Author: Riya S. Rane, Hindi Vidya Prachar Samiti’s College of Law
To the Point
The “ratchet effect” in constitutional jurisprudence refers to the phenomenon where temporary emergency measures, enacted in response to crises such as terrorism or pandemics, are not repealed upon the cessation of the threat. Instead, these measures are codified into ordinary statute, permanently expanding executive power. This article analyzes the legal mechanisms—such as the removal of sunset clauses and the integration of “extraordinary” powers into the penal code—that transform temporary security ordinances into permanent legislative features.
Use of Legal Jargon
To navigate this subject, a clear understanding of the following terminology is required:
State of Exception (État d’exception): A legal paradigm wherein the sovereign temporarily suspends the rule of law to preserve the legal order itself during an existential crisis.
Sunset Clause: A statutory provision mandating that a law shall cease to have effect after a specific date unless further legislative action is taken to renew it.
Derogation: The formal suspension of a state’s treaty obligations to respect certain human rights (e.g., under Article 4 of the ICCPR) during a declared public emergency.
Preventive Detention: The incarceration of individuals not as punishment for a crime committed, but as a precautionary measure based on the suspicion of future prejudicial acts.
Legislative Inertia: The tendency of legislative bodies to maintain the status quo, often resulting in the retention of temporary powers due to the political risk associated with their repeal.
The Proof
The trajectory from “emergency” to “permanence” is observable across major constitutional democracies:
The United States: The USA PATRIOT Act (2001) was expedited as a temporary counter-terrorism measure post-9/11. While certain provisions faced sunset deadlines, the core surveillance and data collection authorities were effectively codified into permanent law through the USA FREEDOM Act (2015). The “emergency” infrastructure established in 2001 has thus become the baseline for domestic security operations.
India: The repeal of the Prevention of Terrorism Act (POTA) in 2004 was initially viewed as a restoration of civil liberties. However, the 2004 and 2008 amendments to the Unlawful Activities (Prevention) Act (UAPA)—originally a 1967 law—absorbed POTA’s most stringent provisions, including extended pre-charge detention periods and restrictive bail conditions. Unlike its predecessors, the UAPA is a permanent statute without a sunset clause.
France: Following the 2015 Paris attacks, France declared a State of Emergency. In 2017, the SILT Act (Law to Strengthen Internal Security) transferred emergency powers—such as administrative searches and restrictions on movement—into ordinary common law, rendering the formal State of Emergency unnecessary while retaining its functional powers.
Abstract
Constitutional theory traditionally demarcates “normal times,” governed by strict adherence to the rule of law, from “emergency times,” where the executive is granted expanded latitude. This paper argues that this dichotomy is increasingly eroding. By examining the legislative evolution of security laws in the United States, India, and France, the article demonstrates how the “War on Terror” and recent public health crises have served as catalysts for permanent executive aggrandizement. It concludes that without robust judicial review and the strict application of sunset clauses, democracies risk sliding into a permanent, undeclared state of exception.
Case Laws
1. A v Secretary of State for the Home Department (2004) [The Belmarsh Case]
Jurisdiction: United Kingdom House of Lords
Significance: The Court held that the indefinite detention of foreign nationals without trial, justified by the government under a “public emergency,” was disproportionate and discriminatory. Lord Hoffmann’s dissent emphasized that the true threat to the nation’s life arose not from terrorism, but from laws that dismantle fundamental liberties.
2. Anuradha Bhasin v. Union of India (2020)
Jurisdiction: Supreme Court of India
Significance: In addressing the indefinite internet shutdown in Jammu & Kashmir, the Court ruled that the suspension of telecom services must be temporary, proportionate, and subject to periodic judicial review. The judgment affirmed that “national security” cannot be utilized as a blanket justification for the permanent abrogation of fundamental rights.
3. Hamdi v. Rumsfeld (2004)
Jurisdiction: United States Supreme Court
Significance: The Court rejected the Executive’s claim to unchecked authority during wartime, ruling that a U.S. citizen detained as an enemy combatant must be afforded due process and a meaningful opportunity to contest the factual basis of their detention before a neutral decision-maker.
Conclusion
The normalization of emergency laws represents a structural shift in democratic governance. When “extraordinary” powers—such as warrantless surveillance or detention without trial—are integrated into the ordinary legal framework, the burden of justification shifts from the state to the citizen. To preserve the Rule of Law, it is imperative that legislatures institutionalize non-renewable sunset clauses for security statutes and that the judiciary strictly applies the test of proportionality. A democracy that operates under a permanent state of emergency fundamentally compromises its constitutional character.
FAQS
1. What is the “Ratchet Effect”?
The Ratchet Effect describes how government power expands during a crisis but never fully retracts once the danger passes.
2. Why are “Sunset Clauses” critical in emergency legislation?
A Sunset Clause acts as a temporal check, ensuring that a law automatically expires after a designated period. This compels the executive to return to the legislature to justify the necessity of renewing extraordinary powers, preventing their inadvertent permanence.
3. Is the UAPA classified as an emergency law?
Technically, the Unlawful Activities (Prevention) Act is a permanent statute. However, legal scholars characterize it as a de facto emergency law because it enshrines provisions typically reserved for temporary emergencies—such as the presumption of guilt in bail hearings—without any expiration date.
4. What is the role of the judiciary in checking these powers?
Through the doctrine of Judicial Review, courts assess whether emergency measures infringe upon fundamental rights or violate the Basic Structure of the Constitution. Courts apply tests of necessity and proportionality to ensure that the infringement on rights is the least restrictive measure possible to achieve the security objective.
5. How does “Preventive Detention” differ from “Punitive Detention”?
Punitive detention is incarceration following a conviction for a crime committed. Preventive detention is an administrative measure where an individual is detained in anticipation of a future crime, often with fewer procedural safeguards; its use is typically expanded during states of emergency.
