CHAPTER œ 4

DOCTRINE OF LEGITIMATE EXPECTATION œ

A NEW DIMENSION OF JUDICIAL REVIEW

4.1 Introduction œ

In the 19th and 20

th
centuries the scope of the State has progressively widened.
New authorities with wide statutory powers have been created giving a new
emphasis to the problems of reconciling the powers of the State with the liberties of
the citizens. Governmental activities now penetrates almost each and everyday of
life of an average citizen. Administration is all pervasive today. It is difficult to
1
count its multifarious powers or even to classify them . Therefore, many of the
Statutes, principles relating to proper functioning of the administration have been
evolved. Doctrine of legitimate expectation is one such principle which is being
evolved to redress the public when their expectation are not fulfilled.

The doctrine of Legitimate Expectation has first been recognized in India

under Article 14 of the Constitution. 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 civil consequences because their Legitimate Expectation
2
had been violated .
4.2 Meaning of Legitimate Expectation -
Dictionary Meaning œ
i) Legitimate: The word legitimate has been defined in Oxford English
Dictionary as lawful, proper and conforming to standard type3.

Meaning according to Law Lexicon -

Jowith‘s Dictionary defines legitimate as ”lawful‘. Mostly this word is used
to children to signify that have been born in lawful wedlock4.

1
Jain, M.P., Changing Face of Administrative Law in India and Abroad; (1982) at 102
2
Massey, I.P., Administrative Law (2005) at 300
3
Oxford Dictionary, (1964) at 692
4
Jowith‘s Dictionary of English Law, (1997) at 1081

155
 Wharton‘s Law Lexicon says legitimate in respect of child one between
whose parents substituted the relation of marriage either at times of procreation or of
birth, or at some intervening or subsequent period5.

Encyclopedia Britannica says a child that is the issue of a father and mother
lawfully married at the time of its birth is legitimate. Therefore, the word legitimate
signifies that the thing which is lawful and legally accepted6.

ii) Expectation- Dictionary Meaning: Expectation means awaiting, anticipation,

and ground for expectation probability of thing7.

Meaning according to Law Lexicon-

According to Law Lexicon it means a chance, a mere unfounded in any

limitation, trust or legal act whatever, such as hope which an heir apparent has of
succeeding to the ancestor‘s estate. This is sometimes said to be a bare or
mere
possibility and at
In other Lawother times,
Lexicon less than ahas
expectation possibility 8.
been defined in other way as relating
to something in future, as to dealing with interests in expectancy9.

Expectation means the act or the instance of expecting or looking forward

something expected or hoped for probability of an event œ and expectation is most
often œ relating to ones prospects10.

iii) Legitimate Expectation-

Definition- The concept of legitimate expectation is a new comer ushered in

by Lord Denning in 1969. Legitimate Expectation has been defined as the
expectation which shall be protected must be ”legitimate‘ though it may not amount
to a right in the conventional sense11.

It means that even where a person has no legally enforceable right or interest,
he might yet have some legitimate expectation, of which it would not be fair to

5
Wharton‘s Law Lexicon, (1980) at 1323
6
Encyclopedia Britannica, Vol. 13 (1966) at 909
7
Supra not 3 at 313
8
Venkatramiya‘s Law Lexicon, Vol. 1 (1971)at 409
9
Wharton‘s Law Lexicon, (1980) at 394
10
Judicial dictionary, (2001) at 819
11
Basu, D.D., Human Rights in Constitutional Law, (2003) at 457

156
deprive him without hearing what he has to say12.

Another nomenclature of legitimate expectation is ”reasonable expectation‘,

which includes —expectation which go beyond enforceable legal rights, provided
they have some reasonable basis“13.

Wharton‘s Law Lexicon has defined legitimate expectation in different ways

depending upon its application and these are14:

i) The more important aspect is whether the decisionœmaker can sustain

the
change in policy by resort to Wednesbury principle of rationality or whether
the court can go into the question whether the decision-maker has properly
balanced the legitimate expectation as against the need for a change.
ii) The procedural part of it relates to a representation that a hearing or other
appropriate procedure will be afforded before the decision is made.

iii) Means the expectation may be based on some statement or undertaking by or

on behalf of the public authority which has the duty of making the decision,
if the authority has, through its officers acted in a way that would make it
unfair or inconsistent with good administration for him to be denied such an
inquiry15.

iv) Means the legitimacy of an expectation can be inferred only if it is founded

on the sanction of law or custom or an established procedure followed
in
regular and natural sequence. Again it is distinguishable from a genuine
expectation. Such expectation should be justifiably legitimate and protect
able. Every such legitimate expectation does not by itself fructify into a right
and therefore
Judicial it does
Dictionary has not amount
defined to aright
legitimate in the conventional
expectation sense
in following 16.
ways:

i) The principle of legitimate expectation was confined mostly to right to a fair

hearing before a decision is invoked or promise or understanding is

12
Schmidt v. Secretary of State, (1969)1 All ER 904(909), C.A.
13
A.G. v. Ng Yuen, (1983)2 All ER 346(350) P.C.
14
Wharton‘s Law Lexicon, (2009) at 984-985
15
Supra note 13
16
Union of India v. Hindustan Development Corporation (1993)3 SCC 499

157
 withdrawn, but not the grant of a boon which had not fructified into a right
by administrator passing an order17.

ii) 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 treatment18.

iii) The existence of a legitimate expectation may have a number of different

consequences it may give locus-standi to seek leave to apply for judicial
review. But the requirements are:

a) A statement or undertaking or any act on the part of the public authority

which would make it unfair or inconsistent with good administration to
deny such opportunity19.
b) The existence of a regular practice which the claimant can reasonably
expect to continue20.

c) The expectation should be legitimate, i.e., 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
21
expectation . Expectation which shall be protected must be legitimate
though it may not amount to be right in the conventional sense. But the
hope or desire of a person to obtain a favorable order not withstanding
that had not complied with necessary requirements may not amount to a
legitimate expectation22.
Legitimate expectation means that the authority ought not to act so as to
defeat the consequence of the expectation without some overriding reason of public
policy to justify its doing so, or it may mean that, if the authority proposes to act
contrary to the legitimate expectation, it must afford the person either an opportunity
to make representation on the matter or the benefit of some other requirement of
procedural fairness23.

17
Supra note 10 at pp 819,820
18
Ibid
19
Mallick M.R., Writs Law and Practice (2000) at 505
20
Ibid
21
Ibid
22
Govt. of A.P. v. HEH the Nizam VIII of Hydrabad AIR 1993 AP 76
23
Halsbury‘s Law of England, Vol. I

158
 According to Lord Templeman, —legitimate expectation is just a manifestation
of the duty to act fairly. But the scope of the doctrine goes beyond the right to be
heard24.

Therefore, legitimate expectation have very wide application, i.e., substantive

as well as procedural expectation: In case of substantive legitimate expectation, even
a non-statutory policy or guidelines issued by the State would be enforceable against
the State if a person can show that he has been led to make certain action on the
basis of or on the legitimate expectation that the government would abide by such
policy or guidelines25.

Thus, it can be said that this doctrine is a kind of check on the administrative
authority not a drawback. When representation has been made, the doctrine of
procedural legitimate expectation imposes in essence a duty on public authority to
act fairly by taking into consideration all relevant factors relating to such legitimate
26
expectation . It also adds a duty on the public authority not to act in a way to defeat
the legitimate expectation without having some reason of public policy to justify its
doing so27.

4.3 Historical Background of Legitimate Expectation œ

Law reflects to a large degree, the civilization of those who live under it. Its
progress and development are mirrors not merely material prosperity but of the
method of thought and of the outlook of the age. Though the doctrine of legitimate
expectation is of recent origin but its principles were applied in legal systems of
various eras and places. Therefore, it is important to understand the background of
this doctrine in India and elsewhere.

4.3.1 Historical Background in England œ

A. Ancient Era œ
History of England gives account of its early inhabitants and of their conquest
and rule by Rome. England was for more than three centuries a province of the
Roman Empire, and as such governed by the Roman law28.

24
R. v. Secretary of State for the Home Department (1987)2 All ER 518
25
Mallick M.R., Writs Law and Practice (2000) at 503
26
Navjyoti Co-op. Group Housing Society v. UOI 1992(4) SCC 494
27 159
Ibid
a. Anglo-Saxon Period:

Our starting place, is the invasion of England by the Anglo-Saxons about in

600 A.D. Ethelbret, King of Kenting set down in writing laws for his Wiseman.
29
These laws were called dooms , which were the oldest written English Law. Thus
the law of England began simply as the customs which later on become English
30
law . Like all written laws the Anglo-Saxon dooms have to be interpreted in the
31
light of their circumstances . Written laws always represent supremacy of law.
Anglo-Saxon had proper judicial systems, which were primary local courts;
32
the courts of hundred and other court were shire or county . It means that delivery
of justice was main aim of the State. English ancestors sought justice as a rule and it
was allowed to seek justice at the Kings hand if one failed after due diligence to
obtain it in the Hundred or the County Court. King and people alike were under the
33
law and the king needed the cooperation of his people . But in the later
Anglo-
Saxon period a great complexity was added i.e., the growth of private jurisdictions.
Side by side with the courts of the Hundred and Shire i.e., large landowners held
34 35
private law courts where customary rules were applied .

b. The Norman Period (1066-1164):

Judicial system was consolidated and brought under the immediate control of
the King, moreover rules and laws were made uniform which brought the society of
England in order and this was the emergency of common law which was
supplemented by Equity36.

i. Reign of William-I (1066-1087):

At once after the conquest he gathered around him a nucleus of his Royal
court œ the curiae Regis œ a group of skilled administrators, such as no Anglo-Saxon
King had at his command, and through them the Royal authority was made effective

28
Cross Lord, Hand G.J Radeiff and Cross, The English Legal System, (1971) at 1
29
Dooms means judgment
30
Kulshreshtha, V.P., A Text Book of English Legal History (1999) at 1
31
Ibid
32
Id., at 2
33
Supra note 28 at 5
34
Id., at 10
35
Supra note 30 at 15
36
Supra note 28 at 9-10

160
 37
in England . It means that the judges were learned hence justice can be said to be
delivered. Initially this court dealt with the matters as revenue collection, while
ordinary litigation that came before old local courts remained unhampered. But as it
followed proper law and procedure and hence far superior to the ordinary courts so it
gradually replaced them. Eventually, the common law of England, took the place of
customary rules upon which justice had been administered in the local and private
courts38.

ii. Reign of Henry II (1154-1215):

The Reign of Henry II is of supreme importance in the history of law. The

result of Henry‘s reign was centralized and unified institution of a permanent court
of professional judges39.

Glanville who was one of the Statesman of Henry II‘s Courts founded the
common law and also wrote treaties between 1187 and 1189. Where he pointed out
that the earliest branches of common law are the law of procedure, criminal law and
land law40.

During this period the forms of action (writ system) was introduced. The writ
was a command of the King, in writing, to the sheriff, addressed to the defendant to
appear in the court, within a certain period of time. It was by this system that King‘s
Court made the Royal justice supreme over the justice administered in other courts.
The issuance of the writ was the symbolic recognition of the principle that no one
should be condemned unheard and weight-age was given to the equity41.

iii. Reign of Edward I (1272-1307):

Edward I can be said to be pioneer of English Legal System, Kings Court
established their Supremacy, centralized the administration of justice and gradually
the local courts disappeared. The Great Charter, i.e., Magna Carta was granted by
42
King John in 1215 and was confirmed in 1225 . The most important statutes of
Edward I are Statutes of Westminster I (1275) Statutes of Gloucester (1278), Statute

37
Id., at 14
38
Id., at 14-15
39
Pollock, Sir Fredrick, Martland Fredrick William, The History of English Law, (1968) at 136-138.
40
Supra note 30 at 25
41
Id., at 86-87
42
Supra note 28 at 52

161
 43
of Wales (1284), etc. and thus made the law uniform throughout the country.
iv. Reign of Edward II (1307-1327):
Edward II issued a proclamation of 1334 A.D. which gave power to the
chancellor to administer legal relief when the plaintiff for some reason or other
could not obtain it and also equitable relief was given when common law failed to
44
provide a remedy . Equity in its technical sense may be said to be a provision of
natural justice which lies at the root of doctrine of legitimate expectation45.

4.3.2 Natural Justice and its development œ

Until this stage it was the study of introduction of written laws which
represent the supremacy of law or rule of law which are at the root of doctrine of
legitimate expectation similarly the natural justice is also one of the principle of
doctrine so its development is also an important factor in the development of the
doctrines of legitimate expectation.

Justice Krishna Iyer is of the view that law of England is founded upon the
law of nature and thus revealed law of God. If the right sought to be enforced is
inconsistent with either of these the English Municipal Courts cannot recognize it46.
Thus, it can be inferred that natural justice played major role in development of
common law and had its impact on doctrine of legitimate expectation. B.N. Banerjee
has placed natural justice and natural law at par47.

