Article On The Doctrine Of Legitimate Expectation by - Akshat Tomar

Article On

The Doctrine Of Legitimate Expectation

Authored by - Akshat Tomar

 

DOCTRINE OF LEGITIMATE EXPECTATION

“A man should keep his words all the so when such promise is not a bare  promise but made with the intention that the other party should act upon it.”

~Lord Denning

The doctrine of legitimate expectation is not defined in any statute but it is provided by the judiciary impliedly under article 14 of the Constitution of India to extend the power of judicial review over actions which does not support the rule of law. The actions which fall out from the standard of reasonableness and fairness as the judiciary possess the power to laid down such kind of law in the name of judicial activism to ensure justice and to protect fundamental rights which is the first and foremost obligation of the judiciary. The judiciary can not in doing so laid down law where there is already a law but it is permissible only for the portion unoccupied by the legislature and here only the judiciary can fill the gap by providing appropriate rules. In this article, I tried to explain the origin, definition, applicability, and exceptions to this doctrine while comparing it with the positions of other countries.

 

In R v Secretary of State for Home Department,[1] Lord Templeman defined it as

“Legitimate expectation is just a manifestation  to act fairly, but the scope of the doctrine goes beyond the right to be heard.” The legitimate expectation is the expectation that shall be protected and must be legitimate though it may not amount to a right in appropriate rationality.[2]

 

 

 

 

ORIGIN OF DOCTRINE OF LEGITIMATE EXPECTATION

ENGLAND
This doctrine was evolved by Lord Denning in England while dealing with the case of  Schmidt v Secretary of State for the Home Department.[3] In this case, there were two foreign students whose permit to stay was withdrawn by the authority. The doctrine of legitimate expectation did not give them a right to stay for the period permitted but an enforceable right to be heard before the decision to revoke the permit was taken.

 

The crucial thing to note in this case was that Lord Denning did not cite any judicial or other sources in his ruling that could be used to support the idea of a legitimate expectation; in fact, he claimed to be confident that the idea originated in his head and not in any continental or other sources.[4] The later cases do not suggest any provenance (place of origin). Therefore it can be presumed that the origin of this concept may be from Lord Denning’s justly framed creative mind and not elsewhere.

 

AG for Hong Kong v Ng Yuen Shiu[5] observed that  “To be accepted as legal or reasonable, the expectation must be founded on either an express undertaking or come from previous actions on the side of the public authority.”

 

“A  substantive legitimate expectation is an expectation induced by a public authority that an

individual will be granted or retain some substantive benefit. A failure on the part of the public authority to act in accordance with the expectation is considered to be a breach of the rule of law that requires predictability and certainty and is, therefore, ultra vires.”(R v North and East Devon

Health Authority, ex p Coughlan[6])

 

 

 

 

IN THE SPHERE OF ARTICLE 14

First of all to understand the doctrine of legitimate expectation one needs to know about article 14 of the Indian Constitution which provides “The state shall not deny to any person equality before the  law  or  the equal protection of the laws within the territory of India.”

 

“The doctrine of legitimate expectation belongs to the domain of public law and is intended to give relief to people when they are not able to justify their claim based on some right inherent in them though they had suffered civil consequences because their legitimate expectation had been violated[7]”

 

Though the words, equality before the law and equal protection of the laws may seem to be identical in reality they have a different spheres. The first equality before the law is the negative concept that excludes any privilege by reason of wealth, creed, or any extraneous consideration in favor of any individual and all are subject to the same laws while the second equal protection of laws is a positive concept which implies equality of treatment in equal circumstances. Article 14 is the foundation stone for rule of law in our country as it gives authority to nullify any action which comes into conflict with the rule of law as there are many grounds on which an executive action can be challenged in a court of law. The doctrine of legitimate expectation is one of them. The doctrine is based on equity and propounded by Lord Denning in the case of Schmidt. The doctrine is based on the principle that a man should keep his promise when the promise is given with the intention that the other party should act upon it.

 

In M/s. Motilal padampat sugar mills co. ltd v. State of Uttar Pradesh & others[8], “The apex court while granting substantive legitimate expectation ruled that the government is neither exempted from liability to carry out a representation made nor can it claim to be the judge of its obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation to have arisen”.

 

In Chanchal Goyal (dr) v. State of Rajasthan[9]  Supreme Court observed that “the principal at the root of doctrine is rule of law, which requires regularity, predictability, and certainty in the government’s dealing with the public”.

This doctrine gives Locus Standi to an individual to challenge the action taken by administrative authority though no express right is conferred on such individual by law which may provide him Locus Standi if some privilege is taken from him to his detriment he must be provided a fair hearing.

 

So this doctrine is a kind of an exception to the general rule of locus-standii which is excused in these cases.

