E. M. Sankaran Namboodiripad Vs. T.
Narayanan Nambiar  INSC 147 (31 July 1970)
31/07/1970 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) MITTER, G.K.
CITATION: 1970 AIR 2015 1971 SCR (1) 697 1970
SCC (2) 325
R 1972 SC1515 (10) R 1988 SC1208 (9)
Contempt of Court-What is-Chief Minister of
State making remarks in public derogatory of the Judiciary and courtsSought to
justify making them in terms of his political ideology based on the teachings
of Marx and Engels-If guilty of contempt-Constitution of India, Art. 19(1) and
(2)-Scope of in relation to contempt of court.
The appellant, who was the Chief Minister of
Kerala at the time., at' a press conference held by him on November 9, 1967,
made various critical remarks relating to the judiciary referring to it inter
alia as "an instrument of oppression" and the Judges as
"dominated by class hatred, class prejudices",
"instinctively" favoring the rich against the poor. He also stated
that as part of the ruling classes the, judiciary "works 'against workers,
peasants and other sections of the working classes" and "the law and
the system of judiciary essentially served the exploiting classes".
These remarks were reported in the newspapers
and thereafter in proceedings commenced' in the High Court the appellant was
called upon to show cause why he should not be committed for contempt. In an
affidavit in reply the appellant stated that the reports were
"substantially correct", though incomplete in some respects. He
supplied some omissions and pleaded want of intention to show disrespect to the
judiciary and justification on the ground that the offence charged could not be
held to be committed, in view of the guarantees of freedom of speech and
expression under the Constitution. He claimed that his observations did no more
than give expression to the Marxist philosophy -and what was contained in the
programme of the Communist Party of India.
By a majority judgment the appellant was
convicted for contempt of court and fined Rs. 1000/or simple imprisonment for
In appeal to this Court it was contended on
behalf of the appellant that the law of contempt must be read without
encroaching upon the guarantee of freedom of speech and expression in Article
19(1)(a) : and that the intention of the appellant in making his remarks at the
press conference should be examined in the light of his political views which
he was at liberty to put before the people; he sought to justify the remarks as
an exposition of his ideology which he claimed was 'based on the teachings of
Marx and Engels and on this ground claimed protection of The first clause of
HELD : Upholding the appellant's conviction
The law punishes not only act which do not fact interfere with the courts and
administration of justice but also those which have that tendency, that is to
say, are likely to produce a particular result., Judged from the angle of
courts and administration of justice" there was no doubt that the
appellant was guilty of contempt of court. Whether he misunderstood the
teachings of Marx and Engels or deliberately distorted them was not to much
purpose. The likely effect of his words must be seen and they clearly had the,
effect of lowering the prestige of judges and courts 698 in the eyes of the
people. That he did not intend any such result may be a matter for
consideration in the sentence to he imposed on him but could not serve as a
It was obvious that the appellant had
misguided himself about the true teachings of Marx, Engles and Lenin. He had
misunderstood the attack by them on state and the laws as involving an -attack
on the judiciary. No doubt the courts, while upholding the laws and enforcing
them, do give support to the state but they do not do so out of any impure motives.
They do not range themselves on the-side of the exploiting classes and indeed
resist, them when the law doe.
not warrant an encroachment. To charge the
judiciary as an instrument of oppression, the judges as guided and dominated by
class hatred, class interests and class prejudices, instinctively favoring the
rich against the poor is to draw a very distorted and poor picture of the
judiciary. It was clear that the appellant bore an attack upon judges -which
was calculated to raise in the minds of the people a general dissatisfaction
with, and distrust of all judicial decisions. It weakened the authority of law
and law courts.
[712 E] While the spirit underlying Art
19)(1)(a), must have due play, the Court could not overlook the provisions of
the second clause of that Article. Its provisions are to be read with Arts. 129
and 215 which specially confer on this Court and the High Courts the power to
punish for contempt of themselves. Although Art. 19(1)(a) guarantees complete
freedom of speech and expression, it also makes an exception in respect of
contempt of court. While the right is essential to a free society, the
Constitution has itself imposed restrictions in relation to contempt of court
and it cannot therefore be said that the right abolishes the law of contempt or
that attacks upon judges and courts will be condoned. [704, C] Samuel Roth v.
United States of America, I L.Ed.2d 1489 at 1506; Arthur Terminiello v. City of
Chicago. 93 L.Ed. 1131 at 1134; Charlotte Anita Whitney v. People of the State
of California, 71 L.Ed. 1095, New York Times Company v. L. B. Sulivan, 11 L.Ed.
