Full Judgment Text
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PETITIONER:
E. M. SANKARAN NAMBOODIRIPAD
Vs.
RESPONDENT:
T. NARAYANAN NAMBIAR
DATE OF JUDGMENT:
31/07/1970
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
MITTER, G.K.
RAY, A.N.
CITATION:
1970 AIR 2015 1971 SCR (1) 697
1970 SCC (2) 325
CITATOR INFO :
R 1972 SC1515 (10)
R 1988 SC1208 (9)
ACT:
Contempt of Court-What is-Chief Minister of State making
remarks in public derogatory of the Judiciary and courts-
Sought 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.
HEADNOTE:
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 judgement the appellant was convicted for
contempt of court and fined Rs. 1000/- or simple
imprisonment for one month.
In appeal to this Court it was contended on behalf of the
appellant that the law of contempt must be read without
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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
Art. 19(1).
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 justification.
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, [1962] 2 Supp. S.C.R. 769, referred to.
While it is true that Lord Morris in Mcleod v. St. Aubyn
L.R. [1899] 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
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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. [1900] 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. [1938] Bom. 179; explained.
In re : Basudeo Prasad, Cr. Appeal No. 110 of 1960 decided
on May 3, 1962; distinguished.
JUDGMENT:
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 lndian
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 reported :
"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.
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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
sacred".
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 criticise
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
contended.
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
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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 majority view.
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 fair- criticism 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
conference.
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
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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 contempts. 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 authority.
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 en-
croaching 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 [1899] 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 con-
temner 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
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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. [1899] A. C. 549.
(3) (1968) 2 W.L.R. 1204.
(2) I.L.R. [1938] Bom. 179.
(4) A.I.R. 1936 P.C. 141 at 143.
(5) [1900] 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 Courts 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.
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(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 expression.
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) [1962] 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 Auguste 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.
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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 reactonaries 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. Wage-
labour 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
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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 oppression.
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 maintains.
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
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State is the product and the manifestation of
the- irreconcilability of class antagonisms.
The state arises-when, where and to the extent
that class antagonisms objectively cannot be
reconciled. And, conversely, the exis
tence 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 in 1912.
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, imperia-
lism 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.
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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
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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 oft-
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
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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, in-
stinctively 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.
R. K. P. S. Appeal dismissed.-
714
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