In the absence of legislation on the right to health, the scope of this right is defined by a series of Court decisions. Over the years, Courts have done an impressive job in nudging the reluctant State to push the scope of these rights beyond mere declaration as a fundamental right under Article 21 of the Constitution.

Courts have enforced the right to health in various circumstances, which include medical care for accident victims, the establishment of primary health centres in remote areas, ensuring access to expensive medicines to patients, etc.

However, two recent Supreme Court decisions in petitions seeking free diagnostic tests and treatments for Covid-19 patients in the private sector have ignored the basic notions of right to health.

Considering the poor state of public health infrastructure, the service of the private sector is critical to combat Covid-19. Many State governments, like Rajasthan, Madhya Pradesh, Maharashtra and Delhi, designated private sector hospitals as Covid hospitals. However, that does not always ensure that the treatment is free. For instance, in Delhi, free treatment in the private sector is available only to the beneficiaries of CGHS or Ayushman Bharat.

The Supreme Court modified its own interim order on the free test in private labs case and limited it only to Ayushman Bharat beneficiaries. It said, “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 another category of persons belonging to economically weaker sections of the society can be extended benefit of free testing of Covid-19.”

While dismissing a petition seeking free treatment, another bench of the apex court stated: “Government has to decide on who to give free treatment. We don’t have any funds with us”.

Thus, the Supreme Court has given full discretion to the government to decide the eligibility criteria for free tests and treatment for Covid-19 in the private sector. This is a flawed approach.

Since the right to health is a fundamental right, a claim against the State cannot be left to the discretion of the government. The Supreme Court also has an obligation to ensure that the decisions it pronounces on health matters should not compromise the enjoyment of right to health.

Further, the apex court effectively reduced the people who could be eligible for free test and treatment to the cardholders of Ayushman Bharat scheme, which covers just a small fraction of poor people in the country. The current coverage of the scheme, as of July 2019, is only 10.3 crore and used by only 1.5 crore people. NSSO data analyses show that nearly 55 million were people pushed below the poverty line due to catastrophic healthcare payments.

Similarly, the apex court has ignored the fact that people are forced to depend on the private sector due to the poor public health infrastructure. The right to health requires physical access along with financial access. Physical access to health facilities are critical during a pandemic; therefore access to the nearest healthcare facility even in private sector is important.

The Supreme Court did not seem to look at the public health requirement of enhancing the numbers of tests. The court does not appear to have verified the rationale behind the cost (₹4,500) of the diagnostic test. It has also failed to look at the ways and means to implement its interim order and should have instead asked government to supply testing kits to the lab and formulate a fair compensation formula for the service by private labs.

In the absence of legislation, the Supreme Court has an extra obligation to ensure the right to health for all citizens. It should not pass the baton of responsibility to the government and leave it to the government’s discretion.

The writer is with Third World Network. Views are personal

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