2d. 686; and Kedar' Nath Singh v. State of Bihar,  2 Supp. S.C.R. 769,
While it is true that Lord Morris in Mcleod
v. St. Aubyn L.R.  A.C. 549 at p. 561 observed that the contempt of court
known from the days of the Star Chamber as Scandalum Justiciae Curiae or
scandalising the Judges, had fallen into disuse in England, as pointed out by
Lord Atkin in Andre Paul Terence Ambard v. The Attorney General of Trinidad,
and Tobago, A.I.R. 1936 P.C. 141 at 143, the observations of Lord Morris were
disproved within a year in The Queen v.
Gray.  2 Q.B. 36 at 40. Since then many
convictions had taken place in which offence was held to be committed when the
act constituted scandalizing a Judge.[703 D] The Government Pleader, High
Court, Bombay v. Tulsidas Subhanrao Jadhav, I.L.R.  Bom. 179; explained.
In re : Basudeo Prasad, Cr. Appeal No. 110 of
1960 decided on May 3, 1962; distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 56 of 1968.
Appeal from the judgment and order dated
February 9, 1968 of the Kerala High Court in O.P. No. 5032 of 1967 (Contempt).
699 Y. K.Krishna Menon, D. P. Singh, N.
Nettar and Y. J. Francis, for the appellant.
A. Y. V. Nair, for the respondent.
M. R. K. Pillai, for the intervener.
The Judgment of the Court was delivered by
Hidayatullah, C. J. Mr. E. M. S. Naniboodiripad. (former Chief Minister of
Kerala) has filed this appeal against his conviction and sentence of Rs. 1000
fine or simple imprisonment for one month by the High Court of Kerala for
contempt of Court.i Judgment, February 9, 1968, was by majority Mr. justice
Raman Nair (now Chief Justice) and Mr.
justice Krishamoorthy lyer formed the
majority. Mr. Justice Mathew dissented. The case has been certified by them as
fit for appeal to this Court under Art. 1 3 4 ( 1 ) (c) of the Constitution.
The conviction is based on certain utterances
of the appellant, when he was Chief Minister, at a Press Conference held by him
at Trivandrum, on November 9, 1967. The report of the Press Conference was
published the following day in some Indian newspapers. The proceedings were
commenced in the High Court on the sworn information of an Advocate of the High
Court, based mainly on the report in the Indian Express. The appellant showed
cause against the notice sent to him and in an elaborate affidavit stated that
the report 'was substantially correct, though it was incomplete in some
respects.' The offending parts of the Press Conference will be referred to in
this judgment, but we may begin by reading it as a whole. This is what was
"Marx and Engels considered -the
judiciary as an instrument of oppression and even today when the State set up
his (sic) not undergone any change it continues to be so, Mr. Nambudiripad told
a news conference this morning. He further said that Judges are guided and
dominated by class hatred, class interests and class prejudices and where the
evidence is balanced between a well dressed pot-bellied rich man and a poor
ill-dressed and illiterate person the judge instinctively favors the former,
the Chief Minister alleged.
The Chief Minister said that election of
Judges would be a better arrangement, but unless the basic state set up is
changed, it could not solve the problem.
700 Referring to the Constitution the Chief
Minister said the oath he had taken was limited only to see that the
constitutional provisions are practiced. 'I have not taken any oath' the Chief
Minister said "that every word and every clause in the Constitution is
Before that he had also taken an oath, Mr. Nambudiripad
said, holding aloft a copy of the Marxist party's programme and read out
extracts from it to say that the oath had always held that nothing much could
be done under the limitations of the Constitution.
Raising this subject of Constitution and
judiciary suo motu at the fag end of his Dews conference the Chief Minister
said so many reports have appeared in the press that Marxists like himself, Mr.
A. K. Gopalan, and Mr. Imbichi Baba (Transport Minister) were making statements
critical of the judiciary "presumably with the idea that anything spoken
about the court is contempt of court".
His party had always taken the view, the'
Chief Minister said that judiciary is part of the class rule of the ruling
classes. And there are limits to the sanctity of the judiciary. The judiciary
is weighted against ..workers, peasants and other sections of the working
classes and the law and the system-of judiciary essentially serve the
exploiting classes. Even where the judiciary is separated from the executive it
is still subject to the influence and pressure of the executive. To say this is
not wrong. The judiciary he argued was only an institution like the President
or Parliament or the Public Service Commission. Even the President is subject
to impeachment. After all, sovereignty rested not with any one of them but with
the people. Even with regard to Judges confidential records are being kept why
? The judge is subject to his own idiosyncrasies and prejudices.
