CHAPTER VII CONCLUSIONS AND SUGGESTIONS

Transcription

1 387 CHAPTER VII CONCLUSIONS AND SUGGESTIONS 7.1 CONCLUSIONS The topic of the present thesis titled as "Doctrine of Legitimate Expectations in India: Emerging Trends" is divided into seven chapters including the present one, in order to analyze the whole topic. Every aspect has been analyzed in conformity with the existing legislations and case laws. After discussing the topic chapter wise, we reach to the conclusion that the doctrine has an important place in the development of law of judicial review. It is the latest recruitment to a long list of concept fashioned by the court for the review of administrative actions. The doctrine of legitimate expectation has been developed both in the context of natural justice and reasonableness. 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 doctrine of legitimate expectation imposes a duty to act fairly. Where a decision of an administrative authority adversely affects legal right of an individual, duty to act judicially is implicit. But even in cases where there is no legal right, he may still have legitimate expectation of receiving the benefit or privilege. The court may protect his expectation by invoking the doctrines of natural justice and fair play in an action. The court may not insist on an administrative authority to act judicially but may still insist him to act fairly. Thus nowadays the doctrine of legitimate expectation has come to plays an important role in the field of law. The conclusions of this analytical study of "Doctrine of

2 388 Legitimate Expectations In India: Emerging Trends" are summarized here chapter wise and some suggestions are offered then. I The doctrine of legitimate expectations, as, it is currently interpreted in constitutional and administrative law has two roots historically, namely; the concept of the protection of interests and the doctrine of consistency and certainty of actions. The constituent requirements for fulfillment of the doctrine of legitimate expectations in the case of the various executive acts can be traced back to these two roots. The doctrine of legitimate expectation belongs to the domain of public law and is intended to give relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term, though they have suffered or may suffer civil consequence because their legitimate expectation have been dashed or may be dashed. There is a well known maxim i.e. ubi jus ibi remedium which means that where there is a right, there must be a remedy. In other words, the right to a meaningful remedy is a right protected by the Law. For it, there is a settled and invariable doctrine in the laws of England, that every right, when withheld, must have remedy and every injury, its proper redress. The historical presence of the right to a remedy, is found in almost three fourths of the constitutions of the countries in the world, which contain express remedial guarantees. Furthermore, even assuming that the right to a remedy has not been historically recognized, it is a fundamental right that should be newly identified. Remedies perform two critical functions in the law i.e. they define abstract right and enforce otherwise intangible rights. Rights standing alone are simply expressions of social values. It is the remedy that defines the right by making the value real and tangible by providing specificity and

3 389 concreteness to otherwise abstract guarantees. Without remedies, rights are mere ideals, promises or pronouncements that may or may not be followed. A remedy is thus the integral part of each right that is ultimately necessary to the effectuation of the rule of law. For, without a remedy, judicial decisions are merely advisory opinions 1. There are well known maxims under the law of torts to impose tortious liability i.e. Damnum sine injuria and injuria sine Damnum. Damnum sine injuria means damage without injury. Damnum sine injuria is not actionable perse and the plaintiff has to prove the injury in the eyes of law. Injuria Sine Damnum means injury without actual loss or damage. Injuria sine damnum is actionable perse and plaintiff need not to prove any thing. In other words, a person can claim remedy from the court only when the legal injury has been caused. The injury becomes legal, when there is a violation of legal right. But, there can be circumstances when some one suffers civil wrong but he is not able to justify his claim on the basis of law in the strict sense of the term. At this juncture, the doctrine of legitimate expectation can be invoked to get remedy from the court. Generally judicial review of any administrative action can be exercised on four grounds viz. illegality, irrationality, procedural inpropriety and proportionality. The doctrine of legitimate expectation is a new concept recruited to a long list of grounds of judicial review of administrative actions. The concept has been created by the judiciary. The doctrine of legitimate expectation belongs to the domain of public law and is intended to give relief to the people, when they are not able to justify their claims on the basis of law in the strict sense of the term though they had suffered a civil consequence because their legitimate expectation had 1 For more detail, see Chapter-I

