Coronavirus and the Constitution – XIII: The Supreme Court’s Free Testing Order – A Response (2) [Guest Post]

[This is a guest post by Goutham Shivshankar.]


This is by way of a short comment on the Supreme Court’s interim order directing free Covid-19 testing even by private labs, as opposed to the Rs 4,500/- cap imposed by the Indian Council of Medical Research (“ICMR”) on private lab testing. I explore the implications of Gautam Bhatia’s recent post on the subject and respond to some of his points. The Court, whilst directing private labs to conduct Covid-19 testing free of cost, also stated as follows:

“We thus are satisfied that the petitioner has made out a case for issuing a direction to the respondents to issue necessary direction to accredited private Labs to conduct free of cost COVID-19 test. The question as to whether the private Laboratories carrying free of cost COVID-19 tests are entitled for any reimbursement of expenses incurred shall be considered later on.”

 

Thus, the Supreme Court left open the question of “whether” the private labs would be entitled to reimbursement. Implicitly, the Court also left open the secondary questions of “who should reimburse?” or “how should reimbursement happen?”, should reimbursement indeed be allowed at some future date.

In his post, Bhatia rightly points out that the issue of testing is not simply a “right to health” issue under Article 21 but also a core Article 14 issue insofar as a price-based Covid-19 test disproportionately impacts not just individual people who cannot afford it, but the people around them as well. As Bhatia puts it, “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.” This is all true and important.

However, from there, Bhatia jumps to the conclusion that “the only possible alternative is State-funded free Covid-19 testing, subject to ICMR Guidelines on who can be tested, and when.” En route to such conclusion, he notes 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…. … Consequently, to prevent the unintended consequence of making testing more difficult, a mechanism of compensation should have been worked out in the Order itself.” He then concludes, that “seen from this perspective, it should be clear that the Supreme Court’s Order was morally, ethically, and constitutionally justified.” These are doubtful assertions for the reasons I will briefly point out below.

Firstly, as noted, the Court’s order leaves open the question of whether at all private labs should be reimbursed. In effect, it requires private labs to bear, up-front, the costs of Covid-19 testing, without even knowing whether they will be reimbursed in the future. This interim order has staggering financial implications for any private lab, even given limited testing as per the extant ICMR guidelines. Keeping in mind that the almost universally agreed strategy for containing the pandemic is the rapid scaling up of testing to very high levels, this is a financial burden that is only going to swell exponentially with each passing day. Undoubtedly, this would have a chilling effect on the number of private labs who would offer testing facilities, as this recent piece published by the Print notes.

No private lab was heard before the interim order was passed. No alternative strategies appear to have been sought for or considered. The order offers no legal basis whatsoever for the direction contained in it. Indeed, the only basis of the Order is the Court’s perception that private hospitals must play in a time of national crisis by extending their “philanthropic services”. As such, this is an unreasoned interim order passed in a PIL case. We cannot wish this away merely because it legally obligates “philanthropy” and grants free testing to the poor. As Bhuwania cautions in his book “Courting the Public”, we must be wary of a “consequentialist critique” of PIL. If we fail to call out the Court for its egregious breaches of procedure in cases that are convenient to our politics, we will lose the benefit of that critique in cases inconvenient to our politics.

Let’s move on now, to the secondary questions. There is no real reason to assume, as Bhatia suggests, that “the only possible alternative” is “State-funded free Covid-19 Testing”. This is indeed not at all “elementary” and is a non-sequitur from the legal premise that the issue of Covid-19 testing raises an Article 14 issue. For instance, the Print’s piece referred to above quotes the Chairman of Fortis as follows:

There is another alternative. If the government were to provide the kits free of cost, cover the costs of personal protective equipment (PPE) and for initial set for testing, then the test can be administered by private labs at about Rs. 500 per person. In my opinion, this a very affordable amount even for lower social-economic strata because people are willingly go to a quack and pay the same amount anyway.

One can think of a range of other mechanisms that involve differential pricing of Covid-19 tests for higher income and lower income groups (with the rich subsidizing the poor) – for example, private labs could be allowed to charge a “coronavirus surcharge” for a stipulated period on medical services that are more targeted at higher income groups. This would not require State-funding, but only a state enacted rule permitting such surcharge to be levied by the private labs. The point is that these policy choices of how free Covid-19 testing to the poor is to be secured, even though they impact rights, are best left to the executive.

To make myself clear, I am not arguing that the Court should not hold that the poor don’t have a right to free Covid-19 testing. It can, if it interprets the fundamental rights guarantees in our Constitution to require this. What courts should not be doing, however, is deciding how such free testing for the poor should be achieved. The former is a rights adjudication impacting policy. The latter is a usurpation of the executive’s prerogative of choosing a policy that ensures that the rights guarantees are effectuated.

There is another issue about “State-funding” that we need to approach with caution. Public health is a State-list subject. If by “State-funding” we mean funding by the States (as opposed to the Union), we need to be worried where States are going to source this money from. In an interview to the Caravan, Kerala’s Finance Minister Thomas Isaac has indicated that States are already facing an acute financial crisis in responding to Covid-19 and ensuring treatment. Similarly, in an op-ed in the Hindu, Suhrith Parthasarathy, notes “the inability of States to access funds and thereby structure their own welfare packages.” This is not an accident that we can wish away. It is the way our constitution allocates financial clout in its federal scheme. The Disaster Management Act, 2005 and the National Policy on Disaster Management are vague on the relative financial responsibilities of the Union Government and State Governments in funding disaster responses and seem to broadly envisage a joint financial responsibility. In such circumstances, “State-funding” might only hasten the financial collapse of some of our already imperilled States. We must explore alternative strategies for ensuring free Covid-19 testing for the poor before deciding that “State-funding” is the “only alternative. Further, any such choice of policy should be done by the government(s) and not by the Supreme Court.

2 thoughts on “Coronavirus and the Constitution – XIII: The Supreme Court’s Free Testing Order – A Response (2) [Guest Post]

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