"We hold the view that they are guided
by individual idiosyncrasies, guided and dominated by class interests, class
hatred, and class prejudices. In these conditions we have not pledged ourselves
not to criticize the judiciary or even individual judgments." This did not
mean, he explained that they could challenge the integrity of the individual
judge or cast reflections on individual judgments, the Chief Minister
He did not subscribe to the view that it was
an aspersion on integrity when he said that judges are guided 701 and dominated
by class hatred and class prejudices. "The High Court and the Supreme
Court can haul me up, if they want" he said".
The affidavit Which he filed later in the
High Court explained his observations at the press conference, supplied some
omissions and pleaded want of intention to show disrespect and justification on
the ground that the offence charged could not be held to be committed, in view
of guarantee of freedom of -speech and expression under the Constitution. He
stated that his observations at the press conference did no more than give
expression to the Marxist philosophy and what. was contained in Chapter 5 of
the Programme of the Communist Party of India (Marxist) adopted in November
1964. His -pleas in defence were accepted by Justice Mathew who found nothing
objectionable which could be termed contempt Of court. The other two learned
Judges took the opposite view. Judgment was entered on the' basis of the
In explaining his press conference the
appellant added that it did not offend the majesty of law, undermine 'the
dignity of courts' or obstruct the administration of justice. Nor did it have
any such tendency. He claimed that it contained a faircriticism of the system
of judicial administration in an effort to make it conform to the peoples'
objective of a democratic and egalitarian society based on socialism. He
considered that it was not only his right but also his duty to educate public
opinion. He claimed that the statement read as a whole amounted to a fair and
reasonable criticism of the present judicial system in our country, hat it was
not intended to be a criticism of any 'Particular judge. his judgment or his
conduct, and that it could not be construed as contempt of court. He added that
he had always enforced the judgments of the courts and shown respect to the
judiciary and had advocated the independence of the judiciary and decried all
attempt to make encroachments upon it. Criticism of the judiciary, according to
him, was his right and it was being exercised by other parties in India.
He denied that it was for the courts to. tell
the people what the law was and asserted that the, voice of the Legislatures
should be supreme. He, however, found is party at variance with the other
parties in that according to he political ideology of his party the State
(including all-the three limbs the Legislature, the Executive and the
Judiciary) was the instrument of the dominant class or classes, so long as society
was divided into exploiting and exploited classes, and parliamentary democracy
was an organ of class oppression. He concluded that his approach to the
judiciary was :
(a) the verdicts of the courts must be
respected and enforced;
702 (b) no aspersions should be cast on
individual judges or judgments by attributing motives to judges;
(c) criticism of the judicial system or of
judges going against the spirit of legislation should be permissible; and (d)
education of the people that the State (including the judiciary) was an
instrument of exploitation of the majority by the ruling and exploiting
classes, was legitimate.
These principles, he submitted, were not
transgressed by him and also summed up his observations and the press
The law of contempt stems from the right of
the courts to punish by imprisonment or fines persons guilty of words or acts
which either obstruct or tend to obstruct the administration of justice. This
right is exercised in India by all courts when contempt is committed in facie
curaie and by the superior courts on their own behalf or on behalf of courts
subordinate to them even if committed outside the courts. Formerly, it was
regarded as inherent in the powers of a Court of Record and now by the
Constitution of India, it is a part of the powers of the Supreme Court and the
High Courts. There are many kinds of contemptís. The chief forms of contempt
are insult to judges, attacks upon them, comment on pending proceedings with a
tendency to prejudice fair trial, obstruction to officers of courts, witnesses
or the parties, abusing the process of the court, breach of duty by officers
connected with the court and scandalising the judges or the courts. The last
form occurs, generally speaking, when the conduct of a person tends to bring
the authority and administration of the law into disrespect or disregard. In
this conduct are included all acts which bring the court into disrepute or
disrespect or which offend its dignity, affront its majesty or challenge its
Such contempt may be committed in respect of
a single judge or a single court but may, in certain circumstances, be
committed in respect of the whole of the judiciary or judicial system. The
question is whether in the circumstances of this case -the offence was committed.
In arguing the case of the appellant Mr. V.
