Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts

Previously on this blog, we have discussed models of executive accountability in the context of the Covid-19 pandemic, and the role of judicial review during the crisis. As I have argued before, the debate has stemmed from the fact that in most of the cases to come before it, the Supreme Court has framed the issue in terms of a misleading binary: the Court (according to this binary) has one of two options: “take over” the management of the pandemic from the executive, or adopt an entirely quiescent posture towards the executive. Framed this way, this binary admits of only one answer: the executive is obviously better-positioned to deal with the pandemic, and therefore, the second option (quiescence) must be taken.

But, as others have pointed out on this blog, this is a false choice, and indeed, ignores the Supreme Court’s own prior jurisprudence on the question of socio-economic rights. There are a range of alternatives between usurpation and quiescence, that involve holding the executive to account in the judicial forum, without the judiciary necessarily taking over the executive role. Around the world, for example, scholars have articulated the concept of “dialogic judicial review“, where – in certain cases – the judicial forum is a site of dialogue between courts, citizens, and the government; often, the very process of the government being called upon to explain its decisions before the courts reveals important shortcomings in the decision-making process (as well as in the substantive nature of the decision itself), which can then be corrected.

In this context, two recent sets of orders by the Gujarat and Karnataka High Courts present us with examples par excellence of dialogic judicial review, and how it can make a difference to constitutional rights in the times of Covid-19. On 22nd May, the High Court of Gujarat passed a detailed order that dealt with the subject of medical care in the state, the transportation of migrant workers, questions of food and shelter, and so on. The order, authored by Pardiwala and Vora JJ, makes for fascinating reading. Its genesis was a previous order of 14th May, where the Court had put a set of questions to the state government of Gujarat, on the lines set out above. In response, the government filed a detailed affidavit before the Court, answering these questions. The affidavit covers the first twenty pages of the High Court’s order, and includes, inter alia, figures on the total number of migrants in the state (including the methodology used by the government to arrive at those figures), figures on the number of trains that had already left the state to carry migrant workers back home, payments made to various classes of constructions workers, specific work-related issues in Surat and Kutch, Memorandums of Understanding entered into between the state government and various private hospitals, and testing guidelines and discharge policies. In addition, the state government filed affidavits signed by medical officers, and progress reports on medical facilities.

On a study of the data, the Court found that (a) public healthcare facilities were overwhelmed and unequipped to deal with the pandemic; (b) for this reason, the state government had entered into MoUs with private hospitals, (c) but that nonetheless, in certain cases, private hospitals had levied exorbitant charges for treatment (see paragraph 45). On this basis, the Court first issued a direction that, in view of the public health crisis, it would not be open to private hospitals to refuse entering into the MoU with the government. Furthermore, while the state government had issued a notification on 16th May fixing prices and bringing a certain number of private hospitals within its ambit, that notification was ambiguous in what it covered. Additionally, the Court noted that certain specific private hospitals had been left out of the Notification, without any explanation. Consequently, the Court observed:

We would like to know from the respondents as to why the above named hospitals are not in the list. We would also like to know whether any talks were initiated in this regard with the management of the above referred hospitals. The hospitals we have referred to above are reputed hospitals and are capable of admitting thousands of patients in all … we direct the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. All the eight hospitals referred to above shall extend their helping hand in this hour of crisis. We are saying so because as days are passing by more and more cases of COVID19 positive are being reported. It is practically impossible now for the Civil Hospital, Ahmedabad and the SVP Hospital, Ahmedabad to admit all these COVID19 patients.

I cite this as one of the (many) examples of dialogic judicial review from the order, as it demonstrates the point with particular clarity: instead of framing policy, the Court examined existing government policy, and found that there was no discernible reason for its limited application, in the context of the pandemic and the accompanying right to health. The absence of a rationale for the decision-making process allowed the Court to then extend the scope of that policy further. In addition – and in stark contrast, for example, to the Supreme Court’s attitude in the free testing case – the Court specifically asked the government to explain (on the next date of hearing) the basis on which the government had worked out the rates of remuneration with private hospitals, and what facilities had been excluded and included. Notably, the Court did not set a particular rate or charge itself, but asked for an explanation of the decision-making process – and it will be interesting to see how that plays out when the matter is heard next, at the end of the month.

In the subsequent parts of its judgment, the Court focused on conditions at civil hospitals – and passed directions on their improvement – appointed a commission to examine the claims raised by reports about abuses in these hospitals, and passed another set of directions on immediate measures to be taken. Further lacunae were also pointed out in the testing process, but here the Court did not pass directions, but rather, advisory observations to the state government on questions of publicity and awareness. On the transportation of migrant workers – based on the government’s own admission that buses were unsuitable for such transport – the Court directed either the Railways or the state government to bear the cost of a one-way train ticket for those migrants who wished to return home. And finally, the Court extended temporary bail orders for another forty-five days.

