The purpose of this paper is to scrutinize the Right to Equality for people
with disability through the four windows of substantive equality by Sandra
Fredman. Sandra provides a four-dimensional approach of substantive equality
which covers: a) to redress disadvantage; b) address stigma, stereotyping,
prejudice, and violence; c) enhance voice and participation; and d) accommodate
difference and achieve structural change.
This four-dimensional approach is to focus on their interaction, facilities
provided, how they have been looked upon in society, rather than just providing
equal opportunity, the mini-mist approach to the right to equality. The focus is
to see the substantive approach on an international level, within cases A.T. v
Hungary,1 D.H. & Others. Czech Republic ECHR Grand Chamber2 and Selective
Abortion of fetus with abnormalities.
The rights to equality and non-discrimination has been embarked in almost all
the international treaties. Nevertheless, the largest minority of this world is
facing indiscrimination for basic necessities, and position which would not keep
them below a 'normal' or 'abled-bodied' counterpart. No one have thought of
basic infrastructure they might require for their livelihood, or may require a
job to be independent and fulfill their basic requirements, and the abortion of
an fetus with abnormalities is putting a disadvantaged group more vulnerable for
not wanting it.
The whole research paper would look towards these situations and draw parallel
lines with Substantive equality.
The Right to Equality has been one of the primary and established right, which
has been contested now for ages by a large population of this world. The Right
to Equality and Non-Discrimination has been forever-existed in Natural Law and
now fundamentally provided in various International instrumentality such as
Article 1(3) of UN Charter; Articles 1, 2(1) and 7 od UDHR; Articles 2,3 and 26
of ICCPR, in Articles 2(2) and 3 of ICESCR, and almost all the states provide
for right to equality and non-discrimination in their Constitution. Whereas,
Convention on the Rights for People with Disability is a specialized Human
Rights treaty for the Disabled people and against any Discrimination caused to
The inequality and discrimination against a person of have been against the
dignity, opportunities given, results, and their access to infrastructure and
facilities. The equal treatment principle has not worked out because of it being
single headed, as Sandra mentions all alike aren't to be given like treatment,
one has to look beyond the formula given by formal equality. It is a prohibition
against direct discrimination, but it does not point towards the indirect
discrimination, equally well treated or equally badly treated.
The Discrimination and Inequality against the People with disability has been
disturbing more than for any other disadvantaged group had to face. The Disabled
People have been recognized by International Human Rights very lately. People
with Disability were not explicitly mentioned in any law to be protected against
discrimination. Only in 2009, ECHR had its first finding for discrimination
against people with disability3. Whereas, The UN General Assembly adopted by
consensus the Convention on the Rights of Persons with Disabilities in 2006
after several sessions of Ad-hoc committee to protect the rights and dignity of
people with disabilities since, December 2001.4
Who is Disabled?
The Right to Equality, is to put a person equal but to whom, what is standard
for a person to get compared with. As the Sandra Freedman have mentioned, the
terms on which a standard is decided are often a product of dominant group. A
woman has to be equal to a man, a disabled person is to be equal to a 'normal'
person. According to Marx, all the ideas, beliefs and values are of the most
powerful groups or classes. In the case of disability, it is the
'able-bodied/minded' individuals are given preference. The disabled people have
been always considered 'abnormal'. It started drawing with Dworkin5 when he put
forth his theory and called the dislocation of gene as mutant and hence causing
disability. The genes found in a
disabled person are different from the usual, hence 'abnormal', from this
scientific recognition of normal and abnormal. The assumption of all the people
having ability to interact with and take part in general cultural norms have
made disabled people standing out of the context of a 'normal' person.6
According to Marriam-Webster Dictionary, the word 'Disability' means "any
physical, mental, cognitive, or developmental condition that impairs, interferes
with, or limits a person's ability to engage in certain tasks or actions or
participate in typical daily activities and interactions".7 In other words, if a
person is not as functioning as a 'normal' person, he/she would be disabled.
