There may be a situation where the appointment of any lower court’s judge is held invalid by upper court. In that case, that judge will leave his chair but important question is that “what will be the consequences of those judgements that were delivered by him?”

The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be “a judgment by a judge who is not a judge is no judgment” a simple, sophisticated answer. But it appears second thoughts are necessary.

What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed? What is to happen to sentences imposed? Are convicted offenders to be set at liberty and to be tried again? Are acquitted accused to be arrested and tried again? Public Policy is clearly involved.

To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine.

De Facto Doctrine

De facto doctrine is a doctrine of necessity and public policy. The doctrine is that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the 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”

In Cooley’s ‘Constitutional Limitations[1]‘,  it is said, “An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact.

His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally re-moved or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.”

No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.

In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.

There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.

Basis of the de facto doctrine

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.

Origin of the Doctrine

In Pulin Behari v. King Emperor[2], Sir Ashutosh Mukerjee J. noticed that in England the de facto doctrine was recognised from the earliest times. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431.

Sir Ashutosh Mookerjee noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges.

English Cases on De facto Doctrine

In Milward v. Thatcher, Buller J. said:

“The question whether the judges below be properly judges or not, can never be determined, it is sufficient if they be judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the judge de facto”.

In Seaddling v. Lorant, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and not de jure. The Lord Chancellor observed as follows:

“You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands”.

In re James (An Insolvent), Lord Denning M. R., characteristically, said:

“He sits in the seat of a judge. He wears the robes of a judge. He holds the office of a judge. May be he was not validly appointed. But, still, he holds the office. It is the office that matters, not the incumbent ……. so long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity. If they are erroneous they may be upset on appeal. But if not erroneous they should be upheld”.

Cases of United states of America on De Facto Doctrine

The de facto doctrine has received judicial recognition in the United States of America also. In State v. Gardner[3], the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Broadbury, J. said.

“We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers.”

In Norton v. Shelby Country, Field, J., observed as follows:

“The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question.”

Approval of De Facto Doctrine by Indian courts

The de facto doctrine has been recognised by Indian Courts also.

In Pulin Behari v. King Emperor (supra), Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows:

“The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large.

For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined.”

In P. S. Menon v. State of Kerala and Ors. a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishnamurthy Iyer, JJ said about the de facto doctrine:

“This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid”.

In the judgment under appeal Kuppuswami and Muktadar, JJ observed:

“Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date.

Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity”.

In Gokaraju Rangaraju vs State Of Andhra Pradesh[4], after reviewing the English and American authorities on de facto doctrine, Justice Chinappa Reddy held as follows:

“So long as the office was validly created, it matters not that the incumbent was not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session.

They would continue to be valid as the judgments and orders, of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the Court itself is under challenge.”

De facto Doctrine under Constitution of India

The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States.

Art. 71(2) of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall not be invalidated by reason of the election of a person as President or Vice President being declared void.

So also Sec. 107(2) of the Representation of the People Act 1951 provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void.

Twentieth Amendment of the Constitution

There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions. The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality, or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Art. 233 and Art 235 of the Constitution.

The Twentieth Amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and Ors[5]., that appointments of District Judges made otherwise than in accordance with the provisions of Arts. 233 and 235 were invalid.

As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution.

When the appointment may be questioned

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 so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment 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 the judgment is, of course, such a collateral attack.[6]

[1]Eighth Edition, Volume II p. 1 355

[2] [1912] 15 Cal Law Journal 517 @ 574

[3] Cases on Constitutional Law by Mc. Gonvey and Howard Third Edition 102

[4] 1981 SCR (3) 474

[5] [1967] 1 SCR 77. [485 H] 476

[6] Gokaraju Rangaraju vs State of Andhra Pradesh; 1981 SCR (3) 474