K. Krishna Menon contended that the law of contempt must be read without encroaching
upon the guaranteed freedom of speech and expression in Art. 1 9 ( I ) (a) of
the Constitution, that the intention of the contemner in making his statement
at the press conference should be examined in the light of his political views
as he was at liberty to put them before the people and lastly the harm done to
the 703 courts by his statements must be, apparent. He admitted that-it might
be possible to say that the speech constituted contempt of court but submitted
that it would be inexpedient to do so. He stated further that the species of
contempt called 'scandalising the court had fallen in desuetude and was no longer
enforced in England and relied upon Mcleod v. St. Aubyn(1). He further
submitted that the freedom Of speech and expression gave immu nity to the
appellant as all he did was to give expression to the teachings of Marx, Engels
and Lenin. Lastly, he contended that a general remark regarding courts in
general did not constitute contempt of court and relied upon The Government
Pleader, High Court, Bombay v, Tulsidas Subhanrao Jadhav (2 ) and the
observations of Lord Denning M. R. in R. v. Metropolitan Police Commissioner(3).
It is no doubt true that Lord Morris in
 A.C. 549 at p. 561 observed that the contempt of court known from the
days of the Star Chamber as Scandalum Justiciae Curiae or scandalising the
judges, had fallen into disuse in England.
But as pointed out by Lord Atkin in Andre
Paul Terence Ambard v. The Attorney General of Trinidad and Tobago (4) the
observations of Lord Morris were disproved within a year in The Queen v.
Gray(5). Since then many convictions have taken place in which offence was held
to be committed when the act constituted scandalising a judge.
We may dispose of the Bombay case above
cited. The contemner in that case had expressed contempt for all courts.
Beaumonth C. J. (Wasoodew, J. concurring)
held that it was not a case in which action should be taken. The-case did not
lay down that there could never be contempt of court even though the court
attacked was not one but all the courts together. All it said was that action
should, not be taken in such a case. if the Chief Justice intended laying down
the broad proposition contended for we must overrule his dictum as an incorrect
statement of law. But we think that the Chief Justice did not say anything like
that. He was also influenced by the unconditional apology and therefore
discharged the rule.
Another case cited in 'this connection may be
considered here. In Criminal Appeal No. 110 of 1960 (In Re Basuddeo Prasad,
Advocate, Patna High Court) decided on May 3, 1962, the offending statement was
that many lawyers without practice' get appointed as judges of the High Courts.
The remark was held by this Court not to constitute contempt of court. The
remark was made after the report of the law Commission was pub(1) L.R. 
A. C. 549.
(3) (1968) 2 W.L.R. 1204.
(2) I.L.R.  Bom. 179.
(4) A.I.R. 1936 P.C. 141 at 143.
(5)  2 Q.B. 36 at 40.
704 lished and this Court held that the
person concerned, who was then the Secretary of the Indian Council of Public
Affairs and an advocate, was entitled to comment on the choice of judges and
that the remarks were within the proper limits of public criticism on a
question on which there might be differences of, opinion. In our judgment that
case furnishes no parallel to the case we have here. Each case must be examined
on its own facts and the decision must be reached in the context of what was
done or said.
The appellant has contended before us that
the law of con tempt should be so applied that the freedom of speech and
expression are not whittled down. This is true. The spirit underlying Art. 19
(1) (a) must have due play but we cannot overlook the provisions of the second
clause of the article.
While it is intended that there should be
freedom of speech and expression, it is also intended that in the. exercise of
the right, contempt of court shall not be committed. The words of the second
clause are "Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law or prevent the state from making any law, in so
far as such law imposes reasonable restrictions on the exercise of t he right
conferred by the sub-clause........ in relation to contempt of court,
defamation or incitement to an offence." These provisions are to be read
with Arts. 129 and 215 which specially confer on this Court and the High Courtís
the power to punish for contempt of themselves. Article 19(1) (a) guarantees
complete freedom of speech and expression but it also makes an exception in
respect of contempt of court.
The guaranteed right on which the functioning
of our democracy rests, is intended to give protection to expression of free
opinions to change political and social conditions and to advance human
knowledge. While the right is essential to a free society, the Constitution has
itself imposed restrictions in relation to contempt of court and it cannot
therefore be said that the right abolishes the law of contempt. or that attacks
upon judges and courts will be condoned.
Mr. V. K. Krishna Menon read to us
observations from Samuel Roth v. United States of America('), Arthur
Terminiello v. City of Chicago (2), Charlotte Anita Whitney v. People of the
State of California(') and New York Times Company v. L. B. sunivan (4 ) on the
high-toned objective in guaranteeing freedom of speech. We agree with the
observations and can only say that (2) 93 LM Ed. 1131 at 1134.
(1) 1 L. Ed.2d 1489 it 1506.
(3) 71 L. ed. 1095.
(4) II L. ed. 2d. 686.
705 reedom of speech and expression will
always prevail except where contempt is manifest, mischievous or substantial.
The question always is on which side of the line the case falls.
