132 Indian J. Const. L.

AMARTYA SEN’S IDEA OF JUSTICE: A JUST IDEA

BUT AN UNJUST APPLICATION TO PERSONS
WITH DISABILITIES
Amita Dhanda*
Introduction
It is an oft repeated credo in scholastic circles that scholarship is a
community exercise. For thinking to even occur, let alone flourish, you need
other minds. It is this need for engagement which is largely forgotten in
most proposals for promotion of research and writing in the Indian Academy.
This point needs to be especially made in relation to legal scholarship because
the most major effort to promote teaching and research in law has been
undertaken in the exclusive portals of National Law Schools. It may well be
asked whether such a disengaged existence can be the progenitor of excellence
in either teaching or research. These foundational questions around legal
scholarship have possibly been triggered by the fact that this piece seeks to
review Amartya Sen’s Idea of Justice.
Even as questions of justice are larger than law, there is an inextricable
relationship between law and justice. In order to address questions of justice,
Sen holds that there needs to be active engagement with the lived realities
of people and the inadequacies of one set of lives can be demonstrated by
comparing them with other lives. Sen proceeds on the premise that social
choice is a community exercise. For informed choices to be made there
needs to be engagement with other minds, other ways of living. These
comparative exercises have been rendered more difficult for National Law
Schools, which have been conceptualized as isolated islands of excellence.
In current times when the crisis of legal education is being addressed in
various ways by several forums1 Amartya Sen’s Idea of Justice provides a
unique ideational opportunity to the legal community to acknowledge the
widening gap between law and justice and to devise appropriate structural
reforms and scholastic strategies to close this divide.

* Professor of Law and Head, Centre for Disability Studies, NALSAR University of Law, Hyderabad,
India.
1. National Knowledge Commission http://www.knowledgecommission.gov.in/focus/legal.asp; http:/
/www.knowledgecommission.gov.in/downloads/documents/wg_legal.pdf (last visited June 20, 2010)
Committee on Renovation and Rejuvenation of Higher Education (Yash Pal Committee) http: /
www.academics-india.com/Yashpal-committee-report.pdf (last visited June 20,2010); http:
www.barcouncilofindia.org/about/vision-statement-2010-2012.
Amartya Sen’s Idea of Justice: A Just Idea but an 133
Unjust Application to Persons with Disabilities
Sen’s Idea of Justice
My other reason for referring to scholastic communities in the introduction
to this review stems from the nature of Sen’s book. This book cannot be
read in isolation; it has to be read in tandem with the work of several other
scholars, and most notably with John Rawls Theory of Justice. Sen has posited
his Idea of Justice in contradistinction to Rawls’ Theory, on the reasoning
that to address manifest injustice, you do not need a theory, just an idea of
justice suffices.2 According to Sen, Rawls has put forth a transcendental theory
of justice which provides vision of a just society without engaging with existing
manifest injustice. A person living in miserable circumstances is primarily
interested in interventions that would lessen the misery of those circumstances.
The most perfect picture of a just society would leave him cold if that misery
is not addressed. Rawls’ vision, according to Sen, is of little utility in
addressing the existing difficulties of people.
Sen’s proposition is no doubt provocative whether or not one agrees
with it. I have had umpteen classroom discussions on the value of Rawlsian
vision and the guidance, albeit utopian, which a theory of justice offers.
Since many of these discussions have happened in Poverty Law courses, we
were required to ask along with Sen that if justice is thought of in
transcendental terms then who pays the cost of such utopian thinking.
Evidently, the transcendental sport can be primarily played by people in
comfortable positions as people in miserable situations cannot afford such
luxury. For people in miserable conditions, any intervention which improves
their piteous condition would be welcome. Those persons would thus be in
agreement with Sen that to address manifest injustice an idea of justice suffices.
It is not like Sen is only seeking a one notch improvement in the lives of
people, only in his opinion, in the real world, situations improve notch by
notch. More importantly, Sen links his idea of justice to the real lives of
people, and it is those lives that he aims to improve. Thus, Sen’s idea of
justice requires a continuous struggle against real life situations of injustice
in order to promote justice.
Sen continues his engagement with Rawls by setting up a major critique
of Rawls original position where people entered into the social contract
under a veil of ignorance. Sen questions both the utility and the impartiality
of the original position. The veil of ignorance may guard against class based
advancement of interest; it cannot engender the richness of discourse which
engagement with people and situations different from one’s own may do.
2. Amartya Sen, Idea of Justice (Allen Lane London 2009) at p. 9.
134 Indian J. Const. L.

