2.19 PONDICHERRY

JUDICIAL ORGANISATION AFTER 1816 :

A Historical Perspective :

2.19.1 A royal ordinance of December 23, 1827 effected certain substantial changes in the judicial organisation of the establishment. It established at Pondicherry a Court of the Justice of the Peace with jurisdiction over Pondicherry and its three dependencies. The court was composed of the Lieutenant of Police who acted as judge, an alternate judge and a "greffier". The court functioned as a Court of the Justice of the Peace in civil disputes and a police court in criminal cases involving minor offences (contraventions de police). The functions of the ministere public were to be performed by the Inspector of Police when the court sat as a police court.

2.19.2 The ordinance also set up a Tribunal of First Instance at Pondicherry with the same territorial jurisdiction as that of the Court of the Justice of the Peace. The tribunal consisted of a King's judge and two judges auditeurs (assistant judges). Attached to it were a King's procureur, two greffiers, one European and the other Indian and a clerk. In case of absence of inability of the King's judge to attend to his work, a conseiller auditeur, appointed by the Administrator General was to officiate for him. It had jurisdiction to decide in the first and last instance civil actions, personal or pertaining to movables, where the principal value of the suit was now below 48 francs (Rs.20) and did not exceed 480 francs (Rs.200) and commercial actions where the value did not exceed 480 francs. It heard and decided in the first instance civil cases relating to real property and mixed actions, as well as personal actions and those relating to movables where the value of the suit exceeded 480 francs.

The Judicial Organisation :

2.19.3 The judicial organisation in the French Indian establishments from 1842 to 1963, was based on an ordinance of February, 7, 1842 as amended from time to time. In 1963, a few substantial changes were made, but it was only in 1968 that a total change in the system took place.

2.19.4 The ordinance of 1842 sought to reorganise the whole system of judicial organisation. The Article 4 expressly stated, for instance, that judges could not disturb in any manner the work of the administrative bodies, nor summon before them administrators, on account of their functions, as otherwise they would be charged with abuse of authority. This clear-cut separation of powers was a great revolutionary change from the position adopted by the sovereign council over a century before. This "ordonnance" was amended in certain details, among others, by a decret of July 29,1939 which downgraded the court of appeal into a superior tribunal of appeal, by the decret of March 1,1879 which gave extended jurisdiction to the Court of Justice of the Peace in Mahe and Yanam and by the decret of May 11,1934 which abolished the Courts of the Justice of the Peace with ordinary jurisdiction. The decret of August 22,1928, however, made certain substantial changes.

2.19.5 The courts in the establishments as constituted before the de facto cession in 1954 consisted of the following :-

i) Superior Tribunal of Appeal (Tribunal Superieur d' Appel) at Pondicherry with a President, two other judges, and a Procureur de la Republique.

ii) Tribunal of First Instance, second class, at Pondicherry with a President, a Judge and Assistant Judge (Juge Suppleant) and a Procureur de la Republique.

Tribunal of First Instance, third class, at Karaikal, with a President, an Assistant Judge and a Procureur de la Republique.

iii) Courts of Justice of the Peace with extended jurisdiction (competence etendue) at Mahe and Yanam, each consisting of one judge and a greffier.

2.19.6 The Procureur de la Republique at the Superior Tribunal of Appeal performed the functions of the head of the Judicial Department.

2.19.7 With the abolition of the Courts of the Justices of the Peace with ordinary jurisdiction, the right of appeal of the litigants whose cause was of small pecuniary value or who were convicted of minor infractions of the criminal law was taken away from them. The principle that every litigant has a right of appeal to a higher court was not disputed; but it was considered unnecessary to have an appeal where the pecuniary value of the suit or the penalty likely to be imposed was insignificant. Those disputes were sought to be placed, under the decret of June 22,1934, before a judge belonging to the second decree of jurisdiction, that is, the President of the Tribunal of First Instance, or a judge delegated by him. These Justices with enhanced competence had the same jurisdiction in civil matters as that of the Tribunal of the First Instance. When the Justices of the Peace with enhanced competence sat as Police Tribunal (Tribunal de Simple Police) to try persons charged with petty offences they could impose a sentence of simple imprisonment for five days or a fine of fifteen francs. It was from such sentences that there was no provision for appeal. The Superior Tribunal of Appeal at Pondicherry however, acted in these petty matters as a Court of Cessation, in place of the Cour de Cassation at Paris.

