NATIONAL LAW INSTITUTE
UNIVERSITY
BHOPAL, M.P.
A Project Of Administrative law – I
On The Topic
Legitimate Expectations And Case Laws
Of 2013 – 2015 On Delegated Legislation
Submitted to, Submitted by,
Dr.Sushma Sharma, Ajita Nadkarni,
Asst. Professor 2012 BA LLB 101
Acknowledgement
With my highest gratitude I would take this opportunity to acknowledge the role played by
various people in the making of my project.Firstly I would like to thank my parents who have
always supported me.Secondly I would like to thank Director Sir and Sushma Madam who
were instrumental in guiding me in making this project.
Table Of Contents
Contents Page No:
Concept Of Legitimate Expectation
There are several principles of Administrative Law, which have been evolved by the
courts for the purpose of controlling the exercise of power so that it does not lead to
arbitrariness or abuse of power. These principles are intended to provide safeguard to the
citizens against abuse or misuse of power by the instrumentalities or agencies of the State.
One of the latest and important developments of these principles is the ‘doctrine of legitimate
expectation’, which is an outcome of synthesis between the principle of administrative
fairness, which is a component of the principles of natural justice and the rule of estoppel.
It is an expectation of a benefit, relief or remedy that may ordinarily flow from a
promise or established practice. It is not a legal right. The term 'established practice' refers to
a regular, consistent predictable and certain conduct, process or activity of the decision-
making authority. The expectation should be legitimate, that is, reasonable, logical and valid.
Any expectation which is based on sporadic or casual or random acts, or which is
unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is
not enforceable as such. It is a concept fashioned by courts, for judicial review of
administrative action. It is procedural in character based on the requirement of a higher
degree of fairness in administrative action, as a consequence of the promise made, or practice
established.
It is relevant to note that the doctrine of legitimate expectation is attaining the status of a
fundamental legal concept of administrative justice which is evident from its incorporation
into S. 24 (b) of the Interim Constitution of the Republic of South Africa Act 200 of 1993.
The doctrine of ‘legitimate expectation’ has been judicially recognised by the Indian
Supreme Court and this recognition has paved the way for the development of a broader and
more flexible doctrine of fairness. Consequently, the ultimate question should always be
whether something has gone wrong to the extent that the court’s intervention is required and
if so, what form that intervention should take. In considering whether something has gone
wrong, the court has to determine whether what has happened has resulted in real injustice. If
it has then the court must intervene in the appropriate manner, in this context.
Legal And Institutional Background
The doctrine of legitimate expectation operates as a control over the exercise of discretionary
powers conferred upon a public authority. The typical reason why discretionary powers are
conferred upon a public authority is to ensure that they are exercised having due regard to the
particular circumstances of individual cases coming before the decision-maker thus 1 in
circumstances where Parliament was not confident at the time of passing legislation in
predicting all circumstances and how individual cases should be resolved. It is often difficult
to tell in advance of concrete situations arising precisely how an authority should act; and that
may be as true for the authority as for Parliament itself. This reasoning is inherent in the rule
forbidding a public authority which has a discretion and adopts a policy as to its exercise
from following that policy without having due regard to the specific facts of the particular
case 1
The doctrine of legitimate expectation is the converse of this situation: it operates to say that
1
1. British Oxygen [1971] AC 610.
subject to certain conditions, a public authority which adopts a policy should be required to
follow and apply that policy in cases subject to it, without being permitted to depart from it. It
applies in cases where the decision-maker has committed itself in advance to a particular
course of conduct in a particular class of case, without reference to the specific facts of
individual cases. The key issue, therefore, in legal terms, is to explain by reference to
normative considerations when and why the policy maker will be required to follow its own
pre-determination of the outcome of the case without being free just to change its mind when
the specific facts of an individual case are before it.
In addressing that issue, it is important to understand that the problem which presents itself is
one of public law, and that private law analogies are of limited assistance: see R (Reprotech
(Pebsham) Ltd v E Sussex CC [2003] 1 WLR 348, HL, at [34] per Lord Hoffmann (indicating
an important shift from the cases in the infancy of the development of the doctrine, where the
private law analogy was used as the normative foundation for the doctrine: see esp. Re
Preston [1985] AC 835, 865-7 per Lord Templeman). Viewed from the perspective of public
law, the protection of legitimate expectations is both greater but also less than the protection
of comparable interests under private law :
The protection is greater, in that in some cases no absolute promise or consideration or
detrimental reliance may be required. It may be sufficient to say that the adoption of a policy
by the decision-maker informs and strengthens the application of general requirements of
lawful behaviour on the part of public authorities, including in particular (in the case of
representations as to the procedure to be adopted) the requirement that a public decision-
maker act fairly and (in the case of representations as to the substantive outcome in a class of
case) the requirement that a public decision-maker act consistently and rationally (cf
Matadeen v Pointu [1999] AC 98. In each sort of case, it seems that the specific adoption of a
policy by the decision-maker will strengthen rights which the individual enjoys under general
public law. But then, it is important to identify to what extent the adoption by the public
authority of a policy in advance adds to the rights which the individual already enjoys under
general public law;
The protection is less, in that the interest of the individual in having the policy or
representation complied with in their case may be overridden by countervailing public
interest considerations. Short of a binding private law contract or estoppel, the hands of the
public authority are not absolutely bound by its advance declaration of how it will deal with
particular cases. It can depart from its policy, if at the time of decision it considers that there
is some overriding reason of the public interest which requires an approach different from
that declared in general terms by it in advance. But then, it is important to identify to what
extent it is open to the public authority which has made representations or adopted a policy in
advance should have the freedom to depart from it.
In institutional terms, where a public authority has conferred upon it a wide discretionary
power covering a large number and variety of cases, it may be important for the public
authority’s own coherent and consistent approach to decision-making that it adopts a policy
as to how it will act – at least in the usual run of cases. But, the greater the extent that the
doctrine of legitimate expectations may result in the public authority’s hands then being held
by the courts to be tied in law, the greater the wariness authorities may have about adopting
policies as to how they approach their decision-making in a particular area. Also, a public
authority may, in practical terms, face the same sort of difficulty in predicting precisely in
advance how its decision-making powers should be exercised in particular cases that
Parliament faced when conferring discretionary powers upon it in the first instance: ie it
cannot be known with certainty in advance how particular cases ought to be decided (which
is at least part of the rationale for conferring a discretion in the first place, rather than
Parliament itself prescribing in advance in legally binding legislation what the outcome
should be in particular cases). Parliament having chosen to confer a discretion rather than
creating a binding duty, it would be odd if the doctrine of legitimate expectations could
operate so that the public authority itself, by adopting a policy, creates a binding duty for
itself. Again, the more the doctrine operates to bind the hands of the public authority, the
more it implicitly engages the courts and the decision-maker in creating something
approaching the kind of binding duty which Parliament chose not to create.
Given these general points, one would expect the doctrine of legitimate expectations to
develop by adaptation in the light of the weight of the conflicting public law reasons in
favour of greater or less decision-making flexibility for public authorities at the point of
actually deciding what to do in specific cases. In broad terms, it is submitted that this is what
one finds in the case law.
