N. Masthan Sahib vs Chief Commissioner, Pondicherry

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal Nos. 42 and 43 of 1961

Decision Date: 8 December 1961

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta

In the matter titled N. Masthan Sahib versus Chief Commissioner, Pondicherry, the Supreme Court of India delivered its judgment on 8 December 1961. The judgment was authored by Justice N. Rajagopala Ayyangar and was pronounced by a bench comprising Justices N. Rajagopala Ayyangar, P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta. The petitioner, N. Masthan Sahib, challenged the decisions of the Chief Commissioner of Pondicherry. The case was recorded with the citation 1962 AIR 797 and 1962 SCR Supl. (1) 981, and appears in the citator as R 1963 SC1464 with references to paragraphs 3 through 7 and 12. The issues involved the status of Pondicherry in relation to the territory of India, the jurisdictional reach of the Union Government and the French Government, and the maintainability of appeals and writ petitions before the Supreme Court under Articles 1(3), 32 and 136 of the Constitution of India.

The Court referred two specific questions to the Union Government. The first question asked whether Pondicherry formed part of the territory of India. The second question, assuming a negative answer to the first, inquired into the extent of jurisdiction exercised by the Union Government and by the French Government over Pondicherry. The Union Government responded that Pondicherry was not part of the Indian territory, that the Union Government exercised full jurisdiction there, and that the French Government exercised no de facto jurisdiction. The petitioner's contention was that the Union Government’s answer to the second question implied that Pondicherry was, in fact, part of India and that the Court should not be bound by the answer to the first question. The Court held that, pursuant to Article 1(3) of the Constitution, Pondicherry was not comprised within the territory of India and that the Union Government’s answer to that question was binding on the Court. The Court found no inconsistency between the two answers. Although administrative control of Pondicherry had been transferred to the Government of India, such control did not amount to a transfer of territory, which required ratification of the treaty of cession between France and India—a ratification that had not occurred under the relevant French and Indian laws. Consequently, the Court concluded that no appeal could be entertained under Article 136 of the Constitution against the decisions of the authorities in Pondicherry. The Court also considered precedent, applying the authorities in Duff Development Company v. Government of Kelantan (1924 A C 797), Government of the Republic of Spain v. Arantzazu Mendi (1939 A C 256), and Fagernes (1927 Probate 311), while distinguishing the cases of Jolley v. Mainka (49 C L R 242) and Efrost v. Slevenson (58 C L R 528). Justice Gajendragadkar, Justice Wanchoo and Justice Ayyangar expressed the view that, given the nature of the relief sought, no writ under Article 32 could be issued to the authorities in Pondicherry. In contrast, Justices Sarkar and Das Gupta held that the Supreme Court could issue a writ under Article 32 to the quasi‑judicial authorities in Pondicherry, emphasizing that Article 32 confers a fundamental right to obtain a writ, and that such a right could not be denied merely because the writ might not be enforceable in Pondicherry.

The Court held that a writ represents a fundamental right guaranteed by the Constitution, and therefore, once the Constitution confers a right to obtain a writ, the Court may not refuse to grant it. It further stated that the possible difficulty of enforcing a writ in Pondicherry cannot be allowed to defeat the constitutional provision, because such a difficulty is relevant only when dealing with discretionary orders. The Court referred to several authorities to support this principle, including K. K. Kochunni v. State of Madras, [1959] Supp. 2 S.C.R. 316; In re International Pulp and Paper Co. Ltd., (1876) 3 Ch D.594; Reg v. Fox, 8 E. & B. 939; R. v. Cassel, (1916) I K B. 595; and In re Banwarilal Roy, 48 C.W.N. 755. These cases were cited to illustrate that the right to a writ cannot be denied merely on the ground that its enforcement may be problematic in a particular territory.

The judgment that follows concerns Civil Appeal Nos. 42 and 43 of 1961, which were entertained by this Court on special leave, together with Writ Petitions Nos. 297 and 298 of 1960 filed under Article 32 of the Constitution for the enforcement of fundamental rights. The appeals arose from judgments and orders dated 7 September 1960 of the Chief Commissioner of Pondicherry in Appeals Nos. 56 and 57 of 1960. Counsel for the appellants and petitioners included A. V. Viswanatha Sastri, R. K. Garg, M. K. Ramamurthy, S. C. Agrawal and D. P. Singh. Representing Respondent No. 1 in both the appeals and the petitions were C. K. Daphtary, Solicitor‑General of India, B. Sen, B. R. L. Iyengar and T. M. Sen; Respondent No. 2 was represented by A. S. R. Chari, K. R. Choudhri and R. Mahalingier; and Respondent No. 3 was represented by R. Gopalakrishnan. The judgment of the three judges Gajendragadkar, Wanchoo and Ayyangar was delivered by Ayyangar, J., while the opinion of Judges Sarkar and Das Gupta was delivered by Sarkar, J. The Court noted that the two civil appeals and the two writ petitions were heard together because they all raised the same preliminary question concerning the jurisdiction of this Court to entertain the proceedings. The Court emphasized that this jurisdictional issue must be resolved before any consideration of the merits of the parties’ contentions. For background, the Court summarized that the appellant in Civil Appeal 43 of 1961 and petitioner in Writ Petition 298 of 1960, Sivarama Reddiar, is an Indian citizen engaged in motor‑transport business. A notification dated 27 December 1958 in the Official Gazette of Pondicherry announced that the State Transport Commission of Pondicherry would invite applications for stage‑carriage permits to be filed by 27 February 1959, including routes from Pondicherry to Karaikal, another former French possession.

