Sanjay Jain & Shirish Deshpande: How Legitimate are the Legitimate Expectations?

Introduction

Along with the concepts of reasonableness and proportionality, principles of legal certainty and doctrine of legitimate expectations play a pivotal role in regulating and influencing the exercise of administrative discretion. In this post, we would focus on doctrine of legitimate expectations.

Keeping in mind the continuum of the civilisation, there are bound to remain de facto interests which are neither recognised nor protected or recognised but not protected; in other words, such de facto interests do not attain the status of neither hard core legal rights nor interests; the same may therefore be conceptualised as legitimate expectations pressing for legal recognition and protection.

Generally, Courts enforce legitimate expectations through devising of protection by way of procedural rights. Understood this way, courts are both guardians of legal rights as well as legitimate expectations, as without judicial imprimatur, the later cannot be overridden; as such the same constitute an inherent element of procedural due process (see generally Dyzenhaus and Elliott; the distinction between procedural and substantive legitimate expectations is merely in degree and would fade away if distinction between rights based and non-rights based cases is not overemphasised).

It is imperative to clarify that frustrations of not all expectations but only legitimate expectations result in either procedural or substantive remedies in favour of plaintiffs. It is therefore essential to throw some light on what makes an expectation legitimate.

Put plainly, bereft of all rhetoric, legitimacy of legitimate expectations stems from its grounding in constitutionally sanctified substantive and procedural values and therefore it is a relevant consideration in competition with other public interest considerations and in a given case it may override other considerations. It is also to be noted that an expectation in order to be legitimate must stand on unequivocal, cohesive and clear representation, promise or assurance. An expectation based on mere speculation or a promise or assurance which is bad in law or unlawful may not be perceived as legitimate by the courts. This doctrine operates at two levels: procedural and substantive.

Procedural Legitimate Expectations

Prof. PP Craig in ‘Administrative Law’ has very tersely delineated the three closely related yet distinct ways in which procedural expectations are generated. Firstly, court would afford procedural protection to an interest in future though the same may not be held by the plaintiff in the present. Understood this way, court is protecting future interests based on the normative judgment “that a consequence of applying for a substantive interest is that some procedural protection is warranted for example: if an applicant is a license holder and who seeks to renew the said license he has the legitimate expectations to be heard before the authority takes any decision. Exactly, what future interests deserve such procedural protection, is a matter of debate according to Prof. Craig. Secondly, legitimate expectation compliments the ideas of rights and interests in cases where there is clear and unambiguous representation. Mainly, the same happens in following two types of case:

  1. When representation provides the pedestal for the procedural rights. In other words, in absence of a clear representation, the substantive interest by itself would not attract or call for application of principles of natural justice. This category is best illustrated by the famous case of AG of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346, the court held that as a matter of principle although an illegal immigrant is not entitled to any observance of principles of natural justice in the instant case, clear representation of the government that it could accord some hearing to the illegal aliens before arriving at the decision of their deportation did generate the legitimate expectation of procedural protection and Ng Yuen Shiu was therefore entitled to a hearing.
  2. At times, clear representations enhance the procedural rights of the affected parties. For example: if a municipal council decides to put a cap on number of licensed taxis and if the present licensees’ are regularly assured about the continuance of such a cap as a matter of policy than the resilement of such a policy on part of the council would generate legitimate expectations in the present licensees’ to seek the maintenance of the cap on licensed taxis (see Re Liverpool Taxi Owners’ Association Case [1972] 2 All ER 589).

The third way, in which legitimate expectations arise though it resembles with second category above, it is distinct. It arises in cases where an authority has laid down criteria for the application of a policy in a particular domain and when the applicant has relied on the same and then the authority decides to depart from such criteria. For example, if the government has evolved a criterion that certain financial capital to be possessed by an applicant in order to obtain license to commence an industry and if the applicant proceeds with the application based on the said criterion then the government is not justified in deviating from such criterion except where overriding countervailing public interest considerations exist (See P.P. Craig, ‘Administrative Law’ Eighth Edition, Sweet and Maxwell 2016, Chapter 12).

