COMPARATIVE STUDY OF LAWS ON SEX TOYS IN INDIA & THE WORLD BY - AMAR KUMAR PANDEY & RISHI KUMAR SINGH
COMPARATIVE
STUDY OF LAWS ON SEX TOYS IN INDIA & THE WORLD
AUTHORED BY -
AMAR KUMAR PANDEY
& RISHI KUMAR SINGH
Abstract
According
to Pierre Eliot Trudeau, former Prime Minister of Canada, State cannot
interfere in the bedroom of its citizens. World Health Organization (WHO) and
the Declaration of Sexual Rights by stimulating items tells that people have
the right to sexual pleasure. Sexual Pleasure can be obtained in manual or
electronic form. Sex toys used by Indians are controversial. Various
legislations declare many types of sex toys as obscene. At present times, India
does not have any specific law that criminalizes the use of sex toys. However,
imports, export, and advertisement are considered to be obscene as per Section
292 of IPC. The state has no right to interfere in consensual sexual relations.
But if these devices are used without the consent of a partner, then legal
intervention is required. Countries like U.A.E, Maldives, Kuwait, etc. ban the
use of sex aid while the U.S.A partially allows the sale of sex aid. In this
paper, the focus was on throwing light on the admissibility of sex devices in
India and other parts of the world. Also, various cases regarding sex toys have
been explored. The idea of Indian obscenity law has been also put forth in the
paper. At last, suggestions have been incorporated into the paper.
Keywords: Obscenity,
sex- toys, market, privacy, patent, obscenity, etc.
Introduction
India
is a trailblazer in the field of sexual intentions, education, and
idiosyncrasy. Even the Kamasutra[1], the holy book of sex and
intimacy, has its birth in India. Indian culture is seen from the lens of
gender equality[2]
and sexual liberalism[3] from the past. Even in
ancient times, records point out that there is extensive application of sex
toys for the consumption of marriage in India. Couples used to indulge in
numerous sexual acts using various toys. Couples enhance their bond through
these toys. These toys were believed to be a tool to explore one another. Toys
were also used as a medium to explore one another and they helped to enhance
the bond between them. As per Google Trends, the search for “sex toys shops”
and methods to “make sex toys” has been constantly jumping up.
The former has climbed up in the search list
in former five years in contrast to the latter has come into the limelight
because of the unprecedented pandemic. However, sex toys are seen with a glass
of aversion in Indian Society. Sex Toys are considered to be taboo. People skip
these topics. These toys which are a medium of more sexual satisfaction during
sex are accused to be the bane of society. Doctors usually suggest these toys
to a person who suffers from sexual dysfunction or sexual incapacity 63.2%
portion of sex toys are recorded to be made or purchased by women globally.[4]
The
most known toys in Indian Society are vibrators. Just like the name this toy
vibrates and gives genital pleasure to the individual. Some people also call it
Personal Massagers. This toy is used by both men and women. It came in various
shapes and sizes. Some are big while some are small. The female vibrator is
used to put inside the vagina. Then vibration button is pressed to stimulate
sexual pleasure. Male genitals are usually placed in this vibrator and the
vibration button is pressed for enhanced pleasure. Still, the market share
suggests that women use this toy in large portion compared to men globally.
Dildos, Anal Devices, Sleeves, Genital rings,
pumps, Ben Wa Balls, Packers, Harnesses, etc. are some other sex toys available
in the market. Dildos are artificial penis that is placed in the mouth, anus,
and vagina. They usually used to make the connection with G- Spot. Indian
market is sensitive to these toys because of the stigma attached to these toys.
People prefer to purchase these toys from e-commerce websites. They prefer to
maintain the privacy of the purchased product. E-Commerce also gives a variety
of options regarding these toys which people hesitate to ask for in public
shops.
IMBeshram, Snap deal, Lovetreats,
Thatspersonal, and Kinkpin are some of the renowned sex toy e- companies[5]. These companies are
growing day-by-day still they are finding it difficult to raise funds to grow
further. This online shop points out that people are willing to purchase sex
toys but because of the taboo attached to sex, they cannot buy it from the
local shop or start any local shop.
