By Shefali Malhotra

Some time ago, a leading national newspaper reported that the owner of a shop in Palika Bazaar in New Delhi was arrested for importing and selling sex toys, allegedly termed as an ‘obscene’ object and hence criminal. He was apprehended under Section 292 of the Indian Penal Code, which penalizes import, export, sale, hire, distribution, public exhibition or circulation of books, pamphlets, papers, writings, drawings, paintings, representation, figures or any other object, that is considered to be ‘obscene’. Although, this incident (like many other similar ones) went largely unnoticed, it raises the age-old debate of defining obscenity and its limits.

What is ‘obscene’?

Taking a cue from the aforesaid case, I will begin by defining sex toys and then obscenity in relation to that. A sex toy is an object or device that is primarily used to facilitate human sexual pleasure (one of the most basic needs of every human being). There are different types of sex toys, most common ones being a dildo and a vibrator. A buyer of a sex toy will generally access some private space to be able to enjoy it. These toys are designed to satisfy sexual desires of its consumers; they do not cause any harm to another individual nor are they a public order threat.

Now the question is whether or not a sex toy is an ‘obscene’ object. The dictionary meaning of ‘obscene’ is “dealing with sexual matters in an offensive or disgusting way”. Evidently, the answer will vary across the spectrum. Some will consider using sex toys unthinkable, while others will consider it perfectly normal. There will also be some, who will protest against them, but nevertheless enjoy it in their private space. Hence, there is no one answer to the question. The reason being, that what is offensive or disgusting or moral or immoral varies from person to person.

Obscenity and law

In the legal context, ‘obscenity’ is used to describe expressions, which offend the prevalent standards of public decency and morality, particularly ‘sexual morality’. The terms being so vague and subjective, how does one determine a universal standard? The Supreme Court has attempted to devise a test for this. Accordingly, every Judge is required to examine whether the matter is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the matter is likely to fall. In doing so, the Judge should factor in the overall view of the obscene matter in the setting of the whole work, interests of society, influence of the obscene matter, contemporary mores and standards and preponderating social purpose of the obscene matter[i].

Right to privacy and authority of the State

Sexual morality, in particular, is an integral and fundamental part of one’s privacy. This right has been read into the right to life under Article 21 of the Constitution.

What is Obscene? Standards of obscenity are very subjective. Sexual morality, in particular, is an integral and fundamental part of one’s privacy. This right has been read into the right to life under Article 21 of the Constitution. It recognizes that we all have a right to a sphere of private intimacy and autonomy, which allows us to establish and nurture relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy. It has been held that enforcement of public morality does not justify invasion of the zone of privacy[ii].

Hence, the State and the Courts in making decisions on every individual’s behalf regarding what is obscene and what is not (sex toys in the present case) is absolutely unwarranted. Moreover, the standards set by the Court solely cater to satisfying public morality, without any consideration for an individual’s privacy, autonomy and choice. On the contrary, the Court should ensure that all legislations heeding to majoritarian impulses rooted in moralistic traditions do not impinge upon an individual’s autonomy[iii].

Unintended consequences

Laws criminalizing obscenity are ineffective. On the contrary, it has given rise to black markets selling adult toys and porn movies. The industry is reportedly worth Rs 1,200-1,500 crore and is expected to grow to Rs 2,450 crore in 2016 and Rs 8,700 crore in 2020. Clearly, there is a huge demand for these products. However, the underground nature of the industry creates disadvantages for the sellers, who are prone to harassment, arrests and raids by the Police, and the buyers, who have no guarantee of quality products and face limited choice.

[i] Ajay Goswami vs Union of India, 2007 (1) SCC 143; Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289; K.A. Abbas v. Union of India, (1970) 2 SCC 780; Chandrakant Kalyandas Kakodkar v. State of Maharashtra, (1969) 2 SCC 687; Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 65.

[ii] Naz Foundation vs Government of NCT of Delhi, (2009) 160 DLT 277.

[iii] Anuj Garg vs Hotel Assn. of India, (2008) 3 SCC 1

The article originally appeared on Spontaneous Order.

Posted by The Indian Economist