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Coronavirus pandemic hit worldwide with no known pandemic in human history. The widespread was never foreseen and its extent is unprecedented and humanity has yet to comprehend its consequences. We are witnessing worldwide inadequacy of medical sciences, infrastructure and the efforts to treat the affected people. The current state of systems has been collapsing and been immense. The initial response of the judiciary in India was initiated with extra caution. However, this invited criticism depending on how much the judicial review restrained and how it should have dealt with the current extraordinary crisis.
In the year 2020, India faced a shocking crisis. On the 31st of March 2020, India’s Prime Minister Narendra Modi astonishing announcement to the country consisting of around 136 crore people which unimaginably impacted their lives. Within just four hours of notice, the Prime Minister declared a 21-day lockdown in the country that immediately took effect and entailed an immediate and absolute ban on all movements and activities happening in the country. The main reasons for this extraordinary move was due to the declaration of a worldwide pandemic by WHO primarily caused by the Novel Coronavirus Disease. As a result of unprecedented lockdown in the country, the low-income migrant workers living across the country were left stranded in their respective cities of employment. Most of them started a journey to walk all the way to their respective homes as they had minimal support and no means of livelihood that existed and faced a major financial crisis and other difficulties. Many of them were unable to carry adequate supplies of food and water. The workers were not able to procure any kind of necessary amenities during their harsh and long journey. Around 150 plus migrant workers working in different parts of the country started losing their lives even before they could reach their home destinations. This was just the countdown of gigantic episodes that started to happen in the country starting with the migrant workers’ crisis.
Legal Consequences that India faced
The startling effect of the novel coronavirus pandemic itself connected and buckled up the state actions across the country which was inevitable and restricted few fundamental rights of the citizens and spurred a complex web of questions amongst them. For example, could the courts have the right to intervene with the policies implemented by states or to uphold the fundamental rights while concurrently appreciating the separation of powers? Also, what is acceptable and to what extent courts can intervene and in what form will their intervention take place, especially in this alarming crisis faced by the nation? Or would the intervention curb every state‘s response to such a crisis? Thus, these are few relevant questions that arose in the time of crisis and I will try to answer and explore further them in this article.
In Part 1 of this article, I am going to explore the increasing of executive powers during a national crisis that is adversely impacting all constitutional and democratic rights and values, along with how the expression “the state of exception” is being appropriated for expanding the powers over Indian citizens and for curtailing their civil liberties. In Part 2, I am going to explore the essential need for judicial review in times of crisis, not just because it checks the excess executive powers and also upholds the rule of law, but it also provides unique benefits to the citizens during a national crisis. The supposed tension between the doctrine of separation of powers and judicial review is also explored subsequently. In Part 3, I try to evaluate how courts are responding to the current pandemic. In Part 4, I provide conclusive suggestions for judicial review that allows the courts to follow their rightful duties while respecting the doctrine of separation of powers.
The Functioning of Executive Powers in India during a Crisis
The Government of India refrained from using the emergency powers and instead they adopted their legislative model by relying on other discrete enactments to manage the coronavirus pandemic. Particularly, the central Government of India used the Disaster Management Act, 2005, the state governments invoked the Epidemic Diseases Act, 1897, and district magistrates and commissioners of police utilized Section 144 of the Code of Criminal Procedure,1973 for respective purposes. The major aspect was the initiation of nationwide lockdown and this was maintained through decrees of executive issues by the National Disaster Management Authority and with measures supplanted by the states. Using the discretionary powers of the board conferred by such enactments, the Central Government introduced a series of precautionary measures that have raised huge concerns about violations of first-generation as well as second-generation citizen’s rights.
The first generation citizen rights or civil or political rights are considered to be adverse rights‘ because they usually require the states to refrain from acting in a manner that infringes or breaches them. The right to life, livelihood, freedom of expression, and privacy would be some major rights that are potentially affected during the current pandemic. Second-generation citizen rights or economic or social rights are considered to be positive rights because they usually require the state to undertake minimal measures to fulfil them. The right to proper and adequate healthcare is a significant second-generation citizen right in the present pandemic context. Overall, there is a consensus regarding the nationwide lockdown and how well was it implemented and thus it is violating citizens‘ rights to proper health, food, shelters, livelihood, equality, and facing discrimination in various manners across the states.