4 390 been violated. The term 'legitimate expectation' was first used by Lord Denning MR in In India, the Supreme Court has developed this doctrine in order to check the arbitrary exercise of power of the administrative authorities. The Word "Legitimate Expectation" is not defined by any law for, the time being in force. Yet, it is another doctrine fashioned by the court to review the administrative action. The concept of legitimate expectation in administrative law has now gained sufficient importance. This creation takes its place beside such doctrines as the doctrine of natural justice, unreasonableness, the judicial duty of local authorities and in future perhaps, the doctrine of proportionality 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 2. Life of every individual is greatly influenced by the administrative process. In the actions of a Welfare State, the constitutional mandates occupy predominant position even in administrative matters. It operates in public domain and in appropriate cases constitutes substantive and enforceable interest. The term legitimate expectation pertains to the field of public law. It envisages grant of relief to a person when he is not able to justify his claim on the basis of law in true sense of term, although, he may have suffered an evil consequence. It does not create any legal right as such. The concept of legitimate expectation is being used by the courts 2 For more detail, see Chapter-I

5 391 for judicial review and it applies the ethics of fairness and reasonableness to the situation, where a person has an expectation or interest in a public body retaining a longstanding practice or keeping a promise. Basically, the courts have emphasized that legitimate expectation as such is not an enforceable right. However, non consideration of legitimate expectation of a person adversely affected by a decision, may invalidate the decision on the ground of arbitrariness. Basically, the plea of legitimate expectation relates to procedural fairness in decision-making and forms part of rule of non-arbitrariness; and it does not confer an independent right enforceable itself. The doctrine of legitimate expectation is not applicable in relation to a dispute arising out of a contract qua contract. Furthermore, this doctrine cannot be invoked to modify or vary the express terms of a contract, more so, when they are statutory in nature. This legal order in the Administrative Law has emerged in India in the middle of 20 th century. The role of judiciary in India in checking the growing abuse of administrative powers and in this process, role of judiciary in Europe and United Kingdom in developing this doctrine is commendable. It reflects, how reasonable opportunity of being heard is given to the affected parties against administrative action, although, it does not create any legal right as such. In the words of Lord Denning M.R., "A man should keep his words. All the more so, when promise is not a bare promise but is made with the intention that the other party should act upon it" Legitimate expectation applies the doctrines of fairness and reasonableness to a situation where a person has an expectation or interest in a public body or private parties retaining a long-standing practice or keeping a promise.

6 392 The doctrine of legitimate expectation pertains to the field of public law. It protects an individual from an arbitrary exercise of administrative action by the public body, although, it does not confer a legal right on the claiming individual. The term legitimate expectation has developed into a significant doctrine all over the world. As per this doctrine, the public authority can be made accountable on the ground of an expectation which is legitimate 3. The doctrine of legitimate expectation is concerned with the relationship between administrative authority and the individual. An expectation can be said to be legitimate in case where the decision of the administrative authority affects 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 until some rational grounds for withdrawing it are communicated to such an individual or party and the affected person/party has been given an opportunity of hearing, or (ii) the affected person has received assurance from the concerned administrative authority that it will not be withdrawn without giving him first an opportunity of advancing reason for contending that they should not be withdrawn by the administrative authority. The doctrine means that expectations which are raised as a result of administrative conduct of a public body may have legal consequences. Either, the administration must respect those expectations or provide reasons as to why the public interest must take priority over legitimate expectation. Therefore, the doctrine concerns the degree to which an individual's expectations may be safeguarded in the light of a changed policy which tends to undermine 3 For more detail, see Chapter-I

7 393 them. The role of the court is to determine the extent to which the individual's expectation can be protected with the changing objective of the policy. In short, the doctrine of legitimate expectation imposes a duty on government to act fairly, more so, as the Government have to discharge its duty as a welfare state in consonance with the directive Principles of State Policy of the Constitution. It has been said that power i.e. judicial or executive, has a tendency to expand its parameter by stretching its limits. The doctrine of legitimate expectation owes its birth to screen this urge of expansionism. It is, in fact, a legal curiosity and gives sufficient locus-standi for Judicial review. Thus, it is a doctrine of Check and Balance 4. But, inspite of its expanding dimensions about its parameter and characteristic continue to be undefined. The legitimacy of legitimate expectation is directly linked with the issues of fairness of the Public Body's decision to thwart the expectation and abuse of power invoked, if any. Some of the factors, which relate specifically to the question of Legitimacy are, legitimacy in an expectation that a public body will not breach its statutory duty. Representation made must be by actual or ostensible authority and fact, specific exercise be conducted in respect of purely subjective adjudication. Unwieldy attempt to thwart claim of legitimate expectation under the guise of overriding public interest must be weighed against the fairness of the interest. National security measures and those of natural Justice provide a separate basis for requiring some form of consultation prior to the making of an adverse decision and government, while formulating and reformulating policy must consider constitutional doctrines vis-a-vis legitimate expectation. 4 For more detail, see Chapter-I