The Observations of this Court in Kedar Nath
Singh v. State of Bihar(4) in connection with sedition do not lend any
assistance because the topic there discussed was different.
Freedom of speech goes far but not far enough
to condone a case of real contempt of court. We, shall,, therefore, see whether
there was any justification for the appellant which gives him the benefit, of
the guaranteed right.
The appellant has maintained that his
philosophy is based upon that of Marx and Engels. Indeed he claims to be
descended from the last philosophe and seeks to educate the exploited peoples
on the reality behind class oppression.
As a Marxist-Leninist he advocates the
radical and revolutionary transformation of the State from the coercive instrument
of exploiting classes to an instrument which the -exploited majority can use
against these classes. In this transformation he wishes to make the state
wither away and with the, state its organs, namely, the Legislature, the
Executive and the Judiciary also to change. He has justified the press
conference as an exposition of his ideology and claims protection of the first
clause of Art.
19(1) which guarantees freedom of speech and
The law of contempt, he says, cannot be used
to deprive him of his rights.
All this is general but the appellant
attacked the judiciary directly as "an instrument of oppression" and
the judges as "dominated by class hatred, class interests and class
prejudices", "instinctively" favoring the rich against the poor,
He said that as part of the ruling classes the judiciary "works against
workers, peasants and other sections of the working classes" and "the
law and the system of judiciary essentially serve the exploiting classes".
Even these statements, he claims, are the
teachings of Marx, Engels and Lenin whose follower he is. This was also the
submission of his counsel to us.
The appellant is only partly right. He -and
his counsel may be said to have distorted the approach of Marx, Engels and
Lenin, and we proceed to explain how Marx believed man's inherent rationalism
and virtue and depended upon them -to create a better society where there would
be no injustice and oppression and everyone would be able to share the fruits
of man's labour and genius. He. attacked all forms of social evils. Hence his,
sympathy for the neglected and the 'injured and insulted' laboring masses.
Marx was neither first nor alone in this.
Before him the Judeo-Christians demanded social justice, Others who preached
social (1)  2 Supp. S.C.R.769 706 equality and denounced social injustice
were the Utopian Socialists and the Christian Socialists. They had all pointed
out inequalities of civilization based on urban industrial development. We had
thus Augusta Comte's Cours de philosophie positive, Feuerbach's History of New
Philosophy and the writings of Hegel.
Marx's contribution was to create a
scientific and ethical approach to the problem of inequality. He adopted the
Hegelian dialectical form to explain how the capitalist society had arisen and
showed how it would meet its fall.
His view was that it nursed within itself the
germ of its own destruction. In his classic book Das Kapital he disclosed the
clues for the transition from capitalism to socialism. His labour theory was
that the capitalist did not give to labour a due share from the value of the
goods produced by labour because of the iron law of wages and this left the
surplus labour value thereby saved in the hands of the capitalist. In this way
the capitalist became an exploiter who grew rich on the exploited labour
surplus and could indulge in what he called 'capitalist luxuries'. The
introduction of machinery 'further cut down labour value and increased
unemployment leading to reduction of wages. In this way the means of production
passed into the hands of a few. Marx saw that this led to tensions which Marx
thought would ultimately destroy the capitalist system. He saw the Revolution
drawing nearer which would destroy 'classes' and the exploitation of man by
man. 'Mere was in his view one obstruction to the triumph of the working
classes and that was government established by the capitalists who could frame
laws to enforce the differences. From this stemmed his hostility to the state,
its government and its laws.
The Communist Manifesto, which spoke of class
struggle, particularly between the bourgeoisie -and the proletarians gave a
history of the domination of the ruling classes converting everyone not
belonging to itself into paid wage laborers. He said that these re actonaries
were gearing all production to their own benefit and power. Describing the
communists in this context, the Manifesto said that they had no separate
interests but represented the proletariat as a whole, irrespective of
nationalities and that the class struggle was universal. The communists were to
settle the lines of action and their aim was abolition of property not property
of the common man but the bourgeois property of the capitalist created by
surplus from wage labour and resulting in accumulation of capital in the hands
of the capitalist.
According to the communists, this capital
became not a personal but social power and the fight visualised in the
Manifesto was the termination of its class character. Wagelabour would thus
leave no surplus, nor would it lead to accumulation of more wage-labour
yielding still greater surplus but the gains of 707 production would go to
enrich labour in the communist society. Freedom according to the Manifesto never
meant the abolition property in to but the abolition of the bourgeois
individuality. hat was done away with was not property but the means of
subjugating labour of others to one's own use.
This in short is the communist thesis of
social equality as one gathers from the Manifesto.