A. Law of Nature is basis of Law:

When any case came before the Court for whom no law could be applied,
48
then the Court applies the natural law to decide the matter .
B. Law of Nature Immutable:

It was observed in the Calvin‘s case that law of nature is part of the Law of

43
Id at 34-35
44 Ahmed Aquil, A Textbook of Equity, (1952) at 13-14
45
Id., at 3
46
Iyer Krishna, The Social Dimensions of Law and Justice in Contemporary India, The Dynamics
of a New Jurisprudence, Problems, Perspectives and Prospects, (1979) at 36.
47
Banarjee B.N., Natural Justice and Social Justice before the Supreme Court (1950-1954) as
quoted by Krishna Iyer; the Social Dimensions of Law and Justice in Contemporary India. The
48
Dynamics of a new Jurisprudence, Problems, Prospective and Prospects (1979) at 35-36.
A.D. 1470(1) Yearbook 8 Edward IV. 21, as quoted by Krishna Iyer, The Social Dimensions of
Lawand Justice in Contemporary India. The Dynamics of a new Jurisprudence, Problems,
Prospective and Prospects (1979) at 35

162
England, thirdly, that law of nature was before any judicial or municipal law, and
that the law of nature is immutable. The law of nature is that which God at the time
of the creation of nature of man infused into man‘s heart, for his preservation and
49
direction . The procedural legitimate expectation is based on the procedural
fairness, one of the basic principles of natural justice.

C. No Man can be judge in his own cause:

In 1614 A.D. it was held that even an Act of Parliament made against nature,
equity, as to make a man judge in his own cause, is void in it50.

Justice Holt in 1701 observed that if an Act of Parliament should ordain that
the same person should be party and judge, or which is the same thing, as Judge in
his own cause, it would be a void Act of Parliament51.

D. Conquered Country to be ruled According to Natural Equity:

52
In the case Blankard v. Galdy , it was held that…… that in the case of an
infidel country, their laws by conquest, do not entirely cease but only such as are
against the law of God, that in such cases where the laws are rejected or silent, the
conquered country shall be governed according to the rules of natural equity.

E. No one should be condemned unheard:

Justice Fortescue in 1723 in Chancellor of Cambridge case53 observed that
—Besides, the objection for want of notice can never be got over. The laws of God
and man both give the party an opportunity to make his defence, if has any…..
service of summon upon the party affected was regarded as a condition of the
validity of such proceedings, not only in criminal matters but also in application for
the issue of distress warrants and order for the levying of taxes and other charges
imposed by public authorities upon the subject. Justices who adjudicated summarily
without having issued summons were at one time punishable in the court of King‘s

49
A.D. 1608 (2) 7 Cokes Report, as quoted by Chaturvedi; R.G., Natural and Social Justice (1970)
at 24.
50
Day v. Savadge (1614), Hobart 85 (87).
51
City of London v. Wood (1701) 12 Mod 669
52
(1694)2 Salk 411
53
R. v. Chancellor of Cambridge (1723), 1 Strange 557

163
Bench for misdemeanors54.

The best example of rule of audi alteram partam is in 1615 when James
Bagg, a Chief Burges of Phymoth, was reinstated by mandamus because he had been
55
removed without notice or hearing . Nineteen century decisions established that the
audi alteram partam rule was to govern the conduct of arbitrators of professional
bodies and voluntary associations in the exercise of their disciplinary functions and
indeed of every tribunal or body of persons invested with authority to
adjudicate
upon matters
In this involving
way the civil consequences
concept of naturaltojustice
individuals
kept56.on flourishing till the 20th
century when in 1969 Lord Denning gave a new dimension to it much wider than
natural justice and having an immense scope of utilization i.e. doctrine of legitimate
expectation57.

4.3.3 Origin and development of Doctrine of Legitimate Expectation œ

The concept of legitimate expectation stepped into the English Law stage in
58
1970‘s in Schmidt case wherein Lord Denning observed that:
59
—The speeches in Ridge v. Baldwin show that an administrative body may
in proper case are bound to give a person who is affected by their decision an
opportunity of making representations. It all depends on whether he has some right
or interest or I would add some legitimate expectation of which it would not be fair
to deprive him without hearing what he has to say…..“

The legitimate expectation referred to in Schmidt did not give the alien
students an enforceable right to stay for the time originally permitted but an
enforceable right to be heard before the decision to revoke his permit was taken as

54
Smith, S.A.de, Judicial Review of Administrative Action, (1973) at 36.
55
Id., at 137
56
Id., at 138
57
Mallick, Writs Law and Practice, (2000) at 501
58
Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149
59
(1963)2 All ER 66: (194) AI 40

164
 60
procedural only . Since then ”legitimate expectation‘ has played an important part
in numerous decisions in United Kingdom61.

It is important that in his judgment in Schmidt case Lord Denning makes no

mention of any authority, judicial or otherwise, upon which the concept of legitimate
expectation could be founded; indeed he has said, that he feels sure it came out of
62
my own head and not from any continental or other source . The later cases do not
suggest any other provenance (place of origin). Therefore, it can be presumed that
the origin of the concept may be within Lord Denning‘s justly framed creative mind
and not elsewhere.

But it is very significant to note that prior to the introduction of this concept
in England‘s law, there was developing in the jurisprudence of the European
communities a similar concept that also sought to protect the confidence of
that
subjects had placed in governments.
63
This concept was known as —the rule of
protection of legitimate confidence“ . The study of this concept may provide some
guidance in the development of doctrine of legitimate expectation. Even though it
may be considered that the origin of doctrine of legitimate expectation may be with
Lord Denning but an analysis of the European concept may had helped in the
development of English Law. The case in European court is Re Civil Services
Salaries. E.C. Commission v. E.C. Council64 in which the court held that rule of
protection of the legitimate confidence which citizens may have in the respect by the
authorities of the undertakings of the sort, implies that the decision (announcing the
guidelines) bound the council in its future action. Hence, in this decision the court
laid stress on protection of legitimate confidence which was applicable in the
administrative law.

60
Pandey, B.N., Doctrine of Legitimate Expectation, The Banaras Law Journal, Vol. 31, )2002) at
58
61
Supra note 48 at 502-503.
62
Lord Denning as quoted by Forsyth, C.F., The Provenance and Protection of Legitimate
Expectation, Cambridge Law Journal, 47(2), 1988 at 241
63
Forsyth, C.F., The Provenance and Protection of Legitimate Expectation, Cambridge Law Journal
47(2) (1988) at 240.
64
(1973) E.C.R. 575

165
 65
Although Re Civil Services Salaries was decided after Schmidt‘s case but it
was accepted that idea did not came from this case rather drawn from the
administrative laws of the other member states particularly German Law, i.e.,
66
Vertauenschutz . The concept of Vertauenschutz arouse in German law in relation
to the principle of the free revocation of administrative act at some position in
English Law, where authority which makes a decision affecting private rights, has
67
no power to revoke that decision once communicated to the parties . German Law
considered that the trust laid down by the public in the administrative orders despite
being unlawful, needs to be protected as they would gain benefit of their expectation
68
and the relief available is the payment of compensation . Usually there had to be a
weighing of the principles to determine whether the public interest in the legality of
the administration outweighed the need to protect the trust placed by the citizen in
69
the validity of the administrative act . Only in that event was an unlawful
administrative act revocable.

Thus, it may be concluded that the concept of legitimate expectation was in

existence in European Courts and even practiced. Though English Law may boost of
introducing the doctrine of legitimate expectation in jurisprudence but often English
Jurists have accepted its better development outside the country. Lord Diplock in
197770 accepted that legitimate expectation has developed much better in other
European Countries.

With the introduction of doctrine of legitimate expectation it gradually

developed its teeth and has proved to be a check on the arbitrary use or abuse of
power by the administrative authorities. The doctrine is mostly based on two
principles; (i) assurance or representation by administrative authority; (ii) past
practice71.

These rights can be claimed even in the absence of any legal right. In the

65
Ibid
66
Supra note 53
67
Ibid at 243
68
Ibid at 244
69
Ibid
70
379 House of Lord Debate 993(3 Feb., 1977), as quoted by Forsyth, C.F., The Provenances and
Protection of Legitimate Expectation, Cambridge Law Journal, 47(2) (1988) at 245.
71
Supra note 48 at 503

166
 72
case O‘Reilly court observed that even where a person is claiming some benefit or
privilege has no legal right to it, and also is in conflict with private law rights, he
may have a legitimate expectation of receiving this benefit.

A. Representation to be fulfilled -

Though, the doctrine originated in Schmidt case but it was further broadened
73
in the case Attorney General of Hong Kong . In this case the applicant expectation
of the benefit of a hearing was founded upon an undertaking expressly given
on
behalf of the government of Hong Kong, that, —certain categories of illegal
immigrants from Macau will be treated in accordance with the procedures for illegal
immigrants from anywhere other than China. They will be interviewed in due
course“. But they did not guaranteed that they (immigrants) would not be deported.
It was accepted by the Privy Council that this procedure had not been complied with
before the removal of the respondent from the colony was ordered. Hence the
respondent‘s legitimate expectation was not fulfilled and the removal order against
him was quashed.
B. Past practice to be followed œ

The second principle is that expectation of adopting a consistent practice

over a sufficiently long period to justify anticipation, in all circumstances, that the
practice would continue to be followed in the future. In the Council of Civil Services
74
Unions Case , the Prime Minister issued an instruction that civil servants engaged
on certain work would no longer be permitted to be members of trade unions. The
House of Lords held that those civil servants had a legitimate expectation that they
would be consulted before such action was taken as it was a well established
practice for government to consult civil servants before making significant changes
to their terms and conditions of service.

Similarly legitimate expectation can also be raised when there is duty to act
fairly and applied by the Lord Morris saying that, —Natural Justice is to act fairly
then a link is established between the duty to act fairly and legitimate expectation.

72
O‘Reilly v. Mackman (1983) Z.A.C. 237 (H.L.)
73
A.G. of Hong Kong v. Ng Yuen Shin (1983) 2 AC, 629 P.C.
74
Council of Civil Services Unions v. Miniser for the Civil Services (1985), A.C. 318

167
Thus, legitimate expectation, extend beyond procedural protection“75.

Thus, it can be said that the doctrine of legitimate expectation developed

considerably within few years of its origin in England.

4.4 Historical Background of Legitimate Expectation in Indiaœ

As it has been already mentioned that doctrine of legitimate expectation had

its origin in England in the year 1969, but its principles were recognized in England
much earlier. Similarly, in India too the doctrine finds its way into Indian Judicial
System after the Schmidt case in 1969 but, its principles were followed since time
immemorial.

4.4.1 Vedic Era -

The Rigveda is the oldest literacy record available to us. It contains poems
sung by Rishis in praise of various Gods. The observation of these vedic Rishis were
very keen and established that there exist order in the universe which was even
76
followed by the Gods . For example the Sun rises in the east at a particular time
everyday without fail, rain comes at a particular time every year and so on. Although
these natural Gods were very powerful in this respective sphere they were not free to
act as they wished and they had to perform their duties fairly and properly. They
77
were bound by the laws . The Rishis argue that just as Gods were bound by certain
laws, similarly human beings (including rulers too) also be bound by certain laws78.

The first idea of law that aroused in the Indian minds is that of ”Rit‘ or
”order‘. This order is inclusive of physical as well as legal, social, moral and
79
ritualistic ones . More than that it is also the order of ideas and signifies the very
concept of idea or form by which alone comprehension or cognition can be possible
80
of thought and actions . It is the course of things. Rit is an independent authority
81
and also superior to Gods . Rit is not the expression of any divine82will , rather it

75
Furnell v. Whangaru High School Board (1973), A.C. 660, D.C. at 674
76
Pandeya, R.C., A Panorama of Indian Philosophy, (1966) at 3
77
78 Ibid
Ibid
79
Purohit, S.K., Ancient Indian Legal Philosophy, (2001) at 18
80
Ibid
81
Gupta Uma, Materialism in the Vedas, (1987) at 161
82
Ibid

168
 83
can be said to be born on ordering principles of the universe , to which every thing
84
including the Gods must conform , they are born to it and also its keeper or
guardian. Thus, it can be said that the Rit or law was the supreme and it has to be
obeyed as it provides them with happiness and prosperity.

Now, to understand ”Rit‘, let‘s define it. It means ”proper‘ or ”right‘ a

derivative of Rit, means literally straight and thus implies straight or right conduct85.
Keith points out the word ”Rit‘ has been used in a triple sense œ the physical order of
the universe, the religious order of the sacrificial rites and moral order of the right
86
behavior . Rit was to be observed by everyone and it was believed that those who
stick to it were righteous. Even the kings were to observe Rit and they were regarded
as agents, whose duty was to protect the people and their ”dharma‘. Hence it can be
said that even in the primitive era rule of law was prevalent. As the principle of
87
legitimate expectation is at the raft of the rule of law , hence this principle
was
observed in the vedic era.

Rit in another sense is also an expectation of the subject that the King would
make efforts for the welfare of the subject and trust. The two deep seated principles
in the administration of justice according to Kane were following:

i) fulfill your promises,

ii) cause injury to none.

