AN ANALYSIS OF DOCTRINE OF LEGITIMATE EXPECTATION
Author: Soham Sinha, III year of B.B.A.,LL.B(Hons.) From Bennett University Greater Noida.
Promising something is not a single transaction its rather two ways. Promise is done with the intention that it is to be kept or acted upon by the other party. Similar is the case if we consider our administrative system. We the citizens have various expectations form the authorities and such is due to the promises kept and the practices undertaken in the past. But due to the presence of principle of delegated legislation, separation of power, promises which were kept rather goes against the people’s expectation and thus they are deprived of advantage or benefits. To address this issue comes the Doctrine of Legitimate Expectation. This gives a form of legal help to the deprived people, rather they get the locus standi to challenge the action of the administration. This Doctrine do not come as a legal right, but it helps an individual to make the authority accountable in case of violation of certain duties. It also helps in ensuring that the authorities do not abuse their power, and such is prevented by the natural justice and the sense of fairness. The Doctrine exists as a Judicial safeguard for the individual deprived of benefit due to actions taken by the administration and such action taken is against the expectation of the public. Thus, this Doctrine allows the individual to challenge such deprivation, in a way upholding the principle of audi alteram partem.
The paper would be containing of a brief introduction of the Doctrine and its features. We would be looking into certain case laws which would signify the existence of the doctrine in England, followed by its origin and development in India. Next, we would look into who can apply the doctrine. We would also look upon the types of legitimate expectations which are procedural and substantive legitimate expectation and discuss about it. Next, we would look upon situations when the use of doctrine is formed. We will also discuss about relation between the Doctrine and Principle of Natural Justice Then we would discuss about the criticism of the doctrine. Lastly, will end with a conclusion and analysis of the Doctrine.
Presently, there are promises to introduce various policies, programs, along with various assurances which are made by the government or the administrative authorities. Since it is made, general public gets an expectation that the said promises or assurances would be provided to them and eventually they would be benefitted through it. But there are various instances when the authorities deviate from their said promise and assurances and take different course of action which ultimately results in various losses and damages to the public. To cure or remedify the losses, the general public gets the opportunity to present their part of expectation which was assured by the authorities and later deprived off. Doctrine of Legitimate Expectation comes into picture in such cases as a tool or a Judiciary safeguard. The Doctrine is a domain of public law, which helps in providing relief or claims of the public on basis of law. Lord Denning in 1969, first used the term “Legitimate Expectation”. The expectation as already stated may arise to general public due to an express statement, undertaking by the administrative authority or even through a practice which is generally practiced regularly. The term Legitimate expectation cannot be compared with general anticipation or even desires and hopes, rather it is a type of Principles of natural justice. Such expectation created is also protected by the courts through “fair play in action”.
The Doctrine comes into play when it is shown by the public that due to the expectation, he/she has relied on it and if such expectation gets denied then he/she shall be deprived. Then if it is found that the decision made by the authority was gross, unreasonable, affecting the natural justice and also against the public interest, then only the court’s intervention is required in such matters.
The Doctrine has several features. Firstly, public law allows to go to the court even there is no statutory violation, but because of deprived expectation where the grounds are legitimate. Public can claim not because of a legal claim but to make the administrative authority accountable for its action. Secondly, the Doctrine comes into existence due to the presence of Article 14 which demands for fairness in the actions of the administration. Scope of this Article is not only on class legislation which is arbitrary but also in if the state action is arbitrary. Thirdly, the expectation needs to be legitimate and for the public interest.
ORIGIN AND DEVELOPMENT OF DOCTRINE IN ENGLAND
The expression was developed firstly in England in 1969 through the case of Schmidt v. Secretary of State for Home Affairs. The case showed that even though a foreigner was deprived of entering in UK, he should get the minimum right of being heard. He also had the legitimate expectation to be allowed to stay and that to for the allotted time. Later cases also saw the use of the principle without actually mentioning or expressly stating the terms. One of such case was Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association , where without the knowledge of the taxi operator association, the licenses of taxi were increased, and such was held as unjustified as it was a general expectation on the part of the association.
Another landmark case of England could be the case of A.G. Of Hong Kong v. Ng Yuen Shiu. The court stated that it is the duty of the public authority to follow the procedures and take actions which are fair. Court also distinguished between expectation and anticipation where expectation can be considered as legitimate if there is the presence of sanctions, procedures which are legal along with customs which are generally followed. Since there is no “crystallised right” for legitimate expectation, there is the absence of direct relief. Legitimate expectation offers the right of fair hearing in case where the promise or assurance by the administration was withdrawn negatively. The administration in this case has to justify its decision and it should be free of arbitrariness, unreasonableness and taken in interest of public. The court gets the power of judicial review, but such scope gets limited when the issue at hand is regarding policy changes. In such cases, the court is expected to refrain from interfering.