 

In France

In France also this doctrine exists there in French administration in the name of ‘DROIT  ADMINISTRATIF’ the conseil d’etat is a court that exclusively deals with administrative matters and many a time uses again to this doctrine for the sake of ensuring fairness and reasonability.

 

In Australia

The notion of legitimate expectation helped to broaden the scope of what constitutes an obligation to uphold natural justice by allowing natural justice to be applied to a wider variety of rights and interests than it had previously.[10]

Australian law is still ambiguous in this regard. According to certain judges, the party seeking to profit from a genuine expectation does not need to demonstrate that they were aware of or relied upon the supporting facts.

 

In Germany

German law also provides for legitimate expectation in the name of ‘Vertrauenshutz’ which literally means protection of trust German law also it is believed that a trust developed on the basis of the words of the public must be protected and the citizens have a right to enforce such trust which has been blemished.

 

In Navjoti coo-Group Housing Society etc. v. Union of India & Others,[11] Justice G.N. Ray speaking for the Bench observed as under. "In the aforesaid facts, the Group Housing Societies were entitled to the legitimate expectation of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of legitimate expectation may have several different consequences and one of such consequences is that the authority ought not to act to defeat the legitimate expectation without some overriding reason of public policy to justify its doing so. In a case of legitimate expectation if the authority proposes to defeat a person's legitimate expectation it should afford him an opportunity to make representations in the matter.”

 

In Council of Civil Service Union and others v. Minister for Civil Service[12], The House of Lords held in the aforementioned decision that an aggrieved person was entitled to judicial review if he could demonstrate that a public authority's decision had adversely affected some benefit or advantage that he had previously been allowed to enjoy and that he had a legitimate expectation would be maintained either until he was informed of the reasons for the withdrawal and given the chance to comment on those reasons.

 

In this very case, Brennan J. after referring to Schmidt's case (supra) observed that:  “A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment the expectation may arise at the from the representation of promise made by the authority, including an implied representation, or from consistent past practice. The existence of legitimate expectation may have several different consequences, it may give locus standi  to seek to leave to apply for judicial review it will mean that the authority ought not to act so as to defeat the expectation without overriding the reason of public policy to justify it is doing so or it may mean that if the authority proposes to defeat a person’s legitimate expectations it must afford him an opportunity to make a representation on the matter. The code  also distinguishes, for example in licensing cases between original applications to renew and revocations a party who  has been granted a license may have a legitimate expectation that it will be renewed unless there is some good reason not to do so and may therefore be entitled to greater procedural protection Then a mere  applicant for a grant.”

 

"Again, when a court is deciding what must be done in order to accord procedural fairness in a particular case it has regard to precisely the same circumstances as those to which the court might refer in considering whether the applicant entertains a legitimate expectation, but the inquiry whether the applicant entertains a  legitimate expectation is superfluous. Again if an express promise is given or a regular practice is adopted by a public authority, and the promise or practice is the source of a legitimate expectation, the repository is bound to have regard to the promise or practice in exercising the power, and it is unnecessary to inquire whether those factors give rise to a legitimate expectation. But the Court must stop short of compelling fulfillment of the promise or practice unless the statute so requires or the statute permits the repository of the power to hind itself as to the manner of the future exercise of the power. It follows that the notion of legitimate expectation is not the key that unlocks the treasury of natural justice and it ought not to unlock the gate which shuts the court out of a review on the merits. The notion of legitimate expectation wits introduced at a time when the courts were developing the common law to suit modern conditions and were sweeping away the unnecessary archaisms of the prerogative writs, but it should not be used to subvert the principled justification or curial intervention in the exercise of administrative power."

 

Examining some of these significant judgments, it is generally acknowledged that the doctrine of legitimate expectation should primarily be limited to the right to a fair hearing before a decision that negates a promise or withdraws an undertaking is made, giving the applicant sufficient locus standi for judicial review. The idea forbids requesting immediate assistance from administrative authorities because there is no crystallized right at all at issue. Where a compelling public interest dictates differently, the preservation of such a valid expectation does not require its realization.

 

To put it another way, when a decision-maker denies a person's legitimate expectation because of another, higher public interest, they are doing it in order to uphold the law. Hence, even if substantive protection of such an expectation is considered, that does not give a specific person an absolute right. It just sets down the conditions under which that expectation may be rejected or curtailed. A case of a genuine expectation would occur when a body created an expectation that it would be in its power to satisfy through representation or past practice. The protection is only provided until that point, and a court review may only go so far. But, as was mentioned above, in order to have locus standi to bring a claim based on the doctrine of legitimate expectation, one must first demonstrate that the claim has a basis. Several elements that give rise to such justifiable anticipation must be present while taking the same into account. It must be determined that the authority's decision was arbitrary, irrational, and not made in the public interest. The courts cannot intervene in a decision if it is a question of policy, not even through the modification of an existing policy. It would essentially be an issue of fact in a given situation as to whether such facts and circumstances give rise to a legitimate expectation. The next question would be whether failing to provide a hearing before the decision was made affected such legitimate expectations has resulted in a failure of justice and whether the decision should be quashed on that basis if these tests are satisfied and the court is satisfied that a case of legitimate expectation is made out. If that's the case, the type of relief that should be provided again depends on a number of variables.

