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CRITICAL ANALYSIS: THE DOCTRINE OF LEGITIMATE EXPECTATION

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This article is written by PRACHITI SHINDE a student of THAKUR RAMNARAYAN COLLEGE OF LAW

INTRODUCTION

It would not be an exaggeration to say that the concept of legitimate doctrine has paved its way to become one of the important doctrine along side rule of law, natural justice, fiduciary duties, etc. This doctrine based on the relationship between an individual and a public authority. This doctrine serves a relief or a remedy, which at certain times can hold the public authority liable for denying or disrupting the legal expectation. A person may have expectation to be treated in a specific way by the governing authorities owing to persistent practices in the past or a promise made by the concerned authority. The term legitimate expectation was coined by Lord Denning in the case of Schmidt v. Secretary of state for Home Affairs [1] . In this case it was observed that an alien person who had a legitimate expectation to reside in England cannot be denied without following procedures and rules. Lord Denning used the word ‘legitimate expectation’ in similar meaning as that of word ‘right’. However, though Lord denning had coined that word in Schmidt’s case, the essence of this doctrine was brought in the case of Breen v. Amalgamated Engineering Union [2] , in this case the fact that the trade union’s district committee was refusing to commend a member’s election as a shop steward was highlighted. The court observed that, if a person claims a privilege then the suit could be dismissed without even a hearing but in this case, it was seen that a person was entitled to something more than just a mere privilege; a legitimate expectation, which has arise through, that his election would be sanctioned if there are no discrepancy found, thus the principle of natural justice was followed in this case to guarantee fairness.

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THE ORIGIN OF THE DOCTRINE OF LEGITIMATE EXPECTATION

The principle of doctrine of legitimate expectation was put forth by Lord Diplock in the case of Council of Civil Service Unions and Others v. Minister for the Civil Service [1985] AC 374 where certain aspects were observed. This case law has set a precedent for other countries. For the question about applicability of doctrine to arise, they should substantially prove that he has been deprived of some privileges or benefit due to decision of administrative authorities provided that either- (a) In the past he might have been permitted to enjoy some kind of benefit until there is an reasonable grounds for withdrawal of the same has been conveyed to him or (b) He has been guaranteed by the decision making body that the privileges given would not be abdicated without giving him an opportunity for disputing that why it should not be withdrawn. While in India on the other hand, the applicability has been observed in the case of State of Kerala Vs. K.G. Madhavan Pillai. [3] According to this case, the respondent had been given a sanction to open a non-aided school as well to upgrade the remaining ones by the government. However after fifteen days the sanction direct was stand suspended. The court observed during the proceedings that, the initial sanction issued created a legitimate expectation in the respondents which was violated by the second order passed by violating the principles of natural justice.

TYPES OF LEGITIMATE EXPECTATIONS

There are two aspects of legitimate expectations-

(a) Procedural – The procedural aspect of this doctrine implies that, the expectation of an individual that he possesses a right to certain procedure for example right to a hearing which has arisen due to actions of public body. The procedural legitimate expectation was introduced by Lord Denning in the Schmidt case in particular to application of principle of natural justice in the process of administrative action and now it has been given a substantial value in India as well.

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(b) Substantive- The doctrine which has substantial aspect has not been emerged completely. Substantive legitimate expected implies that a situation where a person is seeking for the benefit which has arose from the legitimate expectations he had from certain public authority. Though the stance of legitimate expectation has been fluctuating. The English Court has observed the need for protecting the substantive legitimate expectation as well as in some cases the judgement having opposite effect.

WHO CAN ENFORCE THE DOCTRINE?

It was understood in the case of Ram Pravesh Singh and Ors. vs. State of Bihar and Ors [4] ,.that as the doctrine was formed on the basis of established practice, it was enforceable by some individual who has to deal with an authority in terms of any transactions or negotiations of that established practice. The person who has a legal relationship with decision making bodies can also invoke it. A total stranger who unconnected with the person or an authority cannot invoke the doctrine just merely because of the general obligation to act without any prejudices.

TERMS FOR FORMATION OF LEGITIMATE EXPECTATION

Madras City Wine Merchants v. State of Tamil Nadu [5]

There were circumstances put forth by this case to understand formation of legitimate expectation.

