De Facto Doctrine

The word De Facto literally means, ‘in fact’ but the concept of De Facto and Doctrine of De Facto is different prima facie seems same but are different. If a person is having no authority and no power to make a law, make a decision or pass an order any decision taken, make a law or pass a judgment it will have no bases it will be void ab initio. And on the first impression it would be noted that, ‘a judgment given by a judge having no power is not a judgment’. But what happens to all the judgment passed will they be nullified? Will they be void ab initio? If a judge has passes the orders for punishment or compensation? If a public officer has taken any decision? Here the doctrine of de facto helps. De facto doctrine is also known as de facto officer doctrines[1]. De Facto officer is a person who holds a public or judicial office though his appointment is invalid.[2] It has been derived from common law or it is one of the common law principles.[3] This doctrine is based on good faith and credit, under sound sense and sound policy[4] as upon finding of the fact that the appointment is invalid the official is disqualified it would lead to nullification of his duties and nullification of the decisions taken or laws made or awards passed. All this would lead to chaos all the decisions are to be taken again. This would be against public policy and human rights.  The appointment of the official was not colourable but a valid authority. Therefore, it is considered that the acts done by the official is done under the authority and is legal and binding unless proved otherwise. This was done to protect the work done by an official through private individuals claiming it illegal when he leaves the office.[5] Consider a scenario when the work done by an official is left incomplete and it is not been completed on the grounds that the work was started by other official and now as he has no rights to complete the action the action will be illegal or will not be completed, it would be waste of time and efforts. But this doctrine does not concern with the appointment of officers or their disqualification but deals with the nullity of the actions.

Difference between De Facto and De Facto Doctrine

De facto means ‘in fact’, that means, an act which happens in reality but is not allowed by law. Doctrine of de facto means that includes validation of the act

Importance of the Doctrine

This doctrine is important as it helps to maintain public interest, peace and order in the society. It helps to maintain supremacy of law in the community at large. If the decisions or the work uids to be declared unconstitutional or invalid or void ab initio  it would lead to such great extent of uncertainty and confusion, that would break the order and quiet of all civil administration. Also, if individuals or body of individuals are permitted, at their own wish, to challenge the authority  and refuse obedience on the grounds of irregular existence or defective titles, it would be time culminate in anarchy.[6] Also, it would not be fair just on a small defect on the part of appointer that would eliminate the actions done by the appointee while he was competent to provide for the decision.

 

Cases

Gokaraju Rangaraju v. State of A.P,[7]

 

In this case an Appeal was made to set aside the decision passed by the Additional District Judge on the basis that as the appointment was invalid the decision passed is void and to be set aside. The main question in front of the court was that the decision can void or not because the appointment was invalid as per Article 233 of the Constitution of India. It was said that the idea of doctrine of de facto is not new to the constitution it is included under Article 71(2) of the Constitution.

Article 71(2):

“If the election of a person as President or Vice President is declared void by the Supreme court, acts done by him in the exercise and performance of the powers and duties of the office of President or Vice President, as the case may be, on or before the date of the decision of the Supreme Court shall not be invalidated by reason of that declaration.”

 

It was said that the judges who rejected the appeal but discharged their function under the colour of lawful authority. As the office was created validly the matters does not relate to validity of appointment.

Central Bank of India v. C. Bernard,[8]

In this case the Supreme Court said that there are two requisite to apply doctrine of de facto.

• The possession of the office along with the liability to perform the duty attached to it, and
• The colour of the title i.e. apparent right to the office and acquiescence in the possession thereof by the public.

As these two requisites are fulfilled we could say that de facto doctrine could be applied as there is an assumed sphere of responsibility, in the interest of the public or third parties and not for their own interest. This doctrine has no application on the person who acts as an intruder or usurper or a total stranger to the office i.e. the doctrine would not act as an exception in case of a stranger to the office.

 

Union of India v. Charanjit S. Gill,[9]

In this case the ratio given in the case of Gokaraju Rangaraju v. State of A.P,[10] was upheld and it was said that,

‘A person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercises the powers and duties of the office is a de facto Judge, he acts validly until he is properly removed.’ Judgment and orders of a de facto Judge cannot be challenged on the ground of his ineligibility for appointment.”

 

 

An Appeal to the decision

When we talks about validation of the decision, law or judgment, the important question that comes to the mind is can these decisions be challenged and if what is they are unconstitutional?  If the decision or law or the judgment is validated then it could be challenged on the basis that it is unconstitutional. But the idea of challenge of the judgment is outside the scope of this doctrine and here it acts as the limitation to the scope of this doctrine.

The application of the de facto doctrine  is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws. It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.[11]

 

 

Conclusion

Doctrine of de facto applies in case where the appointment is not colourable but is not proper and to protect the decisions or actions of an ad facto officer. There are two requisite to apply this doctrine as there should be possession of the office and there should be the colour of title. People who are intruders in work are not covered under the doctrine. This doctrine acts as an exception and helps to maintain the public interest and public policy. The concept of this doctrine is not new in India but could be considered as an increased interpretation of Article 71(2) of Constitution of India. This doctrine does not concern with the unconstitutional decision and the validity of appointment. The scope of the doctrine is limited to the extent just to validate the valid or constitutional laws passed by the officer acting in the colour of his authority,

 

 

[1] Clifford L. Pannam, ‘UNCONSTITUTIONAL STATUTES AND DE FACTO OFFICERS’.

[2] Id; https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=1606#:~:text=The%20de%20facto%20doctrine%20is,strict%20legal%20sense%20no%20power.

[3] Id.

[4] Gokaraju Rangaraju v. State of A.P, (1981) 3 SCC 132 : 1981 SCC (Cri) 652.

[5] Id.

[6] 1985 SCC OnLine Can SC 35 : [1985] 1 SCR 721.

[7] (1981) 3 SCC 132 : 1981 SCC (Cri) 652.

[8] (1991) 1 SCC 319 : 1991 SCC (L&S) 291 : (1991) 15 ATC 720.

[9] (2000) 5 SCC 742.

[10] (1981) 3 SCC 132 : 1981 SCC (Cri) 652.

[11] 1985 SCC OnLine Can SC 35 : [1985] 1 SCR 72.