A digital magazine on sexuality in the Global South
Sexuality and Law

Sex Toys and Law – The Unexplored Opportunity

 Sex toys are an exception to the basic understanding of toys. First of all, these toys are generally used by the adult population. Some people use them for spicing up their sexual lives, and some people find them entertaining. For persons looking for varieties of sexual expression, these can be useful as well as fulfilling. In some cases, people living with disabilities have also found usage of sex toys rewarding and meaningful[1]. Some consider them as substitutes for genital organs, for some it enhances orgasms, and for others it is used to explore one’s own body.  Yet most countries still fail to recognise them as useful products and categorize them as fetishes. They are banned on the premises that they lead to obscenity and moral deprivation of individuals.

Law has always stayed away from fun. It has maintained its boundaries, limitations as well as sombreness. Fun derived from toys has mostly been dealt within the ambit of sports and other adventures and even within that, the law has maintained a cautionary gaze towards these adventures. Not all toys receive similar treatment by law; some are simply banned by law due to the value attached to the fun derived from these toys. These are toys that are not considered useful or productive. Mostly these are considered to be morally degrading by the law. These are sex toys, also known as adult toys. The law views sex toys negatively and has never engaged positively with the notion of sexual pleasure.

Pre-colonial India had a distinct relationship with dildos in the past [2]. For instance, before the 1860s, when dildos were refashioned as obscene objects, these were very much in usage and popular among the locals of colonised India. We have historical references [3] about dildos being used as accessories to enhance sexual lives of the citizens. The French philosopher Foucault in his work, History of Sexuality traces the elaboration of sexuality in disciplines such as medicine and law in the 19th Century [4]. It is only in the 1860s that for the first time, external objects were labelled as obscene objects by the Indian Penal Code, drafted by Macaulay, without defining them. Interestingly enough, the export of rubber dildos from India to England at the same time period was at its peak and were in great demand in England [5].

India still retains the colonial Indian Penal Code, 1860 which bans Sex Toys under Section 292 of the code. This section/law bans sale of sex toys by prohibiting sale, hiring, exhibition, and circulation of things as varied as books, pamphlets, posters, or any other object which tend to deprave and corrupt persons. It is the sale and display of sex toys that attract the penalty and not their consumption. It is argued that the sale of things can affect the morals of the viewers/users and hence it might corrupt people.

One cannot help but notice the negative value attached to sexual pleasure in this ‘logical deduction’. A very interesting inference is made on the assumption that sexual desire outside a marital discourse is a dangerous notion, and hence every citizen should be protected from it by law.

In Section 292 of the Code, terms like obscene and prurient interest are left for judicial interpretation. A closer analysis of Supreme Court jurisprudence reveals that case laws value sexual pleasure only to the extent that it furthers goals such as marriage and procreation. Any sexual activity outside the notion of heterosexual, intra-caste and intra-religious family has hardly received the positive sanction of the judiciary. The discomfort of the judiciary with the sexual act is reflected in the two recent Supreme Court judgments of NALSA and Naz foundation where the judges abstained from discussing the ‘sexual act’ itself but went ahead and discussed the social ramifications of these acts. Is it sensible enough to leave these matters to the subjective analyses of different judges and their understanding of sex? The Judiciary has failed to come up with any constructive definition for notions like obscenity and morality.

Inspite of the ban on sex toys for over a century now, we still have flourishing markets for the same right in the heart of different places ranging from relatively smaller towns like Kanpur to big metros like Delhi. They sell these objects discreetly and for different purposes without using terms like sex or adult toys. The usage of these objects totally depends on the consumers who choose to buy them. The infrequent raids have not prevented these markets from thriving.

With the entry of e-retail services, sale of sex toys has gone to a whole different new level. A lot of well-placed business people are finding the market for sex toys lucrative. In the last few years some websites have become popular within the Indian market [6]. According to these websites [7], it is not just people in the big cities who are placing these orders, but even those in  second and third tier cities have been making purchases and experimenting with a whole new range of adult products. Women[8] too have found these websites liberating and have been steadily making purchases from them. These websites have people coming from all walks of life experimenting with the idea of sex toys. As they say, India has never been this toy friendly!

Because of the existing law on obscenity on the Internet, the founders of these online platforms believe that it is important to promote themselves as a space for adult products and make the distinction from the sale of sex toys. Section 67 of the Information Technology Act, 2000, a clause similar to Section 292 of IPC, has been drafted to keep a check on obscenity on the Internet platform. With the entry of online shops, a lot of offline shops have been directly affected and they find the usage of Section 292 of IPC against them unfair.

The question we need to ask is this: How much can the law limit? Can the law keep a tab on everyone’s sexual fantasies? For example there are instances where vegetables like cucumbers and fruits like bananas are used to derive bodily pleasure by individuals. In some cities, leather products which might look like ordinary whips, belts, handcuffs and dog collars are being sold as fetishes. How exactly then, can one define an ‘external object’? Should State authorities go into vegetable markets and start seizing vegetables to protect morality? Would there not be a huge procedural problem with such a notion?

A ban on sex toys has not led to any reduction in controlling sexual activities. According to e-retailers, online platforms are only pegged to rise as a huge market before they enter into smaller cities and even rural areas. While a ‘ban on sex toys’ can be read as an example of repression, from a Foucauldian perspective, such prohibitions are also recognized as productive.  The ban can indeed open up discursive space to initiate public dialogue about the possibility of sex positive laws within the Indian context. This is an opportunity to engage in discussions around the need for sex-positive laws.

 


[2] Arondekar,A. ,2009, For the record: on Sexuality and the colonial archive in India, , Durham, Duke University Press.

[3] Rekti poems have phrases dedicated to dildos. Vanita,R., 2012, Gender, Sex and the City: Urdu Rekhti Poetry in India, 1780 -1870, Palgrave MacMillan.

[4] Foucault, M., 1998. The History of Sexuality. Vol. 1 the will to knowledge: an introduction/Michel Foucault. Translated from French by Robert Hurley. London: Penguin.

[5]  Arondekar,A. ,2009, For the record: on Sexuality and the colonial archive in India, , Durham, Duke University Press.

[8] http://www.livemint.com/Leisure/Hy6p5c9GDviNyhjsiiTUdL/Pleasure-Principle–Web-of-seduction.html

Cover Image: Queen, Viacom 18 Motion Pictures and Phantom Films.