Tribunal of First Instance :

2.19.8 General jurisdiction (Tribunal de Premiere Instance) was vested in the Tribunal of First Instance. It had jurisdiction over all disputes of a civil nature which were not referable to any special tribunal by any express provision of law. Over cases whose pecuniary value was not more than Rs.900/- it had jurisdiction in the last instance, that is, its decisions were not subject to appeal. The decret of May 31, 1873 had specifically stated that when the tribunal decided disputes in personal and commercial matters where the amount involved was not more than Rs.900/- (1,500 francs) as principal, and actions relating to immovables where the revenue was Rs.30/- calculated on the basis of amount of lease or rent, actions relating to immovables other than houses, buildings or gardens liable to a land tax of Rs.7.20 a year, there was no appeal, but there could be review by Cour de Cassation. When the pecuniary value was over Rs.900/- there was provision for appeal to the Superior Tribunal of Appeal.

2.19.9 In its criminal jurisdiction, the Tribunals of First Instance sat as correctional court and dealt with infractions of law for which the punishments imposed were known as correctional penalties, that is, imprisonment from six days to five years, a fine of more than 15 francs with suspension of civil, political and personal rights. It was generally the Assistant Judge who presided over the correctional court under the authority delegated to him by the President of the Tribunal. Presiding also over the Police Court, he tried cases of minor infractions for which the punishment provided was imprisonment for one to five days and fine of one to 15 francs.

2.19.10 It was the duty of the Procureur de la Republique to set in motion criminal proceedings. In case of inaction on his part, it was for the injured party to initiate proceedings in the criminal court.

2.19.11 The Justices of Peace with enhanced competence at Mahe and Yanam had the same powers and functions as the Tribunal of First Instance. They dealt with matters within the jurisdiction of the Tribunals of First Instance as well as those within the jurisdiction of the Justices of the Peace with ordinary jurisdiction. They decided the latter category of cases in the last instance. The decisions they handed down in the exercise of their enhanced powers as a Court of First Instance were appealable before the Superior Tribunal of Appeal at Pondicherry.

Superior Tribunal of Appeal :

2.19.12 The collegiate principle was scrupulously followed in the Superior Tribunal of Appeal. Three judges sat together and heard appeals from the Tribunals of First Instance as well as from the Courts of the Justice of the Peace and also heard appeals against provisional orders passed by the President of the Tribunal of First Instance and that of the Commercial Court in refere proceedings. While performing the functions of a Cour de Cassation in matters referred to it by tribunals exercising powers of the Justices of the Peace with ordinary jurisdiction, it was a three-man bench that deliberated and handed down decisions.

Cour de Cassation, Paris :

2.19.13 There was provision for the decisions of the Superior Tribunal of Appeal and those of the Tribunal of First Instance which were not appealable, to be challenged, on questions of law, before the Cour de Cassation in Paris. The principle of "double degree of jurisdiction" enshrined in French Jurisprudence stipulated that there should be one appeal and only one in a law suit. The one exception to this principle was in the case of petty litigation where there was no provision for appeal. There was also no appeal from a decision of Cour d'assises (session court).

2.19.14 The Cour de Cassation would not reopen or rehear the case on questions of fact or on the evidence. It considered only the question of law raised by the petitioner before it and either it would dismiss the petition or remand the case. When it decided to remand the case it would remand to a court of equal rank and jurisdiction as the one by which the impugned decision was rendered or occasionally to the same court as used to be done in the case of appellate tribunal at Pondicherry - with a direction that the remanded case should be tried by a bench consisting of judges different from those who had previously tried it.

2.19.15 With the cession of the French establishment into the Indian, Union powers of cassation vested in the Cour de Cassation were transferred to the High Court of Judicature at Madras.

Judicial Officers :

2.19.16 The judges who manned the tribunals in the early days of the French administration in India had no legal qualifications. Merchants and tradesman used to sit as judges in the tribunals established during the period. A statement made by the President of the Court at Chandernagore would reveal the position. He said :-

"In fact, the labyrinth of laws so extensive, the profession of the judge so difficult and the multiplicity of forms so complicated, that those who have made a hard study all their life can hardly flatter themselves of being informed well enough not to lose their way. How then can those who have only common sense coupled with the highest integrity remain unaffected by the fear of unjustly depriving their fellow citizens of honour, wealth and perhaps of life?"

