Administrative Law

1. Doctrine of Legitimate Expectation

2. Judicial Review of Administrative
Action
3. Tribunals
Doctrine of Legitimate Expectation
• When one has suffered civil consequence (although they
are not able to justify their claims on the basis of law)
because their legitimate expectation has been violated. The
doctrine is aimed to give relief to the parties.
• First used in 1969 by Lord Denning.
• In India, SC has developed this doctrine in order to check
the arbitrary exercise of power by the administrative
authorities.
• The doctrine provides a space between ‘no claim’ and ‘legal
claim’, where a public authority can be made accountable
on ground of expectation which is legitimate.
 Example
• Government has made a scheme for providing drinking
water in villages in certain area but later on changed it,
so as to exclude certain villages from the purview of
the scheme, then in such a case, what is violated is the
legitimate expectation of the people in the excluded
villages for tap water, and the government can be held
responsible if the exclusion is not fair and reasonable.
• Hence the doctrine becomes a part of natural justice
and no one can be deprived of his legitimate
expectations without following the principles of natural
justice.
• Derives strength from Article 14 of the
Constitution—no arbitrariness; fairness in
administrative dealings.
[Art 14 protection is available not only in case of
arbitrary ‘class legislation’ but also in case of
arbitrary ‘state action’]
 Development of England
• First used in Schmidt v Secy of State for Home
Affairs (Lord Denning)—Govt had cut short the
period already allowed to an alien to enter
and stay in England; court held that the
person had legitimate expectation to stay in
England which cannot be violated without
following a procedure which is fair and
reasonable. Legitimate expectation was used
to denote ‘right’.
 Coughlan
• http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html

“56. What is still the subject of some controversy is the court’s role
when a member of the public, as a result of a promise or other
conduct, has a legitimate expectation that he will be treated in one
way and the public body wishes to treat him or her in a different way.
Here the starting point has to be to ask what in the circumstances the
member of the public could legitimately expect. In the words of Lord
Scarman in Re Findlay [1985] 1AC 318 at p338, “But what was
their legitimate expectation?” Where there is a dispute as to this, the
dispute has to be determined by the court, as happened in Findlay.
This can involve a detailed examination of the precise terms of the
promise or representation made, the circumstances in which the
promise was made and the nature of the statutory or other discretion.
57. There are at least three possible outcomes.
(a) The court may decide that the public
authority is only required to bear in mind its
previous policy or other representation, giving it
the weight it thinks right, but no more, before
deciding whether to change course. Here the
court is confined to reviewing the decision
on Wednesbury grounds.
(b) On the other hand the court may decide that
the promise or practice induces a legitimate
expectation of, for example, being consulted before
a particular decision is taken. Here it is
uncontentious that the court itself will require the
opportunity for consultation to be given unless
there is an overriding reason to resile from it in
which case the court will itself judge the adequacy
of the reason advanced for the change of policy,
taking into account what fairness requires.
(c) Where the court considers that a lawful promise
or practice has induced a legitimate expectation of
a benefit which is substantive , not simply
procedural, authority now establishes that here too
the court will in a proper case decide whether to
frustrate the expectation is so unfair that to take a
new and different course will amount to an abuse
of power. Here, once the legitimacy of the
expectation is established, the court will have the
task of weighing the requirements of fairness
against any overriding interest relied upon for the
change of policy.
58. The court having decided which of the categories is
appropriate, the court’s role in the case of the second and
third categories is different from that in the first. In the
case of the first, the court is restricted to reviewing the
decision on conventional grounds. The test will be
rationality and whether the public body has given proper
weight to the implications of not fulfilling the promise. In
the case of the second category the court’s task is the
conventional one of determining whether the decision
was procedurally fair. In the case of the third, the court
has when necessary to determine whether there is a
sufficient overriding interest to justify a departure from
what has been previously promised. ”
 Development in India
• First reference in State of Kerala v K.G. Madhavan Pillai—
The Govt. had issued a sanction to the respondents to open
a new unaided 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 principles of natural justice.

