan of KIIT School of Law, Bhubaneswar discusses whether an e-commerce website in India can sell sex-toys or not.

Introduction

Sex toys are openly sold in India, however, it is unclear whether it is legal to do so or not. Products categorized as sex toys, may violate obscenity laws and fall within the grey area of law. In this article, we indulge in this conundrum.

Sale Of Sex Toys In India

For a long time, adult lifestyle products have been in the grey market, sold often by the street vendors.

In Delhi’s Palika Bazaar or Mumbai’s Crawford market, one could easily find sex toys as they are so accessible and easy to find. The last couple of years, there’s been an explosion in the e-commerce segment for sale of adult or sex toys varying from all kinds and types of them. According to the survey, most of the sex toys are bought by the male community in our country i.e. 65% whereas, only 35% are bought by the female community.

Section 292 – Law prohibiting the sale of sex toys

Display or exhibition of sex toys in an obscene manner violates the provision of Indian Penal Code on grounds of obscenity.

Section 292 of Indian Penal Code (IPC), 1860 deems the sale, advertisement, distribution and the public exhibition of obscene books, sketch, drawing or any other “obscene” object, illegal.

Obscenity is a criminal offence under Indian law which is punishable with imprisonment and fine both.

Do Sex Toys Fall Under Definition of “Obscenity”?

For any object to be considered obscene, it must be

• ‘Lascivious or appeals’ to prurient interests and
• Have a tendency to ‘corrupt or deprave.’

In 2011, The Calcutta High Court addressed the issue whether sex toys sold in India comes under the charges of “obscenity”. The Court held that the charges on obscenity cannot be held as they were not legally sustainable. Just because the toy brings out sexual desires, it cannot be labeled as ‘obscene’.

How Did It Happen: E-commerce Players Dragged To Court

One of India’s largest e-commerce player i.e., “Snapdeal”, was dragged to court in 2015 for selling different types of “Sex toys and accessories.” Delhi-based Supreme Court lawyer, Suhaas Joshi, filed a complaint saying e-commerce players were selling products which were “aiding or promoting gay sex.”

Joshi further said that he wanted to “test the limits of India’s stand on homosexuality and it’s laws” and stated that there was no clarity if such products were legal or selling of such products were legal.

The Snapdeal Case

In Snapdeal’s case, the court asked the police to immediately investigate the matter which was complained about and submit a report to the court.

• It’s a myth that there is any specific set of Indian laws defining ‘sex toys’. There are certain laws that govern ‘obscenity’ and the producers have to keep in mind when they are marketing the products.

Section 292 of the Indian Penal Code prevents the sale of any material or product that is ‘obscene’ in nature in India. But, no statement has been mentioned regarding the ‘Ban on Sex Toys in India’. No clear points have been mentioned or stated otherwise.

• As mentioned by the Indian laws, any individual who sells, distributes, publicly displays or has any obscene material in his/her possession, sketches, drawing, painting, or any obscene material which showcases ‘obscenity’, is punishable with both imprisonment and fine. Therefore, from the above- mentioned view, everything related to sex toys is banned by our so-called democratic government. Still, there is a list of Indian brands which sell various types of sex toys online. Many online Adult websites have been selling these various items in the nation and people have been actually buying them. Statistics show a rapid growth in the number of buyers for adult stuff in India over the last couple of years. The main thing that the retailers or sellers have to keep in mind is the marketing strategy in order to make sure that the products that they are selling are legal in every perspective and are under the guidelines laid down by the government.
• The complaint states that the website was condoning gay sex and was displaying obscene adult products by indexing vibrators and lubricants.
• India is seeing a silent sexual revolution. Men and women both are buying adult products and are experimenting with their sex life.

On The Other Hand

The Section 377 of the Indian Penal Code, which criminalizes different sexual activities “ averse the order of nature,” also comes into picture in the current scenario. As the act itself is illegal, the toy simply becomes an aid to the illegal activity as well. But, there is nothing to worry about as long as an individual is being private about it. There is no proper law regarding this. A lot of speculation has been around this issue and it’s rapidly increasing growth in India. ‘Sex Toys’ has a wider concept and has even complex importing and exporting policies.