The hapless situation and its dreadful impacts in India
The pandemic progressed in an era where the executive decree is ruled. The executive employed a coercion-backed crisis form of governance on Indian citizens. Although an emergency has not yet been declared nationwide, powers related to the emergency are being exercised by the central and state government and therefore emergency measures have been initiated. The main purpose of such an administrative process is conservative which is to contain the pandemic crisis and do whatever it takes to ensure a quick return to normal procedures of democracy and constitution. Hence, quick and proactive actions are undeniably necessary during any kind of crisis. Certainly, this is absolute as to why the executive is vested with great powers during situations like a pandemic or emergencies. It is indicated by the recognition that legislature by its nature can’t respond and adapt to fast developments on-ground speedily and appropriately. Thus, an increase in executive powers and discretions is required to respond effectively to any kind of crises India faces.
However, at the very least, executive actions which impose restrictions on the rights must be proportionate and balanced to the extent where it benefits the public and problematic situations during a crisis. This is due to the governments often using the ‘state of exception’ for the expansion of their power over the citizens. This is evident because, in India where privacy-invading measures like the tracing of mobile phone numbers and the applications like Aarogya Setu are being deployed and invented, that processes invasive data collection or potential data breaches and there is a lack of clarity on the purposes such data being collected. Serious doubts remain about whether the orders of nationwide lockdown were balanced and proportionate to the expected benefits of the public, while thousands of migrant workers are being left alone starving and stranded across the country. While internationally, the governments of Hungary and Israel have grossly expanded their political powers and declared a state of emergencies despite not having a record of a single case of coronavirus at the time.
How different should have India dealt with the Current Crisis?
An increase in central government powers is known as a concomitant increase in curtailing the civil liberties of citizens as the cost of curtailing such liberties is lower for the government and the citizens as well during a time of crisis. This was illustrated by a research study that found that all persons of political leanings in the USA were willing to sacrifice their civil liberties to contain the current pandemic crisis, even if this requires unconstitutional actions by the state. While in India, the freedom of speech is being restricted to citizens such as the police are registering FIRs against a news channel or website for reporting facts related to the impacts of the pandemic in India and are targeting private citizens who are critical for the operation of state management during the crisis.
Further, the central government used the advantage of the current pandemic to generate politically motivated arrests of citizens, which is widely being criticized as authoritative, unjustified and inhumane. Also, internationally when there is an increase in executive powers during the crisis, the powers have usually been used essentially to target minority communities or vulnerable classes in the USA, infamous for permitting a racially discriminatory policy for the unjust internment of many Japanese-American citizens during the crisis of World War II. While India is witnessing the targeting of minority community such as Muslims being solely responsible for the rapid spread of coronavirus in the country. The concerning matter is about several states amendments being made to labour laws like removing vital protection measures for workers to heavily promote economic growth. Thus, these decisions have highly been argued to be unconstitutional.
The conduct of the state during an emergency pushes our understanding of normalizing things and creates a precedent to accept state actions in further upcoming crisis. The fear inevitably manifesting at such a difficult time and the exploitation from political parties normalizes the legal structure and practices that were considered exceptional. Nowadays diverse events show, for example, the Indian central government historically used their extraordinary powers in a prolonged and indiscriminate manner to move the status quo ante and normalize the exercising of such extraordinary powers. The epidemic of SARS too resulted in a similar concept of normalization of emergency powers across jurisdictions of the central government. The fact that the government is now used to the convenience of using emergency powers, so they are less willing to give them up is becoming a concern. Hence, executive position over time poses a grave threat to our constitutional democracy and its values in the long run as well as in the short run. The executive would dominate the other two branches of government; legislature and judiciary while imposing a risk to the individual freedoms of citizens.
Judicial Review: Separation of Powers and Rule of Law in time of Crisis
In this part, the two-fold value of judicial review will be explored and why it is essential to uphold the rule of law while ensuring the separation of powers and then further establish a value of the judiciary‘s role in India during a crisis such as the current coronavirus pandemic and also show the responsive to detractors of our judicial review during a crisis and show that their disputes do not apply to the present situation of a pandemic.
