Concept of Legitimate Expectation

This paper examines the origins and rationale of the concept of legitimate expectation. The doctrine of legitimate expectation and the limit of its application in current Indian law would also be examined as well as the scope for further broadening of the doctrine under Indian law.

The doctrine of legitimate expectation is relatively new concept that has been fashioned by Courts for the review of administrative action. [1] The concept gained standing after it was introduced by Lord Denning in Schimdt v Secretary of Home Affairs [2] wherein he recognized, as obiter, the ‘right, interest, or legitimate expectation’ [3] of an individual against an administrative action with regards to the right to be heard.

The doctrine has similarities to the German public law, the concept of Vertrauensschutz, which means ‘protection of legitimate confidence. [4] In Germany, the protection of legitimate confidence is grounded in their Constitution. It could be argued that there is similar grounding in India as well. A similar concept can also be seen in French Law termed ‘protection de la confiance legitime’. [5]

Legitimate expectation that the state will follow certain procedure as a result of an express has been well established in law. This paper examines the position of the doctrine of legitimate expectations in India through important judgments of the Supreme Court.

The Doctrine of Legitimate Expectation

Definition

When an individual seeks judicial review on the ground of his legitimate expectation being defeated, Courts have to first determine whether there existed a legitimate expectation. A legitimate expectation is said to arise “as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.” [6] Therefore it extends to a benefit that an individual has received and can legitimately expect to continue or a benefit that he expects to receive.

When such a legitimate expectation of an individual is defeated, it gives that person the locus standi to challenge the administrative decision as illegal. [7] Thus even in the absence of a substantive right, a legitimate expectation can enable an individual to seek judicial review. [8]

2.2. Procedural and Substantive aspects of the doctrine of legitimate expectation

The doctrine of legitimate expectation has two aspects: procedural as well as substantive. [9] In Schimdt, [10] Lord Denning introduced procedural legitimate expectation particularly with reference to the application of principles of natural justice to administrative action and it is now well established in India. Principles of natural justice will apply to administrative actions when there has been a promise or a long standing practice for following the same. [11] Procedural legitimate expectation refers to the expectation of an individual that he has a right to a certain procedure, such as the right to a hearing, as a result of the behavior of the public body. [12]

The substantive aspect of the doctrine is still in its formative stages in India. [13] Substantive legitimate expectation refers to a scenario where an individual is seeking for a substantial benefit which rose out of the legitimate expectation he had. [14] The legal position of substantive legitimate expectation has been varying. [15] The English Courts have been pronouncing judgments which recognize the need to protect substantive legitimate expectation [16] as well as judgments to the opposite effect. [17]

However, the position of substantive legitimate expectation must now be seen in the light of Coughlan. [18] The brief facts of this case are as follows. Coughlan and other patients were initially being cared for in Newcourt Hospital. They were persuaded to shift to Mordon House by express promises by the Health Authority that they could live there “for as long as they choose” and that Mordon House was better suited to their needs. The authorities decided to close down Mordon House and relocate the patients to other hospitals after considering the promise it had made to the residents and weighing all options available to it. Coughlan challenged this decision as it was in breach of the promise made to her.

The Wednesbury test was rejected as a test for judicial review of legitimate expectation of this nature and the test of abuse of power was established. [19] According to the Court of Appeal, “[The Courts task] is then limited to asking whether the application of the policy to an individual who has been lead to expect something different is a just exercise of power” [20] . This test in effect gave a much larger scope for application for violation of substantive legitimate expectation to succeed. Had the Wednesbury test been applied, the chances of success in a judicial review would be almost nonexistent. [21]

The Doctrine of Legitimate Expectation in India

3.1 Judgments and Rationale of Important Cases Pertaining to Legitimate Expectation in India.

The procedural aspect of the doctrine of legitimate expectation has been well established in India. [22] However, the substantive aspect of the doctrine is still in its developing stages. [23] The Supreme Court of India has come up with different judgments on the topic without much clarity as to the application of the doctrine. The leading case that dealt with the doctrine in length was the case of Union of India v Hindustan Development Corporation. [24]

In this case the Indian Railways introduced a dual pricing system initiated by so as to enable healthy competition between three manufacturers, whose work was on a large scale and smaller manufacturers. The dual pricing meant that the railways still gave counteroffers for an even lower rate while at the same time, granting tenders to small manufacturers for a higher rate. The big manufacturers challenged this policy on various grounds including unreasonableness and that they had a legitimate expectation of being treated in a certain way by the Railways as established by a longstanding conduct of the Indian Railways.

