The Evolution and Analysis of the Principle of Legitimate Expectation

I. Introduction “A man should keep his words. All the more so when promise is not a bare promise but is made with the intention that the other party should act upon it”[1] A law cannot be found upon mere trust and expectations, no matter how reasonable it may sound. For the individuals to act on the law, the law has to be concrete and defined. Therefore, laws are codified and precedents are established, to bring about the union of constancy and certainty. Laws, once formed, create expectations in the mind of the persons that such laws will be justly implemented and observed by the administrative authorities with any sort of arbitrariness. At the same time, laws have to undergo constant changes and modifications and repealments to meet the challenges of a constantly changing society and to do more justice. The principle of legitimate expectancy keeps a check on the arbitrary exercise of power by public authorities, by defining the ambit within which the administrative authorities can change the law, and in this manner giving relief to an aggrieved individual against an arbitrary use of power even when such relief does not exists under statute law. II. The Principle of Legitimate Expectation Lord Denning[2] first made the mention of the principle of legitimate expectation, which was later adopted by courts all over the world.[3] The doctrine of “legitimate Expectation” falls within the ambit of public law. The principle protects individuals from an arbitrary exercise of administrative authority by a public body and offers relief to those who has suffered a civil wrong due to the non-fulfilment of his legitimate expectations. However, under the strict meaning of the principle under the law, the claimant has no rights under this principle in a court of law.[4] It positions itself between “a right” and “no right”, giving an individual a right to approach the court, and differs from hope and desire. The principle has been widely implemented by Indian Courts to restrict the arbitrary exercise of power by administrative system. In general, a person has a right to approach the courts for relief under private law when his rights arising out of a statute or contract has been violated. However, in public law, this rule relaxes the rule of locus standi by permitting an individual to approach the courts whenever his rightful expectations from the administrative bodies have been breached.[5] Therefore, this doctrine is considered to be developed from the principles natural justice and comes under Article 14 of the Constitution.[6] Essentially, the principle of legitimate expectation protests against arbitrariness and encourages fair dealing by public authorities. Like majority of other doctrines in administrative law, legitimate expectation is a theory created by the Courts for the examination of administrative actions. III. Types of Legitimate Expectation Originally having a procedural aspect, with the evolution of the doctrine of legitimate expectation, the doctrine was divided into two categories by the courts. In common law, Lord Diplock’s decision in the case of Council of Civil Service Union v. Minister for Civil Service,[7] laid down the two facets of the doctrine. The Indian Court acknowledged these two aspects given by the English Court in the case of National Buildings Construction Corporation v S. Raghunathan[8]. The two aspects of legitimate expectations are:

A. Procedural Aspect

This is the most frequently used aspect of legitimate expectation. The procedural aspect raises and preserves the principles of natural justice and maintains equity and fairness. It prevents the public bodies from arbitrary and unreasonable exercise of administrative power. The procedural aspect assures that an appropriate and fair hearing will be carried out, and an opportunity to make representations will be provided before taking any hostile decision against the expectations of the individual.[9] B. Substantive Aspect The substantive aspect although a later addition to the doctrine, yet covers half the cases which within judicial review. The substantive aspect of the doctrine endorses and preserves the principle of equity and the doctrine of estoppel. It necessitates a representation through an assurance or regular past practice, which secures a benefit or an advantage to an individual.[10] The substantial aspect safeguards the individual against any aberration from this representation, and protects the individual against any harm suffered during the sequence of events. IV. Evolution in English Law The principle of legitimate expectation was first used in Schmidt v. Secy of Stare for Home Affairs[11], in which the government had curtailed the time period already allowed to an alien to arrive and stay in England. It was held that the rightful expectations of an individual cannot be thwarted by the administrative authorities unless a fair and reasonable procedure is followed. In the present case, legitimate expectation was only used to replace the term “right”. However, this case laid down the groundwork for subsequent development; the doctrine has since developed and occupied a strong position in administrative law jurisprudence. After this case, the doctrine was expansively discussed in Breen v. Amalgamated Engg. Union[12] where the district committee of a trade union had deprived endorsement of a member from being elected as shop steward. The court held that when an individual has rightful expectations that his election will be permitted, he cannot be deprived of the same without a fair ground of objection. The court in abovementioned case acknowledged that legitimate expectation is a part of the principles of natural justice. Likewise, in case of Attorney General of Hongkong v. Ng Yuen Shiu[13], while crushing the directive of removal passed by the Hong Kong Immigration Authority without notice and hearing, the court decided that the statement made by the concerned authority that while investigating cases of illegal immigration, each case shall be judged on merits and facts. This is based on the principle of legitimate expectation between immigrants that removal order shall be delivered following a procedure of hearing and fair notice. Raising the doctrine of legitimate expectation, the House of Lords in Council of Civil Service Union v. Minister of Civil Services[14] decided that legitimate expectations may take birth from a time-honoured past practice or a communication or a promise made by the public body. In the present case, the authority had revoked an established past practice by oral orders. However, the doctrine of legitimate expectation enforces a duty upon public bodies to act judiciously in general, not restricted to circumstances where an individual has to be given a fair chance to make representation. Hereafter, the doctrine levies broad limitations upon administrative bodies to act reasonably and with fairness in the interest of people, regardless of whether law decrees discussion from such people or not.[15] In R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan[16], the court decided that when an authority makes a statement as regards the process that shall be followed, it generates a legitimate expectation amongst the people that the same shall be observed. Hereafter, the authority is under a responsibility to follow the stated procedure. The principle as evolved in England over the course of last three decades has assumed major importance and has been acknowledged by several jurisdictions, including India. However, it is still in a developing stage, where each jurisdiction has restricted its growth taking into consideration their local circumstances. The Indian Courts have recognised the doctrine as a law of land to deter public bodies from an arbitrary exercise of powers. V. Application of the Principle in India The Principle of Legitimate Expectation in India has originated from common law like many other principles. In India, this doctrine has been implemented through the mechanism of judicial review, scrutinizing the actions of public bodies on grounds of fairness. The principle of legitimate expectation was first acknowledged in India in the case of State of Kerela v. K.G Madhavan Pillai[17], where legitimate expectation produced by a sanction order was used to reject a later order on the ground of abuse of natural justice. The resulting application of the principle was in the case of Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka[18]. In this case, the action of an administrative authority formed a rightful expectation in the mind of the public and therefore this resulted in the requirement of a just hearing when the authority acted in a manner to thwart that expectation. Legitimate expectation is generated by the administrative bodies either through an express assurance to the public to act in a certain way or doing certain things or through recognized practice or previous actions which produce expectations in the minds of the public.[19] This principle is applied exclusively in the framework of administrative law, and confers an obligation on the authorities to justify any nonconformity from recognized practices or promise, to limit any arbitrariness in their conduct.