(Guest Post by Chintan Chandrachud)
The doctrine
of substantive legitimate expectations is a fairly new addition to the ‘armoury
of courts in ensuring that discretions are exercised fairly’. It enables litigants,
even in the absence of a legal right, to hold the government to its promise,
policy or established practice. In contrast with its procedural variant (which
requires the government to comply with rules of natural justice), substantive
legitimate expectations are controversial because they encompass situations in
which the applicant seeks a particular substantive benefit or commodity. Over
the last two decades, the Supreme Court has consistently remarked that the
doctrine forms ‘part of our law’. These remarks suggest that the
doctrine – giving rise to ‘crucial and difficult’ questions elsewhere – forms
part of constitutional orthodoxy in New Delhi.
of substantive legitimate expectations is a fairly new addition to the ‘armoury
of courts in ensuring that discretions are exercised fairly’. It enables litigants,
even in the absence of a legal right, to hold the government to its promise,
policy or established practice. In contrast with its procedural variant (which
requires the government to comply with rules of natural justice), substantive
legitimate expectations are controversial because they encompass situations in
which the applicant seeks a particular substantive benefit or commodity. Over
the last two decades, the Supreme Court has consistently remarked that the
doctrine forms ‘part of our law’. These remarks suggest that the
doctrine – giving rise to ‘crucial and difficult’ questions elsewhere – forms
part of constitutional orthodoxy in New Delhi.
However, an entirely different picture emerges once we move
beyond the rhetoric and examine the Supreme Court’s legitimate expectations
docket more closely. It turns out that substantive legitimate expectations is a
fictitious doctrine – not in the sense that these observations are imaginary,
but because the doctrine has evolved in a way that makes it almost impossible
for a claim to succeed. This can be demonstrated by (a) establishing the
Court’s resistance to recognizing the emergence of a substantive legitimate
expectation in specific cases in which it is claimed (b) disclosing the broad
set of grounds based on which the Court is willing to dislodge a legitimate
expectation and (c) analysing the deferential standards of judicial review
applied to these grounds.
beyond the rhetoric and examine the Supreme Court’s legitimate expectations
docket more closely. It turns out that substantive legitimate expectations is a
fictitious doctrine – not in the sense that these observations are imaginary,
but because the doctrine has evolved in a way that makes it almost impossible
for a claim to succeed. This can be demonstrated by (a) establishing the
Court’s resistance to recognizing the emergence of a substantive legitimate
expectation in specific cases in which it is claimed (b) disclosing the broad
set of grounds based on which the Court is willing to dislodge a legitimate
expectation and (c) analysing the deferential standards of judicial review
applied to these grounds.
From amongst its earliest cases considering the doctrine, the
Court has demonstrated reluctance to recognize the emergence of a substantive
legitimate expectation. It has frequently observed that a legitimate
expectation cannot be equated with a ‘mere anticipation’. That, of course, begs
the question of what the expression ‘mere anticipation’ is being used in
contrast with. The answer in early cases was law, custom or established
procedure. Subsequent judgments, however, interpreted the ‘mere anticipation’
rule less innocuously. Mere anticipation was used in contrast with a ‘legal
right’. If, in the Court’s perception of the universe of claims, there are only
two kinds – anticipations and legal rights – then that would deprive the
doctrine of substantive legitimate expectations of its utility.
Court has demonstrated reluctance to recognize the emergence of a substantive
legitimate expectation. It has frequently observed that a legitimate
expectation cannot be equated with a ‘mere anticipation’. That, of course, begs
the question of what the expression ‘mere anticipation’ is being used in
contrast with. The answer in early cases was law, custom or established
procedure. Subsequent judgments, however, interpreted the ‘mere anticipation’
rule less innocuously. Mere anticipation was used in contrast with a ‘legal
right’. If, in the Court’s perception of the universe of claims, there are only
two kinds – anticipations and legal rights – then that would deprive the
doctrine of substantive legitimate expectations of its utility.
Another
feature of the case law is that in highlighting the limits of the doctrine, the
Court has frequently referred to the High Court of Australia’s judgment in Attorney
General for New South Wales v Quin. The Quin case – in
which the High Court issued words of caution about, and categorically rejected,
the doctrine – is an unlikely mascot for a jurisdiction that scholars believe
has eagerly embraced the notion of substantive legitimate expectations. In Umadevi, the Supreme Court altogether
excluded the application of the doctrine in all public employment cases.
feature of the case law is that in highlighting the limits of the doctrine, the
Court has frequently referred to the High Court of Australia’s judgment in Attorney
General for New South Wales v Quin. The Quin case – in
which the High Court issued words of caution about, and categorically rejected,
the doctrine – is an unlikely mascot for a jurisdiction that scholars believe
has eagerly embraced the notion of substantive legitimate expectations. In Umadevi, the Supreme Court altogether
excluded the application of the doctrine in all public employment cases.
The Court has also broadened the set of grounds based on
which a substantive legitimate expectation can be dislodged. Initially, public
interest was the only basis on which a state authority could dislodge a
substantive legitimate expectation. However, as the case law developed, the
Court began applying ‘public interest’ and ‘good faith’ as disjunctive
requirements, with proof of either defeating a substantive legitimate
expectations claim. Putatively, this means that decisions taken in bad faith
but in the public interest, or good faith decisions that are either neutral as
to the public interest or even detrimental to the public interest, would
dislodge substantive legitimate expectation claims.
which a substantive legitimate expectation can be dislodged. Initially, public
interest was the only basis on which a state authority could dislodge a
substantive legitimate expectation. However, as the case law developed, the
Court began applying ‘public interest’ and ‘good faith’ as disjunctive
requirements, with proof of either defeating a substantive legitimate
expectations claim. Putatively, this means that decisions taken in bad faith
but in the public interest, or good faith decisions that are either neutral as
to the public interest or even detrimental to the public interest, would
dislodge substantive legitimate expectation claims.
Once the state authority has put forward a ground for
dislodging a substantive legitimate expectation, the decisive question becomes
what standards of review the court should apply in determining whether the
authority has successfully established its defense. The answer offered by the
Supreme Court’s judgment in Punjab Communications was
that Wednesbury unreasonableness, rather than proportionality, would apply. Wednesbury
unreasonableness comes in many variants, but the Court has persisted in
applying the most deferential amongst them. Although the Court foreshadowed a
move towards proportionality review in recent cases considering substantive
legitimate expectation claims, we should be cautious about whether a formal
move towards proportionality review would dramatically alter the landscape. In
its other case law, the Court has often applied Wednesbury review under the
garb of proportionality.
dislodging a substantive legitimate expectation, the decisive question becomes
what standards of review the court should apply in determining whether the
authority has successfully established its defense. The answer offered by the
Supreme Court’s judgment in Punjab Communications was
that Wednesbury unreasonableness, rather than proportionality, would apply. Wednesbury
unreasonableness comes in many variants, but the Court has persisted in
applying the most deferential amongst them. Although the Court foreshadowed a
move towards proportionality review in recent cases considering substantive
legitimate expectation claims, we should be cautious about whether a formal
move towards proportionality review would dramatically alter the landscape. In
its other case law, the Court has often applied Wednesbury review under the
garb of proportionality.
The numbers confirm what the doctrine insinuates. Of the thirty four
Supreme Court cases (between 1992 and 2012) that I examined in which the Court
considered the doctrine in any detail, in not a single case did the Court
vindicate a substantive legitimate expectation. Some of these cases, which at
first glance look like substantive legitimate expectations claims – are in fact
either claims of procedural protection of substantive legitimate expectations
(see Navjyoti Housing Society) or
straightforward cases of illegality (see Southern Petrochemicals). Thus,
while the Court has enthusiastically embraced the taxonomy of substantive
legitimate expectations, a closer examination of the Court’s case law suggests
that the doctrine remains fictitious.
Chintan Chandrachud is a PhD Candidate at the Faculty of Law, University
of Cambridge. His chapter entitled ‘The (Fictitious) Doctrine of Substantive
Legitimate Expectations in India’ is forthcoming in M Groves & G Weeks
(eds), Legitimate Expectations in the Common Law World (Hart, 2016).
From amongst its earliest cases considering the doctrine, the Court has demonstrated reluctance to recognize the emergence of a substantive legitimate expectation.
after reading through some of the post I realized it’s new to me.
Pretty nice post.
http://www.lawzmag.com/?p=4057