The Doctrine of Legitimate Expectation

The doctrine of ‘Legitimate Expectations’ is one amongst several tools incorporated by the Court
to review administrative action. This doctrine pertains to the relationship between an individual
and a public authority. According to this doctrine, the public authority can be made accountable
in lieu of a ‘legitimate expectation’. A person may have a reasonable or legitimate expectation of
being treated in a certain way by the administrative authorities owing to some consistent practice
in the past or an express promise made by the concerned authority.

Origin of Doctrine of Legitimate Expectations

The doctrine is not a specific legal right engraved in a particular statute or rule book. The first
time, an attempt was made to establish the principles of the doctrine were in the case of Council
of Civil Service Unions and Others v. Minister for the Civil Service ([1985] AC 374), that the
decision by the public authority should affect the person such that-

His rights or obligations are altered, which are enforceable by or against him

He is deprived of some benefit or advantage which he had been permitted by the authorizing
body in the past and which he could have legitimately expected to enjoy until a valid ground for
withdrawal of the same was communicated to him or he had been assured by the decision
making body that such a benefit or advantage would not be withdrawn until him being given an
opportunity of contending reasons as to why they were withdrawn.

Case Survey

Origin and development of Doctrine of Legitimate Expectations in India

The Doctrine of Legitimate Expectation was firstly discussed in the Indian arena in the case of
State of Kerala v. K.G. Madhavan Pillai ((1988) 4 SCC 669). Herein a sanction was issued for
the respondents to open a new aided school and to upgrade the existing schools, however, an
Order was issued 15 days later to keep the previous sanction in abeyance. This Order was
challenged by the respondents in lieu of violation of principles of natural justice. The Supreme
Court ruled that the sanction had entitled the respondents with legitimate expectation and the
second order violated principles of natural justice.

In another Supreme Court case, Navjyoti Coop. Group Housing Society v. Union of India
((1992) 4 SCC 477), wherein the new criteria for allotment of land was challenged. In the
original policy, the seniority with regards to allotment was decided on the basis of date of
registration. Subsequently, a change in policy was made in 1990, changing the criteria for
deciding seniority based on the date of approval of the final list.

The Supreme Court was of the opinion that the Housing Societies were entitled to ‘legitimate
expectation’ owing to the continuous and consistent practice in the past in matters of allotment.
Court further elucidates on the principle stating that presence of ‘legitimate expectations’ can
have different outcomes and one such outcome is that the authority should not fail ‘legitimate
expectation’ unless there is some justifiable public policy reason for the same.

It is further emphasized that availability of reasonable opportunity to those likely being affected
by the change in a policy which was consistent in nature is well within the ambit of acting fairly.
The Honorable Court held that such an opportunity should have been given to the Housing
Societies by way of a public notice.

The Supreme Court elaborated on the nature of the doctrine of legitimate expectations in Food
Corporation of India v. Kamdhenu Cattle Feed Industries ((1993) 1. S.C.C. 71), that the duty to
act fairly on part of public authorities, entitles every citizen to have legitimate expectation to be
treated in a fair manner and it is imperative to give due importance to such an expectation in
order to satisfy the requirement of non-arbitrariness in state action or otherwise it may amount to
abuse of power. The Court further made a remarkable point that such a reasonable or legitimate
expectation may not be a directly enforceable legal right but failure in taking it into account may
deem a decision arbitrary. To decide whether an expectation is a legitimate one is contextual and
has to be decided on a case by case basis.

In Union of India v. Hindustan Development Corporation ((1993) 3 SCC 499), the Supreme
Court has dealt with the doctrine in great detail, starting with the explanation of the scope of the
doctrine in Halsbury’s Laws of England, Fourth Edition, Volume I (I) 151 which says that a
person can have a legitimate expectation of being treated in a certain fashion even though he
doesn’t have a legal right to receive the same.

Origin and development of Doctrine of Legitimate Expectations in English Law

The Court discusses that how the doctrine of legitimate expectations first stepped in the English
Law in the case of Schmidt v. Secretary of State for Home Affairs ((1969) 2 Ch. 149) wherein it
was observed that a foreigner who had been given leave to enter the United Kingdom, had the
right to be heard and had a legitimate expectation of being allowed to stay for the allowed time.