Judicial Review Vindicating Rule of Law
The core aspects of constitutionalism are the restriction of the powers of the state. This is only accomplished through the rule of law and the separation of powers of the government. And some form of judicial review is also necessary to proper constitutionalism Hence, this part will explore what rule of law means in India and how the doctrine of separation of powers should be conceptualized, and how the judicial review fits with such concepts and whether judicial review contributes to deteriorates rule of law or whether it preserves rule of law.
Concept of Judicial Review Consolidating Rule of Law
Unlike other countries internationally, in our country, the Indian Constitution bases judicial review as a part of India‘s basic constitutional framework. Article 13 provides a constitutional duty upon the judges, to properly interpret the Constitution of India and declare any laws that violate it and is unconstitutional. This is known as a formidable power and is notably one of the features of a strong-form judicial review established in India. Article 32(2) also empowers the Supreme Court of India to issue any five of the constitutional writs mentioned to enforce the fundamental rights in Part III of the Constitution of India. The significance that the framers of the Constitution of India contributed to this power is cleared by Dr Ambedkar‘s description of it who quotes – ‘an article without which the Constitution of India would be a nullity as being the sole purpose of the Constitution‖. Judicial review of executive actions was later held to be an important aspect of the rule of law and the judicial review was generally held to be a basic feature of the Constitution of India.
From these articles mentioned above, there is a strong idea that the Constitution of India reflects an understanding of the concept of the rule of law. The commitment to fundamental rights is proved from the extent of the powers handed to the Apex and lowers courts. The overall dignity shows normative apparatus as Part III of the Constitution of India is said to be remarkable. The Supreme Court‘s interpretation of Part III fundamental rights is consistent with the rule of law, with dignity and it is to be held part of the basic structure of the Constitution of India and Article 21 which states the right to life and liberty of citizens gives an expansive interpretation of it. Even if the Constitution‘s allegiance to rule of law is disputed, however, it is undeniable that it provides for judicial review of executive excessive actions and allows for a check behind their excess actions.
Understanding the concept of Doctrine of Separation of Powers
The doctrine of separation of powers sometimes dominates the understanding of the concept. As per this concept, the government of India is divided into three divisions known as the executive, the legislature, and the judiciary. Each of these branches has its separate members, functions and powers and while there must not be any overlap between the members of each branch, the functions of each branch shall not encroach upon each other. The strict separation of each branch‘s function and powers is thought to be essential for proper functionality. This understanding of the doctrine of separation of powers is contested by those who argue that this is not eloquent to reality.
This doctrine also holds the power to impeach the judges of the apex and lower courts, which is the adjudicative functions. There is still some overlap between the members belonging to the legislature and the executive organs of the government in India. The Constitution of India does not properly provide and the provisions do not reflect the real understanding of the doctrine either. The orthodox understanding of the doctrine is not desirable as a normative idea as it is practically impossible for such organs of the government to function without interacting or accounting for each other on daily basis. Hence, the real doctrine of separation of powers does not exist.
There could call for a considerable disagreement about what exactly the doctrine of separation of powers does and what should it entail and consequently, how different countries have different systems in place to ensure the doctrine of separation of powers. The judicial review ensures the supremacy of the Constitution of India as opposed to the supremacy of a particular organ of the government. Hence, it is not antithetical to the doctrine or the rule of law but it is important to ensure their existence at the very least. It is undeniable that the criticism directed at the apex and lower courts for being the activist is not baseless as the courts should also act with proper caution concerning the remedies they grant to the public at large.
The response from the Judiciary to the current Pandemic in India
The Apex and Lower Courts are bound to, and must, undertake every form of judicial review required in times of crisis. The question is, whether they have done the same in practice or not? Recently, a few orders from the courts have been chosen as being illustrative of the general trend of societies. The Odisha High Court responded to the unofficial ban on operating vehicles carried out by the local police officials and the court relaxed the ban, so this begins as an appropriate case to address the unusual practices of courts under judicial review. Despite the state contending that there was no immediate requirement for operating vehicles as it already deployed vans to deliver essential items to the public across the state, the Odisha High Court did not accept these submissions as essential. It required the government to prove to the court the existence of these measures before amending its order to partly continue the ban.