(a) if there was some kind of impression or commitment expressively by the authorizing body. R. v. Liverpool Taxi Fleet Association [6] The word legitimate expectation was not mentioned in the judgement. In this case, the no. of taxis were reduced in Liverpool concerning about this issue the taxicab owners’ associations received letters from the town-clerks stating that there would be opportunities for the taxicab owners to represent as well as that “interested parties would be fully consulted.” The subcommittee of the city council also indicated the increase in number of licenses. But after the city council’s meetings it was decided on the contrary that there would not be any increase in the number until national legislation. This was approved in a instrument (letter of association)Nevertheless, several months later, without informing the association, the committee and the city council decided to begin increasing the number of licenses almost immediately. But after many months later the city council and the committee decided to increase the number of licenses on the immediate basis without notifying the association. The owners demanded a hearing after hearing about this resolution but was denied. In this case Lord Denning observed that supposedly the decision is made on the contrary, the plaintiff would be provided with a right of second hearing. He expressed that- “….So long as the performance of the undertaking is compatible with their public duty, they must honour it. And I should have thought that this undertaking was so compatible. At any rate they ought not to depart from it except after the most serious consideration and hearing what the other party has to say: and then only if they are satisfied that the overriding public interest requires it…..” [7]

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(b) That the promise must not have double meaning or should not be dubious

(c) There is persistent practice of the act in the past so the individual has expectations to operate in the same way In the case of CCSU [8], there was a pattern of consistent consultation before the change of service which happen, it led to formation of legitimate expectation. They should have been brought into the loop of discussion before the minister abolished the membership of trade union.

SITUATIONS WHERE THE DOCTRINE OF LEGITIMATE EXPECTATION CANNOT BE MAINTAINED

Every doctrine has its limitation even this doctrine is no exception to it i.e. it has a procedural impact but no substantive impact as such. In the case, it was seen that there was a Magistrate who was working on stipends and was incharge Court which dealt with petty sessions was suddenly replaced by a local court on the directions of the Act of Legislature but the Magistrate was not given any place in that new Court which was formed. The plea was filed pertaining to challenge such action but was dismissed on the grounds that if the substantive protection is provided according to legitimate expectation then it would result in obstruction in process of administrative action on merits which is not permitted. [9] According to the case of Assistant Excise Commissioner v. Issac Peter [10] this doctrine cannot be invoked to revise the terms of statutory contract. However in Howrah Municipal Corporation v. Ganges Road Company Ltd [11]  held that no right could be claimed on the grounds of legitimate expectations when it stands contrary to statutory provisions which has been applied in the interest of public at large Madras City Wine Merchants Association v. State of Tamil Nadu [12] , The doctrine of legitimate expects stands ineffective if there has been change observed in public policy or in the interest of public at large has been enunciated in some of the instances discussed above.

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INTERRELATION BETWEEN LEGITIMATE EXPECTATION AND ARTICLE 14 OF THE CONSTITUTION OF INDIA

Every citizen has the right to equality and equal protection before law which is guaranteed under Article 14 of The Constitution of India. The apprehension of arbitrary action resulting into violation of the Article 14 was observed for the first time in the case of E.P. Royappa v State of Tamil Nadu [13]  by J Bhagwati wherein he established the opinion that equality is antithetic to arbitrariness. Article 14 has an extensive scope and incorporates equality, postulates of natural justice and is an obligation against arbitrariness of the state which in turn creates an duty on the the state to act without any prejudices. A good governance could be achieved in correspondence with Article 14, it is observed that there is certain kind of legitimate expectation which arises by which an individual likes to be treated impartially with its action between the state and the individuality. Law could be classified as any ordinance, order, regulations,etc. The provisions of Article 13(2) implies that any laws which are made on the purpose of infringing any other provision of the constitution would be considered as void. Thus, any arbitrariness, inconsistency or irrationality created in the application of principles of natural justice is void. Article 14 advances the principles of natural justice which indeed include right to hearing. It could be advocated that doctrine of legitimate expectations had built foundation the Constitution, they have similar application in Germany. But, the Supreme Court had an ambiguous application which led to making the doctrine seems irrelevant without understanding the importance as well as impact of the doctrine.

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CONCLUSION

The need for applicability of this doctrine arises when public authority’s action has given rise to expectation by either past representation or by past practices, he shall not be deprived unless there is overriding public interest is in a way. However when an individual has to invoke the doctrine has to prove that he has relied on the authorities and was rejected which in turn worked as detriment. The court however could intervene if found any arbitrary or irrational decision which violates the principle of natural justice and not taken for the sake of public at large. The Doctrine of legitimate expectations has different application in India as well as Britain as this doctrine has been followed in both the countries. Procedural aspect is followed in Britain while both procedural and substantive has been followed in India. So it has been observed that India’s ambit of application is wider than Britain and also works as effective tool against misuse of power by the executives.

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[1] [1969]1 All E.R. 904

[2] (1971) 1 ALL ER 1148

[3] (1988) 4 SCC 669

[4] (2006 (8) SCJ 721)

[5] (1994) 5 SCC 509

[6] CA 1972

[7] Regina v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators Association, 1972, 2 Q.B. 299 C.A.

[8] Council of Civil Service Unions and Others v. Minister for the Civil Service, (1985) AC 374

[9] Attorney General for New South Wales v. Quinn, (1990) 64 Aust LJR 327

[10] 1994 SCC (4) 104

[11] (2004) 1 SCC 663.

[12] (1994) 5 SCC 509

[13] E.P. Royappa v State of Tamil Nadu, 1974 SCR (2) 348

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