Next follow the steps for achieving the
betterment of what Saint-Simon described as the largest and poorest class.
Engels in his Analysis of Socialism explained
the different types but we are hot concerned with them here. The radicals'
appeal followed, the forces of reaction released in the 1880s by Tzar Alexander
111. The Populists of Plekhanov were routed and driven out. Then in 1890s the
young intellectuals took up the cause of socialism and Marxism provided the
answer where the moderation and escapism of the Populists had failed. The
former was based on a scientific approach while Populism was empiric and tended
to make Russia, as Bulgakov wrote, 'a peasant and crude country'. The Populists
based themselves on the Peasant-Communes. The rise of Vladimir Lenin at this
time determined the future of Marxism and his classic "the State and
Revolution" appears to be in the mind of the appellant when he made his
pronouncements. We are doubtful if he has fully appreciated the literature, if
he has read it.
Lenin's teachings on the State had removed
the distortions of Marxism from the minds of the people. He quoted long
extracts from Marx and Engels to establish his points.
Lenin first took up Engel's Origin of the
Family, Private Property and the State. The State, according to Engels, was not
the image and reality of Reason as Hegel had maintained before. It was the
product of society, a power standing above society like the Leviathan of
Hobbes. According to Lenin the State was the product and manifestation of the
irreconcilability of class antagonism. The State emerged when class antagonisms
could not objectively be reconciled.
The distortion which had crept into Marxism
was that the State was regarded as an organ for the reconciliation of the
classes. Lenin reinterpreted Marx and, according to him, the State could
neither arise nor maintain itself if it were possible to reconcile classes.
Marx had thought of the State as an organ of class rule and an organ of
The views of the Menshiviks and other
Socialist revolutionaries were exactly the converse.
The disputes which have arisen in our country
over the inviolability of property as a fundamental right have the same
foundations. One side views that the chapter on Fundamental Rights reconciles,
through itself, the basic and fundamental class antagonisms and the state is no
longer required to play any part. The other side would give to one of the
organs of the state, namely, 708 the legislature, a continual power of
readjustment through laws and amendments of the Constitution. Both views do not
accord with the Communist Manifesto and hence the distrust of the Constitution
by the communists disclosed, by the appellant.
Lenin, however, though that the State
degenerated into an, instrument for the exploitation of the oppressed classes'
'and wielded special public powers to tax and maintain -armies. Engels thought
that this made the State stand above society and the officers of the State were
specially protected as they had the protection of the laws. From this sprung
his hostility to the State. Engels summed it up thus "The State is by no
means a power forced on society, from without, Neither as little is it 'the
reality of the ethical idea', 'the image and reality of reason' as Hegel
The state is a product of society at certain
stage of development; it is the admission that this society has become
entangled in an insoluble contradiction with itself, that it 'is cleft into
irreconcilable antagonisms which it is powerless to dispel. But in order that
these antagonisms, classes with conflicting economic might not consume
themselves and society in sterile struggle, a power seemingly standing above
society becomes necessary for the purpose of moderating the conflict, of
keeping it within the bounds of 'order'. And this power, arisen out of society,
but placing itself above it, and increasingly alienating itself from it, is the
state." Lenin resumed this thought further thus :
"This expresses with perfect clarity the
basic idea of Marxism on the question of the historical role and meaning of the
state. The State is the product and the manifestation of their reconcilability
of class antagonisms.
The state arises-when, where and to the
extent that class antagonisms objectively cannot be reconciled. And,
conversely, the existence of the state proves that the class antagonisms are
-irreconcilable." Having viewed the state in this way these writers from
Marx to Lenin viewed it as the instrument for the exploitation of the oppressed
classes. The Paris Commune of 1871 had stated its conclusions how the state
gets above society but it was blurred in a reactionary manner later by Kautsky
Lenin cleared the misconception in an
exposition of Engel's philosophy :
".......As the state arose from the need
to hold class same antagonisms in check, but as it arose, at the time, in the
midst of the conflict of these classes, it is, as a 709 rule, the state of the
most powerful economically dominant class, which through the medium of the
state. becomes also the politically dominant class and thus acquires means of
holding down and exploiting the oppressed classes........ the modern
representative state is an instrument of exploitation of wage labour by
capital." Engels added further "In a democratic republic wealth
exercises its power indirectly, but all the more surely 'first by means of the
'direct corruption of officials' and second, by means of 'an alliance between
the Government and Stock Exchange." Lenin gave the example that "at
the present time, imperialism and the domination of the banks have 'developed'
both these methods of upholding and giving effect to the omnipotence of wealth
in democratic republics of all descriptions into an unusually fine art".
