The world is undoubtedly facing the biggest humanity’s crisis of recent times in the form of COVID-19 pandemic due to which the lives of millions of people are in the state of danger. Over 200 countries including India are affected by this Pandemic and the number of patients suffering is rising furiously.
Amidst all this, the main issue that recently was addressed by the Supreme Court was related to the testing facilities in India. The Indian Council of Medical Research’s (Hereinafter referred to as ICMR) Department of Health Research, through an advisory dated March 17, had fixed the fees for screening and confirming COVID-19 by private laboratories at Rs. 4,500.
A Public Interest Litigation was filed in the Court seeking free of cost testing facility of COVID-19 by all testing labs whether private or Government. According to ICMR, there are 139 Government Laboratories that provide the Covid-19 testing facility whereas the number of Private Laboratories that provide the same facility rises to 65. India has a large population and by the above-mentioned data, one thing is for sure that India lags behind testing facilities.
Order dated 8th April: Supreme Court considers the plight of the weaker sections
When ICMR fixed the price Rs 4500 to be paid for conducting COVID-19 tests then this order was a setback for those who belong to the marginalized and poor section of the society. Supreme Court on 8th April 2020 issued an order directing all the tests relating to COVID-19 whether in approved or private laboratories to be free of cost. The said order also incorporated directions that the tests must be conducted by NABL accredited labs or any agencies approved by WHO or ICMR.
The said order of the Supreme Court was not warmly welcomed by a large community of people, specifically by Private Laboratories as it’d have forced the Private Laboratories to operate at losses. The same concern was expressed by Kiran Mazumdar-Shaw, Chairperson of one of the leading Private Laboratories, Biocon Ltd. She criticized the order of the Supreme Court on the basis that it will result in huge losses to the Private Laboratories. As the Private Laboratories cannot run on credits, this order would have ultimately resulted in the fall in the frequency and efficacy of tests concerned which in itself is opposed to the objective sought to be achieved.
In this regard, two Intervention Application was filed in the Supreme Court pleading to reconsider its order and modify the same to provide a sigh of relief to the Private Laboratories. The order although was in favour of those who can’t afford such tests but consequences which Private Laboratories would have to bear were worse. Private Laboratories have to bear the expense of PPE on their own, salaries of health workers appointed in such private labs are paid by the fees they charge for such tests since they are non-state actors. Hence, it was necessary to address the issue of reimbursement also.
Order dated 13th April: Supreme Court Maintains Checks and Balances
Supreme Court on 13th April 2020 modified its order considering the plight of the Private Laboratories and also forming its basis on the fact that the Private Laboratories were already been conducting free of cost tests for the people coming under the Pradhanmantri Jan Aarogya Yojana, popularly called as Ayushman Bharat Yojana, the number of such beneficiaries comes to around 50 crores. Supreme Court also made it clear that the previous order intended to make the testing free for the economically weaker sections(EWS) of the society and not for the ones who can easily afford such test.
Thus, the modified order contains directions that the free testing by Private Laboratories is to be provided only to the people who are covered under the Ayushman Bharat Yojana and as to other economically weaker sections which the Government by notification may consider. In view of this order, the COVID-19 testing for the people who can afford will not be free of cost and they shall be charged according to the order of the ICMR. Supreme Court also filled the void that was left in the last order related to the reimbursement to the Private Laboratories. Central Government and the Ministry of Health and Family Welfare may issue necessary guidelines for the reimbursement to the Private Laboratories that are conducting free tests as directed by this order. Hence, the plight of Private Laboratories has been substantially taken care of in the modified order.
In the above-analysed recent case of Shashank Deo Sudhi v. Union of India and Ors. the contention that was raised before the Court was that since it is not possible for poor people to afford to get tested for COVID-19, the Apex Court should mandate the Private Laboratories to conduct the screening free of cost. Article 21 of the Constitution Guarantees right to medical aid to every citizen of India so amidst this pandemic it is of due importance that all medical facilities are provided to each and every citizen of India. As the Covid-19 has already been declared as a “Notified disaster” by the Central Government on March 14, the order of the Supreme Court can thus be justified under Section 35 of the Disaster Management (hereinafter referred to as DMA) which makes it mandatory for the Central Government to take measures as it deems necessary or expedient for the purpose of disaster management and also Section 65 of the DMA provides that the resources of private entities can be used in such situations. Considering all this the Supreme Court’s order is legally valid.
In the Light of above-mentioned facts and arguments presented in the Article the Authors after analyzing the impact of the recent order of Supreme Court appreciate Supreme Courts move because The WHO has noted that the best way to contain COVID-19 is “test, test, test”; there is official guidance, therefore, that testing is indispensable to solving the crisis. As the Government Laboratories are flooded with people, the only alternative left to the common citizen is to avail the testing facilities provided by the Private Laboratories. Not everyone is economically sound and so this direction by the Supreme Court is the need of the hour. Article 21 states that everyone has a right to medical aid and so by clarifying that economically weaker sections of the society will not have to bear the expenses of the tests Supreme Court has safeguarded their Social Interest. The previous order of the Hon’ble Court did not address the issue of Reimbursement to Private Laboratories for conducting free tests of COVID-19 due to which Private Labs went into a dilemma because for buying PPE kits and other medical instruments they require adequate finance, which if they run short of would have only lead to a bizarre situation.
ABOUT THE AUTHORS
Animesh Upadhyay is a fourth-year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University. His subjects of interest are Constitutional Law, Labour Laws and Criminal Laws.
Digvijay Singh is a fourth-year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University. His subjects of interest are Constitutional Law, International Law and Intellectual Property Rights.