Legitimate Expectations

Shamnad’s last post briefly mentioned ‘legitimate expectations’, an important area of administrative law that does tends not to get much attention in Indian academic writing.

I think the ruling precedent in this regard is still Punjab Communications Ltd vs Union Of India (1999), where the Supreme Court held that:

477. the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way.

The Court cited British precedents (especially Hargreaves) to suggest that whether a legitimate expectation can be legally frustrated on public interest grounds can only be judged by the very deferential standards of wednesbury unreasonableness, and nor the more demanding proportionality test:

The result is that change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. … It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court, The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made.

The law in Britain has moved on since Hargreaves. Recent cases such as Coughlan and Nadarajah seem to suggest that proportionality is indeed the correct standard of review in legitimate expectations cases, although doubts about the principled foundations of the doctrine continue. I am not very familiar with the developments in Indian law on legitimate expectations since Punjab Communications. Can any reader throw further light on the issue?

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12 years ago

J.P.Bansal v State of Rajasthan, 2003(3) SCALE 154.

The principle of legitimate expectation is at the root of the rule of law and requires regularity, predictability and certainty in government’s dealings with the public. For a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either:

(i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rationale grounds for withdrawing it or where he has been given an opportunity to comment; or

(ii) he has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.

The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made than a benefit of substantive nature will be granted or if the person is already in receipt of the benefit than it will be continued and not be substantially varied, then the same could be enforced. An exception could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to an individual or to a class of persons”.

Shamnad Basheer
Shamnad Basheer
12 years ago

Thanks for raising this issue Tarunabh:

I guess the BCI is caught between the devil and the deep sea. If it tries for an exam in July, it will end up doing a shoddy and sub standard job. And make a mockery of the bar exam. And if it postpones the exam to December (with results due in February), it will have disadvantaged thousands of lawyers. Particularly those from small towns and rural areas) who may have been waiting to litigate from day one..and whose livelihood may be impacted. On your point of legitimate expectation, can these lawyers make such a claim i.e. that they expected to work and earn immediately, rather than wait for 8-10 months after graduating…

Which is why we requested that they defer this to next year–to apply to the next batch. Unfortunately, our representation was not heeded. Rather, they merely postponed the exam from July to December!

Shamnad Basheer
Shamnad Basheer
12 years ago