In response to the notification issued on 27 December 1958, which invited applications for stage‑carriage permits covering routes such as the one from Pondicherry to Karaikal – Karaikal being another former French possession – two of the nineteen individuals who applied were Sivarama Reddiar, the appellant‑petitioner, and Gopal Pillai, who appears as the second respondent in both the appeal and the writ petition. Before the State Transport Commission could consider these applications, the Government of India exercised the authority granted to it by section 4 of the Foreign Jurisdiction Act, 1947, and published a notification in the Official Gazette of Pondicherry. That notification extended the provisions of the Indian Motor Vehicles Act, 1939, as it stood in Delhi, to the territory of Pondicherry, with the extension taking effect from 19 June 1959. The order made under the Foreign Jurisdiction Act contained Rules 3(4) and 4. Rule 3(4) provided that any court, tribunal or authority tasked with enforcing the Act in Pondicherry could, for the purpose of facilitating its application, interpret the Act with any alteration that did not affect its substance and that was necessary or proper for the matter before the adjudicating body. Rule 4 effected a repeal of all pre‑existing laws in Pondicherry that corresponded to the Motor Vehicles Act, stating that such laws would cease to have effect—except insofar as they related to the levy of any fee—and would continue to apply only to acts done or omitted before the commencement of the order. Subsequently, on 21 July 1959, the Chief Commissioner of Pondicherry, exercising powers conferred by section 44 of the Motor Vehicles Act, 1939, constituted a State Transport Authority for Pondicherry. That Authority issued a further notification on 1 August 1959, requiring every person who had applied for a stage‑carriage permit pursuant to the 27 December 1958 invitation to furnish particulars concerning a variety of matters deemed relevant for consideration under the Motor Vehicles Act. Both Sivarama Reddiar and, inter alia, Gopal Pillai complied with this demand and submitted the required particulars. The supplied information was examined and verified by designated officials, and, based on that verification, the State Transport Authority issued an order on 30 April 1960 directing that the permit be granted to Sivarama Reddiar while rejecting the claims of all other applicants, including Gopal Pillai. Although the Motor Vehicles Act, as extended to Pondicherry, contained section 64 which allowed aggrieved persons to appeal an order of a State Transport Authority, no appellate authority had yet been established by the Chief Commissioner. This lacuna was later remedied by a notification dated 4 May 1960, wherein the Chief Commissioner constituted himself as the appellate authority under the appropriate provision of the Act.

Under section 68 of the Motor Vehicles Act, the Chief Commissioner was designated as the appellate authority for exercising jurisdiction provided by section 64 of the same Act. Consequently, a number of operators who were dissatisfied with the earlier decision, including Gopala Pillai, filed appeals before the Chief Commissioner. By an order dated 5 September 1960, the Chief Commissioner of Pondicherry allowed the appeal filed by Gopala Pillai, set aside the earlier order of the State Transport Authority that had granted the stage‑carriage permit to Sivarama Reddiar, and directed that the permit for the route from Pondicherry to Karaikal be issued to Gopala Pillai instead. In response to that order, the petitioner filed Writ Petition 293 of 1960, seeking to have the Chief Commissioner’s order set aside on the ground that it infringed the fundamental rights guaranteed to the petitioner under Part III of the Constitution. At the same time, Civil Appeal No. 43 of 1961 was instituted with the purpose of obtaining the same relief. The Court noted that it was unnecessary at this stage to elaborate the facts of the separate appeal and petition filed by Masthan Sahib, because, apart from the fact that the route involved was different and the specific grounds of challenge differed, the material facts relevant to the preliminary issue under consideration were identical to those already presented. The preliminary objection raised against the entertainability of the appeal was summarized as follows: Article 136(1) of the Constitution, under which special leave was granted to the appellant, provides that “Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” Accordingly, for the Supreme Court to have jurisdiction to entertain the appeal, it was essential that the court or tribunal whose judgment or order was being appealed be situated within the territory of India. Counsel for the respondent argued that Pondicherry was not part of the territory of India; therefore, the Chief Commissioner, whose order was being challenged, could not be regarded as “a Court or tribunal in the territory of India.” This contention raised a question of considerable political and constitutional importance, and it was not contested that, were Pondicherry outside the Indian territory, the Supreme Court would lack jurisdiction in the absence of any enabling legislation by Parliament under Article 138(1), obliging the Civil Appeal to be dismissed as incompetent. Both parties accepted this position with respect to the maintainability of the civil appeal. However, regarding the writ petition, counsel for the petitioner, Mr Vishwanatha Shastri, sought to sustain its maintainability on a slightly different basis. He drew the Court’s attention to the wording of Article 12 of the Constitution, which states: “In this Part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the.”

The learned counsel explained that Article 12 of the Constitution defines “the State” to include not only the Government and Parliament of India but also the legislature of each State and every local or other authority that operates either within the territory of India or under the control of the Government of India. He then argued that, when the Supreme Court exercises its powers under Article 32 for the enforcement of fundamental rights, its jurisdiction is not confined solely to authorities that function inside the territorial limits of India. Instead, the Court may also direct or issue orders to authorities that are situated outside the territory, provided those authorities are subject to the control of the Government of India. The Court found this submission to be well‑founded and held that the jurisdiction conferred on the Supreme Court by Article 32 is not restricted by any territorial limitation; it extends to every authority within India and also to those authorities operating abroad, so long as they remain under Government of India control. However, the Court noted that the powers granted under Part III of the Constitution must be read together with Article 142, which states that the Supreme Court may pass any decree or order necessary to do complete justice in a case, but such decree or order shall be enforceable throughout the territory of India in the manner prescribed by Parliament or, until such legislation exists, in the manner prescribed by an order of the President. Moreover, Article 142 empowers the Court, subject to any parliamentary law, to issue orders throughout India for securing attendance of persons, discovery or production of documents, and for investigating or punishing contempt of the Court. Consequently, the Court observed that Article 142 introduces a territorial limitation on the enforcement of its orders or directions. This creates an apparent inconsistency between the expansive jurisdiction under Article 32, read together with Article 12, and the enforceability of orders under Article 142. The Court suggested that this discord may have arisen because the phrase at the end of Article 12 extending jurisdiction to authorities “under the control of the Government of India” was inserted late in the Constitution‑making process, whereas Articles 142 and 144 – the latter stating that all civil and judicial authorities in the territory of India shall aid the Supreme Court – were largely adopted from section 210 of the Government of India Act, 1935, without corresponding amendment to Article 142 to harmonise it with the broadened scope of Article 12.

In this case the Court examined whether, because Article 142 limited the area within which its directions or orders could be directly enforced, it could still issue a writ of certiorari or any other appropriate writ or direction to set aside a quasi‑judicial order issued by an authority that operated outside the territory of India yet remained under the control of the Government of India. The Court noted that if the order issued by such an authority was purely executive or administrative, a petitioner could obtain relief under Article 32 by directing the Government of India, through an appropriate order, to give effect to the Supreme Court’s decision. Such an order would be enforceable under Article 144 as well as under Article 142. However, the Court observed that where the foreign‑based authority’s order was quasi‑judicial in nature, as it was in the present dispute, the Court could not follow that route. The Court explained that if its own orders or directions could not be directly enforced against the authority in Pondicherry, any order it issued would be ineffective, and the Court would not render itself meaningless by issuing an unenforceable direction.