• 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.
• NLC Officers’ Association v Government of
India [Madras High Court Judgment]—Case
Brief
• Jasbir Singh Chhabra & Ors v State of Punjab &
Ors [2010] –Case Brief
• UOI v Hindustan Development Corpn (1993) 3
SCC 499 --Headnotes
 UOI v Hindustan Development Corpn
• ". ... For legal purposes, the expectation cannot be the same as
anticipation. It is different from a wish, a desire or a hope nor can it
amount to a claim or demand on the ground of a right. However
earnest and sincere a wish, a desire or a hope may be and however
confidently one may look to them to be fulfilled, they by
themselves cannot amount to an assertable expectation and a mere
disappointment does not attract legal consequences. A pious hope
even leading to a moral obligation cannot amount to a legitimate
expectation. 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 protectable. Every such
legitimate expectation does not by itself fructify into a right and
therefore it does not amount to a right in the conventional sense."
 Question
The Indian government is aggressively pursuing the case of black money and
the illegal transfers of money accrued to various banks in foreign countries. In
its efforts to pursue the matter the government has come across valuable
information on bank details of various prominent individuals in certain foreign
banks. However, citing reasons of state security, the government refuses to
disclose these details to the general public.
An opposition leader Q seizes this opportunity and organises an election
campaign around the government’s weak will to actually tackle the black
money and accuses the government of bad faith in not disclosing the
information it has acquired.
However, on winning the election and coming to power, he too backtracks on
his promise to disclose names received as part of the work of investigations
into the matter of black money.

Can a citizen challenge this change of heart on the grounds of frustration of

legitimate expectations?
 Tribunals
Can a tribunal replace the judicial jurisdiction
under Art. 32, 226 and 227 of the Indian
Constitution?
 L.Chandra Kumar v. UOI

Facts of the case: There were special leave petitions, civil appeals and writ
petitions which formed a batch of matters, brought before the Supreme Court
in this case, owing their origin to separate decisions of different High-Courts
and several provisions in different enactments-- thereby raising several
distinct questions of law, which were grouped together in this case for the
purpose of adjudication upon them. These matters were broadly pertaining
to- the constitutional validity of sub-clause (d) of clause (2) of Article 323-A
and sub-clause (d) of clause (3) of Article 323-B of the Constitution of India,
1950; and also in regards to the constitutional validity of the Administrative
Tribunals Act, 1985; moreover what was also the subject of challenge was
whether the Tribunals constituted under Part XIV- A of the Constitution of
India can be effective substitutes for the High-Courts in discharging the power
of judicial review.
 ISSUES
1. Whether the power conferred upon Parliament or State Legislatures, as the case
may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause
(3) of Article 323-B of the Constitution, totally exclude the jurisdiction of all courts,
except that of the Supreme Court under Article 136, in respect of disputes and
complaints referred to in clause (1) of Article 323-A or with regard to all or any of the
matters specified in clause (2) of Article 323-B, runs counter to the power of judicial
review conferred on the High-Courts under Articles 226/227 and on the Supreme
Court under Article 32 of the Constitution?

2. Whether the Tribunals, constituted either under Article 323-A, or under Article 323-
B of the Constitution, possess the competence to test the constitutional validity of a
statutory provision/rule?

3. Whether these Tribunals, as they are functioning at present, can be said to be

effective substitutes for the High-Courts in discharging the power of judicial review? If
not, what are the changes required to make them conform to their founding
objectives?
1. The power of judicial review is a basic and essential feature of the Constitution and
the jurisdiction conferred on High Courts under Articles 226 and 227 and on Supreme
Court under Article 32 of the Constitution is a part of the basic structure of the
Constitution.

2. For securing independence of judiciary, the judges of superior courts have been
entrusted with the power of judicial review. Though the Parliament is empowered to
amend the Constitution, the power of amendment cannot be exercised so as to
damage the essential feature of the Constitution or to destroy its basic structure.

