The Calcutta High Court has agreed to hear a petition challenging the Customs Department's decision to prohibit the import of sex toys into India, on the ground that they are "obscene articles." [M/s Pracha Aalloy Private Limited v. Union of India & Ors.]
Justice Smita Das Dey noted that the question warrants consideration by the High Court as the Customs authorities appeared to have made its decision based on subjective morality, which has in turn affected the importer's right to trade.
"When a statutory authority acts completely outside the boundaries of objective law and enters the realm of subjective morality thereby severely affecting a citizen’s fundamental right to trade, the High Court will not shut its doors. The present case involves systematic misrepresentation of trade regulations across various custom houses, which necessitates and authoritative judicial pronouncements rather than a routine departmental appeal. The precise statutory basis for the alleged prohibition, as also the basis for invoking Section 111(m) of the [Customs] Act, therefore, requires consideration", the Court said in its order.
When a statutory authority acts outside the boundaries of objective law and enters the realm of subjective morality, thereby affecting a citizen’s right to trade, the High Court will not shut its doors.Calcutta High Court
The order was passed on a petition moved by M/s Pracha Aalloy Pvt. Ltd. challenging the Customs department's decision to prohibit the import of sex toys.
The Customs department based its decision on a 1964 Notification which prohibits import of “any obscene book, pamphlet, paper, drawing, painting, representation, figure or article."
The petitioner contended that this notification cannot be legally invoked to declare body massagers or sex toys imported by them as prohibited goods under the Customs Act, 1962. The petitioner argued that there is no express statutory provision prohibiting the import of such goods. They also questioned the Customs department's decision to treat them as "obscene articles" merely based on their alleged intended use.
The petitioner further pointed out that such sex toys are already readily available in the Indian market and most large online retail platforms. Therefore, the decision of the Customs authority unfairly discriminates against them and their right to trade, the petitioner argued.
The Customs department opposed the petition on the ground that it was not maintainable as the petitioner ought to first have approached the Customs authority itself with an appeal under Section 128 of the Customs Act.
However, the Court observed that in the present case, the petitioner had raised a legal issue that warranted consideration by the Court under Article 226 of the Constitution of India.
The matter has been listed next on October 9.
"The respondents are directed to file a short affidavit-in- opposition within two weeks from date. Reply, if any, may be filed by the petitioners within one week thereafter," the Court added.
The petitioner was represented by advocates Gunjan Bahety, Dhiraj Tiwari, and Khushal Mittal.
Advocates Kaushik Dey and Tapan Bhanja appeared for the Customs authorities and advocates Amit Sharma and Abhishek Kr. Agrahari represented the Union government.
[Read Order]