India’s
Obscenity Laws And Sex Toys Market
In
India, sex toys of every kind cannot be purchased. Some toys are considered to
be obscene. This is the reason some toys like lifelike sex dolls fall under the
dark shadow of obscenity laws. Obscenity legislation further encircles sex toys
in dark clouds of uncertainty. One cannot say whether a toy is obscene or not.
This makes keeping and selling these toys illegal in India. As per §11(1)
of the Customs Act[6],
not all goods that have been imported into India can be used for the same
purposes as mentioned in § 2[7] of this same act. This
section is made to maintain decency and uplift the moral values in society. The
two terms “decency” and “morality” is nowhere defined in the act. Authorities
gain a broad sense of interpretation and can ban the import of anything that
they assume to be immoral and indecent.
Also,
all these toys have to pass through various obscenity legislations. §
292 of the Indian Penal Code points out those selling obscene things in public
places can attract punishment. § 292 points out that anything
lascivious, appeals to the prurient interest of a man or corrupts the mind of
youth can be considered to be obscene. The term “lascivious” and “prurient” has
not been defined in Indian Penal Code (I.P.C.), 1860, giving these two terms
broad interpretation. As per the Oxford Dictionary the term “lascivious” can be
defined as anything that arouses sexual desire. Similarly, the term “prurient”
has been defined as anything that increases the graph to those things that are
associated with sex.
The
verdict of the Calcutta High Court on July 29, 2011, in the landmark case
of Kavita Phumbhra V. Commissioner of Customs (Ports)[8] held
that every sex toy and adult game cannot fall under Section 292 of the Indian
Penal Code. The products that were purchased were accused to be sold to any
minor. They can be used for immoral or indecent purposes. The Calcutta Court
after going through Section 292 gave its judgment in favor of Kavita Phumbhra
saying that § 292 is vague. There is no straight formula to say whether
one thing is obscene. It corrupts the mind of people or not.
Further,
the Calcutta High Court propounded the idea that customs officers allow the
import of erotic movies so this good should be treated the same as the erotic
movies. Whenever sex toys are packed in obscene boxes or are advertised
obscenely, they may be considered to have violated the obscenity legislation of
India[9]. Numerous tests have
been invented by judiciary across the globe to decide whether a book, a toy, an
item, etc. is obscene or not. Hicklin Test, Roath Test, The Likely Audience
Test, The Literary Merit, And Social Pre-Pondering Test, the Aversion Test,
etc. are the tests for obscenity.
·
Hicklin Test –
This test points out that any book, decorative item, magazine, etc. shall be
considered to be obscene if they arouse a lustful feeling in the mind of the
vulnerable sections of society. According to Justice Cockburn, those items can
be classified as obscene if they deprave or corrupt the mind of the people who
are unfolded to these immoral influences.
·
Roath Test –
This test is also known as the “Community Standard Test”. In this test it was
held that an average person, going through the accused obscene material,
observes its dominant theme as a whole and applies present community standards;
then finds it lascivious and prurient, it can be classified as obscene.
·
The Likely Audience Test –
Also known as “the target audience test.” In this test, it was emphasized that
the book, items, etc. can be termed obscene if they arouse lascivious and
prurient interest in the mind of those for whom these items are made. This test
is not open to sections of society. This test is for a specific section of the
society.
·
The Literary Merit And “Prepondering
Social Purpose - When obscenity and art are
presented together, art overpowers obscenity. The art, ideas, items, etc. may
tilt toward the freedom of speech and expression rather than obscenity laws. A
biology book depicting naked women is not considered to be obscene but an
economics book depicting naked women can be termed as obscene.
In
the landmark case of Navtej Singh Johar. Union of India[10],
the Hon’ble Apex Court pronounced that carnal intercourse is unconstitutional.
It was also emphasized that it was against the order of nature. Also, in this
landmark case, while pronouncing the judgment in Ratio, the Hon’ble Apex
Court upheld the Right to Privacy. The court held that the State cannot
discriminate based on sexual orientation. It was in derogation with the norms
of Article 14 of the Constitution of India guaranteed under Part III.