3. The High Courts and the Supreme Court have been entrusted with the task of
upholding the Constitution (i.e. furthering the ends of the Constitution) and with a
view to achieving that end, they have to interpret the Constitution.
 Court held…
1. The Court held that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to
the extent they exclude the jurisdiction of the High-Courts and the Supreme Court
under Articles 226/227 and 32 of the Constitution, are unconstitutional.
2. Section 28 of the Administrative Tribunals Act, 1985 excluded the power of judicial
review exercised by the High-Courts in service matters under Articles 226 and 227;
however it did not exclude the judicial review entirely in as much as the jurisdiction of
the Supreme Court under Article 136 of the Constitution was kept intact. The Court
held that Section 28 of the Administrative Tribunals Act, 1985 and the “exclusion of
jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A
and 323-B would, to the extent that they exclude the jurisdiction of the High-Courts
(under Articles 226 and 227) and the Supreme Court (under Article 32) would be ultra-
vires the Constitution.
3. The Court said that the jurisdiction conferred upon the High-Courts
under Articles 226/227 and upon the Supreme Court under Article 32
of the Constitution is part of the inviolable basic structure of our
Constitution.
4. The Court held that there was no Constitutional prohibition against
administrative tribunals in performing a supplemental as opposed to a
substitutional role; that is in exercising their powers such tribunals
cannot act as substitutes for High-Courts and the Supreme Court. Their
decisions will be subject to scrutiny by a Division Bench of the
respective High-Courts i.e. all decisions of these tribunals (tribunals
created under Articles 323-A and 323-B of the Constitution of India)
will be subject to scrutiny before a Division Bench of the High Court
within whose jurisdiction the concerned tribunal falls.
 Judicial Review
• Judicial Review has been described as judicial
power in action

“a court’s power to review the actions of other

branches of government, especially the court’s
power to invalidate legislative and executive
actions as being unconstitutional.”
[Black’s Law Dictionary]
 Purpose
1. To prevent excessive exercise of powers by
administrative bodies and officials;
2. To ensure that an individual is given fair
treatment by Administrative authorities;
3. To provide remedies to a party or parties
aggrieved.
4. To uphold the rule of law.
Standards/Types of Judicial Review
• Common Law jurisdictions have developed the
model of secondary review where courts
strike down administrative orders based on
the Wednesbury Unreasonableness.
• Civil Law jurisdictions use the concept of the
Doctrine of Proportionality.
 Wednesbury Unreasonableness
• To strike down an order based on this principle, the
order must be so unreasonable that no reasonable
person acting reasonably could have made it.
• This principle was first incorporated in Associated
Provincial Picture Houses Ltd. v. Wednesbury
Corporation, where Lord Green observed that, “Any
person that is entrusted with discretion must, so to
speak, direct himself properly in law. If he does not
obey the rules of the land and arrives at a conclusion
that is so unreasonable that no reasonable man acting
reasonable could have made it, then such persons may
truly be said to be acting unreasonably.”
• Council of Civil Service Unions --the words ‘
illegality’, ‘irrationality’ and procedural
impropriety’ to be construed a part of the
criteria of Wednesbury Unreasonableness.
• “The Wednesbury principle is often misunderstood to mean
that any administrative decision which is regarded by the
Court to be unreasonable must be struck down.
• The correct understanding of the Wednesbury principle is
that a decision will be said to be unreasonable in the
Wednesbury sense if (i) it is based on wholly irrelevant
material or wholly irrelevant consideration, (ii) it has
ignored a very relevant material which it should have taken
into consideration, or (iii) it is so absurd that no sensible
person could ever have reached it.”
-Rameshwar Prasad (VI) v. Union of India, 2006 (2)
SCC 1, Para 242
 Doctrine of Proportionality
• The doctrine states that there must be a correct balance
between the restriction imposed by a corrective measure
and severity of the nature of the prohibited act.
• While applying the doctrine, court examines the
following—
1. Did the action pursue a legitimate aim?
2. Were the measures employed to achieve the aim
suitable?
3. Could the aim have been achieved by less restrictive or
onerous alternatives?
4. Is the restriction or derogation justified in the overall
interest of a democratic society and human dignity?
 Omkumar v. Union of India
Facts: 5 officials of the DDA had delivered
possession of land to a private construction
company without fully collecting the consideration.
Further officials also permitted construction of a
building.
Private construction company collected money
from public in excess of the number of flats built by
them. Many people lost their life savings. Upon
enquiry, DDA officials were punished with censure,
reduction in salary and reduction in the pay scale.
They claimed that punishment is disproportionate.
Held: Supreme Court accepted the application of
proportionality doctrine in India. Supreme Court said that
Indian courts had ever since 1950 regularly applied the
doctrine of proportionality while dealing with the validity of
legislative actions in relation to legislations infringing the
fundamental freedom enumerated in Article 19 (1) of the
Constitution of India. Courts had in the past on numerous
occasions, the opportunity, to consider whether the
restrictions were disproportionate to the situation and were
not the least restrictive of the choices.
The same is the position with respect to legislations that
impinge Article 14 (as discriminatory), and Article 21 of the
Constitution of India.