2.19.17 The position of the judge was therefore not enviable. A complete reorientation of the magistracy was effected by a decret of August 22,1928. The decret laid down rules which were to govern the colonial judiciary.

2.19.18 Various categories of persons were eligible for appointment to the colonial judiciary. They included advocates, notaires and avoues in the colonies holding the degree of licentiate in law who had practised their profession for ten years, professors and agreges of the state faculties of law and lecturers of state faculties of law with experience of two years, and chief registrars of the courts of appeal and civil courts in the metropolis, holding the degree of licentiate in law and having put in atleast ten years of service. It is important to note that weightage was given to legal practice when appointing magistrates to the colonial judiciary.

2.19.19 Certain educational qualifications and practical experience were regarded as essential for appointment as Justices of the Peace with ordinary jurisdiction. According to the decret, no one could be appointed to the position unless he had obtained the degree of licentiate in law and had undergone training for two years either at the Bar, or in the office of a notaire or avoue, or on the office of a greffier or as attache in a parquet general of colonies or territories under the ministry of colonies. Avoues who had fifteen years of experience in the colony were exempted from the requirement regarding the holding of the degree of licentiate. With a few exceptions, all candidates were expected to pass a professional test.

2.19.20 Perhaps the most important characteristic of the French judiciary is what is known as inamovibilite (irremovability). To be inamovible means that the incumbent cannot be removed, suspended or transferred except under conditions contemplated in clean legal provisions. Their removal, suspension or transfer is therefore not in the discretion of the executive. The principle of inamovibilite was however, inapplicable to the judicial officers in the administrative departments and in the ministere public.

2.19.21 In order further to ensure their independence and impartiality, there was a promotion committee at the Ministry of Colonies which drew up a promotion list. The Committee was composed of a president of a chamber and three judges of the Cour de Cassation, nominated every year jointly by the Minister of Justice and the Minister of Colonies, three magistrates from the colonies nominated by the Minister of Colonies with the consent of the Minister of Justice, the Director of Personnel in the Ministry of Colonies and the Chef de Cabinet in the Ministry of Colonies. Promotions were generally made in the order of inclusion in the promotion list except for appointment to the post of Procureur de la Republique.

Magistrate debout :

2.19.22 There was a Procureur General attached to the sovereign Council set up by the edict of 1701. He was generally the last of the councillors, sometimes a sub-dealer. Apart from the duties laid down by the edict of 1707, he was also expected to safeguard the interests of the company. He upheld the rights of the company in the territories that had been gifted to it. As the person in-charge of all unclaimed estates, he could dispose of them and sent the sale proceeds and the relevant deeds to the company. It was his duty to see that law and order was maintained and he asked for appropriate sanctions from the council for the purpose. When in 1738 some clever counterfeiters introduced into the establishments gold coins of an assay inferior to that in use there, the Procureur General induced the council to issue an arrete imposing a fine and fifty lashes of the whip for those who uttered counterfeit coins.

2.19.23 Officers of the ministere public attached to all regular courts acted as public prosecutors in the conduct of serious criminal cases, as joint party in civil cases to present the public interest.

2.19.24 The ministere public was headed by the Minister of Justice. The designation given to the head of the ministere public before a Court of First Instance as well as before a Superior Tribunal of Appeal was Procureur de la Republique. The members of the ministere public, like the judges, were called 'Magistrates'. They were considered equal to judges drawing the same salary as judges in corresponding positions and sat on a special dais in the court room separately from the judges. The qualifications for appointment, conditions of service and rules regarding promotion were the same for them as for the judges, except that they did not enjoy inamovibilite.

2.19.25 The ordinance of February 7, 1842 provided that the court should deliver judgment only after hearing the procureur in his address to the court. He was not present when judges deliberated to decide upon the judgement to be passed, but his presence was necessary in deliberation relating to order, internal service and discipline.

2.19.26 Though procureurs were expected to represent the Government, they actually did represent the public interest. They would, for instance, prepare and file written papers according to the orders of their superiors, but while expressing their view before the court they could say what they thought fair and just, irrespective of the position taken in the papers submitted. As the French would say, the pen is slave but the word is free.