Substantive Dimension of Legitimate Expectations

According to Prof. Craig, the phrase “ substantive legitimate expectation captures the situation in which the applicant seeks a particular benefit or commodity, such as a welfare benefit or a license, as the result of some promise, behavior or representation made by the public body. However, unlike the special relationships like contract, Substantive legitimate expectations per se do not tantamount to binding obligation on the government in absence of a cogent promise, cohesive policy or an unambiguous assurance. Moreover, legitimate expectations in its substantive sense are comparatively on a weaker standing and would often give way to counter veiling public interest.

In UK with the leading pronouncement of court of appeal in R. v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, the scope of doctrine of legitimate expectations was expanded to cover matters of substance. In this case it was held that court could enquire whether a lawful promise has induced a legitimate expectation of substantive benefit to the claimant and would determine whether such a decision to breach a promise was so grossly “unfair that to take a new and different course will amount to an abuse of power”. Besides, the court would also decide if there was “a sufficient overriding interest to justify a departure from what has been previously promised”.

There are two prominent instances making a strong case for application of doctrine of substantive legitimate expectation. Firstly, a case is made out for affording protection to substantive legitimate expectations when an individual or private body demonstrates that he has relied on a specific representation or promise to his detriment. Supreme Court of India has categorically highlighted the necessity of proving detrimental reliance as a pre-condition for remedying the breach of substantive legitimate expectations (National Building Construction Corporation v. S. Raghunathan and Ors. MANU/SC/0550/1998MANU/SC/0550/1998 cited in Dr. (Mrs.) Chanchal Goyal Vs. Respondent: State of Rajasthan MANU/SC/0133/2003. It is not clear whether the Supreme Court is equating detrimental reliance with the doctrine of alteration of position, a condition precedent for invocation of doctrine of promissory estoppel).

Secondly, protection is afford to the substantive legitimate expectations, arising out of individualized representations. Resilement from such representations does justify intensive form of judicial review e.g. Proportionality test since, when a public body resiles from an individual representations the same does not have the kind of wider repercussions which arise from shift from one policy to another affecting a wider social group (See P.P. Craig, ‘Administrative Law’ Eighth Edition, Sweet and Maxwell 2016, Chapter 12).

However, analysis of jurisprudence in jurisdictions like India and Australia demonstrates that legitimate expectations has been recognised mainly as a procedural safeguard (See generally Attorney-General for New South Wales v. Quin (1990) 170 C.L.R. 1). Unlike promissory estoppel, which is characterised as a distinct claim in Public law, both, as part of Article 14 as well as an equitable right under Article 142(2), doctrine of legitimate expectation by itself has not been perceived by the courts in India to be constitutive of any distinct public law rights. Rather, the courts view the same as merely one of the grounds of judicial review or as part of Wednesbury Principle i.e. relevant consideration to be taken into account by the administrative authorities at the time of resiling or reneging promises, policies, assurances etc.

The doctrine of legitimate expectations does not prevent the government from introducing a new policy: what it emphasises is that those who are affected by the old policies must be given an opportunity to argue that they should be governed by the old policy as special cases, because the application of new policy to them would frustrate their legitimate expectations.

Rationale for Legitimate Expectations

A close look at the above discussion would demonstrate that doctrine of legitimate expectations is simply an innovative manifestation of principles of natural justice in general and right of hearing in particular, understood this way, it is submitted that the doctrine of legitimate expectations firmly anchored in the constitutional values underlying Articles 14, 19 and 21 of Constitution of India.

Supreme Court of India, in catena of cases including Minerva Mills and Maneka Gandhi has held that Articles 14, 19 and 21 as an integrated whole manifest due process of law in India and it would not be anachronistic to characterise doctrine of legitimate expectations as an innovative enhancement of this process.

In the present state of law, even if an applicant relies bonafide on a promise made by a public body under the belief that the body has acted within its power, he will have no remedy if it is established that the said body did act ultra vires its powers. One of the most compelling arguments embodied in the doctrine of legitimate expectations manifest what Prof. Craig characterises as apparent retro activity, “even if the rules are changed for the future, but still the same have an impact on plans made in the past’.

