Finally, Supreme Court has spoken and it has spoken decisively about COVID-19 tests.
In its order dated April 8, 2020, the bench of Justice Ashok Bhushan and Justice Ravindra Bhat stated, “The tests relating to COVID-19 whether in approved government laboratories or approved private laboratories shall be free of cost.”
It also directed the Centre to issue necessary directions in this regard immediately. Further, the court, hearing the case on video conferencing mode, found substance in the submission of the petitioner that at this time of national calamity, permitting private labs to charge ₹4,500 for screening and confirmation of test of COVID-19 might not be within the means of a large part of population of our country and that no person be deprived to undergo the COVID-19 test due to non-payment of the capped amount of ₹4500.
This intervention of the Supreme Court while hearing a public interest litigation which sought direction to the Centre for ensuring to provide free testing facility of COVID-19 by all testing labs whether private or government has come at a crucial juncture of India’s fight against this pandemic.
The court alluded to the fact that despite various measures taken by the government of India and different state governments/Union territories, the number of patients and deaths was increasing day by day. As of April 12, the total positive cases in India were 8,447 with the total number of deaths touching at 273.
However, this kind of intervention by the court seems to have not gone down well with many private players. While many of them do not wish to directly contradict or critique the decision of the court at a time of national crisis, they have continued to argue that such an order was impractical and that it cannot be implemented or sustained.
Some have also argued that this may deter private players — considering the costs involved and the unlikelihood of prompt reimbursement by the government — from involving themselves in COVID-19 testing.
Even Solicitor General Tushar Mehta argued for a more balanced approach and informed the court that there was requirement of conducting at least 15,000 tests daily and for that now there were about 118 government and private laboratories that had been authorised. However, more testing facilities were needed to deal with the crisis, he added.
Despite all these ‘economic viability’ arguments, the court gave an unambiguous order stating that the testing must be free for all sections of the society. It also categorically stated that the financial aspects of such a move could be decided later. It gave two weeks’ time to the Centre to come out with a plan of action to deal with financial and other issues.
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In the meantime, reportedly an intervening application has been filed on behalf of the private players before the court, arguing for a more nuanced approach, taking into account financial viability of making COVID-19 tests completely free. It will be examined when the court reconvenes to hear the matter after two weeks.
The court, besides financial viability, was concerned more about the quality of testing. For this reason, it added one other condition to its order stating that “tests relating to COVID-19 must be carried out in NABL-accredited labs or any agencies approved by WHO or ICMR.”
Both the Indian Council of Medical Research (ICMR) and the National Accreditation Board for Testing and Calibration Laboratories (NABL) have evolved strict guidelines for the testing labs incorporating international standards.
It is rather incorrect to blame the court as exercising its powers without fully taking into account the concerns of the private laboratories and the practical aspects connected with that. Some have termed the court’s action as an ‘overreach’, ‘non-implementable’, etc.
The court, above all, has a constitutional duty to uphold the basic rights of the citizens of the country that include their right to health as well. Costs do not simply matter when it comes to preserving the health of citizens.
Prime Minister Narendra Modi stated this clearly in his address to the nation while announcing the lockdown. Even the lockdown itself was a measure that cost India hugely in economic terms. On these counts, the economic viability argument should not bother the court.
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What matters to the court more than anything else is its constitutional obligation. Article 47 of our Constitution places an obligation on the state to “regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”
Though this provision of the Constitution falls within the domain of Directive Principles of State Policy under Part IV which are otherwise regarded as non-justiciable, in practice, these provisions acquire teeth when read in conjunction with Part III dealing with the Fundamental Rights, in particular, Article 21 that relate to rights relating to life and personal liberty.
In 2017, YSR Congress Member of Parliament Vijayasai Reddy had proposed an amendment in the Constitution by introducing a bill to insert a new article 21B for making right to health a fundamental right. Being a private member bill, it did not get nod from either houses.
This is not the first time that the court is taking a decisive view on matters of this kind. This has been done in several cases where the court has given specific directions to the state to implement health measures.
In March 1985, for example, the Centre passed a law to take over all the rights of litigation of the Bhopal gas victims through the Bhopal Gas Leak Disaster (Process of Claims) Act. The Supreme Court settlement decision of February 1989 is well known where the court, despite the controversial nature of its settlement order absolving Union Carbide of liabilities, sealed a compensation formula to the tune of over ₹700 crore to alleviate the sufferings of the gas victims.
