De Jure and De Facto Authority

Because legitimacy is what turns one into the other. A regime that begins de facto will try to make itself de jure, through a constitution, an election or a court that validates it. That process is exactly what topic 1.4 studies.

The Indian illustration

Facts. Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132, arose out of two criminal appeals. The appellants had been convicted of offences by two District Judges. By the time the appeals were heard in the High Court, the appointments of those two judges had been declared void, because they had been made contrary to article 233 of the Constitution, which governs the appointment of district judges. The appellants therefore argued that the convictions were themselves void: a person whose appointment was a nullity could not be a judge, their liberty was being taken away otherwise than by the procedure established by law, and applying the de facto doctrine would render the Constitution (Twentieth Amendment) Act 1966 superfluous.

Held. The Supreme Court dismissed the appeals. It held that the two judges were not usurpers or intruders but persons who had discharged the functions and duties of a judge under colour of lawful authority, and that so long as the office itself is validly created, the acts of a person holding it de facto are valid even though the appointment is afterwards found invalid. The Court separated two questions that the appellants had run together: the contravention of a constitutional provision may invalidate the appointment, but the effect of that invalidation on the acts done is a different question, and the de facto doctrine saves those acts. It added that the doctrine is no stranger to the Constitution, pointing to article 71(2), which provides that acts done by the President or the Vice President in the exercise of their office are not invalidated by reason of the election of that person being afterwards declared void.

Why it matters here. The two judges had de facto authority and no de jure authority, and Indian law protected everybody who had treated them as judges. The reason the law takes that position is the political point of this whole chapter. Authority works because people accept it and act on that acceptance. If every act of an officer whose title was later faulted became a nullity, no citizen could safely obey anybody, because no citizen can audit an appointment before complying with an order.

A worked example

A municipality's ward officer transfers a shop licence. Six months later a court holds that the officer's posting was irregular because the sanction of the standing committee was never obtained.

The de jure position. The officer had no lawful title to the post, so no authority in law.

The de facto position. The officer sat in the chair, used the seal, signed the file and was obeyed by everybody in the ward. Authority in fact, complete.

The consequence for the licensee, applying the reasoning above. The office of ward officer was validly created, and the person acted under colour of lawful authority rather than as an intruder. The transfer stands.

And the limit. If a private person with no connection to the municipality had walked in and issued the transfer, they would be a usurper, the office would never have been theirs even in appearance, and nothing would be saved. The doctrine protects those who relied on an appearance of authority; it does not create authority out of nothing.

Distinctions that carry marks

What this distinction is NOT

De facto does not mean unlawful. It means the question of lawfulness is being left aside. A perfectly lawful authority is also de facto authority whenever it is actually obeyed.

De jure does not mean real. A body with an unimpeachable legal title and no obedience has authority in the same sense that a person has a valid ticket for a train that no longer runs.

The de facto doctrine is not a way of curing an invalid appointment. The appointment stays invalid, and the person may be removed. What is saved is the acts done in the meantime, and the beneficiary is the public who relied on them.

It does not protect a usurper. The doctrine requires that the office be validly created and that the person acted under colour of lawful authority. A pure intruder is outside it.

Quick revision

1. De jure is authority in law; de facto is authority in fact.
2. Four combinations: both, de jure only, de facto only, neither. Learn the examples of the middle two.
3. De jure only: a government in exile, a court whose orders are ignored.
4. De facto only: a regime installed by a coup, an officer whose appointment is later voided.
5. Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132: convictions by District Judges whose appointments were void under article 233 were upheld; the judges acted under colour of lawful authority and were not usurpers; the office being validly created, the acts of the de facto holder stand. Compare article 71(2), which says the same thing about the President and Vice President.
6. In international law, de facto recognition acknowledges control, de jure recognition acknowledges entitlement.
7. What turns de facto into de jure is legitimation, which is topic 1.4.

Test yourself

1. Distinguish de jure from de facto authority. De jure authority is conferred by the legal or constitutional rules of the system and is exercised by a person with a valid title; the test is whether the title is good. De facto authority is authority actually exercised and actually obeyed, whatever the state of the title; the test is whether the person is in fact obeyed. They normally coincide, and the important cases are those in which they separate.

2. Give an example of each of the four possible combinations. Both: a validly appointed Collector whose directions are followed. De jure without de facto: a government in exile, which has a lawful title and controls nothing. De facto without de jure: a regime installed by a coup which governs the country, or an officer whose appointment is afterwards declared void. Neither: a person with no title who is not obeyed, which is not authority at all.

3. State the facts and holding of Gokaraju Rangaraju. The appellants were convicted by two District Judges whose appointments were later declared void for contravening article 233, and they argued that the convictions were therefore nullities. The Supreme Court dismissed the appeals, holding that the judges were not usurpers but had acted under colour of lawful authority, and that where the office itself is validly created the acts of a de facto holder are valid though the appointment is afterwards invalidated. It separated the validity of the appointment from the validity of the acts done under it, and pointed to article 71(2) as a constitutional instance of the same principle.

4. Why does the law protect acts done by a de facto officer? Because authority works only if people can act on it, and no citizen can audit an appointment before obeying an order. If every act of an officer whose title was later found faulty became a nullity, every decree, licence, conviction and permission would be open to attack on a ground the person who relied on it could never have checked. The doctrine therefore protects those who relied on the appearance of authority, while leaving the invalid appointment itself to be set aside.

5. What is the relation between this distinction and legitimacy? Legitimacy is what converts one into the other. A regime that begins with de facto authority alone will seek to acquire a de jure title, by promulgating a constitution, holding an election or obtaining validation from a court, because authority resting on control alone is expensive and unstable. That process of converting fact into right is exactly what the topic on legitimacy studies, and it is why MU places legitimacy after authority in its own numbering.