Monday, February 29, 2016

The Fictitious Doctrine of Substantive Legitimate Expectations

(Guest Post by Chintan Chandrachud)

The doctrine of substantive legitimate expectations is a fairly new addition to the ‘armoury of courts in ensuring that discretions are exercised fairly’. It enables litigants, even in the absence of a legal right, to hold the government to its promise, policy or established practice. In contrast with its procedural variant (which requires the government to comply with rules of natural justice), substantive legitimate expectations are controversial because they encompass situations in which the applicant seeks a particular substantive benefit or commodity. Over the last two decades, the Supreme Court has consistently remarked that the doctrine forms ‘part of our law’. These remarks suggest that the doctrine - giving rise to ‘crucial and difficult’ questions elsewhere - forms part of constitutional orthodoxy in New Delhi.

However, an entirely different picture emerges once we move beyond the rhetoric and examine the Supreme Court’s legitimate expectations docket more closely. It turns out that substantive legitimate expectations is a fictitious doctrine - not in the sense that these observations are imaginary, but because the doctrine has evolved in a way that makes it almost impossible for a claim to succeed. This can be demonstrated by (a) establishing the Court’s resistance to recognizing the emergence of a substantive legitimate expectation in specific cases in which it is claimed (b) disclosing the broad set of grounds based on which the Court is willing to dislodge a legitimate expectation and (c) analysing the deferential standards of judicial review applied to these grounds.

From amongst its earliest cases considering the doctrine, the Court has demonstrated reluctance to recognize the emergence of a substantive legitimate expectation. It has frequently observed that a legitimate expectation cannot be equated with a ‘mere anticipation’. That, of course, begs the question of what the expression ‘mere anticipation’ is being used in contrast with. The answer in early cases was law, custom or established procedure. Subsequent judgments, however, interpreted the ‘mere anticipation’ rule less innocuously. Mere anticipation was used in contrast with a ‘legal right’. If, in the Court’s perception of the universe of claims, there are only two kinds – anticipations and legal rights – then that would deprive the doctrine of substantive legitimate expectations of its utility.

Another feature of the case law is that in highlighting the limits of the doctrine, the Court has frequently referred to the High Court of Australia’s judgment in Attorney General for New South Wales v Quin. The Quin case - in which the High Court issued words of caution about, and categorically rejected, the doctrine - is an unlikely mascot for a jurisdiction that scholars believe has eagerly embraced the notion of substantive legitimate expectations. In Umadevi, the Supreme Court altogether excluded the application of the doctrine in all public employment cases.

The Court has also broadened the set of grounds based on which a substantive legitimate expectation can be dislodged. Initially, public interest was the only basis on which a state authority could dislodge a substantive legitimate expectation. However, as the case law developed, the Court began applying ‘public interest’ and ‘good faith’ as disjunctive requirements, with proof of either defeating a substantive legitimate expectations claim. Putatively, this means that decisions taken in bad faith but in the public interest, or good faith decisions that are either neutral as to the public interest or even detrimental to the public interest, would dislodge substantive legitimate expectation claims.

Once the state authority has put forward a ground for dislodging a substantive legitimate expectation, the decisive question becomes what standards of review the court should apply in determining whether the authority has successfully established its defense. The answer offered by the Supreme Court’s judgment in Punjab Communications was that Wednesbury unreasonableness, rather than proportionality, would apply. Wednesbury unreasonableness comes in many variants, but the Court has persisted in applying the most deferential amongst them. Although the Court foreshadowed a move towards proportionality review in recent cases considering substantive legitimate expectation claims, we should be cautious about whether a formal move towards proportionality review would dramatically alter the landscape. In its other case law, the Court has often applied Wednesbury review under the garb of proportionality. 

The numbers confirm what the doctrine insinuates. Of the thirty four Supreme Court cases (between 1992 and 2012) that I examined in which the Court considered the doctrine in any detail, in not a single case did the Court vindicate a substantive legitimate expectation. Some of these cases, which at first glance look like substantive legitimate expectations claims - are in fact either claims of procedural protection of substantive legitimate expectations (see Navjyoti Housing Society) or straightforward cases of illegality (see Southern Petrochemicals). Thus, while the Court has enthusiastically embraced the taxonomy of substantive legitimate expectations, a closer examination of the Court’s case law suggests that the doctrine remains fictitious.

Chintan Chandrachud is a PhD Candidate at the Faculty of Law, University of Cambridge. His chapter entitled ‘The (Fictitious) Doctrine of Substantive Legitimate Expectations in India’ is forthcoming in M Groves & G Weeks (eds), Legitimate Expectations in the Common Law World (Hart, 2016).
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