The Doctrine of Legitimate Expectation
Chapter Eighty-Nine
Syllabus topic 5, "Procedural fairness"
Pages 266 to 268 of 430
In one line
If a public authority has promised something or has always done something, a person may expect it to go on, and the law protects that expectation even where he has no right.
In the wording a student can write in an exam: legitimate expectation is an expectation of a benefit, a privilege or a procedure, arising from an express promise held out by a public authority or from an established practice which the person could reasonably expect to continue; it does not amount to a legal right, but it entitles the person to be heard before the expectation is defeated and, in a proper case, to have the substance of the expectation honoured unless a larger public interest requires otherwise.
MU's question
This is set on six of the eight papers, more than any other item in Module III, and on the most recent paper as a whole question asking for an analysis of the doctrine as part of procedural fairness. So the answer needs the definition, the two kinds, the sources, the Indian cases and the limits.
Why the doctrine exists
Because the ordinary categories were too crude. A person either had a right, in which case he could sue, or he had nothing, in which case the administration could do as it liked. Between the two lies a large field: a licence renewed for twenty years, a policy published and relied on, a practice of consultation followed for decades. In none of those does the person have a right. In all of them he has something, and the doctrine is the name of that something.
The two kinds
Procedural legitimate expectation. An expectation of being consulted, or heard, before a decision is taken. This is the older and less controversial kind, and it fits naturally into this module.
Substantive legitimate expectation. An expectation of the benefit itself, so that the authority must either give it or justify not giving it. This is the more difficult kind, and Indian law accepts it in a limited form.
Where it comes from
Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], is the case that put it on the map. Lord Fraser said that even where a person claiming a benefit or privilege has no legal right to it as a matter of private law, he may have a legitimate expectation of receiving it, and the courts will protect his expectation by judicial review as a matter of public law. On the facts the unions would have had a legitimate expectation that the minister would consult them before issuing the instruction, but national security displaced it.
The Doctrine of Legitimate Expectation
The sources of an expectation
An express promise or representation by the authority, made to the person or to a class.
A published policy, which is the commonest source in India.
A regular practice which the person could reasonably expect to continue.
A statutory scheme which, without conferring a right, holds out a benefit.
What the doctrine gives
A hearing, at least. Before the expectation is defeated, the person is entitled to be told and to make representations.
Reasons. Because an expectation cannot be defeated arbitrarily.
In a proper case, the benefit itself, unless the authority shows an overriding public interest.
What defeats it
A change of policy in the public interest, made bona fide.
An overriding public interest in the particular case.
The absence of a clear and unambiguous representation.
Illegality. No expectation can be founded on a promise the authority had no power to make.
A worked example
A State has for fifteen years renewed the licences of private ferry operators as a matter of course, on an application filed a month before expiry, and has published a policy saying that renewals will be granted to operators with a clean record. It then decides to run the ferries departmentally and refuses all renewals without notice.
The operators have no right to renewal: a licence is a privilege and each renewal is a fresh decision. They plainly have a legitimate expectation, founded on both the published policy and the fifteen-year practice. At the least they were entitled to notice and an opportunity to make representations before the change, and to reasons. Whether they were entitled to the renewals themselves depends on whether the change of policy was bona fide and in the public interest, which a decision to run an essential service departmentally usually is. So the likely outcome is that the refusals are quashed for want of a hearing and the State is free to decide again, properly.
What the doctrine is NOT
It is not a right. Union of India v. Hindustan Development Corporation, AIR 1994 SC 988, says that such an expectation does not by itself fructify into a right.
It is not the same as promissory estoppel. Estoppel is founded on a promise acted upon to the promisee's detriment and operates in private law as well; legitimate expectation is a public law doctrine founded on fairness in government dealing, and needs no detriment.
It is not a bar to a change of policy. It requires the change to be made fairly and for a reason.
It is not available where the expectation is unlawful.
Quick revision
An expectation of a benefit or of a procedure, arising from an express promise, a published policy, a regular practice or a statutory scheme. Two kinds: procedural, which gives a hearing, and substantive, which may give the benefit. The GCHQ case put it on the map and shows it yielding to national security. It gives a hearing, reasons, and in a proper case the benefit. It is defeated by a bona fide change of policy, by an overriding public interest, by the absence of a clear representation, and by illegality. It is not a right and is not promissory estoppel.
The Doctrine of Legitimate Expectation
Test yourself
1. Define legitimate expectation. An expectation of a benefit, privilege or procedure arising from an express promise of a public authority or from an established practice, which the law protects although the person has no legal right to it.
2. What does the procedural kind give? An opportunity to be heard, and reasons, before the expectation is defeated.
3. How does it differ from promissory estoppel? Estoppel requires a promise acted upon to the promisee's detriment and operates in private law too; legitimate expectation is a public law doctrine resting on fairness in government dealing and requires no detriment.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.