The order of Pardiwala and Vora JJ exhibits some of the important features of dialogic judicial review: on an initial date, the Court put a series of questions to the government on its handling of the pandemic. The government responded with a detailed report. On the basis of a close study of the facts in the report, the Court (a) on some issues, passed directions tweaking the government’s policy, where it was under-inclusive in its protection of constitutional rights, without any rational basis underlying the decision-making process; (b) on other issues, put further questions to the government, which would be discussed on the next date of hearing; and (c) on a final set of issues, accepted the government’s stance (such as, for example on the legal prohibition upon using RERA money to pay construction workers). In addition, on issues involving core, immediately enforceable constitutional rights – such as temporary bail, and the freedom of movement (that had become a necessity as a result of the government’s own choice of lock-down) – the Court passed direct orders.

Something similar is visible in a set of orders passed by the Karnataka High Court, involving migrant workers. A bench of Chief Justice Oka and Nagarathna J. were seized of the matter. On 5th May, the bench passed an order on the issue of the transport of these migrant workers. The state of government of Karnataka filed written submissions in response. These were considered by the Court in a detailed order dated 12th May, 2020. The state government cited MHA orders, and a protocol for the inter-state movement of migrant workers, as covering the field. On this basis, the Court found that there was now a policy decision taken by the state government that migrant workers from other states could return home through special trains. Having noted this, the Court then observed that it was the burden of the state government to communicate this policy decision to the migrant workers in question.

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facie, it appears that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

It is important to note the aftermath of this: that the state government of Karnataka did formally agree to pay the rail fares of migrant workers. However, this was apparently partial, and applied only to migrant workers originally from Karnataka, who wanted to come back, and not the other way round. This policy was then questioned by the Court in a subsequent order, where it was reiterated that constitutional rights were at stake. In its most recent order – dated 22nd May – the High Court asked the state whether money from the National Disaster Response Fund could be used to pay for the fares*; the next date of hearing is 26th May (Tuesday). This, then, is a classic example of dialogic review in action: the High Court of Karnataka’s initial probing compelled a change in executive policy; nonetheless, the change was found to be insufficiently protective of fundamental rights, and at the time of writing, the executive is being called upon to justify itself in the judicial forum, with the Court itself playing a role in engaging with other possible solutions that could be found.

The set of orders passed by the Gujarat and Karnataka High Courts are granular and specific in nature. They deal with issues arising within state borders, and do not purport to offer grand solutions to the problems caused by the pandemic and the lockdown. However, this is precisely where their importance lies, within the framework of dialogic judicial review: they demonstrate clearly that the binary postulated by the Supreme Court’s orders on the subject is a false one. The task of the Court is not to frame policy, but nor is it to leave the field, especially in times like Covid-19, where individual rights are particularly vulnerable to exploitation. Here, the task of the Court becomes one of oversight and scrutiny, through the method of dialogue in the judicial forum. This dialogue, as we have seen, is a continuing one, and its continued articulation in following hearings will be important to follow.

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*Readers will recall the Chief Justice of India’s extraordinary observation, soon after the lockdown was announced, about why workers needed wages if they were getting two square meals a day. Interestingly, an observation by the Karnataka High Court in this order lays bare the hollowness of that statement. As the Court noted:

We must record here that it is not merely an issue of survival of the migrant workers who are unable to go back to their respective States because they do not have money, there are other needs of the migrant workers, such as their health, their families. The migrant workers who are staying in the State by leaving their families in the States of their origin are in precarious position because they are unable to send money for the maintenance of their respective families. These are all human issues which need to be addressed by the State Government as well as the Central Government, considering the concept of Welfare State.

 

Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks

I am grateful for all the engagement with my initial post on the legitimacy of the Supreme Court’s order mandating free testing for Covid-19. Some of these have been published as responses and rejoinder in this series (unfortunately, for reasons of space, I could not publish all). In this concluding post, I want to briefly address and clarify some of the core issues that have emerged – both on the blog and in the public domain – over the course of the discussion.

Let me start by reiterating that the Supreme Court’s order should have stated that private labs would be reimbursed by the State for free Covid-19 testing, and that a mechanism for this ought to have been worked out before the interim order was passed. That is a significant lacuna in the order. In what follows, I base my arguments on the premise that the State is indeed paying for free testing.