Keeping your promise is only an aspect of truth as truthfulness in words and

deed, and causing injury means violating law or rightfulness, and in respect of King
88
is to be arbitrary . As the principle of legitimate expectation too revolves around
these two principles, i.e., promise or undertaking when withdrawn and also right to
fair hearing therefore, it is very much clear that though it is not in expressed terms
the doctrine of legitimate expectation being implemented impliedly.

83
Supra note 79
84
Supra note 81
85
Supra note 79 at 19
86
Keith as quoted by Gupta Uma, Materialism in the Vedas, (1987) at 158
87
Mallick, Rajesh, Relevance of Doctrine of Legitimate Expectation in India, MDU Law Journal Vol
XII, (2007) at 82
88
Kane, History of Dharmashastra, Vol. III as quoted by Purohit, S.K., Ancient Legal Philosophy,
(2001) at 85.

169
 The concept of Rit is significant because they reveal that there is a law in the
world, which must workout itself. It gives hopes to those who are victims of disorder
89
and injustices and the triumph of the wicked is not absolute . Thus, Rit was against
arbitrariness. The concept of Rit, being the universal essence of things, formed the
basis for a principle which could affect unity in diversity90.

4.4.2 Later Vedic Era -

During dharamshastra period Rit was substituted by dharma. Dharma is a
Sanskrit word that defies all attempts at an exact rendering in English or any other
91
language . It is a very elastic term like jus, sect and droit having more than one
92
meaning . Sanskar has given its five meanings in different sense, first is religion.
Second is virtue as opposed to sin or vice, third it means law, fourth is justice and
93
fifth is duty . In jurisprudence Dharma means law, justice and duty and these three
are the ingredients of the legitimate expectation. Dharma can be defined differently
in different aspect, religiously if the sacrificial act or ritual, socially it is complete
constitution of Hindu Society and signifies those principles which are said to uphold
94
society and so on . As in early vedic times, the concept of Rajdharma or Dharma of
95
the State was considered to be main function of the vedis King . Law or Dharma is
not a body of rules practiced for its own sake, Dharma has a definite end. When it is
used in the sense of obligation, its purpose is to keep everybody within his assigned
role, prescribed by Dharamshastra. The visible end is to maintain the status quo in
the society and the ultimate end lies in providing to each one in the society an
96
opportunity to realize his ultimate goal of human existence . Again, it can be said
that post vedic era was run according to Dharma or Law, i.e., there existed rule of
law.

The emergence of the King in Hindu jurisprudence has been created to

89
Radhakrishnan, Indian Philosophy, vol. I (1962), 109 as quoted by Sharma, S.D., Administration
of Justice in Ancient India, (1988) at 24.
90
Sharma, S.D., Administration of Justice in Ancient India, (1988) at 24 & 34.
91
Id. At 35
92
Sarkar, U.C., Eposhs in Hindu Legal History (1958) at 19
93
Ibid
94
Supra note79 at 35
95
Ibid
96
Supra not 90 at 39

170
 97
uphold and protect ”dharma‘ . In chapter VII, Manusmriti explains the importance
of the King or the rulers and declares that the King is God in human form as it is he
who gives full protection to the people against external enemies and internal
98
wrongdoers and looks after their welfare . The King also has got to be strictly
99
dutiful, as otherwise he himself would be punished . There was undoubted
supremacy of the rule of law which was binding on the rulers and the ruled alike100.
Therefore the King did not administer justice arbitrarily. The status of the ancient
Hindu King was as that of duty bound servant. The King has been advised
repeatedly to follow Dharma because the King and dharma were deemed to be
101
reciprocally protective . The King had various duties i.e. Praja palana
(maintenance, nourishment and protection), Praja Ranjana (please subject and its
development), Praja Rakshana (protection of subject from natural dangers
invasions), duties as a judge (not to act arbitrarily) observation of Trivaiga i.e.
102
dharma, artha and kama .
A. King and his duty which was an expectation œ

Protection of the ruled was deemed to be one of the most important functions
of a State as opined by the ancient Indian authors. People used to pay taxes because
it assures them protection, also the maintenance of Dharma for the latter is held to be
103
necessary to save the State from unseen and supernatural dangers . The work of
ancient Indian state were education, poor relief, the police, criminal and civil justice,
legislation, medical staff and relief, public works, the Army and the Navy and
104
Counselor and diplomatic services . The State itself was based on dharma or law.
The function of the State was due to belief that Dharma/ law helped the government
to be more stable in every sense and under all circumstances. There was a sort of

97
Id at 42
98
Jois, M. Rama, Ancient Indian Law Eternal Values in Manusmriti, (2004) at 103
99
Supra note 92 at 20
100
Ibid
101
Jauhari, Manorama, Politics and Ethics in Ancient India, A Study based on the Mahabharata,
(1968) at 69
102
Id. at 62
103
Id. at 123
104
Ibid

171
 105
mutualism between the State and Dharma . These are only certain expectation
which was not in expressed terms but Mahabharata gives elaborate instruction to a
King about the duties which he should perform in order to strengthen his hold on the
people, lead them to prosperity, earn name and fame here and enjoy the regions. One
of the important duties of the King was to act as judge and to maintain justice and
impartiality inflict punishments upon the culprits according to the gravity of their
106
crime . A king who gives wrong judgment is made to starve at the gate of
107
his
kingdom . Thus, there were the expectation of subject from the King that these
duties would be performed and even accountability has been placed on the King to
do his duty judiciously.

Natural justice i.e. one should be given fair hearing was also practiced in the
era of Mahabharata, where in a case; where Mandavya Rishi was in tapasya, a thief
placed some stolen articles at his place and he was sentenced by the king as
the
Rishi remained silent, subject revolted and said that there was no legal and judicial
trial and merely because of silence of Mandavya Rishi he can108 not be held liable and
hence it can be said that natural justice was prevalent in that era too .
B. Vashistha (600-300 BC) -

Rules of Natural Justice, similar to those existing at present times, expressed

by Vashistha were109:

a) no decision should be taken singly,

b) the business of deciding disputes should be transacted:
i) on the dias,

ii) in the open,

iii) without bias,

iv) by giving reasons for finding,

105
Ibid
106
Ibid
107
Ibid
108
Jha, Chakradhar, History and Sources of Law in Ancient India, (1987) at 197
109
Vardhachari J., Hindu Judicial System (1946) at 52 as quoted by Gandhi, B.M., Landmark in
Indian Legal and Constitutional History (1992) at 424

172
 v) after hearing both the parties.

C. Kautilya (300-100 BC) œ

The Kautilyan theory of contract introduced certain new elements. The

Kautilyan speculation is in keeping with an advanced economy where the King laid
claim to a fixed part of all grain produce and in return King assures security and well
being to his subjects by eliminating wrongful acts through coercion hence Kautilya
rationalizes the King‘s authority in terms of service in return for grain and
merchandize. Thus, the subject has placed trust in the King that he would protect
110
them and it was a sort of duty to protect the public trust . This trust of subject has
arisen with a contract between the sages who approached Brahma (the creator) to
protect them. In return they promised to pay the protector/ King One fifth of their
111
cattle and gold and one tenth of their grains . Thus, there was a representation by
the Brahma, the Lord on behalf of the King that it would be his duty to protect the
subject which gives rise to the legitimate expectation. He also held law above all and
confirmed the rule of law112.

D. Manu Smriti (200-100 BC) -

Manu Smriti explains the importance of King or the rulers and declares that
the King is God in human form as it is he who gives full protection to the people113.
But he did not left King as supreme and has tried to bring the King within the ambit
of law and defined his duties. People or subject was considered the source of
strength114 and referred it as Praja Vishnoo therefore; the highest duty of a King
115
towards his subject is to protect them . All these acts of welfare of subject have to
116
be reciprocated by giving taxes . Thus, it can be concluded that the people gave tax
to the King or State with an expectation of protection and welfare. Those Kings who
do not fulfill such an expectation of the subject could be killed or overthrown by the
subjects. Thus, it is an example of substantive legitimate expectation.

110
Pankaj, N.Q., State and Religion in Ancient India, (1987) at 197
111
Ibid
112
Supra note 92 at101
113
Supra note 99 at 103
114
Jois Rama, Legal and Constitutional History of India, (1970) at 606
115
Supra note 98 at 104
116
Supra note 92 at 109

173
 Legal justice is the most important of virtues for the maintenance of a social
117
order and if this virtue is sacrificial then the whole social order would collapse . In
ancient Indian jurisprudence the concept of justice carried with it, by necessary
implications, the underlying philosophy of modern doctrines, like ”rule of law‘,
”justice according to law‘, ”doctrine of separation of power‘ and all other allied
118
doctrines . When the word ”dharma‘ is used in context of the word ”Rajya‘ it
means law and ”Dharma Rajya‘ means ”rule of law‘ and not religion or a theocratic
119
State . It is binding both on the King, the Ruler and the people, the ruled i.e. King
was not fountain of law nor above the law.

E. Yajnavalkaya (100-300 AD) -

The Smriti of Yajnavalkaya has initially become the guiding work for the
120
whole of India as it has scientific attitude and freedom from prejudices . The King
is primarily responsible for administration of justice with the help of learned and
virtuous assessors. The proper procedure was laid down and it had to be followed
121
strictly. The King had to decide the case on the basis of reason i.e. decision should
not be arbitrary.

The whole Philosophy of Yajnavalkaya could be understood by the oath

which King should take, which is as follows:

— Considering always as good whatever is law and whatever is in accordance

with ethics and whatever is not opened to police, I will act according to that and will
never act arbitrarily“122.

Thus, it was a clear indication that there was no room for arbitrariness.

F. Narad and naradiya Dharamshastra (100-400 AD) -

Narad also favored rule of law and due procedure of law. He said that
judicial procedure has been instituted for the protection of human race as a safeguard

117
Supra note 90 at 44
118
Id. at 47
119
Gandhi, B.M., Landmarks in Indian Legal and Constitutional History, (1992), 424
120
Jayaswal, Manu & Yajnavalkya, Tagore Law Lecture, 1979 p. 61-62 as quoted by Sarkar U.C.
Epochs in Hindu Legal History, (1958) at 113
121
Supra note 92 at 114
122
Bhatia, H.S., Origin & Development of Legal & Political System in India, vol. I (1976) at 74.

174
of law123 . Law is based upon truth
124
. Justice was given supreme position and duty
was placed on judges to extract dart (wrong) and truth to be declared openly by fair
procedure125.

G. Shukracharya -

Shukacharya was very much scientific in his approach. He did not think that
the State is only machinery for the protection of life and property rather he was of
the view that ethics and politics are inseparable and that justice of the State and the
126
justice of the Individual are identical . He constantly insists upon the practice of
virtue/ reason by the King and he prescribes checks and limitations which keeps
King bound to the right track127.

4.4.3 Medieval Period -

Administration of justice during the Mughal Period has been a controversial

theme with the historians, but it has been declared baseless that there was no system
128
of administering justice, for them justice was supreme and inevitable . The law
was commandment of the God and the Sovereigns in the Muslim State were
regarded as his servants on the earth who were responsible for seeing that his laws
were duly obeyed. The administration of justice was considered by them as an
essential act. The King as the representatives of the people discharged his duties
either personally or through officers appointed for this purpose. The King and his
affairs were to do what was just and right in the eyes of the God to whom alone the
129
king was responsible .
It is true that justice was administered according to the Mohammedan law and
the ”Kazis‘ administered that law in conformity with a code. Thus the King was
under the law. Law being of the divine origin demands as much the obedience of the
King as the peasant. The law applied equally to all and the officers of the State were

123
Jolly Julius, Naradiya Dharamshastra, Judicial System in Ancient India (1981) at 4
124
Id., at 5
125
Id., at 14
126
Nagar, Vandana, Kingship in the Sukraniti, (1985) at 18
127
Id., at 19
128
Jain, B.S., Administration of Justice in Seventh Century India, (1970) at 141
129
Puri, S.K., Indian Legal & Constitutional History, (1983) at 18

175
 130
as much answerable for wrongs committed by them as ordinary citizens . The
muslim law did not favour any distinction between ruler and his subjects. If any
wrong was done by the state towards any citizen then in that case the State could be
sued in the same manner as an ordinary citizen for the wrong committed by
the
officers of the State under the command of the sovereign the amount of fine was
paid by the State or the officer
131 concerned and the accused officer could be sentenced
to imprisonment by the courts .
A. Akbar -

He believed that King must be an impartial ruler of all his people, non-
muslims as well as muslims. Akbar introduced the theory of divine origin of the
132
monarchy and aimed at benevolent despotism suited to the age . He was a great
administrator of justice and equity. According to him justice was divine element in
monarch and his views were reflected in his words that, —If I were guilty of an unjust
act. I would rise in judgment against myself. What shall I say then of my sons, my
133
kindred and others“ .
Akbar evinced very high standard for administering justice. He used to insist
upon clear finding by through investigation. Thus, Akbar was great administrator of
justice also the rules of natural justice, i.e., rule against bias was followed in every
134
trial .
B. Jahangir -

Jahangir also had a great love for administration of justice. Administration of

Justice was as if it were a part of his life and religion. Jahangir was also responsible
for having installed a ”golden chain of justice‘. The system underlined by the
”golden chain‘ was an exemplary one, as it was a very powerful instrument in
putting an end to all sorts of injustice and oppression by the government officers
belonging to the different ranks and grades. Thus, any arbitrary act of the

130
Supra note 122 at 186
131
Supra note 129 at 19
132
Id., at 34
133
Jarett‘s Din. Vol.III p. 387 as quoted by Sarkar, U.C., Epochs in Hindu Legal History, (1958) at
217
134
Supra note 128 at 217

176
government officials could be brought in the notice of emperor and victim shall be
relived135.