2.19.27 The decret of August 22,1928 laid down the qualifications required for appointment as attaches in the parquet general of the colonies. It provided, among other things, that the attaches should be holders of the degree of licentiate in law and must have passed the professional test for judicial posts. The attaches, if found suitable, were asked to officiate as temporary judges and after a period of probation, they were generally appointed judges in the colonies.

2.19.28 There were two Procureurs de la Republique at Pondicherry, one before the Tribunal of First Instance and the other before the Superior Tribunal of Appeal. The procureurs at Karaikal, Mahe and Yanam were required to perform the same duties as the Procureur de la Republique, but under the guidance of the Procureur de la Republique before the Superior Tribunal of Appeal at Pondicherry.

Extension of Central Enactments :

2.19.29 After the transfer of their administrative powers in the French Establishments by the Government of France to the Union of India, the Union Government extended the application of a number of Central enactments to these establishments by various legal procedures with a view to providing for proper administration. In the very year of de facto session as many as forty-four central enactments were extended to the Establishments by the French Establishments (Application of Laws) Order, 1954 issued under the provisions of the Foreign Jurisdiction Act, 1947.

2.19.30 After the adoption of the Constitution (Fourteenth Amendment) Act, 1962 which made these Establishments a component unit of the Indian Union and turned them into what is known as the Union Territory of Pondicherry, all enactments passed by Parliament automatically apply to this Territory, except where the legislature specifically provides for the exclusion of the Territory from the application of an enactment.

2.19.31 As Central enactments passed prior to the date of the de jure cession did not apply to Pondicherry, various methods were adopted to extend the application of such enactments to the Union Territory. By the adoption of the Ponducherry (Laws) Regulation, 1963, provision was made to bring into operation in Pondicherry 160 Central enactments by October 1, 1963.

Reorganisation of the Judicial Set up :

2.19.32 With the introduction of the Indian Penal Code and the Code of Criminal Procedure into Pondicherry from October 1, 1963 it became necessary to reconstitute the criminal court in the Territory. Consequently, a court of sessions and a few magistrates' courts were set up. The Union Territory was brought under one sessions division and the former Superior Tribunal of Appeal was constituted a court of sessions and the President of the Tribunal was appointed Principal Sessions Judge, the two judges as Additional Sessions Judges and the Procureur de la Republique, as Public Prosecutor. The President of the Tribunal was also designated head of the Judicial Department.

2.19.33 The Tribunals of First Instance at Pondicherry and Karaikal were turned into Assistant Sessions Judges' Courts with the Presidents of the Tribunals appointed Assistant Sessions Judges. The (Judge d'Instruction) Investigating Judge of the Territory at Pondicherry was appointed District Magistrate and the Assistant Judge (Jude-Suppleant), a First Class Magistrate and the Procureur de la Republique, Public Prosecutor. The Assistant Judge at Karaikal who carried out in addition to his normal duties, the duties of the investigating judge and of the Justice of the Peace was made a First Class Magistrate and the Procureur de la Republique, Public Prosecutor. The Justice of Peace in Mahe and Yanam who presided over courts with extended jurisdiction (competence etendue) were made First Class Magistrates.

2.19.34 As for the civil courts, a reconstitution of the civil judicial system took place when the Pondicherry Civil Courts Act, 1966 was brought into operation on September 5, 1968. According to Section 6 of the Civil Courts Act, the Superior Tribunal of Appeal became a District Court, the Tribunals of First Instance at Pondicherry and Karaikal became subordinate judge's courts and the Courts of the Justice of the Peace were turned into Munsiffs' Courts. The President and the Judge of the Superior Tribunal of Appeal at Pondicherry were to function respectively as Principal District Judge and Additional District Judges. The Presidents of the Tribunals of First Instance at Pondicherry and Karaikal were to become subordinate judges and the Justices of the Peace and those who performed the duties of such Justice, were made Munsiffs within their respective territorial jurisdiction. It was also provided that a District Judge sitting singly would exercise all the powers of the Superior Tribunal of Appeal in respect of all pending cases and cases remanded by the High Court in exercise of its powers as Court of Cassation.

2.19.35 Unlimited pecuniary jurisdiction was given to the District Court and the Subordinate Judge's Courts. The pecuniary jurisdiction of the Munsiffs' Courts was limited to Rs.5,000/- and the jurisdiction of the Subordinate Judge's Courts in small causes was fixed at Rs.1,000/- and that of the Munsiff's Court at Rs.500/-.

