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Is Supreme Court Favours Humanitarianism By Providing Free COVID-19 Testing?

The world is facing the biggest crisis in the form of coronavirus pandemic due to which the precious lives of many people are in danger. More than 180 countries[1] are affected by this coronavirus outbreak, and the number of patients globally are still increasing on a very high rate, and this pandemic brought the whole world to almost complete lockdown.

In the rage of this pandemic, many countries are facing a shortage of testing kits, and so as India is facing a similar situation. Many countries are dependent on China for the supply of testing kits and PPE's, but china is supplying sub-standard testing kit to many countries due to which many people who are suffering from coronavirus are not found positive in the test, and ultimately every country needs to find their way during this pandemic.

In the wake of this pandemic Indian government is trying their utmost to do maximum COVID-19 tests every day, since government laboratories in India are already flooded with so many patients to combat with this vital issue many Indian private laboratories have taken the responsibility to make testing kits which will provide great relief to the government laboratories and will increase the testing speed in India.

According to the reports of ICMR, there is a total of 292 Government Laboratories that provide the Covid-19 testing facility whereas the total number of Private Laboratories that provide the Covid-19 testing facility is 97[2]. The population of India is huge, and from the above-mentioned data, one thing is for sure that India lags behind testing facilities and the total number of testing laboratories is not sufficient.

Background of the Issue
The Indian Council Of Medical Research's (ICMR) on 17.03.2020 issued guidelines for COVID-19 testing in private labs in India and finalized the maximum charge for COVID-19 test, by private laboratories should not exceed Rs. 4,500. This includes Rs 1500 as a screening test and Rs 3000 for a confirmation test for suspect cases of coronavirus[3].

And violation of the above advisory under SECTION 10(2)(i) of the Disaster Management Act, 2005 would invite punishment of up to 2 years of imprisonment. However, The Indian Council Of Medical Research's (ICMR) also encouraged private laboratories to conduct testing free of cost in this hour of a public health emergency.

On 31.03.2020 a PIL ( Public Interest Litigation) was filed in the Supreme Court by Shashank Deo Sudhi, an Advocate practising in Delhi. The Petitioner demand free of charge testing facility for COVID-19 in all testing labs whether its Government testing labs or Private testing labs.

He also requested that testing be conducted by accredited National Accreditation Board for Testing and Calibration Laboratories (NABL) labs or any agencies authorized by the Indian Council of Medical Research (ICMR) and the World Health Organisation (WHO).
Supreme Court considers the difficulties of the weaker sections

When Indian Council of Medical Research's (ICMR) fixed the price for COVID-19 test Rs 4,500 then this hefty amount may not be affordable for the poor and marginalized section of the society who were already facing a crisis in this pandemic. Upon, hearing the issue the bench of justices Ashok Bhushan and Ravindra S Bhatt on 8th April 2020 passed an interim order directing the government to make sure that testing for COVID-19 is conducted free of cost in all private and government laboratories[4].

The bench also directed the government that the COVID-19 tests must be conducted in laboratories accredited by National Accreditation Board for Testing and Calibration Laboratories (NABL) or agencies authorized by the Indian Council of Medical Research (ICMR) and the World Health Organisation (WHO).

The said order by the Hon'ble Apex Court has raised debate regarding the competency of the courts and was not wholeheartedly welcomed by a large section of people, especially by private labs as it'd have forced the private labs to suffer loss and it also creates dilemma concerning the reimbursement of operating charges.

Kiran Mazumdar-Shaw, Chairperson of the Biocon Ltd criticized the order of the Hon'ble Apex Court and said it is impractical to make all the testing free as it will lead in huge losses to the private labs. As the private labs cannot run their business on credits, this would decrease the efficacy of the tests.

Need for free testing
According to the recent data, the current COVID-19 testing rate is a matter of anxiety as India has done approximately 602 tests per 1 million population. Countries like the US are conducting 19,240 tests per 1 million population. The World Health Organisation and many health experts around the world, have praised India's strong response to the threat of the coronavirus pandemic but have been congruent in their opinion that the country is losing precious time to increase the rate of COVID-19 testing.

Testing every individual with coronavirus symptoms will make sure a more sophisticated and data-driven solution to curb the virus. Testing has proven to be the most effective way to flatten the curve and once again bring the economy back on track in countries like South Korea.

Hurdles to implement SC's order
The Supreme Court decision to make testing free for persons would shift the burden to the government or private labs because many people who can pay for the tests will get unnecessarily benefit from this decision. However, if the government directs that private laboratories conduct tests free of charge without any guarantee of immediate reimbursement, it may prove fruitless due to absence of incentives and there is a high risk that private laboratories may stop testing for COVID-19.