8 394 In short, the concept of legitimate expectation vis-a-vis doctrine of legitimate expectation, which, it has come to be lately known, has been recognized as the basis for judicial review of administrative actions. Legitimate expectations may be based upon some express statements, or undertaking by or on behalf of the public authority which has the duty of making the decision or from the existence of a regular practice which the claimant can reasonably expect to continue. The concept of legitimate expectation has made the area of applicability of Natural Justice much broader. This doctrine imposes a duty on public body/administrative authority to afford an opportunity of hearing to an affected party if the government or public body or public authority has acted arbitrarily in violation of their legitimate expectation. Thus, the affected party may get a chance of being heard by getting such administrative decision set aside through the writ of Mandamus or Certiorari. In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the doctrines of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise 5. In procedural terms, a person is entitled to a fair hearing before a decision is taken, if he or she has a legitimate expectation of being heard. But the fact that a person is entitled to make representations does not, by itself, constrain public bodies which, subject to a duty not to abuse their power, are entitled to change their policies to reflect changed circumstances, even though, this may involve reneging on previous undertakings. If there is a substantive limitation, on this right to make changes, it lies in a test of fairness, where the public bodies are liable in 5 For more detail, see Chapter-I

9 395 action similar to a breach of contract or there have been representations that might have supported an estoppel and so caused legitimate expectations to arise. It is, of course, difficult to prove such a legitimate expectation unless fairly specific representations as to policies affecting future conduct have been made. The form of generalised understandings that ordinary citizens might have, will not be sufficient for this purpose. And, even if, there are legitimate expectations, there is no absolute right to have those expectations met. Fairness may require no more than a hearing or consultation before any change is finally decided and if the citizen's expectation is real, the courts might require the public body to identify an overriding public interest to trump the particular expectation. The idea of legitimate expectation has received sufficient mention both academically and in case law, so as to effectively merit being referred to, as the doctrine of legitimate expectation. Legitimate expectation has been said to be a new category of fairness, stating ' the categories of unfairness are not closed, and precedent should act as a guide, not a cage. Thus the doctrine idea behind it, is that once a public authority makes a promise, it effectively amounts to a contract and to go back upon it is thus a breach and unfair for a public authority to do so, with legitimate expectation thus being the public law equivalent to the doctrine of estoppel. The doctrine of legitimate expectation based on established practice as contrasted from legitimate expectation based on a promise, can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger, unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the

10 396 authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly. The doctrine of legitimate expectation has an important place in developing the law of judicial review. It has taken a concrete shape in the law of equitable or promissory estoppel, which is not based on any statute, but on court judgments given by the higher judiciary. In the early days of this doctrine, it was held in a series of court judgments that promissory estoppel applies in the case of the exercise of executive power by the government 6. In other words, the protection of 'legitimate expectation' does not require the fulfilment of such expectation where an overriding public interest requires otherwise. That is to say, the public interest is overriding. If public interest is not involved, the doctrine of legitimate expectation has its full sway. However, it must be proved that a legitimate authority made a promise, which was acted upon and substantial investment or expenditure was made. Another substantial point is that public interest is not justiceable. The expectations that individuals may have are various. However, legitimate expectations may broadly be divided in two types. Procedural legitimate expectation presupposes the existence of some previous interest which the applicant claims to possess as a result of actions by the public body that generates the expectation. The Courts have accepted that procedural protection should be given, where an individual has a legitimate expectation of procedural protection, such as, a hearing or of a consultation before a decision is made. Fairness means that the expectation of a hearing or other procedural protection be fulfilled. It is also accepted that where an individual has a legitimate 6 For more detail, see Chapter-I

