How the Supreme Court’s Order on Free COVID-19 Testing Can Be Implemented

The Supreme Court recently passed an interim order in a PIL filed by a party in person directing the government to ensure that testing for COVID-19 is conducted free of charge in all private labs. The SC has kept the issue of reimbursement of the private labs by the government open to be considered in further hearings.

This arrangement created by the top court has raised much debate about not only the competence of the courts to pass such orders mandating philanthropy on few private players, but also its possible counter-productive impact of demotivating private players from undertaking testing, owing to uncertainty regarding reimbursement of testing charges.

Though at first glance, it appears to be a classic case of populist approach in the garb of judicial activism, the SC has in fact acted true to its Constitutional obligation as a sentinel qui vive. Under Article 142, the court has sufficient powers to make an interim arrangement and invoking the government’s obligations and powers under the Disaster Management Act, 2005 and Epidemic Act, 1897 read with Article 21 of the Constitution of India. Further, the court has taken every care for settlement of legal rights after hearing necessary parties, rightly leaving the issue of reimbursement open.

Also Read: Supreme Court Orders Private Labs to Conduct COVID-19 Tests Free of Cost

Supreme Court’s role in COVID crisis

The Supreme Court has shown much courage and foresight in dealing with the unique challenges presented by the COVID-19 crisis. It has passed an order in a suo motu petition with regards to the release of convicts and undertrial prisoners for offences punishable with 7 years imprisonment, on temporary basis. It had also issued directions for hearings to be held over video-conferencing in all high courts and district courts. It also issued orders extending the limitation period to all litigants, while asking the police to provide security to health workers.

While these orders are most welcome, they pose serious dangers in implementation.

Laudable orders often pose implementation challenges

US President Andrew Jackson reportedly once observed, “John Marshall [then the chief justice of the US Supreme Court] has made his decision, now let him enforce it.” History bears testimony to the fact that whenever the SC has risen to deal with a grim situation that the politically and economically grappled government was unwilling to handle, the orders remained on paper. A case in point is the judgment in the matter of Vishaka v. State of Rajasthan with regards to sexual harassment of women in workplaces. While the order was passed in 1997, it is only after the Supreme Court issued orders in a suo motu petition, acting on a letter written by activist Dr Medha Kotwal Lele regarding serious non-compliance of the guidelines, that the much-delayed legislation was enacted in 2013. In the 2012 Medha decision, the apex court even permitted the grievances relating to non-adherence of Vishaka be taken up before respective high courts, in a manner permitting unprecedented execution of SC judgments by the respective HCs.

Another case of where the top court’s judgment was not implemented was regarding the Salwa Judum. While the Supreme Court banned the extra-judicial militia in 2011 and directed an immediate investigation by CBI and necessary prosecution by the state, the government was unwilling to comply, leaving the judgment on paper. The only mechanism to indirect execution, filing a contempt petition, has failed due to the backlog that faces the judiciary. The judgment thus awaits implementation, nearly a decade later.

Yet another instance of non-compliance was the 1998 ruling mandating the conversion of the entire fleet of diesel-powered buses in the capital city to Compressed Natural Gas (CNG). The judgment was backed by strong scientific research that proved not only the dangers of pollution due to the consumption of diesel, but also the environmental safety and economic feasibility of CNG. However, the decision was not implemented for the longest time. It only saw the light of day after a prolonged hand-holding exercise by the court and several revisions in the timeline.

Also Read: Coronavirus v. Free Speech: Modi Government Opens New Battlefront in Supreme Court

In 2015, P.N.Bhagwati an eminent jurist and retired judge of the SC, commending the consideration of several practical issues in another order on CNG conversion, wrote, “Cases involving environmental pollution and other social issues require considerable material to be placed before the Supreme Court, in order to enable the court to come to a correct decision, not only legally but also socially.”

His statement was underpinned by the fact that constitutional courts need to devise implementable schemes considering the socio-economic factors, so as to ensure that the orders do not remain a point of discussion but reach its logical end and justice is done.

