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?
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