The pathology of ‘consider' jurisprudence

Justice in a constitutional democracy is not merely a theoretical promise, but a living sanctuary where citizens seek the absolute vindication of their fundamental rights. When aggrieved individuals knock on the doors of a High Court invoking its jurisdiction under Article 226 of the Constitution of India, they arrive with the hope of receiving a decisive intervention. However, this profound constitutional guarantee is currently facing a silent erosion through a deeply entrenched judicial habit that the Supreme Court of India termed as "consider jurisprudence".

Instead of adjudicating complex controversies on their merits and issuing clear writs of mandamus, constitutional courts increasingly choose to dispose of writ petitions by issuing mechanical directions to administrative authorities to consider a petitioner’s representation within a specified period. This practice constitutes a structural abdication of judicial duty and severely damages the delicate equilibrium of the separation of powers.

By choosing to withdraw their adjudicatory labour, courts transform themselves into passive forwarding agencies and relegate citizens to an infinite loop of bureaucratic evasion. The promise of swift justice is thus replaced by a carousel of avoidance, where the fundamental duty to declare the law is sacrificed at the altar of procedural convenience.

The most immediate defence offered for this practice is the crushing weight of judicial backlog. Yet, the reality is that consider jurisprudence operates as a statistical illusion that exponentially overburdens the very institutions it seeks to relieve. When a writ petition is disposed of with a vague direction to an executive officer to pass a reasoned order, the court registers a quick disposal on its immediate docket. However, as the Supreme Court of India sharply articulated in the landmark judgment of Government of India & Anr v. P Venkatesh, such mechanical orders may provide a facade of rapid clearance for overburdened adjudicatory institutions, but they perform absolutely no service to the cause of justice.

Because the court refuses to declare the existence of a legal right or its violation in the first instance, the administrative authority almost invariably complies with the court direction by issuing a fresh rejection order. This compels the exhausted litigant to file a brand new writ petition to challenge the subsequent administrative refusal. Consequently, what should have been resolved in a single definitive proceeding mutates into multiple fresh writs and parallel contempt applications, flooding the court registries with redundant litigation and magnifying the systemic crisis.

The tragic human and institutional costs of this procedural circularity were vividly exposed by the Supreme Court in the recent decision of Mahendra Prasad Agarwal v. Arvind Kumar Singh & Ors. The controversy centred on lecturers appointed to a private degree college in Uttar Pradesh who sought the release of their regular salaries from the State exchequer following a government policy shift. Instead of directly adjudicating whether the lecturers possessed a constitutionally enforceable entitlement to government funded salaries, the Allahabad High Court initiated a staggering 16-year marathon of iterative remands.

The Supreme Court utilised a television metaphor to describe this deadlock, characterising the first 13 years of litigation as the First Season. This First Season featured an endless cycle where the High Court would issue a direction to reconsider, the State authorities would issue a detailed rejection order and the High Court would once again remand the matter without ever recording a substantive finding on the merits of the claim. When the lecturers filed contempt petitions, the litigation entered its Second Season, a parallel, inconclusive treadmill where the contempt bench demanded compliance affidavits throughout 2024 and 2025. This episodic consideration allowed the contempt forum to be used as a shortcut for quick relief, transforming a punitive jurisdiction meant to protect judicial dignity into a summary arena for negotiating executive policy.

The Supreme Court condemned this habit, stating that if a case deserves relief, it must be granted then and there, unflinchingly if need be, because the balancing of equities must never be confused with avoiding or postponing relief.

Furthermore, the habit of issuing consider directions fundamentally subverts the strict statutory laws of limitation, delay and laches. Litigants frequently submit belated representations regarding disputes that have been dead for decades. When the executive naturally ignores these stale requests, the petitioners approach the High Court with an innocuous prayer to direct the authority to merely dispose of their representation. Once the court issues this routine mandate and the authority subsequently rejects the claim, the litigant returns to the court arguing that the fresh rejection order constitutes a brand new cause of action.

The Supreme Court sought to dismantle this fallacy in the case of C Jacob v. Director of Geology & Mining & Anr, holding that the courts proceed on a deeply flawed assumption that a mere direction to consider does not involve a substantive decision on the rights of the parties. This principle was emphatically reinforced in Union of India & Ors v. MK Sarkar, where the Supreme Court mandated that the rejection of a belated representation passed in compliance with a judicial direction does not erase the preceding delay and the issue of limitation must always be evaluated strictly with reference to the original cause of action.

This procedural loophole is systematically exploited by opportunistic litigants and pliable executive officers. In the foundational ruling of APSRTC & Ors v. G Srinivas Reddy & Ors, the Supreme Court warned that unscrupulous petitioners use the direction to consider as a legal shield. A citizen presents an untenable or time barred claim and upon receiving a routine judicial mandate for consideration and a collusive administrative officer grants the unmerited relief. The executive officer then attempts to escape public accountability by claiming they were obligated to grant the benefit due to the strict order of the constitutional court.

To combat this opportunistic behaviour, the Supreme Court delivered a stringent judgment in State of Uttar Pradesh & Ors v. Arvind Kumar Srivastava & Ors. The Court ruled that individuals who sleep over their rights and acquiesce to their circumstances cannot suddenly awaken after decades to demand parity just because vigilant citizens secured a favourable outcome. Fence-sitters cannot be permitted to resurrect dead controversies through the back door of fresh representations, the Court held.

The doctrine of separation of powers demands that each organ of the State operates within its designated constitutional boundaries. When a constitutional court refuses to evaluate evidence and passes a mechanical direction, it shifts the adjudicatory burden to the executive branch, forcing administrative officers to perform judicial functions. This systemic abdication is further compounded when courts pervert their contempt jurisdiction into a summary forum for negotiating executive policy, thereby distorting the fundamental boundaries of constitutional governance.

The extraordinary writ of mandamus is a powerful weapon designed to compel lawful public action, not a convenient tool for issuing sympathetic suggestions that disrupt administrative seniority and statutory priorities. If the judiciary is to retain its exalted status as the supreme guardian of fundamental rights, it must completely abandon the pathology of consider jurisprudence. Constitutional courts must gather the institutional courage to grasp the nettle and decide controversies comprehensively on their merits, without resorting to mechanical shortcuts. Only by issuing clear, executable and decisive judgments can the judiciary protect the public from administrative exploitation and ensure that the majestic halls of justice remain a true sanctuary of absolute finality rather than a perpetual motion machine of procedural despair.

Ajmal Shah is an advocate practicing before the High Court of Jammu & Kashmir and Ladakh, at Srinagar.