The law can be classified into two broad categories: private law and public law. The domain of private law is the interplay of legal concepts between legal personalities inter se, whereas the domain of public law is the interplay of law between legal personalities and various branches of The State. As per Black’s law dictionary public law is “That part of law which governs relations between legal persons and a government, between different institutions of the government, as well as relationships between persons that are of direct concerns of the society”.
Administrative law is a branch of public law. As per I.P. Massey1 Administrative law is the branch of public law that deals with the organisation and powers of Administrative and quasi-administrative agencies and prescribes principles and rules by which official action is reached and reviewed in relation to individual liberty and freedom.
The enforcement of any legal right depends upon their enforceability being assured by any statute for the time being in force, irrespective of whether it is a civil right assured by private law or a public right as guaranteed by public law. Moreover, in order to enforce any right through courts one must establish jurisdiction of the court and the locus standi of aggrieved at the very outset. The doctrine of legitimate expectation comes into the picture when the remedy against an administrative action can be claimed as a legal right, though not backed by any law for the time being in force, as a legitimate expectation on the part of the aggrieved. Legitimate expectation is not on the same footing as a “right” but is not a condition that can be said as of “no right”, but it is a desire or hope which is founded on law, custom, or established practice that is followed by administrative authorities in regular and natural practice. That has been correctly worded as
When you have a ‘legitimate expectation’ that a public body will exercise its discretion in some way, you may be entitled to the law’s protection if that ‘expectation’ is disappointed. This is the heart of what is known in administrative law as the doctrine of legitimate expectations.2
As per Halsbury’s laws of England3
“A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise from a representation or promise made by the authority including an Implied representation or from consistent past practice.“
In the case of Confederation of Ex-Servicemen Assns. v. Union of India4, a constitutional bench held that
The doctrine of ‘legitimate expectation’ is a ‘latest recruit’ to a long list of concepts fashioned by Courts for review of administrative actions. No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to ‘judicial review’. Under the said doctrine, a person may have a reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such a situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have a justifiable grievance in the light of the fact of continuous receipt of the benefit, the legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout
Although the word is not to be confused with that it serves each and every expectation that seems reasonable to a person, there should be any justifiable reason for expecting some specific action. As explained by the Supreme Court in the case of Union of India v. Hindustan Development Corporation5
“Time is a three-fold present: the present as we experience it, the past as a present memory and the future as a present expectation. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in a regular and natural sequence. Again, it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”
The phrase “legitimate expectation” was devised by Lord Denning in the case of Schmidt v. Secretary of State for Home Affairs6 wherein the landing permits of the plaintiffs were revoked pending the request for an extension of the permit. Plaintiffs contended that this decision of the secretary was an abuse of his discretionary powers. Although this contention was rejected by the court the decision of the secretary was upheld by the court on the grounds that plaintiffs have no right or interest or legitimate expectation. In the case, it was propounded that there is a legitimate expectation of procedural protection depriving such an interested person of his expectation will give him the right to enforce it through courts.
Attorney-General of Hong Kong v. Ng Tuen Shiu7, Ng was an illegal immigrant. The government announced a policy of repatriation of such persons and stated that each would be interviewed and each case treated on its merits. Ng. was interviewed and as an outcome of that, his removal was ordered. He complained that at the interview he was allowed to explain the grounds on which he might be allowed to stay, alleging that he was not provided a fair hearing. The judicial committee agreed that, on that narrow point, the government’s promise had not been implemented, his case had not been considered on its merits, and the removal order was quashed. Ng succeeded on the basis that he had a legitimate expectation that he would be allowed to put his case, arising out of the government’s promise that everyone affected would be allowed to do so.
In R v. Brent London Borough Council, exp Gunning8, the legality of a decision to close schools was challenged by a group of parents, it was asserted in the court that
The parents had no statutory right to be consulted, but that they had a legitimate expectation that they would be consulted seems to me to be beyond question. The interest of parents in the educational arrangements in the area in which they live is self-evident… Local education authorities are exhorted by the Secretary of State to consult and the results of the consultations are something which takes into account (in deciding whether to agree to closures). On any test of legitimate expectation, it seems to me that these parents qualify.