2.19.36 Under the provisions of the Civil Courts Act, the office of the Procureur de la Republique was abolished as also the Conseil du Contentieux Administratiff.

2.19.37 Appeal from the decision of the District Judge would be to the High Court of Judicature at Madras. Apart from the District Court at Pondicherry there are three Subordinate Judges' Courts, one at Pondicherry, one each at Karaikal and Mahe and three District Munsiffs' Courts one at Pondicherry and one each at Karaikal and Yanam.

THE PRESENT STRUCTURE OF JUDICIAL SET UP :

2.19.38 Pondicherry Civil Court Act, 1966 was passed to consolidate and amend the law relating to the Civil Courts in the Union Territory of Pondicherry.

2.19.39 Under this Act, the following Courts were established.

1. Court of the District Judge,

2. The Subordinate Judge's Court, and

3. The Munsiff's Court.

2.19.40 Pondicherry Judicial Service Rules were first framed in 1980. At present, Pondicherry Judicial Service (Cadre and Recruitment) Rules, 1996 govern the recruitment and conditions of service of the Subordinate Judiciary in the Union Territory.

2.19.41 At present, there are three cadres, viz.,

1) District Judges /Additional District Judges-cum-Chief Judicial Magistrate / Sessions Judges/Additional Sessions Judges,

2) Civil Judges (Senior Division), and

3) Civil Judges (Junior Division) / Judicial Magistrate of First Class,

under the control of the High Court of Tamil Nadu.

2.19.42 The initial recruitment to the post of Civil Judge (Junior Division) /Judicial Magistrate of First Class is done by direct recruitment on the basis of written examination and viva-voce conducted by the High Court from amongst the advocates with not less than three years practice at the Bar or Assistant Public Prosecutors with minimum of three years service inclusive of practice as advocate at the Bar.

2.19.43 After appointment, he/she will be on probation for a period of two years. During the period of probation, he/she is required to undergo such training as may be specified by the High Court.

2.19.44 At present, there are 10 posts of Civil Judges (Junior Division / Judicial Magistrates of First Class in the pay scale of Rs.6500-200-10500.

2.19.45 The post of Civil Judge (Senior Division) is purely the promotional post from the cadre of Civil Judge (Junior Division)/Judicial Magistrate of First Class on the basis of seniority-cum-merit, carrying the pay scale of Rs.10000-325-15200.

2.19.46 The cadre of District Judge/Additional District Judge-cum-Chief Judicial Magistrate / Sessions Judge /Additional Sessions Judge is a mixed cadre, consisting of promotees from the cadre of Civil Judges (Senior Division) and direct recruits. Not exceeding 332% of the posts in the cadre may be filled by direct recruitment from amongst the advocates with not less than seven years practice at the Bar. The remaining 66B% of the posts shall be filled up by promotion on the basis of seniority-cum-merit from the cadre of Civil Judges (Senior Division).

2.19.47 The direct recruits will be on probation for a period of two years. During that period, he/she should undergo such training as may be specified by the High Court. At present, there are five posts in the cadre in the pay scale of Rs.10000-325-15200.

2.19.48 JURISDICTION :

District Court : Unlimited jurisdiction on the original side.

Appellate Side : Appeals from the decrees and orders of the Civil Judges (Senior Division) and Civil Judges (Junior Division) in respect of the suits, the subject matter of which is upto Rs.30,000/-.

Court of the Civil Judge : Unlimited Jurisdiction.

Court of the Munsiff,

Pondicherry : Upto Rs.15,000/-.

Court of the Munsiff,

Karaikal, Mahe, Yanam : Upto Rs.30,000/-.

Appeals from the decrees and orders from the Court of the Civil Judge (Senior Division) and Civil Judge (Junior Division) in respect of the suits, the subject matter of which is above Rs.30,000/- would lie to the High Court.

Under Section 15 of the Pondicherry Civil Courts Act, 1966, as amended, the Government, may, by notification invest any Civil Judge (Senior Division) with the jurisdiction of a Judge of the Court of Small Causes for the trial of suits cognizable by such Courts upto the amount of Rs. 2,000/-.

Accordingly, the Government, may by notification invest any Civil Judge (Junior Division) with the jurisdiction of a Judge of the Court of Small Causes for the trial of suits cognizable by such courts upto the amount of Rs. 500/-.

* * * * *