[20] A. Nature and Scope of Legitimate Expectation The scope of legitimate expectation was explored in the case of Navjyoti Coop. Group Housing Society v. Union of India[21]. The case gave the opportunity to the courts to scrutinize any decision made by the administrative authorities, if their decision affected an individual’s right to enjoy certain benefits which formerly he was allowed to enjoy and rightfully expected to continue to enjoy in the future. The decision made it certain that only a superseding public policy would be able to clarify nonconformity from what has been rightfully expected. This conferred an obligation on the authorities to act reasonably and in the interest of the general public. The overriding of public policy was applied in the judgment of Food Corpn. of India v. Kamdhenu Cattle Feed Industries.[22], to demonstrate nonconformity with the rightful expectation to grant tender to the highest bidder. In the case of Ram Pravesh Singh v. State of Bihar[23], the Court defined what exactly would create an established practice. A consistent, regular, certain and predictable conduct, which differentiates itself from being a casual or irregular conduct, would be considered as a practice which is established and consistent. The practice also has to be reasonable and logical. The idea of expectation was explored in the decision of Union of India v. Hindustan Development Corporation[24], where distinction was made between “anticipation” and “expectation”, and it was held that any right or desire or mere disappointment did not refer to as expectation. “Expectation” under the doctrine is in the sense of being “justifiably legitimate and protectable”. And the legitimacy is to be based on the consent of law or an recognized procedure naturally observed. Yet some misunderstanding still exists regarding “legitimate expectation” being considered a right. The case of M.P. Oil Extraction v. State of M.P.[25], held that legitimate expectation in a suitable scenario would comprise of an enforceable right. Nonetheless, Supreme Court made it evident in Ram Pravesh Singh[26], by explicitly discarding the idea of “legitimate expectation” being a legal right. The court said that it can only apply in circumstances where an expectation is involved, which is justified and made legitimate by an established past practice or an express promise. Additionally, as per Confederation of Ex-Serviceman Assns v. Union of India[27], the principle only gives an opportunity to a fair hearing and just procedure to be followed only to the person who is expecting. Only such a person is entitled to know the reasons for denial or order by the Court to the authorities to follow the established practice. B. Principle of Legitimate Expectation and Equity The principle is considered to be a part of the principle of equity, as was seen in M.P Oil Extraction case[28], where equitable treatment was given to companies with whom the Government had contracted to supply sal seeds based on the renewal clause within the contract. The principle of equity was further endorsed in the case of Raj Kumar v. Union of India[29], where it was recognized that a person could be debarred of availing of the principle of legitimate expectation based on the conduct of the person himself. In this case, legitimate expectation was opposed based on equity, as the BSF guards tried to gain retiral benefits without validly retiring. In the case of National Buildings Construction Corporation[30], the functional aspect of legitimate expectation was stressed upon and it was said that the situation should be dealt with in a similar manner as if the principle of promissory estoppel was applied. Furthermore, this case along with Punjab Communication v. Union of India[31], laid down an additional criteria where the doctrine of legitimate expectation cannot be applied. It was established through previous case laws that the only exception to legitimate expectation was public interest. However, now in terms of significant legitimate expectation the action or order of the administrative authority had to go through a test of reasonableness before assessing public interest. If the order or action fulfills the Wednesbury principle of reasonableness, so that the action or order of the authority is not unreasonable or even adverse, the public interest involved in the order can be evaluated. VI. Conclusion From the discussion and analysis of the case laws and authorities above, it becomes clear that the doctrine of legitimate expectation imposes an obligation and duty on the administrative authorities to act fairly and reasonably. The principle owes its origin application to various kinds of situations and is very broad in itself. Hence, it is not feasible to come up with an exhaustive list of actions which will give rise to situations of legitimate expectation. This is because government activities in themselves are vast and expansive and change as time goes by. However, one thing has become certain that courts cannot pretend to have jurisdiction in order to review an administrative act under the cover of legitimate expectation as I would be unfair on the part of the court. It is commonly agreed that legitimate expectation generally allows the person to approach Court and to claim the right of fair representation or hearing in a situation where his rights were affected arbitrarily. The doctrine does not give opportunity to claim remedy at once from the administrative authorities as no clear right as such is directly involved. Consequently, even if the safeguard is guaranteed based on legitimate expectation, it does not guarantee total relief to the person. The appeal of legitimate expectation still remains a very feeble appeal in Indian Administrative Law. A right to benefit based on legitimate expectation is negative by the courts more often than is known. In a situation of confusion over the idea of legitimate expectation what needs to be cleared is that the concept envisions not only “expectation” but “legitimate expectation” meaning which there is something super-imposed to “expectation”- a certain kind of promise or assurance by the administrative authorities or the fact that the expectation was established by some long-standing practice. The concept is embedded more in the principles of equity than in legal rules. Bibliography I. Books:

1. SP Sathe, Administrative Law (seventh edition), Lexis Nexis (2010)
2. MP Jain and SN Jain, Principles of Administrative Law (sixth edition) Lexis Nexis (2013)
3. IP Massey, Administrative Law, Eastern Book Company (2001)

II. Articles

1. Lord Denning, Recent development in the Doctrine of consideration, Modern Law Review, Vol. 15, 1956.
2. Sushant Rochlan, Doctrine of Legitimate Expectation, January 21, 2011, available at https://lex-warrier.in/2011/01/doctrine-of-legitimate-expectation/ [Last seen on 14th February, 2015]

III. Case Laws

1. Schmidt v. Secy of Stare for Home Affairs (1969) 2 WLR 337
2. R. Clerk, “In pursuit of Fair Justice” AIR 1996 (J) 11
3. Council of Civil Service Union v. Minister for Civil Service, (1983) UKHL 6
4. National Buildings Construction Corporation v S. Raghunathan , (1998) 7 SCC 66.
5. Breen v. Amalgamated Engg. Union , (1971) 2 QB 175
6. Attorney General of Hongkong v. Ng Yuen Shiu , (1983) 2 AC 629
7. Council of Civil Service Union v. Minister of Civil Services , 1985 AC 374
8. R v Secy of State for Home department, Ex. P. Ruddock, (1987) 1 WLR 1482
9. R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan , (1984) I WLR 1337
10. State of Kerela v. K.G Madhavan Pillai , AIR 1989 SC 49
11. Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka , [1991]2 SCC 60
12. Navjyoti Coop. Group Housing Society v. Union of India , (1992) 4 SCC 477.
13. Food Corpn. of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71.
14. Ram Pravesh Singh v. State of Bihar , 1999 (1) BLJR 625
15. Union of India v. Hindustan Development Corporation , (1993) 3 SCC 499
16. M.P. Oil Extraction v. State of M.P (1997) 7 SCC 592.
17. Confederation of Ex-Serviceman Assns v. Union of India , (2006) 8 SCC 399
18. M.P Oil Extraction case ,1990 (0) MPLJ 675
19. Raj Kumar v. Union of India , 1969 AIR 180
20. National Buildings Construction Corporation case , 72 (1998) DLT 121
21. Punjab Communication v. Union of India , (1999) 4 SCC 727

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[1] Lord Denning, Recent development in the Doctrine of consideration, Modern Law Review, Vol. 15, 1956. [2] See, Schmidt v. Secy of Stare for Home Affairs (1969) 2 WLR 337 [3] R. Clerk, “In pursuit of Fair Justice” AIR 1996 (J) 11 [4] SP Sathe, Administrative Law (seventh edition), Lexis Nexis (2010) [5] MP Jain and SN Jain, Principles of Administrative Law (sixth edition) Lexis Nexis (2013) [6] Id. [7] Council of Civil Service Union v. Minister for Civil Service, (1983) UKHL 6 [8] National Buildings Construction Corporation v S. Raghunathan , (1998) 7 SCC 66. [9] Sushant Rochlan, Doctrine of Legitimate Expectation, January 21, 2011, available at https://lex-warrier.in/2011/01/doctrine-of-legitimate-expectation/ [Last seen on 14th February, 2015] [10] Id. [11] Schmidt case, Supra n. 1 [12] Breen v. Amalgamated Engg. Union , (1971) 2 QB 175 [13] Attorney General of Hongkong v. Ng Yuen Shiu , (1983) 2 AC 629 [14] Council of Civil Service Union v. Minister of Civil Services , 1985 AC 374 [15]R v Secy of State for Home department, Ex. P. Ruddock, (1987) 1 WLR 1482 [16] R v. Secy of State for Home Deptt., Ex. P. Asif Mahmood Khan , (1984) I WLR 1337 [17] State of Kerela v. K.G Madhavan Pillai , AIR 1989 SC 49 [18] Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka , [1991]2 SCC 604 [19] IP Massey, Administrative Law, Eastern Book Company (2001) [20] Id. [21] Navjyoti Coop. Group Housing Society v. Union of India , (1992) 4 SCC 477. [22] Food Corpn. of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71. [23] Ram Pravesh Singh v. State of Bihar , 1999 (1) BLJR 625 [24] Union of India v. Hindustan Development Corporation , (1993) 3 SCC 499 [25] M.P. Oil Extraction v. State of M.P (1997) 7 SCC 592. [26] Supra 22 [27] Confederation of Ex-Serviceman Assns v. Union of India , (2006) 8 SCC 399 [28] M.P Oil Extraction case ,1990 (0) MPLJ 675 [29] Raj Kumar v. Union of India , 1969 AIR 180 [30] National Buildings Construction Corporation case , 72 (1998) DLT 121 [31] Punjab Communication v. Union of India , (1999) 4 SCC 727

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