 

We discover that the full body of case law pertaining to the idea of legitimate expectation has been taken into account in the Attorney General for New South Wales case. We also discover that the court's ability to intervene is severely constrained, and much less so when it comes to providing any relief in a claim founded solely on the basis of a valid expectation.

 

In an essay by Gabriele Ganz that Carol Harlow, the editor of Public Law and Politics, published, the erudite author came to the following conclusion after considering the opinions presented in the judgments decided by the illustrious judges already mentioned:

 

On the basis of procedural fairness to a person whose interest based on a valid expectation would be harmed, the court will not intervene fairly and objectively. For instance, if a person or organisation has complete discretion to grant a license and prefers an existing license holder to a new application, that decision cannot be overturned on the basis of a new applicant's genuine expectation under the principles of natural justice. So, it is clear that a realistic expectation may, at most, be one of the reasons for judicial review, but that the potential for relief is quite constrained. It would thus appear that there are stronger reasons why the expectation should not be substantively protected than the reasons why it should be.

 

When can be a legitimate expectation

1. When it is formed on practice, promise, or norm by any person or authority who is in public power and says to fulfill an expectation
2. There must be a change in policy which should have destroyed the expectation
3. The approach of an individual must be a reasonable  and fair one while seeking protection of expectation while  dealing with public  authority

 

The above conditions were also observed and determined to be valid by the courts and it was also held that while dealing with such Conditions cases that involve the concept of legitimate expectation there is a duty on the part of judicial officers to examine the legality of the expectation[13]

 

In Food Corporation of India v. M/S. Kamadhenu cattle feed industries[14]

Apex court was of the view that “ there must be reasonability and fairness and it must be realised and re-established in every administrative action or else will lead to the arbitrary use of power”

 

INSTANCES OF LEGITIMATE EXPECTATION

1. The duty Of hearing on the part of the public authority

A duty of fair hearing is imposed on the part of the administrative authority to hear the affected party who has suffered or is  suffering any violations of legitimate expectations by any act which might have been arbitrary on the part of the administrative authority[15]

 

Thus every individual must get a chance for a fair hearing it can be further elucidated as when an individual has been deprived of a chance of hearing when there is an infringement to the legitimate expectation he can claim it by way of judicial remedy which can be enforced through the writ of mandamus.[16]

 

1. The principle of natural justice in the exercise of  non-statutory action and fair hearing

In the exercise of non-statutory administrative power or obligation where the affected is a benefit, the theory of legitimate expectation is essential to the principles of natural justice and fairness.[17]This doctrine keeps control over administrative action and ensure fairness in the decision making process

In State of Kerala v. K. G madhavan Pillai[18],the government had issued sanction for upgrade the school and to open a new unaided school but the   same sanction was withdrawn within fifteen days aggrieved by the same respondent challenged it in court and claimed right to be heard was deprived and thus principle of natural justice was violated by the government

The court observed that there was  a legitimate expectation created when the sanction order was passed and such expectation was violated by the subsequent withdrawn order and there was also infringement of the  principle of natural justice.

 

3. Expectation must be reasonable

To apply this doctrine the legitimate expectation being treated within individual must be reasonable and must be ascertained with certainty the expectation created must not be just a mere expectation but must be one which can be assured with reasonability[19]

In Madras city wine merchant association v. State of Tamil Nadu[20]

The expectation must be reasonable and certain, the court noted, and it cannot exist where policy has changed or where the position has been modified by legislation or the legal system.

 

4. Matter of public right or public law

The legitimate expectation can be created on any benefit or privilege which is a matter of public law or private right even when you cannot exercise or  enjoy  the privilege or  benefit as a matter of  legal right

In Union of India v. Hindustan Development Corporation[21]

It was observed that there will be no denial of the legitimate expectation created for an individual when it  is reasonable

 

KINDS OF LEGITIMATE EXPECTATION

1. Procedural  expectation
2. Substantive expectation

Procedural legitimate expectation is created in an individual by the authority that a certain procedure will be followed and that he has a right or claim to such procedural process or it has to be fulfilled by the public authority or any person in public power.