C. Shah Jahan -

He had a very efficient system of judicial administration. His sense of justice

was very stern and impartial. Even the officials were subjects to rather unusually
cruel punishment for any act of oppression on the subjects. Shah Jahan was very
particular about the disputes in the subjects and devoted every Wednesday in
administering justice. He did not discriminate between the riches, officers or the
poor thus acknowledge equality before law136.

D. Aurangzeb -

Aurangzeb was one of the most ardent followers of Islam in administering

Justice with impartiality and equity according to the strict principles of
Mohammedan law as enjoined by the Shora. His main business of life was to govern
137
the subjects with equity . Aurangzeb considered himself to be the guardian of
people138.

E. Concept of Public Trust Doctrine in Mohammedan Era œ

The head of the State among the Mohammedan was the trustee of
public
property and in no sense its owner. Such public property consists first of all of
revenues which when allocated were to be deposited in the public treasury i.e., baitul
mal literally the house of property. Imam was the custodian of such public property
and earlier even Imams were not allowed to take anything but later with the increase
in complexity Imam had no time to earn his livelihood, the law permitted him to
draw upon the public funds for his own use. The Imam was also the custodian of
such public property as rivers, public roads, waste lands and institutions intended for
the benefits of the community or of a section of the community such as mosques,
139
madrassas, inns and the like . Thus, the doctrine of public trust has its origin in
Mohammedan jurisprudence.

135
Supra note 92 at 221
136
Id at 224
137
Id at 225
138
Supra note 122 at 190
139
Rahim, Abdur, Mohammedan Jurisprudence at 25

177
F. Estoppel (Bayan œ daruata) œ

It is a plea which a person could raise to establish that the conduct of the
adversary was such as to debar him from giving evidence of a certain fact e.g., if the
owner of a horse kept quiet seeing someone else selling it, he would not be allowed
to prove that the seller was not authorized to sell it140.

4.4.4 British Era -

There existed in India from early times a system of both administrative

legislation and adjudication. The object of early British Administration was to
maximize profit and for this efficiency in the administration was the chief necessity.
Therefore during the Company‘s days, the courts were tools in the company‘s hands
the executive and overriding powers in the matters of administration of justice141.
During the days of the rule of the East India Company it was nothing but
uncontrolled administration of law. The powers of Government were then
concentrated in Governor General and four chancellors while for the due
administration of justice, a Supreme Court of judicature was established at Fort
Williams, to consists of a Chief Justice and three other judges. During the period the
organization of various administrative departments and the nature of duties and
status of administrative officials were framed142.

The British Era can be divided into the following two parts:
A. East India Company‘s rule (1600-1858)

B. India under the British Crown (1858-1947)

A. East India Company‘s rule (1600-1858) -

The period from1600 to the passing of the Regulation Act of 1773 is known
as the period of Royal Charter. The Charter of 1600 which gave the company an
exclusive right to trade in the east was issued by Queen Elizabeth. This period was
marked by the rules of various princely states and there existed no particular law for

140
Supra note 122 at 38
141
Khan, Mohd. Ashiquallah, History of British India, (1988) at 23
142
Ibid

178
the whole of the country143.

a) Charter of 1609 -

It permitted and empowered the company to make laws and issue orders and
ordinances for its internal administration in its factories in India. Those laws were to
be reasonable and not contrary to customs and statutes of British realm. To some
extent it was indirect import of English Law in India144.

Principles of Justice, Equality and Good Conscience œ

The basic meaning of equity is evenness, fairness, justice and the word is
used synonymously for natural justice. The term is also used as contrasted with strict
rules of law, acquitus as against strictum jus or rigor juris. In this sense equity is the
application of particular circumstances of the standard of what seems naturally just
and right, as contrasted with the application to those circumstances of a rule of law,
which may not provide for such circumstances or provide that what seems
unreasonable or unfair. A Court or tribunal is a court of equity as well as of law in so
145
far as it may do what is right in accordance with reason and justice . It was by the
late 17th century in England that equity principle first introduced into a system146,
and along with East India Company, this principle crept into Indian judiciary which
was later on developed by British.

b) Charter of 1726 -
It authorized the Company to establish three Crown‘s Court, i.e., Mayor‘s
Court, one in each of the three Presidency Towns of Bombay, Calcutta and Madras
which was authorized to try, hear and determine all civil suits, actions and pleas
party and to give judgment and sentence according to justice and right147.

Thus, in this way, the English Common Law and the principle of natural
justice found its way into the Indian Judiciary.

143
Sudha, Jyoti Prasad, Indian Constitutional Development (1773-1947) at 14-15.
144
Supra note 119 at 275
145
Walker David, The Oxford Companion to Law, (1980) as quoted by Gandhi, B.M., Landmarks in
Indian Legal and Constitutional History (1995) at 275
146
Supra note 119 at 275
147 Ibid

179
c) Chater of 1753 -

The Charter of 1753 provided that Mayor‘s Court would try the natives by
148
their own laws, customs and usages . It is the natural system to apply in a
conquered country that is to say in a state where complete sovereignty has not been
assumed by the dominant power. It is the system which involves the least
149
disturbance .
d) Regulating Act of 1773 -

For the first time United Kingdom considered Indians as its subject and took
150
the responsibility for the welfare of Indians . It provided for the establishment of
Supreme Court of Justice at Fort Williams consisting of a Chief Justice and three
other judges. They were independent of the Company and could punish its servant
without fear of consequences and adjudicate or claim against it. Thus, in this way
judiciary or law was made supreme and the concept of appeal which was introduced
is an ingredient of legitimate expectation that every person has a right for fair and
just justice. Along with this there were modifications of criminal law, e.g.,
enforcement of law of relationship for murder, of stoning for sexual immoral act or
of mutilation for theft or to recognize the incapacity of unbelievers to give evidence
in cases affecting Mohammedans were removed which were not only barbaric but
151
also reflected arbitrariness .
e) Charter of 1833 œ
Once again with the Charter Act of 1833, the protection of natives was
considered as main objective of Government. Moreover, centralization of power in
the hands of Governor General in Council made the situation clear as to the source
of law as earlier there was a situation to chaos. It empowered the Governor General
152
in Council to appoint a Law Commission from time to time ; hence, the first
Indian Law Commission was set up. It also declared that, —No Indian subject of the
Company in India shall by reason only his religion, place of birth, color or any of
them, is disabled from holding any place, office or employment under the

148
Paranjape, N.V., Indian Legal and Constitutional History, (1992) at 28
149
Bhatia, H.S., Origin & Development of Legal & Political System in India, vol. II (1976) at 13
150
Supra note 143
151
Ibid at 21
152
Section 53 of Charter Act of 1833

180
 153
Company“ . Thus, it was a step ahead to attain equality.
f) Constitution of First Law Commission œ 1834

i. Penal Code:

As the system of administration of criminal justice was most unsatisfactory,

the members of the commission prepared a draft penal code which they submitted to
the lord Auckland, the Governor-General on
nd 2 May, 1873154.

ii. Lex Loci Report or Law of Land Report :

There was no lex loci or law of the land for persons other than Hindus and
Mohammedans in the Moffusil while the Presidency town had a lex loci in English
Law, so it recommends that an Act should be passed making the substantive law of
England the Lex Loci i.e. law of land outside the Presidency Towns, except Hindus
155
and Mohammedans . Thus it clears the position of people living in India of other
religion.

iii. Code of Civil Procedure:

The commission drafted a Code of Civil Procedure and suggested various

reforms in the procedure of civil suits. Through these Law Commissions English
Common and Statutes Law and Equitable principles were injected into the
expanding structure of Indian Jurisprudence156.

B. India under the British Crown (1858-1947) œ

a) Government of India Act, 1858 -
It assured the people of India that there will be no interference in religious
matter, no distinction in regard to caste or creed would be practiced, internal
tranquility would be restored, industry and public activity works would be
stimulated and administration of the Government would be for the benefit of all the
subjects. In their prosperity will be our strength, in their contentment our security
and in their gratitude our best reward. These words reflect very high ideas of the
British Government and these words were based upon the rule against arbitrariness

153
Section 87 of Charter Act of 1833
154
Supra note 131 at 247
155
Ibid at 248
156
Setalvad, M.C., The Common Law in India, at 28-29, as quoted by Gandhi, B.M., Landmarks in
Indian Legal and Constitutional History, (1992) at 254

181
and any kind of racial discrimination, which leads towards equality157.

b) Indian Council Act, 1861 -

It provided for the provisions for the extension of Central Legislative Council
and inclusion of natives to the Council158 which provided an opportunity for the
representation of Indians as a deciding or law making body, which further raised the
aspirations of the public that laws in favor of Indians would be framed.

c) August Declaration, 1917 -

Mr. Montague made the historic declaration in the House of Commons which
said that, —that there will be increased association of Indians in every branch
of
administration and the gradual development of self-governing 159
institutions with a
view to progressive realization of the responsible Government in India“ . It reflects
the intentions of the British Government that Indians would be considered at
par
with British for administrative services and also fulfilled the aspirations of the
Indians.
C. Codification of Law-
The picture of the system of law prevailing in India near about the beginning
th
of the 19 century as it emerges from the discussion that was, one of confusion and
chaos. There was uncertainty whether a particular proposition of law was applicable
or not, either in the Mofussil or in the Presidency Towns160 œ there was not much
legislative activity in the area of private law and thus gaps and inter space in laws
were being filled in by the courts by an inarticulate adoption of the rules of English
Law and also on the Doctrine of Equity, justice and good conscience but there
remained a lot of lacunae in the administration of justice therefore there was a need
for the codified laws in the country. In the words of Lord Macaulay, —only through
codification it was possible to achieve certainty for uncertainty, a written and a
stable law instead of wilderness of judicial precedents which were bewildering to the
161
litigants and confusing to the courts“ . These words of Macaulay show that the
way for the stability of a society and a situation were made clear through

157
Supra note 148
158
Ibid
159
Report on Indian Constitutional Reforms, 1918 at 1
160
Jain, M.P., Outlines of Indian Legal and Constitutional History, (2009) at 418
161
Ibid at 417

182
codification of laws, Macaulay has tried to satisfy the Indian subjects that the
situation of chaos and confusion is prevalent only due to the non codified laws. As
been earlier stated that it is an expectation of the subjects from the State that
it
would protect them and also maintain stability in the society, hence Macaulay has
expressed that they are duty bound. Bentham
162
in favor of codification said that, —to
be without a code, is to be without justice“ . It means that the codified law is only
a means towards the justice which is one of the greatest expectation of human being.
Some of the important features of Indian Penal Code, 1860 are laid down on
the principles of natural justice.

a. Mens rea -

One of the main characteristics of Indian Penal Code is that the individual‘s
liability to punishment for crimes depends among other things, on certain mental
conditions. The absence of these conditions where they are required negatives the
liability. The liability to conviction of an individual depends not only on his having
done some outward acts which law forbids, but on his having done them in a certain
163
frame of mind or with certain will , therefore, an act in order to be a crime must be
committed with a guilty mind, actus non facit reum nisi mens sit rea, i.e., acts alone
does not make a man guilty unless his intensions were so, is a well known principle
of natural justice.

b. Principle of Legality -
A person accused of an offence is put under the peril of his life and liberty.
Therefore, it becomes necessary that certain safeguards should be provided to him.
These protections are almost common to all civilized legal systems of the world
which was introduced in Indian Legal System with the introduction of English
Common Law through various enactments. One of such principle is nullum crimen
sine lege, nulla poena sine lege which means that there must be no crime or
punishment except in accordance with fixed procedure established by law which is
164
known as the principle of legality . The maxim nullum crimen sine lege, nulla
poena sine lege conveys four different rules, namely:

162
Ibid at 420
163
Hart, H.L.A., The Morality of Criminal Law, as quoted by Misra, S.N., Indian Penal Code,
(2007) At 10
164
Mishra, S.N., Indian Penal Code, (2007) at 11

183
 (i) Non retroactivity of penal laws,
(ii) Penal Statutes should be constructed strictly,

(iii) Certainty of Legislation,

(iv) Accessibility of Law.

c. General Exceptions -

Chapter IV of Indian Penal Code deals with the General Exceptions which
provides with various defenses which a person accused of an offence under the code
or any special local law can plead. These provisions in the Indian Penal Code are the
greatest example of natural justice and Doctrine of Legitimate Expectation. This
chapter has fulfilled the expectation of a person whose life and liberty were at stake.

