D. Gobalousamy vs The Union Territory of Pondicherry and Others

M. Anantanarayanan, O.C.J.

These are two related writ petitions for the issue of writs of quo warranto, which originally sought for writs of mandamus, instituted by Sri D.

Gobalousamy, an Advocat-Conceil practising in the Pondicherry Courts for over 19 years, and currently President of the Bar Association. He

challenges the orders of appointment of Sri S. Maharajan as the President of the Tribunal Superieur d''Appel at Pondicherry; and of Sri R.

Krishnamurthi as the Puisne Judge of the same Court. Very broadly stated, the grounds of attack are that a Proces-Verbal, which was concluded

between the French and the Indian delegations on 15th March, 1963, and which has to be regarded as integral with the Treaty of Cession, has

guaranteed certain rights to the citizens of Pondicherry in respect of the judicial organisation and the qualifications of the judiciary, which have been

infringed by the abrupt change made evident by these appointments.

It is common ground between the writ petitioner and the Government of Pondicherry as well as the Union of India (respondents 1 and 2) that

these appointments were made in the wake of two notifications, the first promulgated by the Central Government by virtue of the powers conferred

on it u/s 4(2) of the Pondicherry (Administration) Act, 1962, dated 12th October, 1963 and the second termed the Pondicherry Judicial Officers

(Qualifications) Rules, 1963, promulgated by the President of India on 5th October, 1963, and that the appointments were based upon the

modifications ensuing from those orders. The contention is that one of these notifications, that is the one issued by the President of India, purporting

to be in exercise of powers conferred by the proviso to Article 309 of the Constitution, cannot be sustained on that basis, and is unconstitutional.

In brief, therefore, it is claimed that the appointments of those two officers, who do not possess the degree in law of a French University known as

Licencie en droit, and who do not have the requisite knowledge of the French language, cannot be validly supported because of the infringement of

a justiciable guarantee embodied in the Proces-Verbal, and also because the Presidential promulgation bringing into existence new rules for the

qualifications of the judiciary at Pondicherry, earlier referred to, is unconstitutional. Indisputably, these are grounds of great interest and

importance, and deserve careful consideration at the hands of the Court.

At the outset, the change in the nature of the writ sought, and the interest of the petitioner in the proceedings may be briefly referred to.

Originally, the writs were of the character of proceedings in mandamus because of the proposals for appointment, had not been entirely

implemented by then; later, following the appointments, they were altered into writs of quo warranto. Sri Arunachalam contends for the writ

petitioner, that he is a person interested, though not a rival claimant to these offices, as he will be adversely affected by the changes in the judicial

organisation, resulting from the introduction of Judges not qualified in French law, and not having the requisite knowledge of the French language.

A person possessing an interest of this kind can complain: vide Srikishan v. The State (1957) 2 An.W.R. 43 : AIR 1957 A.P. 734. With regard to

the nature of the injury sustained, reference is also made to Dr. P.S. Venkataswamy v. University of Mysore AIR 1964 Mys. 159, 164. I shall

proceed on the assumption that the writ petitioner has a right to complain, and to seek these reliefs at our hands, if he can show that the orders of

appointment infringed a guarantee, which is part of the Treaty of Cession, and which is so implemented by the Pondicherry (Administration) Act

(XLIX of 1962), that the guarantee is justiciable in the municipal Courts of India; again, that he has a right to relief, if he can show that the order of

the President, introducing changes in qualifications for judicial officers at Pondicherry, under the proviso to Article 309, is unconstitutional. These

are different limbs or branches of the same main argument directed towards the appointments.

The arguments involve a careful exposition of the history of the French settlement of Pondicherry, with regard to the aspect of the constitutional

history of the settlement. It is also essential to refer to the previous Decrets as envisaging the organisation of Courts, and the qualifications of

judicial officers, and, further, the terms of the Treaty of Cession, the Proces-Verbal and the relevant Sections of Act XLIX of 1962. The entire

history can be conveniently divided into three phases, or stages. The essential facts here are as follows.

It appears that by a Decret of February, 1701, the French law was first introduced into the French settlement of Pondicherry. The Royal

Ordinance of 7th February, 1842, is the basis of the French judicial system as prevailing at Pondicherry. It is noteworthy that, though the area was

under British occupation from 1793 to 1816, for 23 years, the French judicial system continued to function in tact, and the French law was

administered in the Courts of the settlement (V. Schmit). There is a Decret, dated 22nd August, 1928, which is of considerable importance

because several provisions of this Decret were repealed by the notification of the Central Government, earlier referred to, u/s 4(2) of the

Pondicherry (Administration) Act (XLIX of 1962); it is this Decret which originally provided for the classification of Courts in French colonial

territories including Pondicherry, and the qualifications of the judiciary. There is another Decret, dated 12th June, 1947, relating to the hierarchy of

Courts at Pondicherry, and a third, dated 18th May, 1952 determining the composition of the Tribunals. On the 15th December, 1952, the Code-

du-travail (Labour Code) was implemented by the establishment of a Labour Court. This is the first phase of the constitutional history of this

settlement.

The second phase, or stage, commences with the merger agreement, dated 21st October, 1954, entered into between the high contracting

powers of India and France. This agreement included Pondicherry, and took effect on 1st November, 1954; thereafter, this is known as the date

of the de facto transfer. The settlement at Chandranagore alone was excluded, and it was transferred to India by a separate treaty; vide Union of

India (UOI) Vs. Manmull Jain and Others, . During this period of de facto transfer, Pondicherry was administered by the Government of India

under (i) the Foreign Jurisdiction Act (XLVII of 1947), and (ii) the French Establishment Administration Order, 1954. Three cases of the Supreme

Court throw a flood of light on the constitutional development of this phase. They are the first case of N.T. Patel and Company Vs. Commissioner

of Income Tax, Madras, the subsequent N. Masthan Sahib Vs. Chief Commissioner, Pondicherry, on the replies of the Union Government to the

questions referred by the Supreme Court, and K.S. Ramamurthi Reddiar Vs. The Chief Commissioner, Pondicherry and Another, . As pointed out

by the Supreme Court, in view of the unilateral action, there was no immediate integration and the entire situation was governed by the treaty.

