Prostitution and homosexuality in India

The Planning Commission has finally done it. It has recommended that the legalisation of prostitution and homosexuality be looked into as they represent the two most vulnerable groups as regards HIV/AIDS. See here for TOI's piece. I think this is a good step, taken a tad late though.

Firstly, what is the current position? The Immoral Trafficking Prevention Act (ITPA) doesn't actually ban prostitution per se. It only bans one, trafficking (naturally) and two, solicitation. So in a nutshell, the two of us can have an agreement (a valid one too) where we decide that I will pay you Rs. n and in exchange you will have sex with me. What is not legal and will therefore be a void agreement (and illegal) is you coming to me and saying that you are willing to have sex with me for Rs. n.

A little on the basics of contract law for you non-law people:
In order for an agreement to be arrived at (legally), there has to be an acceptance and an offer. If the agreement then satisfies certain conditions (laid down in Section 10 of the Contract Act), it is a contract.

It is obviously a pretty fine line therefore, between solicitation and mere agreement and one which the courts invariably do not see. Also, the fact remains that without solicitation, it becomes almost impossible to actually come to an agreement. How do you and I telepathically communicate that (a) we want to have sex and (b) that I will pay you Rs. n to do so?

The only way out, of course, is if I ask you whether you are willing to have sex with me for Rs. n. If you say yes, then it is an agreement and the sex is not solicited by you. Unfortunately for the two of us, this sort of argument in court will have judges throwing the briefs and a couple of large books at your lawyer.

What legalisation of prostitution does, in a nutshell, is empower the CSWs (Commercial Sex Workers). As of now, they are thoroughly exploited by the police, sexually and otherwise. This is because the police can, at any point of time, simply say that they were soliciting, throw them before a court, which I'm sorry to say will never rule in the CSW's favour, not in India certainly.

In Calcutta's red light district (Sonagachi) they've had tremendous success in keeping the spread of HIV down by empowering the CSWs to say 'no' to customers who refuse to use condoms etc. They, to my best recollection, formed a sort of group/buddy system where CSWs would take care of each other directly rather than through the brothel owner (the 'madam'). The NGOs working there also have a huge number of awareness programmes, not just about health, but also legal awareness etc.

Once you make CS work legal and allow brothels to open up in select areas of cities and towns, you allow CSWs to regulate the terms of their employment. They would become employees of the brothel. They may even fall within the scope of 'workers' under the Industrial Disputes Act, which would give them wide ranging benefits, from compensation for work related diseases to a minimum wage etc etc.

How and whether at all this can actually be implemented at the ground level is quite another issue and remains one that can only be answered once the legal structure is in place.

Next is the issue of homosexuality.

I'm going to spare you all the normal BS about the issue, cos it's not worth your time to read it, nor is it worth mine to type it. In a nutshell, I agree with Mill's idea of liberty. Do what you want so long as it doesn't affect anyone else. There are two ways to approach the issue:

1. Socially - My take is let homosexual intercourse be legal and even legalise marriage at a later stage.
2. Biologically (ie looking at mankind as a species) - I came up with an interesting, yet possibly frivolous rationale while discussing this with a couple of friends in one of my less lucid moods.

Taking a start from Mill's POV, what is harmful to others? The question I had was: does homosexuality affect the human species as a whole? My hypothesis follows (forgive any inaccuracies in my maths...please correct me in your comments)

Rayleigh's curve is a bunch of mathematical equations which are broadly represented by this graph: (not to scale)

The black graph represents Rayleigh's original curve. The red line is a correction made by Bose and Einstein called the Bose-Einstein statistics (jointly awarded credit for it, although the story goes that Bose got there first and they couldn't possibly allow an Indian to pip uncle Albert..therefore)

The graph represents Frequency (Y axis - the vertical one) v/s the Sampled Thing (X axis). The sampled thing could be anything from level of wealth to age to height of trees. What it means (and this may sound a bit philisophical) is that the maximum number of things are average or in the median-ish range. Bose corrected Rayleigh and said that there is always a peak at a point.

I believe that if you plot time of life on earth on the X axis and the frequency (ie the quantity) of humans living on the Y axis, Rayleigh's curve will apply. Just as I think it applied to dinosaurs, although their down curve may have been rather sudden if you accept the meteor theory. Just as it applies to the lions in Gir, who are now virtually gone. Just as it applied to dodos who ruled the roost in Madagascar until they were slaughtered by sailors. The curve always applies, whether or not the cause of the downfall of a species is natural or not.

What this means is that homosexuality as a phenomenon could actually be the natural cause bringing about the downslide of the human race. (You know- too many gay men and women around and not enough babies will be made...decline of the human race etc.)

When you're reading this, please don't think this theory is trash on the premise that there are 6 bn humans and they're not going to die out because we let homosexuals live freely. Remember, when I plot time on the X axis - it is going to be a bandwidth of 15-20 million years at least.

Therefore (and this is almost the conclusion), the operative question when we want to decide as a species whether or not to permit homosexuality is: where are we today as regards Rayleigh's curve? If we are still on the upswing, then in the interests of human rights and social well-being, we must permit homosexuals to live a life as free as ours. To allow them the peace of mind that should someone barge into their bedrooms, all that will happen is that they will be embarassed, not liable to be jailed.

On the other hand, if we find ourselves on the downward part of the curve, then the situation changes. Just like any other species, dominant or otherwise, only wants survive as long as possible, so also the homo sapien. If homosexuality is going to be the cause of our downfall, then we must clamp down on it to save ourselves from one of the possible causes of extinction. Males only attracted to males and females to females.

Imagine a planet-of-the-apes -esque position where heterosexuality is banned and the only way that the humans continue to spawn is through forced and regulated intercourse. (very weird...I know)

The point is that until we answer the question of where we stand, any decision taken by us is short-term. I don't say it's a wrong way to go about things, because you have to preserve yourself today. If it means saving n million lives a year from HIV/AIDS related deaths while taking the risk of possibly causing extinction 10 million years down the line, then I'l take my chances. But the point remains...in the overall scheme of things, we will never be able to answer the question without figuring out Rayleigh's curve.

Incidentally, in a remarkable comparison to the dinosaur era, a comet - Comet Swift-Tuttle is expected to hit earth on 14 August 2114 or 2117 or something in that region. The comet is expected to wipe out the majority of the planet...if I recall I think when they discovered it, it was larger than the moon.

Maybe the human race will also have a steep down curve.

'I think that I think; therefore, I think I am'
-Ambrose Bierce