In T. Vijayalakshmi v.Town planning member[22]

It was observed that the doctrine of legitimate expectation would have a role to play in a case of this nature. Therefore administrative authority must follow the procedures prescribed and must be respected and when such procedures are deprived, it amounts to a violation of substantive legitimate expectation arising when an individual tries to seek the benefit of privilege which is substantive and is based on the expectation that is been entrusted.

 

In R v. Inland revenue commissioners[23], the revenue denied a claim from Unilever for a tax benefit on the grounds that it was made more than two years after the statutory deadline, but the revenue had developed a habit of not enforcing the deadline because they had accepted late claims 30 times in the previous 25 years, and the court ruled that the refusal was unlawful. I. It was noted that each valid expectation must be reasonable and that they must all be protected in a procedural manner.

In National building corporation v. S. Raghunathan[24], it was observed that the legitimate expectation is both procedural and substantive.

 

The exceptions to legitimate expectation

Violation of a law

In the State of Himachal Pradesh v. Kailash[25] , Court stated that the doctrine of legitimate expectation protects rule of law so it can not go against any law or statute. The legitimate expectation must always be consistent with the law. If any expectation is created in violation of the law it would not be validated and when such an expectation is created it will not be upheld by the courts.

 

Non-compliance with the conditions

The legitimate expectation cannot be applied to an application that has been rejected based on the failure to comply with the conditions.

In Government of Andhra Pradesh v. The Nizam of Hyderabad[26] when the application is rejected for failure to comply with the conditions any expectation so created on it will not be supported and the court will not consider it to be maintainable.

 

Appointment in government service

In Union Territory of Chandigarh v. Dilbagh Singh[27]

There cannot be a legitimate expectation for the appointment in any government service if any expectation is so created based on the fact that the name of the candidate has appeared in the selected list made by the recommending board it shall not be considered and such expectation shall be deemed to be null and void.

 

Opposed to the public interest

In Union of India v. H.D.C[28]

The court was of the view that if any Expectation is created that would destroy or distract the public interest it shall not be considered. such expectation will not be brought into light or will not be given any right to enforce it.

In Bharat wools v. State of Punjab[29]

It was observed that in case of such legitimacy of expectation, it must always favor the public interest and must not be in a manner that will negate the public interest or oppose it.

 

Conclusion

I have got the opportunity to get to know about this doctrine of legitimate expectation as part of my research work after pursuing these above-mentioned case laws and other sources. I have observed that this doctrine is necessary to achieve the objective of a welfare state as it protects a citizen from arbitrariness, vagueness, abuse of power, and malpractice and ensures rule of law. I would like to conclude by saying that this doctrine is based on equity, fairness, and reasonableness and this doctrine had been in existence in various countries by different names.

Lord Denning’s approach to judicial activism in evolving this doctrine shows the first and foremost duty of the judiciary in protecting constitutional mandate and rule of law.

 

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[1] (1987) 2 ALL ER 518

[2] D.D Basu , human rights in constitutional law, 3rd Edition, Lexis Nexis, India,2003

[3]  (1969) 1 ALL ER 909

[4] Lord Denning as quoted by Forsyth, C.F., The provenance and protection of legitimate expectation, Cambridge law journal, 47(2),1988 at 241

[5] [1983] 2 AC 629 (PC)

[6] [2001] QB 213 (CA)

[7] Massey. I.P., administrative law(2005)at 300

[8] (1979) 2 SCC 409

[9] (2003) 3 SCC 485

8. Graeme Johnson, ‘Natural Justice and Legitimate Expectations in Australia’ (1985) 15 Federal Law Review 39

[11](1992) 2 SCALE 548

[12][1985] 3 All England Reporter page 935

[13] CCSU v. Minister of civil service(1983)UKHL,p.9.

[14] AIR ,1993 ,SCC ,p.1.

[15] P.P Craig , Administrative Law , 6th edition, sweet & maxwell , London , 2008

[16] NCHS v. Union of India , AIR, 2003, SC, P. 1.

[17] M.P Jain & N.M Tripathi, Changing face of Administrative Law in India and Abroad, Bombay, 1982

[18] AIR,1988,SC,p.669.

[19]  Robart Thomas, legitimate expectations and proportionality  in administrative law, 1st edition, Hart.                                       publishing, Oxford, 2000

[20] AIR, 1994, SC, p.509

[21] AIR, 1993, SC, p.499

[22] AIR, 2006, SC, p.502

[23] ex p unilever (1996) STC 1981

[24] AIR,1998,SC,p.66

[25]  AIR,1992,SC,p.331

[26]  AIR,1993, SC,p.76

[27]  AIR,1992, SC,p.431

[28]  AIR, 1993,SCC,p.499

[29]  AIR, 1996,P H, p.215