From
this judgment, it can be safely assumed that adult toys can be bought from the
market. Any restriction can be imposed only on the ground of decency and
morality. These grounds are not strong enough to prevent two individuals from
having sex. There is a need for legislation to mention the term sex toys in
Section 292 of the Indian Penal Code. The law is vague and silent on this
topic. Sex toys are manufactured for sexual pleasures, not for the lascivious
or prurient interest of society. Also, various e–commerce companies have
understood the market capacity of sex toys. They use unique packing and
advertising techniques to protect themselves from obscenity laws. For example,
vibrators are presented as massagers. Dildos are presented as bananas rather
than real male genitals. They also tell the customer that they would pack in
such a way that it would not appear to be lascivious and prurient.
Patent
laws and sex toys
The
word “patent” has been taken from the Latin term “patent”. Patere means to
“bring out.” Also, it means to make a product available for public assessment.
The patent is an absolute right of the inventor. They are entitled to manufacture,
sell or use their patent product for the specified period. The main idea behind
patent law is to motivate inventors to contribute to society. The Indian Laws
are unpredictable and vague on laws for sex toys. Different offices of the
government have different policies regarding these toys. Patent offices and
Custom Offices have different approaches regarding patent laws for these toys.
Indian
patent office presumes that the law is silent on sex toys. Obscenity laws have
not grown in a positive environment with the term “sexual pleasure.” Further,
these toys are accused to be obscene and are against the law of the land. For
example, Standard Innovation Corporation[11] invented a new vibrator.
They applied to the patent office for their authority over the product. The
main concern of the Corporation was that patenting the product would prevent
further production of any copycat vibrators. The patent office refused to grant
patent rights to this product. Sex toys fall under obscenity laws and are
immoral were two justifications given by the patent authority.
In
the words of the office, these toys are useless and immoral. They are likely to
deprave and corrupt the mind of youths. Indian Laws see sex toys with gloomy
eyes. Indian offices have a negative presumption associated with sexual
pleasure. Further, Section 377 of the Indian Penal Code is used as a defense by
these authorities. Section 377 is a 155-year-old colonial law. This law
declares sex between two males as well as sex that is not natural is illegal in
India. Also, the moral obligations mentioned in obscenity laws make it
difficult to grant patent rights by the offices. The employees of the patent
offices are trained in technical science. They are not jurists. They cannot
decide what is moral and what is immoral.
Chapter
2 of the Indian Patent Act 1970 hit at inventions that cannot be
patented. § 3 and § 4 of the Indian Patent Act,
1970 name all those items that cannot be patented. §
2(l) of the Patent Act points out that the product that is claimed to
get patent rights should not be used in any part of the world. §
2(ja) of the Indian Patent Act, 1970 also points out that the
invention should be new and should not be known to persons skilled in the same
field. § 2(ac) of the Patent Act mentions that invention
should have any utility in the industrial world.
Privacy
And Curtailing Power Of State.
In
India, sex is considered to be a taboo. Any talk on this topic agonizes
everyone. A feeling of fear, hatred, and disgust is felt by everyone. Talking about
sex is assumed to be outside Indian Culture. Various numerous things are
considered to be not discussed in public including sexual health, erectile
dysfunction, menstrual cycle, etc. The Ministry of Information and Broadcasting
has also warned Television Channels not to put condom ads on Television before
10 p.m. and after 6 a.m[12]. The indecent and immoral
content presented in the advertisement was used as justification by the
government.
These
advertisements can corrupt the mind of youths. It is believed that restricting
these advertisements can fire back the government. It can lead to unwanted
pregnancies, sexual diseases, and illegal abortion cases. Many youths indulge
in sexual activities in India. In 2015, an advocate of Delhi who was practicing
in The Supreme Court of India filed a complaint regarding sex toys that were
being openly sold by e-commerce giants like Snapdeal.com and Ohmysecret.com. He
scrutinizes the selling of accused products like anal lubricants and massagers.
These products resemble to shape of male genitals. The advocate further accused
the products were violating § 377, § 292, §
292A, § 293, and § 294. These sections criminalize
the sale of these books, papers, pamphlets, items, etc.
