The apex court insisted that it never intended to make testing free for those who can afford it and asked the government to issue rules to reimburse private labs for free tests.
A bench of Justices Ashok Bhushan and S. Ravindra Bhat said the 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 are also eligible for the benefit of free testing and issue appropriate guidelines in the above regard also within a period of one week.
"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 (Indian Council of Medical Research) for Covid-19," said the bench.
Solicitor General Tushar Mehta, representing the government, contended that under the Ayushman Bharat Yojana, about 10.7 crore poor and vulnerable families, which means approximately 50 crore beneficiaries, are covered under the scheme and they can avail the benefit of free of cost Covid-19 test even in the private labs. He submitted that beneficiaries under the scheme would get a cashless Covid-19 test in private labs.
The top court noted that the April 8 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 -- Rs 1,500 for screening and Rs 3,000 for confirmative tests.
"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," said the court.
The court said the private labs can continue to charge the payment for testing of Covid-19 from persons who are able to pay the testing fee as fixed by ICMR.
The ICMR on Monday had urged the court to withdraw its free coronavirus test order, contending that the interim order passed on April 8, may work to the detriment of the cause the country is fighting.
The ICMR said the decision to involve private labs in the process of testing was taken after extensive deliberation with the national task force on all aspects. "The Central government, after elaborate and extensive discussions and deliberation with subject experts from various fields, took an administrative decision to involve private labs while imposing price cap for them to ensure that they do not charge more and cannot exploit the citizens," it said in its affidavit.
"It is, therefore, submitted that final relief is incapable of being granted and only on this ground the ad-interim order deserves not to be continued," the ICMR added, seeking dismissal of the petition seeking free tests for all citizens.
The apex body for the formulation and promotion of biomedical research insisted, while keeping factor of the resources not being unlimited as a pre-dominant factor, the government also considered the hardship which can be faced by the poor section of the country in the process of testing. ICMR informed the top court that unlike other routine tests being conducted in labs at the will and wish of the citizens, these tests would be conducted only after a qualified physician certifies need for such a test, and this protocol applies to both government and private labs.
The ICMR informed the court that some of the components which are essential parts of the kits like primer probes, master mix are patent protected products, and therefore, cannot be manufactured indigenously without importing these components. It contended the resources cannot be unlimited and the government is bound to prioritise the resources in public interest.
"In view of this position, our country will have to depend upon the import of all these components. This is the problem faced by most of the countries in the world and these patent components are manufactured by few countries only which are out of India", said ICMR.
Advocate Shashank Deo Sudhi had filed a plea in the court contending there are large sections of society who at present are unable to afford the payment of Rs of 4,500 for testing. He submitted that the government has to take responsibility for getting every person tested. In the event that one person in a family tests positive, the entire family requires testing. He submitted that government hospitals are overcrowded; hence, such persons may be permitted testing of Covid-19 in private labs free of cost.