Consequently, the Court found it necessary to determine the constitutional and political status of Pondicherry in relation to the Union of India. The parties had placed on record several documents, most notably an agreement dated 21 October 1954 executed between the Government of India and the Government of France, by which the administration of Pondicherry was ceded to India. Counsel for the appellant‑petitioner, identified as Mr Viswanatha Sastri, argued that the terms of that agreement made Pondicherry a part of the territory of India. In contrast, counsel for the respondents, identified as Mr Chari, contended that the reservations incorporated in the agreement prevented the Court from concluding that a full transfer of sovereignty had occurred, a transfer which, according to him, was required for the area to become part of the Indian territory. The learned Solicitor‑General, appearing on behalf of the Union of India, stated that the Union Government was prepared to accept whichever of the parties’ submissions the Court ultimately decided.

The Court then turned to the constitutional definition of “territory of India.” It observed that the Constitution provided an explicit description in Article 1(3), which reads: “(3) The territory of India shall comprise— (a) the territories of the States; (b) the Union territories …” This definition formed the basis for the Court’s further analysis of whether Pondicherry, by virtue of the 1954 agreement and the subsequent exercise of governmental powers, fell within the ambit of the territory defined under Article 1(3). The Court indicated that its forthcoming observations would be grounded in this constitutional provision.

The provision in the Constitution states that the territory of India shall comprise (a) the territories of the States, (b) the Union territories specified in the First Schedule, and (c) such other territories as may be acquired. While it is relatively straightforward to identify the territories listed under clauses (a) and (b), the clause (c) raises the question of when a territory is considered “acquired” and what the term “acquisition” actually means. In the context of this case, the word “acquired” should be understood to refer to “acquisition” as it is defined in public international law. If the Government of India had issued any public notification, proclamation, or declaration treating a particular area as an integral part of the Indian territory, the courts would be obliged to recognize that an acquisition had occurred, and consequently that area would fall within the ambit of Article 1(3)(c) as part of the Union territory. In the present matter, however, the administration of the area in question is carried out under the powers conferred by the Foreign Jurisdiction Act. The preamble to that Act declares that it is “an Act to provide for the exercise of certain foreign jurisdiction of the Central Government,” and section 2(a) defines “foreign jurisdiction” as the jurisdiction that the Central Government possesses at any given time in or in relation to any territory outside India. This definition prima facie indicates that Pondicherry has not been “acquired” and therefore continues to lie outside the territory of India. Nevertheless, the Court observes that although this is strong evidence that Pondicherry has not been acquired and is therefore not part of the “territory of India,” the evidence is not conclusive. Faced with these circumstances, the Court identifies two possible courses of action. The first option is to determine, on the basis of the material already before it—including the agreement between the two governments—whether Pondicherry has been acquired and thus become part of the Indian territory. The second option is to seek assistance from the Government of India by inviting it to state whether, under Article 1(3) of the Constitution, the territory has been acquired and whether Pondicherry now forms part of the “territory of India.” The Court initially proposed to rely solely on the procedure provided in section 6 of the Foreign Jurisdiction Act, 1947, which provides that if, in any civil or criminal proceeding before a court established in India or by the authority of the Central Government outside India, a question arises concerning the existence or extent of any foreign jurisdiction of the Central Government, the Secretary to the Government of India in the appropriate department shall, upon application of the court, transmit to the court the decision of the Central Government on that question, and such decision shall be final for the purposes of the proceeding. The provision further requires the court to send to the Secretary a document under the seal of the court or signed by a judge, framing the questions so as to properly raise the issue, and to receive from the Secretary answers that shall, upon production, constitute conclusive evidence of the matters addressed.

The Court explained that when a judge of this Court frames questions in a proper manner, the Secretary to the Government of India is required to return answers that address those questions, and the answers, once produced, will constitute conclusive evidence of the matters contained therein. The Solicitor‑General then observed that any answer furnished under this provision would pertain only to “the existence or extent of jurisdiction” and that such information might not be sufficient to resolve the preliminary issue raised in the appeals and petitions, namely whether Pondicherry forms part of the “territory of India” as defined by the Constitution. The Court agreed with the Solicitor‑General’s observation, noting that while information concerning the “existence or extent” of the jurisdiction exercised by the Union Government in the territory may not by itself settle the question of Pondicherry’s status, it could nevertheless be relevant. The Court added that if the jurisdiction vested in the Union Government, by virtue of the arrangements between the two Governments, effectively amounts to a transfer of sovereignty for all practical purposes, then such a transfer or cession would be so incompatible with any continuing practical sovereignty of the French Government that the surrender could be regarded as complete. For this reason, the Court found it appropriate to invoke the powers conferred on it by section 6 of the Foreign Jurisdiction Act. It further observed that, in order to achieve a more satisfactory and useful resolution of the proceedings before it, it would be necessary to obtain from the Union Government a definitive answer as to whether that Government considers Pondicherry to be part of the territory of India. The Court also noted that English case law recognizes the jurisdiction of a court to request assistance from the Government in the form of information on whether, according to that Government, any territory forms part of Her Majesty’s Dominion (see The Fagernes L.R. 1927 Probate 311). The Solicitor‑General concurred that the Government would respond to the Court’s reference.

Consequently, the Court directed that the following questions be formally transmitted, under the seal of the Court, to the Union of India for its answers: First, whether Pondicherry, a former French settlement, is presently included within the territory of India as specified in article 1(3) of the Constitution, by virtue of the Merger Agreement dated 21 October 1954 and any other relevant agreements, arrangements, statutes or conduct of the two Governments; and second, if the answer to the first question is negative, what is the extent of the jurisdiction exercised by the Union Government over that territory. The Court emphasized that the Union’s response to these queries will guide the further hearing of the appeals.