It deals with the circumstances which preclude the existence of mens rea. If
the existence of facts or circumstances bringing the case within any of the
exceptions is proved, it negatives the existence of the mens rea necessary to
constitute the offence and thereby, furnishes a ground for exemption from criminal
liability165.

The two broad classes of exceptions are:

- excusable (Sec. 76-95)

- justifiable (Sec. 96-106)

d. Indian Evidence Act, 1872 -

In the process of delivering justice the courts have not only to go into the
facts of case but also to ascertain the truthfulness of the assertions made by
the
parties. The areas of assertions and ascertainments of its truthfulness are governed
by the law of evidence. It helps in
166
proving the fact. It also provides both the parties
equal opportunity to prove the fact , i.e., audi alteram partem in order to remove
the chances of arbitrariness.

e. Motive, Preparation and Previous or Subsequent Conduct (Sec. 8) œ

This section looks for the motive behind the act because there is hardly any
act without a motive which is generally proved by the previous or subsequent

165
Ibid at 150
166
Lal, Batuk, The Law of Evidence, (2009) at 1

184
conduct of the accused before of after committing crime. This section is based on the
principle of fair hearing and procedure.

f. Indian Evidence Act and Natural Justice œ

It can certainly be said that Indian Evidence Act was a very far sighted
enactment. This Act has removed all kinds of discrepancies which were there in
Hindu and Mohammedan legal system. By laying burden of proof on the
prosecution it has given a larger scope for fair hearing. Moreover, most of the
provisions in the Evidence Act are based on the principles of natural justice where it
is said that justice should not only be done but must appear as it is done. The
provisions such as confession caused by inducement, threat or promise when
167
relevant in criminal proceeding confession to police officer not to be 168
proved , is
not admissible or confession by accused while in custody of police not to be proved
169
against him .
g. Promissory Estoppel Recognised œ

There is said to be an estoppel where a party is not allowed to say that a

certain statement of fact is untrue, whether in reality it is true or not. The Doctrine of
estoppel applies in cases affecting rights. Estoppel can be described as a rule of
creating or defeating rights. Though estoppel is described as merely rule of evidence
it may have the effect of creating substantive rights as against person estopped.
Section 115 of the Indian Evidence Act recognized for the first time the doctrine of
estoppel. It is not essential that an act or to abstain from acting should have been
170
fraudulent or that he should not have been under mistake or misapprehension . The
doctrine of estoppel has brought the Government within its reach and even during
the British era, no escape was provided to the crown for any representation made by
the government agencies171.

Along with this there were enactments which not only simplified and put
certainty in Indian Legal System and also based on the principle of natural justice,

167
See Section 24, The Indian Evidence Act, 1872
168
See Section 25, The Indian Evidence Act, 1872
169
See Section 26, The Indian Evidence Act, 1872
170
Sharat Chandra Dev v. Gopal Chandra Lal ILR 22 at 296 PC
171
Pammer v. Mayor R.C. of Wellington, (1843), 9 App. Cas. 609

185
equality, justice. These enactments were Code of Criminal Procedure (1861), Civil
Procedure Code (1859), Indian Contract Act (1872) etc.

4.4.5 Post œ Independence Era œ

A. Constitution œ
th
India won independence on 15 August, 1947 and it became a welfare State
having a mixed economy. The Indian nation on 26th January, 1950 gave a
constitution to itself. It undertook a vast program of social and economic upliftment
and restitution. The Constitution of India, laid its objective œ

Justice œ social, economic and political,

Equality œ of status and opportunity,

Liberty œ of thought, expression, belief, faith and worship and

Fraternity œ assuring the dignity of individual and unity of the Nation172.

Part III enshrines fundamental rights of citizens, Right to Equality (Article

14-18), Right to Freedom (Article 19-22), Right against Exploitation (Article 23-
24), Right to Freedom of Religion (Article 25-28), Cultural and Educational Rights
(Article 29-30), right to Enforce Fundamental Rights (Article 32 and 226).

Part IV of the Constitution regarding Directive Principles of State Policy

guarantees protection of the some liberties to an individual considered as a part of
the community and the State Policy guarantees protection of the some liberties to an
individual considered as a part of the community and the State can pass measure
strengthening them. Part III of the Constitution indicates the present basis of
the
Rule ofNo
Lawperson
while Part IV is the pointer
is deprived of his for
life the
andfuture law173liberty
personal . except according to
procedure established by law or of his property saves by the authority of law (no
person is above the law, not even the government). The maxim that, —The King can
do no wrong“ has not been made applicable to India because there is equality before
the law and equal protection of law. Doctrine of Equality is also maintained in

172
Supra note 148 at 425-426
173
Supra note 117 at 401

186
 174
public services .
B. Promissory Estoppel in India -

A vast body of case law has accumulated in India over the years on the
question of applicability of the doctrine of promissory estoppel against the
administration. The law in the area is still evolving but the present day judicial
tendency appears to be more towards applying the doctrine to the administration175.
In Anglo œ Afghan176 the Supreme Court applied promissory estoppel against
the
government on equitable grounds. The Anglo œ Afghan case depicted a new judicial
trend. The key to this trend was to be found in the following statement of the
Supreme
—IfCourt.
our nascent democracy is to thrive, different standards of conduct for the
people and public bodies cannot ordinarily be permitted“. In this way government
177
were held responsible for its representation and no immunity would be provided .
C. Introduction of Legitimate Expectation in Indian Judicial system -

The capacity of the Apex Court to Import Legal doctrines and to plant them
in a different soil and climate and to make them flourish and bear fruit is
178
tremendous . The importation of the doctrine of Legitimate Expectation is recent.
The first reference to the doctrine is found in State of Kerala v. K.G. Madhavan
179
Pillai . In this case the government had issued a sanction to the respondents
to
open a new aided school and to upgrade the existing ones. However, after 15 days a
direction was issued to keep the sanction in abeyance. This order was challenged on
the ground of violation of the principle of natural justice. The Court held that the
sanction order created legitimate expectation in the respondents which was violated
by the second order without following the principles of natural justice which is
sufficient to vitiate an administrative order.

The doctrine was further applied in the case where government had issued

174
Ibid
175
Jain, M.P., Principles of Administrative Law, (1999) at 716
176
Union of India v. Anglo (India) Afghan Agencies, AIR 1968 SC 718
177
Century Spinning & Mfg. Co. v. Ulhasnagar Municipality, AIR 1971 SC 1021
178
Massey, I.P., Administrative Law (2005) at 303
179
AIR 1989 SC 49

187
notification notifying areas where slum clearance scheme will be introduced.
However, the notification was subsequently amended and certain areas notified
earlier were left out. The court held that the earlier notification had raised legitimate
expectation in the people living in an area which had been left out in a subsequent
notification and hence legitimate expectation cannot be denied without a fair
180
hearing . Thus, where a person has legitimate expectation to be treated in a
particular way which falls short of an enforceable right, the administrative authority
181
cannot deny him his legitimate expectation without a fair hearing . Legitimate
expectation of fair hearing may arise by a promise or by an established practice182.
183
The same principle was followed by the Apex Court in Navjyoti case . In
this case the development authority, without notice and hearing had changed
the
order of priority for the allotment of land to co-operative societies from ”serial
number of registration‘ to the date of approval of list of members. Quashing
the
order on the ground of violation of legitimate expectation the court held that where
persons enjoying certain benefits or advantage under old policy of government
derive a legitimate expectation even though they may not have any legal right under
private law in regard to its continuation but before changing that policy affecting
adversely that benefit or advantage the aggrieved persons are entitled to a fair
a. Constitutional Parameters œ
hearing.
A constitution is the body of rules written or unwritten which establishes
institutions of government for a particular country and specifies the ways by which
the political process are to function. The governance of countries is done in
accordance with constitution184.

A constitution has been broadly defined as the basic law of a country which
outlines the framework and mechanism of governance, defines its powers and
functions provides as to how a constitution changes. In democracy, the citizen‘s

180
S.C. and Weaker Section Welfare Association v. State of Karnataka (1991)2 SCC 604
181
Supra note 168 at 304
182
State of H.P. v. Kailash Mahajan, 1997 Supp (2) SCC 351
183
Navjyoti Co-operative Group Housing Society v. Unoin of India (1992) 4 SCC 471
184
Baruah, Aparajita, Preamble of the Constitution of India, (2007) at 11

188
fundamental rights are guaranteed against possible arbitrary governmental action, by
way of judicial intervention and services185.

A constitution is an embodiment of principles according to which the powers

of the government, the rights of the governed and the relation between the two are
being defined and arranged according to Prof. A.V. Dicey, —the expression
Constitution includes all rules which directly or indirectly affect the distribution or
exercise of sovereign power in the State“
186 .In the words of Wade and Phillips187,
—By a constitution is normally meant a document having a special legal sanctity
which sets out the framework and the principle function of the organs of government
or a State and declares the principles governing the operations of those organs, such
a document is implemented by decision of the particular organ normally the highest
Court or the State which has power to interpret its content188.

The views of Pt. Jawaharlal Nehru, who said that first and foremost task of
Constituent Assembly, was to draft a Constitution that could serve the ultimate
189
social goal of social revolution . Nehru was also aware of the future and warned
the Assembly, —we cannot solve this problem soon, all our papers of Constitution
became useless and purposeless……..“190.

Thus, the Constitution can be said to be a culmination of the aspiration and

the expressed form of the will of the people of India.

b. The Objectives and Aims of the Constitution œ

Taking notice to the views of great leaders of independence, struggle and

operations of the common mass, Pt. Jawaharlal Nehru moved a resolution in front of

185
Strong C.F., Modern Political Constitution, p.10 as quoted by Baruah Aparajita, Preamble of the
Constitution of India, (2007) at 11
186
Prof. A.V. Dicey, An Introduction to the Study of the Law of Constitution , (1994), as quoted by
Baruah Aparajita, Preamble of the Constitution of India, (2007) at 11
187
Wade & Phillips, Constitutional Law, as quoted by Baruah Aparajita, Preamble of the onstitution
of India, (2007) at 12
188
Ibid
189
Glanville Austin, The Constitution, Cornerstone of a Nation, (1966) at 27 as quoted by Pal, A.C.,
Mehta Runa, Constitutional Foundation of Social Change in India : Synoptic View, Civil &
Military Law Journal Vol. 41, (2005) at 4
190
Khanna, H.R., Making of India‘s Constitution (1981) at 5 as quoted by Pal, A.C., Mehta Runa,
Constitutional Foundation of Social Change in India‘s Synoptic View, Civil & Miltary Law
Journal, vol. 41(2005) at5

189
the Constituent Assembly. Few of the objectives are as follows:

i) To guarantee and secure justice- social, economic and political, equality of

status of opportunity and before the law, freedom of thought, expression,
belief, faith, worship, vocation, association and action, subject to law and
public morality;

ii) To provide adequate safeguards for minorities, backward and tribal areas and
depressed and other backward classes;

iii) To maintain integrity of the Republic and its sovereign rights on land, sea
and air according to justice and law of civilized nations191.

Thus, through the objective resolution the aspirations of the masses of the
country were given the words and R.V.Dhulekar expressing views about the
resolution said that:

—The Resolution gives them complete freedom in regard to their internal

administration and assures that all their just and legitimate rights will be
192
safeguarded“ . On the similar note Sir S. Radhakrishnan said that, —we are here to
bring the real satisfaction of the fundamental needs of the common man of this
country, irrespective of race, religion or community“193.

The resolution before the house was an expectation of the millions of people
of country.

c. Preamble œ

The objective resolution was later modified in the preamble. Since

Constitution of India is an elaborate document. The Constitution has completely
been framed keeping in mind the expectation of the people and is a complete
document. But the crux of the Constitution lies in the preamble and it is the key to
194
understand the constitution , as the constitution has been built upon the concepts
195
crystallized in it , i.e., objective resolution.

191
CAD Vol. I at 59
192
CAD Vol. II at 301
193
Id, at 269
194
Re Berubari Union, AIR 1960 SC 854 (856)
195
Supra note 184 at 78

190
i. Definition -

A preamble of a statute is a preliminary statement of the reasons which have

made the passing of statute desirable and its position is located immediately after the
title and date of issuing the presidential assent. A preamble may also be used
to
introduce
ii. Contentsa of
particular
Preamblesection
Havingor Spirit
groupofofLegitimate
section196.expectation œ

a. We the People of India œ

The preamble begins with the words, —we, the people of India…….“, thus
clearly indicating the source of all authority of the constitution. It emphasizes that it
is the people of India who are the authors of the Constitution197.

The phrase, we, the people of India infuses real strength into the minds of
common people of India. It also states that India is united and throws the idea of
national integration that the people of India do not wish to be divided into castes,
religions etc.198 . Thus, in the preamble, it clearly contains the ideals and aspiration199
or the objects which the constitution maker (who claimed to speak on behalf of the
people of India) intended to be realized200.

b. Sovereign -

The word ”Sovereign‘ stands for the power which is absolute and
201
uncontrolled within its own sphere . One of the corollaries emanating from the
doctrine of sovereignty is that of parens partial. It means that it is the power and
202
obligation of the sovereign to protect the rights and privileges of its citizen . In
India though the doctrine of parens partial is not embodied in any express provision
of the constitution, it has been derived from the Article 38, 39 & 39-A203.