Often the advent of the doctrine of legitimate expectation is traced back to Vertrauenschutz, which is a French legal principle that endows that the legal system should protect a citizen’s trust, particularly in case of Administrative law Beneficial administrative actions can only be revoked in the future or if the citizen is not worthy of protection.
Indian supreme court applied the doctrine of legitimate expectation in the case of the State Of Kerala And Ors v. K.G. Madhavan Pillai9 where a sanction was granted to open and upgrade a school however, after 15 days through an order the sanction was abated. The court held that the grant of order induced a legitimate expectation that he was permitted to do so, which was diluted by the second order being passed without following the principles of natural justice, thus doctrine of legitimate expectation can be invoked to satisfy the want of locus standi.
The doctrine of legitimate expectation can be segregated into two parts: procedural Legitimate expectation and other is substantive Legitimate expectation. When a person is expecting that a fair procedure shall be afforded prior to an important administrative action then such expectation is a case of procedural legitimate expectation, whereas, when a person is expecting or in possession of any benefit then such benefit will continue and will not be substantially varied.
In a very recent case, the Supreme Court heard an appeal that claims to set aside the order of the high court that upheld the changes in the job terms by a private body. The respondents contended that the action of the private body was against the the spirit of doctrine of legitimate expectation, rejecting the contentions raised by the respondents Supreme Courts explained the doctrine in the following words10
…following features regarding the doctrine of legitimate expectation:
- First, legitimate expectation must be based on a right as opposed to a mere hope, wish or anticipation;
- Secondly, legitimate expectation must arise either from an express or implied promise; or a consistent past practice or custom followed by an authority in its dealings;
- Thirdly, an expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be treated as a legitimate expectation;
- Fourthly, legitimate expectation operates in relation to both substantive and procedural matters;
- Fifthly, legitimate expectation operates in the realm of public law, that is, a plea of legitimate action can be taken only when a public authority breaches a promise or deviates from consistent past practice, without any reasonable basis.
- Sixthly, a plea of legitimate expectation based on past practice can only be taken by someone who has dealings, or negotiations with a public authority. It cannot be invoked by a total stranger to the authority merely on the ground that the authority has a duty to act fairly generally.
The genesis of the doctrine of Legitimate Expectation can be traced back to Article 14 of The Constitution of India as it is a well-settled principle that while differentiating valid any state-driven class action from others the former should check the touchstone of principles that.
(i) that the classification must be founded on an intelligible differentia, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question
Thus any action of authority having a civil consequence over its subjects which seems to be arbitrary can be challenged on the grounds of violation of the fundamental right of equality and the latter will provide even more firm locus standi to knock on the doors of courts. However, in cases where it is expedient to vindicate an expectation that is expected from established practice which is regular, consistent, predictable and certain conduct, process and custom of an administrative authority, and no remedy flows from any statute then doctrine of legitimate expectation can be a reliable recourse.
- I.P. Massey, Administrative Law 04(10h ed, 2022) ↩︎
- Adam Perry & Ahmed Farrah, The Coherence of the Doctrine of Legitimate Expectations (October 1, 2013). Cambridge Law Journal, 2014, vol. 73, 61-85 ↩︎
- Halsbury’s Laws of England Vol. I (1) 4th Edition para 81 on pages 151-152. ↩︎
- Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC 399 ↩︎
- Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 ↩︎
- Schmidt v Secretary of State for Home Affairs, (1969) 2 .Ch. 149. ↩︎
- ATTORNEY-GENERAL OF HONG KONG v NG YUEN SHIU, [1983] 2 AC 629 ↩︎
- R v. Brent London Borough Council, [1995] AC 55 ↩︎
- State Of Kerala And Ors v. K.G. Madhavan Pillai, 1989 AIR 49 ↩︎
- Army Welfare Education Society v. Sunil Kumar Sharma, 2024 SCC OnLine SC 1683 ↩︎