The Policy/Budget Argument 

The argument that has been most frequently made is that the Court’s order is an impermissible intervention into the policy sphere – and a violation of the separation of powers – because it effectively directs the government on how and where to spend its (finite?) resources. To this, there is a straightforward answer: the effective enforcement of almost any right depends upon creating infrastructure, which costs money. For instance, the right to vote requires polling booths and voting machines. The right to free association and assembly presumes the existence of policing. And so on. Consequently, the budgetary argument gets things back to front: the question is not whether a Court order interferes with the budget and is therefore illegitimate, but whether the Court order does or does not enforce a constitutional right. If it does, then the impact on the budget is a collateral issue. The whole point about enforceable rights is that – to go back to Ronald Dworkin – they act as “trumps” against policy goals. In the present case, therefore, the key issues are twofold: what rights are at play (I have argued that these are the rights to equality read with the right to health), and whether lack of access to testing constitutes an infringement of these rights (I have argued that the nature of the coronavirus pandemic is such that it does).

The Parade of Horribles Argument

It is then argued that there is no principled justification for restricting the scope of the Court’s order to free Covid-19 testing alone, and that the logic of the argument essentially requires free and universal access to healthcare. Now, to start with, I do not think that framing universal access to basic healthcare as a constitutional right is necessarily far-fetched: in countries all over the world, State responses to coronavirus have revealed that a lot of what seemed beyond the realm of possibility, practicality, or feasibility, was actually nothing more than a constraint of political ideology (Spain’s experiments with a universal basic income being a classic example). Consequently, while the modalities of effectuating a universal right to free basic healthcare requires the kinds of policy decisions that elected representatives make (a point that I shall come to later in this piece), the fact that free Covid-19 testing belongs to the same family of arguments that view healthcare as a constitutionally guaranteed right is not a disqualification.

However, that said, the argument for free Covid-19 tests does not automatically translate into a constitutional right to an NHS-style healthcare system, even as a necessary logical consequence. This is why, in the initial post, the point was made that what is at stake in this case is the right to health read with the right to equality. I specifically say this because of the nature of the pandemic, which – when combined with the national lock-down – means that the wealth-based barriers to testing affect not just the sufferer, but clusters of low-income neighbourhoods. The issue of testing, therefore, is directly related to structural or systemic discrimination (based on socio-economic class); it is not simply about an individual right to healthcare that is defeated because of financial barriers.

The Path Independence Argument

In his post, Goutham Shivshankar argued that we could accept that there exists a basic right to health, but that at the same time, there are different ways to achieve that (free testing being only one of them). According to this argument, while the right exists, the pathway towards it is a question of policy, which is up to the government to decide.

This tracks a familiar objection against the enforcement of socio-economic rights, and there are two responses to this. The first is that the Court’s order was an interim order, and was made in the presence of government counsel. If the government had an alternative pathway towards enforcement of the right to health, that could have been put forward during the hearing (indeed, socio-economic rights cases are normally dialogic in character, for exactly this reason).

However, there is a more important point here, which is that even in socio-economic rights cases, there is a “minimum core” – or a threshold – that is non-negotiable. For the reasons discussed in my initial post (summarised above) – as well as in Karan’s post – it is my view that in the case of the Covid-19 pandemic, testing is that minimum threshold, without which the right becomes illusory. Shivshankar takes the example of an alternative method – that the government provides testing kits and then allows Rs. 500 to be charged for the tests. I disagree strongly with the argument that because poor people spend Rs. 500 on quacks anyway, they should have no problem spending Rs. 500 on a test; however, that apart, if we slightly tweak the example, this is actually an excellent demonstration of how the Supreme Court’s order does actually allow for path-independence, subject to a threshold: because the government could choose to provide the testing kits and then reimburse private labs Rs. 500 per test – or it could reimburse them the full cost. What the Order says is that there should be no price barrier for accessing testing, as that is the threshold of enforceability; how that is accomplished is left to the government.

The Unintended Consequences Argument

It has then been argued that the Order is effectively unimplementable, and will lead to unintended consequences: for example, the government might stop buying PPE equipment, or testing kits, or dramatically reduce testing to make up for the budget shortfall; to address that, then, the Court will be sucked deeper and deeper into a policy vortex, and end up “supervising the pandemic.”

However, State action to subvert Court judgments is neither new, nor confined to the domain of socio-economic rights; recall classic examples where, following Court judgments to desegregate a swimming pool, city municipalities chose to close the swimming pool altogether rather than allow white and black people to swim together. The objection here is of a similar kind, and the answer is of a similar character: there exist enough tools under existing judicial review mechanisms for a Court to be able to gauge when a change in government policy is directly designed to circumvent its orders – indeed, just the basic requirement of asking the government to justify the change in policy will often reveal that there was no good reason for it other than circumvention (in this case, for example, consider the vast amount of money that has already gone into the PM-CARES fund); limited judicial enforcement to prevent that does not damage the separation of powers.