He concluded that "a democratic republic is the best possible political
shell 'for capitalism" and that "it establishes its power so
securely, so firmly, that no change whether of persons, of institutions, or of
parties in the bourgeois democratic republic can shake it".
Therefore, Marx, Engels and Lenin thought in
terms of 'withering away of the state'. Although Lenin thought that Engel's
doctrines were an adulteration of Marxism, he was not right. Marx himself
believed this. In his Poverty of Philosophy, Marx says "............ The
working class, in the course of development, will substitute for the old
bourgeois society an association which will exclude classes and their
antagonism, and there will be no more political power properly so-called, since
political power is precisely the official expression of antagonism in bourgeois
society." Marx and Engels in the Manifesto had considered the true state
to be 'the proletariat organised as the ruling class'.
It was the Kautskyites (the Dictatorship of
the Proletariat) who, misunderstanding the doctrines of Marx, taught that the
proletariat needed the state. According to Marx the proletariat needed a state
which must wither away leading to the dictatorship of the proletariat.
In this fight for power the Communist
Manifesto gave a purely abstract solution. It was substitution of the commune
for the bourgeois state machinery and a fuller democracy. The Army 710 was to
be replaced by armed people, the officials were to be elected and also the
judges. The Commune was not to be 'a talking parliament' but a 'working' body'.
It was to be the executive and the legislature at the same time. The principles
were formulated by Engels thus "The necessity of political action by the
proletariat and of its dictatorship as the transition to the abolition of
classes and with them the state...............".
The thesis on the withering away of the state
was to be accompanied by a restatement of the functions of the law.
Law made by the bourgeois rulers was
castigated as involving class supremacy. The Hegelian doctrine of the
apotheosis of Reason was replaced by the invocation of economic necessity as
the only foundation for laws. The laws which preserved privileges were to go,
laws which kept the power of the bourgeois above the people were to go, only
laws creating equality and preserving society from internal decay and disruption
to be tolerated.
In all the writings there is no direct attack
on the judiciary selected as the target of people's wrath. Nor are the judges
condemned personally. Engels regarded the courts as one of the means adopted by
the law for effectuating itself. It was thus that he wrote "The
centralised state power, with its ubiquitus organs, standing army, police,
bureaucracy, clergy, and judicature organs wrought after the plan of a
systematic and hierarchic division of labour-originates from the days of absolute
monarchy, serving nascent middle-class society as mightly weapons in its
struggles against feudalism".
This is not a castigation of the judiciary as
being dishonestly ranged against the people but only a recital of a historic
fact in feudal societies. He only said that the judicial functionaries must be
divested of 'sham independence' which marked their subservience to succeeding
governments, and, therefore, be elected. In one of his letters to the Spanish
Federal Council of the International Workingmen's Association, London, February
13, 1871, he talked of the power of the possessing classes-the landed
aristocracy and the bourgeoisie-and said that they kept the working people in
servitude not only by their wealth got by the exploitation of labour but also
by the power of the state, by the army. the bureaucracy, and the courts. He was
not charging the .judiciary with taking sides but only as an evil adjunct of
the administration of class legislation.
The fault was with the state 711 and the laws
and not with the judiciary. Indeed in no writing, which we have seen or which
has been brought to our notice,, Marx or Engels has said what the appellant
quotes them as saying.
We have summarized into a very small compass,
many thousands of words in which these doctrines have been debated from
Plekhanov to Lenin through the thoughts of Kautsky, Kerensky, Lasalle, Belinsky
and others who attempted a middle line between the revisionism of Bernstein and
the Bolshevik views of Lenin. We have done so because Mr. V. K. Krishna Menon
sneared that many people learn about communism through Middleton Murray! It
will be noticed that in all these writings there is not that mention of judges
which the appellant has made. Either he does not know or has deliberately
distorted the writings of Marx, Engels and Lenin for his own purpose. We do not
know which will be the more charitable view to take. Marx and Engels knew that
the administration of justice must change with laws and changes in society,
there was thus no need to castigate the judges as such beyond saying that the
judicial system is the prop of the state.
The courts in India are not sui generis. They
owe their existence, from, powers and jurisdictions to the Constitution and the
laws. The Constitution is the supreme law and the other laws are made by
Parliament. It is they that give the courts their obligatory duties, one such
being the settlement of disputes in which the state (by which we mean those in
authority) are ranged against citizens. Again they decide disputes in which
class interests are apparent.
