Saturday, May 15, 2010

Legitimate Expectations

Shamnad's last post briefly mentioned 'legitimate expectations', an important area of administrative law that does tends not to get much attention in Indian academic writing.

I think the ruling precedent in this regard is still Punjab Communications Ltd vs Union Of India (1999), where the Supreme Court held that:

477. the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way.

The Court cited British precedents (especially Hargreaves) to suggest that whether a legitimate expectation can be legally frustrated on public interest grounds can only be judged by the very deferential standards of wednesbury unreasonableness, and nor the more demanding proportionality test:

The result is that change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. ... It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court, The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made.

The law in Britain has moved on since Hargreaves. Recent cases such as Coughlan and Nadarajah seem to suggest that proportionality is indeed the correct standard of review in legitimate expectations cases, although doubts about the principled foundations of the doctrine continue. I am not very familiar with the developments in Indian law on legitimate expectations since Punjab Communications. Can any reader throw further light on the issue?

4 comments:

Techtalk said...

J.P.Bansal v State of Rajasthan, 2003(3) SCALE 154.

The principle of legitimate expectation is at the root of the rule of law and requires regularity, predictability and certainty in government’s dealings with the public. For a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either:

(i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rationale grounds for withdrawing it or where he has been given an opportunity to comment; or

(ii) he has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.

The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made than a benefit of substantive nature will be granted or if the person is already in receipt of the benefit than it will be continued and not be substantially varied, then the same could be enforced. An exception could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to an individual or to a class of persons”.

Shamnad Basheer said...

Thanks for raising this issue Tarunabh:

I guess the BCI is caught between the devil and the deep sea. If it tries for an exam in July, it will end up doing a shoddy and sub standard job. And make a mockery of the bar exam. And if it postpones the exam to December (with results due in February), it will have disadvantaged thousands of lawyers. Particularly those from small towns and rural areas) who may have been waiting to litigate from day one..and whose livelihood may be impacted. On your point of legitimate expectation, can these lawyers make such a claim i.e. that they expected to work and earn immediately, rather than wait for 8-10 months after graduating...

Which is why we requested that they defer this to next year--to apply to the next batch. Unfortunately, our representation was not heeded. Rather, they merely postponed the exam from July to December!

Shamnad Basheer said...

aa

Tarunabh Khaitan said...

thanks for your comments. bansal is interesting, but ( at least going by the bit quoted above), it does not add anything to punjab communications. substantive and procedural protection of legitimate expectations is long recognised, so is the public interest exception to substantive enforcement of a legitimate expectation. the question is whether the applicability of this public interest exception will be judged on the basis of wednesbury or proportionality. does bansal change the preference in punjab communications for the former?

shamnad, i think in this particular case, since the ministry already seems to have considered your letter, it is hard to make a case for procedural protection (you can hardly demand a fair hearing since it seems you already had it). so the question is one of substantive enforcement. the first issue is whether the final year students' expectations of qualifying without an exam is legitimate. it seems to me that based on past practice of a very very long time and the very short notice of the change, it would be legitimate. so, the decision will turn on whether there is adequate public interest to allow the government to frustrate that legitimate interest.

now, on a wednesbury standard of review, the courts will normally defer to the primary decision maker's take on the importance of the public interest involved. so, if punjab communications is still good law, the students are likely to lose.

if however, the court can be pursuaded to apply the proportionality standard, the court will judge various factors. factors in favour of students will include (1) the fact that the older policy had been in place for so long that continuing it for another year does not pose any urgent challenge to public interest (notice, that in a legitimate expectation claim, the challenge is not to the validity of the policy itself, but only to its applicability to the claimants), (2) many students will be able to show detrimental reliance (already contracted with firms, for example), (3) the nature of the interest affected, especially for poor students, is quite fundamental (livelihood).

factors in favour of the government position will be that (1) substantive protection is strongest for contract-like representations to an identified group and weakest for policy changes of general applicability, (2) that they are bound by the SC order (this argument will turn on the exact scope of the previous order, which, obviously, the court can choose to modify), (3) that quality of legal profession is of vital interest to the country and there is strong public interest in better qualified lawyers.

i think, on a proportionality analysis, final year students should win. hence the importance of the issue i raised in the main post.