A reference should also be made to the 2013 decision of the top court in a patent related case brought by Novartis, a pharmaceutical multinational company. The court had the occasion to deal with several important aspects of public health in the context of access to medicine and it upheld the legal and constitutional validity of certain provisions of the Indian Patent Act, 1970, keeping in view the larger societal benefits.
In several other landmark cases, the Indian Supreme Court has gone beyond ‘matters of money’ to secure some of the basic rights of the citizens, in particular, relating to their public health.
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References should be made to the decisions of the court in a plethora of cases, in particular, Dr. Upendra Baxi v. State of Uttar Pradesh (1983) that related to the rights of inmates of a protective home, followed by another case by Dr Updenra Baxi v. State of Uttar Pradesh in 1986. The conditions of children in observation homes was dealt with in the case of Sheela Barse v. Secretary, Children Aid Society (1987). These are some representative cases that uphold the basic needs of the disadvantaged population and placed obligations on the state to take care of them.
Further, the extent of Supreme Court’s power under Article 142 of our Constitution could be gauged from its recent October 21, 2019 decision in Union of India v. Association of United Telecom Providers of India wherein its interpretation of a phrase ‘adjusted gross revenue’ resulted in the payment of dues by the telecom companies to the tune of ₹1.47 lakh crores. Under Article 142, the Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and the same is enforceable throughout India.
Interestingly, the ICMR notification dated March 21, 2020, invoking section 10 of the Disaster Management Act, 2005 outlining the guidelines for the private laboratories and fixing the cost of testing as ₹4,500 already echoed some of the sentiments that are now being expressed by the court.
We should note carefully the wordings of the ICMR guidelines. It, inter alia, stated, “The National Task Force recommends that the maximum cost for testing sample should not exceed ₹4,500. This may include ₹1,500 as a screening test for suspect cases, and an additional ₹3000 for confirmation test. However, ICMR encourages free or subsidised testing in the hour of national public health emergency.”
With the formal extension of nationwide lockdown on the cards, both the government and the opposition are insisting on more aggressive testing. There is global unanimity on this aspect of testing as an effective tool to combat COVID-19 spread by isolating the infected persons. However, as per the available figures, testing has been done so far only in 1,79,374 cases. ICMR has also notified about 150 laboratories all over the country. Considering the diverse spread of the virus, the quantum of testing is grossly inadequate.
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As is clear from the Prime Minister’s video conferencing with the Chief Ministers of states, it is they who are fighting the actual battle on the ground against COVID-19. Although it is the Prime Minister who as the head of the National Disaster Management Authority has the final say in deciding the future course of action, all that will have to be done in consultation with them. Some Chief Ministers have already extended the lockdown without waiting for the formal announcement from the Prime Minister. This, no doubt, exhibits the true federal polity of our country.
As regards the financial matters, with no source of revenue, most of the states are now worse off. Some are stretching themselves financially to deal with COVID-19 crisis. In such a scenario, Part XII of the Indian Constitution provides the Centre extensive financial powers and also access to Consolidated Fund of India under Article 266.
The recent suspension of Member of Parliament Local Area Development Scheme (MPLADS), a scheme created in 1993, by the Centre unilaterally is another setback to states. These funds given to members of Parliament for the developmental work in their respective constituencies to the tune of about ₹5 crore per year deprives districts and states from undertaking effective development work.
The Centre could have asked the MPs to channelise these funds for the COVID-19 relief operations in their respective districts and constituencies. With its suspension for a year, the Centre seems to have specific plans to channelise these funds to designated territories thereby affecting the federal structure of the scheme itself.
Further, Chapter IX of the Disaster Management Act in section 46 provides for the creation of National Disaster Response Fund by the Centre from where money can be channelised to the COVID-19 crisis, in particular for the testing and other related measures. There is also a provision under section 47 for the creation of National Disaster Mitigation Fund to deal with the after-effects of a disaster. These provisions are specific and provide for parliamentary approval as well.
But the legality and constitutional validity of creation of a separate funding mechanism through a public charitable trust along with the existing PM National Relief Fund (PMNRF) — which now has been termed as PM’s Citizen Assistance and Relief in Emergency Situation Fund (PMCARE) — is unclear and appear to be ambiguous and overlapping with existing relief related financial structures. Further, considering the nature of its funding mechanism and its delink from constitutional requirements, states may not be able to claim a right to their share in this fund.
Perhaps we will have to wait again for the Supreme Court to examine these issues at an appropriate time.
(Professor Venkatachala G. Hegde teaches at the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University (JNU), New Delhi)