Martin
O’Malley, a former politician, and American Lawyer, has said once that the
state cannot interfere in any person’s bedroom. It is the individual's choice
of the person what they are using for sexual pleasure. It may be a lubricant,
toy, etc. These things are of no concern to the state. As long as sexual
activities are happening with consent in a private place between two
individuals, State has no right to interfere with their privacy. This might
appear to be unrealistic but in the landmark pronouncement in the case of K
S Puttaswamy (Retd) V. Union of India, the Hon’ble Court observed that
sexual orientation, giving birth to offspring, consumption of marriage and the
sanctity of family life fall under the umbrella of right to privacy.
It
can be inferred that personal intimacy can also include the use of sex toys.
These things are common and affect every section of society irrespective of
their social and economic position in the society. The key to happiness can be
obtained from autonomous sexual life. Also, the rights of LGBTQ were upheld by
the very judgment of Justice Puttaswamy. The Indian Constitution also ensures
rights for LGBTQ. They have an entitlement to life. The right to life includes
the entitlement to dignity and privacy. The right to privacy can be considered
to be a sacrosanct right with certain restrictions. This right can be claimed
by anyone regardless of gender orientation. Sex toys used in any way should not
be of anyone’s concern.
Aid
To People With Sexual Incapacity
There
is a device that is called a “sex aid” which is used to enhance sexual
pleasure. Even archaeological discoveries suggest that sex toys were used
30,000 years ago. They have smooth surfaces and resemblance to genital shapes.
This discovery was the beginning point in the innovation of sexual aid devices.
Data also suggests that olive oil was being used as a lubricant for sexual acts
since 350 B.C[13].
Males again and again experience sexual dysfunction which diminishes their
quality of life[14].
Kamasutra also gives evidence of various types of devices for the medication of
sexual disorders.
In
India, Food and Drug Administration (FDA)[15] certifies the devices
that can be used as “sex aid”. Constriction Bands are used to improve the
stiffness of penile erection. Dildos are used as a penetrating device. Medical
Science classifies Dildos into two categories. They are Dildos for Anal and
Dildos for Vagina. This device is used by patients suffering from genitourinary
injuries. They are also used by patients suffering from penile cancer. Penile
vibrators are used by those who suffer from Spinal Cord Injuries. Vibrators are
used in case of female sexual dysfunction.
In
2011, the penile vibrator was approved for the patient with Spinal Cord
Injuries in India. This therapy is also helpful for patients with abnormal
diabetes, congenital spinal cord problems, and Multiple Sclerosis. Vacuum Pump
Devices were also approved for the patient suffering from erectile dysfunction.
DVDs are also used for the treatment of Erectile Dysfunction. Also nowadays, a
variety of sex robots are being manufactured for people with sexual incapacity.
Legality Of Sex Toys In Other Nations:
Sex toys are readily available in sex
shops across the United States, where a wide selection of products can be
found, including realistic or brightly colored dildos and cock rings with
vibrating attachments resembling tongues. Despite the taboo surrounding the
topic, sex toys are prevalent in the country. Sex toys are considered to be a
product that can enhance sexual pleasure, which is increasingly recognized as a
basic human need worldwide, despite the ongoing stigma surrounding it. The
modern concept of sexual health acknowledges the importance of sexual pleasure,
and even the World Health Organization's (WHO’s)[16]
interpretation of sexual health incorporates the possibility of experiencing
sexual pleasure[17].
Research conducted in the United
States of America reveals that fifty percent or half of all men have
experienced a vibrator. Women who are heterosexual in nature have also
experienced vibrators[18]
in the same proportion. Sex toys are extensively widespread in the LGBTQI+
community with a record of 78.5% of gay or bisexual males per se who have
experienced any type of sexual devices whereas approximately 79.7% are using
vibrators for sexual pleasure.[19]
However, there is no explicit record of the expenses done by the consumers on
these devices annually but some sources have given evidence that precisely
North Americans are spending $500 million-$15 billion every year on sex toys[20].
Classification Of Sex Toys As Consumer Goods Under The Garb Of The
Consumer Product Safety Commission’s Jurisdiction (Cpsc) In The United States
Of America
The (CPSC)[21]
is one of the self-supporting supervisory authorities in the United States of
America which is primarily responsible for the regulation of the well-being of
end-user products in the pan USA[22]
and could be an adept and most pertinent option for the regulation of sex toys.