Best Example Of An E-Commerce website selling sex toys

• ‘IMbesharam’, is a company which is currently operating imbesharam.com, which sells different types of adult ‘LIFESTYLE’ and sexual salubrity products. Products vary from sex toys, sex kits, edible lingerie, different types of lubricants, different flavours and types of condoms, vibrating rings, etc. online, and the company asserts that they compile with all of the existing rules and regulations of selling sex-toys online in India.
• The co-founder (Raj Armani), said to the newsstands that, “they’re ready to switch the operations if the laws of the nation demand them to do so.”
• They gave this above statement after a report filed by a newspaper stating the websites, imbesharam.com, thatspersonal.com and ohmysecrets.com and stating that they are under the government scanner for “openly promoting and selling objectionable sex products unlawfully and displaying undesirable content on their particular websites.”
• The riveting point here is that IMbesharam, which focuses to be known as the ‘Retailers of the Kama Sutra’, is a US company which has been selling different types of sex toys in India past its e-commerce gateway. It has stated that it also sells Adult sex products through other e-commerce gateways.
• Laws in India are speculative regarding the sale of different types of sex toys and products. The major concern is associated with different types of ways that these products are being sold, demonstrating redolent pictures and graphics elucidation. “OBSCENITY” is a crime which is punishable in India both with imprisonment and fine.
• Different startups are searching for a juridical alternative to bringing different types of sex toys in India.

Some Frequently Asked Questions

Is keeping sex toys at home an offence?

No, keeping sex toys at home is not an offence unless the individual is private about its usage and functioning. Every individual has his/her private life and hence, they have the full right to do whatever they want to under those boundations.

Can you import sex toys? Is it legal?

The main question arises here is how to classify which sex toys should be allowed for import and which should not be. From what I know, the obscenity laws of our country i.e. IPC 292, 293 and 294 are speculative when the issue comes regarding the import and sale of sex toys. According to the Calcutta High Court, any product or manual suggesting any kind of stimulation for the enjoyment of sex, if not expressed in any dishevelled language, cannot be stated as obscene. So, yes import of sex toys is legal only if it doesn’t contain any obscene language or objectionable pictures.

Selling of sex toys – Whether any provision of Information Technology Act is attracted?

Yes, a provision of Information Technology Act is attracted. Section 67 of the Information Technology Act bestows publishing of information which is obscene in any electronic form. The section states that whoever publishes or disseminate in electronic form any material which is salacious or tend to bestialize an individual shall be punished on the first conviction with imprisonment which may prolong to five years and with a fine which may extend to one lakh rupees and in the instance of second conviction with imprisonment which may prolong to ten years also with a fine which may extend to two lakh rupees.

How to report instances of sex toys being sold online?

The Ministry of Information and Broadcasting (Ministry of I&B) is a branch of the Government of India which is apotheosis body for the establishment and legislation of the rules and regulations and laws which are analogous to information, broadcasting, press and the films in India.

The Ministry is responsible for all the report related to instances of sex toys being sold online. If an individual wants to report any instance of sex toys being sold online he/she could directly contact the Ministry of I&B via phone or via email. The Ministry of I&B will revert back in 24 hours.

Conclusion

The conclusion which can be derived from the above-discussed article is that selling of sex toys manually through street vendors is prohibited and punishable whereas, selling of sex toys online is not banned and punishable as long as the retailer is keeping in mind the marketing strategy and the rules and regulations laid down by the government i.e., ‘Obscenity’ of any kind or manner should be prohibited whether it is in graphical form or physical representation. Laws regarding the online selling of sex-toys in India are speculative.

India is a developing country, both economically and socially and is rapidly pursuing the western culture and its following. Hence, online selling of sex toys is not banned in India.

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References:-

1. https://economictimes.indiatimes.com/industry/cons-products/food/hotels-can-charge-more-for-bottled-water-supreme-court/articleshow/62044477.cms
2. http://www.business-standard.com/article/current-affairs/hotels-restaurants-sell-water-food-for-more-than-mrp-what-you-must-know-117121300212_1.html
3. http://www.thehindubusinessline.com/companies/Getting-kinky-Indians-are-ordering-sex-toys-online/article20830246.ece
4. http://www.huffingtonpost.ca/petra-zebroff/safe-sex-seniors_b_4761831.html
5. https://qz.com/355528/startups-are-searching-for-legal-loopholes-to-bring-sex-toys-to-india/
6. https://www.reddit.com/r/india/…/snapdeal_taken_to_court_for_selling_sex_toys/