Conclusion

Readers of this blog will be aware that I am no fan of the Court’s past record when it comes to supervising government policy under cover of an expansive interpretation of Article 21. However, for the reasons advanced above, I am not convinced that an Order designed to mitigate the discriminatory impact of a price-barriers to testing in the context of a nationwide lockdown, which itself was designed to tackle a global pandemic, is an overreach. There are a number of factors about the Covid-19 pandemic, and the State’s responses to it, which – in my view – justify this Order.

It is clear, however, that we have not heard the last of this. The mechanism for reimbursement remains to be worked out, and various applicants have moved the Court asking – inter alia – that free testing be restricted to low-income groups. I will conclude by voicing my skepticism about this intuitively plausible solution: the whole point of a right is that it is universal in character. The point is defeated if you start means-testing in order to identify who deserves or does not deserve to access the right. If, therefore, the prior arguments in this essay are sound, free testing should be universal, and not selective (to the equally universal question of how do we pay for it – the State’s powers of progressive taxation exist for exactly that).

 

Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]

[This is a guest post by Dhvani Mehta and Akshat Agarwal.]

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The Supreme Court’s interim order on free testing by private labs has led to a lot of controversy while raising several interesting constitutional questions. Gautam Bhatia in his defence of the order argues that the coronavirus pandemic is not only a public health issue but also an issue of equality. Of course, all public health issues are ultimately questions of equality: a public health system should provide equal access to a uniformly high quality of healthcare goods and services. However, as has already been argued, this applies to all healthcare conditions, not merely the current pandemic. A weak public healthcare system always has a disproportionate, and therefore, unequal impact on the poor. Such inequality cries out for a universal healthcare system with access for all. Under such a system, this question of free testing would not have to be debated at all.

However, under an imperfect health system like India’s, with a fuzzy jurisprudence on the components of the right to health, singling out the right to access a diagnostic test for a particular disease (even though it is novel), on the ground of affordability, sets the precedent for piecemeal litigation that aims to make up for the deficiencies of public healthcare one disease at a time.

This is not to say that the public healthcare system cannot be made to account for its failings in court–the right to equality itself has been used effectively to guarantee access to treatment for vulnerable groups like HIV/AIDS patients and persons affected by leprosy. Accountability and transparency are key components of the right to health, and must be used in court to require the State to provide reasoned explanations for the deficiencies of its public healthcare system. However, if the Brazil experience is anything to go by, right to health cases that demand free access to a specific drug or treatment may be used perversely by those with the resources for such litigation, with the effect of skewing health spending priorities away from diseases that disproportionately affect the poor.

In our opinion, the outcome of the Court’s order is the right one. Individuals should not have to bear the costs of the test (We agree with Bhatia that the cost should be borne by the State). This seems especially justified in a scenario where the State is mandating testing, with potential legal liability for failing to get tested (in Delhi and Uttar Pradesh, this could attract a penalty under section 188 of the Indian Penal Code). However, we believe that it is justified primarily on the grounds of public health, rather than the right to health or equality.

In particular, we argue that:

1. The denial of a free test to an individual does not necessarily violate their right to health, given the nature of the disease, at least for asymptomatic patients
2. The argument that the right to a free test is grounded in the right to equality is essentially an argument for the right to access to universal healthcare, which must logically be extended to all healthcare goods and services, and not an issue of price discrimination, as has been argued in the petition and by Bhatia
3. The focus of the petition on the right to free testing is a red herring. It takes attention away from the more significant issue of access to treatment and expanding testing criteria.

Link between the Right to Free Testing and the Right to Health

 The denial of a free test to a person violates their right to health if it prevents them from obtaining the care they need. This is unlikely to be the case for asymptomatic persons, who do not exhibit any signs of the disease. Such persons are by definition not affected. There is no specific guidance for the management of asymptomatic patients apart from general precautions to prevent the spread of the disease that are available in any case through public advisories. Rather than the right to health of such patients, it is the right to health of persons around them that may be violated if they are infected because of a lack of testing.

It would be incongruous, however, to argue that the right to health of one person creates a right in another person to get tested in order to not be a carrier. Instead, this is more simply understood as a restriction on this other person i.e. one individual’s right not to get infected requires another person to obtain a test. This is a restriction that is imposed in the interests of the right to health of millions of individuals, collectively recognised as a public health interest. This interest requires certain individuals to be tested. This requirement cannot be equated with a right to access a free test.

The question is admittedly different for symptomatic persons, where the denial of a free test has direct consequences for their health. However, as we argue next, this is better characterised as the denial of universal healthcare, rather than discrimination on the basis of the price of a specific diagnostic test.

Right to Equality as a Right to Access Universal Healthcare

The argument for testing as an equality issue is framed as, “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.”

As we understand it, this argument states that the lack of testing available to the poor will cause a greater spread of the disease among them. This, in itself, is a disproportionate impact. However, when this is coupled with their lack of access to quality treatment, the impact is exacerbated. This boils down to an argument about the right to access universal healthcare. Before going there, though, a crucial evidentiary burden must be satisfied.