The veil of ignorance seems to presume upon a unique and singular truth,
whereas truth may well have more plural manifestations. Consequently, Sen
finds the impartiality of Rawls original position barren in comparison with
the device of impartial spectator suggested by Adam Smith. Taking inspiration
from Adam Smith, Sen puts in place an elaborate scheme on the people
who need to be consulted whilst arriving at any major policy. Justice, he
holds, does not need to be blind-folded rather it should have the facility of
multiple lenses through which it views reality.
It is difficult to differ with the procedure for informed participation
proposed by Sen. It can be said that to put around the table, persons affected
and not affected by an issue would be a far from easy exercise. At the same
time the richness of the ensuing discourse is undeniable. Further, just the
effort of setting up a dialogue between stakeholders and impartial spectators
would build the capability to settle contentious questions through reasoned
dialogue — a capability which needs to be developed if questions of justice
are to be peaceably settled and not violently resolved.
I find both the idea of justice that Sen puts out and the procedure he
posits to implement it to be unexceptionable. My difficulty with the book
primarily arises when Sen starts to apply his model to specific situations. Sen
had the choice to apply this model to those issues that he knows well and on
which he has done deep empirical work. Sen uses his methodology to good
effect by referring to his studies on famines, child mortality and universal
education. He effectively employs the region and gender specific findings of
these studies to advance the comparative understanding he promotes in the
book.
Where Sen flounders is when he applies his idea of justice to persons
with disabilities — a constituency with whose concerns he is not so familiar.
Whilst Sen could put forth his own opinion as that of an impartial spectator
engaging with the issue, to be true to his own methodology, he also needed
to examine the question of disability rights from the stand point of persons
with disabilities which is what he fails to do. With this failure Sen does not
meet his own standards of deliberation and rationality in making social
choices. In what follows, I demonstrate how Sen’s failure to follow his own
procedures results in injustice to persons with disabilities.
The Preventive Paradigm and Justice for Persons with
Disabilities
Sen first refers to disability when he uses disability as an example to
demonstrate the limitations of the income based approach to measure
Amartya Sen’s Idea of Justice: A Just Idea but an 135
Unjust Application to Persons with Disabilities
poverty. An income based approach he points out would not take into account
the higher amounts persons with disabilities need to expend to convert
capabilities into functionings.3 The veracity of Sen’s contention is undeniable.
My difficulty is with the static nature of the contention. Sen makes the
argument of higher conversion rates as an inflexible perennial truth, whereas
the fact of the matter is that the adoption of universal design would bring
down the rates of conversion.4 The necessity of making this additional
argument has not been felt by Sen; even as higher conversion rates without
more could delay if not deny the just entitlements of persons with disabilities.5
Sen’s failure to refer to the jurisprudence of universal design could well be
categorized as a sin of omission which can be easily corrected by persons
with disabilities and disability rights activists. The greater difficulty arises
from Sen’s sin of commission whereby he sets up the case for the rights of
persons with disabilities within the paradigm of prevention. According to
Sen “it is extremely important to understand that many disabilities are
preventable, and much can be done not only to diminish the penalty of
disability but also to reduce its incidence. Indeed, only a fairly moderate
proportion of the 600 million people living with disabilities were doomed to
these conditions at conception, or even at birth”.6 He then goes on to recount
the various causes of disabilities which are preventable such as: maternal
malnutrition, childhood under nourishment, polio, measles, AIDS, road
accidents, injuries at work and land mine disasters.7
From here on Sen goes on to contend that “social intervention against
disability has to include prevention as well as management and alleviation”.
Sen has thus set up his argument for disability rights on the triad of
prevention-management-alleviation. A natural consequence of this linkage
is that it in no way challenges the devalued existence of a disabled life rather

3. Id. at p. 258 when he specially refers to Wiebke Kuklys Amartya Sen’s capability Approach:
Theoretical Insights and Empirical Applications (Springer-Verlag New York 2005).
4. A large part of the higher conversion costs emerges from the fact that the world has not been
constructed taking into account the existence of persons with disabilities. Hence the infrastructure
the non disabled presume upon has to be individually created by persons with disabilities. This
quantum of the conversion cost can be effectively reduced by universal design which is a concept
that requires the real and the virtual world to be created keeping in view the existence of persons
with disabilities.
5. The real nature of this danger is demonstrated by all the crusades that are being fought around
social economic rights. The denial of justiciability, the requirement of progressive realization, are
all conditionalities which have been attached to socio-economic rights because their realization
has been viewed as resource intensive.
6. Supra note 2 at p. 259.
7. Ibid.
136 Indian J. Const. L.

