The Supreme Court of India on 8 April directed the government to provide citizens with free COVID-19 testing not only in government laboratories but also at private laboratories approved by the Indian Council of Medical Research (ICMR) or the World Health Organization (WHO).
The apex court, hearing the case of Shashank Deo Sudhi v Union of India, also sought that all tests related to COVID-19 are conducted under the National Accreditation Board for Testing and Calibration Laboratories (NABL) or ICMR-accredited pathological labs.
The court, giving its decision a moral dimension, said private hospitals and laboratories have an important role to play in containing the scale of the pandemic by ‘extending philanthropic services in the hour of national crisis.’
On the face of it, it seems to be a very good decision, but from a pragmatic point of the order's cons outweigh its pros.
Jurisdiction
The courts are mandated to rule on constitutional and legal matters. They should not interfere in the matters of the executive or legislative unless there is a breach of constitutional values and provisions.
Political question
The courts are not expected to step out of their legitimate powers under the garb of judicial review or enforcing fundamental rights, when discussing a political question. A political question is an issue which is best settled politics of the State, and should therefore, be determined by the legislature or the executive and not the courts.
The issue of making the tests at private laboratories free of cost is related to public business, and requires knowledge of State finance, therefore the government must decide such an issue. Simply because the government is administering the situation and is much more aware of the issue.
In State of Rajasthan v. Union of India1, the scope and ambit of the political question doctrine and its application in Indian constitutional law was considered by the Supreme Court.
The apex court stated:
“The court does not possess the resources which are in the hands of the government to find out the political needs that they seek to observe and the feelings or the aspiration of the nation that require a particular action to be taken at a particular time”
Policy issue: The duty of the judiciary is simply to give effect to the legislative policy of a statute in the light of the Constitution and not to reconstruct or create a policy. The court does not have jurisdiction any such issue since no legal question is involved.
In Peerless General Finance and Investment Co. Ltd. v. RBI2, in which J Kasliwal observed:
“Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.”
To put it simply, the court doesn’t have enough practical or academic acumen to decisively know what will be fallout of making testing free. Since this doesn’t involve any metrics of legality, court should have stayed out of the issue.
Bad economics
The court has mentioned that the liability of the government reimbursing the private labs will be decided afterwards. Since this has been left open-ended and also at the discretion of the court, this is enough ambiguity for any business to shut shop.
The nature of the reimbursement cannot be predicted: the court can direct the Centre to make the full payment or issue an order to cover part of the payment. No private lab would invest its money and resources on such an unanticipated supposition.
This will in turn lead to shutting down of private labs, as it will make no economic logic for them in the absence of a quid pro quo, when resources are limited. Once private labs start shutting down, there will be an acute shortage of testing facilities, because those who can afford private testing will also become more vulnerable to the disease due to shortage of equipment.
Therefore, the decision which seems pro-poor is actually anti-poor. There was no need for such an order by the Supreme Court when the government laboratories are already conducting tests for free. We can only hope the government reverses this decision through an ordinance soon.
Raghav Pandey is an assistant professor at Maharashtra National Law University, Mumbai. Divya Singh is a B.A. LL.B. (Hons.) candidate at Maharashtra National Law University, Mumbai
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