The -action of the courts when exercised
against the state proves irksome to the state and equally when it is between
two classes, to the class which loses. It is not easily realized that one of
the main functions of courts under Constitution is to declare actions,
repugnant to the Constitution or the laws (as the case may be), to, be invalid.
The courts as well as all the other organs and institutions are equally bound
by the Constitution, and the laws. Although the courts in such cases imply the
widest powers in the other jurisdictions and also give credit where -it belongs
they cannot always decide either in favour of the state or any particular
class. There are innumerable cases in which the decisions have gone against
what may be described in -the language of communism as the exploiting classes.
For those who think that the laws are
defective, the path of reform is open but in a democracy such as ours to weaken
the judiciary is to weaken democracy itself. Where the law is silent the courts
have discretion. The existence of law containing its 712 own guiding
principles, reduces the discretion of courts to a minimum. The courts must do
their duty according to their own, understanding of the laws and the
obligations of the Constitution. They cannot take their cue from sentiments of
politicians nor even indirectly give support to something which they consider
to be wrong against the Constitution and the laws. The good faith of the judges
is the firm bed-rock on which any system of administration securely rests and
attempt to shake the people's confidence in the courts is to strike at the
very-root of our system of democracy. The of quoted anger of the Executive in
the United States at the time of the New Deal and the threat to the Supreme
Court (which the United States had the good sense not be pursue) should really
point the other way and it should be noted that today the security of the
United States rests upon its dependence on Constitution for nearly 200 years
and that is mainly due to the Supreme Court.
The question thus in this case, is whether
the appellant has said anything which brings him out of the protection of Art.
19 (I) (a) and exposes him to a charge of
contempt of court.
It is obvious that the appellant has misguided
himself about the true. teachings of Marx, Engels and Lenin. He has
misunderstood the attack by them On state and the laws as involving an attack
on the judiciary. No doubt the courts, while upholding the laws and enforcing
them, do give support to the state but they do not do so out of any impure
motives. They do not range themselves on the side of the exploiting classes and
indeed resist them -when the law does not warrant an encroachment. To charge
the judiciary as an instrument of oppression, the judge as-guided and dominated
by class hatred, class interests and class prejudices, instinctively favoring
the rich against the poor is to draw a very distorted and poor picture of the
judiciary. It is clear that it is an attack upon judges. which is calculated to
raise in the minds of the people a general dissatisfaction with, and distrust
of all judicial decisions. It weakens the authority of law and law courts.
Mr. V. K. Krishna Menon tried to support the
action of the appellant by saying that judges are products of their environment
and reflect the influences upon them of the society in which they move. He
contended that these subtle influences enter into decision making and drew our
attention to the writings of Prof. Laski, Justice Cordozo, Holmes and others
where the subtle influences, of one's upbringing are described. This is only to
say that judges are as human as others. But judges do not consciously take a
view against the conscience or their oaths. What the appellant, wishes to say
is that they do. In this he has been guilty, of a great calumny. We do not find
it necessary to refer to these 713 writings because in our judgment they do not
afford any justification for the contempt which has patently been committed. We
agree with Justice Raman Nair that some of them have the exaggerations of the
confessional. Others come from persons like the appellant, who have no faith in
institutions hallowed by age and respected by the people.
Mr. V. K. Krishna Menon exhorted us to give
consideration to the purpose for which the statement was made, the position of
the appellant as the head of a State, his sacrifices, his background and his
integrity. On the other hand, we cannot ignore the occasion (a press
conference), the belief of the people in his word as -a Chief Minister and the
ready ear which many in party and outside would to him. The mischief that his
words would cause need not be assessed to find him guilty. The law punishes not
only acts which do in fact interfere with the courts and administration of
justice but also those which have that tendency, that is to say, axe likely to
produce a particular result. Judged from the angle of courts and administration
of justice, there is not a semblance of doubt in our minds that the appellant
was guilty on contempt of court. Whether he misunderstood the teachings to Marx
and Engels or deliberately distorted them is not to much purpose. The likely
effect of his words must be seen and they have clearly the effect of lowering
the prestige of judges and courts in the eyes of the people.
That he did not intend any such result may be
a matter for consideration in the sentence to be imposed on him but cannot
serve as a justification. We uphold the conviction.
As regards sentence we think that it was
hardly necessary to impose heavy sentence. The ends of justice in this case are
amply served by exposing the appellant's ignorance about the true teachings of
Marx and Engels (behind whom he shelters) and by sentencing him to a nominal
fine. We accordingly reduce the sentence of fine to Rs. 50/-. In default of
payment of fine he will undergo simple imprisonment for one week. With this
modification the appeal will be dismissed.