COVID-19’- Free Testing*

*Terms and Conditions apply.

-Mr. DIVESH SAWHNEY

-Mr. SANYAM AGGARWAL

All the head honchos running private laboratories in India stood shuddered, moments after the top Court passed an interim order dated 08.04.2020, directing that the approved private labs shall conduct testing for ‘Covid-19’ free of cost. The Court in that order had deferred the question of reimbursement of expenses and abstained from making any comment regarding the same, which in turn made the order seemingly obscure. In response to the aforesaid order, a modification plea was moved which sought ‘free testing scheme’ to be limited to EWS category, that too with immediate reimbursement. The Interim application for modifying the interim order contended the fact that at this time when testing capacity should reach its peak to contain the spread of this pandemic, such an order would disincentivize the functioning of well-equipped private labs, and therefore impact the financial viability of running them.

The hyperactive approach of the top Court, in these unprecedented times we are faced with today, though laudable in a great many ways, failed to put forth any legal backing for the interim order. Similar incoherent impression can also be found in the Disaster Management Act, 2005 or for that matter, in the Epidemic Diseases Act, 1897 empowering the ‘Courts’ per se, to make such orders. It is to be emphasized that the Court is bound by strictures of principles of law, meaning thereby, sentiments and sympathy cannot be the only guiding factors while iterating orders.

The prior interim order passed by the Hon’ble Supreme Court could indubitably be termed as ‘the epitome of judicial solicitude’, but per contra, the legal ramifications of the order were hazy. ‘Separation of powers’, inter alia, is a Constitutional mandate, not a mere arrangement of convenience. If Courts could demand the origination, extension, or perpetuation of public benefit legislations (like the ‘Free Testing’ scheme) whenever deemed a necessity, it would act as an ostensible conduit of power resting with the judiciary to delineate the operations of public treasury. Such power impervious to the Constitutional requirement, would nullify the principle that imposition of taxes and handling its proceeds is a function of an elected representative body- the Parliament, correspondingly, the State Legislature. To put it more succinctly, social welfare measures should be extended only as far as they are authorised by the active amendments of elected legislatures.

In the rather latest turn of events, the Apex Court vide order dated 13.04.2020 did not cease to amaze us, while allowing the modification plea. The Court clarified and modified its order to limit the free testing to the beneficiaries of ‘PM Jan Arogya Yojna (PMJAY)’ (who were already covered for free testing even prior to the 08.04.2020 order, courtesy various orders issued by Ministry of Health and Family Welfare). Additionally, the Court opined that the Government may consider whether any other categories of the weaker sections of the society are also eligible for free testing. The Hon’ble Supreme Court, quite evidently, took a u-turn over its erstwhile order and emphatically re-casted a directory ‘shall’ into a mere recommendatory ‘may’. Candidly, can we claim the temerity to state- All it took was a Ld. Sr. Counsel to turn around the tables for the private laboratories? Not only was the Court pleased to limit the ‘free testing’ relief to beneficiaries of PMJAY (though otiose), it also advised the Government to issue guidelines for immediate reimbursement of cost of ‘free testing’ undertaken by private labs.

Beneath the legalistic formalism lies the artificial rigour, tacit in the Constitution. The Hon’ble Supreme Court in the 13.04.2020 order noted- “We are conscious that framing of the scheme and its implementation are in the Government domain, who are the best experts in such matters.” The latter order itself resonates the ‘doctrine of Separation of Power’, which was rather diluted by the Court in its erstwhile order. Any displacement from this doctrine will run contrary to the letter and spirit of the Constitution. Albeit the Court can direct the government, at times  the government seems to desist from its derelictions of duties, the appropriate power to legislate and bring forth government benefit schemes for public welfare lies with the legislature.

Rather interestingly, the Court in its order dated 08.04.2020 found prima facie substance in the plea of the Petitioner that availing services from private labs at INR 4,500/- for screening and confirmation test of Covid-19 may not be within the means of a large part of the population. Now, just 5 days later, the Hon’ble Court did not even tangentially touch upon the aspect of this unquestionably ‘exorbitant’ amount capped by Indian Council for Medical Research while pronouncing its order. It seems that the arguments put forth by the private laboratories were simply re-hashed by the Court.

The 13.04.2020 order of the Apex Court in the modification plea seems to be a review of its earlier order. Now the Court by deploying the term ‘may’ a great many times, abstained from ass