12 April 2020

By: Mayank Sapra , Practicing lawyer at Supreme Court of India; Amish Aggarwala , Standing Counsel for UoI; Shreenath Khemka, Partner, Atharva Legal LLP , Chandigarh

Justice Robert Houghwout Jackson was an American attorney and judge who served as an Associate Justice of the United States Supreme Court. He had previously served as United States Solicitor General, and United States Attorney General, and is the only person to have held all three of those offices. More importantly, he was famous for his role during the Nuremberg Trials. In one of the most landmark cases titled Brown v/s Allen[i], Jackson observed the following while describing the characteristics of the Supreme Court:

“We are not final because we are infallible, but we are infallible only because we are final.”

Over the recent years and on multiple occasions earlier, the Hon’ble Supreme Court of India has been subject to scrutiny by multiple jurists and experts in the legal field. It has often been criticized for the immoderate use of its powers under Article 32 of the Constitution of India. One such order under Article 32 was passed on 8^th of April 2020 in the matter titled Sashank Deo Sudhi v/s UOI & Ors.[ii]

The fact that the interim order by the Hon’ble Apex Court was in effect much needed in order to facilitate speedy and accessible test facilities for the public at large amidst the ongoing Covid Crisis within the country cannot be doubted. However, it seems that the order passed by , the bench headed by Justice Ashok Bhushan and Justice S Ravindra Bhat could have dealt with the issue in a manner that does not open the scope for unfettered prospective litigations and without piercing the doctrine of separation of powers.[iii]

In all fairness, the number of deaths owing to COVID-19 have breached the 250 mark at the time of writing this article and the order could not have come at a better time. However, we would endeavor to vet it in terms constitutional framework and implementation feasibilities in its current state.

Brief Background of the Issue at Hand:

The ICMR on 17.03.2020 issued 'Guidelines for COVID-19 testing in private laboratories in India' which stated that the National Task Force recommends that "maximum cost for testing sample should not exceed Rs. 4500/-. This may include Rs. 1500 as a screening test for suspect cases, and an additional Rs. 3000 for confirmation test. However, ICMR encourages free or subsidized testing in this hour of national public health emergency." 

The Ministry of Health and Welfare on 21.3.2020 notified the above Advisory under Section 10(2)(i) and (l) of the Disaster Management Act, 2005. Violation of the above notification would invite punishment of upto 2 years of imprisonment. 

The ICMR also issued a "Strategy of COVID19 testing in India" on 17.3.2020, which stated that "ICMR strongly appeals that private laboratories should offer COVID19 diagnosis at no cost." ICMR on 7.4.2020 released a list of 139 Government Labs and 65 Private Labs which can test for the virus.  The WHO recommends using only RT-PCR testing for screening and confirmation for the virus, and the same has been adopted by the ICMR.

On 31.3.2020 a PIL was filed in Supreme Court by Shashank Deo Sudhi, an Advocate practicing in Delhi. 

The Petitioner assailed the aforementioned 'Strategy of COVID19 testing in India', alleging it to violate Articles 14 and 21 of the Constitution. He also sought directions that testing be conducted by NABL accredited Labs or any agencies approved by WHO or ICMR.

Upon hearing arguments in the matter, the Court on 08.04.2020 passed interim orders directing that tests relating to COVID-19 whether in approved Government Laboratories or approved Private Laboratories shall be free of cost and further directed the Union of India to issue proper directives towards ensuring the same.  The Court also passed orders that testing be done only be accredited and approved labs. 

What was the need for an urgent interim order?

From a Constitutional standpoint, the order again raises the same concerns that have plagued Indian judiciary since the past few decades: Judicial Overreach

In a bid to do “complete justice”, the Court has time and again reached beyond its role as a guardian of fundamental rights and into the realm of shaping law. . Such an approach is deterrent specifically to the constitutional framework.  A plethora of judgments of the Apex Court itself clearly suggest that though the Doctrine of Separation of Powers was not codified strictly in the Indian Constitution, positive affirmative action is the domain of the State and the Judiciary should exercise self-restraint specifically so when it is a matter of policy.

In the present case, on a prime facie reading it seems that the Supreme Court has passed an order setting aside a legislation deeming it violative of the people’s right to equality and life.  However, the Hon’ble Supreme Court appears to have passed an order which is not only in violation of Principles of Natural Justice, but has also entered into the shoes of an expert body i.e. Indian Council of Medical Research and substituted an advisory of ICMR by a decision of its own, fearing that a vast majority of the population would not be able to afford it. Pertinently, a perusal of the order dated 08.04.2020 also raises concerns regarding the same being in violation of Article 19(1) (g) of the Constitution of India.

In doing so the Hon’ble Apex Court did not even hear the arguments from Indian Council of Medical Research or ensure the presence of its counsel which is the general practice.

A discussion on judicial activism ignites the painful reminder of the National Anthem case (Shyam Narayan Chouksey v. Union of India), whereby directions were passed mandating the playing of the National Anthem in all cinema halls by way of an order dated 30.11.2016. Of course, the said mandate was eventually withdrawn vide order dated 09.1.2019, and it was held that playing the national anthem will be optional. One of the Hon'ble Judges on the same Bench even questioned the rationale of imposing such an obligation. 

The present case also imposes not upon the State an obligation, but on private parties, to enforce the Fundamental Rights of the public. There is no dearth of jurisprudence that Fundamental Rights cannot be enforced against private persons. Unfortunately, the Hon’ble Court stopped at that especially when it postponed the deliberation on the right of the private labs to get compensation from the government.

What is even more surprising is that, no directions have been passed by the Hon’ble Apex Court on the cost of procuring the testing kits.

News reports suggest that manufacturers of the testing kits who have secured approval from the ICMR's National Institute of Virology at Pune say that they will be able to make available approved testing kits at cost of Rs. 1500 to Rs. 4000. 

It may be noted that Separation of power originated in the republics of Montesquieu and Madison as institutional checks, metamorphosed as functional expertise. Therefore, in absence of a clear direction and clarification , not only is the SC's Order a breach on the passive guardianship that is symbolic of a judicial check, but equally violative of its competence as a functional determiner of how resources are to be mobilized for public good. If political thicket is a redline, then so is substantive policy to guide the allocation of medical facilities. Ostensibly, the Order may be justified as a necessary step to ensure right to life and equality; however, self-restraint in actively determining policy is an institutional sagacity. Unfortunately, there was no positive act by the State to suggest that they were dealing 'inequitably'. The Order might be labeled as excessive by some as it is a quia timet injunction that has been made without affirming the factual parlance. More importantly, the Order might batter the morale of the Government, who can be left believing that judicial check was required against its usurping policy.

Arguments contrary to the aforementioned observation exist as well. There is no dirth of arguments to establish that the Doctrine of Separation of Powers in India is not a rigid concept. The interim order doesn’t inflict any irreparable injury nor does it categorically deny payments to the private testing laboratories. In fact, the order merely aims at making the private testing laboratories accessible to everyone under the ambit of Art 21 pending a mechanism to implement the same based on economic sections.

This begs the substantial question: Will the private labs be expected to pay the testing kit procurement costs as well, over and above the cost of maintaining their labs, personnel and equipment? 

In the absence of clear directions from the Hon’ble Supreme Court or the Government, the private labs which ought to be encouraged to carry as much testing as possible, maybe constrained to stop the testing or risk being in contempt of court.

It seems that the ‘urgent directions’ could have been delayed by a day or two and could have been passed after hearing all the respondents to the Petition at the least. Further, the matter could have been kept at a shorter interval to ensure that the orders passed by the Hon’ble Apex Court are also adhered to at the ground level, otherwise, the said order would only remain a ‘paper order’. 

At some level, the order dated 08.04.2020 has proven to be an “Incomplete Tale”.

Hopefully, the Hon’ble Supreme Court would take up the issue again in order to issue much-needed clarifications and iron out the creases.

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[i] https://caselaw.findlaw.com/us-supreme-court/344/443.html

[ii] WP (Civil ) Diary Number : 10816/2020

[iii] Application seeking Intervention and Application seeking Modification being I.A. Nos. 48265/2020 and 48266/2020 have been filed by Dr. Kaushal Kant on 11.04.2020.

This article was published at Live Law.in on 12 April 2020.