As a matter of fact, principle of legal certainty is the first casualty if the legitimate expectations generated by the representation of public body are breached willy-nilly. The assumption on part of the individuals that public bodies would exercise their discretion reasonably neither should be characterised as fettering the discretion nor be perceived as a hurdle in the way of dynamism of administration.

If on one hand, it is impermissible to put undue fetters on the discretion of the administration to make changes in the policy to keep in pace with time, on the other hand equally important is the principle of legal certainty which guards against the changes in the policies and advocates for transitory provisions to minimise the adverse consequences with the introduction of the new policy. It is but natural on part of the citizens to expect remedial measures if their interests are adversely affected by sudden changes without any prior consultation. Although, the claim based on mere legitimate expectations may sound tenuous in absence of more elaborate conditions, the same is certainty based on values like rule of law, legal certainty, fairness and good governance under guarding constitution

Similarly, value of equality provides yet another rationale for embodiment of doctrine of substantive legitimate expectations. It comes into play in cases where a public body or administrative authority seeks to deviate from an existing policy or set of rules in relation to a particular individuals, while keeping the said policy or set of norms intact. It is a classic case of violation of the basic axiom that equals should be treated equally.

Adjudication of Doctrine Of Legitimate expectations in Indian Administrative Law

Doctrine of legitimate expectations has been accepted as a part of Indian administrative law by courts in India. Presently it is in a state of evolution (See, M.P. Jain & S.N. Jain, Principles of Administrative Law, Volume 2, 8th Edition (2017), Chapter XXIV; U.O.I v. Hindustan Development Corporation, (1993) 3 SCC 499, cited with approval in Parsoli Motors Works Private Limited v. BMW India Private Limited, 2018 SCC Online Del 6556, “the doctrine of legitimate expectation is a creature of public law”).

Demonstrating the inconsistency and incoherence in the pronouncements of the Indian Supreme Court and High Courts, some commentators have opined that this branch of law is in a state of confusion (See Jain & Jain and Jason NE Varuhas, In search of a doctrine: Mapping the law), and a scholar goes to the extent of characterising this doctrine as fictitious (See Chandrachud C, The (Fictitious) Doctrine of Substantive Legitimate Expectations in India).

It is submitted that the courts in India perceives legitimate expectations as individual or private interests. On that basis the private interest is pitched against the public interest grounds offered by the Govt. to justify departure from legitimate expectations. It is submitted that this way of characterising the conflict between interests is problematic. One may offer two strong reasons for such a view. Firstly, that perceiving the legitimate expectations as sub-serving private interests and pitching it against public interest would readily lead to the conclusion that the private interest must necessarily yield to public interest. This mode of balancing the conflicting interests is ideological. In other words, legitimate expectations would never be able to trump the public interest grounds. Secondly, legitimate expectations are founded upon subject matters of policies or assurances. Generally speaking the government would not invest time, money and resources if the subject matter of the legitimate expectations does not have any relevance to public interest. So all those activities which the individuals, citizens or the corporations undertake on the strength of the assurance or policy are necessarily partake of the character of public interest. For above two reasons the alternative public interest framework is essential for creation of level plain field in order to resolve the conflicts between the two interests.

Summing Up

To sum up, although doctrine of legitimate expectation may not be captured in any single principle and may cut across variety of concepts like fairness, abuse of power, legal certainty, public trust etc., the same does not lead to the conclusion that by itself the doctrine is a mere fiction or rhetorical epithet. As observed in the introduction, it definitely affords protection in certain cases, which may not fall within the zones of Rights or Interests. Particularly, in India, it may also be employed to break new ground of judicial review by further unraveling the plasticity in the language of Articles 14 and 21 of Constitution of India.


Sanjay Jain is an Associate Professor at ILS Law College, University of Pune. Shirish Deshpande is the Former Head of the Department of Law at RSTM Nagpur University.

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