Ms. Jisha Garg & Ms. Anchal Bhatheja
The order handed out by the supreme court regarding free Covid-19 tests on 8th April wherein it directed the private laboratories to provide free tests to all the citizens irrespective of their economic or social standing, was seen as a manifestation of judicial over-reach and was also criticised for being impractical. However, the modified version of the order wherein the court clarified that free tests were to be provided only to the economically weaker sections, was lauded for being practical as well as just.
In this article, we argue that there was a wide jurisprudential difference between the initial order and the modified order. In the initial order, the supreme court sided with Niti and attempted to define perfect just society while in the modified order, it dispensed Nyaya wherein it tried to deal with the most egregious form of injustice by providing tests to the poor and the needy.
The world has witnessed the advent of a peculiar pandemic that can only be prevented and not cured. The World Health Organisation and the health professionals across the world have emphasised enough on the need to “Test, Test and Test” so that the infected can be detected and transmission stopped.
While the number of active cases has crossed the four-digit mark on 17th April, 2020, the data shows that the India’s testing capacity is still at 105 per million as compared to the highest in the world at Faroe islands, a whopping 70,000 per million.
What intensifies the problem manifold is the fact that ICMR has set the price of Covid-19 testing at Rs. 4500 which is not affordable for 22% of Indians who are below the poverty line, and by the World Bank’s definition earn less than Rs. 244 per day.
In this context, a PIL was filed by Shashank Deo Sudhi in the Supreme Court seeking that cost-free covid-19 testing facilities be made available to all the Indian citizens. The petitioner also demanded that these tests be made free in both government-run and private laboratories.
After perusing all the material, a division bench of the Supreme Court passed an interim order directing the private laboratories to conduct free Covid-19 tests. The question as to whether they were to be reimbursed or not was left to be decided by the court at a later date. The court unequivocally called upon the private players to extend “philanthropic services” to the nation amidst this health emergency.
After this order was passed on 8/04/2020, Dr. Kaushal Kant Mishra, the former RDA president of AIIMS, challenged the direction given by the court and pled that modifications be made to the order so passed. He said that this decision of the court was bound to de-incentivize the private laboratories as they were left in the lurch with regard to the issue of reimbursement.
After hearing the petitioner, the division bench altered its order on 13/04/2020 and directed that the free testing facilities be provided only to the economically weaker sections like those covered under the Ayushman Bharat Yojna and other classes of people that may be notified by the government in the future.
In these two orders that have been passed on 8/04/2020 and 13/04/2020 respectively, there might seem to be a short span of 6 days, but if seen from a jurisprudential lens, the court made a giant leap from Niti to Nyaya in these two decisions.
In the earlier decision, the court had opined that it was the duty of the private laboratories to provide for free Covid-19 tests to all the citizens, irrespective of their financial capacities. But in the conception of the Nobel laureate Amartya Sen, the court sided with the form of justice that inclines towards the idea of Niti, when it took this this stance. Niti pertains to organisational propriety and behavioural correctness, and primarily focuses on setting the institutions and rules right. As per this idea of Niti that emerged in the classical Sanskrit texts, justice is done when certain institutions and rules come into existence. It focuses on defining a perfect society with perfect justice.
The court came up with a Niti based decision wherein it felt that asking the private laboratories to conduct free tests for everyone, would establish a perfectly just society. It did this, without perusing the practical implications of its decision. The court did not consult the private laboratories, did not answer the question of reimbursement and imposed a moral obligation on all the private testing facilities to become philanthropic in the interest of the nation. Although many lauded the stance of the honourable court, it was more of idealistic step, than a realistic one. The court attempted to dispense absolute justice and set everything right by a single order and it failed to note that the scarce resources which were exponentially out-numbered by the prospective beneficiaries was bound to back-fire because private laboratories would not have been able to conduct free Covid tests which require inputs like expensive testing kits and salaries of skilled professionals to conduct such tests, when they were not sure that they would be ever reimbursed.
Alternatively, Nyaya, as also argued by Sen, is a progressive realisation of justice as opposed to arrangement based Niti that aims at achieving a society free of injustices. The conception of Nyaya, acknowledges that the injustices in society are immense and all of them cannot be set right in one single day, or in this case, by one single order of the court. So, Nyaya is a form of justice, wherein the focus is on eliminating the most egregious and manifest injustices one by one, instead of recklessly attempting to eliminate all injustices in one single attempt.
As illustrated by Sen, the slavery abolition movement in USA did not commence with the aim to uproot apartheid in one day, it was rather an attempt to slowly and steadily move towards a lesser unjust society. Similarly, the structure of caste system cannot be demolished in a single day and yet, the attempt to abolish untouchability which is the most egregious form of caste system, is by and large the most practical way to uproot caste system even if it seems to be a small step in the direction of creating a just society.
Now, on applying these jurisprudential prepositions to the present scenario, it is clear that the modified order of the court which called for providing free testing facilities to the poor and needy, instead of all the citizens at large, was more inclined towards Nyaya and a progressive realisation approach. The underlying idea here is that although having a healthcare system that has the potential to provide free tests to everyone is something worth aspiring for, yet such a system cannot be realized in a day given the reality of the scarce resources and huge population.
Thus, there is an imminent need to deal with the most manifest injustice that can be witnessed presently; those belonging to the economically weaker sections would not be able to get themselves tested, if not for free of cost testing. Providing them with free testing facilities, instead of irrationally attempting to extend this service too all the people, is a more practical way of dispensing justice wherein realism is given primacy over idealism.
We respectfully submit that the courts, in general, need to adopt the Nyaya-based approach in determining how justice impacts the actual world instead of the Niti-based approach wherein institutions and rules are divorced from the actual world in order to build a perfectly just society. This can only happen if the courts engage in public reasoning and consultations with the stakeholders, before penning their opinions down. If this does not happen, the decisions of the judges would become fictional depictions of Utopian societies devoid of any scope for practical application.
All in all, justice ought to be evolutionary and not revolutionary, because resources are limited and dues exorbitant.
Ms. Anchal Bhatheja is a student of NLSIU, Bangalore and Ms. Jisha Garg is a Student of RGNUL, Patiala.