It must be proved that for people who are eligible to get tested under the ICMR criteria, the State is unable to provide adequate testing. These persons are then forced to approach private labs for testing. This assumes that the public health infrastructure is currently inadequate to provide free testing to everyone who is required to be tested. In present times, however, there is inadequate data to conclude that public healthcare facilities are unable to meet testing demands. It is also difficult to conclude the exact extent of reliance on private labs and whether the lack of access to them due to associated costs is effectively preventing patients who are required to be tested from getting tested for Covid-19.

Beyond general averments, the petition before the Court does not provide any specific evidence to this effect. In any case, assessing such evidence would take the court beyond the scope of its competence. This is because the question of access to a free test is a public health, not rights-based issue.

The right in question is that of the right to access universal healthcare. It is hard to see how the Court could ground the right to a free Covid-19 test under this head, without extending it to other healthcare goods and services.

Free Testing as a Red Herring

In light of the specific WHO guidance, it can be nobody’s case that large scale testing for Covid-19 is not essential. In India public health facilities have been testing free of cost and before the Court’s order, the government has also urged private laboratories to provide tests free of cost if possible. In fact, access to Covid-19 testing has also been made freely available to PM-JAY beneficiaries. Thus, it is well acknowledged that testing is important.

However, merely focusing on free testing is a red-herring since effective management of the Covid crisis requires a combination of strategies. At the level of the individual, it would mean timely access to trained health workers and healthcare facilities with sufficient means to deliver quality treatment. At the level of public health, effective management would mean public health strategies aimed at quarantine and containment accompanied with public communication to retain trust in the State and the healthcare system.

Preventing the spread of the disease will also require expanding the criteria for testing. Granting the right to a free test while limiting the persons who are able to avail of it can only go so far.

We believe that the right to access universal healthcare is an integral component of the right to health. However, the ramifications of this are so massive that it is an issue that deserves weighty legislative consideration rather than fragmented, and potentially unequal, decision-making in court.

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.]

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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.

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.]

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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.

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.

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.

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[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.]

Coronavirus and the Constitution – VII: Balancing Privacy and Public Health in Karnataka [Guest Post]

[This is a guest post by Basawa Prasad.]

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As per a press release published on 30/03/2020, signed by the Karnataka Medical Education Minister, a direction has been made asking all those who are quarantined at home over the COVID-19 outbreak to send a “selfie image” of themselves every hour from their home, failing which they may be housed in government-created mass quarantine centers. The press release also mentions that the selfie image sent will include location coordinates (global positioning system (GPS)) which informs the government where the sender is; it further notes that every selfie sent by a home-quarantined person is verified for its legitimacy by the state government’s photo verification team. The state government has, further, released a mobile application which reveals the addresses of COVID-19 patients in the state under which such exercise will be carried on. This decision to the use the mobile app for tracking of quarantined patients has also been adopted by the Delhi, Gujarat, Tamil Nadu, and Maharashtra governments.

This step taken by the Karnataka Government is in addition to its decision on 25/03/2020, to publish personal details of almost 20,000 quarantined persons including their door numbers, PIN code, and which country they travelled from, on the website of the Ministry of Karnataka Health and Family Welfare Services. Such publication of names has also been carried out in other States including Delhi, Rajasthan, Maharashtra, and Punjab.

These actions of the State Government, especially by the Government of Karnataka in response to fighting COVID 19, raise an important question of the conflict between the two fundamental rights: right to health and right to privacy, enshrined in the Constitution under Article 21.

Right to Health

The publication of the names, and the decision to track personal details of the quarantined persons, has been justified under the objective of curbing the transmission of the virus. The right to health has been recognized by the Hon’ble Supreme Court time and again as an integral part of the right to life and personal liberty. In furtherance of this protected fundamental right, in the present situation, the State is bound to take measures for creating awareness of the spreading virus, provide medical facilities to the infected persons, and take measures for preventing its transmission.

The easy nature of the transmission of the virus requires that the individuals have the information of infected persons, as well as of the persons from whom there is a possibility of infection, in order to take sufficient precautionary measures to not be in contact with them. The action of the State to make available this information can be claimed as a part of the fundamental right to health, and the right to live in a healthy environment protected under Article 21, under the guise of “public interest”. However, the question of abrogation of the fundamental rights of the quarantined persons arises, with their privacy rights being breached, through the disclosure of their personal details including, as well as the continues surveillance of their movement.

