Invalid Appointments and the De Facto Doctrine

A writ petition was filed recently challenging the legality of the appointment of the current chairman of the Copyright Board, Raghbir Singh. The writ came up before Justice Sikri of the Delhi High Court yesterday and notices have been issued.

I’ve been dealing with this controversial appointment in several earlier blog posts on SpicyIP. Since the case raises some interesting constitutional issues as well, I thought I would flag them up here on LAOT.

In one of the posts on SpicyIP, I had questioned the eligibility of the Chairman on the ground that he was 66 years old at the time of his appointment and therefore not suited to hold the office of Chairman of the Board. The Copyright act provides (interalia) that the chairman should be a person eligible to be appointed as a High Court judge.

Eligibility criteria for High Court judges find mention in Article 217 of the Constitution of India, under which a judge must necessarily retire at the age of 62. I took this to mean that no person above the age of 62 could be appointed a High Court judge. And since Mr Singh was 66 at the time of his appointment, he was not eligible to be a High Court judge. And therefore not eligible to be appointed as Chairman of the Copyright Board as well. Well, it now turns out that I was wrong.

Courts have consistently held that the retirement age of a High Court judge as stipulated in the Constitution cannot necessarily be construed as an “eligibility” criterion. I quote extracts from a recent ruling (State of Uttaranchal vs Balwant Singh), where the Supreme court approved of the ruling by a division bench of a high court as below:

“The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court “shall hold office until he attains the age of 60 years” (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years).

The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor.

This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words “until he attains the age of sixty years”. The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217.”

and later:

“In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view.”

and still later:

“The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office.”

Mr Singh’s appointment has been challenged on other grounds as well. Assuming that Singh’s appointment is held invalid on such other grounds, how would this impact the legality and tenability of the Board proceedings and its order? Under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings. In other words, even assuming Mr Singh’s appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board.

What if the copyright board order is appealed though? What impact will an irregular appointment have on the tenability of the order?

Would the appellate court hold that no “deference” be given to any fact finding done by the Board? Those in the know of administrative law norms may be familiar with the age old and time tested law vs fact distinction…one that I am still unable to comprehend: aren’t all legal propositions really “facts”, albeit of a certain specific kind. The distinction becomes particularly problematic when we consider “mixed questions of law and fact”, a nebulous category ingeniously invented by lawyers to open up any factual issue that wouldn’t warrant interference otherwise.

Anyway, standard admin law norms suggest that courts are to defer to agency expertise when it comes to issues of “fact, and cannot reopen them unless there is a manifest error on the face of the record. However, in so far as issues of law are concerned, courts are free to review them de novo. Given the flawed constitution of the copyright board, would the court decide to not grant any deference to issues of “fact” that have been determined at the first instance by the Board? If such facts could be reopened by counsel, would it lead to a re-enactment of the entire saga once again before the courts?

I believe there is a recent case where a TRAI order had been appealed to a court in the first instance. Since this was the first appeal, the court appears to have held that it could review both questions of law and fact afresh. I’m hunting around for this decision and will bring you more on this once I find it. Alternatively, if any of our readers are in the know of this decision, please do let us know.

As to whether or not an appellate court hearing this particular compulsory licensing matter will adopt the above ruling and reopen all issues of fact (and perhaps even remand the case to a freshly instituted copyright board for specific factual determinations) remains to be seen.

ps: many thanks to Vivek Reddy for pointers on the TRAI decision and the standard of review.

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  • dear shamnad, this piece is one of the best i have seen on the law/fact distinction, including a good explanation of that elusive 'mixed' category: Endicott, ‘Questions of Law’ (1998) 114 Law Quarterly Review 292.

    see also, Williams, ‘When is an error not an error? Reform of jurisdictional review of error of law and fact’ [2007] Public Law 793.