Can, or should, the poor of Delhi have any expectations at all from the Delhi government?
Five tenants and one landlord, living in the area of Palam village and Chirag Dilli, think that they can; and that too not as a dole, but as their right. They believe that when a government makes a promise, it gives rise to an expectation amongst people which in turn imposes a duty on the government to honour that promise. Therefore, they have requested the Delhi high court to direct the Delhi government to fulfil what they consider to be a ‘legitimate expectation’. How did this happen?
On March 24, 2020, the prime minister declared a nationwide COVID-19-induced lockdown, a decision which left people across the country stunned. Delhi was no exception.
The population of Delhi is estimated to be around three crore. A survey carried out by the Directorate of Economics & Statistics (DES) of the Delhi government between November 2018 and November 2019, found that around 33% of the residents in Delhi were living in rented accommodations. This means that there were around one crore tenants in Delhi.
Obviously, and mercifully, not all of the one crore tenants would have been severely affected by the lockdown. Similarly, not all would have been completely unaffected. There seems to be no data available in the public domain to assess how many tenants were badly affected.
So, resorting to estimation, let us assume that about 20% of the tenants were really badly affected. Even by such a conservative estimate, about 20 lakh, or 2 million people are struggling to pay their rent after having lost their jobs and livelihoods as well as savings. These would largely be daily-wage workers, rickshaw pullers, street vendors, etc. who are paid every day for the work that they do. Several of them, working as maids, cooks, delivery boys, etc. may not have a regular source of income, forcing them to look for work frequently.
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Some of them might have had some meagre savings to sustain themselves for a few days. Once these savings were exhausted, they were not able to pay their rents, and thus faced the spectre of eviction with no place to go to! They were, and still are, living under the constant fear of being evicted from their rented accommodation in this biting cold weather while all their belongings are being withheld as collateral. To avoid this nightmare, some of them have had to resort to seeking large amounts of loan or debt at high interest rates.
The chief minister’s promise
It was under these circumstances that just five days after Prime Minister Narendra Modi announced the lockdown, Delhi’s chief minister Arvind Kejriwal made a public announcement on March 29, 2020, requesting all landlords to postpone rent collection for some time and not to pressure their tenants. In a very considerate and thoughtful gesture, the chief minister went on to promise that if any of the tenants were not able to pay their rents due to poverty, even after such postponement, the Delhi government would pay the landlords. This announcement was widely reported and lauded. All the tenants who were living under the spectre of eviction heaved a sigh of relief.
Representative image of a migrant family walking through a New Delhi road. Photo: PTI
The promise that the chief minister made was a part of an attempt to stop lakhs of people from leaving Delhi since they had lost their livelihood and had no ability to pay their rent, and sustain themselves through the lockdown. In the absence of public transportation, many of them decided to simply walk hundreds of miles to their native villages; many of them died. The health – and humanitarian – crisis triggered by this mass migration was a disgrace to the nation, the government, and its infrastructure was unable to cope with the pressure.
To persuade workers not to leave in panic, the chief minister said that they could continue to live in their rented accommodations without worrying about paying the rent. The assurance worked, and a lot of tenants decided to stay put while their rent continued to accumulate.
However, as time passed, the overall rent due continued to increase but no help seemed to be forthcoming from the government. The patience of the landlords started to run low and the pressure on the tenants started increasing. Finally, tenants and some landlords started writing letters and sending emails to the chief minister reminding him of his promise and asking him to honour it. Starting from the last week of August till the last day of October, the chief minister received more than 360 such letters and emails, but he failed to reply to them in any meaningful way.
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Faced with this grave situation, five tenants and a landlord decided to approach the Delhi high court requesting the court to direct “the Government of NCT of Delhi to honour the promise made by its Chief Minister on 29.03.2020.” The petition, titled Najma v. Govt. of NCT of Delhi was listed for the first hearing on November 11, but could not be heard and was postponed to November 25. It was postponed again, twice, once to December 08 and then to December 17. Finally, the hon’ble court decided to issue a notice to the government on December 17.