Moreover, the powers of all organs of the State are defined by the

196
Halsbury‘s Law of England as quoted by Baruah, Aparajita, Preamble of the Constitution of
India, An Insight and Coparison with other Constitutions, (2007) at 6.
197
CAD Vol.I at 96
198
Id at 40
199
Atam Parkash v. State of Haryana, AIR 1986 SC 859 (864)
200
I.C. Golak Nath V. State of Punjab, AIR 1967 SC 1643
201
Basu, D.D., Commentary on the Constitution of India, (1982) at 142
202
Basu, D.D., Shorter Constitution of India, (2003) at 9
203
Charanlal Sahu v. UOI, (1990) 1 SCC 613

191
Constitution and neither the Executive nor the legislatives can claim any claim œ any
extra-constitutional power, i.e., any power which cannot be justified under any of
204
the express provisions of the constitution . It confirms the rule of law in the
country.

c. Justice -

The preamble of the constitution professes to secure to all its citizens social,
economic and political justice. The concept of justice is already pregnant with
various diverse notions of rights morality, welfare, happiness, liberty and equality.
The expression justice is the harmonious reconcilement of individual conduct with
205
the general welfare of society . Every man acts according to his self interest, but
his act or conduct is said to be just only if it promotes the general well being of the
community206.

i) Social Justice -

Social justice means abolition of all sorts of inequalities which results from
207
inequalities of wealth and opportunity, race, caste, religion and title . The
Constitutional philosophy of social justice has been explained by S. Radhakrishnan
as, —we are here to pledge to achieve full independence of India, where no individual
will suffer from underserved want, where no group will be thwarted in the
development of its cultural life“208.

Also it was observed by Supreme Court that the aim of social, economic and
political and constitutional goal. It was held that social justice was a dynamic device
to mitigate the sufferings of the poor, weak, dalits, tribal and deprived sections of the
society and to elevate them to the level of equality, to live a life with dignity209.

ii) Economic Justice -

Economic justice means securing and protecting a social order, which stands
for the welfare of the people ”pre-suppose people‘ commitment to value of economic

204
Magan Bhai v. UOI, (1970) 3 SCC 400
205
Supra note 184 at 50
206
Salmond, as quoted by Basu, D.D., Commentary on Constitution of India, Vol. A, (1982)
207
Supra note 201 at 147
208
Supra note 197 at 270
209
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645

192
 210
value . Economic justice would require that the rich and poor are treated alike and
that efforts are made to bridge the gap between them. Article 39-A means that the
system of administration of justice must provide a cheap, expeditious and effective
instrument for realization of justice by all sections of the people irrespective of their
211
social and economic position or their financial resources , as economic
212
empowerment is a basic human right . Thus, the constitution has casted duty on
the administration that economic status may not stand as an obstacle to achieve
justice and result into arbitrariness.

iii) Political Justice -

Political justice means equal share to all citizens in the matter of

participation in the political process without any distinction of race, caste, creed,
religion or place of birth. It implies the absence of any arbitrary distinction between
two citizens in the political spheres. Our constitution provides adult franchise to all
her citizens and allows them to hold any public office without being discriminated
on the basics of caste, religion, race, sex etc.213.

iv) Liberty -

Liberty was originally understood only as a negative concept, viz., and the
absence of undue or arbitrary influence with individual action on the part of
government. But now it is a positive concept, comprising ”liberties‘ or ”rights‘ which
are essential to the development of the individual and the perfection on the national
214
life, e.g., liberty of thought and expression . Liberty in the preamble to our
215
constitution does not mean mere absence of restraint or domination . It is a
positive concept of the right to liberty of thought, expression, belief, faith and
worship. In order to be meaningful it had to be liberty for all, for the society as a
216
whole . As Justice K.S. Hegde put it:
—In the modern world liberty is not, as is usually supposed, single,
simple
210
Kashyap, Subhash C., Constitutional Law of India, Vol. I (2008) at 311
211
Secretary, HSEB v. Suresh, (1999) 3 SCC 601
212
Supra note 211 at 671
213
Supra note 210
214
Supra note 201 at 149
215
Supra note 210 at 312
216
Ibid

193
conception. It has four elements; national, personal, political and economic.
Moreover, today the controversies and conflicts are not between power and freedom
but between one form of liberty and another. That is why, checks and counter checks
are necessary in every departments of Government, the Executive, Judiciary and
217
Legislature“ .
In the constitution we have such checks in the form of Fundamental Rights
and we have also laid down guidelines for legislative and State action in the form of
Directive Principles. It is obvious that an unreasonable interference with a
fundamental right would be void218.

v) Equality -

D.D. Basu has quoted French Constitution to define the meaning of equality,
—Law is the expression of the general will…. it must be same for all, whether it
protects or punishes. All citizens being equal in its eyes are equally eligible to all
public dignities, places and employment, according to their capacities and without
219
any other distinction than that of their virtues and talents“ .
In the words of Shastri Alguari:

—The resolution affirms the equality of men; we wish to eliminate all class
distinction existing at present. The behavior of men with one another should be on
the basis of equality“.

And this object is secured in the provisions of Part III and Part IV of the
Constitution. The Indian Constitution not only guarantees the ”liberty‘ and ”equality‘
envisaged in the preamble as Fundamental Rights says Basu but also empowers the
judiciary to enforce them against all State action, including Legislative judicial
220
review over. Legislation is thus a feature of the Indian Constitution . In this way
legitimate expectation is protected.

217
Justice K.S. Hegde as quoted by Kashyap, Subhash C., Constitutional Law of India, Vol. I(2008)
at 312
218
Supra note 210 at 312
219
Constitution of the Fifth French Republic 1958 as quoted by Basu, D.D.,Commentary on
Constitution of India, Vol. A, 1982
220
Supra note 201 at 149

194
vi) Dignity of the Individual -

Though the dignity of the individuals, the forefathers wanted to improve the
quality of life for the individuals by guaranteeing the fundamental rights of freedom,
equality etc. through Directive Principles policies are oriented to provide all citizens,
adequate means of livelihood, just and humane conditions of work and a descent
standard of life221.

The whole scheme underlying the constitution is to bring about economic

and social changes without taking away the dignity of the individual222.

vii) Right to Equality œ

Modern societies provide citizens with greater social and political rights a
higher standard of living, better vocational opportunities. With the increasing
democratization of governments the fundamental problems has been to pull down
the barriers of segregation and to offer equal opportunities to all. Moreover, the
liberal concepts of democracy indicates this what we expect and require from a
democratic form namely is a free society which is not exposed to arbitrary and
uncontrolled political power. In democracy, the relation between the governors and
the governed is consistent with the principle that the State is at the service of the
citizens and not the State, which the government exists for the people and not vice
223
versa . Therefore, it is an expectation of the citizen that democracy is to eliminate
man made socially fostered, discrimination that has enlarged for some and has
restricted for others and avenues that lead to education, income and advancement224
and this gave rise to the notion of right to equality. Equality is the greatest passion of
225
man . In the absence of equality there can be no justice.
Moreover, the claim that men are equal is a claim that in fundamental
respects, regardless of obvious differences between one man and another, all men
deserves to be given certain treatment. They have a right to certain kinds of equal

221
Supra note 210 at 317
222
Ibid
223
Mathew, K.K., Democracy, Equality and freedom, (1978) at 165
224
Laski, H.J., Grammer of Politics (1957), p. 162 as quoted by Chawla Prabha, Equality and Justice
in East and West, (1989) at 31
225
Mathew, K.K.; The Right to Equality and Property under the Indian Constitution, (1980) at 11

195
 226
treatment in crucial aspects of their lives, though not in all as it is the legitimate
expectation of the people227.

Another view is that in a society equal conditions should be provided to its

members so that they can achieve the best with their efforts. This means that the
society must at least maintain some minimum standard of living, education and
228
security for all its members . This duty to maintain this standard in society is being
cast upon the government as in the American Declaration of Independence says:

—We hold these truths to be self-evident that all men are created equal, that
they are endowed by their creator with certain in alienable rights, which among
these are life, liberty and the pursuit of happiness œ that to secure these
rights,
governments are instituted among men, deriving their just powers from the consent
of the governed“ it. is an expectation of the citizen that State shall always work
Therefore, 229
towards attainment of equality, life and liberty and its protection too. So, certain
provisions are provided in the Constitution and are asked against the State.

4.5 Article 14 and Legitimate expectation -

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 part conduct unless some overriding public interest comes in the way.
The doctrine requires that reliance must have been placed on the said representation
230
and the representee must have thereby suffered detriment . thus, the more
important aspect is whether the decision maker can sustain the change in policy by
revert to Wednesbury Principles of rationality or whether the court can go into the
question whether the decision maker has properly balanced the legitimate
expectation as against the need for change. In the latter case the court would

226
Dennings, Problems of Social and Political Thought at 256 as quoted by Mathew, K.K.; The
Right to Equality and Property under the Indian Constitution, (1980) at 7
227
Bentham as quoted by Raina SMN, Law, Judges and Justice (1986) at 50
228
Supra note 216 at 9
229
Ibid at 4
230
Ibid

196
obviously be able to go into the proportionality of the change in the policy.
The
Wednesbury reasonableness test may be applied to find out whether the change from
one policy to another was justified. The court is not to judge the merit of decision
maker‘s policy. The public authority in question is the 231
judge of the issue whether
—overriding public interest“ justifies such a change in policy . However, the change
of policy like any discretionary decision by a public authority must not transgress
the Wednesbury principles. While the policy is of the maker alone, the courts
232
concern is to see whether there has been fairness in his decision .
The change of policy can defeat substantive legitimate expectation if it can
be justified on Wednesbury reasonableness. The decision maker has the choice in
balancing of the pros and cons relevant to the change in policy. It is, therefore, clear
that the choice of policy is for the decision maker and not for the court. The
Legitimate expectation merely permits the court to find out of the change in
the
policy which is the cause for defeating the legitimate expectation is irrational or
perverse
Theorprinciple
one whichof no reasonable
legitimate person could
expectation is stillhave made233
at a stage of .evolution. The
principle is at the root of the rule of law and requires regularity, predictability and
certainty in government‘s dealing with the public. Dicey regards the rule of law as
having both procedural and substantive effects —the rule of law enforces minimum
standards of pureness, both substantive and procedure234.

The basic principles relating to legitimate expectation were enunciated by

235
Lord Diplock in Council of Ministers for the Civil Services , whether his lordship
observed that the case or legitimate expectation to arise, the decision of the
administrative authority must affect the person by depriving him of some benefits or
advantage either:

i) He had in the past been permitted by the decision maker to enjoy and continue
to which ha can legitimately expect to be permitted to do until there has been

231
Pandey, J.N., Constitutional Law of India, (2007) at 87
232
Ibid
233
Ibid
234
Dicey as quoted by Pandey, J.N., Constitutional Law of India, (2007) at 98
235
Council of Civil Services Union v. Minister for the Civil Services 1985 All 374

197
 communicated to him some rational grounds for withdrawing it on which he
has been given an opportunity to comment.

ii) Has received assurance from the decision maker that they will not be
withdrawn without giving him first opportunity of advancing reasons for
236
contending that they should be withdrawn . The procedural part of it relates
to a representation that hearing or other appropriate procedure will be afforded
before the decision is made. The substantive part of the principle is that it will
be continued and not be substantially varied then the same could be enforced.

4.5.1 Position in India -

The principles of substantive legitimate expectation have been accepted by

the Courts in India:

A. Duty to act fairly œ

237
In Navjyoti Co-Op. Group Housing Society v. Union of India , the principle
of procedural fairness was applied. In that case the seniority as per existing list of
co-operative housing societies for allotment was altered by a subsequent decision.
The previous policy was that the seniority amongst housing societies in regard to
allotment of land was to be based on the date of registration of the society with the
registrar. But on 20.1.1990 the policy as changed by reckoning seniority as based
upon date of approval of the final list by the Registrar. This altered the existing
seniority of societies or allotment of land. The court held that the societies were
entitled to a ”legitimate expectation‘ that the past consistence practice in the matter
of allotment will be followed even if there was no right in private law for such
allotment. The authority was not entitled to defeat the legitimate expectation of the
societies as per previous seniority list without overriding reason of public polity to
justify the change in the criterion. No such overriding reason of public policy was
shown. According to principle of legitimate expectation, if, the authority proposed to
defeat a person‘s legitimate expectation, it should afford him an opportunity to make
representation in the matters. It was held that the doctrine imposed in essence, duty

236
Ibid
237
(1992) 4 SCC 477

198
to act fairly by taking into consideration all relevant factors, relating to such
238
legitimate expectation .
B. Right to Fair Hearing œ

The Supreme Court considered the question elaborately in Union of India v.