These decisions were the need of the hour but only brought awareness at first. Subsequently came delayed justice, or an undying hope thereof as in the case of Salwa Judum. However, in the present crisis, with the world being brought to a standstill and the death toll rising by the day, time is a luxury we cannot claim.

If the court insists that private labs conduct free tests without outlining an implementable mechanism, the lack of private support in increasing the testing capacity of the country is most likely. This will be counterproductive to the court’s intentions.

Need for free testing

The current testing statistics are alarming as India has conducted approximately 0.04 tests per 10,000 population. Countries like the US are conducting 18-19 tests per 10,000 population. The World Health Organisation, as well as health experts across the globe, have applauded India’s strong response to the threat of the coronavirus but have been unanimous in their opinion that the country is losing valuable time to increase the rate of testing.

Testing every symptomatic case will ensure a more sophisticated and data-driven solution to contain the virus. Testing has proven to be the most useful way to flatten the curve and bring the economy back on track in countries like South Korea.

Hurdles to implement SC’s order 

There can be no two ways about the urgent necessity to increase the rate of testing. However, making the tests free for persons who have the ability to pay for it would unnecessarily shift the burden to the government or private labs. Similarly, if the government mandates that private labs conduct tests free of cost without an assured and timely reimbursement, it may prove counterproductive due to the absence of incentives and lack of an enforcement mechanism.

On the other hand, asking the government to reimburse the cost at a time when it is already overburdened by expenses on food supplies, funding for public healthcare and economic support, may also be equally difficult.

Here, it needs to be recollected that the government had initially insisted that private labs conduct tests free of cost in mid-March, leading to an uproar. This led the government to cap the cost of the test at Rs 4500.

Overcoming the hurdles

In this situation, a practical solution and one that has the least hassles would be to modify the interim arrangement and direct the government to include COVID-19 testing under Ayushman Bharat. This health insurance scheme, according to the government, caters to the bottom 40% of the country’s poor. The provisions of the Disaster Management Act, 2005 and the Epidemic Act, 1897 can be invoked to issue directions to include COVID-19 testing in the insurance schemes. The 67 approved private labs may be treated as network institute to claim an amount of Rs 4500 per test, which in turn would provide cashless transaction to the beneficiary families.

The scheme currently covers over 100 million households up to treatments worth Rs 5 lakh per family per annum, based on the socio-economic caste survey conducted in 2011. The scheme is implemented through nearly 18,000 public and empanelled hospitals, 53% of which are private institutes. There is no better time or occasion to include COVID-19 testing under this scheme. Different state governments also have similar health insurance schemes. For instance, the Mahatma Jyotiba Phule Jan Arogya Yojana in Maharashtra may be considered for incorporating the COVID-19 testing claims as well.

The implementation of free testing through the medi-claim route would ensure that the burden is not borne by the government but the third party insurance companies to whom the premium for each of the beneficiary families is already paid by the government. It would be justified to add a slight burden to the insurance companies, in light of the reduced accident insurance claims in the prevailing situation of nationwide lockdown. This would ensure continued motivation for the private labs to continue testing at a fast pace. Further, it would only solve the problem where it exists, among the poor and needy, leaving the rest to bear their own testing costs.

Concluding thoughts

If the other pillars of the government resist the implementation of the Supreme Court’s orders in its truest spirit, and private players refuse to obey the directions, the top court would be severely weakened. We cannot afford to win personal battles at the cost of a discredited Supreme Court in a country where the common man continues to have faith in it to uphold fundamental rights. The mantle rests as much on the constitutional courts as on the stakeholders to face this crisis with grace and far-sighted understanding of the situation.

India is a country looked up to by many other developing nations as one where human rights are championed by an independent judiciary. The SC orders only stay true to its reputation in times of this unprecedented crisis, the magnitude of which surpasses anything faced by the courts of independent India.

Pradnya Talekar is an advocate who is a partner in Talekar & Associates.