The Court further goes on to discuss the famous case of A.G. of Hong Kong v. Ng Yuen Shiu
((1983) 2 A.C. 629) wherein Lord Fraser had observed that if a public authority has vowed to
follow a procedure, it is imperative that it acts in a fair manner and fulfills its promise, in the
interest of good administration. The Court remarks that there is an absence of meaning and scope
of the doctrine of legitimate expectation given by the Supreme Court and henceforth it would
like to elaborate on the subject. The Court distinguishes expectation from anticipation and states
that an expectation can only be said to be legitimate only if it has a legal sanctioning or is backed
by a procedure or custom that has been followed consistently.

This case can be categorized as a landmark one in the Indian discourse since it specifically draws
the realm of the doctrine stating that it does not involve a ‘crystallised right’ and thus does not
pave way for direct claim for relief and the doctrine can be confined to the right of fair hearing in
a situation where a promise has been withdrawn or negative. A substantive expectation doesn’t
necessarily amount to an absolute right unless the decision-maker is not able to justify the
withdrawal by overriding public interest and more importantly such a decision should be
founded in arbitrariness, unreasonableness and not justifiably taken in public interest.

The Court further enunciated that if the issue involves a question of policy or change in policy
then the Courts must remain in their domain and refrain from interfering. Thus legitimate
expectation may lead to judicial review but the scope of relief that can be given by the Court is
very limited.

Circumstances for the formation of legitimate expectation

Circumstances which may lead to the formation of legitimate expectations were postulated in
Madras City Wine Merchants v. State of Tamil Nadu ((1994) 5 SCC 509) namingly-

If there was some explicit promise or representation made by the administrative body

That such a promise was clear and unambiguous

The existence of a consistent practice in the past which the person can reasonably expect to
operate in the same way

It was laid down in P.T.R. Exports (Madras) Pvt. Ltd. And Others vs. Union of India and others
(AIR 1996 SC 3461) that the doctrine of legitimate expectations has no role to play when the
appropriate authority is empowered to take a decision under an executive policy or the law itself
and that the Government is not restricted from evolving new policy on account of ‘legitimate
expectations’ as and when required in public interest.
The Supreme Court ruled in M.P. Oil Extraction v. State of M.P ((1997) 7 SCC 592) that the
doctrine of legitimate expectations operates in the realm of public law and is considered a
substantive and enforceable right in appropriate cases. It was held that the industries had a
legitimate expectation with regards to past practice and the renewal clause, that the agreements
are renewed in a similar manner.

In National Buildings Construction Corporation v S. Raghunathan ((1998) 7 SCC 66),

The claim which was based on legitimate expectations was rejected by NBCC. The Court agreed
with the decision that no such promise or agreement was carried out by NBCC.

The Court while elaborating on the doctrine, stated that the doctrine has its genesis in the
administrative law and that Government departments ought not to act in an unfettered manner
guided by abuse of discretion.

The Court also pointed to a procedural aspect stating that the contention of ‘legitimate
expectation’ should have been raised in the pleadings itself, and thus the High Court was
erroneous in allowing the plea at the stage of arguments in the absence of pleadings and affidavit
to support the same.

It can be inferred from the aforementioned case that the doctrine has both substantive and
procedural facets to it.

It was reiterated in the case of Bannari Amman Sugars Ltd. V. CTO ((2005) 1 SCC 625) that
guarding legitimate expectation should not come at the cost of non-fulfillment of an overriding
public interest, so to say that in case a legitimate expectation of a person is not fulfilled, the
decision making body can hide behind the veil of ‘overriding public interest’.

Article 14 and Legitimate Expectation

The doctrine’s use has essentially been embedded into Article 14 of the Constitution and thus
‘non-arbitrariness and unreasonableness’ have been made the necessary qualifiers for assessing
as to whether there was a denial of legitimate expectation or not. Such a mandate has made the
doctrine quite redundant in the Indian Context. For the doctrine to grow individually, it is
necessary that lower standards are set as qualifiers which undoubtedly may run its own risks like
a too much Judicial intervention.

Conclusion

The doctrine has undoubtedly gained significance in the Indian Courts, giving locus standi to a
person who may or may not have a direct legal right. The doctrine of legitimate expectations
very well leads to a procedural right i.e. right to judicial review in India but the substantive
aspect of the doctrine can be said to be in a budding stage. There has been hesitance amongst
academicians as to whether the doctrine should apply to substantive rights at all. It has been
argued that application of the doctrine to substantive rights might result in failure of separation
of powers and would qualify as overstepping of Judiciary’s powers.