239
Hindustan Development Corporation . In that case trends were called for supply of
steel bodies to the Railways. The three big manufacturers quoted less than the
smaller manufacturers. The Railway then adopted a dual pricing policy giving
counter offers of a lower rate to the big manufacturers who allegedly formed a cartel
and higher offer to other so as to enable to healthy competition. This was challenged
by the three big manufacturers complaining that they were also entitled to higher
rate. The court held that the change into a dual pricing policy was not vitiated and
was based on reasonable grounds.

After citing various authorities and judgments the court observed that
legitimate expectation was not the same thing as anticipation. It was also different
from a mere wish or desire or hope. Nor was it a claim or demand based on right. A
mere disappointment would not give rise to legal consequences. The court held that
the legitimacy of an expectation can be inferred only if it is found on the sanction of
law or custom or an established procedure followed in regular and natural
consequences such expectation should be justifiable, legitimate and practicable.

4.6 Article 14 strikes at Arbitrariness œ

The doctrine of reasonable classification has been for long, the undisputed
touch stone to determine the scope and context of Article 14. Towards the end of
240
1973, in a concurring opinion in E.P. Royappa v. State of Tamilnadu , propounded
a new approach to Article 14 in the following words:

—Equality is a dynamic concept with many aspects and dimensions and it

cannot be cribbed, cabined and confined within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies, one belongs to the rule of law in a

238
Ibid
239
AIR 1993 SC 155
240
AIR 1974 SC 555

199
republic while the other to be whim and caprice of an absolute monarch. When an
act is arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violation of Article 14“.
241
In Maneka Gandhi v. Union of India , quoting himself from Royappa case,
Bhagwati, J. very clearly read the principle of reasonableness in Article 14. He said:

—Article 14 strikes at arbitrariness in State action and ensures fairness and

equality of treatment. The Principle of reasonableness which logically as well as
philosophically, is an essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresent“.

4.6.1 Rules of Natural Justice, Article 14 and Legitimate Expectation œ

It was the case Scheduled Caste and Weaker Section Welfare Association
242
(Regd) and others v. State of Karnataka and others , where it was held that it is
one of the fundamental rules of our Constitutional set up that every citizen is
protected against exercise of arbitrary authority by the State or its officers. If there is
power to decide and determine to the prejudice of a person, duty to act judicially is
implicit in the exercise of such power and the rule of natural justice operates in areas
not covered by any law validly made. It is only applied where there is nothing in the
statute to actually prohibit the giving of an opportunity to be heard, but on the other
hand, the nature of the statutory duty imposed itself necessarily implied obligation to
hear before deciding, that could be imported.

4.6.2 Prohibition of Discrimination against Citizens œ

Article 14 embodies the general principle of equality before the law. The
specific application of the same principle is provided in Article 15. Article 15
243
concretizes and enlarges the scope of Article 14 . The scope of the clause 15(1) is
wide. It is attracted against any State action relating to the citizen‘s rights, whether
political, civil or otherwise244.

241
AIR 1978 SC 597
242
(1991)2 SCC 604
243
Shukla, V.N., The Constitution of India, (2001) at 70
244
Ibid

200
4.6.3 Administrative law and its Dimensions œ

Administrative law touches every facet of our lives and has become a major
field of study and research. Government activities now penetrates almost each and
every aspect of life and extends to the very of everyday life of an average citizen.
Administration is all pervasive today. Before a person can undertake any activity he
may need the sanction, permission, permit or a license from some administrative
authority. The truth is that modern administration affects every individual. This
raises the perennial question which has been bothering the jurists and philosophers
from the dawn of the human civilization, viz., and the question of abuse or misuse of
245
power . Doctrine of legitimate expectation is one of the remedy and has now
emerged as an important doctrine. It operates in public domain and inappropriate
cases constitute a substantive and enforceable right. As a doctrine it takes its place
besides such principles as rule of law, non arbitrariness, rules of natural justice,
246
reasonableness, fairness, promissory estoppel, fiduciary duty . The concept of
legitimate expectation has now gained importance in administrative law as a
247
component of natural justice, non arbitrariness and rule of law . The principles are
at the root of the doctrine of Rule of Law which requires regularity, predictability
and certainty.

4.7 Rule of Law œ

The Rule of Law according to Dicey is one of the basic features of the
English Constitutional system. It has a number of different meanings and corollaries.
According to Edward Coke, it means: firstly, absence of arbitrary power on the part
of the government, which means that the administration possesses no discretionary
powers apart from those conferred by law. From this follows the corollary that no
man is punishable or can be made to suffer in body or goods, except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of
248
land .

245
Jain, M.P., Changing Face of Administrative Law in India and Abroad, (1982) at 2
246
Massey, I.P., Administrative Law, (2005) at 308
247
Food Corporation of India v. Kamdhenu Cattle Feed Ind (1993)1 SCC 71, 76
248
Kesari, U.P.D., Lectures on Administrative Law, (2007) at 24

201
4.7.1 Definition of Rule of Law -
Rule of law has been defined differently by different writers; some are of the
view that sovereignty of Parliament is an illustration of the Rule of Law as it applies
in the country. Garner has quoted Robsen and said the Rule of law can be explained
as meaning no more than that law and order……..the same law is observed
throughout the territory of the State, and thus in this sense, every state having
a
reasonably competent
i) Dicey‘s Meaningand
- efficient police force is subject to the Rule of Law249.

Dicey explained the following three meanings of the rule of law:

- Supremacy of law
- Equality of law
- Predominance of legal spirit250.
- In the words of Dicey it means, —The absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness, of prerogative or even
of wide discretionary authority on the part of government“251.

- It means equality before the law, or the equal subjection of all classes to
the ordinary law of the land administered by the ordinary law courts,
there is complete absence of any special privilege for a government
official or any other person and everyone is under the same law252.
-
The ”rule of law‘, Dicey says may be used as a formula for expressing the
fact that the law of the Constitution, are not the source but the
consequences of the rights of individual as defined and enforced by the
253
courts .
Harry W. Jones infers that the concept of rule of law embodies three essential
ingredients254:

249 Robson, Justice and Administrative Law as quoted by Garner, J.F., Administrative Law, (1967) at 18
250
Dicey, A.V., The Law of Constitution, (2000) at 202
251
Ibid
252
Ibid
253
Ibid
254
Marry Jones, The Rule of Law and the Welfare State as quoted by Mathew, K.K., Democracy,
Equity and Freedom, (1978)at 34

202
 - Every person whose interest will be affected by a judicial or
administrative decision has the right to a meaningful day in Court.

- That the deciding officer shall be independent and free from all external
directions by political or administrative superiors; and

- Decision shall be reasoned rationally.

The idea of the Rule of Law, as a modern form of law of nature was
formulated in some detail by the International Commission of Jurists, in their
Declaration of Delhi, made at that city in January, 1959 the Declaration has been
summarized as follows:

a) The function of the legislature in a free society under the Rule of Law is to
create and maintain the conditions which will uphold the dignity of man as
an individual. This dignity require not only certain recognition of his civil
and political rights but also establishment of the social, economic,
educational and cultural conditions which are essential to the full
development of his personality255.

b) The Rule of Law depends not only on the provision of adequate safeguards
against abuse of power by the Executive, but also on the existence of
effective government capable of maintaining law and order and of ensuring
adequate social and economic conditions of life for the society256.

c) An independent judiciary and a free legal profession are indispensable

requisites of a free society under the Rule of Law257.

4.7.2 Legitimate Expectation and Rule of Law œ

John Rawls says that the conception of formal justice, the regular and
impartial administration of public rules, becomes the Rule of Law when applied to
the legal system and he has called such fair administration of law as —justice
as 258
regularity“ . He is of the view that rule of law is closely related to liberty.
According to him legal system is a coercive order of public rules addressed to

255
Garner, J.F., Administrative Law, (1967) at 20-21
256
Ibid, at 21
257
Ibid
258
Rawls, John, A Theory of Justice, (1976) at 235

203
rational persons for the purpose of regulating their conduct and providing the
framework for social co-operation. When these rules are just they raise legitimate
expectation. They constitute grounds upon which persons can rely on one another
and rightly object when their expectation are not fulfilled. If the bases of these
259
claims are unsure, so are the boundaries of men‘s liberty . If the rules are fair or
just, then once men have entered into the arrangements and accepted the benefit that
result, the obligations which thereby arise, constitute a basis for legitimate
expectation.

The legal order is a system of public rules addressed to rational persons, we

can account for the precepts of justice associated with the Rule of Law. These
percepts are those which would be followed by any system of rules which perfectly
embodied the idea of a legal system260 and thereby formed the basis for the
legitimate expectation.

4.7.3 The Percept of Justice Associated with Rule of Law which forms basis of
Legitimate Expectation œ

There are several obvious features of legal system which forms the basis for
legitimate expectation. These are as follows261:

i) The action which the Rule of Law requires and forbid should be of a kind
which men can reasonably be expected to do or to avoid.

ii) The notion that ought to imply can conveys the idea that those who enact
laws and give orders do so in good faith.
iii)
The percept expresses the requirement that a legal system should recognize
impossibility of performance as a defense, or at least as mitigating
circumstances.

iv) The Rule of Law also implies the percept that similar cases be treated
similarly.
v)
The percept forces them to justify the distinctions that they make between

259
Ibid
260
Id., at 236
261
Id at 237-239

204
 persons by reference to the relevant legal rules and principles.

vi) The percept demands that the laws be known and expressly promulgated,
that their meaning be clearly defined, that the statutes be general both
in
statement and intent and not be used as a way of harming particular
individuals
vii) The perceptswho
alsomay be expressly
demands named.
that the rules of natural justice be followed.

4.8 Locus Standi œ

4.8.1 Meaning -

Locus Standi means the legal capacity to invoke the jurisdiction of the court.
According to simple dictionary meaning it means ”place of standing‘ used to
describe the right of appearing in court either as plaintiff or defendant262.

The traditional rule of locus standi is that judicial redress is available only to
a person who has suffered a legal injury by violation of his legal right or legally
protected interest by the impugned action of the State or a public authority or any
other person who is likely to suffer a legal injury by reason of threatened violation of
263
his legal rights or legally protected interest by any such action . The basis of
entitlement to judicial redress is personal injury to property, body, mind or
reputation arising from violation, actual or threatened to the legal or legally
264
protected interest of the person seeking such redress . This is a rule of ancient
vintage and it arose during an era when private law dominated the legal scene and
public law had not yet been born265.

The rule of law requires that poor and illiterate persons should be assisted in
enforcing their rights. If the poor persons cannot enforce the right given to them by
law because of poverty or other reasons, there will be no rule of law in the
real
sense. But the concept of locus standi could not meet the new challenges raised by
new corners for the social rights and collective claims of the underprivileged and

262
Sinha, Hari Mohan, Legal Dictionary, (1997) at 149
263
S. P. Gupta and Others v. President of India & others, AIR 1982 SC 149
264
Rao, Mamta, Public Interest Litigation, (2002) at 200
265
Supra note 265

205
deprived sections of the society266.

Along with this, there was a constant fear in the mind of jurists267 that the
liberalization of the rule of locus standi will lead to a floodgate of litigation. This
would lead to burdening of our judiciary a lot of useful time of our court would be
wasted in entertaining these litigations. It would lead to further delay in the work f
our courts which are already lagging behind.

But the argument in favor of relaxing the rule of locus standi is that violation
of rights takes place, redressal should be there and for these traditional rules of locus
standi should not come in the way to give justice to the aggrieved person. The
traditional rule of locus standi was relaxed in favor of those who could not approach
the court due to poverty or other reasons.
268
In the case Municipal Council Ratlam v. Vardichand , the Supreme Court
allowed ”standing‘ to an ordinary citizen to initiate action under section 133 of the
Code of Criminal Procedure, 1973 to initiate action. The Municipality, which failed
to discharge its public duties such as maintenance of roads and providing sanitary
facilities. The plea of municipality of lack of funds to carry out the amenities was
rejected as an invalid defence and suggested several schemes to bring relief to the
residents of the locality.

Thus, in Vardichand‘s case Krishna Iyer, J. not only broadened the locus
standi concepts but the affirmative action involved by the Court in this case opened
up many new avenues for judicial action in the service of disadvantaged and
deprived groups of people for whom the court had a distant dream and not a place of
getting justice.

The traditional rule of locus standi resulted in the denial of equal access to
justice to those who because of their poverty or socially or economically
disadvantaged position are unable to approach the court for relief. —Lest the Golden
key to unlock the doors of justice to remain only with the moneyed people“. Thus,
the Supreme Court took a dynamic approach and liberalized the rule of locus standi

266
Bhagwati, P.N., Judicial Activism and PIL (1985) at 12
267
Justice Julzapuskar has criticized the concept of PIL
268
AIR 1980 SC 1622

206
in a series of cases269.

4.8.2 Legitimate Expectation and locus standi œ

Demarcating the scope of the doctrine the court hold that legitimate
expectation gives sufficient locus standi to the applicant for judicial review. The
doctrine is too confined mostly to a right of fair hearing before a decision which
results in negativating a promise or withdrawing an undertaking. Though the denial
of legitimate expectation is a ground for the denial is arbitrary, unreasonable not in
public interest and inconsistent with the principles of natural justice or where denial
is in violation of a right270.