11 397 expectation that a benefit of a substantive nature will be granted, or if already in receipt of the benefit, that it will be continued, then fairness too dictates that expectation of the benefit should give the individual the entitlement, to be permitted to argue for its fulfillment. In this situation, the decision maker merely has to hear what the individual has to say but does not have to give substantive benefit. What has been the subject of some controversy is whether or not a legitimate expectation can give rise to substantive protection Substantive legitimate expectation refers to the situation in which the applicant seeks a picky benefit or product. The claim to such a benefit will be founded upon governmental action, which is said to validate the existence of the relevant expectation. Many legal luminaries believe that the substantive legitimate expectations would not only generate sprite in public administration but reliance and trust of the citizens in government in so far as doctrine of equality is concerned and will also uphold rule of law 7. The legal consequences of allowing a claim based on legitimate expectation in a situation, where the provision of regulation is otherwise depends on the court giving the judgment. If the claim is allowed in proceedings before an administrative court, it would amount review of the regulation as part of an appeal against a decision based on that regulation and the disputed regulation is declared to be not binding and deemed to be quashed. A declaration that a regulation is not binding is of legal relevance only in the case in which the judgment is given; it applies only between the parties to the action. In fact, this dictum has a more farreaching effect because it may be expected that other courts will come to the same decision in similar cases. Proceedings against legislation may 7 For more detail, see Chapter-I

12 398 also be instituted before the civil courts. If a civil court allows a claim based on the doctrine of legitimate expectation, it can choose between varieties of judgments. Expectations of a person can be conceived in various forms and degrees. Some of the common expressions expanding the horizon of the expectation are, apprehension, assumption, likelihood, supposition, belief, probability, employees/ employer's and parent / child expectations, Company's expectation to expand and make profit, a hard working efficient person's expectation of out of turn promotion and recognition etc. Legitimate expectations, are different from expectations at large, are not legal rights, but are expectation of benefits, relief/remedy that accrues from a promise or established practices, and give rise to locusstandi to a person to seek judicial review of any action, of State or its subsidiaries, which are arbitrary, discriminatory, unfair, malicious in law, devoid of rule of law and violative of the doctrines of natural justice. A case of legitimate expectation would arise when a body, by representation or by past practice, aroused expectation which would be within its power to fulfil. The protection is limited to that extent and the judicial review can be within those limits. A person, who bases his claim on the doctrine of legitimate expectation in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. Legitimate expectations may come in various forms and owe their existence to different kinds of circumstances e.g. cases of promotions which are in normal course expected, contracts, distribution of largess by the Government and somewhat similar situations i.e. discretionary grants of licences, permits or the like, carry with it a reasonable expectation though not a legal right to renewal or non - revocation, and to summarily

13 399 disappoint that expectation may be seen as unfair without the expectant person being heard. The court has to see, whether it was done as a policy or in the public interest. A decision denying a legitimate expectation based on such grounds does not qualify for interference unless in a given case the decision or action taken amounts to an abuse of power 8. Therefore, the limitation is extremely confined and if the rules of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority, which is empowered to take the decisions under law and the court is expected to apply an objective standard, which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Where a person's legitimate expectation is not fulfilled by taking a particular decision, then decision maker should justify the denial of such expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. Legitimate expectation being less than a right operates in the field of public and not private law and to some extent, such legitimate expectation ought to be protected, not guaranteed. There are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of doctrines of natural justice, the same can be questioned on the well known grounds attracting Article 14 of the Constitution of India but a claim based on mere legitimate 8 For more detail, see Chapter-I

14 400 expectation without anything more cannot 'ipso facto' give a right to invoke these doctrines 9. II The doctrine of legitimate expectation is intended to give relief to the people when they are not able to justify their claims on the basis of the violation of legal right in the strict sense of the term, though they had suffered a civil consequence because their legitimate expectation had been violated 10. The basic concept that it must be possible to rely on the statements of the counter party in legal matters applies not only in constitutional and administrative law but also in other fields of law, probably criminal law and private law. In other words, the doctrine of legitimate expectation in the world can probably be traced back the furthest in private law. For example, the decisive factor in the conclusion of a legal act in private law and the determination of the content of such an act has long been not only the will of the parties but also the legitimate expectations created by their act. It follows that the literature on the doctrine of legitimate expectations in constitutional and administrative law often refers to private law accounts of this doctrine. However, there is a difference in the operation of the doctrine in the two fields of law. In relation to civil law, individuals are in doctrine free to give promises and make contracts. An administrative authority does not automatically gain this freedom. The authority must, after all, exercise its powers in the public interest and in accordance with the applicable public law rules. This may mean that it is not always entitled to make promises about the exercise of a power and, moreover, 9 For more detail, see Chapter-I 10 For more detail, see Chapter-II

