DE FACTO DOCTRINE.

[Mr. M. GOVINDARAJAN]

                        The de facto doctrine is postulated on the principle that the act of an officer holding a public office or of the holder of a judicial office would be regarded as being valid in law in certain circumstances though his own appointment is invalid and the officer or judge concerned has a strict legal sense no power.  This doctrine is evolved in order to balance the absence of power on the one hand with the consequence emanating from an annulment of the act or the decision of the officer consequent upon a finding of an invalidity of his appointment.  Holding that the consequence of an invalid appointment would result in a nullification of his official duties would lead to serious public consequence and in many cases a result which would not coalesce with the public interest in ensuring repose in official acts and decisions.

                        This doctrine has been applied in the jurisprudence of Britain and the United Nations.  In the book ‘Administrative law’ H.W.R. Wade and C.F.Forsyth  said in regard to Britain – In one class of cases there is a long standing doctrine that collateral challenge is not to be allowed: where there is some unknown flaw in the appointment or authority of some officer or judge.   The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no power at all.   The logic of annulling his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so. 

                        In ‘Coppard V. HM Customs & Excise’ – (2003) QB 1428 the court held that the acts of a circuit judge who had heard the action being challenged had been invalidly appointed since he had not been authorized by the Lord Chancellor.  The Court held that the judgement itself was unassailable on this ground due to operation of the de factor doctrine.

                        The United States Supreme Court in ‘Nguyen V. United States’ – 593 US 69 held that the de facto officer doctrine confers validity upon acts performed by a person acting under the colour of official title even though it was later discovered that the legality of that person’s appointment or election to the office is deficient.

                        In American jurisprudence a de facto judge is one who occupies a judicial office under some colour of right, who exercises the duties of the judicial office under colour of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge’s actual authority suffers from a procedural defect or a technical defect of statutory authority.  A de facto judge differs from a mere usurper, who undertakes to act without any colour of right and from a de jure judge, who, in all aspects, is legally appointed and qualified to exercise the office.  The de facto doctrine is designed to prevent a petition asking a court to overturn a judgment on a technicality and to prevent the overturning of judgments on the ground of error, however minor, in the title to office of the judge who rendered it.

                        In ‘Gokaraju Rangaraju V. State of Andhra Pradesh’- (1981) 3 SCC 132 the Supreme Court dealt with the effect of a declaration by the Supreme Court that the appointment of Additional Sessions Judge was invalid, on judgements pronounced by the Judge prior to the declaration.   In that case while criminal revision and appeals were pending before High Court, the Supreme Court quashed the appointments of several sessions judges who had heard those cases on the ground that their appointments were in violation of Article 223 of the Constitution.  It was urged that the judgments rendered by these judges were void and would have to be set aside.  In this case the Supreme Court explained the de facto doctrine.  The Supreme Court held that the doctrine is now well established that the acts of the officers de facto performed by them within the scope of their assumed official authority.   In the interest of public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure.   The doctrine is founded on good sense, sound policy and practical experience.   It is aimed at the prevention of public and private mischief and the protection of public and private interest.  It avoids endless confusion and needless chaos.  An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone.

                        Apart from this there is a second principle underlying the de factor doctrine.   It is that a defective appointment of a de facto judge may questioned directly in a proceeding to which the Judge is a party, but cannot be permitted to be questioned in a litigation between two private litigants which has no consequence to the Judge except his position as a Judge.   The Supreme Court, in the second principle, observed that a judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective.   Whatever be the defect of his title to the office, judgements pronounced by him and act done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgements pronounced and acts done by a judge de jure.  Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.    There is yet another rule for public policy.   The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge.  Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office.   Otherwise as soon as a judge pronounces judgement litigation may be commenced for a declaration that the judgement is void because the judge is no judge.  A judge’s title to his office cannot be brought into jeopardy in that fashion.  Hence the rule against collateral attack on validity of judicial appointments to question a Judge’s appointment in an appeal against his judgement is, of course, such a collateral attack.

                        In ‘Pushpadevi M. Jatia V. M.L. Wadhawan, Additional Secretary’ – (1987) 3 SCC 367 the Supreme Court observed where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned.   It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.   The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. 

                        In ‘Central Bank of India V. C. Bernard’ – (1991) 1 SCC 319 the Supreme Court held that the de facto doctrine has two requisites, namely the possession of the office and the performance of the duties attached thereto and the other is the colour of title, that is, apparent right to the office and acquiescence in the possession thereof by the public.   According to this doctrine the acts of officers de factor performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers. 

                        It is, therefore, clear that the doctrine can be invoked in cases where there is an appointment to an office which is defective but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer.   The same would, however, not be true of a total intruder or usurper of office.