ORIGIN AND DEVELOPMENT OF DOCTRINE IN INDIA
In India, the Doctrine got its exposure in the case of State of Kerala v. K.G. Madhavan Pillai. The case arose due to a sanction which provided to upgrade as well as open existing and new schools respectively. But later the sanction was suspended. On being challenged, the court stated that the respondents had the right claim of legitimate expectation due to the sanction which was already passed. Also, the later order passed was going against the principles of natural justice. Legitimate expectation not only arises in case of promises or sanctions but it arises even due to a constant practice. This was witnessed in the case of Navjyoti Coop. Group Housing Society v. Union of India. The issue was regarding deciding seniority with respect to allotment of land. Old policy decided seniority on the basis of the date on which registration was made. Later new policy was introduced which decided seniority on the basis of the approval date in the final list. The apex court in this matter stated that the continuous practice through the old policy entitled the people in the housing societies to legitimate expectation. Authority can pass a new policy but that should not be against the legitimate expectation and if it is against the doctrine, such should be made in interest of public. The court also stated that going against the expectation, or even the continuous practice in existence comes under the category of fairness. But in the case in hand, opportunity though a public notice regarding the same was not provided to the housing societies. It was also stated in the case of UOI v. Hindustan Development Corporation that Legitimate expectation comes into play even when the person actually do not have the legal right, but due to the doctrine the person can be treated in the same fashion. In this case, the doctrine was majorly related to procedural legitimate expectation (will be discussed later). The doctrine allows the individual to have fair hearing before any decision in negative or positive sense is undertaken.
WHO CAN APPLY THE DOCTRINE OF LEGITIMATE EXPECTATION?
The doctrine can only be invoked by those who have dealings, transactions, or agreements with an authority, on which such established practice bears, or those who have a recognised legal relationship with the authority. The doctrine of legitimate expectation cannot be used by a total stranger who has no connection with the authority, nor had single prior dealings with the authority and have never entered into any transaction or agreements with the authority. They cannot simply invoke the doctrine because the authority has a general duty to behave reasonably.
TYPES OF LEGITIMATE EXPECTATION
Legitimate Expectation can be of two types, Procedural and substantive legitimate expectation.
PROCEDURAL LEGITIMATE EXPECTATION
In this form, it is expected of the authority to follow certain procedures before they produce their decision. Proper procedure means consulting, enquiring, hearing the parties before giving the decision. The main aim of this form is to make sure that the actions taken by the administration are free from arbitrariness, self-serving and giving respect to the parties who would be affected in a sense by the decision they make. All such would imply that natural justice is maintained taking into consideration the fairness of decision by the administration. Situations of such form arise in case an individual expects of a certain policy but provided with something different, or a pre-existing policy which was expected was not applied in the present scenario. Other situations may be, individuals expected of a benefit due to norms by the administration but such was deprived off due to changes in norms or due to different decision of authority which was actually not promised in the early stage. The Doctrine comes in play in such situations only to give the affected people a right to be heard because of the legitimate expectation they had from the administration.
SUBSTANTIVE LEGITIMATE EXPECTATION
The substantive form of doctrine is still under formation in India. It actually provides individual with benefit which is substantial, and such arises because of the legitimate expectation such individual had. This form of legitimate expectation was seen in use in the case of R v. Secretary of state for the Home department, ex parte Khan. It was found that mere change in policy wont attract the doctrine unless previous consultations were not undertaken. It is upto the court to decide whether interest of public should be given importance. Later in the case of R v. North and East Devon Health Authority, ex parte Coughlan certain situations which may arise were discussed. In case the promise made by the authority was a type of contract, court would look into the case and decide whether depriving the expectation can be considered as an abuse of power. In other situation of policy change, the court would look into the rationality of the decision made and see whether consequences of the decision made were with prior investigation.
SITUATIONS DEMANDING THE FORMATION OF LEGITIMATE EXPECTATION
In the early stages, certain situations were enunciated in the case of Madras City Wine Merchants v. State of Tamil Nadu regarding forming legitimate expectation. Firstly, presence of promise or representation expressly by the administration. Secondly, ambiguous and unclear promises should not be entertained. Thirdly, any pre-existing policies or practices which are expected by the public to operate in the present. There are also cases when the doctrine would have no role in situation a particular authority has the power under executive policy to make decisions and there would be no restrictions to introduce any new policy which is actually required in the interest of public as a whole. It was also cleared in the case of M.P. Oil Extraction v. State of M.P , that in appropriate instances, the doctrine of legitimate expectations works in the field of public law and is regarded a substantial and enforceable right. In this case, the concerned industry had legitimate expectation that the agreements would be extended in a similar manner, based on historical practise and the renewal clause.
Situations when the Doctrine can be or cannot be exercised was clearly enumerated in the case of GNCT of Delhi v. Naresh Kumar. Firstly, the safeguard of doctrine of legitimate expectation present with the citizen do not arise as an enforceable right, but if such expectation of citizen is given lack of importance or any arbitrary decision is made regarding such expectation then this would deem to be an invalid decision. Secondly, the doctrine comes in existence when there is any promise made expressly by the authority, or due to any continuous practice expected to continue because of an existing policy and all such expectations should be reasonable in nature. Thirdly, the doctrine would be attracted, if the authority provides any decision depriving individuals of their expected benefit. Such decision can be considered valid if rational grounds for taking such decision were communicated prior to the individuals. Fourthly, proper public notice or fair hearing were provided to the individuals before such decision is implemented. Fifthly, it would be court’s ambit to look into the changes made by the authority and decide whether such is against the legitimate expectation, irrational, or a decision a reasonable person could never have made.