it reinforces the diminished value.8 It perceives disability as deficit, contends

that this deficit has been caused by social inaction and asks society to
compensate for the harm it failed to prevent. Disability rights arising from
such an outlook fail to respect the dignity of persons with disabilities as
persons who need to be valued for themselves. Disability Human Rights on
the other hand perceives disability as an integral part of human diversity.9The
difference of disability should not result in persons with disabilities being denied
the development of human capabilities. And persons with disabilities have a
right to develop their capabilities on an equal basis with others.
The prevention paradigm primarily arose from experts and non-
disabled people looking at disability. The discourse of disability human
rights has primarily arisen from persons with disabilities. The Convention
on the Rights of Persons with Disabilities (hereinafter CRPD) is a binding
international articulation of disability human rights. Significantly this
Convention does not speak of preventing primary disability, but the
prevention of secondary disability is an integral part of the right to health of
persons with disabilities. 10 All efforts to include a primary prevention
provision in the CRPD were shot down by persons with disabilities during
the negotiations for the Convention on the reasoning that disability prevention
is a common concern of human development but could not be viewed as a
part of disability rights. A prevention provision in a disability rights
convention is almost contending that persons with disabilities are unwelcome
members of the human community. Persons with disabilities along with the
rest of humanity desire that all human beings should have access to safe
drinking water, nutritious diets, safe work environments, and a war free world.
These objectives need to be fought for by all of humanity for their own sake.
It is unfair and inequitous that persons with disabilities should be required
to lead these campaigns on the reasoning that if these rightful activities are
not undertaken then persons with disabilities could be the undesired result.

8. An effect which Sen magnifies by the verbs and adjectives he uses to describe disability. Thus,
disability is “impairing feature of humanity”, “tragic consequences of disability.” Such like use of
words is all the more problematic when it comes from Sen because Sen is both conscious of the
power of language and observant of its everyday use. For example the distinction he makes at p.
31 between “being well” and being good is a case in point.
9. It is this sentiment which has found recognition in Para m of the Convention on the Rights of
Persons with Disabilities which recognizes “the valued existing and potential contributions made
by persons with disabilities to the overall well-being and diversity of their communities…”.
10. See Article 25 (b) of the CRPD which mandates states to “provide those health services needed by
persons with disabilities specifically because of their disabilities, including early identification and
intervention as appropriate, and services designed to minimize and prevent further disabilities,
including among children and older persons”.
Amartya Sen’s Idea of Justice: A Just Idea but an 137
Unjust Application to Persons with Disabilities
Amartya Sen could have distinguished between the need for
prevention and the case for disability rights, if he had consulted the writings
of disabled people and their organizations 11 , or even looked at the
negotiations surrounding the CRPD12 or looked at Nussbaum’s exposition
on disability rights.13 However, Sen contrary to his own dictum of consulting
the stakeholder decided to preach on disability rather than listen to persons
with disabilities. Thus, the humility he seeks from public policy makers whilst
arriving at social choices goes missing in his own exposition on disability.
Conclusion
It has often been found that small incremental changes that can improve
the real lives of people are blocked by arguments for comprehensive reforms.
Since comprehensive reforms are time consuming and difficult to obtain,
the diehard radical often inadvertently or otherwise lands up supporting the
status quo. Amartya Sen in his Idea of Justice is asking each one of us to test
our recommendations for social change on the touchstone of the practical
and possible. This practical should be an evolving standard. Yet in specifying
this possible for persons with disabilities, Sen has reduced the issue of disability
to a statistic, which could easily have been lower if societies had been more
vigilant. The impact of this argument on the self hood, dignity and personality
of persons with disabilities escapes Sen. The Idea of Justice provides useful
ideas for blueprinting justice agendas, even as it slips up whilst setting up
arguments for the justice rights of persons with disabilities.

11. See for example http://www.inclusion-international.org/self-advocacy/my-voice/ (last visited June

20, 2010), The declaration of the Disabled People International http://v1.dpi.org/lang-en/
index?page=18 (last visited June 20, 2010).
12. http://www.un.org/disabilities/default.asp?id=1423 (last visited June 20, 2010).
13. Martha Nussbaum, Frontiers of Justice Disability Nationality and Species Membership (Oxford
University Press New Delhi 2006).