Government-policies and the law
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Superior court orders
Non notification of government policies violates Article 14: SC
Dhananjay Mahapatra, December 2, 2020: The Times of India
Non-notification of government policies violates Article 14: Supreme Court
NEW DELHI: Announcement of policy decisions, be it for industry or otherwise, cannot be allowed to go up in thin air after the political purpose is served, and must be notified by governments within a reasonable timeframe, the Supreme Court said.
A bench of Justices D Y Chandrachud and Indu Malhotra said policy decisions announced by governments were solemn promises to citizens and various sectors of industries, which had a legitimate expectation for implementation of the promises. Public authorities must be held accountable for the promises made, the bench said while criticising the Jharkhand government for delaying implementation of the Industrial Policy 2012 promising rebate in electricity tariff to industrial units, by three years.
Writing the judgment, Justice Chandrachud said the doctrine of legitimate expectation was much wider in its play. “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. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to citizens for this failure, it violates the trust reposed by citizens in the state. The generation of a business-friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates,” he said.
On the promised relief by the Jharkhand government, he said, “The state having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the state of their legitimate entitlement. The state government did, as a matter of fact, issue a statutory notification under Section 9 but by doing so prospectively, with effect from January 8, 2015, it negated the nature of the representation which was held out in the Industrial Policy 2012.”
The bench said that in a democracy, it was impermissible for governments to exhibit a colonial mindset of whimsically handing out doles. It also said non-implementation of policy announcements in a timely manner could be held arbitrary and violative of the right to equality guaranteed under Article 14.
“The state must discard the colonial notion that it is a sovereign handing out doles at its will... In all its actions, the state is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest,” the bench said.
Due to the failure of the Jharkhand government to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the state stood violated. Since the state has offered no justification... we hold that such a course of action by the state is arbitrary and is violative of Article 14, Justice Chandrachud said.