We now pass on to the third phase, which is the vital phase, for the purpose of our present analysis, the merger agreement, dated 21st October,

1954, followed by the Treaty of Cession, dated 28th May, 1956. In International Law, as we shall see, such a treaty does not come into

immediate effect by the mere virtue of its existence; it has to be ratified by the high contracting parties, and quite some time elapsed before the

ratification took place. The de jure transfer took effect on 16th August, 1962 and this is known as the appointed day, a clear reference thereto

being embodied in Act XLIX of 1962. Act XLIX of 1962 came into effect on 5th December, 1962, and by the Fourteenth Amendment Act of the

Constitution. Pondicherry was merged in the Indian Union as an Union Territory, under Entry No. 9 of the First Schedule (Part II). After this, we

have the enactment of the Government of the Union Territories Act XX of 1963, to which also some reference is essential. I propose, first, to

examine the Treaty of Cession itself, then to examine the Proces-Verbal and the two affidavits now available, concerning its precise status and

character, and subsequently to examine the Decret, dated 22nd August, 1928 on the aspect of the qualifications of judicial officers at Pondicherry.

I shall next proceed to the two notifications, one of the Central Government and one of the President, which led up to the challenged appointments.

Some discussion of the legal aspect is also necessary on the question whether the Treaty of Cession by itself is justiciable, and can be enforced in

any municipal Court.

Assuming that it cannot be so enforced, but has to be implemented by the law of the land before any right guaranteed under the treaty is

justiciable, Sri Arunachalam argues that, in any event, Act XLIX of 1962 is such a clear implementation, and that it incorporates, by reference, not

merely the treaty itself, but also the Proces-Verbal which embodies the guarantee. There is, finally, the question whether the Presidential

promulgation under the proviso to Article 309 is unconstitutional, as alleged, and whether the guarantee of the Proces-Verbal can be said to be

infringed by the appointments even if it be assumed that the guarantee is justiciable. Finally, there is the question of the language of the Courts in

Pondicherry, and the refinement which has now been introduced by the Official Languages Act enacted by the Pondicherry Legislature (Act III of

1965), when the writs were pending; we certainly agree that that is a development that we are bound to take note of, in considering the exercise of

our powers under Article 226 of the Constitution.

Only certain vital provisions of the Treaty of Cession need now concern us. Under Article 2, the high contracting parties agree that the

constitutional changes in the establishments will be made, after ascertaining the wishes of the people. Similarly, Article 3 lays it down that the

Government of India succeeds to the rights and obligations resulting from binding Acts of the French Administration. Article 5 relates to those who

desire not to be governed by Indian nationality, and Article 14 to legal proceedings instituted prior to 1st November, 1954, which should be

judged in conformity with the previous basic legislation and procedure; to enable this, the existing Courts in the establishments were to continue to

function. Articles 12,15,21,24, 25 and 28 relate to the saving of various institutions, records, judicial and otherwise, the French College at

Pondicherry, the French Institute, and the acceptance of French Diplomas and Degrees as equivalent to those awarded by Indian Universities.

Under Article 28, French language was to remain the official language, unless the elected representatives of the people decide otherwise. Article

29 is of great importance, and it lays down that all questions pending at the time of the ratification of the Treaty of Cession, were to be examined

and settled by a commission, composed of three representatives each of the French and the Indian Government. There is an annexed protocol,

which is certainly part of the treaty, and Article 8 of this protocol recognises the property rights of the French Government in various buildings at

Pondicherry.

Before proceeding to the Proces-Verbal we may briefly note two provisions of the Pondicherry (Administration) Act XLIX of 1962, which

are vital to the present context. Section 4 of this Act refers to the continuance of existing laws and their adaptation, and, u/s 4(2):

For the purpose of facilitating the application of any such law in relation to the administration of Pondicherry and for the purpose of bringing the

provisions of any such law into accord With the provisions of the Constitution,

the Central Government may make adaptations and modifications, by repeal or amendment, of laws in force, within three years from the appointed

day. It will be noted that of the two promulgations that led to the appointments, one by the Central Government, dated 12th October, 1963, was

u/s 4(2), and it repealed Articles 1, 2, 9 and 51 to 56 (both inclusive) of the Decret, dated 22nd August, 1928 relating to judicial officers. Another

vital section of Act XLIX of 1962 is Section 6; it enacts:

Subject to the provisions of the Treaty of Cession, all rights, liabilities and obligations of the Government of the French Republic... shall, as from

the appointed day, be the rights, liabilities and obligations of the Central Government.

According to Sri Arunachalam, it is this provision of the enactment, implementing the Treaty of Cession by reference and incorporating it thereby,

which gives the writ petitioner the right to invoke the Proces-Verbal as a justiciable guarantee.

Concerning the Proces-Verbal itself, we have (i) the text of this document which was executed by Sri Rajeshwar Dayal on behalf of the

Government of India and by the Ambassador of France in India on behalf of the French Republic on 16th March, 1963, and (ii) the two affidavits

concerning its character and status. Sri Arunachalam contended that prima facie it was the implementation of Article 29 of the treaty that I have

earlier set forth. Hence, it is an integral part of the treaty, and binding on the Government of India. Since this has been incorporated by a reference,

under the terms of Section 6 of Act XLIX of 1962, these appointments, which infringe the guarantee of the Proces-Verbal, are liable to be struck

down, even in the municipal Courts of the land. The actual guarantee, which is contained in sub-paragraph (3) of Section 1 is in the following

words:

The Indian delegation stated that the Government of India did not contemplate any sudden reform of the judicial organisation in Pondicherry.

