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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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