Similarly, the other High Courts across the country carried out their roles in a similar fashion with very few exceptions. To mention those few exceptions such as the Kerala High Court refused to allow the government to deduct its state employees‘ salaries in the absence of a provision to that effect as it held that the state doesn’t have the power vested to do so under the Disaster Management Agency and the Economic Development Act. It also codified strict guidelines for data sharing guidelines concerning a company enlisted by the state government to manage all pandemic-related information. The Madras High Court also directed the state to provide migrant workers with adequate food, shelter, and medical facilities. The Gujarat High Court also required its state government to justify its emergent policies regarding a range of problems and passed orders to modify some based on the reasons provided above. It also passed orders to enforce the fundamental rights, where ever required.
In accomplishing this, the Supreme Court created legal grey holes, which are in contrast with the High Courts decision of interpretative accommodation. Legal grey holes here are the spaces where there are few legal constraints on the executive actions but the constraints are also insubstantial that they permit the government to do what it pleases. They could harm the rule of law more because they generate an appearance of the rule of law and its legality. So, the periodic hearings and the judgements and orders passed by the courts are to go following this. They abuse the rule of law, rather than preserving it. The argument is not that the courts should be able to take over the role of the executive actions and frame the policies as such but rather they should hold the executive accountable for its actions and policies and ensure that they are not more than what their actions are required for. This would secure and protect the existence of the doctrine of separation of powers and therefore, the rule of law.
The strong-form judicial review for the first-generation’s rights or second-generation’s rights or their civil and political rights are usually considered as negative rights because they require the state to refrain from acting in a fashion that infringes their rights. Part III of the Constitution of India codifies these essential rights, and Article 13 mandates constitutional duties upon the judges of the apex and lower courts to interpret the Constitution of India and declare any law or provisions violating them to be deemed fit as unconstitutional. Also, Article 32(2) empowers the Supreme Court of India to issue writs to enforce these fundamental rights of citizens. This is known as indicative strong-form judicial review, where the interpretation of the Constitution of India by the apex and lower courts is final even if the legislature of the government has a reasonable interpretation of its own. Hence, the Constitution of India requires the apex and lower courts in India to perform a strong form of judicial review concerning first-generation and second-generation fundamental rights. In the context of the current ongoing pandemic, this would involve the fundamental right to life and livelihood, the right to move freely and the right to privacy from data invasion or others, all of these aspects have agreeably been violated by state and executive actions.
Reshaping the Doctrine of separation of Powers
Mutual support affirms that each organ of the government of India actively supports all the decisions taken by the other organs. This reinforcement may be expressed either by implementing decisions or by interpreting decisions in a bona fide manner that compliments the underlying substantive values expressed. In the context of judicial review in India, executive actions are required to complete the judiciary‘s decisions in a bona fide manner. In my opinion, if it fails to carry out, the judiciary organ may step in and this time, issue more specific directions to the executive. Quoting the earlier example, if the central and state governments failed to ensure that the migrant workers couldn’t reach home within the stipulated journey time, the judiciary would be justified in every power in directing it to briefly re-open train or road lines for this specific and essential purpose protecting migrant worker’s livelihood. The total lack of enforcement by the executive actions is why some judges of the apex and lower courts feel constrained to issue the continuing mandamus writ in earlier years. If the judiciary does not act in this manner, the fundamental rights that it upheld would be useless and invaluable. A right that is unenforced by the judiciary is no right at all.
Lastly, how executive actions can overreach in resulting huge damage to the constitutional fabric of our country’s democracy, various rights and liberties of citizens were demonstrated in this article. To prevent this, the judiciary must exercise its appropriate powers of judicial review wherever needed. The Constitution of India permits the judiciary organ of the government to exercise strong forms of judicial review concerning the civil and political rights of the public at large. The judiciary is permitted to exercise weak-form judicial review in issues where socio-economic rights matters. This shall be in effect using the standards of proportionality and reasonableness respectively to ensure the doctrine of separation of powers. Judicial review always had unique values during any crisis that affected India but unfortunately, this time the Supreme Court of India has failed to deliver and has renounced its constitutional duty towards its citizens. The High Courts and lower Courts on the other hand have provided glowing and flourishing orders and judgements of upholding its citizen’s fundamental rights and acted as a check on the executive’s actions while of course preserving the Rule of Law.
