COVID-19: PIL in SC seeks mass testing, says else lockdown futile; number of cases grossly underestimated

A Public Interest Litigation (PIL) has been filed in Supreme Court seeking directions to the Central government to start mass house-to-house testing for COVID-19, starting with areas which are most exposed and affected by the virus, legal news website LiveLaw.in has reported.

Undertaking such an exercise would help trace, identify, isolate and treat those infected by the novel Coronavirus, resulting in the chain of transmission being broken, argues the petitioner. It is further stated that an "exponential spread" of the virus, to "every nook and corner", could be contained if such testing commences with priority being given to States and cities which are most severely affected, i.e. 'Coronavirus hotspots'.

The petitioners, Shashwat Anand, Ankur Azad and Faiz Ahmad, 3 advocates and Sagar, a law student from Allahabad, have expressed their grave concerns over the manner in which India is attempting to fight the pandemic, especially with regard to the low rate of testing. To buttress this submission, reliance has been placed on the Indian Council of Medical Research's (ICMR) latest status report from April 7, 2020 according to which the government is conducting merely 82 tests per million people across the country.

"What is the most worrying is that the reported confirmed COVID-19 cases, for sure, could be a gross underestimate as the testing rate in India is amongst the lowest in the world. The shocking spike in the number of corona infected cases within a matter of days, shows that it may only be the tip of the iceberg and we're oblivious to the real gravity of the situation."

Alluding to India's response as "basal", the petitioners claim that the government has not been focusing on the right details to ensure victory over the fight against COVID-19. It is suggested that instead of looking to curb community transmission, emphasis should be laid on managing and treating the virus, the first step for which would be mass testing.

"India's response to fighting this pandemic is basal. It is primarily focused on curbing community transmission, rather than managing, identifying and treating the virus infection following the mass tests which is, to put it differently, evinced by the lack of enough and mass house-to-house tests as proportional to the humongous and densely packed population of India," the petition states, as per the report published on LiveLaw.in.

Reiterating that while measures such as social distancing and the nationwide lockdown are an attempt to curb mass transmission, the petitioners caution that such exercises would be futile if mass testing is not conducted. "Combating COVID-19 would become like fighting a fire blindfolded."

It is also submitted that a lack of adequate tests puts the lives of all Indians at peril which is directly in conflict with the Right to life, Right to Personal Liberty and the Right to Health under Article 21 of the Constitution.

Additionally, the petitioners seek the transfer of all money collected in non-statutory funds to be transferred to the National Disaster Response Fund (NDRF) and the State Disaster Response Fund (SDRF), which were established under the Disaster Management Act, 2005 (2005 Act). This would entail transferring all donations received in the Prime Minister National Relief Fund (PMNRF), the 'PM-CARES Fund', and the CM-Relief Funds of various States and other such funds to these statutory funds which were established with the very purpose of dealing with such situations of crises.

It has been submitted that the COVID-19 pandemic is a 'Disaster' under the 2005 Act, as also notified by the government, and the Centre or State governments have no jurisdiction to create public funds or trusts (such as PMNRF, PM CARES and CM Relief Funds) since NDRF and SDRF exist for that very purpose. It has further been asserted that funds raised through public trusts cannot defeat the intent of the 2005 Act or the schemes created therein, and hence deserve to be deemed as being collected for NDRF and SDRF.

The petitioners further highlight that the government requires money immediately to provide proper infrastructure and procure various kinds of equipment for the effective management of this disaster. This effective management of a disaster ought to be done through the NDRF and SDRF as per the 2005 Act.

"The said Act may apply to the same for all uses, intents and purposes, and the funds may be used for combating coronavirus and the procurement of testing kits, personal protective equipments (PPEs), creation and maintenance of quarantine centres, etc. and matters ancillary and incidental thereto, as far as the instant COVID-19 pandemic is concerned, in the larger good of the citizens of India."

The petitioners also highlight the potential of non-statutory Trusts such as PMRNF and PM CARES, which they claim have hit hard at the source of money for NDRF. In this light, it is also sought that these non-statutory funds/trusts be declared "as collection agencies for collecting money under the Disaster Management Act, 2005."