The Government was asked to state whether its jurisdiction over the territory extended to all aspects of civil administration, defence and foreign affairs, and also to indicate the extent of any jurisdiction retained by France that might diminish the authority transferred to India. After receiving the Government’s answers, the appeals would be listed for further hearing. The bench, presided over by Justice Sarkar, noted that four matters were before it: two appeals granted leave by this Court and two petitions filed under article thirty‑two of the Constitution. Each party had filed both an appeal and a petition, and each challenged an order of the Chief Commissioner of Pondicherry made under the Motor Vehicles Act, 1939. The orders in question concerned applications for bus permits; in one case a permit for a particular route was granted to a person other than the applicant, and in the other case the applicant’s request for a permit on a different route was rejected. Both orders raised the same fundamental issue of their validity. The bench recalled that Pondicherry had formerly been a French possession administered by France, and that by agreement between the Governments of India and France the administration was transferred to India effective 1 November 1954. The Government of India had exercised authority in Pondicherry under the Foreign Jurisdiction Act, 1947, and the Chief Commissioner was an officer appointed under powers derived from that agreement. Regarding the appeals, a question arose at the hearing as to their competence. The appeals had been filed with leave under article 136, but it was argued that they were incompetent because Pondicherry lay outside Indian territory and article 136 does not permit appeals from courts outside such territory. The appellants contended that the Indo‑French agreement, or the subsequent transfer, made Pondicherry part of Indian territory, rendering the appeals competent. The majority of the bench concluded that the most satisfactory way to resolve whether Pondicherry formed part of India was to seek information from the Government, and the Solicitor General, representing the Government, did not oppose this procedure. With respect to the petitions under article thirty‑two, the counsel for the petitioners argued that the Chief Commissioner was a “State” within the meaning of article twelve, because any authority under the control of the Government of India outside Indian territory was a State for the purposes of part three of the Constitution, and therefore the petitions were competent. A further issue identified was whether, under article one hundred‑and‑forty‑two, any writs issued could be enforced against an authority under the Government’s control at Pondicherry if Pondicherry were outside India, and whether the Court should refrain from issuing such writs to avoid futility. The Court decided that it was unnecessary to settle these questions at this stage and would first request the Government to clarify whether Pondicherry was, at the relevant time, part of Indian territory.

It was observed that the Commissioner of Pondicherry qualified as a State within the meaning of Article 12 of the Constitution, because that provision treats any authority that is under the control of the Government of India, even when situated outside the territory of India, as a State for the purposes of Part III. On this basis, counsel for the petitioners contended that the petitions filed under Article 32, seeking writs to set aside the orders of the Chief Commissioner of Pondicherry, were likewise within the competence of the Court. A further issue was then raised concerning whether, under Article 142, any writ that might be issued could be enforced against an authority that is controlled by the Government of India at Pondicherry, should Pondicherry be outside the Indian territory. The petitioners argued that, if enforcement were impossible, the Court would be rendering itself ineffective by issuing such writs. The Court, however, found it unnecessary to resolve these questions at the present stage. Instead, it decided to seek a definitive answer from the Government of India as to whether Pondicherry, at the relevant time, formed part of Indian territory. The Court explained that if the Government were to confirm that Pondicherry was indeed part of India, then no question would remain regarding the Court’s jurisdiction or the exercise of its powers in any of the matters presently before it. Conversely, should the Government’s response indicate that Pondicherry lay outside Indian territory, the Court would then consider, at that later point, whether it could still grant the relief sought by the petitioners. The matters also involved other complex and important questions, which the Court indicated it would address after receiving the Government’s reply. At this juncture, the Court refrained from expressing any view on those ancillary issues. Nonetheless, the Court remarked that it appeared highly anomalous that, even after finding a violation of a fundamental right that would entitle a party to approach the Court under Article 32 for an appropriate writ, the Court could decline to issue the writ on the ground that such an action would merely render the Court ineffective. The Court noted that, once a party is recognized as being entitled to a writ under Article 32, there is no known discretion for the Court to withhold the writ on the basis that the writ might be unenforceable. Even assuming, for the sake of argument, that Article 142 rendered a writ unenforceable outside India—a point on which the Court expressly refrained from forming an opinion—it would still be unjustified to claim that the Court need not be concerned with enforcement difficulties. The Court expressed that it would be reasonable to expect the Government of India to respect the authority of the Court and to take all necessary steps to give effect to any order issued, irrespective of any technical challenges that might arise in the enforcement process.

Because there might be technical difficulties in enforcing a writ of this Court, the judges expressed uncertainty about the effect of Article 142 of the Constitution on the Court’s power to issue a writ under Article 32 in the present matter. In light of these doubts, the judges stated that, based on the advice they had received, they could not agree with the majority opinion that Article 142 barred the Court from granting such a writ. Consequently, they chose to defer forming a definitive view and said they would reserve any opinion until a later stage when it becomes necessary to articulate one. The Court then issued a directive ordering that the two questions identified in the majority judgment be transmitted to the Union of India under the Court’s seal, requesting written responses. The Court further ordered that, after receiving the Union’s answers, the appeals would be listed for further hearing. The judgment authored by Justices Gajendragadkar, Wanchoo and Ayyangar was delivered by Justice Ayyangar, while the judgment authored by Justices Sarkar and Das Gupta was delivered by Justice Sarkar. Following the Court’s directions, the two questions were sent to the Union Government, which subsequently furnished detailed replies.

In response to Question 1—whether Pondicherry, a former French settlement, presently forms part of the territory of India as defined in Article 1(3) of the Constitution by virtue of the Merger Agreement dated 21 October 1954 and related arrangements—the Union Government answered that Pondicherry is not currently included within the territory of India under Article 1(3). The Government explained that the Agreement of 21 October 1954 between France and India transferred administrative control of all French establishments in India, including Pondicherry, to India effective 1 November 1954. A copy of that Agreement was attached. The Government described this transfer as a de facto handover intended to be followed by a de jure transfer. Accordingly, a Treaty of Cession providing for the de jure transfer was signed on 28 May 1956, but it has not yet been ratified according to French law nor in accordance with Article 31 of the Treaty; a copy of the Treaty was also attached. The Government further stated that Pondicherry has been administered by India under the Foreign Jurisdiction Act 1947 on the basis that it lies outside the territorial limits of India and does not form part of Indian territory. Regarding Question 2—if Pondicherry is not within Indian territory, what is the extent of the Union Government’s jurisdiction over it—the Government clarified that the Union exercises full executive, legislative and judicial jurisdiction over Pondicherry pursuant to the Foreign Jurisdiction Act 1947, consistent with the 1954 Agreement. It added that France has not exercised any executive, legislative or judicial authority since the Agreement, and that the Union’s jurisdiction includes all arrangements for civil administration, carried out under the Foreign Jurisdiction Act, the French Establishments (Administration) Order 1954, and other orders made under sections 3 and 4 of that Act.