The main concern is to provide immunity to the end-user against the annoying
menace of injury or departure from life.[23]
At present, FDA is the single body which is exercising its control over the
regulation of sex toys in the market in the USA, and it classifies sex toys as
medical devices[24].
Despite meeting the definition of a
consumer good according to the Consumer Product Safety Commission (CPSC), sex
toys are not currently protected under this classification. This means that the
industry is not subject to CPSC's regulatory standards, unlike other consumer
goods. If sex toys were classified as end-user goods under CPSC's sovereignty,
the agency would be able to establish industry standards without requiring
products to undergo approval as medical devices, which is currently mandated by
the FDA for the three FDA-approved sex toys on the market[25].
Regulation of the sex toys industry By Way Of Petition
The sex-toy industries rarely bring
any petition, unlike other industries where manufacturers as well as other
stakeholders desire to initiate a petition to be regulated by CPSC[26].
Interested parties have the option to petition the CPSC to initiate rulemaking
activities aimed at establishing industry standards for sex toys[27].
Individual consumers must bring a petition about the regulation of the sex toys
industry because they are unaware of the fact that sex toys possess a danger to
their sex life[28].
Sex Toys Sales In Other Nations
In the Netherlands, one of the
districts of Amsterdam popularly known as the Red-Light district is a
well-known area where the sex industry operates openly without moral
condemnation. There exist hardly any restrictions regarding purchasing and
selling of sex toys to adults, and the only limitation is that they cannot be
sold to minors in nearby sex shops[29].
Thailand maintains a constant ban on the selling and purchasing of sex devices,
despite having a thriving sex industry. Sex devices are observed as indecent
products and are included in the country's list of restricted items. A
punishment for imprisonment of three years or a fine of up to 60,000 Thai Bhat
that is equal to $2000 or both can be imposed on the proven guilty person if he
or she is caught selling, buying, and possessing sex toys. Sex toys are
perceived as being “contrary to the values of Thai society,” which is why their
sale and use are prohibited in the country.
The sales of sex toys are legal in
Australia[30] and in
2018, sexual wellness products have been subjected to safety regulations
established by the International Standardization Organization (ISO)[31].
Moreover, the UK has also permitted the selling of sex toys. If any individual
who wish to run a shop for sex toys, he/she only needs to procure a permit from
the local authorities. Whereas, in the USA there are many states and provinces
where they have their local laws about the regulation of the sex toys industry
or sales of sex toys in the local market. For instance, there is a place namely
Alabama where the sale as well as possession of sex toys are explicitly
prohibited but with an exception which is made or purchased for medical
purposes[32].
Furthermore, in Texas, the government
has prohibited by way of Texas Obscene Device Law from owning more than six
dildos,[33]
and likewise, the Hon’ble Apex Court in New York State had vehemently overruled
the guidelines of the year 2015 and in the year 2017 in obiter
highlighted that the number of sex toys stores must be limited[34].
Laws In Maldives
The Maldives strictly prohibits sex toys and considers them obscene
under the country's pornography law. The ban extends to tourists, including
celebrities, who visit the country. It is illegal
to buy, sell or possess sex toys in the Maldives, and anything that imitates
such obscenity is also prohibited. The country follows Sharia law,
which forms the basis of the ban. Hence, tourists are advised not to carry sex
toys while visiting the Maldives, even though it is a popular tourist
destination enjoyed by people from all over the world.
Sex toys are banned in the Maldives due to the
country's adherence to Islamic law and the presumption regarding sex toys as
being obscene and against the moral values of society. The Maldives is an
Islamic nation, and the Islamic legal system governs all aspects of life in the
country. Under Islamic law, any object or activity that is considered to be
contrary to moral values is strictly prohibited. In the Maldives, the sale,
purchase, or possession of sex toys is considered a violation of the country's pornography
laws, which classify anything that imitates obscenity as being banned.
LAWS IN SAUDI ARABIA
The buying and selling of sex devices are
strictly outlawed by the State. These devices attract severe legal punishments.
Islamic laws bar the utilization of sex toys during sexual activities between
two individuals or even during masturbation[35].
Sex devices fall in the categorization of ‘pornographic materials’. These
devices can be seized if they are discovered in public places.
LAWS IN THAILAND
Thailand is renowned for its sex industry. It
is also the epicenter of illegal sex workers.[36]
The state has also relaxed its laws associated with the sex industry in
Thailand since this industry is blooming. But sex devices fall under the
categorization of restricted goods under the country's law. Importing sex
devices or ordering them online can attract legal consequences.
Laws In Vietnam
Vietnam is a tourist hotspot place. People
across the globe visit here. But the country's law severely restricts
purchasing or use of sex devices in their country. These devices fall in the
specification of obscene products in their country. In 2011, the country banned
importing sex devices in their country against the law.
Laws In Malaysia
According to this country’s penal
code, sex devices are outlawed. Possession of any product whatsoever that
authority assumes to be indecent can fall in the category of obscene objects.
The law even includes bringing these devices from foreign countries. Wide power
is given to authority associated with obscenity laws.
The risk involved in using Sex-Toys
Since there is no regulation at
present, consumers are using sex-toys without knowing the risk involved in it.
As per the dearth of research conducted on American consumers from 1995 to
2006, it was found that approximately 6,800 consumers aged above or twenty or
years faced serious injury and sought emergency room care in the USA[37]. Inter
alia most of the injuries were caused by the vibrating devices as well as personal
massagers. Precisely, (73.5%) were due to vibrating devices, (12.9%) were due
to dildos and approximately 11.7% of injuries were caused due to other
unspecified devices, and 1.9 % were due to rings.[38]
The injuries caused by using sex toys
increased exponentially in the year 1999 because of a substantial increase in
the use of sex toys by Americans[39].
Sex toys are designed in a flawed manner which causes grave injuries to the
consumers for example sex toys that have flared ends i.e., wide enough are more
prone to injuries because these are not sucked into the bodies and are lost
resulting in serious injury to the consumer[40].
Moreover, sex toys containing sharp
edges result in causing serious cuts and tears in the consumer’s body[41].
Around 78.1% of injuries are caused in the anorectal region which is regarded
as the inter alia most common injury about sex toys.[42]
Vibrators cause serious chronic numbness as well as pain in periods over the
consumers’ bodies.[43]
Use Of
Chemicals In Sex Toys
Apart from the flawed designs and
serious warnings, various sex toys contain hazardous chemicals such as ‘jelly
plastic’ that cause injury to the users’ health[44]
because it is made up of numerous chemicals to increase elasticity in plastic
products[45].
Phthalates enter into the consumers’ body orally, by way of food and water,
inhalation or thro, ugh absorption in an open atmosphere, especially by the
absorption of the skin which includes mucous membranes (a place where sex toys
effectively males contact with skin)[46].
CONCLUSION
The laws associated with the sale of
sex devices in India are hazy. Buying these devices fall under obscenity laws
in India[47] whereas
purchasing these products from an online source is free from obscenity laws.
The seller has to be careful about advertisements and packing as well. There is
no solid law in India that is in charge of the sale of these devices online.
India is day-by-day adopting Western culture. The need of the hour is to
legislate a law associated with the sale of sex devices online. At the peril of
emerging cliché, it is time to remind us that India is the mother of
“Kamasutra”[48].
Now it is the need of the hour to
enact such laws which regulate the industries pertaining to sex toys and it is
upon the discretion of the legislation to amend the obscenity laws in India as
the standard of society[49]
is changing day by day due to the paradigm shift in the behavioral change in
the 21st century generation. Indians need to modify their minds
concerning sexual activities. There is high time to regulate the sale of these
sex toys that are sold online. Shops in the market should also be allowed to
sell these products.
Market products attract a large
portion of society and diversify the economy. Proper care should be taken to
protect children from these adult products. Many countries have banned the
purchasing of sex- devices in their countries including Saudi Arabia, Thailand,
Vietnam, and Malaysia. The U.S.A. has a
liberal approach toward sex devices which are regulated by the authorities.
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