However, WHO defined it as:
Disabilities is an umbrella term, covering impairments, activity limitations,
and participation restrictions. An impairment is a problem in body function or
structure; an activity limitation is a difficulty encountered by an individual
in executing a task or action; while a participation restriction is a problem
experienced by an individual in involvement in life situations. Disability is
thus not just a health problem. It is a complex phenomenon, reflecting the
interaction between features of a person's body and features of the society in
which he or she lives.8
As, the definition of Disability is a complex definition and with open-ends it
has many psychological and scientific threads attached to it. Also, it gets
really subjective as different people use it in different ways. According to
Sandra, it is difficult to establish first who is alike. There will be someone
less disadvantaged and the other is more disadvantaged according to one's
Instead of looking for likes and alike, and considering the result, one and all
should be given equal opportunity. Once, an opportunity is given, it's a
person's choice to go ahead with it or not. As, equal opportunity is completely
compatible with equal results, one must get the opportunity to do something, it
would help to level up all the people with different situations and a choice to
move ahead with.
In the cases given below no equal opportunity was given to people with
disability. There had been various factual situation and addresses in all the
three cases given below, this had created a discrimination against the people
with disability on a very core of situation.
According to Sandra, Substantive Equality is to deal with multi-facet
inequalities, but not only equal opportunity, as political participation,
redressing disadvantage can take place and no unfair or indirect discrimination
comes into play.
A.T v. Hungary - not redressed
A.T v. Hungary9 is a 2005 judgement, the wife could not move out of the
apartment because one of the children had a severe brain damage and no shelter
in the state is equipped to take in a fully disabled child with her mother and a
sibling. The issue of shelter in country with no facility to a disabled child
with her/his family has not been thoroughly discussed by the court in this case.
The court, do not consider the fact that if she had a 'normal' child, there
would have been no such a suffering for the woman and children for so long.
The court did not put any focus on the child the woman had with disability. The
disabled child because of being a disadvantaged member of society had to suffer
and had been his being 'abnormal' had been a reason for his/her mother
sufferance. The state and the court have not complied with the "substantive
Equality' in the present case. The Disadvantaged group was not redressed neither
by Government, nor by the State party.
The child has been humiliated for not being recognized, this is against the
human dignity. Not considering the presence of a group is humiliation and
against the dignity of that Disadvantage group and the individual. As Sandra,
states there must be inclusion of a group on a social scale. He/she must be
given political stand. The example she took was of not giving political power to
a non-citizen may result in the overlooking if their rights. As, in this case no
social inclusion was given, whereas, he/she had to be a victim of differences
and structural change, that the child could not adapt to because of being
Article 2 of CRPD10 mentions that discrimination also includes denial of the
reasonable accommodation. Whereas, the definition of reasonable accommodation
carries words like necessary and appropriate modification and adjustments, which
may not impose a disproportionate or undue burden on the disabled person in any
case, so that the person with disabilities can enjoy or exercise on an equal
basis with others of all human rights.
As, Substantive Equality is less concerned about equal treatment and more
focused on equal access, equal opportunities and equal benefits. There should be
positive action and measures taken for an allocation of resources may be
necessary to ensure all people are equally able to realize their human rights.
States are not only obligated to conduct but also are obligated to
show result. For this, the state might have to treat People with Disability more
preferentially but that's how a person who have not been put on an equal
starting point should be. So that he may recognize and enjoy his/her Human
D.H & others v. Czech Republic- stereotyped to be dependent
D.H & others v. Czech Republic11 is a 2006 judgment. The students from these
special schools mentioned in the case had an inferior curriculum to those of
mainstream classes, which diminished their opportunity of further education as
the children passed out from these schools were not eligible for Secondary
Education or Employment in the future.
Though, the facts of case were not at all related to the children with
disability, neither do court recognize such rights. But, this issue has been
overlooked as for that time Czech Republic was the only state in Europe dealing
with special -schools for People with Disability. This had been a perfect
example of what Sandra, calls placed well equally or bad equally. The fact that
they have a school is enough if that education would not help Disabled people
any further in their life and they are supposed to be dependent on someone else,
who is more efficient to not to go in a 'special school'.
