Deliberate Failure

The Statesman

Context and Central Theme

The article examines the Supreme Court’s handling of preventive detention under the J&K Public Safety Act (PSA) and similar laws, arguing that repeated judicial reluctance to enforce strict constitutional safeguards has normalised executive arbitrariness. The core contention is that institutional failure here is not accidental or episodic, but systemic and deliberate, sustained by weak accountability, procedural delays, and judicial minimalism.

The piece situates the debate at the intersection of constitutionalism, civil liberties, national security, and judicial responsibility.

Key Arguments

1. Preventive Detention as Normalised Exceptionalism

The author argues that preventive detention laws, originally justified as exceptional measures:

• Have become routine instruments of governance
• Operate with minimal evidentiary thresholds
• Invert the presumption of liberty

Judicial acceptance of procedural lapses is presented as enabling this normalisation.

2. Judicial Deference as the Core Failure

A central argument is that courts:

• Focus excessively on procedural formalities rather than substantive rights
• Treat repeated executive violations as correctable errors rather than constitutional breaches
• Fail to impose meaningful consequences on detaining authorities

This, the author argues, signals to the executive that non-compliance carries little cost.

3. The Burden of Delay

The article highlights how:

• Delayed hearings and post-facto remedies render relief meaningless
• Even when detentions are quashed, the individual has already suffered prolonged incarceration

Justice delayed, in preventive detention cases, is effectively justice denied.

4. Constitutional Inversion

The author suggests a deeper constitutional inversion:

• Fundamental rights are treated as privileges contingent on executive satisfaction
• Liberty becomes the exception, detention the default

This undermines the spirit of Articles 21 and 22.

Author’s Stance

The stance is unambiguously critical and normative:

• Strongly civil-libertarian
• Emphasises constitutional morality over security pragmatism
• Holds the judiciary, not just the executive, responsible for democratic backsliding

The author views judicial restraint in such cases not as neutrality, but as abdication.

Biases and Framing Limitations

1. Security Considerations Underplayed

The article:

• Minimally engages with the state’s security rationale
• Does not sufficiently acknowledge the complexity of intelligence-based decision-making

This creates a civil-liberties-first framing that may appear dismissive of genuine security threats.

2. Normative Idealism

The argument assumes:

• Courts have both capacity and institutional space to aggressively police executive action
• Strong judicial intervention will not produce unintended governance or security consequences

This may understate real-world constraints.

3. Selective Focus

The critique centres largely on judicial failure, while:

• Legislative responsibility for vague detention laws receives less sustained scrutiny
• Broader political accountability mechanisms are not fully explored

Pros of the Argument

• Powerfully foregrounds the lived consequences of preventive detention
• Highlights structural, not isolated, failures in constitutional enforcement
• Reinforces the principle that procedural safeguards are substantive rights
• Serves as a strong reminder of the judiciary’s counter-majoritarian role

Cons and Limitations

• Insufficient balance between liberty and security imperatives
• Limited engagement with comparative constitutional practices
• Offers critique more than implementable reform pathways
• Risks being read as absolutist in complex governance contexts

Policy and Institutional Implications

1. Judicial Reforms

• Time-bound adjudication of preventive detention cases
• Mandatory compensation and accountability for unlawful detention
• Shift from procedural compliance to substantive rights review

2. Legislative Action

• Narrower drafting of preventive detention statutes
• Clearer evidentiary and review standards
• Periodic parliamentary oversight of detention regimes

3. Executive Accountability

• Personal liability for repeated violations
• Independent review boards with real powers, not advisory roles

Real-World Impact

If current trends persist:

• Preventive detention risks becoming a tool of routine political control
• Public faith in constitutional remedies will erode
• Exceptional laws may permanently reshape ordinary governance

Conversely, meaningful judicial correction could:

• Restore constitutional balance
• Reinforce the rule of law in security-sensitive contexts
• Reaffirm liberty as a foundational democratic value

UPSC GS Paper Alignment

GS Paper II – Polity and Governance

• Fundamental rights
• Preventive detention
• Role of judiciary and judicial accountability

GS Paper IV – Ethics

• Constitutional morality
• Accountability of institutions
• Ends versus means in governance

Essay

• “Liberty cannot survive where accountability fails”
• “Judicial restraint versus judicial responsibility”

Balanced Conclusion and Future Perspective

“Deliberate Failure” makes a forceful case that the erosion of liberty through preventive detention is sustained not merely by executive overreach, but by judicial accommodation. While the article’s civil-libertarian lens may underplay security complexities, it rightly warns that constitutional democracies decay not through dramatic collapse, but through quiet normalisation of exceptions. The future challenge lies in restoring equilibrium—where security concerns are addressed without hollowing out the constitutional promise of liberty and due process.