The Union Government asserted that its jurisdiction over Pondicherry extended to making every arrangement concerning the civil administration, the defence of the territory and its foreign affairs. It further indicated that it could state the extent of any jurisdiction retained by France, which would necessarily constitute a reduction of the jurisdiction enjoyed by the Union Government. In response, the Government of India explained that it had been exercising complete jurisdiction over Pondicherry in executive, legislative and judicial matters pursuant to the Foreign Jurisdiction Act of 1947 and in accordance with the Agreement dated 21 October 1954. The Government of India affirmed that, after the Agreement, the Government of France had not exercised any executive, legislative or judicial authority in the territory. The Indian jurisdiction, the answer continued, covered all arrangements required for the civil administration of Pondicherry. The administration of the territory was being carried out under the Foreign Jurisdiction Act, 1947, the French Establishments (Administration) Order, 1954 and other orders made under sections three and four of that Act. The Union Government further observed that it intended to conduct the administration of Pondicherry so that it would correspond to the pattern of administration prevailing in the rest of India, consistent with the Agreement. Consequently, a large number of statutes that were in force in India had already been extended to Pondicherry. The Government of India maintained that the sole responsibility for defence arrangements in Pondicherry rested with it and that the territory possessed no independent foreign relations. No claim to the contrary had been made by the Government of France, and the Government of India had not recognised any such claim. Accordingly, the Government of France did not possess any de facto jurisdiction over Pondicherry that would diminish the jurisdiction exercised by the Government of India. The appeals and the writ petitions were subsequently listed for further hearing before the Court on 9 October 1961. Counsel for the appellant in Civil Appeal No. 42 of 1961 and petitioner in writ petition No. 297 of 1960 presented two principal submissions. The first submission argued that the answer to the second question clearly established that the French establishments, including Pondicherry, formed part of the territory of India, having been acquired by the Union Government within the meaning of Article 1(3)(c) of the Constitution, and that, on that basis, it was unnecessary to consider or accept the Union Government’s view expressed in its answer to the first question, wherein it had stated that it did not regard the French establishments covered by the 1954 Agreement as being within the territory of India under Article 1(3). The second submission contended that the Court was not bound by the Government of India’s answer to Question 1 and should disregard that answer, investigating for itself, on the basis of the material placed before it, whether Pondicherry formed part of the territory of India.

In this matter the petitioner’s counsel argued that the Court should determine independently, from the record placed before it, whether Pondicherry formed part of the territory of India. To support this position, counsel relied heavily on a passage from the Court’s own judgment dated 28 April 1961, which stated: “Still if the extent of the jurisdiction vested in the Union Government by the arrangements entered into between the two Governments virtually amounts to a transfer of sovereignty for every practical purpose, it would be possible to contend that such a transfer or cession was so incompatible with the existence of any practical sovereignty in the French Government as to detract from the surrender or transfer being other than complete.” Counsel contended that the answer to the second question demonstrated, on the one hand, that the Government of India exercised full and plenary authority over the territory in its executive, legislative and judicial capacities, including the power to make laws, to administer justice, to defend the territory and to conduct foreign affairs; and, on the other hand, that the Government of France possessed no authority whatsoever in the area, so that no residual sovereignty remained to undermine the completeness of the transfer. On this basis, counsel urged the Court to disregard the answer given to the first question and to decide the issue of whether the French establishments were within the territory of India solely on the basis of the second question.

The Court explained that the two questions were framed because, at the first hearing of the petitions, a notice had been issued to the Union Government. The Solicitor General, appearing in response to that notice, did not provide a definitive view on whether Pondicherry was considered by the Government to be part of India. Instead, he invited the Court to resolve the question on the basis of the materials that might be placed before it by the parties. Consequently, the Court could not be sure that the Government would make a formal statement on the matter. If the Government chose to leave the determination to the Court, the Court needed a complete factual picture of the status of the territory. For that reason, Question No. 1 was framed so that the Government could express its view, should it wish to do so. In these circumstances, reference to the earlier passage from the 28 April 1961 judgment does not provide authority for deciding whether the answer to Question 1 was binding, and the passage cannot be relied upon to resolve the present issue.

In this case the Court turned to the main issue that arose at this stage, namely whether the Government’s reply to a specific and formal enquiry by the Court—that it did not consider a particular area to have been “acquired” by the Indian Government and therefore not part of the territory of India—was binding on the Court. The Court examined several decisions of English and Australian courts that had addressed the same point, and it referred to the most important of those authorities. In Duff Development Company v. Government of Kelantan(1) the question was whether the Sultan of Kelantan was the ruler of an independent sovereign State, which would place the Sultan and his government outside the jurisdiction of English courts. The Secretary of State for the Colonies was asked by the Court to provide information on the status of the ruler and his government, and he replied that the Sultan was the head of an independent sovereign state. That statement’s binding effect was challenged, and it was argued before the House of Lords that, based on certain public documents, Kelantan was in fact a dependency of the British Government and not a sovereign State. On the other side it was contended that the Secretary of State’s declaration was binding, and the House unanimously accepted that submission. In doing so Viscount Cave observed that if, after a definite statement, a British Court adopted a different view, an undesirable conflict could arise, and he expressed the opinion that the Court must accept the Secretary of State’s clear and positive statement as conclusive on the point. Viscount Finlay likewise stated that it had long been settled that on any question concerning the status of a foreign power the Court should apply to His Majesty’s Government and must act on the information given through the proper department; such information is not evidence but a statement by the Sovereign of the country through one of his Ministers on a matter within his cognizance. Lord Sumner added that where such a statement is forthcoming no other evidence is admissible or needed. Another decision of the House of Lords that is relevant is Government of the Republic of Spain v. Arantzazu, Mendi(1). The issue there was whether General Franco’s Government or the Republican Government constituted the Government of Spain. The Secretary of State for Foreign Affairs, in a formal communication to the Court in reply to a letter forwarded under the direction of Bucknill J., stated the position of His Majesty’s Government. The Court, through Lord Wright, held that it was bound without qualification by the statement of the Foreign Office, which is the organ of His Majesty’s Government for such matters, and that the statement of fact could not be debated by the Court on legal grounds. The Court noted that those decisions dealt with the status or recognition of foreign sovereigns and therefore were not directly comparable with the present question of whether a specific piece of territory forms part of the territory of India. The Court also observed that a similar statement by the Government had arisen before the Court of Appeal in Fagernes(1), which presented a comparable issue for consideration.

