Legal Framework Governing Pornography and Sex Toys in India

In India, pornography and sex toys are regulated under a complex web of laws aimed at curbing obscenity and protecting public morals. While specific laws address the production and distribution of obscene material, sex toys fall into a legally ambiguous area, often regulated through broader obscenity and import restrictions. Judicial interventions have clarified some of these ambiguities, but challenges remain in balancing societal norms with legal regulations.

Regulation of Pornography

• Bharatiya Nyaya Sanhita (BNS) 2023: Sections 294 and 295 deal with obscene publications and materials. Obscenity is defined as content that is lascivious or appeals to prurient interests, or has a corrupting influence. The sale, hire, distribution, or public exhibition of such materials is punishable by imprisonment and fines. Section 295 specifically criminalises selling obscene materials to children, aiming to protect minors.
• Information Technology (IT) Act 2000: Sections 67, 67A, and 67B of the Act regulate the transmission of obscene and sexually explicit content online.
  • Section 67: Prohibits the publication or transmission of lascivious material.
  • Section 67A: Criminalises the electronic dissemination of sexually explicit acts, with penalties including up to five years imprisonment and fines.
  • Section 67B: Targets child pornography, imposing severe penalties for offenses involving sexually explicit material featuring children.
• Protection of Children from Sexual Offences (POCSO) Act 2012: Section 14 of the Act mandates strict punishment for anyone using children in pornographic material, with imprisonment ranging from five to seven years.
• Indecent Representation of Women (Prohibition) Act 1986: It criminalises indecent representation of women in media, including the production, publication, and distribution of obscene materials. This law aims to protect the dignity of women and prevent their objectification.

Legal Standing on Sex Toys

• There are no specific laws directly regulating sex toys, these objects are considered obscene objects and their sale, display, promotion, import or export can be restricted.
  • Section 294 of the BNS: It is used to restrict the sale, exhibition, advertising, and import of sex toys on grounds of obscenity.
  • Customs Act: The Act allows the government to prohibit the import of goods deemed obscene or against public morals, which can include sex toys.
  • Patents Act 1970: In 2018, the Indian patents office rejected an application for a "sexually stimulating vibrator," citing concerns about public order and morality.
  • Online Sales and Marketing: The rise of online shopping has made sex toys more accessible, but e-retailers must navigate complex advertising regulations and customs laws to avoid legal issues.
• Judicial Interventions:
  • Calcutta High Court (2011): It overturned a customs decision to seize imported sex toys, arguing that they were intended for adult use and did not constitute obscenity.
  • Bombay High Court (March 2024): It reversed a customs decision to confiscate body massagers, ruling they were not sex toys.