Changes which would be necessary to bring the system in Pondicherry in harmony with that prevailing in the rest of India, Will be introduced

gradually, allowing a reasonable period of transition.

I shall immediately pass on to the nature of this document as made evident by the two affidavits on record.

The first affidavit is the supplemental affidavit of Mr. Shetty, the Legislative and Judicial Secretary to the Government of Pondicherry, and this

includes by reference a note prepared by Sri Rajeshwar Dayal at the time of the diplomatic pourparler between the high contracting parties, just

prior to the Proces-Verbal. In this note,. Sri R. Dayal makes it clear that the Proces-Verbal was not in consequence of proceedings between the

parties under Article 29 of the treaty, nor does it constitute any minutes of the implementation thereof. On the contrary this was not the mixed

commission contemplated by Article 29 of the treaty at all, as the parties agreed that invoking that article:

would lead to rigidity of approach, and several matters raised Would be excluded.

This was a friendly and informal discussion and the Proces-Verbal is a record of the conclusions then arrived at. At a later stage of the hearing

of these writ petitions it was felt that the affidavit of Mr. Shetty who was quite unaware of the true nature of the Proces-Verbal, may be

inadequate, and the learned Government Pleader (Pondicherry) on behalf of the respondents was requested to see if further light could be thrown

on the subject.

We have now on record the affidavit of Sri K. Krishna Rao, Director of Legal and Treaties Division, Ministry of External Affairs of the

Government of India at the time, who was personally acquainted with the precise circumstances under which the Proces-Verbal came into

existence. He states that an aide-memoire was first furnished by the Government of France, that discussions were then held between the

representatives on both sides from 13thNovember, 1962 to 15th March, 1963, and that the agreed conclusions were incorporated in the Proces-

Verbal. This was not in terms ''of Article 29 of the treaty, and it was not the minutes of any joint commission, as contemplated under Article 29.

Certainly these very explicit statements of responsible authorities must be accepted; but, even so, the further question remains whether, under

International Law, the Proces-Verbal ought to be regarded as integral with the Treaty of Cession, or otherwise. Next, we have the question

whether the Proces-Verbal has been incorporated by reference u/s 6 of Act XLIX of 1962, and is, therefore, justiciable in the municipal Courts?

The nature of a Proces-Verbal executed under such circumstances, has also come in for a certain amount of discussion. Finally, we have the

related questions arising from (i) the modifications of the Decret, dated 22nd August, 1928, by the notification of the Central Government u/s 4(2)

of Act XLIX of 1962, (ii) the validity of the Presidential Order under the proviso to Article 309, and (iii) the question of the status of the French

language in Pondicherry Courts, and the requirements that the Judges should be adequately acquainted with that language. I shall first discuss the

matter of the justiciability of the Treaty of Cession, or any alleged annexure to it, such as the Proces-Verbal, by virtue of the implied incorporation

through Act XLIX of 1962. Admittedly, this is the most controversial area, of the extensive arguments that have been addressed to us.

I may immediately state that, whatever might be the constitutional situation in the United States, where it appears that an international treaty

may be considered as part of the law of the land (vide volume I of Schwarzenberger, page 142, etc. 1957 edition) because of the impact of Article

6 of that Constitution, the situation is entirely different, both in the United Kingdom, and in India. Indeed, a plethora of cases may be claimed to be

available to establish, that no international treaty entered into between India and any foreign country is justiciable in a municipal Court here, in any

sense. Such a treaty is invested with the character of an act of State, and no claim based thereon could be enforced in a municipal Court: Dalmia

Dadri Cement Co. Ltd. Vs. The Commissioner of Income Tax, . I find that the clearest statement of the law can be gathered from Lord McNair''s

Law of Treaties, (1961 edition), one of the most authoritative treaties on this aspect of International Law. The learned author observes as follows

(page 81):

In this matter of the municipal effects of treaties the United Kingdom affords a sharp contrast to the United States. In the United Kingdom, as We

shall see, with a very limited class of exceptions no treaty is self-executing; no treaty requiring municipal action to give effect to it can receive that

effect without the co-operation of Parliament, either in the form of a statute or in some other way. Whenever a treaty, or anything done in

pursuance of it, is likely to come into question in a Court of Law or require for its enforcement the assistance of a Court of Law, the question at

once Will arise whether any action required on the part of the executive or the Courts of Law to give effect to the provision of the treaty is, or is

not, already authorized by the existing law of the land, If the answer to this question is in the negative, the Crown must induce Parliament to

legislate...

The following authorities on this aspect of the law, represent some of the important landmarks of the case-law that is available; they are inter

alia, Salaman v. Secretary of State for India L.R. (1906) 1 K.B. 613. Nabob of the Carnatic v. East India Company 30 E.R. 521, West Rand

Central Gold Mining Company v. Rex (1905) 2 K.B. 391, etc. In State of Gujarat Vs. Vora Fiddali Badruddin Mithibarwala, , the Supreme

Court dealt with the dicta of Marshall, C.J., in The United States v. Percheman 8 L.ed., 604, 617, to the effect that a change of sovereign did not

affect the property rights of the subjects, and certain propositions were recognised, of which proposition Nos. 8, 9 and 10 now concern us. They

were to the effect that, while municipal Courts have the power and jurisdiction to investigate and ascertain the rights recognised or acknowledged

by the new sovereign, it is only where there is such an acknowledgment or recognition that they could be enforced; in any controversy as to that,

the burden of proof lay on the claimant. That a Treaty of Cession or other treaty between high contracting parties is not justiciable per se in

municipal Courts, but must be implemented by national legislation before the Courts can enforce any right thereunder, is also clear from Bimla Devi

v. Sri Chaturvedi ILR (1953) All. 735. Also see Union of India (UOI) Vs. Manmull Jain and Others, , Maharaj Umeg Singh and Others Vs. The

State of Bombay and Others, , relates to Article 363 of the Constitution, and the Bombay Merged Territories Areas (Jagir Abolition) Act, 1953

(Act XXXIX of 1954); the Supreme Court laid it down that the letters of guarantee were beyond the jurisdiction of the Court, by virtue of Article

363.. As stated by Lord Dunedin in Vajesing ji v. Secretary of State for India (1924) ILR 48 Bom. 613 (P.C.) : (1924) 51 LA. 357 : 47 M.L.J.

