What is the Law on Sale of Sex Toys in India?

Adult toys in India are taboo, but despite this, there is a 65% increase in the sale of these products. 

E-commerce platforms may be a convenient way to buy such products, but these online platforms face legal challenges. 

In this Weekly, we will explore whether selling sex toys in India is legal. There is no explicit law in India which prohibits or allows the selling of sex toys in India. However, the sale, display, and advertisement of sex toys can be restricted if they are considered obscene. The import of sex toys can also be restricted under customs laws, which prohibit the import of goods deemed obscene or against public morals.

What is Obscenity?

Obscenity is a term that describes something considered highly offensive, particularly concerning sexual or excretory matters. It often involves material that is deemed morally shocking, disgusting, or indecent.

The definition of obscenity can be subjective and vary depending on cultural context, societal values, and legal interpretations. What is considered obscene in one society or time period may not be in another.

In Ranjit D. Udeshi v. State of Maharashtra (1965), the Supreme Court of India dealt with the issue of obscenity and freedom of speech and expression. For the first time, the Supreme Court interpreted the word obscene in the context of the Indian Penal Code. 

The case involved the book “Lady Chatterley’s Lover” by D.H. Lawrence, deemed obscene by the lower courts.

The court adopted the “Hicklin test” to define obscenity. This test asks whether the material tends to “deprave and corrupt those whose minds are open to such immoral influences.”

Laws Governing Obscenity in India

1. The Indian Penal Code (IPC)   

Sections 292 to 294 are the primary legal provisions dealing with obscenity in India. They prohibit the sale, distribution, and public display of obscene material, as well as obscene acts and songs in public places.

On 1st July 2024, The Indian Penal Code (IPC), enacted in 1860, was replaced by the Bharatiya Nyaya Sanhita (BNS) as the principal criminal code in India.

2. Bhartiya Nyaya Sanhita

The Bharatiya Nyaya Sanhita (BNS) addresses obscenity in two main ways:

• Public Obscenity (Section 296): This section prohibits obscene acts and songs in public places that annoy others.  The punishment is jail time up to three months, a fine of up to Rs. 1,000, or both.
• Obscenity Involving Children (Section 295):  This section deals with obscene material targeted at children.  It prohibits selling, distributing, or showing such material to children. The punishment is jail time up to three years and a fine.

3. The Indecent Representation of Women (Prohibition) Act, 1986

This Act specifically addresses the indecent representation of women in various forms, including publications, advertisements, and other media. It aims to protect the dignity and modesty of women.   

4. The Information Technology Act, 2000

This Act deals with obscenity in electronic form. It prohibits the publication or transmission of obscene material online, including through websites, social media, and other electronic platforms.   

• Section 67: This section addresses the publication or transmission of obscene material in electronic form. It essentially prohibits the online dissemination of content that is considered obscene, lascivious, or appeals to the prurient interest. This includes text, images, videos, and other forms of digital content.
• Section 67A: Deals with the publication or transmission of sexually explicit material in electronic form. This covers more explicit content than what might be considered simply “obscene” under Section 67.   
• Section 67B: Addresses the publication or transmission of material depicting children in sexually explicit acts, which is a particularly serious offence.

5. The Young Persons (Harmful Publications) Act, 1956   

This Act protects young people from harmful publications that may corrupt their minds or incite them to commit crimes. It restricts the publication and distribution of such material.   

6. The Cinematograph Act, 1952

This Act governs the certification and exhibition of films in India. It includes provisions for censoring or banning films that are considered obscene or violate other guidelines.   

7. The Cable Television Networks (Regulation) Act, 1995

This Act regulates the content broadcast on cable television networks. It prohibits the transmission of programs that are considered obscene or indecent. 

8. Customs Act, 1962

Section 11 of the Customs Act, of 1962, empowers the Central Government to prohibit the import and export of certain goods. 

It covers a broad range of reasons for prohibition, including (but not limited to):

• Protecting public morals (this is where obscenity prohibitions fall)
• Safeguarding national security
• Protecting the environment
• Preventing the spread of diseases
• Implementing trade policies

Legal status of online sales of sex toys in India

There is no outright ban on selling sex toys online in India, the legal situation is complex and involves navigating obscenity laws, customs regulations, and the IT Act. Sellers need to be aware of the potential legal risks and operate cautiously.

To know more about the Obscenity laws in India read our explainer here.