Facts Of The Case
Whether the Appellant has said anything which brings him out of the protection Article 19(1)(a).
Whether the appellant has said anything which exposes him to the charge of contempt of court.
Freedom To Speech And Expression:
Article 19(1) (a) is the fundamental right of freedom of speech and expression for the entire citizen. One�s opinions may be expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom includes a person�s right to propagate or publish the views of other people.
The freedom of speech under Article 19(1) (a) includes the entitlement to express one�s views and opinions at any matter through any medium.
But this right is not absolute and restricted by Article 19(2)
following are the restrictions:
Law Of Contempt Of Court:
Law of contempt stems from the right of the Courts to punish by imprisonment or fines person 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 curiae and by Superior Courts on their own behalf or on behalf of Courts subordinate to them even if committed outside the Courts, Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts.
There are many kinds of contempts. The chief forms of contempt are insulting the judges, attacks upon them, comment on pending proceedings 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 scandalizing 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 or whole judiciary. The question is whether in the circumstances of this case the offence was committed.
Issue I: Whether the Appellant has said anything which brings him out of the protection Article 19(1)(a).
V.K. Krishna Menon (Advocate of the appellant) argued that the guarantee of freedom of speech and expression in the article 19(1)(a) of the constitution must not be any how encroached by the application of law of contempt of court. He further submitted that the freedom of speech and expression gave immunity to the Appellant as all he did was to give expression to the teachings of Marx, Engels and Lenin.
He argued that the law of contempt should be applied in such a manner that the freedom of speech and expression are not whittled down. We know that Article 19(1)(a) guarantees the complete freedom of speech and expression but it also has 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.
Mr. V.K. Krishna Menon read the following observations from Samuel Roth v. United States of America I.L. Ed. 2nd. 1484 at 1506, Arthur Terminieilo v. City of Chicago, 93 L.Ed.1131 at 1134 Charlotte Anita Whitney v.People of the State of California 71 L.Ed.1095 and New York Times Company v. L.B. Sullivan 11 L.Ed.2nd. 686,on the high-toned objective in guaranteeing freedom of speech.
The court agreed with agree with the observations and stated that freedom of speech and expression will always prevail except where contempt is manifest, mischievous or substantial. He argued that the Appellant has the benefit of the guaranteed right as the statements which he made were made just to give expression to the teachings of Marx, Lenien and Eangles and seeks to educate the exploited peoples on the reality behind class oppression.
As the appellant has contended before the respondent that the law of contempt should
be applied while keeping in mind the article 19(1)(a) the freedom of speech and
expression. while it is intended there should be freedom of speech, it is also intended that in the exercise of the right contempt of court shall not be committed.
Article 19(1)(a) guarantees freedom of speech and expression but it also come along with some exceptions in respect of contempt of court. the right is intended to give protection to free opinions to change political and social culture and to advance human knowledge. the right under 19(1)(a) is essential for a free society and the constitution itself has imposed restrictions, therefore it cannot be said that right abolishes the law of contempt.
Issue II: Whether the appellant has said anything which exposes him to the charge of contempt of court.
The counsel for the appellant argued that the appellant it might be possible to say that the speech constituted contempt of Court but submitted that it would be not suitable and advisable to do so. He stated further that the type of contempt called 'scandalising the Court had was no more in use and was no longer enforced in England and relied upon Mcleod v. St. Aubyn. L.R. 1899 A.C. 549.He further submitted that the freedom of speech and expression gave immunity 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. TulsidasSubharaoJadhav I.L.R. 1938 Bom179,The Appellant has maintained that his philosophy is based upon that of Marx and Engels. Indeed the claims to be descended from the last philosophe and seeks to educate the exploited peoples on the reality behind class oppression.
Marxist-Leninist he advocates the radical and revolutionary transformation of the State from the violent instrument of exploiting classes to an instrument which the exploited majority can use against these classes. In this transformation he wishes to makes the state wither away and with the state its organs, namely, the Legislature, the Executive and the Judiciary also to change. The law of contempt, he says, cannot be used to deprive him of his rights.
Giving the counter arguments towards the cases cited by the Appellant, the defendants saidthat there is no doubt that the Contempt of Court had fallen into disuse in England as per the observations in Mcleod v. St. Aubyn but as per the observation in Queen v. Gray within one year of Mcleod v. St. Aubyn it was disproved and since then many convictions have taken place under Contempt of Court. Next case was Government Pleader High Court; Bombay v. Tulsidas Subharao Jadhav which should be disposed of because the case never laid down that there could never be contempt of court. The Respondent further contended that all the cases of Contempt of Court are with different
facts and in this way it is difficult to interrelate so each case must be examined on its own facts and the decision must be reached in the context of what was done or said. Further the Appellant alleged that whatever was said by E.M. ShankaranNamboodiripad was according to the learning�s of Marx, Engels and Lenin so the Respondent then explained the learning�s of Marx, Engels and Lenin in a detailed manner and on the basis of that argued that in all the writings there is no direct attack on the Judiciary selected as the target of people�s wrath and also it will be noticed that in all these writings, there is not that mention of judges which the Appellant has made.