574 : AIR 1924 P.C. 216 :

Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has,

through his officers, recognised... even if in a Treaty of Cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give

a title to those inhabitants to enforce these stipulations in the municipal Courts.

As far as the United Kingdom is concerned, the two leading decisions are: Hoani Te Heuheu Takino v. Aotea District Maori Land Board

(1941) A.C. 308 and Republic of Italy v. Hambros Bank Ltd. and Gregory (Custodian of Enemy Property) (1950) 1 Ch. 314. The latter case is

particularly significant, as the Judge (Vaisey, J.), strongly felt that something had occurred which was against his judicial conscience, in the matter of

the transfer of the assets of King Victor Emanuel III of Italy in England, as it was apparently due to some misunderstanding, infringing a clearly

expressed undertaking between high contracting parties; the learned Judge stated that he ended as he began in an atmosphere of some

bewilderment. Still, though the learned Judge felt oppressed thereby, he came to the conclusion that the financial agreement per se was neither

cognisable nor justiciable in the High Court. The situation, as such, is indeed beyond controversy. At the first blush it might appear as if the

statement in State of Gujarat Vs. Vora Fiddali Badruddin Mithibarwala, , may be authority, in regard to propositions 8, 9 and 10 in the judgment

of Rajagopala Ayyangar, J., for the view that even an obligation, like that embodied in the present Proces-Verbal, might be justiciable, because of

an implied agreement or recognition. But a study of the entire judgment is convincing that no departure from the established law was intended in

this respect; whether the agreement be express or implied, an agreement between this country and another foreign power will not be justiciable in

the municipal Courts of this country; it must be made part of the law of the land, by incorporation, express or implied, before a citizen could invoke

any right based on such an agreement. So much being clear, we shall next proceed to analyse how precisely the Proces-Verbal stands, as an entity

in diplomatic usage and in International Law.

Before doing so, I must briefly refer to the Decret of 1928, and to Articles 1, 2, 9 and 51 to 56 (both inclusive) of that Decret, that were

repealed by the notification of the Central Government. It appears that during the phase of the de facto merger, Pondicherry was under a Chief

Commissioner, by virtue of an order under the Foreign Jurisdiction Act, 1947, dated 30th October, 1954. The Courts, Tribunals and

establishments were functioning under the pre-existing law, and appointments to them were governed by the Decret already referred to. But,

certain administrative exigencies arose, particularly following the de jure transfer, and (in October, 1963) of the extension of various Indian

enactments to Pondicherry. It is now conceded, for instance, that the entire criminal law administration has radically changed, because of the

introduction of the Indian Evidence Act, the Indian Penal Code, and the Criminal Procedure Code. The repealed articles of the Decret provide for

manning of the Courts by persons having the requisite French Law Degree (Licencie-en-droit), and for appointments to the Superior Court of

Appeal, Magistracy, etc. Sri Arunachalam argued that even this repeal has left intact the other portions of the Decret, which concern promotions to

judicial posts at Pondicherry, the entire French Colonial Judicial Cadre being treated as one unit for this purpose; the argument was that, since

these provisions were intact, Sri Maharajan could not be appointed straightaway, as President of the Superior Court of Appeal. The argument is

unsubstantial, and it rests on a misconception. As this may be the convenient point to elucidate one important aspect of sub-paragraph (3) of

Section I of the Proces-Verbal, that I have quoted verbatim earlier, I shall proceed at once to do so. The guarantee embodied in that clause, in so

far as it relates to the judicial organisation, has not been disturbed at all, except to the extent rendered inevitable by the very Treaty of Cession.

Thus, under the Merger Act (Act XLIX of 1962) Sections 9 and 10, this Court inherits the powers of the Cour de Cassation the Cour Superieur

d'' Arbitrage and the Conceit d'' Etat of France. It could not be otherwise, since Pondicherry ceased, with the ratification of the Treaty of Cession,

to be part of colonial France. The same argument must apply to any of the articles of the Decret of 1928, relating to the French Colonial Judicial

Cadre. But in all other respects, so far, the hierarchy of Courts at Pondicherry, namely, the Justices of the Peace, the Courts of First Instance the

Superior Court of Appeal manned by three Judges, and the. Council of Administrative Law (Conscil-du-Contentieux) have not been altered in

structure or interlinked gradation; they remain intact. It is the introduction of the criminal law of India, which has alone rendered it essential that a

District Magistrate (Judicial) should also function at Pondicherry. If the argument relates to the structure of the Courts, it has to be repelled, apart

from any question of the justiciability of the clause of the Proces-Verbal or of incorporation by reference. If the argument relates, instead, to the

suddenness of the change, by the two appointments of Indian Judges, not having the requisite Degrees of French Law, as President and Member

of the Superior Court of Appeal, it has of course to be scrutinised on the merits.

We have been at some pains to ascertain the status of a Proces-Verbal in diplomatic usage, and in International Law, accepting the two

affidavits on record that this document came into existence between the high contracting parties, not as formal minutes of a procedure followed

under Article 29 of the Treaty of Cession, but as a subsequent informal consultation and agreement unrelated to Article 29. In Harrap''s French

and English Dictionary Proces-Verbal is defined as

an official report, proceedings, minutes of meeting; record of evidence, etc.