The fact that the children passed out from these school were not eligible for
Secondary Education or Employment, is an Indirect Discrimination against the
Children with Disability, as the rights on its direct understanding seems to be
something which is well favoring the Disabled People but a picture at large, the
Education they were getting could not be used further. No-employment would be
offered to these children later because, they were not 'normal enough' to work
But, be Stereotypically like every Person with Disability could not work, are
not meant to work but a stigma. As, the person without a disability may be
independent and do not need someone else who is 'normal' and may perform certain
task easily or better than any of the disabled person, where the participation
of a disabled is not enhanced and thought to be a parasite which had to live on
someone else, forever.
The International Covenant on Economic, Social and Cultural Rights (ICESCR),
Article 13 and 14, is a universal right guaranteed to everyone to provide
education regardless of age, gender, race, language, social, or other status.
So, that the education must be provided in a non-discriminatory way to everyone.
Also, Article 24 of CRPD, That the children with disability must not be
discriminated from their right to education as it is a Human Right, providing
them equal opportunity and also not excluded from Secondary Education on the
basis of their Disability. The Curriculum prescribed to special schools in Czech
Republic has completely discriminated against the People with Disability. If the
angles of substantive equality are put forth, they had been a suffrage of so
Selective Abortion of fetus with Abnormalities
Freedom to reproduce is a separate Human Right that women are struggling for and
of central importance. Freedom to reproduce is right to having a child or not
having a child, right to contraceptives, access to safe abortion at least till
the time when fetus is not be considered as a vital life, also the right to not
Whereas, whether a fetus is entitled to Human Rights is a separate question all
together. The answer to this question can be derived from the Article 6(5) of
the ICCPR where it has been stated that a death sentence should not be carried
out on a pregnant woman, which means the life she is carrying inside her has a
value of its own and it would be considered as a value of life and dignity.
Whereas, the preamble of CRC also mentions the right of unborn child.
As, a woman has been denied to right to abort a fetus, there are laws from many
states allowing selective abortion of a fetus with abnormalities, even after the
passage of a fifteen to twenty weeks of pregnancy. For Example,
Section 1 of UK Abortion Act and Section 2 of Medical Termination Act, 1971 (MTP
Act) of India are written quite similarly.
Section 1 (1) (d) of UK abortion Act States that:
Medical termination of pregnancy
- Subject to the provisions of this section, a person shall not be guilty
of an offence under the law relating to abortion when a pregnancy is
terminated by a registered medical practitioner if two registered medical
practitioners are of the opinion, formed in good faith:
(d) that there is a substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to be seriously
Whereas, Section 2 of MTP13 states that:
- Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner:
where the length of the pregnancy exceeds twelve weeks but does not exceed
twenty weeks, if not less than two registered medical practitioners are. Of
opinion, formed in good faith, that:
(ii) there is a substantial risk that if the child were born, it would
suffer from such physical or mental abnormalities as to be seriously
Such construction of laws where the rights to life of a fetus with some
abnormalities contradicts Substantive Equality and cause discrimination against
the life of people with disability. Here, it depicts that rights of a disabled
person is welfare and charity. This constructs a stigmatic, and stereotyping
view towards the people with discrimination, that their lives are not worth as
much as a life of a person who is 'normal'.
Sheldon states that, "permitting and practicing the selective termination of
disabled fetuses amounts to colluding with discrimination against people with
disabilities." It has been assumed that all the negative experiences within in
the lifetime of a disabled person is somehow are a result of the condition that
person have, instead of external factors. The fetus with abnormalities are not
recognized as mentioned by Sandra to provide right to live alone.
This undermines the lives of disabled people with regard to their normal
counterparts but also, suggests women to abort a defective baby. This specific
law undiminished the dignity of people with disability and put them in a square
to feel inferior from other part of society.
Putting all the stereotype that the life of a disabled person will become a
burden for someone, would require extra care and attention and would not set in
the boundaries set by and for only 'normal' people.
All the examples taken to work with Sandra's piece of Substantive Equality
showed how, courts and states are reluctant to see the rights of a disabled
person. That instead of anyone of four-dimensional theory most of these cases
were not able to pass even one criteria, which had left one wondering whether
the laws for disabled people are working as they are supposed to or it has not
been implied by now and would require more time then already taken to understand
disabled people as normal as any other person in this world. One has to be more
skeptic to understand and to provide non-discriminated surroundings, with more
structural and social participation.