Gujarat HC Asks ICMR To Explain Rationale Behind COVID-19 Testing Policy [Read Order]

The Gujarat High Court has suo moto impleaded Indian Council of Medical Research (ICMR) and asked it to explain the rationale behind its testing policy.

A bench comprising Chief Justice Vikram Nath and Justice J B Pardiwala posed the following queries to the ICMR.

1. What is the rationale behind its testing policy?
2. In what manner the ICMR wants the private hospitals /laboratories to get accredited? We would like to understand from the ICMR as regards the procedure which the private hospitals / laboratories need to undertake for the purpose of conducting the COVID­19 test.
3. What are the guidelines of the ICMR with regard to the testing through the private laboratories?
4. Whether the guidelines issued by the ICMR are statutory in nature?
5. Whether such ICMR guidelines are binding upon the State Government or they are only recommendatory in nature?
6. Whether without any prescription from any Physician, an individual can go to designated private hospital / laboratory for the purpose of testing? 

The bench passed the direction while considering applications field by Ahmedabad Medical Association (AMA) and Dr. Malay Devendra Patel who challenged a Gujarat government order prohibiting private doctors and hospitals from conducting COVID-19 tests without getting approval from designated health officials.

During the course of hearing, the bench noted that ICMR prescribes COVID-19 testing only for specified categories of patients.

The petitioners argued that it was a citizen's fundamental right to seek COVID-19 testing, which cannot be infringed by the State. The petitioners also argued that ICMR has no statutory basis and its guidelines have no binding force.

Having heard the petitioners' argument, the Court expressed that it should add ICMR as a party in the case.

"We are conscious of the fact that the High Court, in exercise of its writ jurisdiction, should not enter into the domain of policy matters. However, we are dealing with a very delicate issue and that too, at a point of time when the situation is very critical. In such circumstances, we would like to go further into this issue with the assistance of the ICMR, the State Government and the applicants before us who have raised this issue", the bench observed.

The Court also quoted from the SC judgment in Navtej Johar case, as follows, to justify its intervention :

"This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health." 

The Court also directed the State Government to provide the following information:

[1] How many private laboratories are there in the State of Gujarat recognised by the ICMR / or COVID­19 testing?

[2] In what manner a private hospital / laboratory can apply with the ICMR if it intends to carry out the COVID­19 test?

[3] How many pathological laboratories are there in the State of Gujarat, who may not be designated for the purpose of the COVID – 19 test, but, still well­equipped to perform such test?

[4] Whether any pathological test / diagnosis is a fundamental right of the citizens of this country? To put it in other words, whether pathological testing / diagnosis is one of the facets of the right to health as embodied in Article 21 of the Constitution of India?

[5] Whether the State Government can evolve a policy of its own based on the guidance issued by the ICMR contrary to the fundamental right of its citizens with regard to the  pathological test / diagnosis?

The Court also ordered that private doctors and hospitals need not wait for approval from the government authorities for carrying out COVID-19 tests on those categories of patients mentioned in the testing guidelines laid down by the Indian Council of Medical Research (ICMR).

The matter will be next considered on June 19.

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