There is another significance to this term, in the French processual law relating to claims, as a report of police officer who take down

the particulars of a minor offence (delit).

Even in diplomatic usage, the term appears to suffer from some degree of ambiguity. We have consulted two authorities, both of which are

standard treatises namely, (i) Oppenheim''s International Law, volume I (eighth edition) and (ii) McNair''s Law of Treaties (1961 edition).

According to Oppenheim, at page 792:

A Proces-Verbal is the official record or minutes of the daily proceedings of a conference and of the provisional conclusions arrived at;

The learned author states that,

A treaty, being a contract, must not be confused With various documents having relation to treaties, but not in themselves treaties-namely...a

Proces-Verbal.

McNair states at pages 14, 15 that the Proces-Verbal

may form an adequate record of an informal engagement agreement.

The learned author adds:

There is no reason based on its informality, Why such a record should not constitute adequate evidence of an international engagement... What

matters is the intention of the parties.

In the two affidavits, the first containing the note of Sri Rajeshwar Dayal and the second which is the affidavit of Sri Krishna Rao, we find no hint or

suggestion that the Proces-Verbal is not an important undertaking, binding upon the Union Government. Certainly, it may not be evidence of

procedure under Article 29 of the treaty, and apparently it is not an embodiment of the conclusions arrived at, by the adoption of that procedure.

But, even if an informal procedure had been substituted between the high contracting parties, it is indeed difficult to suppose that the mutual

obligations thereby arrived at, and embodied in the minutes, were not to be regarded as strictly binding. Actually, that is not the position taken by

the Union Government. But even if the Proces-Verbal be binding on the Union Government, that does not help the writ petitioner at all. He must

show, firstly, that the spirit of the guarantee has been infringed by the appointments, and, secondly, that this guarantee is part of the Treaty of

Cession, incorporated by Section 6 of Act XLIX of 1962, and, therefore, justiciable in the municipal Courts of this land.

Even if we assume that the guarantee had been infringed by the mere appointments of two persons not having the French Law Degrees, within

such a short time as about two years after the de jure merger, which it could be very reasonably contended, is not a gradual but an abrupt

transition, the question still remains whether this is any right justiciable before us. The learned Government Pleader for the respondents has argued

that the structure of the Courts has remained intact, that at least one French-knowing Judge, who is a Licencie-en droit, is a member of the

Superior Court of Appeal, always associated with the President and the other Member, and that such a modification in the personnel alone,

necessitated by the introduction of the laws of India in a large volume into the Pondicherry State, may not be said to offend the guarantee. But this

apart, we are certainly satisfied that the Proces-Verbal is not part of the Treaty of Cession, and cannot be so regarded in International Law, and, in

any view, is not incorporated by reference as part of the law of the land. I think it is sufficient to be very brief here, in view of the ground that has

been already covered. Conceivably, even minutes or memoranda that came into existence subsequent to a treaty, could be part of a treaty, but, as

Oppenheim points out, this kind of supplementary document is often termed a Protocol, and must not to be confused with a Proces-Verbal. It is at

least doubtful whether, as a matter of strict International Law, the Proces-Verbal could be regarded as integral with the treaty, in the same sense

that the annexure or Protocol with regard to the property rights of the French Government in certain buildings, undoubtedly is. In any event, the

incorporation by reference in Section 6 of Act XLIX of 1962 cannot extend beyond the treaty and the annexure, for the simple reason that the Act

came into existence on 5th December, 1962, while the Proces-Verbal came into existence on 16th March, 1963. Further, there is absolutely

nothing in Section 6, which might warrant an inference that a document that might subsequently come into existence, should also be presumed to

have been incorporated by a necessary implication.

The entire matter of incorporation of one enactment into another, was considered extensively by the Full Bench of this Court in A.M.S.

Mohammed Kasim Vs. The Assistant Collector of Central Excise, Madurai, , a decision to which I was a party. It may not be necessary to refer

to the detailed analysis in that judgment, but it is noteworthy that in that judgment different modes of incorporation have been discussed, as also the

consequence of incorporation. As I observed (page 1051):

Either the ipsissima verba are preserved in the interpreting statute, or a form of reference is used Which admits of no ambiguity whatever... there is

a more and more marked disinclination to confuse mere reference, citation or application of the legal principle of an earlier statute, with statutory

incorporation proper.

But one case of very great interest that I have discussed there is The Queen v. Smith (1873) I.R. 8 Q.B. 146, where certain appeal Sections

were taken to be incorporated by a form which said, constructively, though not expressly. That is as far as the law has gone in this respect. Even

so, I think it is impossible to contend that there is a constructive incorporation of the Proces-Verbal or any part of it, in Section 6 of Act XLIX of

1962. It follows that the guarantee, assuming that it has been infringed by the appointments, is not justiciable in the municipal Court. On that ground

alone, the writ petitioner has to fail.

25.Before passing on to the matter of official language, and certain ancillary considerations relating to the present situation of the Pondicherry Bar

and the judicial organization there, I shall deal with the question of the alleged unconstitutional character of the particular order promulgated by the

President under the proviso to Article 309. The learned Government Pleader argues that even if this order had not been promulgated, the

appointments could be sustained, as there is a virtual vacuum or interregnum created by the other valid notification which takes away a large part of

the Decret of 1928, relating to the judicial organisation at Pondicherry and qualifications for the judiciary. My learned brother proposes to examine

the argument relating to the validity of the Presidential Order, separately by means of a detailed analysis in his judgment. It may, therefore, be

sufficient that I confine myself to quite a brief analysis why, in my view, the Presidential Order under the proviso to Article 309 is perfectly

sustainable.