In this context, in the year 1989 ( the Lucy R. D’Souze Case), a petition challenging Section 53(1) (vii) of the Goa, Daman and Diu Public Health Act, 1985, which empowered the Government to isolate persons found to be positive for AIDS, was argued before the Bombay High Court. It was contended by the Petitioner that the impugned provision violated fundamental rights protected under Article 19. However, the Court, rejecting the argument, held that

Isolation, undoubtedly, has several serious consequences. It is an invasion upon the liberty of a person. It can affect a person very adversely in many matters including economic. It can also lead to social ostracization. But in matters like this individual rights has to be balanced the public interest. In fact liberty of an individual and public health are not opposed to each other but are well in accord. Even if there is a conflict between the right of an individual and public interest, the former must yield to the latter.

 

Right to privacy and Doctrine of Proportionality

However, in recent times, the Supreme Court has clarified that a clash between rights must also be adjudicated within the framework of proportionality.

The doctrine of proportionality stipulates that the nature and extent to which a law interferes with fundamental rights must be proportionate to the goal it seeks to achieve. The Hon’ble Apex Court in a 9 bench decision in Puttaswamy I, while upholding the Right to Privacy as a Fundamental Right under Article 21, laid down the criteria for determining proportionality, emphasizing on the aspect that the State’s action, infringing the rights of an individual, has to be least restrictive alternative, with the sanction of a law and in consistence with achieving its goals. Further, the right to privacy ensures that every State intrusion into privacy interests, which deals with the dissemination of information personal to an individual or personal choices relating to the individual, has to be subjected to the balancing test prescribed under the fundamental right that it infringes. The reason for doing so is to assure dignity of an individual; dignity can be assured only when an individual has an autonomy over their personal choices and control over dissemination of information.

When tested against the above principle, the decision of Medical Education Minister to track quarantined individuals has no constitutional backing. The said decision has been made through a “press release”; it is, therefore, an executive action of the Ministry. There is no clarity with regard to which law it has been authorised under. Even presuming that the government has invoked the Epidemic Diseases Act, 1897 or the National Disaster Management Act, 2005, neither of these laws authorizes the State (as rightly pointed out by Suhrith here) to track individuals and collect their data, without any safeguard. Therefore, it can safely be said that the executive decision has no sanction of law.

Moving further, the practice of tracking quarantined individuals has been adopted by several countries including Israel, China, Tiwan, and Singapore. Both Singapore and Israel have been enforcing certain procedural safeguards. For example, Singapore has mandated the using of mobile applications like Trace Together for quarantined individuals, which embeds a number of privacy-preserving features, such as data anonymisation, explicit user content to data sharing and no use of geolocation. At the same time Israel, while authorizing its internal security agency to track the movements of persons who have contracted the coronavirus and identify others who should be quarantined because their paths crossed, sets a limitation of usage of such data for a period of 30 days, with the permission of the attorney general.

However, in India, the states which have adopted the use of mobile applications to track the quarantined individuals, in complete violation of the Doctrine of Proportionality, provide no procedural safeguards. Furthermore, it is doubtful whether these moves meet the other prongs of the proportionality standard: i.e., the least restrictive alternative and the balancing test. For example, publicly stigmatizing individuals runs the risk of people – in the future – hiding their symptoms to avoid discrimination – a move that will be barrier for individuals to seek healthcare immediately, and to adopt healthy behavior. Thus, even if the goal is to preserve and maintain public health, measures such as these – which cause public stigma – are unlikely even to serve that goal on its own terms.

Coronavirus and the Constitution

Late last week, the World Health Organisation declared the outbreak of Covid-19 [“the Coronavirus”] to be a pandemic. While the epicentre of the disease is presently in Europe, it has also found its way to India, with numbers expected to rise sharply in the coming days and weeks.

The Coronavirus presents legislators, the government, and public health professionals with a series of complex policy challenges. Does the Constitution also have something to say about it? Over the years, the right to health has been read into the right to life under the Article 21; and if that right is to mean anything at all, it would require a set of steps to be taken to safeguard the population during a pandemic (see, for example, questions of access to HIV medicine in the South African Constitutional Court case of Treatment Action Campaign).

Here, however, I will discuss a different issue. As scientists have pointed out, the most effective method to combat the spread of the pandemic is through enforced “social distancing.” As the coronavirus spreads through contact, maintaining distance from an infected individual prevents further transmission. The problem, however, is that carriers of coronavirus are often asymptomatic, making detection and control (through quarantining and isolation) even more difficult. For this reason, authorities in a number of countries have now advised people – wherever possible – to work from home until the spread of the pandemic is adequately contained (or a vaccine is developed). Authorities have stopped short, however, of making this a requirement; thus, it is up to individual private employers to decide whether or not to allow their employees to work from home.

