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3 3 16 196 PDF
Administrative law: Doctrine of necessity, doctrine of legitimate expectations and doctrine of delegation
1
Saad Abdulbaqi Sabti, 2 YP Rama Subbaiah
1
Ph.D. Scholar Department of Law, Acharya Nagarjuna University, Andhra Pradesh, India
2
Professors in the Department of Law, Acharya Nagarjuna University, Andhra Pradesh, India
Abstract
In field of administrative law, doctrine is nothing but the set of rules, framework, test, or procedural steps via the common law
precedent using which the judgements can be determined for particular case. When judge defines the ruling, doctrine comes in
place in which process is outlined as well as applied. This process is then further equally applied on all other cases. When enough
judges make use of the process soon enough it becomes established as the de facto method of deciding like situations. In this paper,
we are presenting the study on different doctrines such as doctrine of necessity, doctrine of legitimate expectations, and doctrine of
delegation with respect to administrative law.
1. Introduction or official to act, he will naturally be the one and the only
1.1 Doctrine of Necessity person who can do so [3]. There is no way escaping the
The term Doctrine of Necessity is a term used to describe the responsibility, even if he is personally interested. Transfer of
basis on which administrative actions by administrative responsibility is, indeed a recognized type of ultra vires. In one
authority, which are designed to restore order, are found to be case it was unsuccessfully argued that the only minister
constitutional. The maxim on which the doctrine is based competent to confirm a compulsory purchase order for land for
originated in the writings of the medieval jurist Henry de an airport had disqualified himself by showing bias and that the
Bracton, and similar justifications for this kind of local authority could only apply local act of parliament. A
administrative action have been advanced by more recent legal governor of a colony may validly assent to an act of indemnity
authorities, including William Blackstone. In modern times, the for his own actions since otherwise the act could not be passed
term was first used in a controversial 1954 judgment in which at all [4].
Pakistani Chief Justice Muhammad Munir validated the extra- Bias would not disqualify an officer from taking an action if no
constitutional use of emergency powers by Governor General, other person is competent to act in his place. This exception is
Ghulam Mohammad. In his judgment, the Chief Justice cited based on the doctrine which it would otherwise not
Bracton's maxim, 'that which is otherwise not lawful is made countenance on the touchstone of judicial propriety. The
lawful by necessity', thereby providing the label that would doctrine of necessity makes it imperative for the authority to
come to be attached to the judgment and the doctrine that it decide and considerations of judicial propriety must yield. It
was establishing [1]. can be invoked in cases of bias where there is no authority to
The Doctrine of Necessity has since been applied in a number decide the issue. If the doctrine of necessity is not allowed full
of Commonwealth countries, and in 2010 was invoked to play in certain unavoidable situations, it would impede the
justify administrative actions in Nepal. What is objectionable is course of justice itself and the defaulting party would benefit
not whether the decision is actually tainted with bias but that from it. If the choice is between either to allow a biased person
the circumstances are such as to create a reasonable to act or to stifle the action altogether, the choice must fall in
apprehension in the minds of others that there is a likelihood of favor of the former as it is the only way to promote decision-
bias affecting the decision [2]. The basic rule underlying this making. Therefore, the Court held that bias would not vitiate
principle is that ‘Justice must not only be done but must also the action of the Speaker in impeachment proceedings and the
appear to be done’. action of the Chief Election Commissioner in election matters
[5, 6]
.
1.2 Necessity excludes bias In the USA, the disqualification arising out of bias arises from
An adjudicator who is subject to disqualification on account of the due process of the American Constitution. Therefore, an
bias may nevertheless, can validly adjudicate if: administrative action can be challenged in India and England.
No other person competent to adjudicate is available; Recent trends in the judicial behavior of the American
A quorum cannot be formed without him; or Supreme Court also indicate that where the administrative
No other competent tribunal can be constituted. authority prejudged the issue, the action will be vitiated.
In such situation the rule against bias has to give way to the However, the term ‘bias’ is must be confined to its proper
necessity. If the choice is between allowing a biased person to place. If bias arising out of preconceived notions means the
adjudicate or to stifle the action altogether, the choice must fall total absence of preconceptions in the mind of the judge, then
in favour of the former, as it is the only way to promote no one has ever had a fair trial, and no one ever will. Therefore,
decision-making. Where statute empowers a particular minister unless the preconceived notions are such that it has the capacity
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of biasing the mind of the judge, administrative action would exercise of power so that it does not lead to arbitrariness or
not be vitiated [7, 8]. abuse of power. These principles are intended to provide
safeguard to the citizens against abuse or misuse of power by
1.3 Summary the instrumentalities or agencies of the State. One of the latest
Doctrine of Necessity acts as an exception to ‘Nemo judex in and important of these principles is the 'doctrine of legitimate
causa sua’. Bias would not disqualify an officer from taking an expectation', which is an outcome of synthesis between the
action if no other person is competent to act in his place. This principle of administrative fairness (a component of the
exception is based on the doctrine which it would otherwise not principles of natural justice) and the rule of estoppels.
