The Honourable Supreme Court of India (SC), through its judgement in Shashank Deo Sudhi Versus Government of India & Ors. 2020 case has made tests for COVID-19 free for all. That is, no one has to pay for getting themselves tested for Corona Virus Disease. This has certainly come as a big relief for many, especially because the private players were earlier charging Rs 4500 —- which is, by all standards unaffordable, even for the majority of India’s middle class. Prima facie, the judgement looks very sensible, timely and something that was urgently needed. However, looking at the intricacies of the judgement, it consists a serious flaw, which may potentially run counterintuitive to the purpose of the judgement – i.e. to maximize the number of tests.

The Court on the issue of reimbursement said, “that the issue whether private laboratories are entitled to reimbursement from government for the expenses incurred for COVID-19 tests will be considered later”. Stripping them off of opportunities to make money is counterintuitive to their purpose of being in business. The court’s activist approach will only discourage the private firms to continue testing patients. If these private labs are discouraged to conduct tests, then a lot of cases will go undetected because the network of government funded labs is pretty thin. While the WHO and other epidemiologists have requested governments around the globe to consider a 3T approach, that is, to Test, Trace and Treat; this order by the SC will certainly discourage the private players to test, deflating the number of total tests happening in the country, which is already extremely thin (with respect to the estimated number of those infected).

WHO has advised that mere lockdown will not help. It suggested that the lockdown can only buy time to prepare for COVID-19 and the lockdown in itself is not the cure. While, undoubtedly the government is upping its ante and creating make shift hospitals and other isolation wards, but this will always be of no use if we have not tested sufficiently and we have no infrastructure to know who all are infected. If we leave even a single infected person untraced, we will fail to break the chain of infections. We must not discount that the virus started from a single person in Wuhan and from him/her, today more than 1.5 Million people are infected globally.

Presently, a person is eligible to be tested for COVID-19 only if he has travelled abroad on or after 1st March 2020, or has been in direct contact with a COVID-19 positive person. Those who are showing symptoms but not fulfil the above stated prerequisites are not tested. It has been a fortnight since the lockdown is in place, however, till today the average number of tests conducted are not satisfactory. India has a population of 1.37 Billion people and less than 100,000 tests have been conducted till date. Also, a lot of people have been tested 5-7 times in total, meaning thereby that total number of persons tested till date is certainly much lesser than 100,000. Considering the scantly number of tests performed per million people in India, the SC should have made way to enable an environment where the number of people being tested grow exponentially, though, with the latest judgement, it will do quite the opposite.

The SC should have directed the Union government to suitably and timely reimburse the private players against the tests they would perform. Also, considering the professionalism and efficiency of private players, SC should have ordered government to allow more private players to perform the test. Also, SC shall keep in mind the financial implications a business would suffer while pronouncing a judgement. This activist nature of the court fails to make way for the end goals of the purpose. They just seem to garner larger appreciation but ineffective at a policy level.

The economic opportunity cost of Lockdown is too high to be ignored. Experts are suggesting that 3% of GDP growth will be shaved off due to lockdown. As per the latest report of CMIE, India’s urban unemployment rate has soared to 30.9%, and overall unemployment rate has risen to 23.4%. These figures will only rise in coming times. A United Nations report also suggested that about 400 million workers in India may sink into poverty, due to lockdown and the crashing economy.

While, the lockdown was inevitable, we must make the best use of this time to create capacity, and an enabling environment. The government, the civil society, the bureaucracy, and the judiciary must all join hands, keeping each other’s best interest in mind, and avoid any activism or overreach. There is no time to experiment or make mistakes. A lot is at stake.

Disclaimer : This piece is not a criticism of the Supreme Court and is limited to a critique of the judgement in question. The data produced in the article is subject to change rapidly. Readers must acknowledge this limitation and read the article accordingly. The latest data can be accessed at https://www.mohfw.gov.in

 Shariq Us Sabah is a Published Writer, Economist and Public Policy executive.


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One Comment

  1. Avatar New Socialist Alternative says:

    In conjunction with the previous comment on the article, it should be mentioned that the authors
    ‘s prayers have been heard, the Supreme Court rescinded on the directions it had made earlier, thus succumbing to the the pressures of the Private Health Industry’s well oiled lobbying.