The Appellant either does not know or has deliberately distorted the writings of Marx, Engels and Lenin for his own purpose. He misunderstood the attack by them on stages and the laws as involving an attack on 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 which amounts to the Contempt of Court.
Appellant is held liable for the contempt of court and the conviction was upheld by sentencing him to a nominal fine. They accordingly reduce the sentence of fine to Rs. 50/-. In default of payment of fine he will (sic) mint for one week. With this modification the appeal will be(sic).
Article 19(1)(a) guarantees complete freedom of speech and expression but it also makes an exception in respect of contempt of Court.
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 the right granted by the sub-clause........in relation to contempt of Court, defamation or incitement to an offence.
But this right is not absolute. It is restricted by Art 19(2) which lays down the restrictions in case of contempt of court.
Other than the judgment which was pertaining to the provisions provided for the freedom of expression and contempt of court which largely constitutes the ratio decidendi of the judgment the other opinions of judge Hidayatullah mostly revolved around the statement he made and how that statement was contradicting in itself. He also talked about how the statement he made was a misinterpretation of the teachings of Marx, Engels and Lenin and also how their teachings doesn�t involve the system of judiciary explicitly in any of their writings.
The appellant termed judiciary as an instrument of oppression and justice Hidayatullah through his learned view about the teachings in the judgement enlighten us that why judiciary will not be an instrument of oppression. The judge starts with telling about why essentially Marx and Engels come up with their writings ant texts about class oppression. He says that they were concerned with the idea of social justice and equality. So as to provide a solution for this problem he found that the Class capitalist exploit the class workers and gain from their works by not providing their fair share for the work they have done.
Exploiting the working class provides this capitalist themselves with surplus labor value which makes them indulge capitalist luxuries. Also this capitalist will then turn to the state and the law to influence them to turn the laws and rules towards their favor. All this social divides and inequalities between working class and the capitalists create tensions and eventually eliminate the capitalist system existing in that society. Justice deliberated upon all this details was to come to the observation that this was how and why there was this hostility towards the state and the law.
There was this large distrust on the state and its institutions because it can be influenced by those capitalists for their own betterment. So in order to avoid this social injustice Marx tried to come up with scientific and ethical approach to provide equality among the capitalists and the working class so that their fruit of their work and labor can be divided among them accordingly. This was the concept on which Marx build up his work das capital.
Even though Marx�s writing didn�t include certain aspects of the system of judiciary his texts was misinterpreted by people until Lenin came up with the right interpretations of his teachings and texts. Marx in his works wrote that state is an instrument in the hands of the capitalists and rule in favor of this people making the people in the oppressed class in a worse position and Engels in his text explicitly writes that state is mostly formed class capitalists to protect their own interests and in this way state gets above the society by using its facilities. Lenin in his texts tries to interpret texts of Marx and Engels and told that state cannot be formed in favor of the class capitalists in the modern society because there won�t be consensus between the society and the state formed by this people since the state is for the society.
Lenin again asserts in his work that state cannot become an instrument of the class capitalists especially when it is a democratic republic and it ensures that there won�t be bourgeois republic existing in that society. So in the works of Marx and Engels writes that laws in a society should be to ensure the social equality and shouldn�t be corrupted with that of the likes of the bourgeois society when they talked about a deviation from the state which can be manipulated by capitalists.
Even though they talked about how law and state should be in the other paradigm where there is no chance of a state growing above society especially under bourgeois republic they never directly broached upon the subject of the judicial system in the society. Adding to the fact that they never directly attacked judiciary system justice Hidayatullah brought in the fact that Engels stating that judiciary as a system is effective in achieving the social justice that is necessary and can serve as a tool to keep the bourgeois forces at bay from influencing the state. Justice Hidayatullah stated the relevant facts stated in the works of Marx, Engels and Lenin about the state, law and judiciary to explain that the appellant has misinterpreted the teachings of Marx, Lenin and Engels on whose teachings the appellant made his statements about the judiciary in India.
