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Free COVID-19 Testing in Private Labs: Here's Why It's Not Right to Criticise the SC Order

The Supreme Court had a larger national and international panoramic picture in mind while issuing the interim direction on April 8.

Why is there a hue and cry over the Supreme Court’s order, dated April 8, 2020, mandating free testing of COVID-19?

What did the Supreme Court order say?

The Supreme Court had directed the government to ensure that all approved laboratories – government or private – should conduct COVID-19 tests free of cost. This was a mandamus to the government. A mandamus had to be issued as the government had continued to dither and a public spirited person had knocked at the SC’s door.

Once again, the SC had to step in where the government had left a void.

Indeed, why did the government not make testing free while announcing the countrywide lockdown on March 24? In a national calamity and disaster, the government must bear all expenses. This is the least that a welfare state can and must do.

India has to unite as one. Barriers of government laboratories, private laboratories, rich, poor, upper caste, lower caste, Hindu and Muslim and any other religion must be dismantled for fighting a disease such as COVID-19.

Every person in India must have the right to be tested in the nearest approved laboratory. This is no time to quibble over the Rs 4,500 cost per person. Surely the government should bear it. This is no time for the government to be mercenary and extract Rs 4,500 from every rich person before carrying out a test. Many rich men and women have been voluntarily donating anyway and will likely continue to do so.

Innate goodness is hidden in every soul and it has started surfacing.

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

The Supreme Court, however, had a larger national and international panoramic picture in mind while issuing the interim direction on April 8. The apex court did not want testing to be impeded or hindered for the lack of Rs 4,500 in any pocket. This was the crying need for India and the Supreme Court rose to the occasion.

Private laboratories are, however, apprehending that they would be crippled financially. There is some justification for such an apprehension. Government must, therefore, boldly announce that every rupee for carrying out testing would be reimbursed.

And reimbursed swiftly, unhindered by wheels within wheels of complex government machinery.

Significantly, the apex court observed that the question of reimbursing private laboratories will be considered later. The order reads, inter-alia, as follows:

“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, SC gave sufficient hints to the government that if it does not rescue private laboratories on its own it may be constrained to issue another mandamus. But when has government spent funds on public health generously? India’s track record since 1947 in this respect is uninspiring.

Those criticising the SC may note that the court declined to hear the PIL without the government being represented. On April 3, SC directed the petitioner to serve a copy of the petition to the Solicitor General of India (SG). The SG participated in the proceedings on April 8, when the SC issued notice. Two weeks’ time (till April 22) was allowed to the government to file an affidavit in reply. So, the government had, and still has, every opportunity to make its submissions.

Also read: Rs 15,000-Crore COVID-19 ‘Emergency Package’ But Questions Remain on Govt Strategy

The question will still arise as to the magnitude of the cost. From which account will the government pay? Even if one crore tests are carried out by private laboratories, it would cost Rs 4,500 crores.

Immediately Rs 3,800 crores of PMNRF funds (lying in a bank) can be utilised to pay for this. Also PM-CARES funds (government could do well to disclose the credit balance) can be utilised to pay for the rest. Additional expenses, if any, can be directly made from the coronavirus emergency package. These expenses are insignificant in the present context.

It has become fashionable to bash the judiciary at the drop of a hat. Of course there have been huge aberrations in the immediate past. These aberrations cannot drown outstanding judicial statesmanship that the SC has displayed by its resolute free testing of COVID-19 order.

Bishwajit Bhattacharyya is former Additional Solicitor General of India and senior advocate at the Supreme Court of India.