On March 29 last year, soon after the coronavirus-induced lockdown was put in place, Delhi chief minister Arvind Kejriwal asked landlords not to collect rent from tenants for two to three months, if they are unable to pay it due to poverty. He also promised the landlords that if any tenant, who because of lack of means, is unable to pay some of the rent, the government would do so.
On Thursday, Justice Pratibha M. Singh of Delhi high court held that when a senior functionary like the chief minister makes a promise/assurance to the public, which is categorical, unequivocal and unambiguous, inaction by the government to implement it is impermissible.
Applying the doctrines of promissory estoppel and legitimate expectation, Justice Singh held that in a democratic setup, persons who hold an elected office, and especially heads of government, heads of state and those holding responsible positions are expected to make responsible assurances/promises to their citizens, especially in times of crisis and distress.
On behalf of the citizens, there would obviously be a reasonable expectation, that an assurance or a promise made by a senior constitutional functionary, no less the chief minister, would be given effect to, Justice Singh wrote in her judgment, adding that it cannot be reasonably said that no tenant or landlord would have believed Kejriwal.
“As per the normal conduct as also the context of the COVID-19 pandemic, surely there must have been a large number of tenants and landlords, who would have believed the assurance made by the CM. If the Government of National Capital Territory of Delhi (GNCTD) had actually come out with a policy either deciding to not implement the said promise or assurance on grounds which are legally sustainable, obviously the courts cannot interfere,” the judge explained, after citing several cases decided by both the Indian Supreme Court as well as courts in foreign jurisdictions.
Relying on the recent Supreme Court’s judgment in State of Jharkhand vs Bhrahmaputra Metallics Ltd, Ranchi, the judge endorsed the principle that a reasoned decision ought to be taken on the legitimate expectation of the citizens by the government, for the said decision to be reasonable, non-arbitrary and in accordance with Article 14 of the constitution.
“In the present case, in the backdrop of the commitment made, it is not the positive decision making which is arbitrary, but the lack of decision making or indecision, which this court holds to be contrary to law,” Justice Singh clarified. Once the chief minister had made a solemn assurance, there was a duty cast on the GNCTD to take a stand as to whether to enforce the said promise or not, and if so on what grounds or on the basis of what reasons, she added.
The Supreme Court has recognised and granted relief in the context of commercial matters such as tax exemptions, grant of incentives. In the present case, the nature of rights are of even greater importance as they relate to the right to shelter during a pandemic. In the context of upholding fundamental rights, the principles of legitimate expectation have to be accorded a higher pedestal and the burden on the authority concerned not to honour the same, is even higher, the judge observed.
The doctrine of promissory estoppel also being an equitable doctrine, equity requires this court to hold the GNCTD responsible for the said indecision or lack of action, on the promise/assurance given by the CM, Justice Singh held.
“In the present case, it is not clear as to why the GNCTD chose to completely disregard the promise or assurance given by its CM and not effectuate the same. A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer”, the judge further observed.
She noted that insofar as the indecision is concerned, the GNCTD needed to answer the question, which it has failed to answer during the hearing. While the courts cannot assume the discretion which exists with the governmental authorities, they also ought to follow the rule of reason. There has to be a reason as to why the government has simply chosen to disregard or failed to implement the promise/assurance given by the CM, the high court held.
Interestingly, the judge made a distinction between a political promise made as part of an election rally, (a jumla, to borrow from home minister Amit Shah) and a statement made by the chief minister, on behalf of his government. His promise was to act as a balm on the wounds of landlords and tenants, who were severely affected as a class of citizens in Delhi. However, the lack of any decision to implement it, or a conscious reasoned decision not to implement it, has resulted in non-decisionem factionem in respect of legitimate expectation of its citizens, the judge explained. “Puffing” which may be permissible in commercial advertising, ought not to be recognisable and permissible in governance, the judge underlined.
GNCTD’s stand
The GNCTD argued that any decision of the government has to be taken in the name of the governor, in consultation with the council of ministers, which was not done in the present case, and therefore, it cannot give rise to a legitimate expectation or promissory estoppel.
In response, the judge held that the decision once taken would have to be in the name of the governor, but what is challenged here is the complete indecision after the CM’s announcement. To the judge, the issue has to be considered from a common man’s perspective, as a citizen would believe that a statement by the CM can be relied upon and trusted. The judge made it clear that an assurance by the CM, in a press conference, that is, a public platform, even without resulting in a formal policy or an order on behalf of the GNCTD, would create a valuable and legal right by applying the doctrine of promissory estoppel. Non-consideration of the same can definitely be tested on the ground of arbitrariness due to the doctrine of legitimate expectation being applicable, she emphasised.
The high court, therefore, directed the GNCTD to take a decision as to the implementation of the promise made by the CM on March 29 last year, within a period of six weeks. It means that the decision may also be taken not to implement the same. However, such decision, the court made it clear, should be taken bearing in mind the larger interest of the persons to whom the benefits were intended to be extended in the said statement, as also any overriding public interest concerns. Once such a decision is taken, the GNCTD would frame a clear policy in this regard, and consider the case of the petitioners as per the procedure prescribed under that policy or scheme, the high court held.
Interestingly, the court was not sure about the bona fides of the petitioners, and therefore, wanted them to be verified. “The pleadings in the present case, especially the rejoinder, also gives an impression to this court that the intention is to sensationalise the issue rather than to actually seek redressal of a grievance,” it noted. The judge, however, did not clarify what would be the consequence of her directions, if the petitioners are not found to be bona fide. Fortunately, she did not make their verification a prerequisite to decide whether their petitions could be heard.
Lessons for ensuring accountability
If the Delhi high court’s direction to the GNCTD is any indication, similar statements made by other constitutional functionaries may also be used to demand accountability and action by their respective governments. Prime Minister Narendra Modi, for instance, had made several promises following his government’s move to demonetise the Indian currency in 2016, and later while withdrawing the special status accorded to Jammu and Kashmir under Article 370 of the constitution in August 2019. Can the government’s inaction on implementing those promises be challenged on the grounds of promissory estoppel and legitimate expectation? The judgment holds promise to potential public interest litigants who may like to use the law to seek accountability of the Modi government at the Centre.
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