His Majesty’s Government had formally recognised the Nationalist Government as the authority exercising administrative control over a substantial part of Spain, including the Basque Provinces where the ship whose title was being disputed had been registered. In the case cited, Lord Wright observed that the Court was, in his view, unequivocally bound by the statement issued by the Foreign Office, which acts as the official organ of His Majesty’s Government for matters of this nature. He characterised such a statement as a factual declaration whose contents could not be open to legal debate before the Court. The Court noted, however, that the preceding decisions concerned the recognition of a foreign sovereign or government, and therefore did not directly address the present question, namely whether a specific piece of territory formed part of the territory of India. A comparable situation involving a governmental statement arose before the Court of Appeal in the case of Fagernes (1). The issue there was whether the Bristol Channel, and in particular the location where a collision was alleged to have occurred, lay within British territory. Hill J., sitting in the first instance, held that the waters of the Bristol Channel formed part of British territory and consequently fell within the jurisdiction of the High Court. The defendants appealed, and the Attorney‑General appeared before the Court of Appeal. When the Court formally asked whether the spot of the alleged collision was within the realm of England, the Attorney‑General replied that “the spot where the collision is alleged to have occurred is not within the limits to which the territorial sovereignty of His Majesty extends.” Relying on that declaration, the Court of Appeal unanimously set aside Hill J.’s judgment. An argument was then raised concerning the binding effect of the Attorney‑General’s statement. Akin L.J. answered that the statement bound the Court and compelled it to conclude that the portion of the Bristol Channel in question was not within British jurisdiction, and therefore the appeal must succeed. He emphasized that this was not a decision on a point of law and that the Court bore no responsibility beyond accepting the Crown’s statement as conclusive. Lawrence L.J. added that the Court has a duty to ascertain the extent of the King’s territory. If the Court is uncertain whether a particular place lies within the King’s dominion, it may, and indeed should, make appropriate inquiries. He further remarked that it is highly expedient, if not essential, for the Courts of the King to act in concert with the Government of the King on such matters.

In this appeal the Court summoned the Attorney‑General to the hearing and, after the arguments were concluded, asked him whether the Crown claimed that the place where the collision was alleged to have occurred lay within the King’s territory. The Attorney‑General replied that he had been instructed by the Secretary of State for Home Affairs to inform the Court that “the spot where this collision is alleged to have occurred is not within the limits to which the territorial sovereignty of His Majesty extends.” Because this answer was given with the authority of the Home Secretary on a matter that is specially within the Home Office’s cognizance, the Court held that it could not, in opinion, decide otherwise than to conclude that the alleged tort was not committed within the jurisdiction of the High Court. Although Bankes L.J. concurred with his colleagues in allowing the appeal, he expressed a slightly different view, observing that the information had been supplied at the Court’s request and for the Court’s information, and that, under such circumstances and on that subject, the Court was not necessarily bound to accept it as conclusive. The entire issue is summarised in Halsbury’s Laws of England, Third Edition, Volume 7, which describes a class of “facts of state” that are determined solely by the Crown or the Government, giving as examples matters such as whether a particular territory is hostile, foreign, or within the boundaries of a particular state. Counsel Mr Chatterji referred the Court to observations in two High Court of Australia decisions, Jolley v Mainka and Frost v Stevenson, which concerned the status of the New Guinea territory administered by Australia under a League of Nations mandate. While those judgments discuss the meaning of the word “acquired” in section 122 of the Commonwealth of Australia Act, they do not contain a statement by the Australian Government declaring whether the area forms part of Australia’s territory, unlike the present case. Accordingly, the Court found that those Australian observations offered no assistance in resolving the question before it. Both Mr Chatterji and Mr Viswanatha Sastri, learned counsel for Sivarama Reddiar, the appellant and petitioner in the other proceedings, stressed that the point to be decided was the meaning of the expression “acquired” in the relevant statutory provision.

The Court observed that Article 1 (3) (c) of the Constitution required the Court, when interpreting a written constitution, not to diminish its own jurisdiction or to restrict its inquiry merely because of principles accepted in other jurisdictions. Counsel for the petitioner emphasized that it would be improper for the Court to disregard clear facts and to bind itself by the Government’s statement in situations where the Government of the day, wishing to exclude the Court’s jurisdiction, denied that a portion of territory plainly falling within the scope of Article 1 (3) was indeed part of the Constitution. The Court noted that it was unnecessary to consider how the position might have been resolved under the hypothetical scenario suggested, and it was evident that the present matter did not fall within that category. The Court further accepted the proposition derived from English decisions that a conflict between the Executive and the judiciary should not be imagined; this reasoning appeared sound, and, except perhaps in the extreme situations mentioned by counsel, the Government’s statement had to be regarded as binding on the Court and given effect. During the arguments, another point was specifically pressed before the Court. It was submitted that the Union Government’s answers to the two questions were contradictory: the response to the second question indicated that the French establishments had been acquired and were part of the territory of India, whereas the answer to the first question, according to the submission, conflicted with that conclusion. The Court found this argument unconvincing. It held that where the only available fact is the de facto exercise of complete sovereignty by a State over a specified area, it follows prima facie that the State’s sovereignty extends to that area and the area is regarded as part of the State’s territory. However, this presumption normally applies only when sovereignty and control are exercised unilaterally. Where the exercise of power, authority, and the right to administer arises from an agreement between two States, the question of whether the territory has become integrated into, and part of, the territory of the State exercising de facto control depends entirely on the terms under which the new Government was invited or permitted to exercise such control. If the instruments evidencing the agreement negate the implication that factual governmental authority brings integration, then it does not follow that the territory becomes part of the administering power. The Court concluded that this was precisely the situation in the present case. As annexes to its reply, the Union Government had attached the Treaty of Cession dated 28 May 1956, which was a sequel to the agreement dated 21 October 1954, transferring the

The Court observed that the Treaty of Cession dated 28 May 1956, which followed the agreement of 21 October 1954, transferred the powers of the Government of the French Republic to the Government of the Indian Union. The Treaty provided that full sovereignty over the territories of Pondicherry, Karikal, Mahé and Yanam would pass to the Indian Government only when the Treaty entered into force. The Court noted that it was unnecessary to refer to every clause of the Treaty, but it was essential to state the clause that specified that the Treaty would become effective on the day it was ratified by both governments. According to French constitutional practice, a ratifying act of the French Assembly is required for a Treaty that involves the cession of French territory to be valid. The Court pointed out that it was common ground that the Treaty had not yet been ratified. Consequently, the Court concluded that, although the 1954 agreement transferred complete administrative control to the Government of India, that transfer could not be equated with a transfer of territory, which was the parties’ common intention. The Court held that, in the absence of ratification, there was no legal transfer of territory, and therefore no acquisition of territory occurred. As a result, Pondicherry could not at that moment be treated as part of the territory of India. The Court further stated that it was unnecessary to consider the hypothetical situation in which the Union Government might, notwithstanding the Treaty’s terms, treat the former French establishments as having become part of India.