The argument of Sri Arunachalam on this aspect has first to be considered. Learned Counsel points out that Article 1 of the Constitution itself

was amended by the Seventh Amendment Act, 1956, and that as the Article now stands, there is a clear discernible division between (i) Territories

of the States, (ii) Union territories specified in the First Schedule and (iii) such other territories as may be acquired. The Union territories, such as

Pondicherry, ought not to be confused either with the territories of the States, or with such other territories as may be acquired; the Union

territories constitute a class apart. Article 309 declares that the appropriate Legislature may regulate the recruitment and conditions of service of

persons serving the State or the Union in the latter case such as the officers of the customs, Income Tax, excise and other services, while the

proviso states that it will be competent for the President to make rules and regulations in this regard, until there is appropriate legislation by the

concerned Legislature; as Basu points out in his Commentary on the Constitution of India, fourth edition, volume IV, page 501, the proviso is

a transitional proviso empowering the Executive to make rules having the force of law.

The argument of learned Counsel is that this power cannot conceivably relate to the services of the Union territories, which form a totally

distinct category. Article 308 also, as it stands, includes all States except the excluded State of Jammu and Kashmir, but does not include Union

territories. The only power of the President to make Regulations for the Union territories is, according to learned Counsel, to be found in Article

240 of the Constitution. But first of all, this power is limited to the making of Regulations and such a Regulation made under Article 240(2), can

only repeal or amend any Act of Parliament, or any existing law, which under Article 366(10) means a law made before the commencement of the

Constitution, by any Legislature, etc. The argument is that this will not include the suppression of Decrets that were in force in the French colony of

Pondicherry. In any event, the learned Government Pleader concedes that the power under Article 240 cannot be invoked, in the present case,

because the promulgation was subsequent to the date appointed for the first meeting of the Pondicherry Legislature vide the first proviso to Article

If Article 240 be thus excluded, the power of the President has to be gathered either under Article 309, already referred to, which, according

to Sri Arunachalam, cannot be made applicable to Union territories, or from other Articles of the Constitution dealing with the power of the

President to make rules having the force of law.

In this regard, after careful consideration, I think that the power of the President will extend to the making of rules having the force of law, even

for the Union territories, until such time as the Parliament legislates in this regard, or the Legislature of the Union territory does so. It is here that

Article 246(4) of the Constitution is relevant, as well as the authority of Mithan Lal Vs. The State of Delhi and Another, . As observed by Basu

(fourth edition, volume IV, page 168), Parliament under Article 246(4) is clearly given the power to make laws with regard to the Union territories,

even with respect to subjects included in the State List. Moreover, such a right of the Parliament is explicitly recognised u/s 18(2) of the

Government of Union Territories Act XX of 1963 which, again, by implication, refers to Article 246(4) and to the constitutional power vested in

Parliament. The question, is, if Parliament has this power, does the President have the power to make rules having the force of law, in this regard,

till the Parliament thinks it fit to legislate, or the Union territory Legislature does so? I think that this question must be answered in the affirmative

having reference to the very clear terms of Article 73(1) of the Constitution. Article 123 being also relevant, though in a subsidiary sense. Under

Article 73(1), the executive power of the Union, namely, the power of the President, extends to

the matters with respect to which Parliament has power to make laws,

and this, as we have already seen, will include the power to make laws for an Union territory, in regard to the services. Article 123 might be said to

embody the legislative powers of the President, by the promulgation of Ordinances, except when the Houses of Parliament are in session. This,

read along with Article 309, will clearly indicate that, till the Union Parliament or the State Legislature think it fit to take action in respect of

services, including the judicial services, the President may make valid Regulations. Indeed, that must be so, for, as pointed out in Satya Dev

Bushahri Vs. Padam Dev and Others, , the President was in the position of the Executive Head of Part C States, and he has hence responsibilities

closely allied to that of a Rajpramukh or Governor. In the light of the analysis of the powers of the President, as appearing in the Constitution, it

would seem abundantly clear that (i) the executive power of the President to make Regulations having the force of law, extends to the entire area

of Parliamentary legislative competency and, (ii) that, of course, is transitional in character, since it will be necessarily superseded by Parliamentary

legislation, or by the legislation of the State Legislature. That not having taken place so far, the notification must be considered wholly valid.

Before passing on to the matter of the present set-up, and the procedure of the Courts at Pondicherry in relation to the composition and back

ground of the Pondicherry Bar, I shall deal very briefly with the question of the official language.

Sri Arunachalam for the writ petitioner would seem to maintain a distinction, between the language of the Courts and the official language,

based upon the different uses of these terms in Part XVII of the Constitution, particularly the heading of Chapter III of Part XVII. He points out

that even the headings of chapters, and the marginal headings in a Constitution, unlike an enactment may be taken as having a binding force. This

apart, I am unable to see why the dichotomy, which is preserved in the Constitution for a special purpose, should be brought into the matter of

language of the Courts at Pondicherry, when the Treaty of Cession, and the subsequent legislation are perfectly explicit. As I think, I have earlier

observed, under Article 28 of the Treaty of Cession, the official language is to be French, until the elected representatives decide otherwise. This is

incorporated in Section 34 of Act XX of 1963, under which the Legislative Assembly of the Union territory may by law adopt any one or more of

the languages in use in the Union territory or Hindi, as the official language. There is a specific proviso that French should be the official language at

Pondicherry, to be used for all official purposes, so long until the Legislative Assembly of the Union territory of Pondicherry decides otherwise.

The Legislative Assembly has decided otherwise, and the consequence is the Official Languages Act of the Pondicherry Legislature, that I have

referred to earlier, under which both Tamil and English have been elevated to the status of official languages, to come into effect upon a date to be

notified. Hence, the question is largely academic, owing to an event that has taken place subsequent to the institution of the writ petitions. Even if

the date be not actually notified, yet, clearly the intention is to bring these languages into force as official languages, and until that is done, the

procedure that seems to prevail is that there is prepared a French text of the judgments of the Superior Court of Appeal, which will be the official

text of the judgment.