15 401 that the legitimate expectations created by a promise are overruled by other interests. The phrase procedural legitimate expectations denote the existence of some process right which the applicant claims to possess as the result of behaviour by the public body which generates the expectation. The phrase substantive legitimate expectations refer to the situation in which the applicant seeks a particular benefit or commodity, such as; a welfare benefit, or a licence. The claim to such a benefit will be founded upon governmental action which is said to justify the existence of the relevant expectation. Precisely which forms of public action can be used as the basis for such an expectation need to be assessed.the connected concepts of legal certainty and legitimate expectations are to be found in all the Member States of the common wealth, as well as in EC law itself. Although their precise legal content may vary from one system to another. One of the most important applications of legal certainty is in the context of rules or decisions that have an actual retroactive effect. Actual retroactivity effect covers the situation, where a rule is introduced and applied to even to that have already been concluded. Retroactivity of this nature may occur either where the date of entry into force precedes the date of publication; or where the regulation applies to circumstances which have actually been concluded before the entry into force of the measure. The arguments against allowing measures of this kind to have legal effect are simple and compelling. A basic object of the rule of law is that people should be able to plan their lives and secure in the knowledge of the legal consequences of their actions For more detail, see Chapter-II

16 402 A public body may have made a representation that it would exercise its discretion in a particular manner, which has been reasonably relied on by the individual. This representation may be said to generate a legitimate expectation that the power would indeed be exercised in this way. In this sense, the doctrine of legal certainty would indicate that the individual ought to be able to plan his or her action on that basis. There can, however, be a clash between the doctrine of legitimate expectation and the doctrine of legality. It is important to understand that the doctrine of legality has two different meanings in this context i.e. first, a public body may have made a representation within its power, but then seeks to depart from it, or it may have published policy criteria for dealing with a particular issue, which criteria were intra vires, but it might now wish to adopt new tests for dealing with the same topic, these new criteria also being lawful. The individual may seek to rely on the initial representation or original statement of policy. A traditional objection to the individual being able to do so is that this would be a fetter on the discretion of the public body, which should be able to develop policy in the manner, it believes to be best in the public interest. In this type of case, the doctrine of legality is apparent in the doctrine of legitimate expectation that such a fetter on discretion would itself be ultra vires because the representation made by the public body is within its powers Secondly, the representation itself may have been outside the power of the public body or the officer who made it. The doctrine of legality manifests itself here in the simple form that the representation was ultra vires and therefore should not bind the public body in any way. The judicial approach regarding the existence of substantive legitimate expectation is most ecomplicated and complex. Both the views

17 403 i.e. the arguments for and against the possible existence of substantive expectations have been made by the judiciary. Once it is accepted that the value of legal certainty should be of relevance to the initial evaluation of the problem, then the legal rule which follows looks markedly different from that which exists if the only value of legality taken. The very realization that there are two values at stake means that the denial of any doctrine of substantive legitimate expectations is no longer plausible. We are bound by the cases in which the considerations of legal certainty are felt to be sufficiently strong to enable the applicant to claim some substantive benefit from policy choice one, even if the public body has moved to policy choice two. The relevant legal rule must accommodate both of the values, in the manner required in the particular case. The argument so far can be reinforced by rule of law considerations. The concept of legal certainty, which underlies much of continental thinking in this area, has self-evident connections with mainstream thinking about the formal conception of the rule of law, with its concern for autonomy and the ability to plan one's life. There is one aspect of the rule of law that is of particular relevance to the present analysis. It is concerned with the importance within adjudication of considering matters across time. The main argument put against a doctrine of substantive legitimate expectations in cases which fall within category that a general norm or policy choice, which an individual has relied on has been replaced by a different policy choice. Secondly, it should not be forgotten that the government itself often recognises the problems created by change in policy, as shown by the existence of transitional or pipeline provisions when a new policy is adopted. Given that this is so, and given also that such provisions themselves constitute

