Sometimes, a body massager is just a body massager. (But what of when it’s not?)

Recently, the Bombay HC noted that body massagers cannot be classified as erotic toys. Does regulation of prohibited items clash with our right to privacy?

A Customs Commissioner in Mumbai recently confiscated and penalised the import of a body massager, on grounds that it could be used as an erotic toy. The Central Excise and Service Tax Appellate Tribunal (CESTAT) as well as the Bombay high court overturned the Commissioner’s ruling. The HC differentiated between an erotic toy and a massager, noting that the probable or imaginative use of an item cannot be valid grounds for customs officials to prohibit its import, or seize it for being obscene.

Massage therapy has been a common practice since time immemorial to relieve the body of pain and stress. Body massagers, however, run the risk of being thought of as obscene(Wikimedia Commons)

Customs officials have the authority to intercept and seize goods (either imported or exported) deemed obscene. However, what is obscene exactly remains a matter of discussion — between moral and legal frameworks.

A notification passed under the Customs Act in 1964 prohibits the import of obscene articles in accordance with section 292 of the Indian Penal Code (IPC), which prohibits the dissemination of obscene material. Formed during colonial rule, section 292 also lacked a detailed definition or provision regarding what constitutes obscene material. However, when India ratified the 1923 International Convention for the Suppression of Traffic in Obscene Literature, this prompted adjustments within the domestic legislation. In 1925, an amendment to Section 292 was made to introduce the sole exception — for religious purposes.

This provision was further expanded in 1963, as the socio-legal context had evolved and England’s Obscene Publications Act, 1959, offered greater clarity on the jurisprudence around obscene material. A committee chaired by Akbar Ali Khan, the former Governor of Uttar Pradesh, and later, Orissa, was formed to examine the provisions of the section and propose amendments. The committee proposed including protection to publications and objects meant for public good, or bona fide purposes for science, literature or any other branch of learning. It also called for more defined contours of obscenity, and increased punishment. The recommendation for a stronger definition of obscenity was accepted and formed a part of the amended section. Now, an article could be deemed obscene if it was “lascivious or appealed to the prurient interest”, or it tended “to deprave and corrupt individuals likely to encounter it”.

A fine balance

However, the subjective nature of what constitutes obscene means that courts must balance freedom of expression with societal standards of decency. The 1969 amendment to Section 292 does not specify how must the authority assess whether an article tends to deprave or corrupt, or whether it is lascivious or appeals to the prurient interest.

Even the new Bhartiya Nyay Sanhita, 2024, introduced to decolonise criminal laws, has retained this age-old provision entirely. The Parliament once again has not bothered to restrict the contours of obscenity laws that remain in clear conflict with the right to privacy. The recognition of the right to privacy as a fundamental right in the 2017 Supreme Court judgement on Puttaswamy, and the 2018 Navtej judgement that decriminalised adult consensual same-sex relationships penalised under Section 377, is an argument for weakening state control over regulating adult individuals’ personal choices, including the use of erotic toys. Prior to Navtej, erotic toys were often objected to on the grounds that they could be used in homosexual activities.

Moving with the times

The Bombay HC, in its recent deliberations over the seizure of the massager, questioned the relevance of the 1964 Customs notification in contemporary times. Firstly, the court emphasised that the term “articles” in the notification should be interpreted as items with a similar nature or purpose, such as books, pamphlets, drawings, and paintings, and not devices like massagers. Secondly, the court noted that only because there is an alternative use of a massager, it cannot be legally prohibited within the purview of the notification. Lastly, the court considered the widespread trade of body massagers in the domestic market, sold without any prohibition. It aligned with the apex court’s earlier view that merely because there may be a titillating effect to arouse sexual desires, these items cannot be labelled obscene.

However, subjectivity in ascertaining whether something is obscene or not leads to arbitrary decisions that are often guided by biases and stereotypes. Any subjective decision may lead to an infringement of privacy and a fundamental right. Therefore, discretion in such matters must ensure that the state remains at a distance from the sanctity of an individual’s personal space.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal