DOCTRINE OF LEGITIMATE EXPECTATION

Abstract

The concept of legitimate expectation is an essential legal concept in administrative law which has to do with fairness and accountability in the decision-making processes of public officials. It is the potential that an individual or a group may have concerned a certain outcome or process in accordance with the conduct, declarations or practices of a public authority. This paper looks at the expectations of individuals or groups, and more specifically, defines the two aspects of legitimate expectation. These aspects include the procedural legitimate expectation which relates to the expectation of certain procedures such as consultation or a fair hearing, and the substantive legitimate expectation which relates to the expectation of a particular result or benefit. In this way, it is possible to increase the efficiency of administrative action through advances in predictability, accountability and fairness by allowing for legitimate expectations and disallowing arbitrary actions by authorities. Even though there is no legal right of legitimate expectation, it has been used by courts in the countries of common law as an aid for promoting adroit rule and fairness in procedures in many local cases including those in India. This is to say that this doctrine is very useful in managing people’s faith on how public authorities conduct their business, without entirely taking away the needed policy flexibility.

Keywords

Legitimate Expectation, Administrative Law, Fairness, Accountability, Public Authority, Arbitrariness, Good Governance

Introduction

principle of legitimate expectation is a significant legal doctrine with respect to the arbitration of administrative decisions. This is concerned with how people interact with institutions, particularly the treatment they expect from those institutions.

In simple terms, the doctrine excuses an individual’s anticipation of certain results because of past occurrences, practices, or policies or promissory leads by a public authority. For instance, after a certain period during which a government agency has issued licenses or benefits in a particular manner, individuals may have accepted it as a norm, which is abnormal. In the same vein, a member of the public would expect that during the course of discharging his official duties, a particular officer will not make certain guarantees on certain actions and later go against those assurances.

This is the doctrine that ensures that public authorities do not act irresponsibly, especially where they depart from what they established ‘promised’ to do. Where a party establishes that he had a legitimate expectation generated by the authority, he may seek to review its decision if the same expectation created by the authority is defeated unreasonably.

In a more general context, the doctrine of legitimate expectation has been placed within the tenets of good administration and fairness. This means that unreasonable decisions cannot be made simply because they do not align with an individual’s reasonable expectations. Therefore, the doctrine not only defends rights but encourages the rule of law in the activities that are carried out by the public authorities. It is common practice that courts embed the principle of fairness in administrative actions. This goes beyond the legality of public decision-making but encompasses the fairness and reasonableness of such acts. The courts also play their role by upholding and enforcing the notion of legitimate expectations.

What is Legitimate Expectation?[1]

The idea of ‘legitimate expectation’ had first been articulated by Lord Denning in the year 1969 where he assumed it to be the wish of a reasonable person that he or she will benefit or obtain relief from an act or action of an administrative organ that is supported by an indication, assurance or promise that has been made by the organ. This may be overt or implied and is usually based on the previous practices of the authority and how it has conducted itself in the past. Broadly speaking, legitimate expectation refers to the assumption one has that certain actions will be taken or services offered especially by government institutions or the public law, when such actions or services are governed by law but are not rights that can be demanded by an individual under private law. This therefore means it is possible to have this doctrine at the center of having ‘no claim’ and ‘having a legal claim.’

In India, this doctrine has also been espoused by the Supreme Court in the case of Ram Pravesh Singh and Ors. V. State of Bihar and Ors. (2006)[2]. The Court pointed out that the representation or promise that has been made by the authority either directly or indirectly makes it possible to assume that a person has in many instances a claim to legitimacy.

In this way, proper developed the doctrine of legitimate expectation in the jurisprudence of South Africa, where the Supreme Court also may provide guidance in this regard, as an important mechanism to rein in the potential for abuse of discretion that may arise from the exercise of administrative power by public authorities. It also protects individuals from arbitrary actions and promotes the rule of law and good administrative practices. This legal regime is not only protective in nature towards the individual but also helps in fostering transparency and accountability within the overall administrative mechanism to enhance public confidence towards governmental activities.

Origin of Doctrine of Legitimate Expectation[3]

The tenet of legitimate expectation, while it does not have a specific legal right established in any statute or rulebook, is found in various interpretations of the law that aim at ensuring justice in administrative actions. One of those principles is aided by one of the cases in the development of the principles of this doctrine – Council of ( Council of Civil Service Unions and Others v. Minister for the Civil Service, 1984)[4]. In this manner, the House of Lords divided into obiter dicta which address how the actions of public authorities towards individuals, and more specifically, their rights and expectations, should be Guiding.

It was stated that where a decision of a public authority affects a person’s rights or obligations, such an effect must be proportionate and reasoned. More particularly, the court made reference to two instances that are particularly noteworthy:

Affects Rights or Obligations: In the event where a public authority makes a decision that affects a person by altering his or her enforceable rights or obligations, that person has a legitimate expectation that he or she will not be treated unfairly when any such change occurs. In other words, the alteration must be for good reason and with due process, so that the person is not placed at a disadvantage unnecessary.
He has lost a privilege or benefit that was given to him by the relevant authorizing body in the past and has not communicated any reasons for such a change. He had an expectation that this benefit would continue even in the absence of a communicated reason for its withdrawal, especially in light of the fact that it was taken away quite suddenly. In addition, he had been given guarantees by the authority that made the decision that the said benefit would be taken away from him only after he was given the chance to raise objections for its withdrawal. As such, he was waiting for the window before the decision to curb the benefit was announced, to provide explanations as to his contentions or any other rebuttals for that matter.

The Limits of Legitimate Expectation as a Legal Right[5]

When applying the doctrine of legitimate expectation within administrative actions, there is no legal right that shall be accorded to an expectant, the person with legitimate expectation. Since it is not a legal right, it cannot be applicable in every situation. This doctrine is a formulation and invention of the courts; therefore, its applicability is within the discretion of the courts.

As such, legitimate expectation is not a justiciable right availed to the expectancy and neither is it an obligation of administrative authority but rather, it is a threshold for the courts who seek to exercise their powers in reviewing administrative acts that affect the particular person.

Legitimate expectation though it may not be merged in a specific right where immediate enforcement can be demanded, if the same is ignored by public authority in the course of taking of the relevant decision by it, it is alleged that the decision of the authority was taken in violation of so-called non-arbitrariness, which is the sine qua non of the rule of law and such decision can be quashed on the ground of arbitrariness. Thus, the Supreme Court held in M. P. Oil Extraction and Anr. Etc. V. State of Madhya Pradesh and Ors. (1997)[6], that: “the principle of ‘legitimate expectancy’ belongs to public law and, when appropriate, can be constructive and coercible”.

Development of Doctrine of Legitimate Expectations in India[7]

The concept of Legitimate Expectation was addressed in the Indian context for the first time in the case of State of Kerala v. K.G. Madhavan Pillai ((1988) 4 SCC 669)[8]. In this case, the respondents were granted permission to establish a new aided school along with the permission to expand the existing schools. However, 15 days later, an Order was passed to stay the earlier permission. This Order was contested by the respondents not with respect to the violation of any rights but rather the principles of natural justice. The Supreme Court held that the respondents had a legitimate expectation arising out of the prior sanction and the second order was in breach of natural justice principles.

In another Supreme Court case[9], the new criterions for allotment of land were also the subject matter of challenge by the plaintiffs. In the original policy therefore, for the purposes of allotting in terms of seniority, she was to be understood as the fifth respondent who was resolved in favor of the registration date if the final list had not yet been approved. Later on, a shift of policy was adopted in 1990 where the policy regarding approving of seniority from registration date was altered such that it was based on the approval of the final list.

The Hon’ble Supreme Court sought to express that, on the ground of past practice concerning allotment which was continuous and consistent, the Housing Societies were entitled to ‘legitimate expectation’. Further in this regard, the Court explains the principle as one where the ‘legitimate expectations’ have differing results and of that result one is where the expectation cannot be disappointed by the authority unless there is any grounds of public policy justifying such disappointment. It is further emphasized that the provision of a reasonable opportunity to persons who are likely to be affected by the change of a policy which was consistent in nature is well within the concept of fair play. It is also held by the Hon’ble Court that such an opportunity should have been afforded to the Housing Societies by way of a public notice.[10], is a case where the Supreme Court has elaborated the doctrine of ‘legitimate expectations’ that it is a subjective right on the part of any citizen who comes into contact with the public authorities that he/she shall be treated fairly, which also relates to the duty to act reasonably not treating every expectation as one which cannot be disappointed otherwise state power may be misused. The Court added further that such a reasonable or legitimate expectation might not be a legal right which could be enforced directly but ignorance of it, while taking a decision, might render such a decision as arbitrary. Whether an expectation is a legitimate one is a situational determination that must be undertaken with respect to each case.

In the case of the Supreme Court [11] has dealt with the doctrine in detail starting with the explanation of the scope of the doctrine in Halsbury’s Laws of England, Fourth Edition, Volume I (I) 151 which mentions that, even if a person has no legal right to be treated in a particular way, he can still legitimately expect to be treated that way.

Significance of Doctrine of Legitimate Expectation[12]

The concept of legitimate expectation has been widely welcomed in public law as a system that promotes transparency and responsibility in government actions. It serves a purpose of a utopian court when a citizen or a body of people wishes to challenge the action of an administrative authority that has not met a standard of order and has not announced a change. It is this doctrine that also provides an essential curb to the exercise of the administrative power of discretion. It assists to the extent that such power will however be exercised reasonably and honestly particularly where such administrative actions affect public rights or interests. In essence, the doctrine derives from the acceptance of the principles of procedural justice and is meant to out law any decision that does not afford an opportunity to any party affected to be heard.

In modern democracy, governments and public authorities broadly undertake the practice of making statements and assurances concerning policies and programs which in turn raises certain expectations on part of the people, businesses or other organizations. Such statements are likely to be in form of speeches given by certain public figures, documents outlining policies or promises ensuring certain action or benefits among other things. Such pronouncements give rise to reasonable expectation by the public that the concerned authorities will keep their word and be accountable. Whenever any such authority or authorities act in a way which is inconsistent or counteractive to such undertakings post people have learned to expect and rely upon their promises, the people dependent on these initial promises tend to face unexpected difficulties, sometimes even such as financial damage, investments shut down, or a threat to their overall safety.

In light of this, the doctrine of legitimate expectation provides an incentive for the parties aggrieved to take action. It enables them to make a case and argue that there is no justification for the abandonment of previous protection and also for the adverse consequences of administrative changes that violate established expectations. It is therefore proper to say that the doctrine does not concern itself with individual cases in isolation. It helps to build confidence in public administration and ensures that government agencies do not have unfettered freedom. This is important because it helps protect ethical governance in that it strengthens the need for administrative authorities to either act uniformly or at the very least, give the concerned parties the opportunity to be heard before radical amendments of policies or benefits previously assured are made.

Types of Legitimate Expectations[13]

Legitimate expectations can be broadly divided into two types, namely, procedural legitimate expectation and substantive legitimate expectation.

1. Substantive legitimate expectation

Substantive Legitimate Expectation in administrative law is the expectation of an individual or a group to receive or see a particular benefit, result, or an action by a public authority based on a promise or practice that has been clear enough. Unlike Appeasement or Procedural Legitimate Expectation whose focus is on fair procedures, substantive expectation takes it a notch higher by legalizing the protection of an expectation of an outcome. This expectation is usually in place particularly when a public body makes a clear undertaking on some redeployment such as to fund, not to remove a service or specific policy or otherwise, which would engender such trust that the parties concerned would act on that even as situations remain unchanged.

For example, where a state agency assures that the funding for a certain project or provision of a program will continue, there builds substantive legitimate expectation amongst the constituents that the funding or provision will continue. However, such anticipation poses a problem because in court the protection of this type of expectation brings about a conflict between the reasonable expectations of the promise and the need of the public authority to be free to change policy even when the change may affect one person’s or a group of individuals’ interest. Courts are habitually reluctant to give effect to substantive expectations for fear that doing so might inhibit the capacity of public authorities to vary their policies in the future. In order for substantive legitimate expectation to be recognized, the authority’s promise or undertaking must be clear, specific, and plausible taking into account specific legal or policy limits.

2. Procedural legitimate expectations

The procedural legitimate expectation is an administrative law concept that Sierra Leone recognizes which provides for the protection of the individual’s expectation of certain procedures to be adhered to before any decision is taken by the public authority. This particular form of legitimate expectation is geared towards ensuring that processes are not evaded but fair treatment of all does not guarantee any particular outcome. In a procedural legitimate expectation, a person would probably expect a certain procedure such as; consultation, hearing or even notice, due to the behavior of the authority, a custom or a promise that they had before.

Illustratively, if a government agency has a habit of giving individuals affected by a new policy an opportunity to submit their representations or at least hold consultations prior to the policy being implemented, the individuals may develop a procedural expectation that in similar future decisions, they shall be given that opportunity. It is an expectation that is based on the values of openness, equity and consistency in the carrying out of a particular function, which are essential in upholding confidence in the administrative entities.

Judicial processes tend to protect primarily procedural legitimate expectations rather than substantive because they do not constrain the ability of the authority to make policy decisions but merely provide that certain procedures should be observed. In the event that a legitimate procedural expectation is not fulfilled by a public authority without justification, the courts may step in and compel the authority to carry out the relevant procedural requirement. However, one is expected to be consistent, lucid and definite in sizing up the expectations and it must derive from the authoritative credit structure, or a certain assurance. Courts will also consider whether reinstating the procedural expectation is fair and just, or whether there are overriding considerations such an urgent public interest which would support its rejection. This principle therefore attempts to encourage equal treatment in administrative processes, addressing the individuals’ dependence on the offered procedures and the need for public bodies to be agile.

Conclusion

The doctrine of legitimate expectation is a core principle of administrative law which seeks to promote fairness, openness and accountability in public service. This doctrine extends to both notice and meaning and lets public authorities maintain certain expectations within limits such that individuals and groups are not dealt with in abrupt and radical changes of government policy. Procedural legitimate expectation deals with fair hearing and implies that people in authority should be bound by particular rules before pronouncements that affect peoples’ lives are made. Substantive legitimate expectation looks at the situation from a different angle. Despite its protective outcome for individuals, it does not come into practice frequently because of the rigidity it poses to policy changes. It concerns the subject matter where individuals have a right to expect an outcome based on what the authorities have promised to do. The end result of this doctrine, is that it enhances public obedience to the administration, encourages good governance, and ensures the rule of law. In the end, the doctrine of legitimate expectation is one of the devices for enforcing law and order within a society, and in this case, administrative powers are exercised judiciously to the benefits of individuals as well as the society at large.

References

Council of Civil Service Unions and Others v. Minister for the Civil Service (1984).
Food Corporation Of India vs M/S. Kamdhenu Cattle Feed Industries (1992).
M.P. Oil Extraction And Anr. Etc vs State Of Madhya Pradesh And Ors (1997).
Navjyoti Coo-Group Housing Society … vs Union Of India And Others (1992).
N, N., 2020. RESEARCHGATE. [Online] Available at: https://www.researchgate.net/publication/350525237_Doctrine_of_Legitimate_Expectation_An_Analysis
Ram Pravesh Singh & Ors vs State Of Bihar & Ors (2006).
Singh, A., 2023. ipleaders. [Online] Available at: https://blog.ipleaders.in/legitimate-expectaion/
State Of Kerala And Ors vs K.G. Madhavan Pillai And Ors (1988).
Union Of India And Ors vs Hindustan Development Corpn. And Ors (1993).

[1] Singh, A., 2023. ipleaders. [Online] Available at: https://blog.ipleaders.in/legitimate-expectaion/

[2] Ram Pravesh Singh & Ors vs State Of Bihar & Ors (2006).

[3] Supra Note 1

[4] Council of Civil Service Unions and Others v. Minister for the Civil Service (1984).

[5] Supra Note 1

[6] M.P. Oil Extraction And Anr. Etc vs State Of Madhya Pradesh And Ors (1997).

[7] Supra Note 1

[8] State Of Kerala And Ors vs K.G. Madhavan Pillai And Ors (1988).

[9] Navjyoti Coo-Group Housing Society … vs Union Of India And Others (1992).

[10] Food Corporation Of India vs M/S. Kamdhenu Cattle Feed Industries (1992).

[11] Union Of India And Ors vs Hindustan Development Corpn. And Ors (1993).

[12] N, N., 2020. RESEARCHGATE. [Online] Available at: https://www.researchgate.net/publication/350525237_Doctrine_of_Legitimate_Expectation_An_Analysis

[13] N, N., 2020. RESEARCHGATE. [Online] Available at: https://www.researchgate.net/publication/350525237_Doctrine_of_Legitimate_Expectation_An_Analysis

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