18 404 administrative choices, it is difficult to see why it should be thought odd for the courts to review their existence and adequacy 12. Thirdly, the recognition of a doctrine of substantive legitimate expectations still requires an applicant to prove the existence of the requisite expectation on the facts of the case. Fourthly, even if the applicant is able to prove the existence of the substantive legitimate expectation on the facts of the case, this does not mean that he/she wins. The proof of the expectation is the first step in the analysis. Legal systems that recognise the existence of substantive expectations have a second legal step, in which the courts inquire whether the public body had sufficient reasons to depart from the expectation. Fifthly, the preceding points help to explain why in more general terms, there is no evidence that the recognition of a doctrine of substantive legitimate expectations in other legal systems has had any undue impact on the administration's freedom to develop policy. Finally, it should be recognised that some limitations on administrative freedom in the policy field are, warranted because of the doctrine of legal certainty. There was also authority for a concept of substantive legitimate expectations in the such type of case, where a public body made an individual representation, which was relied on by a person, and the body subsequently sought to resile from the representation. In the first, the court might decide that the public authority was only required to bear in mind its previous policy or other representation, giving it the weight it thought fit, but no more, before deciding to change course. In such cases, 12 For more detail, see Chapter-II

19 405 the court was confined to reviewing the decision on Wednesbury grounds. The second situation was where the court decided that there was a legitimate expectation of being consulted before a decision was taken. In such cases, the court would require there to be an opportunity for consultation, unless there was an overriding reason to resile from the undertaking. The court would judge by itself the adequacy of the reason advanced for the change of policy, taking into account what fairness required. This situation was regarded as one where the court would exercise "full review", in the sense that the court would decide for itself whether what happened was fair or not 13. The third situation was where the court considered that a lawful promise had induced a substantive legitimate expectation. In this type of case, it was held by the court that there was authority that the court would decide whether the frustration of the expectation was so unfair that to take a new and different course of action would amount to an abuse of power. When the legitimacy of the expectation had been established, the court would have the task of "weighing the requirements of fairness against any overriding interest relied upon for the change of policy". Most of the cases within this category were likely to be those where the expectation was confined to one person, or a few people. The standard of review that applies when a public body seeks to resile from a proven legitimate expectation depends upon the factors that will be of relevance in deciding on whether a legitimate expectation exists at all or not. Discussions about the significance of the doctrine of legitimate expectations often occur in the world when new legislation is introduced 13 For more detail, see Chapter-II

20 406 in the field of financially-oriented administrative law. This includes tax law, social security law and law relating to legal status of civil servants. Even outside these fields, however, one fairly regularly finds discussions of the problem of retrospective effect and semi-immediate effect. There is no doubt that cases which fall within this category are the most problematic. They should nonetheless be capable of generating a legitimate expectation. This is so for reasons of doctrine as supported by authority. As an ordinary doctrine, public bodies must be able to change their policy. Substantive legitimate expectation does not normally prevent any such policy change, but the time at which it is to take effect is the deciding factor. Moreover, the courts cannot say that the doctrine of legitimate expectation could never apply in this type of case because, it would create difficult jurisdictional problems between this category and the others. The line between a general policy and an individual representation is too narrow in cases where, there is some administrative practice or representation, which affects a group of people irrespective of time 14. There are all cases where the public authority seeks to depart from an existing policy in relation to the particular applicant. Such cases are somewhat less difficult than those where there is a general change of policy for the future. This is in part because it will normally be less drastic for a court to compel an agency to apply an existing policy to a particular applicant. It is also because considerations of equality as well as legitimate expectations will be relevant in such situations. It is indeed the case that even if the applicant is unable to prove a legitimate expectation, considerations of equality should, in and of themselves, 14 For more detail, see Chapter-II

21 407 suffice as the basis of the claim, unless the agency can show convincing reasons for departure from the policy. An administrative authority may in doctrine withdraw a long-term decision, particularly a decision granted for continuous activities such as; environmental permits, if it wishes to pursue another policy. However, in such a case, the withdrawal is to be ex nunc. In other words, it involves a whole or partial termination. Important grounds based on the public interest should be given for the withdrawal. The interested party should also be given the time to adapt to the altered policy. In certain circumstances, an administrative authority it may be obliged to pay compensation to the interested party. A decision may be cancelled if the interested party infringes certain statutory regulations or the provisions of the decision. A statutory basis is not always available for this purpose. The prevailing opinion is that such a withdrawal need not always have to find a basis in law. The cases where there has been a representation which the individual seeks to rely on, should be distinguished from the case where there has been a final determination, which cannot be altered because it is a dispositive decision in that case. It is necessary to distinguish between two questions that may arise when a public body makes a representation. The first is whether the agent acting for the public body had authority, actual or apparent, to make the representation in question. This is dependent upon the law of agency. The second is whether the decision resulting from the representation made by the public body or agent is intra vires or ultra vires. This is dependent upon the extent of the powers given to that body. Of course, there are of course many situations where the loss to the public will outweigh that of the individual. This will be dependent upon

