New Delhi: Is a sex toy a massager or an obscene product under the Customs Act? The Central Board of Indirect Taxes and Customs (CBIC) has initiated inter-ministerial consultations in this regard to lay down a uniform national policy on how “sex toys” should be classified under India’s import laws.
This move comes amidst the Delhi High Court dealing with the question as to whether a Customs official, in the absence of any guidelines or consistent practice, can use their discretion to classify “sex toys” as an obscene product under the law and seize them.
“Such decisions cannot be taken on subjective opinion but on national standards, to ensure that such opinions are not being imposed selectively by the Customs’ officials on selected parties,” said a division bench of Justices Prathiba M.Singh and Shail Jain.
In January, the Customs department seized two consignments described as ‘Head and Chic Massager’ and ‘Silicone Therapy Sleeve,’ imported under the tariff covering ‘Mechano-Therapy Appliances; Massage Apparatus’.
Customs authorities said the items were prohibited from import under the 1964 Notification issued under Section 11 of the Customs Act, 1962, alleging they were “sex toys” and therefore obscene; while the importer maintained they were legitimate “body massagers”.
The department argued that these items appealed to the “prurient interest” and were, therefore, obscene under Section 294 of the Bharatiya Nyaya Sanhita (BNS), which deals with the sale, public exhibition, distribution, and circulation of obscene books, materials and electronic content.
However, the importer, Techsync, challenged the seizure, contending the goods were lawful massage products sold worldwide and even cleared through Customs when imported by other firms, such as M/s Reckitt Benckiser India.
The court observed that the “crux of this matter is whether the imported products have been mis-declared by the Petitioner as body massagers and are in fact sex toys, that are prohibited from import under the 1964 Notification on the ground of being obscene products”.
Court seeks policy clarity
Noting a lack of consistency in Customs’ application of the 1964 prohibition, the Delhi High Court stressed that any embargo on imports must be applied uniformly, not selectively. The bench highlighted that identical products had been cleared in other ports without objection, underscoring the need for a coherent national policy.
In its judgment, the HC drew on a 2024 Bombay High Court ruling, which denounced the tendency of Customs officials to rely on “subjective opinions” when determining obscenity. The Delhi High Court agreed, holding that “the test of imagination or ingenuity cannot be applied to prohibit clearance, as this would violate principles of legitimacy and fairness”.
Both high courts interpreted the 1964 notification—which bans import of any obscene “book, pamphlet, paper, drawing, painting, representation, figure or article”—in the ejusdem generis sense, meaning the prohibition should apply to objects similar to those listed.
The court reasoned that massage devices, designed for therapeutic or personal care purposes, could not automatically be clubbed with obscene materials like pornographic books or images.
It also noted that “by subjecting personal opinions as to the use of the imported products i.e., ‘body massagers’, and declaring the same as obscene products on the mere possibility of the same being used as sex toys, the Commissioner had acted in violation of the law”.
Citing a 2014 Supreme Court judgement on the “community standards” test of obscenity, the court emphasised that the definition of obscenity must evolve with time and reflect contemporary social standards, not individual perceptions of morality.
Finding the Customs’ seizure “arbitrary”, the court ordered the provisional release of Techsync’s consignments under Section 110A of the Customs Act. The importer must furnish a bond and pay applicable duties.
The CBIC has been directed to continue inter-ministerial consultations and file an affidavit outlining its final policy position before the next hearing on 9 December.
(Edited by Sugita Katyal)
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