The Supreme Court on Monday modified its April 8 order which asked private labs to conduct free COVID-19 tests and said the benefit will be available only to "economically weaker sections" who are covered under a government scheme such as the Ayushman Bharat.
The top court said it never intended to make testing free for those who can afford to pay.
It had on April 8 directed that private labs, which were allowed to charge Rs 4,500 for COVID-19 tests, would not charge for the tests observing that they need to be philanthropic in the hour of national crisis.
A bench of Justices Ashok Bhushan and S Ravindra Bhat took note of the pleas of two persons, including orthopedic surgeon Kaushal Kant Mishra, who said that if the testing is made free for all, private labs will be overburdened financially and would slow down the tests for the novel coronavirus or COVID-19.
“Having heard, counsel for the parties, we are satisfied that sufficient cause has been made out to clarify and modify our order dated April 8, 2020," the top court said.
It added: "The order dated April 8, intended to make testing in private Labs of COVID-19 free for economically weaker sections of the society who were unable to afford the payment of testing fee as fixed by ICMR for COVID-19.
“We further clarify that the order never intended to make testing free for those who can afford the payment of testing fee fixed by the ICMR for COVID-19”.
The top court took note of the submissions of Solicitor General Tushar Mehta and senior advocate Mukul Rohatgi that according to the directive of National Health Authority under the Ayushman Bharat Yojana, the COVID-19 tests were being conducted free of cost in all private laboratories even when the order was passed on April 8.
“We make it clear that the benefit of free testing by a person can be availed only when he or she is covered under any scheme like Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana.
"We are also of the view that looking to the plight of persons belonging to economically weaker sections of the society, the Government may consider as to whether any other categories of persons belonging to economically weaker sections of the society can be extended benefit of free testing of COVID-19,” it said.
The court said it was conscious of the fact that framing of the scheme and its implementation were in the government's domain who are the best experts in such matters.
Modifying the order, the bench said, free testing for COVID-19 shall be available to persons covered under the Ayushman Bharat scheme and “any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19, hereinafter”.
It said the ministry of health and family welfare may consider as to whether any other categories of the weaker sections of the society may be granted the facility of free testing.
“The Government of India, ministry of health and family welfare may issue necessary guidelines for reimbursement of cost of free testing of COVID-19 undertaken by private Labs and necessary mechanism to defray expenses and reimbursement to the private Labs,” it said.
The court said the central government was required to give “appropriate publicity” the modified directions.
Rohatgi , appearing for some private labs, submitted that ICMR has fixed moderate charge of Rs 4,500 for COVID-19 tests to cover the expenses of labs and moreover, persons covered under the ‘Ayushman Bharat Yojana' are tested for free of cost.
In case the Labs are not to charge any fee for the tests, it will be impossible for them to carry on the test due to financial constraint, he argued.
Law officer Mehta referred to the ICMR affidavit and submitted that the government is taking all necessary steps for conducting the COVID-19 test and as on date, 157 government labs and 67 private labs are conducting COVID-19 test.
“All government hospitals and government labs are conducting COVID-19 test free of cost,” Mehta said.
Lawyer Shashank Deo Sudhi, who had filed the PIL in personal capacity, said there are large sections of society who are unable to afford even Rs 4,500 for COVID-19 test and the government has to take responsibility of getting every person tested.
Orthopedic surgeon Mishra had moved the top court seeking a modification of the courts April 8 order directing authorities to ensure COVID-19 tests in approved private laboratories be conducted free of cost.
He had filed the intervention application in a pending PIL, saying that the private labs be allowed to do COVID-19 testing “as per the rates stipulated in the ICMR Advisory dated March 17”.
The application said forcing private labs would create a sharp dip in an already below par testing rate for COVID.
