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 Shivkumar
*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.
Thought-provoking post, Vivek!
I didn’t fully follow what you meant by “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.”. It seemed to me that in this circumstance utility is the basis for allocating resources, and not for ‘deciding equality’ (not sure what this phrase means!).
On the larger point about understanding equality as a state of affairs where everyone has the ability to derive the same utility from the resources they have, even though certain rights are understood to be fundamental, in some cases isn’t the State’s ability to make the exercise of the right possible limited by factors beyond anyone’s control?
For instance, if the appreciation of a certain piece of writing requires some level of mental ability on the part of the reader, one might say that mentally-challenged individuals cannot derive that same utility as other readers, due to their condition. Would you still say that “unless she can actually exercise it, the State isn’t really giving her the right”?
I think that we need to go to first principles of social contract theories to understand how disability rights fit in. For example, traditional theories state that the social contract was entered into by people who are free, equal and independent for mutual advantage. In this context, it appears that the social contract itself excluded persons who were not “equal” or who could not contribute to society for mutual benefit. This issue becomes particularly problematic in the case of persons with severe disabilities. It appears then that the social contract theories are faulty to some extent. Martha Nussbaum’s Frontiers of Justice tries to address this problem and is interesting
@ Aditya: Sen makes a sophisticated argument in this essay. Perhaps in my attempt to simplify it, I’ve distorted it beyond measure!
Re ‘deciding equality’: That’s precisely the point. You have X amount of resources and persons A and B. Assuming that a state of equality between A and B is desirable, in what proportion should X be distributed for A and B to be ‘equal’?
Re ‘the larger point’: Your example is another problem Sen has with utility being the sole measure to determine equality. Consider the opposite example. If I’m a complainer who needs a lot of resource X to get to the same level of utility as you (a person with a sunny disposition), I’ll need more of the resource than you in order for us to reach the same level of ‘utility’. Therefore, in a system that is geared only towards equalizing utilities, I would get more that you.This seems unfair too. Which is why he says we should move to the more comprehensive and realistic criteria of ‘capabilities’ and try to equalize this.
He, and others, have written a great deal, naturally, about the capabilities approach. See, among other things, Inequality Reexamined (Sen) http://books.google.co.in/books?id=zCj-xxUZAvIC&pg=PA45&dq=amartya+sen+capability+approach#v=onepage&q=amartya%20sen%20capability%20approach&f=false
and Development as Freedom(Sen) http://books.google.co.in/books?id=LFk3pHpFiG4C&pg=PA75&dq=amartya+sen+capability+approach#v=onepage&q=amartya%20sen%20capability%20approach&f=false.
And this for problems with the capabilities approach, particularly with implementation and how they may be overcome. http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780521862875
@ Rahul: Absolutely. I’m just reading Sen’s new book and reviews tell me he moves away from the social-contract tradition. So it’ll be interesting to see how his idea of justice accommodates disability rights.
Thanks for responding!
I think I misunderstood your piece perhaps. Seemed to me that you were suggesting that an equal (desirable) allocation of resources would be when everyone gets the same utility from the resources they have.
Can’t say I know what the ‘capabilities approach’ is. Still, according to you, would the responsibility of the State extend to ensuring that everyone was somehow ‘made able’ to exercise the rights they had? Again, what about factors beyond anyone’s control, and what about individuals who do not, say, work as hard as others in order to develop their capabilities to exercise their rights?
I think there were some interesting leads in your comment. When the Supreme Court states that reproductive rights of the mentally retarded cannot be taken away, despite the costs that it would impose on the State, I think its an excellent argument for substantive equality. Basically what the Supreme Court is saying is that the right to life, which includes the right to make reproductive choices, is not merely a negative right (which cannot be taken away by the State) but also a positive right, where the State may have to step in and spend resources in order to ensure that it is enjoyed by the person concerned. And in the case of disability rights, this is the big question, isn’t it? what does it mean to be really equal – does it merely mean that the State will not infringe upon your rights to employment, reproductive choices, education etc., or will it be required to step in and positively provide you the enjoyment of these rights?
It is interesting to study how the various theories of justice look at the issue of disability. The intuitive problems with utilitarianism are well known, and egalitarians like Rawls and Dworkin have tried to deal with them in their writings. But there is this person Mark Stein whose works may be of some interest to you people. He basically contends that utilitarianism is the golden mean of distribution, and that egalitarian theories fail to come up with an optimal redistribution of resources in society. His argument is very simple: He says that egalitarian theories may either end up with no or unlimited redistribution for the disabled, unless informed by what he calls the risk neutrality utility maximization principle. To simplify things a bit further, if disability is to be accounted for in Rawls’ original position and ‘maximin’ principle of distribution, we would end up with a situation where all of the society’s resources would go to the disabled irrespective of whether they are able to derive any benefit out of them or not. If on the other hand, if we try to equalize income and wealth only, no additional resources would be transferred to the disabled to account for the detriment suffered due to their impairments. (Sen and Nussbaum are of course treated as egalitarians.)
What Stein says works out reasonably well in a situation where two persons- one disabled and one non-disabled compete for a single indivisible resource. The most pragmatic thing to do in such a case may be to allocate the resource to the person who would derive the maximum benefit out of it. To put it in another way, the resource should go to the person who needs it most. But will this work similarly well in a society composed of numerous individuals, both disabled and non-disabled? In my understanding, utilitarianism will then mandate that distribution which will maximize the aggregate utility in society, rather than talk about distributing resources to persons who can benefit most from them.