I may here add that the entire situation is somewhat confused and obscure, for the reason that continental systems of jurisprudence are so

different from the one inherited by this country from the British days. In Indian Courts, judicial precedents are not merely of persuasive force, but

are binding upon subsequent Benches or Judges, and do, within their own sphere, create law; Judge-made law is thus known to our Courts, and

relied on in our Courts, whereas, apparently, the continental system differs profoundly, and places almost an entire reliance upon the text of the Act

or Code, and not on binding precedents. That resulted in Pondicherry as elsewhere, in the delivery of judgments which were not intended to

persuade even an appellate Tribunal; they were more or less of the character of decrees, and, after making a very brief reference to the principles

or the articles of law relied upon, merely proceeded to state the conclusions, by a highly condensed process of reasoning. These judgments were

found to be quite inadequate, and, indeed, likely to frustrate the ends of justice, when the appellate jurisdiction of this Court was established, and

had to function within the ambit of Act XLIX of 1962. For that reason, the Superior Court of Appeal is now pronouncing judgments of a widely

different character, and, till the date of notification under the Official Languages Act, which has received the assent of the President, I do not think

that anything more need be done, than that the French texts of such judgments should be prepared and should be made available to parties and to

the Court of Appeal, as required. On this aspect, therefore, it is impossible to strike down the impugned appointments.

But that does not imply, for a moment, that a great deal ought not to be done to allay any reasonable apprehensions that persons like the

petitioner might have, that the guarantee embodied in the Proces-Verbal will not be respected; I must affirm that I do not take the affidavits on

record, or the arguments of learned Counsel for the Union of India, as implying, in the slightest, the contention that the assurance of the Proces-

Verbal are not to be taken as solemn assurances by high contracting parties, to be respected. This necessarily implies that, compatible with such

changes as may be absolutely essential in the interests of judicial efficiency, and here I may add that the assurances of the Proces-Verbal itself is in

relative terms, and not. unqualified, the transition should be as smooth as possible. Before parting with the writ petitions, and since we have

devoted some attention to this aspect of the matter, a few observations may not be amiss; they may be valuable, on the contrary, as affording a

basis for consideration of further developments by the Government of Pondicherry. I must here explicitly add that these observations do not relate

to the introduction of the laws and procedures of India, upon the civil side also into the Pondicherry State, for that is outside the ambit of these

petitions. These observations are confined to the present status of the Bar at Pondicherry, to any present procedures of the Superior Court of

Appeal, and to considerations arising from the need to apply the Code Civil of France and French laws to all pending cases, and further to cases

that might arise for some little time at least in the future.

We gather, from what has been reliably stated before us, that, prior to the agreement of merger, the Superior Court of Appeal at Pondicherry

not merely applied the French law and the French procedure (Code Civil), but also functioned according to the continental system of

jurisprudence. Indeed, it could not otherwise be the case. Though it appears that certain Advocates did address verbal arguments to Court, and

sometimes at length, these were quite individual exceptions; largely, the procedure was the continental one of preparing the respective dossiers or

conclusions, to be interchanged a number of times as written submissions to Court. A study of these resulted in a judgment, which was, again, in

conformity with continental system of jurisprudence, mainly the citation of the relevant provisions of the law, and almost a form of decree, with the

bare steps of reasoning alone indicated. We agree that, having regard to the few persons now practicing as Advocates at Pondicherry who alone

can practice before the Superior Court of Appeal under the law as it stands to-day, their ages, their ignorance of English, and difficulty of

adaptation to a wholly different system of submission of verbal arguments at length, expounding the points of the case, it may be very wise to

combine as many elements of the former system as possible, with well-known procedures, instead of totally superseding them. We understand that

Advocate are permitted to address the Court in French, and there is the consolation that at least one of the Judges will be qualified in French law,

and fully acquainted with the language. Fortunately, the system at present in vogue appears to permit the co-opting of persons learned in French

law, and available at Pondicherry, to serve as ad hoc Judges. It appears to me that such an expedient could be freely resorted to during the

essential transitional period, both to see that members of the limited Bar at Pondicherry are not frustrated in the exercise of their profession, and

also to see that, until the language of the Court be English or Tamil, as wholly permitted by law (and even in this contingency, the necessity to

understand and apply French laws may continue for some time), the Judges or a majority of the Judges are able to follow the arguments in French,

and to read the laws in French. I must reiterate that whatever can be done to observe the spirit of the assurances of the Proces-Verbal, during the

transitional period, should surely be done, since the solemn obligations of the high contracting parties are not denied at all before us. With these

observations, the writ petitions are dismissed. The parties will bear their own costs.

Ramakrishnan, J.-I had the advantage of perusing the judgment of my Lord the Officiating Chief Justice, and I entirely agree with the

conclusions and the order proposed. I wish, however, to add the following observations.

One of the principal arguments of the learned Counsel for the writ petitioner Is that the impugned notification of the President, dated 5th

October, 1963, the Pondicherry Judicial Officers (Qualifications) Rules, 1963, purporting to be issued under the powers conferred on the

President, by Article 309 of the Constitution of India, is ultra vires, because the said Article of the Constitution does not confer on the President,

such a power in regard to a Union Territory. It may be recalled, that this notification provides for the equivalence between the degree in law of an

Indian University, and the degree in law of a French University known as Licencie en droit with the proviso that knowledge in French for an Indian

law degree-holder would be deemed an additional qualification, for appointment to judicial posts in Pondicherry. The learned Counsel''s argument

is that Article 309 of the Constitution, as amended by the seventh amendment, which empowers the President to make rules regulating the

recruitment and conditions of service of persons appointed to services and posts, will apply to services and posts in connection with the affairs of

the Union, while a similar power is vested in the Governor of a State for services and posts in connection with the affairs of the State, but that

employment in a Government service under the Union territory of Pondicherry will fall under, neither category, so that the deriving of the power

under this Article by the President for promulgating the impugned notification, is unconstitutional.

