What is it to be Equal?
Vivek discusses the recent Supreme Court judgment upholding the ‘fundamental’ reproductive rights of mentally retarded women and the obligations of the State using Amartya Sen’s Capabilities Approach.
I was reading Amartya Sen’s Tanner Lecture on Human Values for a class yesterday. In this, he discusses what it means to be equal and what we should be comparing in order to say two sets of circumstances are equal. It can’t be just the pleasure or ‘utility’ we get from income. I can use Rs. 10 more efficiently than a differently-abled person because I can go to the movies, pubs, the public library and do lots of things that the differently-abled person cannot because none of the places may be accessible to her. If we use ‘utility’ as the basis of deciding equality, we would say it is efficient to give me more money because I get more ‘utility’ out of it. Intuitively, there seems to be something wrong about this.
John Rawls thought so too. So in his famous book ‘A Theory of Justice’ he said a better way of thinking about equality is on the basis of ‘primary goods’. We need to ask – does everyone get food, health care, liberty and other such basic goods. But Sen wonders if this is enough. Assume education is seen as a primary good so the government goes around distributing books to everyone. If I know to read, I’d find this really useful. But if I don’t, what does this book mean to me? And yet according to Rawls I’d be equal to a person who knows to read.
Or consider a recent case decided by the Supreme Court – Suchita Srivastava v. Chandigarh Administration. This case has been discussed here (http://lawandotherthings.blogspot.com/search/label/MTP)and here (http://mnkkannan.blogspot.com/2009/08/abortion-for-mentally-retarded-outer.html) A ‘mentally-retarded’ woman was raped and the issue was whether the pregnancy could be terminated against her consent under the Medical Termination of Pregnancy (MTP) Act. The MTP Act clearly says the consent of the woman is required, unless she is below the age of 18 or is ‘mentally ill’. Mentally ill has been defined as anything other than mental retardation. Expert reports indicated that the woman, in this case, had ‘mild to moderate’ mental retardation. Clearly, the MTP Act does not allow the Court to order the termination of pregnancy when she wants to have the child. And yet, that’s exactly what the Punjab and Haryana High Court did (judgment can be accessed here (http://indiankanoon.org/doc/1067943/). Their reasons ranged from ‘best interest of the child’ (how will the child be brought up? How can he/she lead a ‘normal’ life?) to society judging the woman for having a child out of wedlock! On appeal, the Supreme Court reversed the order and allowed her to have the child.
Among the many laudable features of the Supreme Court’s judgment (which can be accessed here http://courtnic.nic.in/supremecourt/temp/dc%201798509p.txt) is this observation -
“It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.”
The government argued that allowing her to deliver the baby would cost the State more as it would have to contribute to the child’s education, maintenance and general upbringing. In this context, it is heartening to note the Supreme Court’s observation. If reproductive rights are recognized as fundamental, then unless she can actually exercise it, the State isn’t really giving her the right. If the State argues that she can exercise her reproductive rights only if she, her child, the child’s upbringing and her family background are ‘normal’ then this right is as useful to her as a book is to an illiterate person. She isn’t truly equal to her fellow-citizens.
This observation and Sen’s idea of equality (‘capabilities approach’), I hope, will be used in other cases as well. At the very least, it is food for thought. Consider all the fundamental rights guaranteed under the Constitution. Can differently-abled persons access them just like average persons? Can we challenge instances where they cannot under Art. 14?
*Vivek is our official guest-blogger for Geekable. He is a final year student at National Law School, Bangalore with a keen interest in inter-disciplinary scholarship and policy debates.