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

[This is a Guest Post by Karan Gupta.]


In this post, I respond to Bastian Steuwer and Thulasi K. Raj who wrote a counter to Gautam Bhatia’s post, arguing that there is no justification for the order of the Supreme Court’s free testing order.

They begin by stating that there is an equivalence between accessing tests for COVID-19 and accessing healthcare generally. They are right to point out that the choice against nationalized health care has resulted in a market dominated by private players who impose exorbitant prices and perpetuate inequality. They ask: if the argument for mandating free tests for COVID-19 is based on the effect on those from lower income groups, why is the government “not also required to make cancer treatment free?” To me, this ignores the three core distinguishing features of the COVID-19 outbreak – extremely limited infrastructure, its highly contagious nature (time is of the essence) and the high mortality rate.

It is true that private healthcare for medical conditions such as cancer, organ transplants and dialysis is unaffordable for the poor. At the same time however, incremental steps have been taken to ensure access at government hospitals. The central and state governments have progressively anchored in place numerous schemes such as the CGHS, Rajiv Aarogyasri Community Health Insurance Scheme and the Rashtriya Bal Swasthya Karyakram to increase access to healthcare for those who cannot afford it. Implementation aside, these schemes are enacted after considered deliberation of the trade-offs in increasing public spending, which is consistent with power of the government decide questions of policy. What makes COVID-19 different, is the extremely limited infrastructure available in the government sector to test it. Here, it is not a question of wait time, but of the total lack of infrastructure. Private players in the testing market, albeit limited and subject to government approval, are growing rapidly as well as devising new testing methods. This leads to a situation where, as Bhatia points out – the wealth and economic class determines who can get tested and who can’t. What is the effect of this? The answer is interconnected with other two distinguishing factors of COVID-19 – as WHO terms it –high transmission (extremely contagious) and substantial fatal outcomes (highly deadly).

The contagiousness of every disease is measured by a reproduction number (RO). The RO of COVID-19 is far greater than MERS and arguably SARS. Even with the lowest estimate (2.2 RO as compared to 5.7 RO), 55% of the population needs to be immune from COVID-19 to control its further spread. For comparison, though measles has a RO of 12-18, there exists a vaccine to ensure its prevention and the development of herd immunity. Government programs like Indradhanush 2.0 aim at ensuring the eradication of measles. This is not the case with COVID-19. The best estimates project a time period of twelve more months before a vaccine is developed and is safe for human use. Added to this, the incubation period for COVID-19 is between four to fourteen days, which means that a person may be an unaware carrier and infect numerous people before they either show symptoms or are detected as positive and sent into isolation.

The above has led the WHO to conclude that testing is indispensable to control of the virus. Why are these three distinguishing features important? Considered in this light, two immediate impacts may be noted which help justify the order of the court:

First, for someone who may not be able to afford the 4,500 Rs test from a private lab, not only is their own life at risk, they endanger everyone around them. Keep in mind that as compared to other health issues, movement around the country is currently severely restricted, this inevitably means that there are also more hurdles in accessing public facilities for testing. This ensures that the impact is higher on those from low-income groups. Where those who are economically well-off can access testing, implement isolation measures and slow the spread of the virus, for people from low-income groups, the virus is more dangerous and spreads faster. Inequality here is self-perpetuating and creates what Bhatia rightly calls, clusters of people. COVID-19 only ensures that the creation of these clusters and the perpetuating effect of inequality is more certain, more fast and more deadly. That equality as political concept transcends the narrow legal understanding in Art 14 only helps us push the boundaries of understanding that equality is necessarily context specific and a rights-based argument can validly be made here.

Second, as compared to other health issues, the active containment of COVID-19 is premised on a staggering number of people either developing herd immunity, or every person having recovered. This is significant to prevent its spread in a deeply populous country such as India. Where there is a higher number of people who run the risk of being untested, there a higher chance that the curve is not flattened and the spread and effect of the virus is prolonged over a larger period of time, killing thousands. To agree here with the premise of the authors that it is up to the government to decide when and to what extent testing is made freely available is not hampering healthcare or allowing the government to improve it in a staggered manner, but destroying it completely for everyone. Here, the Court is justified in stepping in to address government inaction.