countenance on the touchstone of judicial propriety. The
doctrine of necessity makes it imperative for the authority to 2.1 Evaluation
decide and considerations of judicial propriety must yield. It The evolvement of the doctrine of Legitimate Expectation in
can be invoked in cases of bias where there is no authority to the Common law jurisdiction can been traced to an obiter
decide the issue. If the doctrine of necessity is not allowed full dictum of Lord Denning M. R in Sehmidt v. Secretary of Home
play in certain unavoidable situations, it would impede the Affairs3. Lord Denning observed in Sehmidt:
course of justice itself and the defaulting party would benefit "The speeches in Ridge v Baldwin show that an administrative
from it. If the choice is between either to allow a biased person body may, in a proper case, be bound to give a person who is
to act or to stifle the action altogether, the choice must fall in affected by their decision an opportunity of making
favor of the former as it is the only way to promote decision- representations. It all depends on whether he has some right or
making. But it has also been made very clear by the Supreme interest or I would add, some legitimate expectation, of which
Court that Doctrine of Necessity cannot be invoked every now it would not be fair to deprive him without hearing what he has
and then, as if that is done, it might lead to absence of Rule of to say."
Law in the Society. Hence, Doctrine of Necessity should be In this case certain non national students at Hubbard College of
taken as ‘Doctrine of Absolute Necessity’. Scientology had been given leave to enter the United Kingdom
Every kind of preference is not sufficient to vitiate an before July, 1968, initially for a period of a month. The periods
administrative action. If the preference is rational and had been extended to the end of August and September 1968,
unaccompanied by consideration of rational interest, pecuniary respectively. Applications were made on behalf of the plaintiffs
or otherwise, it would not vitiate the decision. Similarly, there to the Home Office on June 11 and July 15, 1968 for
must be a real likelihood and not a mere suspicion of bias, extensions of their stay until November and December 1968, to
before the proceedings can be quashed on the ground of bias. It complete their studies. By letters of July 29 and 30 the Home
is also important to note that this rule is not confined to cases Secretary, the defendant, rejected the applications. The
where judicial power stricto sensu is exercised. It is plaintiff's stay was, however, extended to September 30 to let
appropriately extended to all cases where an independent mind them make arrangements to leave.
has to be applied to arrive at a fair and just decision between The Plaintiffs, on behalf of themselves and 50 other alien
the rival claims of the parties. The strict standards applied to students of the college, claimed declarations against the
authorities exercising judicial power are being increasingly defendant that his decision not to consider further similar
applied to administrative bodies for it is vital to the applications for extension of stay was unlawful, void, and of no
maintenance of rule of law in a welfare state where the effect and the defendant was bound to consider such
jurisdiction of administrative bodies is increasing at a rapid applications on their merit and in accordance with the
pace that the instrumentalities of the State should discharge principles of natural justice. The court of appeal held that they
their functions in a fair and just manner. had no legitimate expectation of extension and therefore no
right to hearing, though revocation of their permits within the
2. Doctrine of Legitimate Expectations earlier granted period of permit would have been contrary to
What is legitimate expectation? It is an expectation of a legitimate expectation.
benefit, relief or remedy that may ordinarily flow from a The legitimate expectation referred to in, this case did not give
promise or established practice. The term 'established practice' the alien students an enforceable right to stay for the time
refers to a regular, consistent predictable and certain conduct, originally permitted but an enforceable right to be heard before
process or activity of the decision-making authority. The the decision to revoke his permit was taken: a procedural
expectation should be legitimate, that is, reasonable, logical protection only4.
and valid. Any expectation which is based on sporadic or
casual or random acts, or which is unreasonable, illogical or 2.2 Evolution in India
invalid cannot be a legitimate expectation. Not being a right, it As already stated that the Doctrine of "Legitimate Expectation”
is not enforceable as such. It is a concept fashioned by courts, is not a legal right in itself embedded in some statute of Code
for judicial review of administrative action. It is procedural in readily available for its inference and applicability. However it
character based on the requirement of a higher degree of is a right to be treated fairly and the same has been fashioned
fairness in administrative action, as a consequence of the by judicial precedents of various courts over a period time and
promise made, or practice established." is still in its evolving stage.