In this post, I want to suggest that giving an employee the choice between (a) exposure to the coronavirus by requiring them to come to work on the one hand, and (b) losing their job, on the other – amounts to forced labour under Article 23 of the Constitution. This is because Article 23 – as interpreted by the Supreme Court in PUDR v Union of India – understands forced labour to exist wherever the choices that exist before an employee are not genuine choices at all. Recall that in PUDR, the Supreme Court held that Article 23 – which applies between private parties, and not the State – guaranteed the right to a minimum wage. The basis of the Court’s judgment was that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” Clarifying this point further, the Court specifically noted that in situations of unequal bargaining power (as tend to exist between employers and employees), non-payment of minimum wage under the employment contract would be evidence that in entering into the contract, the worker had been “acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances … the word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives.“

In other words, therefore, the Court understood the word “forced” in “forced labour” to mean not just physical force (such as putting a gun to your head and “forcing” you to work), but as including any situation where an employer was able to leverage their institutional power (as the owner of property or capital) in order to effectively deprive a worker of legitimate choices. I have, elsewhere, defended this interpretation of Article 23. Here, I want to argue that the logic of PUDR applies squarely to coronavirus: telling an employee “choose between exposing yourself to a pandemic, contrary to express medical advice on the one hand, and losing your livelihood on the other” is an illusory choice in exactly the same way that telling them “work for less than a minimum wage or don’t work at all” is an illusory choice. Both are hit by Article 23.

I submit, therefore, that in the case of a pandemic, where a failure to follow the rules of social distancing and self-quarantining is expressly found to put an individual at a non-trivial risk of exposure, there is a presumptive, enforceable right to work from home. Here, however, there is a problem: in situations where working from office and working from home are broadly substitutable, the right is an absolute right; in a majority of cases, however, the job will require the physical presence of the employee. Now, in some countries, suggestions have been made to grant paid sick leave where required, with the government stepping in to help businesses recoup losses. We may consider that in a future post, but for my purposes here, I want to flag that in such cases, complete enforcement of Article 23 will nullify the employer’s right to freedom of trade under Article 19(1)(g). In such a case – where two rights under Part III of the Constitution clash – the Supreme Court’s recent RTI Judgment held that the doctrine of proportionality is to be applied – which, in practical terms, means that the two rights should be harmonised so that there is the least possible infringement of both.

What might such a harmonisation look like? I would suggest that where the nature of the work requires physical presence, the private employer is constitutionally obligated to put into place all required mechanisms to minimise the risk of exposure, in accordance with WHO advice (for example, the provision of hand sanitisers as disinfectants in the workplace, ensuring minimal distance between workers, and so on). This – I would argue – is the only correct method to balance the possible clash of rights under Articles 23 and 19(1)(g).

Consequently, the upshot of my argument is that (a) in workplaces where physical presence is not a necessity for the job, Article 23 grants to workers an enforceable right to work from a place of social isolation (which, in most cases, will be the home); and (b) in workplaces where physical presence is a necessity, the employer is required to take all reasonable measures to minimise the possibility of exposure.

It is important to note that in this post, the discussion has been limited to the relationship between employers and employees, within the scheme of Article 23 (and, where required, balanced against Article 19). The obligations of the State in such a situation – including a possible obligation to recompense private employers in situation (b) above – will be discussed in a future post.

 

 

 

Delhi High Court rules on Article 21 and Access to Medicine

Today, the Delhi High Court issued an important judgment on Article 21, the right to health, intellectual property and access to medicine. The issue in Mohd Ahmed v. Union of India is set out in the first paragraph:

“Whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about rupees six lakhs per month especially when the treatment is known, prognosis is good and there is every likelihood of petitioner leading a normal life.”

The petitioner, Mohd Ahmed, was/is suffering from a rare disease, called the “Gaucher Disease”. There is a known treatment – Enzyme Replacement Therapy – which, however, is extremely expensive, and the drugs required for it are manufactured by only three pharmaceutical companies. The reason for the high expense, as the Court explains, is the rarity of the disease – because the disease is so uncommon, pharmaceutical companies argue that they can only recoup their research and development costs by pegging the price at extremely high levels. In the language of IP, such drugs are known as “orphan drugs“.

It was argued on behalf of the petitioner that failing to provide him with treatment would be a violation of his right to health (read into Article 21 via the right to life). On behalf of the Delhi government, it was argued that there were various exceptions to the right to health – in particular, exceptions based upon the resources available to the government, and its own best judgment of what kind of healthcare it would prioritise. What this meant was that no individual person could make an enforceable constitutional claim upon the State for medicine – rather, it was up to the State to allocate its resources in a manner that ensured the best and widest possible healthcare to as many people as possible.

Thus, the basic issue in this case was: (given that the right to health has been read into Article 21), what amount of deference ought a Court accord to the legislature’s determination that the lack of resources do not allow it to provide medical treatment to a particular person? And, as a corollary, does the degree of deference change with the nature of the case, turning upon factors such as the patient’s poverty, the seriousness of the disease, the availability of treatment, and so on.