This brings me to the second point put forth by the authors – that given the unlikely implementation of the order, there is little to no utility to it. There are two points here that need to be addressed: (i) increased government expenditure may require budgetary cuts in other sectors like education or policing; and (ii) the government may, in response, decide to slow down testing further.

Let us assume that the order can be reasonably read as mandating the government to reimburse private labs for their expenses. To argue that mandating increased testing (and consequently increased government expenditure) would lead to cuts in other sectors ignores the temporary nature of the pandemic. The COVID-19 outbreak is different from other health conditions such as requiring an organ transplant or cancer in that the latter will continue to occur. Mandating free treatment for those health issues would have a sustained and debilitating impact on government expenditure and potentially destabilize it. This, I agree, would amount to courts deciding questions of social priority reserved for elected legislatures, which is impermissible. As I have previously pointed out however, this is not the case with COVID-19. A sustained, streamlined and time-bound effect will help stop altogether the virus. Any economic consequence then is temporary and justified in light of the outbreak.

The authors then contend that the government could, to reduce expenditure, shut down or reduce the number of tests being conducted. They suggest that the court may, in response, mandate a specific number of tests to be conducted. Assume this to be true. This, they say, encroaches in the realm of health policy making that requires difficult decision on trade-offs which only elected legislature command the legitimacy to make. This is buttressed on the claim that there are “various approaches towards how to protect a country from a pandemic”. While questions of policy are undoubtedly within the domain of government decision, this requires us to ask why the WHO prescribes – ‘Test, test, test’ and there is growing consensus that this specific methodology is indispensable to controlling COVID-19 specifically.

Where high transmission characterizes the virus, taking adequate remedial measures is premised on a timely detection of the virus to prevent contact tracing or community transmission. To claim that increased costs may impact economic relief packages undermines the vast resources available with the government to overcome a temporary emergency. What the Court may have done is cornered the government into having a hard look at what more it can do, in accordance with WHO guidelines, to prevent the spread of the virus. In any case, if India is to implement the idea to seal only hotspots and open the restricted functioning of other pockets to ‘save the economy’, this is premised on identifying which spots are hotspots in the first place. This cannot be done without a higher rate of testing. While testing is identified and understood as the first step to addressing the pandemic, India currently ranks as one of the lowest in the world in testing.

Even if the court mandates a specific number of tests to be conducted, this does alter the fact that several types of tests may be used. Though the government is constrained to ensure the free provision of a test, it retains the discretion to decide which test it uses, how it is distributed across the nation and how measures complement the efforts of the state governments in increasing testing. It is common knowledge that a large number of people are being turned away from both private and public hospitals. Mandating free testing and possibly a higher number will be consistent with both the growing consensus on how the virus can be prevented in the first place and the discretion that the government possesses in determining questions of policy.

The outbreak of the pandemic and the quick, effective, and certain disproportionate impact on those from the lower income groups briefly reminds me of the disagreement between Rawls and Amartya Sen between a theory of justice and an idea of justice. Our comfort in justifying a hands-off approach by thriving in theory allows us to have an overly sanguine attitude towards the government, its efficiency and concern. This, we say, ensures a continued commitment to the separation of powers. At the same time however, faced with government inaction, immediate and decided measures are indispensable to control the spread of the virus.

This is not to say that our legal commitment to the separation of powers must be thrown out of the window. In what I have shown above, justifying the order of the Supreme Court in the above context is not the same as advocating for its intervention in every situation of public health as the context is informed by the peculiarities of the COVID-19 outbreak. While judges are not experts in governance, they are nevertheless duty bound to address government inaction in the time of a pandemic that affects fundamental rights and threatens seriously the life of every individual. I would agree with Bhatia, that the order is morally, ethically, and constitutionally justified.

3 thoughts on “Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]

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