In a constitutional democracy, justice is not just a theoretical concept but serves as a real refuge where citizens seek to uphold their fundamental rights. Individuals, aggrieved by various issues, approach the High Courts under Article 226 of the Constitution of India, hoping for decisive judicial intervention. However, this vital constitutional promise is jeopardized by a practice known as ‘consider jurisprudence,’ as identified by the Supreme Court of India. Instead of resolving complex legal matters decisively, courts increasingly issue mechanical directions to administrative authorities to merely ‘consider’ a petitioner’s representation within a specified period. This practice reflects a systemic abdication of judicial responsibility and disrupts the balance of the separation of powers.
By withdrawing from their adjudicatory duties, courts become passive conduits, leaving citizens in endless bureaucratic cycles. The promise of swift justice is replaced by procedural avoidance, sacrificing the duty to declare the law for procedural convenience. While the practice is often justified by citing the overwhelming judicial backlog, ‘consider jurisprudence’ merely creates a statistical illusion, further burdening the judicial system. When a writ petition is disposed of by directing an executive officer to pass a reasoned order, it may seem like a quick resolution. However, as noted in the Supreme Court case of Government of India & Anr v. P Venkatesh, such orders do not serve the cause of justice effectively.
Because courts do not initially determine the existence or violation of a legal right, administrative authorities often comply with court directions by issuing rejection orders. This forces litigants to file new writ petitions to challenge these administrative refusals, leading to multiple fresh writs and parallel contempt applications. This increases the volume of redundant litigation, exacerbating the systemic crisis.
The human and institutional costs of this procedural cycle were starkly highlighted by the Supreme Court in the case of Mahendra Prasad Agarwal v. Arvind Kumar Singh & Ors. The case involved lecturers in a private college in Uttar Pradesh seeking state-funded salaries. Instead of adjudicating whether the lecturers had a constitutionally enforceable right to these salaries, the Allahabad High Court initiated a 16-year cycle of remands. The Supreme Court likened this cycle to a TV series, where the first 13 years constituted the ‘First Season,’ involving repeated cycles of reconsideration and rejection, without any substantive findings on the merits. The subsequent ‘Second Season’ involved contempt petitions, further extending the litigation.
The Supreme Court criticised this practice, emphasizing that if relief is deserved, it must be granted promptly, without delay. The tendency to issue ‘consider’ directions undermines strict statutory laws governing limitation, delay, and laches. Litigants often submit belated representations for long-settled disputes, and when ignored by the executive, they seek court direction to merely dispose of their representation. Once the court issues this mandate and the authority rejects the claim, the litigant argues that this fresh rejection creates a new cause of action.
The Supreme Court sought to dismantle this misconception in C Jacob v. Director of Geology & Mining & Anr, emphasizing that mere directions to consider do not substantively decide the parties’ rights. This principle was further reinforced in Union of India & Ors v. MK Sarkar, mandating that the rejection of a belated representation must consider the original cause of action regarding limitation. This procedural loophole can be exploited by opportunistic litigants and pliable officers, as noted in APSRTC & Ors v. G Srinivas Reddy & Ors where unscrupulous petitioners use ‘consider’ directions as a legal shield.
To combat such opportunism, the Supreme Court in State of Uttar Pradesh & Ors v. Arvind Kumar Srivastava & Ors ruled that individuals who neglect their rights over time cannot demand parity based on others’ favorable outcomes. The doctrine of separation of powers requires each state organ to function within its constitutional limits. When courts pass mechanical directions without evaluating evidence, they shift the adjudicatory burden to the executive, forcing officers to perform judicial tasks. This abdication is compounded when courts misuse contempt jurisdiction to negotiate executive policies, distorting constitutional governance.
The writ of mandamus is designed to enforce lawful public action, not to issue suggestions that disrupt administrative priorities. To maintain its status as the guardian of fundamental rights, the judiciary must abandon ‘consider jurisprudence.’ Constitutional courts must decisively resolve controversies on their merits without resorting to procedural shortcuts, ensuring the judiciary remains a sanctuary of justice rather than a procedural quagmire.
Ajmal Shah is an advocate practicing before the High Court of Jammu & Kashmir and Ladakh, at Srinagar.
