The (Fictitious) Doctrine of Substantive Legitimate Expectations in India

Abstract

Over the last two decades, the doctrine of substantive legitimate expectations seems to have become a regular feature in the Indian Supreme Court’s jurisprudence. The Court has frequently remarked that the doctrine is ‘part of our law’. These observations suggest that the doctrine - giving rise to ‘crucial and difficult’ questions elsewhere - forms part of constitutional orthodoxy in New Delhi. However, an entirely different picture emerges once we move beyond the rhetoric and examine the Indian Supreme Court’s legitimate expectations docket more closely. This chapter will argue that the substantive legitimate expectations doctrine is fictitious in India, and has evolved in a way that makes it almost impossible for a claim to succeed.

The arguments in this chapter will unfold by: (a) establishing the Court’s resistance to recognising the emergence of substantive legitimate expectations in specific instances where they have been claimed (b) disclosing the broad set of grounds based on which courts will dislodge a legitimate expectation and (c) analysing the deferential standards of judicial review applied to these grounds. The final section will argue that, in the existing doctrinal landscape, claims of substantive legitimate expectations are doomed to fail - and those that have succeeded are either mischaracterised as substantive legitimate expectations claims, or have little to do with substantive legitimate expectations.

Keywords: legitimate expectations, Indian Supreme Court, substantive legitimate expectations