On the other hand, asking the government to compensate the cost at the time when it is already overburdened by the outlay of food supplies, funding for public healthcare services and economic support, may also be equally strenuous.

A way out by Supreme Court
Petitions were filed in the Hon'ble Apex Court pleading to reconsider the order and amend the same to sigh consolation to the private labs. The petition asked the Supreme Court to allow private laboratories to follow the rates for COVID-19 tests as fixed earlier by the Indian Council Of Medical Research's (ICMR).

The petition noted that in the U.K., private laboratories were charging Rs 32,500[5]. According to the lawyer of the petitioner, the April 8 order of the court placed an unfair burden on private laboratories. It discouraged private laboratories at a time when India required to test more and more to identify COVID-19 cases and to stop its spread. The petition also said the court had not cleared on reimbursing private labs their total expenses, only saying this would be considered later.

Hon'ble Apex Court on 13th April 2020 modified its order considering the difficulty of the private labs and also forming its justification on the fact that the private labs were already doing free of cost tests for the people coming under the Pradhanmantri Jan Aarogya Yojana, also known as Ayushman Bharat Yojana, the number of such beneficiaries is approximately around 50 crores[6]. Apex Court also made it clear that the previous order was planned to make the COVID-19 testing free of cost only for the economically weaker sections (EWS) of the society and not for those people who can easily afford such test.

Therefore, the modified order of the Supreme Court contains directions that the free testing for COVID-19 by the private lab is only for the people who are covered in the Pradhanmantri Jan Aarogya Yojana and the people who come under the economically weaker sections which the government by notification may consider.

According, to this order the people who can afford the COVID-19 testing they shall be charged as per the order of Indian Council Of Medical Research's (ICMR). Apex Court also filled the void part left in the last interim order related to the reimbursement to the private labs. The central government and the Ministry of Health and Family Welfare will issue required guidelines for the reimbursement to the private labs that are doing free tests as directed by this order. Hence, the difficulties of Private labs has been significantly taken care in the new order.

Conclusion
In a country like India, where everyone is not financially sound, and so this step by the Supreme Court is the need of the hour. Article 21 of the Indian Constitution guarantees that every citizen of India has a right to medical aid and imposes an obligation on the government to protect the right to life of every individual and provide adequate medical facilities to every person.

Therefore, by shedding light on the issue that economically weaker sections of society will not have to afford the expenses of COVID-19 tests, the Hon'ble court has protected their Social Interest.

India is country looked up to by many other developing countries as one where an independent judiciary protects human rights. Every citizen needs to support the decision made by the Supreme Court. We cannot afford to win personal battles at the cost of a discredited supreme court in a country where a common man continues to have confidence in it to uphold fundamental rights.

End-Notes:

  1. Vasanthi Vara, Coronavirus outbreak: The countries affected, Pharmaceutical Technology, 16 APRIL,2020,https://www.pharmaceutical- technology.com/features/coronavirus-outbreak-the-countries-affected/ (Last Visited 08-05-2020)
  2. Sanika Diwanji, COVID-19 public and private testing centres India, Statista, May 1, 2020,
    https://www.statista.com/statistics/1104075/india-coronavirus-covid-19-public-private-testing-centers-by-state/ (Last Visited 09-05-2020)
  3. Neetu Chandra Sharma, Covid-19 test should not cost more than ₹4,500: Centre tells private labs, Live Mint, 22 March 2020. https://www.livemint.com/news/india/covid-19-test-should-not-cost-more-than-rs-4-500-centre-tells-private-labs11584817157440.html (Last Visited 08-05-2020)
  4. Aneesha Mathur, Supreme Court Orders free coronavirus testing at private labs, India Today, April 2020,https://www.indiatoday.in/india/story/supreme-court-orders-free-coronavirus-testing-at-private-labs-1664802-2020-04-08 (Last Visited 08-05-2020)
  5. Krishnadas Rajgopal, Coronavirus | Supreme Court urged to modify order on free COVID-19 testing by private labs, The Hindu, April 11, 2020, https://www.thehindu.com/news/national/coronavirus-supreme-court-urged-to-modify-order-on-free-covid-19-testing-by-private-labs/article31316430.ece (Last Visited 07-05-2020)
  6. Japnam Bindra, SC clarifies free Covid-19 testing at private labs only for poor, Live Mint, April 14, 2020,https://www.livemint.com/news/india/sc-clarifies-free-covid-19-testing-at-private-labs-only-for-poor-11586784990810.html (Last Visited 08-05-2020)

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