In its reasoning, the Court found that although a number of countries had specific policies in place to address the problems of orphan drugs, no such policy existed in India (paragraph 38 – 42). Because of the separation of powers, however, the Court could not require the legislature to draft a law or frame a policy. (paras 44 – 45). The only question, then, was the constitutional question: “does the government owe a constitutional duty to provide free medical treatment to the petitioner suffering from a rare and a chronic disease, even though the treatment is expensive and recurring.” (Para 46)

The Court, after referring to Article 21, extensively cited the ICESCR (see Article 12), and General Comment 14 to the ICESCR, which fleshes out in detail the content of the right to health. Citing the prior cases of Paramanand Katara v. Union of India and Paschim Bangal Khet Mazdoor Samiti, the Court held:

“Every person has a fundamental right to quality health care — that is affordable, accessible and compassionate.” (Para 59) The Court conceded that availability of resources was an important factor – and that in light of competing claims like education and defence, it could not “direct that all inhabitants of this country be given free medical treatment at state expense.” (Paras 62 – 63) Nonetheless, crucially – and directly echoing the ICESCR’s jurisprudence, that every right has a minimum core which is not subject to resource constraints and is directly enforceable – the Court held:

“By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health. This means that Government must at the bare minimum ensure that individuals have access to essential medicines even for rare diseases like enzyme replacement for Gaucher disease. Availability of a very expensive drug virtually makes it inaccessible.” (Para 68)

And:

“Government cannot cite financial crunch as a reason not to fulfil its obligation to ensure access of medicines or to adopt a plan of action to treat rare diseases. In the opinion of this Court, no government can wriggle out of its core obligation of ensuring the right of access to health facilities for vulnerable and marginalized section of society.” (Para 69)

And, in conclusion:

“Although obligations under Article 21 are generally understood to be progressively realizable depending on maximum available resources, yet certain obligations are considered core and non-derogable irrespective of resource constraints. Providing access to essential medicines at affordable prices is one such core obligation.” (Paragraph 87)

Today’s judgment does two important things. First, it clarifies the content of the right to health under Article 21. One of the signal problems with the Court’s Article 21 jurisprudence over the last twenty years has been the lack of clarity, and a cavalier, laissez-faire approach towards this constitutional provision. By more or less expressly incorporating the ICESCR – with its concomitant principles of what the scope of the right is, what the obligations of the government are (see, e.g., General Comment 14), and the adjudicatory principles of progressive realization, minimum core and non-derogable implementation with respect to the most marginalised sections of society, the Court brings determinate standards to its Article 21/right to health jurisprudence. This would be helpful in future cases involving the right to health.

Secondly, by expressly invoking the constitutional right to health in a case where the driver of inaccessibility is the regime of intellectual property (patent, in this case), the Court lays the foundations of a jurisprudence that has been gaining ground in many countries: the constitutionalisation of IP law. That is to say, although the Court does not deal with IP issues in this case, it makes it clear that the Constitution is relevant. This is important because of a divide within the IP regime: IP maximalists argue that the balance between various rights and interests – the right of the inventor to profit from his work, the interest of the public in fostering more innovation and creativity by protecting inventors’ rights, and the public’s competing right to access medicine – are all balanced within the IP regime, through inbuilt exceptions such as compulsory licensing. However, of late, there has been a critique of this position. Scholars like Helfer and Birnhack have argued that basic human rights such as the right to free expression and the right to health ought to be invoked to determine the scope of the IP regime and its exceptions. So, for example, when we’re dealing with question of photocopying school/college textbooks, and the question of how much copying constitutes “fair use” under the copyright regime, these scholars argue that the right of free expression and the right to education should be invoked in determining how much use is fair use (as opposed to the traditional analysis, which focuses only on what level of exceptions would foster greatest innovation, without considering problems of individual access (that might be barred because of poverty, unaddressed y the market).

By invoking the specific, individual right to health in a case where medicines have been priced out because of IP, the Court thus opens up the possibility of using constitutional law and constitutional rights in subsequent cases, where IP is implicated much more directly: for example, cases of compulsory licensing, or the scope of S. 3(d). Invoking the right to health, for example, it could be argued that in S. 3(d) of the Patent Act (see here), which denies patents for “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy  of that substance…”, and is aimed at preventing evergreening, the term “known efficacy” should be read strictly so as to ensure that essential medicines do not remain perpetually behind exorbitant patent paywalls. Whether that step is taken by the Court in future cases, of course, remains to be seen.

(Interestingly, today’s decision is similar in many respects to the famous South African case, Treatment Action Campaign v. Minister for Health, which is well worth a read)