4.9 Natural justice œ

4.9.1 Procedural legitimate expectation based on Principles of Natural Justice -

Doctrine of legitimate expectation takes its place besides the principles of
271
natural justice, rule of law , non-arbitrariness, reasonableness, fairness etc. As
already mentioned legitimate expectation are of two types:

- Substantive legitimate expectation,

- Procedural legitimate expectation272.

Substantive part of the principle relates to representation that a benefit of a

substantive nature will be granted or will be continued273.

The procedural part of it relates to a representation that a hearing or other

appropriate procedure will be afforded before any change in decision is made. The
procedural legitimate expectation cannot be withdrawn without giving a person
some opportunity of advancing reason for contending that it should not be
274
withdrawn . The fair procedural legitimate expectation will be used to denote the
existence of some species of process right, whether in the form of natural justice,
fairness or to a related idea of consultation, which the applicant claims to possess as
the result of some behavior by the public body which generates the
expectation.
269
People‘s Union for Democratic Rights v. UOI, AIR 1982 SC 1473
270
UOI v. Hindustan Development Corpn., (1993) 3 SCC 499
271
Supra note 256
272
Punjab Communications Ltd. V. UOI (1999) 4 SCC 727
273
Ibid
274
Ibid

207
Natural justice is an important component of the doctrine of legitimate expectation
without following the principles of natural justice.

The minimum fair procedure which the administrative agencies have to

follow refers to the principles of natural justice. Natural justice implies fairness,
reasonableness, equity and equality. It represents higher procedural, principles
developed by judges which every administrative agency must follow in taking any
275
decision adversely affecting the rights of a private individual . Natural justice is
another name for common sense justice. Rule of natural justice are not codified
cannons, but they are principles ingrained into the conscience of men. Natural
justice in the administration of justice is the common sense in liberal way. Justice is
276
based substantially on natural ideals and human values . The administration of
justice is to be freed from the narrow and restricted considerations which are usually
associated with a formulated law involving linguistic technicalities and grammatical
niceties. It is the substance of justice which has to determine its form277.

4.9.2 Natural Justice as enshrined in the constitution -

The principles of Natural Justice have enriched law and constitution the
world over. Though the Indian Constitution does not use the expression natural
justice, the concept of natural justice divested of all its metaphysical and theological
trappings pervades the whole scheme of the Constitution. The concept of social and
economic justice in the Preamble of the Constitution, conceptually speaking, is the
concept of fairness in social and economic activities of society which is the basis of
the principles of natural justice. Article 311 contains all the principles of natural
justice without using the expression as such. Duty to act fairly is part of fair
278
procedure envisaged under Article 14 and 21 of the Constitution . Every activity of
a public authority or those under public duty or obligation must be informed
by 279
reason and guided by public interest .exercise of jurisdiction by courts in India, in
this behalf, is not something extra-constitutional. Now, the principles of natural

275
Supra note 246 at 164
276
Chaturvedi, R.G., Natural and Social Justice, (1970) at 7
277
Ibid
278
Supra note 246 at 166,167
279
LIC v. Consumer Education and Research Centre (1995)5 SCC 482

208
justice are firmly grounded in Article 14 and 21 of the Constitution. With the
introduction of the concept of substantive and procedural due process in Article 21
of the Constitution all that fairness which is included in the principles of natural
justice can be read into Article 21 when a person is deprived of his life and personal
280
liberty . In other areas it is Article 14 which now incorporates the principles of
natural justice. Article 14 now applies not only to discriminatory class legislation
but also to State action, because violation of natural justice results in arbitrariness,
therefore, violation of natural justice of the Equality clause of article 14. This all
suggests that now the principles of natural justice are grounded in the Constitution.

There are usually two principles of natural justice. These are:

- Nemo in propria causa judex, esse debet - rule against bias or no one should
be made a judge in his own cause.

- Audi alteram partem œ hear the other party, or the rule of fair hearing, or the
rule that no one should be condemned unheard.

A. Rule against bias œ

A party cannot be judge in his own cause as it may lead to biasness. ”Bias‘
means an operative prejudice, whether conscious or unconscious, in relation to a
party or issue. Such operative prejudice may be the result of a preconceived opinion
or a predisposition or a predetermination to decide a case in a particular manner, so
281
much so that it does not leave the mind open . It means that a judge must be
impartial. This is known as the rule against bias. That bias disqualifies an individual
from acting as judge flows from two principles:

i) No one should be a judge in his own cause.

ii) Justice must not only be done but seen to be done.

An essential element of judicial process is that the judge has to be impartial

and natural and to be in a position to apply his mind objectively to the dispute before
him. Proceedings before a judge maybe vitiated if he is biased, if there are factors
which may influence him to improperly favor one party at the cost of the other party

280
Supra note 246 at 167
281
Ibid at 179

209
 282
in the dispute . Bias is usually of three kinds:
a) Pecuniary bias;
b) Personal bias;
c) Bias as to subject matter or policy bias283.

a. Pecuniary bias -

A direct pecuniary interest, howsoever small or insignificant, will disqualify

a person from acting as a judge284.

b. Personal bias œ

Personal biasness may rise as adjudicator may be friend or relation of the

party, or has some business or professional relationship with him, or may have some
personal animosity or hostility against him285.

c. Policy bias œ

Bias as to subject-matter or policy bias adjudicator may be associated in

subject-matter as a member of association otherwise with a private body or with the
administration of his official capacity286.

B. Audi alteram partem œ

This rule ensures that no one should be condemned unheard. It is the first
principle of civilized jurisprudence that a person against whom any action is sought
to be taken, or whose right or interest is being affected, should be given a reasonable
opportunity to defend himself. There is no fixed standard of reasonableness of the
opportunity being heard. The civil courts are bound by rules of procedure contained
in the Civil Procedure Code, then the Indian Evidence Act, there is no such uniform
287
body of procedural norms to be followed by adjudicatory bodies . Some of the
procedures are:

282
Jain, M.P., Principles of Administrative Law, (1999) 220
283
Ibid at 231
284
Ibid
285
Ibid
286
Ibid at 235
287
Ibid at 248

210
a. Notice -
A Basic principle of natural justice is that before adjudication starts the
authority concerned should give to the affected party a notice of the case against him
288
so that he may adequately defend himself . Absence of notice may frustrate
expectation.

b. Hearing-

It is the requirement of natural justice that quasi-judicial bodies cannot make

a decision adverse to the individual without providing him an effective opportunity
of meeting any relevant allegations against him289.

c. Right to Counsel -

Allen says that, —experience has taught me that to deny persons who are
unable to express themselves, the services a competent man is very mistaken
kindness. Many times, unaided individual is no match against an expert and aided
administrator. In many cases, the right to be heard would be of little avail if counsel
were not allowed to appear. A lawyer can help delineates the issues, present
the
factual contentions in an ordinary manner, cross examine witness and otherwise
safeguard the interests of the party concerned“. 290
In the Supreme Court case, A.K. Roy v. UOI , it was held that if the
government or the detaining authority was represented through a legal practitioner or
legal advisor before the advisory board, the detenue will always have such a right
because of Article 14 and 21.

d. Reasoned order œ

If the deciding authority gives reasons for the decision it minimizes chances
of irrelevant or extraneous considerations from entering his decisional process, and
it will minimize chances of unconscious infiltration of personal bias or unfairness in
the conclusion. Giving of reasons also gives satisfaction to the party against whom
the decision is made. Justice should not only be done but should also see to be done.

288
Id at 249
289
Id at 253
290
AIR 1982 SC 710

211
Unreasoned decision may be just but may not appear to be so to the persons
affected. A reasoned decision, on the other hand, will have the appearance of
justice291.
292
In the Maneka Gandhi v. UOI , it was held that the authority is to record its
reasons and furnish a copy of the same to the concerned individual on demand while
impounding his/her passport. The authority may refuse to give reasons in public
interest amongst other grounds. It was stated that authority would have to satisfy the
court by placing proper material before it, that the giving of reasons would be clearly
against the interests of the general public. If the court is not so satisfied it would
require the authority to disclose the reasons.

e. One who decides must hear œ

The position is uncertain in India but the divided responsibility of hearing

and deciding violated the principles of natural justice. —This divided responsibility is
destructive of the concept of judicial hearing“ for in the opinion of the court,
”personal hearing enables the authority concerned to watch the demeanors of
the
witnesses and clear up his doubts during the course of the arguments, and the party
appearing to persuade the authority by reasoned argument to accept his point
of
view. If one person
4.10 Legitimate hears and
Expectation as a another decides,
ground of Judicial than personal
Review œ hearing becomes a
formality‘293.
Legitimate expectation can be a major basis of judicial review of
administrative action and developing sharply in recent times. The concept of
legitimate expectation in administrative law has now, undoubtedly, gained sufficient
importance. It is stated that the legitimate expectation is the latest recruit in a long
list of concepts fashioned by the courts for the review of administrative action and
this creation takes its place besides such principles as the rules of natural justice,
unreasonableness, the fiduciary duty of local authorities and in future, perhaps, the

291
Ibid
292
AIR 1978 SC 597
293 Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308

212
principles of proportionately294.

It only operates in public law field and provides locus standi for judicial
review. Its denial is a ground for challenging the decision but denial can be justified
by showing some overriding public interest. Denial does not by itself confer an
absolute right to claim relief. The right to relief should be limited only to cases while
denial amounts to denial of any right or where decision/ action is arbitrary,
unreasonable, not in public interest and in consistent with principles of natural
justice. The court will not interfere merely on the ground of change in government
policy. In the instant case, question arose regarding the validity of the dual policy of
the government in the matter of contract with private parties for supply of
good.
There was no fixed procedure for fixation of price and allotment of quantity to be
supplied by the big and small suppliers. The government adopted a dual price policy,
lower price for big suppliers and higher price for small suppliers in public interest
and allotment of quantity by suitably adjusting the same so as to break
295
the cartel.
The court held that this does not involve denial of any legitimate expectation . The
court observed: legitimate expectation may come in various forms and owe their
existence to different kind of circumstances and it is not possible to give an
exhaustive list in the context of vast and fast expansion of governmental activities.
By and large they arise in cases of promotions which are normal course expected,
though not guaranteed by way of statutory right, in cases of contracts, distribution of
largess by the Government and in somewhat similar situations.

Legitimate expectation gives the applicant sufficient locus standi for judicial
review. The doctrine of legitimate expectation is to be confined mostly to right of
fair hearing before a decision which results in negativing a promise or withdrawing
an undertaking taken. The doctrine does not give scope to claim relief straightway
from the administrative authorities as no crystallized right as such is involved. The
protection of such legitimate expectation does not require the fulfillment of
expectation where an overriding public interest requires otherwise. In other words,
where a person‘s legitimate expectation is not fulfilled by taking a particular

294
UOI v. Hindustan Development Corpn. (1993)3 SCC 499
295
Ibid

213
decision then decision-maker should justify the denial of such 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. It simply ensures the circumstances which that expectation
296
may be denied or restricted . 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 though not guaranteed. A case of legitimate
expectation would arise when a body by representation or by past practice aroused
expectation which it would be within its powers to fulfill. The protection is limited
to that extent and a 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 foundation and thus he has locus standi to make such a claim. There are
stronger reasons as to why the legitimate expectation should not be substantively
protected than the reason as to why it should be protected. Such an obligation exists
whenever the case supporting the same in terms of legal principles of different sorts
is stronger than the case against it. Therefore, the limitation is extremely confined
and if according to natural justice does not condition the exercise of 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 decisions
under law and the Court is expected to apply an objective standard which leaves to
the deciding authority the full range raise of choice which the legislature is
297
presumed to have intended . Even in a case where the decision is left entirely to
the discretion of the deciding authority without any such bounds and if the decision
is taken fairly and objectively, the court will not interfere in the ground of
procedural fairness to a person whose interest based on legitimate expectation might
298
be affected . If it is a question of policy even by way of change of old policy, the
courts cannot interfere with a decision. If a denial of legitimate expectation in a
given case amounts to denial of right guaranteed or arbitrary, discriminatory, unfair
or biased, gross abuse of power or violation of principles of natural justice, the same

296
Ibid
297
Ibid
298
Ibid

214
can be questioned on the well known grounds attracting Article 14 but a claim based
on mere legitimate expectation without anything more cannot ipso facto give a right
to invoke these principles warranting interference. It depends very much on the facts
and the concepts of legitimate expectation which is the latest recruit to a long list of
concepts fashioned by the courts for the review of administrative action, must be
restricted to the general legal limitations applicable and binding the manner of the
future exercise of administrative power in particular case, it follows that the concept
of legitimate expectation is not the key which unlocks the treasury of natural justice
and it ought not to unlock the gate which is shut, the court out of review on the
merits, particularly when the element of speculation and uncertainty is inherent in
that every concept. The court should restrain them and restrict such claims duty to
the legal limitations.

215