How a Policy Becomes Enforceable

In one line

An Indian court will not enforce a policy as such, but it will require an authority to consider it, to follow it unless it gives reasons, and in some cases it will adopt the policy itself as the standard by which the authority's decision is judged.

In the wording a student can write in an exam: a policy acquires legal effect through four routes: as a relevant consideration, so that a decision taken without regard to it is bad; through legitimate expectation, so that a departure from a settled policy requires reasons; by incorporation into a statutory instrument or a condition, after which it is enforceable as part of that instrument; and by judicial adoption, where a court treats the policy as the standard against which the exercise of a statutory power is measured.

Route one: a relevant consideration

The oldest and the simplest.

An authority exercising a statutory discretion must take into account the considerations the statute makes relevant, and must not take into account irrelevant ones. A published national policy on the subject matter of the discretion is plainly relevant, so a decision taken in ignorance of it, or without any reference to it, is open to challenge on the ordinary administrative law ground.

What this route does not give. It does not require the authority to follow the policy. It requires the authority to have it in mind. A decision that considers a policy and departs from it for stated reasons survives this challenge.

Route two: legitimate expectation

Where a public authority has announced a policy, or has consistently followed a practice, a person affected may have a legitimate expectation that the policy will be applied to them, or at least that they will be heard before it is departed from.

Its limits are important and a candidate should state them. A legitimate expectation is defeated by an overriding public interest; it cannot be pleaded against a statute; and in Indian law it more often yields a right to be heard and to reasons than a right to the substantive benefit expected.

Where it matters on this syllabus. A person who has invested on the strength of an announced incentive, or a community that has arranged its use of a resource on the strength of an announced management policy, is the paradigm case.

Route three: incorporation

The most effective route, and the least discussed.

A policy that is written into a binding instrument stops being a policy. Three common forms.

A condition in a clearance. An environmental clearance is granted subject to conditions, and a condition drawn from a policy is enforceable as a condition. Breach makes the clearance liable to be revoked.