A report in The Times of India on July 17, 2014, greatly offended Suhaas R Joshi, a lawyer practicing at the Tees Hazari Court in Delhi. Headlined “For Flipkart, sexual wellness is big business”, it stated that online retailers had a promising market in adult products because the internet allowed people in socially conservative India to make purchases from the privacy of their homes.

The report quoted Vinodh Reddy, founder of ohmysecrets.com, a website selling sex toys, lubricants and prophylactic devices, as saying that although there is no strict legal bar on such products, the sellers do maintain caution. So long as the packaging is not “vulgar”, which could bring charges of obscenity, the coast is clear, Reddy announced.

Joshi found this “intelligent and mischievous strategy” so enraging that he filed a petition before the Metropolitan Magistrate’s court in Delhi.

He contends that e-tailers such as Flipkart and Snapdeal are following a business model of dubious legality which abets the commission of offences listed under the Indian Penal Code and other laws. He alleges that some of the products the e-tailers sell facilitate gay sex – which is a criminal offence under Section 377 of the Indian Penal Code – by catering to “lascivious and prurient” interests. Furthermore, he says, they violate the legal prohibition of obscenity and detrimentally affect public health, safety, decency and morals.

Because these products are being sold on the internet, he has also invoked Section 67 of the Information Technology Act, which penalises obscenity.

No 'legal formula'

To be clear, sex toys and lubricants are not meant for, or used, only for gay sex. There are enough heterosexual couples and singles who happily derive pleasure from these products. But the issue here is not just of Section 377, although that may be the foremost. This case also touches subjects as wide-ranging as internet censorship and violations of privacy.

The definition of “obscenity”, both under the Indian Penal Code as well as the IT Act, is fuzzy at best and confounding at worst. Any material that is “lascivious or appeals to prurient interests” and tends to “corrupt or deprave” is considered “obscene”, and its transmission in any form – physically or electronically – is liable to be criminally prosecuted.

Once in the past too this ambiguous definition was sought to be applied to sex toys. But a ruling by the Calcutta High Court on July 29, 2011, emphatically held that obscenity charges against adult games or sex toys are not legally sustainable.

That case was of Kavita Phumbhra, who had sought to import a consignment of such products, including a few games. The Customs department confiscated the delivery, citing obscenity provisions, and claimed that the harm from the consignment would be compounded if it were sold to minors.

The court rejected the charges on two grounds. First, it held that the definition of obscenity is so sweeping in its scope and involves such questions of psychology and ethics that it is not right or feasible for judges to implement a “legal formula” in practice.

Second, the two judges, relying on expert opinion, held that merely because some games and toys had an erotic and aphrodisiac content and could arouse sexual desires, they could not be labelled “obscene”. The expert in that case was Ratnottama Sengupta, art critic, media commentator, member of the Advisory Panel of the Censor Board who is also on the juries of several domestic and international film festivals. Her statement deserves to be repeated:
“Every civilised society in the world permits adult entertainment within the privacy of the home, and moral policing and permissiveness in matters of sex cannot be condoned.”

The court held that since the Customs authorities were allowing the import of printed material that had far more explicit content, they could not be allowed to discriminate against sex toys.

Censorship of intimacy

It is worth pointing out that Joshi’s petition demands the penalisation not of retailers of sex toys operating freely out of Delhi’s Palika Bazaar, but of those who advertise and sell their wares on the internet.

Technically, Snapdeal and Flipkart are just intermediaries – that is, they provide a platform for branding and selling products – and have no control over whether the ads they carry are illegal for having the potential to get caught in the obscenity net. Section 79 of the IT Act provides legal immunity to intermediaries by mandating that they cannot be punished for hosting illegal content.

If the magistrate accepts Joshi’s charges and goes ahead with the prosecution, it would be incumbent upon Snapdeal, Flipkart and other such websites to actively decide what to host and not. Either they act as censors – keeping out anything they fear is, or could be, obscene – or they run the risk of facing stiff penalties. What is worse, this censorship, if it comes to pass, would encroach upon a very intimate domain.

The police will present the findings of its investigation before the court on March 21. Before acting on them, the magistrate must not disregard the law and the implications of online censorship.