 Surbhi Kesar and others, Pandemic, informality, and vulnerability: Impact of COVID-19 on livelihoods in India, https://cse.azimpremjiuniversity.edu.in/wp-content/uploads/2020/06/Kesar_et_al_Pandemic_Informality_Vulnerability.pdf
 Anisha Dutta, ‗198 migrant workers killed in road accidents during lockdown: Report, https://www.hindustantimes.com/india-news/198-migrant-workers-killed-in-road-accidents-during-lockdown-report/story-hTWzAWMYn0kyycKw1dyKqL.html
 Government of India, Ministry of Home Affairs, Orders, https://ndma.gov.in/en/media-public-awareness/ndma-orders-advisories.html
 The term finds no definition in the law and is used colloquially to collectively refer to the restrictions imposed by the central and state governments.
 Bonavero Institute of Human Rights (University of Oxford), A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 11 Jurisdictions
 Abhinav Sekhri, ‗Learning to Live with Crisis Governance Long after the Coronavirus?, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3603202
 Gautam Bhatia, ‗Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App’, https://indconlawphil.wordpress.com/2020/05/02/coronavirus-and-the-constitution-xxi-the-mandatory-imposition-of-the-aarogya-setu-app/
 Benjamin Novak, ‗Hungary Moves to End Rule by Decree, but Orban‘s Powers May Stay‘, https://www.nytimes.com/2020/06/16/world/europe/hungary-coronavirus-orban.html
 Harsh Mander and Amritanshu Verma, ‗Following authoritarian regimes around the world, India is using Covid-19 pandemic to crush dissent‘, https://scroll.in/article/961431/delhi-police-is-making-arbitrary-arrests-and-crushing-dissent-under-the-cloak-of-lockdown
 Institute for Bioethics, Health Policy and Law, https://biotech.law.lsu.edu/blaw/cdc/SARS_REPORT.pdf
 John Alder, Constitutional and Administrative Law (3rd edn, Macmillan 1999)
 John Finn, Constitutions in Crisis: Political Violence and the Rule of Law (OUP 1991) 33
 Richard Fallon Jr., ‗The Rule of Law as a Concept in Constitutional Discourse‘ (1997) 97 Columbia L Rev 1, 7; Brian Tamanaha, ‗The Rule of Law for Everyone?
 Constitution of India 1949, arts 13, 32, 131-136, 143, and 226
 MJC Vile, Constitutionalism and the Separation of Powers (OUP, 1967) 13; Aileen Kavanagh,
 ibid; DJ Galligan, Discretionary Powers (Clarendon Press, 1986) 228
 Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2016)
 PM Bakshi, ‗Separation of Powers in India‘ (1956) 42 American Bar Association Journal 552
 Tom Ginsburg and Mila Versteeg, ‗States of Emergencies: Part II‘, https://blog.harvardlawreview.org/states-of-emergencies-part-ii/
 Karan Gupta, ‗Cracks in India‘s Constitutional Framework: Structural Implications of the Response to Covid-19 on Indian Constitutionalism‘, https://verfassungsblog.de/cracks-in-indias-constitutional-framework/
 Indeed, the ‗legislative model‘ of responding to an emergency requires that ordinary judicial review remain in place. Ferejohn and Pasquino (n 4)
 Lindsay Wiley and Steve Vladeck, ‗COVID-19 Reinforces the Argument for ―Regular‖ Judicial Review—Not Suspension of Civil Liberties—In Times of Crisis‘, https://blog.harvardlawreview.org/covid-19-reinforces-the-argument-for-regular-judicial-review-not-suspension-of-civil-liberties-in-times-of-crisis/
Author: Shruti Deo, Amity Law School, Noida
Editor: Kanishka Vaish, Senior Editor, LexLife India.