22 408 the context, planning, social security or tax, in which the representation occurs. Planning is a prime example of an area where the public interest in the strict enforcement of the statutory norms is especially strong. This is reinforced by the detriment to third party interests that would occur if invalid representations could be relied on 15. A representation could be allowed to bind so far as the internal management of the public body is concerned, but not to those matters which are substantively ultra vires. The idea has obvious analogies with company law. In the public law context, it would operate to validate certain types of representation. It would apply to situations where the subject-matter of the representation was within the power of the public body itself, and the officer who gave the assurance was not prohibited, expressly or impliedly, from doing so. If a public body has power to delegate certain functions to an officer then the representee would be entitled to assume that the appropriate procedure had been followed and that the delegation had taken place, provided that there was nothing in the surrounding circumstances to put the individual on inquiry. In taking a decision the administrative authority must balance the interests that would be served by the withdrawal specifically that it is in the public interest that a decision should be free of errors and that regulations are complied with against the interests of the recipient of the decision in whose mind legitimate expectations have been created. The court demands that the process of balancing the various interests should be reflected apparent in the contents of the withdrawal decision. The court use to make the assessment whether the decision could have been taken reasonably. The nature of the withdrawal is of great 15 For more detail, see Chapter-II

23 409 importance, whether it involve complete or partial withdrawal, withdrawal ex tunc, ex nunc or at an even later date, and so forth. The administrative authority must ensure that any adverse effects of an order on one or more interested parties are not disproportionate to the objects to be achieved by withdrawal. When it comes to review the withdrawal as a sanction, the courts will not confine themselves to review simply whether the decision could have been arrived at reasonably but will make a full review of whether the sanction is proportionate. The doctrine of legitimate expectations should play the same general role in this type of case, as in relation to intra vires representations. It is a necessary, but not sufficient, condition for the representation to bind the public body. Reasonableness of reliance is a necessary condition for the existence of a legitimate expectation. It might be objected that a representee could never have a "legitimate" expectation if the representation was ultra vires. However, this is, merely a restatement of the rule that ultra vires representations cannot ever bind, which is the very question in issue. It adds nothing to that statement. It is also misleading as it conveys the impression that the individual somehow harboured an illegitimate or unwarranted expectation that the representation would be fulfilled. The reality is that the representee may have had no reason to expect that the representation was outside the complex powers of the public body. The existence of a legitimate expectation is not, however, a sufficient condition for binding the public body, precisely because the representation is ultra vires. The existence of a legitimate expectation does, however, serve as a signal that issues of legal certainty are involved in a case. Therefore, the existence of such an expectation should operate as a trigger to alert a court that a balance between the doctrines of legality and legal certainty may be required.

24 410 The main objection to any judicial balancing test is that it would offend against constitutional doctrine. If Parliament has laid down certain limits to the powers of a body it might be felt that the courts should not make the balance between public and individual. The objections finds force in it, however, the strength of the argument is diminished because the courts do allow such balancing in other areas. There are at least three areas in which the jurisdictional doctrine is compromised and balancing is accepted as legitimate or inevitable. This can be seen in the law relating to invalidity, waiver and delay 16. In the law relating to invalidity there are situations where the courts have qualified the concept of retrospective nullity, because its effect on the administration or on an individual are regarded as unacceptable. The court allows waiver to operate with the effect that there will be no remedy for what was an ultra vires decision. This is so also in relation to remedies and delay. The effect of the law in these three areas is to countenance balancing, usually against the individual, where an ultra vires act has occurred, even though the court denies any such balancing in favour of the innocent individual who has been misled by an ultra vires representation made by a public body. A number of objections might be made to this analysis. The administrative authority should prepare the withdrawal of decision with due care. In other words, such decision should be taken with more care than ordinary decisions. It will often be necessary, to give the interested party an explicit possibility to be heard. If withdrawal is imposed as a sanction, the administrative authority must explicitly inform 16 For more detail, see Chapter-II

