The Court had passed an interim order on 08.04.2020 making COVID-19 tests free of cost irrespective of the ownership of the labs. Further, directing that the tests must be carried out in NABL accredited Labs or any agencies approved by WHO/ICMR. The bench held that Rs. 4,500, being charged by private labs for such tests, was not viable. [Shashank Deo Sudhi v. Union of India]. However, on April 14, the Supreme Court modified its earlier order of April 8, 2020, in view of an intervention application.
The Intervention Application
The order was passed in view of an application filed by Dr. Kaushal Kant Mishra. Dr. Mishra claimed that the Court’s order directing private labs to test Coronavirus at no cost will “disincentivize” them from functioning. The doctor gave evidence that in the UK, tests for detecting COVID-19 by private labs are not free. He stated that private labs had put COVID-19 testing on hold until there was more clarity on the financial front. Thus, if the government does not provide immediate reimbursement to private labs, there is a real risk that the labs may stop testing for COVID-19. This will pose a direct risk to the health of all people through unknown transmission and contraction of the disease.
Arguments put forth by the Parties
Shashank Deo Sudhi, the original petitioner maintained that the middle class cannot afford these tests. The Apex Court replied, “Government has created classifications. Even in income tax you have slabs according to earning”. Union Ministry of Health and Family Welfare is directed to consider whether any other categories of the weaker sections of the society should also be given the benefit. Then, issue guidelines within a period of one week.
Tushar Mehta, Solicitor General stated that the government, despite limited resources, had put in a lot of effort to contain Coronavirus. “The fight against disease may go on for two more months. People have to be tested only if doctor certifies. Tests for novel Coronavirus is not like a sugar test that one goes to a lab and gets it done.”. “But now 157 labs are there. You will be amazed at the amount of effort put in. Railway coaches are turned into hospitals,” he said.
Indian Council for Medical Research (ICMR) in its affidavit stated that all tests in government laboratories are free of cost. Adding that “till now 87.28 per cent of patients have been tested at the government hospitals”. The fees are capped only so that private labs don’t exceed this ceiling. Also, 139 government facilities are opened for COVID-19 tests where one can undergo free COVID-19 testing irrespective of financial status.
The Court held that private labs can continue to charge the testing fee Rs. 4,500 as fixed by the Indian Council of Medical Research (ICMR) from patients “who can pay“. Moreover, the government is directed to laydown guidelines for private labs to reimburse the cost of free tests undertaken by them.
“Free testing for COVID-19 shall be available to persons eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana as already implemented by the Government of India, and any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19, hereinafter.”
-The Division Bench of Justices Ashok Bhushan and Ravindra S Bhat held in the new order.