The government of NCTD has to file a counter-affidavit within four weeks clarifying its stand on its promise. The government will have to explain why, despite the passage of over nine months, and receiving more than 360 requests from aggrieved tenants and landlords, it has failed to honour its promise.
The ‘Doctrine of Legitimate Expectation’
This is where the ‘Doctrine of Legitimate Expectation’ comes in. One of the earliest mentions of the “Doctrine of Legitimate Expectations” was in the English Law in the case of Schmidt v. Secretary of State for Home Affairs (1969). It was observed that a foreigner who had been given leave to enter the UK, had the right to be heard and had a legitimate expectation of being allowed to stay for the allowed time.
One of the most comprehensive discussions of this doctrine is found in Abdi v Secretary of State for the Home Department (2005). The judgment written by Lord Justice Laws, and agreed to by Lord Justice Thomas and Justice Nelson, devoted as many as 36 paragraphs (from paragraph 35 to 71) to a discussion of “Legitimate Expectation”.
Possibly the first discussion of the Doctrine of Legitimate Expectation in India was in the case of State of Kerala v. K.G. Madhavan Pillai (1988). In this case, sanction was issued for the respondents to open a new aided school and to upgrade the existing schools. Just after 15 days, another order was issued to keep the previous sanction in abeyance. This order was challenged by the respondents in lieu of violation of principles of natural justice. The Supreme Court ruled that the sanction had entitled the respondents with legitimate expectation and the second order violated principles of natural justice.
A woman hangs a blanket out to dry, at a slum in New Delhi, India January 2, 2020. Photo: Reuters/Danish Siddiqui
Subsequently, there were other judgments, some of the notable ones being:
Navjyoti Coop. Group Housing Society v. Union of India (1992); Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993); Union of India v. Hindustan Development Corporation (1993); and Madras City Wine Merchants v. State of Tamil Nadu (1994).
The most recent and comprehensive analysis and discussion of the ‘Doctrine of Legitimate Expectation’ came on December 01, 2020, in the case State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi. Justice Dhananjaya Y. Chandrachud, writing on behalf of a division bench consisting of himself and Justice Indu Malhotra made some very significant observations. A few of these deserve to be reproduced here:
“The doctrine of legitimate expectations is founded on the principles of fairness in government dealings. It comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit” (Paragraph 32).
“(T)he basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and non-arbitrariness surrounding the conduct of public authorities” (Paragraph 35).
“Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. … When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State” (Paragraph 37).
Most significantly, Justice Chandrachud counselled the governments and instrumentalities of the state in very clear terms: “The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according to what it puts forth in the public realm.” (Paragraph 45).
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It is now up to the Delhi high court to determine if the landlords and tenants of Delhi are justified in having developed a “legitimate expectation” that the promise made by the chief minister on March 29, 2020, just five days after the prime minister announced the unprecedented lockdown, will be honoured!
If the high court takes the view that this “expectation” on the part of the landlords and tenants is indeed “legitimate”, and directs the government of the National Capital Territory of Delhi, to fulfil the promise made by its chief minister, then millions of tenants would be able to live with dignity and peace of mind, and not under the constant fear of being evicted from their rented accommodation while all their belongings getting withheld as collateral.
The hon’ble high court’s acceptance of the ‘Doctrine of Legitimate Expectation’ as elucidated by Justice Chandrachud of the Supreme Court in the Brahmputra Metallics judgment, has the potential of making a very significant and fundamental change in the way this country is governed. This may well, we say this with great trepidation as well as hope, make political leaders feel responsible for and accountable for what they say. They would be required to match their actions with their words. It is only then that the state would have discarded “the colonial notion that it is a sovereign handing out doles at its will”.
Jagdeep S. Chhokar is a former professor, dean, and director in-charge of IIM, Ahmedabad, and was the first chairperson of Aajeevika Bureau, an organisation that works on issues related to migrant workers. He is also an advocate. Views are personal. Gaurav Jain is an advocate, practicing at the Delhi high court. He is the counsel for the petitioners (tenants and landlords) in the case in the Delhi high court.
Disclosure: The second author is the counsel for the petitioners in Najma v. Govt. of NCT of Delhi.