The Supreme Court while addressing the topic of legitimate expectation laid down the current position of legitimate expectation in India. [25] The Court acknowledged legitimate expectation as being sufficient locus standi for judicial review. However, in this judgment, the doctrine of legitimate expectation was mostly confined to procedural legitimate expectation by stating that “it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken.” [26] .

However, it sets down a heavy burden of the applicant to establish the existence of a legitimate expectation and its denial by the state. The applicant has to establish a foundation for the claim. According to the Court, ‘a legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill’. [27] Moreover an applicant must also show that the actions of the authority was arbitrary, unreasonable and against public interest. [28] Anything that is arbitrary is violative of Article 14 of the Constitution and is therefore void. The relation that the doctrine of legitimate expectation has with Article 14 of the Constitution will be discussed in detail in the next section.

The Court also allows denial of legitimate expectation when it is in public interest [29] or when it is a change in policy [30] . However, the authority has a duty to justify this decision based on some overriding public interest. This seems to be another test laid down by the Court. However, the wording of the test seems to suggest that it is more applicant-friendly and have better chances of success in judicial review. Tests which indicate different levels of substantiation required will only add to the confusion regarding the doctrine.

Once these tests and the court are satisfied as to the existence and denial of a legitimate expectation, the courts will then look into whether in denying the right to hearing has resulted in a ‘failure of justice’ and the order may be quashed. The Court also clarified that one cannot claim a relief immediately based on legitimate expectation as there is no crystallized right involved. It is only the steps mentioned above that the relief may be considered. This further shows that for all practical purposes, substantive legitimate expectation do not seem to be recognized by the Supreme Court. However, the Court does state that even if substantive legitimate expectation were considered, there is no absolute right for the applicant. Instead the Court would only determine the circumstances under which a legitimate expectation may be denied or restricted.

In the case of Punjab Communication Ltd. v Union of India [31] , the Supreme Court recognizes the substantive aspect of the doctrine and observes that it has been ‘accepted as part of our law’. [32] However the concept of the doctrine used in this case seems flawed. The Court took the definition of the doctrine of legitimate expectation as given in the Raghunathan [33] case, wherein the Court observed that “ … claims based on “Legitimate Expectation” have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppels” [34] The Supreme Court upheld this requirement in the Punjab Communication case. Moreover, the Court also seems to indicate that a promise or representation is also mandatory for the doctrine to apply. It seems that this definition is more suggestive of the doctrine of promissory estoppel rather than that of substantive legitimate expectation. [35]

In this case the Court laid down the Wednesbury test as the test for determining whether there has been a denial of a legitimate expectation and whether such denial is justified [36] and on application found that the test was not satisfied. [37]

In International Trading case, the court applied the Wednesbury test and observed that

“If a denial of legitimate expectation in a given case amounts to denial of a right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of the principles of natural justice, the same can be questioned on the ground attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke those principles”

The concept of legitimate expectation is confused here with the denial of a legal right. [38] The doctrine is applicable when there is no substantive right on the part of the applicant. The violation of a legal right would give rise automatically to a cause of action, which has nothing to do with legitimate expectation. [39]

Interestingly, in the case of Secretary, Cannanore District Muslim Educational Association, Kanpur v State of Kerala and others [40] , the Supreme Court granted the writ of mandamus to the educational institution on the ground of denial of a legitimate expectation which arose out of a government promise without applying any of the tests laid down above.

