Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order

The coronavirus pandemic is a question of public health, but it is also a question of equality. Crucial dimensions of this crisis will be missed if it is framed only as a question of public health. The migrant labour issue – discussed in the last post – presents this starkly, but so does the issue of testing. In an interim order passed yesterday, a Supreme Court bench of Ashok Bhushan and S. Ravindra Bhat JJ directed that testing for Covid-19 in India would be free. The order was subjected to criticism through the course of the day, and it now appears that private labs will move Court for a modification.

Before moving on to the Order itself, it is important to clear two points. The first is that the Order does not mean that anyone can walk into any private lab and get a free test. The ICMR Guidelines for testing determine who is eligible for a Covid-19 test, and – at the time of writing – they remain stringent.

The second point is that there is indeed force in the criticism that the Supreme Court’s order is unclear over who foots the bill for the free tests. To me, it appears an elementary point that it is the State, and therefore, it is a matter of some surprise that the Order leaves that bit to be worked out for later. As many critics pointed out yesterday, private labs – especially smaller ones – are unlikely to be in a position to test for free, and government reimbursements themselves are often delayed. Consequently, to prevent the unintended consequence of making testing more difficult, a mechanism of compensation should have been worked out in the Order itself.

That said, the core thrust of the Order – that Covid-19 testing should be free – is entirely legitimate. It is not judicial encroachment into the policy domain, and it is not a violation of the separation of powers. To understand why, let us recall that the government had capped the cost of testing at Rs. 4,500 for private labs – i.e., private labs could charge upto that amount for carrying out a Covid-19 test. Now consider that in light of the following facts:

  1. Covid-19 is a pandemic, and a public health crisis so grave that the entire country is in lockdown.
  2. 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.
  3. A cap price of Rs. 4,500 for testing – in a situation where it is an admitted fact that there is not enough government capacity – essentially means that wealth and economic class determines who can get tested and who can’t.
  4. The consequences of not getting tested are:
    1. Potentially not undertaking the very specific set of processes that enhance the likelihood of getting out of the pandemic unscathed. For example, there is guidance at this point that if you have fever brought on by Covid-19, you should take Paracetamol and not Ibuprofen. Furthermore, if one’s condition deteriorates, and one needs to go the hospital, a Covid-19 diagnosis will – at that stage – require specific treatment.
    2. As is well known, Covid-19 spreads unless very specific measures are taken with respect to self-isolation and quarantining. Consequently, an untested, positive Covid-19 person is not only putting themselves in danger, but also the people around them.

This makes clear that the issue of testing is not simply a “right to health” issue under Article 21, but a core Article 14 issue: a price-based Covid-19 test disproportionately impacts not just individual people who cannot afford it, but the people around them as well. In a situation of lockdown, where travel is effectively forbidden, the implication of this is that the danger is disproportionately served upon low-income clusters of people.

It should therefore be clear that the only possible alternative is State-funded free Covid-19 testing, subject to ICMR Guidelines on who can be tested, and when. After all, if the State cannot ensure virus testing to those who need it in the middle of a global pandemic, what is the point of a State in the first place – and what is the point of rights if you can’t even get yourself diagnosed in a global pandemic because you can’t afford testing? Seen from this perspective, it should be clear that the Supreme Court’s order was morally, ethically, and constitutionally justified.


[Disclosure: The author is a former law clerk of one of the judges on the bench, Justice Bhat, when he was a judge of the High Court of Delhi.]

10 thoughts on “Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order

  1. “After all, if the State cannot ensure virus testing to those who need it in the middle of a global pandemic, what is the point of a State in the first place – and what is the point of rights if you can’t even get yourself diagnosed in a global pandemic because you can’t afford testing? Seen from this perspective, it should be clear that the Supreme Court’s order was morally, ethically, and constitutionally justified.”

    This justifies state providing free tests.

    This also justifies state utilizing private facilities for tests.

    But I don’t see how this justifies state utilizing private facilities for tests without reimbursement.

    By the same logic, the private sector should all be nationalized!

  2. I worry that your approach even if well intentioned may be the seed of what led to licence raj and black marketing.

    Your first point about the existence of a crisis is not salient in itself. You have to establish a link as to how it links to the right to health and how does that further translate into right to testing and why “free” is essential to satisfy to such right (if it exists).

    Your point about WHO is either tangential or extra-legal. India has made sovereign decisions on the eligibility of testing specifically rejecting WHO’s strategy as too general. WHO (who are anyway legally irrelevant to the issue) have appreciated the same.

    Available data indicates that current eligibility for testing is based on a specific epidemiological strategy and not shortages. In fact, economic incentive creates its own supply and will free up govt. resources for the needy. And if there was a real need, do you believe the govt. (which is suffering lakhs of crores in the pandemic) would not outbid the private sector for testing supply?

    Therefore, even the capped price of Rs. 4,500 is the most anti-poor decision. If a pvt. lab has to send someone to an outlying poor area to collect a sample leading to say an additional Rs. 1000; should those poor be deprived altogether? Secondly, if ever a lab were to face bad times or bankruptcy, will the courts come and rescue them or enforce a minimum price on consumers? If not, then why interfere in a legal and moral economic transaction between two consenting parties? The govt. can decide how much it may want to reimburse a private party and even seize supplies if it believes there is hoarding or a true scarcity.

    Your points 4a and 4b are reasonable.

    The final aspect is that of judicial scope. The pandemic is a situation under which fundamental rights can only exist as a hierarchy. Today, our right to occupation, movement etc. all stand suspended in favor of the right to life. What is best balance of rights under such a given situation is not independently a legal question but a technical one and ultimately a political one. For example, should we reduce the lockdown despite loss of lives to some, to preserve sustenance for others? What are the chances of constitutional breakdown in case of 1 million deaths vs. 100 million hungry?
    Similarly, should we allow pvt. sector in testing considering Rs. 4,500 is affordable by 80-90% of the population; and will help us free up govt. resources. How many lives will be saved and lost? Does we have better data or morality to make this decision, than the medical experts of ICMR?

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