By Sai Krishna Kumar and Faizan Ahmed

Recently, the Supreme Court in its order dated April 4 in Shashank Deo Sudhi v. Union of India, directed that COVID-19 testing, whether in approved government or private laboratories, should be free of cost.

While doing so, the Court did not address the question of who will bear the costs of the tests and noted “whether the private Laboratories...are entitled for any reimbursement of expenses incurred shall be considered later on.”

The Court could have directed the state for compensation, if not chalk out a mechanism for reimbursement. Considering how the current restrictions affect citizens disproportionately, it seems justified to make testing accessible to the economically weaker sections, as the Court clarified later in its modified order.

In stark contrast to the benevolence shown by the Court to provide free testing, just a day before that order, the Court also rejected relief to migrant workers, stating that it is best “if left to the wisdom of the Parliament”.

The recent orders passed by by the Court revive some important questions. What are the contours of judicial activism and under what circumstances and qualifications can such orders become justified?

The intention of the Court is unquestionable, but do we see this as a shift in the trajectory of activism by the Court or an aberration during times of crisis?

Lastly, what considerations should courts take into account before intrusion into the domain of the state? The authors will try to answer these questions here.

In its modified order on COVID-19 testing, the Court makes it clear that it intended to make testing free for economically weaker sections, and not for those who can afford to pay. Whether the testing ought to be made free for all or to a certain class of people, is a separate debate.

But let us try to understand what the court explicitly states:

“...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."

At this instance, it is pertinent to note that free testing for those covered under the Ayushman Bharat was already in place when the first order dated April 8 was passed, and people could avail free testing under the scheme even in the absence of such an order. This is something that the Court admits itself.

Now the only utility of such an order, one could think of, is perhaps that the Court wanted to be more inclusive and expansive of those who could avail free testing, maybe to people who may not be under the scheme but still be from the economically weaker sections. Strangely, this is also not the case!

The Court observes,

"...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. We are conscious that framing of the scheme and its implementation are in the Government domain, who are the best experts in such matters.”

Now, the Court is compelled to accept its limits and recognise that courts are not best equipped with to deal with such questions. Such an order to make testing free to a class of beneficiaries without considering that a mechanism to achieve that very end already existed, renders the Court’s order futile.

Had any counsel on behalf of the private labs been heard, the Court would have been saved from embarrassment in the first instance. The order is not an instance of judicial activism, but mis-activism, in a rush to fix something that was not even broken to begin with.

In another order on the same day in Jerryl Banait v. Union of India, the same Bench issued directions for availability of PPE kits and medical supplies to medical professionals, and directed that security be provided to medical staff while conducting screening.

This order was necessary, as there were instances of attacks on medical staff and doctors and also complaints regarding lack of safety equipment. The Court was satisfied that there needs to be more measures to be adopted by the government, unlike the testing order, where it was satisfied with the government’s arrangements.

This is not the first time the Court’s lack of clarity has led to blunders. In 2010, it did not shy away from directing the state to distribute food grains free of cost, while trying to solve the problem of food grains rotting in godowns.

Interestingly, the Court in that order left a similar ambiguity. However, unlike the free testing order, this order was not modified, but clarified. The order said that the state should consider distributing food grains. The then Agriculture Minister, Sharad Pawar, interpreted this as “just a suggestion, which was not possible to implement”. Hearing this, the Bench of Justices Dalveer Bhandari and Deepak Verma clarified that “it was not a suggestion but an order”.

Judicial activism in India is not novel; activist orders have primarily been used to fill lacunae in the law, such as in Vishakha. Courts have repeatedly held that it can be allowed only under exceptional circumstances. One of those situations recognised is when it is in the “interest of the nation or the poorer and weaker sections of society”.

Judicial powers can essentially only be checked by self-restraint, even when it is considering social or economic justice. Katju. J in 2007 had warned that courts should not pass orders that are “not capable of enforcement".

On April 1, the Kerala High Court bench of Justices Jayashankaran Nambiar and Shaji Chaly, while dealing with the closure of the Karnataka-Kerala border, took a moderate approach that respected inherent boundaries of court’s substantive and territorial jurisdiction.

Even there, the counsel had argued that the discussions between the states and the Centre were still ongoing, and that “the issue in question involves policy considerations which the Court would not ordinarily interfere with”.

The High Court still went ahead and issued directions to lift the blockade, for persons requiring urgent medical treatment. The Bench also kept in mind that it cannot exceed its jurisdiction and thus did not issue directions to the State of Karnataka Instead, it expressed its hope that Karnataka would "take note of the basic principles enshrined in our Constitution and take immediate steps to resolve the stalemate".

Similarly, the Bombay High Court recently also took a well-calculated decision in Sarva Hara Jan Andolan v. Maharashtra, while dealing with permission to stranded migrant workers to their destinations. The Court restrained itself from passing orders as it felt that it was a matter being dealt with by the Executive. It thus held,

“...the Court is confident that the issues shall be more appropriately and properly addressed by the Committees so constituted… unless a survey is conducted and an appropriate decision is taken by the State Government or the Central Government, as the case may be, it is not possible to issue any positive directions."

Undoubtedly, crisis situations such as COVID-19 create an extra burden on courts to strike a balance to ensure economic and social justice. Courts may be faced with situations that do necessitate measures of relief. Accordingly, this greater burden calls for more responsibility. The courts have to be extra cautious while passing orders that involve policy measures.

The recent testing order shows us that it is necessary to check the extent of the negligence of state, whether there indeed exists a lacuna in providing the relief sought. All circumstances need to be satisfied before deciding that a particular situation warrants judicial intervention. Such short-sighted orders can cause embarrassment to the court.

[Sai Krishna Kumar is an Advocate, practising in Delhi and Faizan Ahmed is an Undergraduate Student at Jindal Global University]