Besharam, an adult toy store, has been caught misusing an iconic painting by Raja Ravi Verma. To promote their ‘The Heavenly Sale’ offering 20-50% on their sex toys, with an additional 10% off for using the code ‘heaven’, they used the painting titled Shakuntala Menaka by Varma.
However, they committed multiple offences while doing so. First, they allegedly used the painting without authorisation. And the second and major offence is that they presented the mother-daughter duo from Mahabharata as a lesbian couple. Shakuntala was the daughter of Menaka the Apsara from heaven, and the painting depicts the moment when Menakta takes Shakuntala to heaven.
Besharam has offended people by depicting a mother and her daughter from a sacred Hindu text as a lesbian couple, and they are still using on their website even after it created an outrage on social media. Along with that, they are also being accused of misusing imagery of Sunni Leone to promote their products.
Leone’s team says that they have already sued the company, adding that she had signed a contract with Besharam in 2012 for only one year, but even now they are using her images. It is notable that Besharam is using Sunny Leone’s pictures as display images in their social media accounts.
Amid the controversy, questions have been raised on the legality of the business being conducted by Besharam, which is selling sex toys like vibrators, masturbators, dildos, lovense, fleshlight, anal toys and other such merchandise. The company says that they source the products from the US and Europe and sell them in through its online store. They describe Sunny Leone as the face of Besharam.
Now, let’s discuss the legality of selling sex toys in India.
As per the law, there is no definite ban on the sale of sex toys in India. However, when it comes to such toys or other products that are used for sexual pleasure and can be termed obscene, Section 292 of the Indian Penal Code (IPC) comes to force. As per the law, it is illegal to sell any product that can be deemed obscene, and sex toys will fall under that category.
As per Section 292 of the IPC, “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.“
The section further reads, “Whoever –
(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports, or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section
shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
Exception. – This section does not extend to –
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure –
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in –
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]]
No disclaimer on the website for underage users
When we surfed the website, it was evident that there was not even a single disclaimer that warned underage users about the content of the website.
How the website sells products in India?
As per the website’s own description, they are using a loophole in the laws. The company that sells the products via the portal in India is not based in India but in the United States, where the sale of such products is legal. Furthermore, the products that are delivered in India do not have any indication on the box that it is a sex toys. As per the FAQs of the website, they do not classify the products as sex toys but as pleasure products. It reads, “We have already done the hard work of importing them through customs by filling all the documents to support the legality of these products; only after they get imported are we able to sell them in India. Our Custom consultants work with the department to properly classify these products and ensure we have the rights and permission to sell and distribute them in India.”
Furthermore, it says, “we avoid labeling them as ‘sex toys’. These are pleasure products, and we prefer not to label them as ‘sex toys’ due to the stigma and undue attention it gets.”
Under legal explanation, it read, “Under the Indian Penal Code, 1860, Section 292 prohibits the sale of obscene objects. We argue with the department that these products are NOT OBSCENE and they are being used by an individual in the privacy of their own space, so the Indian Constitution grants each Indian citizen the freedom to their own space and rights to their privacy.”
The company subtly says that they are using the loopholes available in the Indian laws to import and sell sex toys in India that can be deemed as “obscene” at first look as per the law.
The company promises discretion even in the billing in the bank statement would say “Happy Birds Inc” and not “Besharam”. About privacy, it says, “Your order is packaged securely in a white/brown box, with no indication of our brand outside or the contents of the package. It ships from our warehouse, clears customs under our company name, and ONLY after it’s safely imported, we print and paste your address label to ship it through courier to you. It will show the shipper name as Happy Birds and the content as ‘Gifts & Souvenirs.”
This is a standard practice in sex toy industry, where the products shipped do not mention the name or nature of the product on the packages, to protect the buyer from possible embarrassment in front of others. They use alternate names to hive the true nature of the shipment.
