COVID-19| Everyone not eligible for free testing kits; To be made free only to the economically weaker sections of society [Modified order]

Supreme Court: The bench of Ashok Bhushan and S. Ravindra Bhat, JJ has modified it’s April 8, 2020 order in Shashank Deo Sudhi v. Union of India, 2020 SCC OnLine SC 358, wherein it had asked the Centre to create a mechanism wherein private laboratories conducting COVID-19 tests do not charge exorbitant fees from public and government should reimburse the fees charged by labs.

The Court clarified that the said order 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.

“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 said modification came after Senior Advocate Mukul Rohatgi submitted before the Court that if the Labs are not to charge any fee for the tests, it will be impossible for them to carry on the test in due to financial constraint and other relevant factors as the kits which are utilized in the test are imported kits involving substantial expenses. He told the Court that insofar as the persons covered under the Pradhan Mantri Jan Aarogya Yojana, popularly called as Ayushman Bharat Yojana, the Labs are conducting free of cost COVID-19 test.

Clarifying it’s earlier order, the Court said 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. It, further, said,

“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.”

Earlier Order

  • The tests relating to COVID-19 whether in approved Government Laboratories or approved private Laboratories shall be free of cost. Centre shall issue necessary direction in this regard immediately.
  • Tests relating to COVID-19 must be carried out in NABL accredited Labs or any agencies approved by WHO or ICMR.

Modified Order

  • 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 6 any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19, hereinafter.
  • The Government of India, Ministry of Health and Family Welfare may consider as to whether any other categories of the weaker sections of the society e.g. workers belonging to low income groups in the informal sectors, beneficiaries of Direct Benefit Transfer, etc. apart from those covered under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana are also eligible for the benefit of free testing and issue appropriate guidelines in the above regard also within a period of one week.
  • The private Labs can continue to charge the payment for testing of COVID-19 from persons who are able to make payment of testing fee as fixed by ICMR.
  • 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.
  • Central Government to give appropriate publicity to the above, and its guidelines to ensure coverage to all those eligible.

[Shashank Deo SUdhi v. Union of India, 2020 SCC OnLine SC 361, order dated 13.04.2020]

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