The Court briefly addressed a minor submission made by counsel for the petitioner, who suggested that the expression “territory of India” in Article 142 might not convey the same meaning as the expression “the territory of India” in Article 1(3), and that, for the purpose of Article 142, the term could include every area over which the Union Government exercised de facto control. The Court was not impressed by this argument. It held that the phrase “territory of India” had been employed in several Articles of the Constitution and that, in every instance, it meant the territory of India as defined in Article 1(3); the phrase could not be given different meanings in different Articles. Having already examined the effect on the maintainability of the appeals and the petitions if Pondicherry were not part of India, the Court concluded that, because Pondicherry was not within the territory of India, the Court lacked jurisdiction to entertain the appeals. Accordingly, the appeals were dismissed. The writ petitions were also dismissed, the Court holding that, given the nature of the relief sought and the authority against whose orders the relief was claimed, the petitions could not succeed. The Court added that the dismissals did not preclude the petitioners from approaching the Court in the future should Pondicherry become part of the territory of India.

The Court observed that the dismissals of the appeals and petitions would not prevent the petitioners from bringing another application before this Court at a later date, should Pondicherry later become part of the territory of India. In view of the unusual facts of the present case, the Court ordered that each party should bear its own costs. The Court then remarked that the situation created by the French establishments, which were not then part of the territory of India, was rather anomalous. Their administration was being carried out by extending Indian statutes through the authority given by the Foreign Jurisdiction Act. The Court noted that, although technically the areas were not Indian territory, in practice they were being governed as if they were part of India. Nevertheless, concerning the orders of the courts and other judicial or quasi‑judicial authorities operating in those areas, the superior courts of India possessed no appellate or revisional jurisdiction, except for the limited jurisdiction already described by the Court. This lack of jurisdiction could, in many cases, lead to injustice and a feeling of grievance among the inhabitants. The Court pointed out that the Government already possessed sufficient power, even at the stage of a de facto transfer, to remedy this deficiency. By taking appropriate steps under the Foreign Jurisdiction Act, or by enacting legislation under the “Foreign Jurisdiction’’ entry of the Constitution, the appellate jurisdiction of the High Court or of this Court could be expanded under Articles 225 and 138 respectively, thereby providing an adequate remedy for the people living in those areas. The Court therefore urged that the Government’s attention be drawn to this aspect of the matter.

Earlier, when these matters had first been placed before the Court, the Court had postponed further hearing until it received answers from the Government of India to two specific questions it had referred. The first question asked whether Pondicherry was, or was not, within the territories of India. The second question sought to determine, if Pondicherry was not part of India, the extent of the Union Government’s jurisdiction over it and the jurisdiction that France continued to retain. These questions were raised because there was considerable doubt regarding the true status of Pondicherry. The Court explained that, if Pondicherry were a foreign territory, no appeal could be made to this Court under Article 136 of the Constitution from any tribunal situated in Pondicherry, and two of the matters before the Court were such appeals. The other two matters were petitions for writs against certain authorities in Pondicherry; the majority had held that no writ could be issued to a foreign territory under Article 142 of the Constitution, and consequently the status of Pondicherry also needed to be clarified for those petitions. However, the Court expressed difficulty with the issue of whether it could refuse to issue writs to an officer of the Government of India who was operating outside the territory of India. The Court stated that it could not agree with the majority’s view on this point and therefore reserved its opinion on the matter.

The Court observed that the proper time to examine the question of Pondicherry’s status would be upon receipt of the Government’s answers to the Court’s inquiries, at which point a conclusion that Pondicherry was a foreign territory could be reached, and that its final decision on that issue would be reserved until then. The Government’s responses have now been received. Based on those answers, and for the reasons that will be set out subsequently, the Court held that Pondicherry must be considered a foreign territory. Consequently, the Court now wishes to comment on the matter on which its opinion had previously been deferred. Although the opinion of the majority continues to prevail notwithstanding the forthcoming remarks, the Court first notes, with respect to the appeals, that they cannot be maintained because Pondicherry is a foreign territory.

The petitions for writs seek to quash orders issued by a quasi‑judicial authority operating in Pondicherry on the ground that those orders infringe certain fundamental rights of the petitioners. That authority, however, is an officer of the Government of India. The extent to which writs under Article 32 of the Constitution may be issued to set aside a quasi‑judicial order, even when such an order is made within India, presents a difficult question on which this Court has been divided. A recent bench considered that question, but the corresponding judgment has not yet been released. For the purpose of the present discussion, the Court will assume that writs may indeed be issued under Article 32 to annul a quasi‑judicial order.

The Court’s first observation is that this Court has finally ruled, in an application under Article 32, that “the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right” (Kavalannara Kottarthill Kochunni v. State of Madras). Accordingly, the right to move the Court by a petition under Article 32 is a fundamental right. By the same token, the right to obtain a writ when the petition demonstrates a valid cause must also be regarded as a fundamental right. It would be meaningless to grant a fundamental right to approach the Court while denying the corresponding right to the writ that the petition justifies. Assuming, therefore, that a fundamental right to a writ is established, the party who successfully demonstrates that right is entitled, as a matter of justice, to the issuance of the required writ. In such a circumstance, the Court would have no discretionary power to refuse issuance.

The Court notes that it has been contended that a writ could not be issued in the present case because Article 142 states that an order of this Court shall be enforced throughout the territory of India, and therefore could not be enforced in Pondicherry. Assuming, for argument’s sake, that this contention were correct, it has been suggested that issuing the writ would render the Court ineffective and therefore the Court should decline to issue it. The Court is unable to accept that view. If the Constitution confers a fundamental right to a writ, the Court possesses no authority to deny that right. Practical difficulties in enforcing the writ cannot override constitutional provisions. No authority has been cited to support the proposition that a Court may refuse to make an order to which a party is entitled as a matter of right, on the ground that doing so would “stultify” the Court. The Court observes that orders are generally refused on that ground only where the matter lies within the Court’s discretionary jurisdiction, such as in the grant or denial of injunctions, which is a recognized area of discretion.

