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 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. 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.
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
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
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.
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
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. 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.
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
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.
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.
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