On March 31, 2020, Prime Minister Modi addressed a country of 135 crore people and made an announcement that would impact their lives in unimaginable ways. With a notice of just four hours, he announced that the country would be entering into a 21-day lockdown which would entail a near-total ban on movements and activities.

The effect of the pandemic itself, coupled with state action that inevitably restricted fundamental rights, gave rise to a complex web of questions. For instance, could courts intervene with the policies implemented by the state in order to uphold fundamental rights while simultaneously respecting the separation of powers?

In The State of Exception, I argue that the increase in executive power during crises adversely impacts constitutional and democratic values, with the "state of exception" being utilized to expand power over the citizenry and curtail civil liberties. In Section II, I establish the need for judicial review, not only because it checks executive excess and upholds the rule of law, but also because it provides unique benefits in a crisis. Here, I also resolve the supposed tension between the separation of powers doctrine and judicial review.

The Case of the Creeping Executive:

The pandemic has ushered in an era of rule by executive decree, where emergency-like powers are being exercised by the government and emergency measures have been put in place. There is some consensus that the lockdown and the manner in which it was implemented violated citizens' rights to health, food, shelter, livelihood, equality, and non-discrimination in various ways. The government has employed what has been termed a coercion-backed crisis form of governance.

However, such expansion must be proportionate to the expected benefit to the public and related to the problems caused during the crisis, at the very least. In India, the police registered an FIR against a news website for reporting facts related to the pandemic and targeted private citizens who were critical of the state's management. In the USA, people of all political leanings were willing to sacrifice their civil liberties in order to contain the current pandemic, even if it involved unconstitutional state action.

The increase in executive power during crises has long been used to target minorities or vulnerable classes—in the USA, a racially discriminatory policy allowed for the unjust internment of thousands of Japanese-Americans during World War II.

Of particular concern were numerous states' amendments to labor laws, removing vital protections from workers in order to "promote economic growth"; these have also been argued to be unconstitutional. State conduct during an emergency also pushes the envelope of our understanding of normalcy and creates precedent for acceptable state action in a future crisis.

The political exploitation of that fear, which inevitably manifests at such a time, and the political exploitation of that fear normalize legal structures and practices which were previously considered exceptional. Diverse events show, for instance, that the Indian government has historically used its extraordinary powers in a 'prolonged and indiscriminate' fashion in order to shift the status quo ante and normalize the exercise of such powers.

The SARS epidemic, too, previously resulted in a similar normalization of emergency powers across jurisdictions. The fact that governments become used to the convenience of emergency powers and are gradually less willing to give them up is also of concern. Hence, executive 'creep' over time poses a grave threat to constitutional democracy and its accompanying values in the long run. It dominates the other two branches of government as well as poses a risk to individual freedoms.

Rule of law, Separation of powers, and crisis:

I will demonstrate the two-fold value of judicial review. I first demonstrate that it is essential to upholding the rule of law (and ensuring the separation of powers), and then establish the value of the judiciary's role in times of crisis. I also respond to detractors of judicial review during crises and show that their arguments are not applicable to the present situation.

This section will set out what the rule of law means in India, how the doctrine of separation of powers is conceptualized, and how judicial review fits with these concepts. There is heated disagreement on the exact meaning of "rule of law" and no consensus has been arrived at regarding its exact content.

Unlike many other countries, the Indian Constitution clearly establishes judicial review as a part of India's constitutional framework. Article 32(2) empowers the Supreme Court to issue any of the five writs mentioned in order to enforce the fundamental rights in Part III. There is a strong case to be made that the Constitution reflects an understanding of the thick conception of the rule of law. The deep commitment to fundamental rights is evident from the extent of power handed to the courts.

"The pure doctrine of separation of powers" dominates the general understanding of the concept in India. As per this conception, the government must be divided into three divisions: the executive, the legislature, and the judiciary. The judiciary, in interpreting law, is also said to be making it (to a certain extent, at the very least). It also exercises the power of review over the other branches' actions.

The orthodox understanding of the doctrine of separation of powers is that it seeks to prevent the concentration of power in any one institution. The purpose of this is to create branches of government that are distinct from the executive and to which it will be accountable.

This ensures governmental efficiency as well as a check on the abuse of power. Judicial review, then, is a manifestation of this value—it performs the important function of checking the executive when it acts in excess of its mandate and ensuring that constitutional rights are upheld.

The Need for Judicial Review in Times of Crisis:

Four principles are of assistance to the problem of a creeping executive in a time of crisis. First, legislative oversight of the executive must be present; second, exceptional measures must be limited to those which are strictly necessary; third, a "sunset clause" which indicates the temporal limits on the executive's extraordinary powers is required; and fourth, judicial oversight of such measures must also be present. Judicial review will ensure that constitutional rights are not undermined without cause.

In addition to checking executive excess, the judiciary also legitimizes state action by reviewing it. The courts are the "only forum realistically available" for most people subject to emergency measures. They can therefore exert control over the next emergency, further enhancing the importance of its role.