In this case the Court noted that it had been contended that if it were to issue the writ the Court would merely render itself ineffective and therefore should decline to issue the writ. The Court said it could not accept that contention. It explained that when the Constitution confers on a party a fundamental right to obtain a writ, the Court possesses no power to refuse to grant that right. The Court further held that practical considerations relating to an alleged incapacity to enforce the writ may not be allowed to defeat the mandatory provisions of the Constitution. No authority had been cited to support the proposition that a Court may refuse to make an order to which a party is entitled as of right on the ground that the Court would be rendering itself ineffective. The Court observed that orders are refused on that basis only where the matter falls within the Court’s discretion. Such discretionary refusals are commonly seen in proceedings concerning injunctions, where the decision to grant or deny the injunction lies within the Court’s judicial discretion. While the Court must exercise its discretion judiciously, the right to obtain a particular relief that a party is entitled to ex debito justitiae is distinct from a discretionary relief, a distinction that is well understood. The Court then referred to the case of Jessel M.R. in In re International Pulp and Paper Co. Ltd., where it was noted that an order directed at a purely foreign country is of no use because it cannot be enforced. The Court also mentioned that in England an information in the nature of quo warranto is not issued as a matter of course, and the courts there have refused to issue such information when it would be futile, as recorded in Halsbury’s Laws of England. In Reg. v Fox the Court refused to issue the information because the person who was to be removed could be reappointed immediately. These examples illustrate situations in which a Court may decline to make a discretionary order on the ground that it would be rendering itself ineffective. Although many similar instances could be cited, the Court considered it unnecessary to enumerate them all. The Court concluded that the principle underlying those cases cannot be applied where the Court has no alternative but to make the order, which is the situation in the present case. It would be inappropriate to apply that principle here, especially as the Court will shortly demonstrate that the order would, in fact, be carried out. Finally, the Court questioned whether it could be certain that issuing the writ would render it ineffective. That

It would be only if our order were certain to be ignored that we should refrain from granting relief. We think that this Court is fully justified in proceeding on the assumption that any order it issues will be carried out by any officer of the Government of India to whom it is addressed, wherever that officer may be, out of respect for the Constitution and for this Court, without the need for coercive enforcement. In this connection, the decision in R. v. Speyer, R. v. Cassel (1) is relevant. In that case, Speyer and Cassel were summoned by rules nisi to show cause why a quo warranto information should not be exhibited against them, the information requiring them to demonstrate the authority under which they claimed membership of His Majesty’s Privy Council for Great Britain. Both men were naturalised British subjects, and the legal issue was whether certain statutes disqualified them from appointment to the Privy Council. Counsel for the respondents argued that the court would be powerless to enforce a decree of removal because the King could immediately restore their names to the roll of Privy Councillors, thereby nullifying the judgment. Reading C.J. rejected that argument, stating that although it might be academically interesting to assume the difficulties suggested by the Attorney‑General, none of them would actually arise; this is the King’s Court, and we sit to administer justice and interpret the laws of the realm in the King’s name, and it is proper to assume that once law is declared by a competent judicial authority, the Crown will obey it. Similarly, Lush J. observed that the consequences proposed by the respondents were merely argumentative, not real, and could not be allowed to fetter the exercise of the Court’s jurisdiction. Although the order in that case was discretionary, the Court nevertheless refused to stay its hand on the ground that it could not directly enforce the decree. The same salutary principle was later applied in this country by Das J., who as Chief Justice later, in In re Banwarilal Roy (1), issued a quo warranto information notwithstanding the fact that he could not compel the Governor of Bengal to obey the order, an order that might otherwise have been futile. We consider that principle to be sound and deserving of adherence. Consequently, we do not think that the protection of fundamental rights may be limited by concerns about the practical enforcement of our orders; we must assume that the authorities in Pondicherry will voluntarily comply with any directive we issue. We now turn to the other questions that arise from the Government’s answers.

The Court examined the replies that had been given by the Government concerning the status of Pondicherry. It was acknowledged that Pondicherry had formerly been a French possession, but that, pursuant to an agreement with France, the Government of India was now administering the territory. The Government unequivocally declared that Pondicherry was not included within the territorial limits of India. Further, the Government asserted that, under the same agreement, it possessed full jurisdiction over Pondicherry, that the responsibility for the defence of the territory rested with the Indian Government, and that Pondicherry maintained no separate foreign relations. In addition, the Government maintained that France exercised no de facto jurisdiction over Pondicherry, a position that, if accepted, would not diminish the jurisdiction that India exercised. Submissions were then made contending that the Court should not be bound by the Government’s initial answer that Pondicherry lay outside India, and that, based on the Government’s second answer, the Court ought to hold that Pondicherry formed part of Indian territory despite the Government’s view. It was further argued that because India clearly exercised full jurisdiction while France exercised none, India must be considered to have acquired sovereignty over the area, thereby rendering Pondicherry Indian territory by acquisition. The Court found itself entirely unable to accept that line of reasoning.

The Court indicated that, at a minimum, it was bound by the Government’s determination when it had sought that determination for guidance. This approach mirrors the practice followed in England and is rooted in a sound legal principle, as illustrated in Duff Development Co. v. The Govt. of Kelantan.(1) The Court warned that adopting any alternative view would generate chaos, a result it could not countenance. It observed that, by virtue of a treaty such as the one under consideration, India may obtain full jurisdiction over a foreign territory while that same treaty may nonetheless leave the territory classified as foreign. An opposing contention suggested that such an arrangement amounted to an absolute surrender of authority to the executive, allowing the Government, whenever it chose, to repudiate a territory that was plainly part of India and to act there without regard to law or any judicial oversight, including oversight by this Court. The Court described that contention, quoting Luch J. in Speyer’s case(2), as “argumentative and not real”. It expressed the view that no democratic government would behave as alleged, and it was confident that no Government of this country would ever act in such a manner. Moreover, the Court held that the contention lacked any factual foundation and was wholly imaginary. The Court affirmed that it is the duty of a court to take judicial notice of the extent of its own State’s territory, a requirement embodied in Section 57 of the Evidence Act. Accordingly, when it is a patent fact that a particular territory lies within India, the courts will take judicial notice of that fact and there will be no need to seek information from the Government. The Court conceded that in some situations the fact may not be patent, but even in those cases it appears that it will be the duty of a court to

In this part of the judgment the Court explained that when it wishes to take judicial notice of a fact it may do so by asking the Government to provide clarification on the point that is in question. The Court then referred to the statement of Lawrence L. J. in the case of Fagernes (1), observing that “It is the duty of the Court to take judicial cognisance of the extent of the King’s territory and, if the Court itself is unacquainted with the fact whether a particular place is or is not within the King’s territory, the Court is entitled to inform itself of that fact by making such enquiry as it considers necessary.” The Court emphasized that a request to the Government is appropriate only when the Court itself does not already know the relevant fact. Accordingly, the situation in which the Government could potentially misrepresent a fact that is already obvious cannot arise, because the Court would already have taken judicial notice of that fact. This principle, the Court said, fully satisfies the requirement for the present situation. Nevertheless, the Court observed that the majority of the learned Judges on the Bench have expressed a different opinion on the issue, and consequently the final order will be issued in accordance with the decision of that majority.