DOCTRINE OF LEGITIMATE EXPECTATION AND PRINCIPLES OF NATURAL JUSTICE
Both the doctrines of legitimate expectation and natural justice has to be read or considered together. Every actions of the state should comply with Article 14 of the Constitution and where the concept of non-arbitrariness is an important factor. In such a case, a citizen's mere fair or legitimate expectation may not be a distinct enforceable right, but if there is failure to recognize and provide due importance to it might help in making the decision arbitrary, and this is how the importance of a legitimate expectation is part of the concept of non-arbitrariness, a required aspect of the rule of law. Any reasonable expectation is a relevant factor that must be taken into account to provide a just decision-making process. It must also be noted that whenever such question comes into consideration, the public interest in a larger sense should be considered. The condition would be satisfied if the public authority made a genuine decision and in this way a guarantee of non-arbitrariness and the ability to have a judicial scrutiny would be established. Thus, in this way the doctrine of legitimate expectation is considered into the rule of law and exists in our legal system in this way. In a rule of law society, the main objective of the expectation is that those in higher positions of power and authority must be able to publicly justify their actions as legally valid, socially sensible, and just. In such conditions, the public's right to protect themselves from abuse of discretion becomes an inherent right in a democracy. They must not succumb to the fatal tentacles of arbitrary and unjustified reasons or decisions.
CRITICISM OF THE DOCTRINE
The procedural aspect of Legitimate expectation is used in a liberal sense in India because of maintaining natural justice of fairness and right to be heard in the civil administration. The Substantive aspect of the doctrine has failed to stand on its own because it is used mainly as an addition to other claims mainly the doctrine of promissory estoppel which helps in protecting a promisee by enforcing the promise, he /she entered into without taking into consideration it was a contract or not. The problem of it can be clearly understood through the case of Lalaram v. Jaipur Development Authority. The applicants in this case had the expectation of compensation from Supreme Court in form of land. This expectation was denied by the Government, who claimed such promise was against the business rule set in Rajasthan. Later court made the government accountable for denying amending a policy as the rule was found to be unsustainable for the purpose of interpreting it out of context. This was possible by invoking doctrine of promissory estoppel along with substantive legitimate expectation as a supplement. Justice was granted through this judgement but there was absence of clarity because legitimate expectation was mixed with reasonable expectations and still was distinguished as an equitable notion. Various other cases saw the substantive legitimate expectation but none of it were enforced as it was found out to be not substantive and presence of legitimate expectation was not found. This could have been avoided if the doctrine is allowed to stand on its own as a distinct standard of public law rather than as a supplement to promissory estoppel and thus would be used as an effective safeguard against the unlawful or arbitrary decisions of the administration.
The requirement of scrutiny in every matter is quite a effective way of undergoing, similarly laws needs to be under scrutiny. Any administrative decisions made needs to be fair and as per the expectations of the public. If the decisions are not following the expectations, individuals gets the safeguard of Doctrine of legitimate expectation for ensuring a good administration system. With the existence of various laws, this doctrine comes as guardian to the individuals. There isn’t a comprehensive list of expectations of the public, and such is not a flaw in the legal system. The doctrine is supposed to correspond to the limitless list of public expectations and wishes.. The doctrine cannot be exercised merely as a right but can be used in case the legitimate expectation denied is going against Article 14 of the Constitution. The courts have been adopting a more active role in policing the use of discretionary power and maintaining the rule of law, while acknowledging that going against the Executive is appropriate in some circumstances. As a result, the courts must strike a balance between permissible judicial involvement and judicial interference that violates the separation of powers norm. Maintaining this balance will become increasingly important as the concept of legitimate expectations develops
1. The Constitution of India
2. Food Corporation of India v. Kamdhenu Cattle Feed Industries ((1993) 1. S.C.C. 71)
3. (1969) 2 Ch. 149
4. (1972) 2 Q.B.299
5. (1983) 2 A.C.629
6. (1988) 4 SCC 669
7. (1992) 4 SCC 477
8. (1993) 3 SCC 499
9. Halsbury’s laws of England, Fourth Edition, Volume I (I) 151
10. Chaminda Jayasinghe, Making Sense of Substantive Legitimate Expectations, SSRN (2010)
11. (1984) W.L.R 1337
12. (2001) Q.B.213
13. (1994) 5 SCC 509
14. P.T.R Exports Pvt. Ltd and ors v. Union of India and ors. (AIR 1996 SC 3461)
15. (1997) 7 SCC 592
16. 175 (2010) DLT 143
17. (2016) 11 SCC 31
18. Sanjay Jain & Shirish Deshpande, Public Law Foundation of the doctrine of legitimate expectations in India, 3 IL Rev. (2019)
19.Union of India v. Lt. Col. P.K. Choudhary (2016) 4 SCC 236