Judicial review results in increased transparency and accountability, better regulation of government action, and a check on executive overreach, with the consequent protection of civil liberties. One must not lose sight of the fact that even well-meaning actors may unintentionally overstep the bounds of necessity, and judicial review will assist them as well.

Arguments against judicial review during times of crisis are based on the assumption that the crisis in question will be finite and will soon allow a return to "regular" modes of functioning. Judicial review is therefore not unsuited to emergencies or crises and can be applied in a variety of ways, including that judges are not experts.

The proportionality standard of review (which accounts for the purpose of a measure, its suitability, necessity, and a balance between its costs and benefits) is flexible and allows for different outcomes based on the context in which it is applied. This is exemplified by a recent order of the Gujarat High Court, which accepted and upheld the state government's position on many issues related to pandemic-management after subjecting it to review.

Evaluating the judiciary's response to the pandemic:

India's High Courts have generally carried out their role in a similarly upstanding fashion (with a few exceptions). A few orders have been chosen as being illustrative of the general trend. The Odisha High Court's response to an unofficial ban on the use of vehicles instituted by the local police is a useful example. The High Courts have by and large been conducting judicial review and upholding fundamental rights. They have scrutinized the positions of the states and not adopted an unduly deferential attitude towards the executive.

Thus, the High Courts' response to the pandemic is conducive to preserving the rule of law. In contrast, the Supreme Court has declined to direct the government to provide food and shelter to migrant workers.

India's top court has passed orders based on the rights of the people and reversed its own position in an incomprehensible fashion or has done too little too late. In a petition seeking payment of wages to migrant workers, the Chief Justice asked why migrant workers needed wages if they were being provided meals, and stated that it would not supplant the government's wisdom for its own.

The Supreme Court has by and large demonstrated a remarkable level of deference to the executive. It has failed to apply legal standards to the issues before it and has chosen to accept the state's version without any scrutiny. In so doing, it has abandoned its constitutional role of carrying out judicial review and ensuring that the executive does not reign supreme while protecting fundamental rights.

The path ahead: strong-form and weak-form review

In the section on judicial review, I argue that courts should perform strong-form judicial review with respect to first generation rights as they are required by the Constitution to do so. This has a direct bearing on the authority of the courts and the separation of powers doctrine. Second-generation rights, on the other hand, are justiciable in India, and this has an impact on the scope of judicial review.

A Case for Strong-Form Review for First Generation Rights- First generation rights or civil and political rights are considered "negative rights" because they require the state to refrain from acting in a manner which infringes them. Article 13 casts a constitutional duty upon judges to interpret the Constitution and declare any law violating it to be unconstitutional. The most appropriate standard of review during the pandemic is proportionality review.

The proportionality test is preferable to the reasonableness standard as it allows for flexibility while ensuring that undue deference is not present. This is especially important because crises are prone to ideological reasoning; expressing any doubt about the suitability of a state measure is characterized as weakness. Proportionality review will not permit courts to accept the state's assurances at face value, as each prong of the test will need to be fulfilled.

Proportionality review is the most appropriate test for testing whether the infringement of a right is warranted. It provides flexibility that is especially useful during a pandemic when it may not be possible to characterize rights as trumps. This approach does not violate the separation of powers doctrine as the judiciary does not legislate or decide what policy to adopt.

A Case for Weak-Form Review of Second Generation Rights- Second generation rights, or economic and social rights, are considered "positive rights" because they require the state to undertake some action to fulfill them. Part IV of the Constitution codifies these rights; they are non-justiciable but act as guidelines to be followed by the state.

The Supreme Court has failed to adopt a test which defines the scope of social rights. Instead, it has adopted the "conditional social rights" approach, where violation of a right is conditional upon state action. It is inadvisable for the courts to continue with the "conditional social rights" approach during a pandemic, as the absence of government schemes would effectively mean that the right in question does not exist.

Instead, it would be useful if the court settled upon a definitive standard for adjudicating social rights. The minimum core approach would require courts to grant injunctive relief in each individual case they hear, which may not be suited to a pandemic. The reasonableness approach is far more suited because it recognizes the constraints of the state.

Refashioning the Separation of Powers Doctrine- The pure doctrine of separation of powers is not realistic. What, then, would a more tenable understanding of this principle look like? It is the respect that each branch of the state owes to the other. This involves a "leeway requirement" and a "mutual support requirement." Proportionality review as well as the reasonableness standard are congruent with this idea.

The executive would be justified if it failed to ensure that migrant workers reached home within the stipulated deadline and the judiciary directed it to re-open train lines for this specific purpose. A total lack of enforcement by the executive is why some judges have felt constrained to issue continuing mandamus in the past. If the judiciary did not act in this fashion, the rights that it upheld would be useless-a right which is unenforced is no right at all.

Conclusion
The judiciary has unique value during a crisis but unfortunately, the Supreme Court has failed to deliver and has abjured its constitutional duty. The High Courts, on the other hand, have provided glowing examples of upholding fundamental rights and acting as a check on the executive while preserving the rule of law. I have demonstrated that executive overreach can result in grave damage to the constitutional fabric of our democracy and to the various rights and liberties we hold dear.