Article 309 is found in Part XIV under the heading Services under the Union and the States. Before the seventh amendment, Article 308

contained a definition, that the expression State in this part meant a State specified in Part A or Part B of the First Schedule but after the seventh

amendment, the expression State is defined, as not to include the State of Jammu and Kashmir. The reason for this modification was presumably

because, prior to the seventh amendment Fart C States were administered by the Union, and such States had to be excluded from the connotation

of the word State in Part XIV, but after the amendment, Part C States were abolished, and the new classification of Union territories was included

in the definition in Article I of the Constitution. But it is important to remember that even before the amendment, the protection conferred under

Article 311 of the Constitution, which is also found in Part XIV, was available to members of services under the Government in Part C States. It is

sufficient to refer to Union Territory of Tripura, Agartala Vs. Gopal Chander Dutta Choudhury, , where, though the point was not specifically

discussed, it was held by implication, that the protection under Article 311 of the Constitution was available to Government servants employed in

Part C States. If the contention of the learned Counsel for the petitioner is to be upheld, it will follow that after the seventh amendment, when the

Union territories have come to take the place of Part C States, such protection would be automatically lost. I do not think that such a result was

intended or was unconsciously allowed to follow, when the Constitution was amended by the seventh amendment. The more rational view is to

treat Government employees in Union territories, as persons employed in connection with the affairs of the Union. In this context, there is a clear

distinction between the affairs of the Central Government and the affairs of the Union. It has been pointed out in Satya Dev Bushahri Vs. Padam

Dev and Others, , that the affairs of the Central Government can be different from the affairs of a Part C State and the President as the head of a

Part C State, occupies a different position from that as the head of the Central Government. By a logical extension of this principle, one can hold

that when the President administers a Union territory, he occupies a position different from that of the head of the Central Government, and when

he promulgates rules for the control of services and posts in a Union territory, those rules are for services and posts in connection with the affairs of

the Union, and the power so exercised falls squarely under Article 309.

The learned Government Pleader for the State of Pondicherry urged that apart Article 309, the promulgation of the impugned rule, will fall

within the executive power of the Union, exercised through the President. Article 73()(a) of the Constitution provides that the executive power of

the Union shall extend to the matters with respect to which Parliament has power to make laws, and Article 245(4) gives Parliament power to

make laws, with respect to any matter for any part of the territory of India, not included in a State, notwithstanding that such matter is a matter

enumerated in the State List. Article 246(4) will obviously cover a Union territory. The power of the President exercised under Article 309, can be

viewed as an aspect of the general executive power conferred under Article 73(1)(a) read with Article 246, applied for the specific purpose of

dealing with service conditions; therefore, whether Article 309 will strictly include the rule making power for a Union territory or not, nevertheless,

the general executive power conferred by Article 73(1)(a) read with Article 246(4) of the Constitution will validate the impugned notification, in

respect of the Union territory. I am of the opinion that this argument is also entitled to weight, and therefore, no room exists for declaring the

notification of the President above mentioned as unconstitutional and ultra vires.

I propose to advert briefly to one more point. While, on a strict view of the relevant statutory provisions, and in particular, Act XLIX of 1962,

and the scope of the incorporation of the Treaty of Cession by virtue of Section 6 of the above Act, the guarantee of a gradual transition contained

in the Process-Verbal may not be justiciable in writ proceedings, I am in entire agreement with my Lord the Officiating Chief Justice, that it would

be expedient it adequate measures are taken by the authorities concerned, to ensure that for some more limited period, the Superior Court of

Appeal at Pondicherry, is so constituted that at least a majority of the Judges comprising it, are adequately qualified so as to be able to follow the

arguments in French and to read the laws in French. One can concede that the President of the above Court of appeal, who is also the head of the

judicial administration in the State, as well as the District and Sessions Judge for administering Indian law should be one well conversant with the

Indian system of jurisprudence, because of the speedy extension of several Indian enactments to the Pondicherry State; for example, the criminal

law and procedure now administered are now entirely Indian, and progressively more and more branches of the civil law are also being extended.

The learned Government Pleader for Pondicherry represents that the time may not be far off when, with the approval of the Legislature, the Indian

Civil Procedure Code, will be extended to supplant the French Civil Code. But until such a stage is reached, there will persist a dichotomy of two

systems of jurisprudence, the French derived from the European continental system, and the Indian derived from the Anglo-Saxon system, existing

side by side, but in this dichotomy, Superior Court of Appeal, will have necessarily to administer the French system. A great deal has, therefore, to

be said for the view, urged before us by the petitioner, who is the President of the Bar Association at Pondicherry, that for the transitional period,

the Superior Court of Appeal should consist of a majority of Judges familiar with the French law and French language. While the impugned

Presidential notification of 1963 provides for knowledge of French as an additional qualification, it will certainly look odd, if for manning the highest

civil Tribunal in the territory, this additional qualification is treated as unnecessary, in order to suit administrative exigencies. It may perhaps be held

from the administrative point of view on this, however, we have no precise data before us to express a categorical opinion that for a small territory

like Pondicherry two parallel permanent Tribunals at the highest level, one for dealing with French law and another for dealing with Indian law, may

be too expensive. But here, as pointed out by my Lord the Officiating Chief Justice, the system in vogue under the French law, of co-opting ad hoc

(interimaira) Judges to the Superior Court of Appeal, if necessary from a lower rank in the hierarchy of judicial officers, can come to the rescue,

and at best one puisne Judge, qualified in the French law, may be co-opted besides the existing permanent puisne Judge, who is qualified under the

French law, without duplicating the permanent staff, and incurring heavier expenditure on that account. In a matter like this, the salutory principle

that justice should not merely be done but should appear to be done will hold good, and it is from this point of view that the above suggestion is

now made in this judgment, for the earnest consideration of the authorities concerned.