25 411 the interested party of the intention to impose a sanction and will have to hear the interested party before withdrawal of decision. The facts on which the withdrawal is based should be beyond doubt. The interested party should have the opportunity to put forward any arguments against the withdrawal which he considers relevant. Where withdrawal is used as a sanction, the right of defence means that the interested party must be able to defend himself. Undoubtedly, the doctrine of legitimate expectations finds it root under the European law. The concept has the history under the judge made law and there was no specific legislative provision in any law. Now, it has important role in constitutional and administrative law. It imposes limits on the retrospective effect of legislation and sometimes also provides a basis for providing that a new regulation has semiimmediate effect. It is also an important factor in answering the question whether a decision once given can be withdrawn or modified and provides a legal basis for holding that administrative authorities are to a considerable extent bound by policy rules, promises and contracts. Finally, the doctrine of legitimate expectations is one of the doctrines on the basis of which judicial guidelines may have a binding nature. Consequently, it would be difficult to overestimate the importance of the doctrine of legitimate expectations. There is also a downside and usually it is difficult to predict in which cases a claim based on the doctrine of legitimate expectations will be welcomed. Although, it is possible to identify in case law all kinds of factors that can play a role in answering this question, it is generally much less clear how much weight should be attached to them. In the end, it is in each case necessary to weigh the individual interests that would profit from recognition of the legitimate expectations against the public

26 412 interest and the interests of third parties. In this assessment, the view of the courts will generally be decisive. It could be said that there is nothing as uncertain as whether a claim based on the doctrine of legitimate expectations and the doctrine of legal certainty will be welcomed. In most of the country's constitutional and administrative law, there is a willingness to accept this uncertainty. The advantage of the present situation is that in cases, in which the doctrine of legitimate expectations arises, it is possible to provide for a 'tailor made' judgment. Depending on the specific situation, the court can determine what solution is the most appropriate. This explains, why the statutory codification of the doctrine has not yet really materialised. However, the question that will have to be answered in the world in the future is whether there is a solution to such dilemma. In other words, would it be possible to make the assessment of the doctrine of legitimate expectations more predictable and controllable by incorporating it in a statutory framework, while at the same time sufficient room is left for just solutions in individual cases? Therefore, it be very interesting to hear about the experiences of countries which apply stricter statutory standards to the doctrine of legitimate expectations 17. III The doctrine of legitimate expectations is evolved in case law as an unwritten doctrine of law or an unwritten doctrine of fair administration. Even today it is still mainly an unwritten doctrine of law. As such, it takes precedence over individual decisions and subordinate legislation. However, judicial review of acts of parliament by reference to the doctrine of legitimate expectations is not permitted. 17 For more detail, see Chapter-II

27 413 As yet, there has been no general codification of the doctrine of legitimate expectations in the General Administrative Law. However, two aspects of the doctrine have been codified since January 1st, First of all, the General Administrative Law contains a regulation for the withdrawal of a specific group of decisions that create benefits, namely subsidy decisions. Second, the General Administrative Law includes provisions governing "policy rules". It stipulates to what extent an administrative authority is bound by policy rules in taking decisions. As the binding effect of policy rules on administrative authorities now has a statutory basis, it need no longer be founded on the unwritten doctrine of legitimate expectations. The doctrine has negative and positive contents both. If applied negatively, an administrative authority can be prohibited from violating the legitimate expectations of the people and if applied in a positive manner, an administrative authority can be compelled to fulfil the legitimate expectations of the people. This is based on the doctrine that public power is a trust which must be exercised in the best interest of its beneficiaries i.e. the people. The paradigm case of procedural legitimate expectation arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy 18. In the paradigm case, the court will not allow the decision-maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision-maker, or other countervailing public interest. 18 For more detail, see chapter-iii

28 414 The issue to mention is the construction of the promise or assurance which gives rise to the legitimate expectation. In this context, the basic approach is easy to state but its application in practice has divided the higher courts especially recently within the Supreme Court in India. The relevant issue may be whether the guidance contains a prescriptive instruction as opposed to a general explanation. But much will depend on how the judge in question characterises the statement. The position in respect of the need for detrimental reliance and legitimate expectations is now fairly settled in the terms that it is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest A legitimate expectation of consultation is capable of being frustrated due to a pressing need even when it arises under the subsidiary category articulated by laws. The capacity of the Supreme Court to import legal doctrines and to plant them in a different soil and climate and to make them flourish and bear fruits is tremendous. The importation of the doctrine of legitimate expectation is recent. For legal purpose, the expectation cannot be the same as anticipation. It is not 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 cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred