PLANNING TO INTRODUCE SEXUAL WELLNESS TOYS

 PREFACE:

 Products categorized as sex toys may violate obscenity law under IPC and various other regulations.

 The sale/import of Sexual Wellness Toys is governed by:

  • The Customs Act, 1962
  • The Foreign Trade (Development and Regulation) Act, 1992
  • Information Technology Act 2000.

Penal Provisions in case of  sale/import of sex toys or online buying:

  • Indian Penal Code,1860S THE SALE/IMPORT OF SEX TOYS ALLOWED IN INDIA?
  1. Indian Penal Code,1860:

 Section 292

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

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

Obscenity is a criminal offence under Indian law, the Section penalises the sale, public exhibition, distribution, import and export of any such obscene objects and punishes the wrongdoer with imprisonment up to 5 years and fine which may extend to five thousand rupees.

 Customs Act, 1962:

 Section 11

Sex toys are not allowed to be imported into India under Section 11 sub-section 2(u) of the Customs Act, 1962, which prohibits the importation or exportation of goods that is the prevention of the contravention of any law for the time being in force and this item is prohibited under Section 292 of the Indian Penal Code.

 Information Technology Act:

Section 67

This Section provides that the publication and transmission of any material which is lascivious or appeals to the prurient interest in electronic form is punishable under the Act.

Procedure after the online purchased sex toy is held up with the Custom:

 Once the custom arrives at a conclusion that a contraband material has been imported to Indian Territory then it confiscates the item and intimate the buyer for further actions. The custom sends a show cause notice under Section 111 of the Customs Act, 1962 and Section 3 of the Foreign Trade (Development and Regulation) Act, 1992.

It is also mentioned that as per Sections 112(a) and (b) of the Customs Act the person can be held liable for penal action too.

  1. IS DEVICES FOR SEXUAL WELLNESS WHICH ARE NOT LIKE HUMAN BODY PART ALLOWED FOR SALE OR IMPORT IN INDIA?

Many of the articles may be declared as massager which is not like human body parts but vibrates. Such items can be used as a body massager and are allowed in India.

However, the provisions under Section 292 IPC i.e., “obscenity” must not be violated by the article. The producers have to keep this in mind when they are marketing the products.

The main issue that arises with respect to sexual wellness or adult products is that no specific provisions of law address the use, manufacture, sale or import of adult products. However, it is illegal to import or sell ‘obscene products’, the rules for obscenity make no explicit or implicit reference to adult products making them susceptible and open to individual interpretations, especially in the cases of import and customs clearance of such products.

In the absence of definite laws, the interpretation of adult products is at the discretion of the officials which results in goods being seized and confiscated and may attract penal provisions.