It is also to be noted that J. Katju has recently referred a case to the Constitution Bench of the Supreme Court, citing a lack of clarity in the application of principles of estoppel and legitimate expectation. [41] However, none of the relevant case law do not seem to have been considered in this judgment and this seems to be a reference only pertaining to the application of the doctrine of legitimate expectations in this particular case. [42] The Constitution Bench may have to consider relevant case law in order to establish the test as well as clarify the doctrine of legitimate expectation.

3.2. Doctrine of Legitimate Expectation and Article 14 of the Constitution of India.

Under Article 14 of the Constitution of India, every citizen has the right to equality of law and equal protection before law. [43] The concept of an arbitrary action being in violation of Article 14 was first introduced by J. Bhagwati in the case of E.P. Royappa v State of Tamil Nadu [44] wherein he stated that ‘equality is antithetic to arbitrariness’. [45] Thus Article 14 has a very wide ambit and encompasses within it equality, the principles of natural justice and is a mandate against arbitrary state actions. This imposes a duty on the state to act fairly. Good governance in conformity with the mandate of Article 14, “raises a reasonable or legitimate expectation in every citizen to be treated fairly in its interaction with the state and its instrumentalities.” [46]

Law includes “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. [47] By virtue of Article 13(2), [48] any law made in contravention of any provision of the Constitution is void. Thus anything which is arbitrary or unreasonable or violative of the principles of natural justice is void by virtue of Article 14 read with Article 13(2) of the Constitution. Applying such a high threshold of proof for the doctrine of legitimate expectation is unnecessary as is the doctrine itself by appearances.

It must also be noted that Article 14 encompasses the principles of natural justice which include right to hearing. It could be argued that the doctrine of legitimate expectations have its grounding in the Constitutional provisions of India, much like they do in Germany. [49] However, the Supreme Court has applied a confused approach to the doctrine of legitimate expectation and in the process, made the doctrine irrelevant, without realizing its potential.

3.3 Scope for Improvement

There is definitely scope for improvement in India for the doctrine of legitimate expectation. As of now the doctrine, particularly its substantive aspect, is in its infancy and is muddled and confused by the Courts in India. With the reference of the Kotharia Industries [50] Case to the Constitution Bench of the Supreme Court, one can only hope that the Supreme Court will once and for all clarify the doctrine of legitimate expectation as well as lay down a test to judge whether there has been a denial of legitimate expectation and whether such denial is justifiable. The test of Wednesbury unreasonableness which has already been discarded in the Coughlan case, ought to be discarded here as well as a test for justification of denial of legitimate expectations. Instead the test of abuse of power as test for the Coughlan case may be adopted. This may well provide the stepping stone to the Indian judiciary to accept the substantive aspect of judicial legitimate expectations.

Conclusion

The doctrine of legitimate expectation is a judicial innovation that provides locus standi to a person who though does not have a legal right, does have an expectation of the concerned authority behaving in a certain way. The procedural aspect of the doctrine is well established. However, the substantive aspect of the doctrine is still in its growing stages.

With reference to India, legitimate expectation may be seen to have a grounding in principles of natural justice which are encompassed by article 14 of the Constitution. Rather than strengthening the doctrine, the Courts have put arbitrariness as the required threshold for checking whether the denial of a legitimate expectation was justified. Such a reading has made the doctrine irrelevant in India, since anything in violation of the provisions of the Constitution is void. Setting forth a test that will ensure that the bar is not too high as to render the doctrine unnecessary is also necessary from an Indian point of view. Adoption of the reasoning and test in Coughlam [51] would further strengthen the standing of the doctrine before the legal community.

Clarifying the doctrine, particularly in light of the recent reference to the Constitutional Bench of the Supreme Court, and broadening the scope of substantive legitimate expectations are steps that can be taken by Courts in India.

The concepts of fairness ought to apply principles of natural justice for any change in policy decision as well. Choosing which petitions, which challenge change of policy, to admit will be difficult. However, when used effectively, the doctrine can be a tool for ensuring fair administrative action.