In order to maintain the balance between the continuously The Supreme Court in M/S Sethi Auto Service Station vs Delhi
evolving freedom of individuals and state authority, the Development Authority & Ors5. has examined the concept of
Administrative law has to also evolve itself to suit the needs 'legitimate expectation'. While dealing with the question of
and expectations of people and their rights and duties. There allotment of a plot by the DDA, the Supreme Court has
are several principles of Administrative Law, which have been enumerated various decisions of the concept of Legitimate
evolved by the courts for the purpose of controlling the
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Expectation and examined the law relating thereto. The Court some overriding public interest comes in the way. However, a
held as under; person who bases his claim on the doctrine of legitimate
"19. The protection of legitimate expectations, as pointed out in expectation, in the first instance, has to satisfy that he has
De Smith's Judicial Review (Sixth Edition) (para 12-001), is at relied on the said representation and the denial of that
the root of the constitutional principle of the rule of law, which expectation has worked to his detriment. The Court could
requires regularity, predictability, and certainty in government's interfere only if the decision taken by the authority was found
dealings with the public. The doctrine of legitimate expectation to be arbitrary, unreasonable or in gross abuse of power or in
and its impact in the administrative law has been considered by violation of principles of natural justice and not taken in public
this Court in a catena of decisions but for the sake of brevity interest. But a claim based on mere legitimate expectation
we do not propose to refer to all these cases. Nevertheless, in without anything more cannot ipso facto give a right to invoke
order to appreciate the concept, we shall refer to a few these principles. It is well settled that the concept of legitimate
decisions. At this juncture, we deem it necessary to refer to a expectation has no role to play where the State action is as a
decision by the House of Lords in Council of Civil Service public policy or in the public interest unless the action taken
Unions & Ors. Vs. Minister for the Civil Service, a locus amounts to an abuse of power. The court must not usurp the
classicus on the subject, wherein for the first time an attempt discretion of the public authority which is empowered to take
was made to give a comprehensive definition to the principle of the decisions under law and the court is expected to apply an
legitimate expectation. Enunciating the basic principles relating objective standard which leaves to the deciding authority the
to legitimate expectation, Lord Diplock observed that for a full range of choice which the legislature is presumed to have
legitimate expectation to arise, the decision of the intended. Even in a case where the decision is left entirely to
administrative authority must affect such person either the discretion of the deciding authority without any such legal
(a) by altering rights or obligations of that person which are bounds and if the decision is taken fairly and objectively, the
enforceable by or against him in private law or; court will not interfere on the ground of procedural fairness to
(b) by depriving him of some benefit or advantage which a person whose interest based on legitimate expectation might
either: (i) he has in the past been permitted by the decision be affected. Therefore, a legitimate expectation can at the most
maker to enjoy and which he can legitimately expect to be be one of the grounds which may give rise to judicial review
permitted to continue to do until some rational ground for but the granting of relief is very much limited.
withdrawing it has been communicated to him and he has been
given an opportunity to comment thereon or (ii) he has 3. Delegation Doctrine Law
received assurance from the decisionmaker that they will not The Delegation doctrine is a principle limiting Congress's
be withdrawn without first giving him an opportunity of ability to transfer its legislative power to another governmental
advancing reasons for contending that they should be branch, especially the executive branch. This is based on the
withdrawn. separation-of-powers concept. It says that the power to declare
25. This Court in Punjab Communications Ltd. Vs. Union of whether or not there shall be a law, to determine the general
India & Ors., referring to a large number of authorities on the policy to be achieved by the law, and to fix the limits within
question, observed that a change in policy can defeat a the limits within which the law shall operate is vested by the
substantive legitimate expectation if it can be justified on constitution in the legislature and it shall not be delegated.
"Wednesbury" reasonableness. The decision maker has the Therefore any statute conferring excessive legislative power is
choice in the balancing of the pros and cons relevant to the invalid because it is unconstitutional to delegate powers.
change in policy. Therefore, the choice of the policy is for the Delegation is permitted only if Congress prescribes clear and
decision maker and not for the Court. The legitimate adequate standards to guide an executive agency in making the
substantive expectation merely permits the Court to find out if policy.
the change in policy which is the cause for defeating the All states whose constitutions contain a separation of powers
legitimate expectation is irrational or perverse or one which no doctrine have adopted some version of the delegation doctrine,
reasonable person could have made. (Also see: Bannari which permits the legislature to delegate the administration of
Amman Sugars Ltd. Vs. Commercial Tax Officer & Ors. the law, to non legislative entities, such as administrative
26. Very recently in Jitendra Kumar & Ors. Vs. State of agencies. Thus, the delegation doctrine allows the legislature to
Haryana & Anr. It has been reiterated that a legitimate focus on the fundamentals of a law leaving to the agencies the
expectation is not the same thing as anticipation. It is distinct task of filling in the gaps by promulgating rules to administer
and different from a desire and hope. It is based on a right. It is the law. However, if legislation does not provide adequate
grounded in the rule of law as requiring regularity, standards for the agency charged with the task of filling in the
predictability and certainty in the Government's dealings with legislative gaps, courts can invalidate the legislation.
the public and the doctrine of legitimate expectation operates
both in procedural and substantive matters. 4. References
1. Massey IP. Administrative Law; 7th ed.; EBC. 2008.
2.3 Summary 2. Basu Durga Das. Administrative Law, 6th ed.; Kamal Law
An examination of the afore-noted few decisions shows that House, Kolkatta. 2005.
the golden thread running through all these decisions is that a 3. Pandey TN. Rule of Natural Justice in the Administration
case for applicability of the doctrine of legitimate expectation, of Law. Taxman. 2003, 131.
now accepted in the subjective sense as part of our legal 4. Jain MP, Jain SN. Principles of Administrative Law; 6th
jurisprudence, arises when an administrative body by reason of Enlarged ed.; Wadhwa Nagpur. 2010, 1.
a representation or by past practice or conduct aroused an 5. De Smith’s. Judicial Review of Administrative Action; 6th
expectation which it would be within its powers to fulfill unless ed.; Sweet & Maxwell. 2007.
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