Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1) [Guest Post]

[This is a Guest Post by Bastian Steuwer & Thulasi K. Raj.]

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Gautam Bhatia starts his defense of the Supreme Court’s interim order directing the Government to provide free testing for COVID-19 with an important observation. “The coronavirus pandemic is a question of public health, but it is also a question of equality.” He concludes by saying that “the order was morally, ethically, and constitutionally justified.” We would criticize this defense. Three questions are significant here. (1) What, if anything, is special about Covid-19 as opposed to other threats of livelihood, including poverty (or the equality question), (2) Will the order actually help? (the implementation question) and (3) whether the order violated separation of powers (the encroachment question).

On the first question, we object to the idea that the equality clause of Article 14 mandates free testing. The argument in favor of free testing relies on the fact that high prices for testing, like the price cap of Rs. 4,500 previously introduced, mean that poor citizens will be disproportionately exposed to risks of dying from COVID-19. In the worst-case scenario, people will die because they were too poor to test themselves, or close associates. This is a striking injustice. But is COVID-19 is really special in this regard?

Every day people die in India because they are too poor. People starve because they cannot afford food, people die from preventable diseases because medicines or hospital treatments are too expensive. Let us focus just on health-related inequalities. India’s health care system is highly privatized with private, out-of-pocket, spending making up three quarters of the entire health expenditure. Testing for breast cancer, for example, can cost between Rs. 1,000 and 2,000. Chemotherapy, if needed, can cost up to Rs. 20,00,000. The rich can afford this and may live, the poor die. Now the Government could make cancer testing and treatment free at delivery for everyone. If COVID-19 tests have to be given for free because not doing so leads to increased mortality risks for the poor, why is the Government not also required to make cancer treatment free? The inequality in accessing medical treatment is as much as question of equality as the question of accessing tests for COVID-19.

Now, poverty is a significant economic and political concern. Unfortunately, the court cannot do much about it. It is not institutionally designed to fight poverty or bad healthcare. This is why in spite of the rights inflation through PIL jurisprudence that India has, we could not achieve much through the courts in terms of welfare measures, be it in education, food security, or health. What this tells us is that it is a mistake to read the equality guarantee of Article 14 to require taking over measures to combat the mortality risk to the poor. This is not to say that the question of making tests available is not one of equality. Equality is a political value that by far transcends the boundaries of Article 14. It would be a disservice to the value of equality to limit it to the narrow range that is captured by “equality before the laws.”

The second question concerns the actual utility of the order. Remember that mandating the Government to provide free and universal health care would be too expensive. Governments would have to cut costs elsewhere to make up for the increased health care expenditure. It may need to reduce spending on education or spending on policing. Alternatively, the government would need to increase taxes. The same applies to COVID-19 testing as well. While the Supreme Court order directs tests to be made available for free, it did not specify how many tests should be performed. Private labs could shut their testing facilities instead of working for free. The Supreme Court may mandate the Government to pay for private testing as well. But the testing regime would nevertheless be at the discretion of the Government. If the Government now has increased costs of testing, it may well decide to reduce the overall number of tests by passing more stringent testing requirements. Remember that this will be a direct consequence of the order. The end result would be the opposite of the WHO’s strategy of “test, test, test”. All of India’s population, including the poor would be worse off.

As a result, the Court may decide to mandate a given number of tests. But that would amount to the Court taking over the governance of the pandemic. This gives rise to the third problem – the court breaches separation of powers and encroaches in the realm of health policymaking. There are various approaches towards how to protect a country from a pandemic. Some require more testing, others require less testing. Assume, for example, that India were to test at the same rate as Germany. Germany tests around 50,000 people per day. That would correspond to over 800,000 tests a day in India. This is more than 6 times the number of total tests India has performed during the entire pandemic. At an assumed low cost of only $5 or roughly Rs. 400 per test, this is a daily expenditure of Rs. 32 crore. Furthermore, what tests should be used? Given global demands, tests are difficult to come by and different tests have various rates of detection. How should we trade-off spending more for tests while testing fewer people with less reliable tests that can test a larger number? How should the Government spending be allocated between testing and economic relief packages? These are the important and relevant policy details. It requires knowledge of, at least, epidemiology, economics, and bioethics. Judges have expertise in none of them. Unlike Governments, they are not democratically legitimized to make these difficult trade-offs. Often, judicial encroachment is not the solution to bad governance or less efficient policy making. Judges are experts at the law, not at governance.

Let us conclude by pointing out that the greatest threat to equality is the enormous disparity between rich and poor that is created by our economic system, unjust tax laws, and inadequate welfare state. The COVID-19 crisis makes this injustice even more vivid. But this fight has to be fought politically and not in the courtroom. The Supreme Court cannot solve this crisis.