Justice Hidayatullah also states that the judiciary in India derives its power from the constitution and laws which gives it autonomy from the state and other factors that could have influenced the judiciary. This also ensures that the courts are impartial when it comes to giving away judgments when it the verdicts of the court may or may not come in favor of either oppressed class or the majority. Justice Hidayatullah also states that even if the people think that the law is not providing the justice it was supposed to give that law can be changed for better in India but weakening judiciary can also mean the weakening of democracy because judiciary becomes the quintessential part in democracy to provide justice and ensuring equality.
Analysis Of Case
The case throws light on the two major issues which are whether the criticism of the judiciary must be protected under the fundamental right of freedom of speech and expression i.e. article 19(1)(a)
And the other is whether such statements as that made by the appellant, in the press conference should amount to contempt of court.
In the present case the appellant is held liable for the contempt of court and is not protected under the right to freedom of speech and expression. As per our opinion the guarantee to expression must always prevail over law of contempt whereas according to law,
For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which deals with such a concept. Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their contempt. Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempt�s of its subordinate courts. Power to punish for the contempt of court under the constitution Articles 129 and 215 is not subject to Article 19(1)(a).
The general elements needed to establish a contempt of court are:
There is a three-fold classification of Contempt:
In our country contempt of court is of two types:
Although there is no doubt that the Courts, while upholding enforcing the laws,
do give support to the state but they do not do so out of any impure motives.
Courts 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 and point
out the judiciary as an instrument of oppression, the judges as guided and
dominated by class hatred, class interests and class prejudices, instinctively
favouring the rich against the poor is drawing a very distorted and
disrespectful image of the judiciary.
It is clear that it is an attack upon judges which is calculated and sufficient enough to create a wrong image of all the judicial decisions taken by the judiciary and create a situation of distrust & dissatisfaction. It weakens the authority of law and law Courts. Therefore the appellant can be held liable for the contempt of court and the decision of the high court can be upheld.
Coming on to the other side of the case In our opinion this judgment is incorrect, unacceptable in a democracy, and violates the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. In a democracy like India the people are supreme and all authorities, whether President or Prime Minister of India, other ministers, judges, legislators, bureaucrats, police, army and so on are servants of the people and are in the system to serve the commons.
Since the peoples are the masters and judges are their servants, the people have a right to criticise judges just as a master has the right to criticise his servant. Why should Indian judges and the judiciary be so touchy? Also when it comes to the conviction made in the case of contempt of court we can come across a lot of ambiguity and the law doesn�t seem to be absolute.
Lord Denning in R v. Police Commissioner (1968):
Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. It will also be not use to supress the people who speak against it. We are not fear criticism, neither do we resent it.there is something far more important at stake. It is equal to the freedom of speech itself."
A basic defect or flaw in the law of contempt of court in India is that it is uncertain and ambiguous.Nariman described it as "dog�s law". The great jurist Benthamonce said that when a dog does something nasty you beat it. Similarly, the law of contempt of court is known only when anyone is punished by it , and thus it is a standing threat to freedom of speech. Let�s understand with an example. In Duda�s case (1988) the facts are that a Union cabinet minister had said that the Supreme Court sympathised and works for zamindars and bank magnates. He also states that �FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court" and that Supreme Court judges have "unconcealed sympathy for haves and none for have-nots�.
A contempt of court petition was filed against the minister but Supreme Court took no action against the petition. Nariman questioned and wondered, if the statement was made by a common man and not a minister, that person would have gone unpunished.
But in the case against EMS Namboodiripad, former chief minister of Kerala, he was convicted for contempt of court for saying that courts, judges and the whole judiciary were biased in favour of the rich, which is practically and logically the same thing that was said by the Union minister in Duda�s case. Therefore we conclude that the conviction in the case of EMS Namboodiripad was wrong and can�t be justified on any basis.
Perspective W.R.T Sanctions
In our opinion the judgment given by the judges is fair. Chief Minister is a very important post. It is considered to be the supreme head of state. Everyone listens to him because he is representative of society. He was elected as CM for two times this means he had a very high influence in society whatever is said by him most people believe that it might be true. In this case, CM's 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. A poor person might lose hope in the judiciary after listening or after reading the statement of CM. We did not know whether he does not know or has deliberately distorted the writings of Marx, Engels, and Lenin.
But there is a wrong interpretation that has reached the general public which lowers the image of the judiciary. Judgments that are given by the judges can be considered as the right judgment but the sentence which is given to him is very nominal. In my opinion, there should be serious punishment or heavy fines should be given because there was only a nominal 50 Rs charge by the court. In future there might be condition can come where anybody with the higher position do contempt of court and escape by giving the nominal fine.
There might be situation can be happened where people will take the defense of misunderstanding the philosophers and will free from court with nominal fines. Section 12 of contempt of court act,1971 states that a contempt of court can be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees ,or both. IN my opinion this punished should be increased.
A fair amount of the judgement has been dedicated to explain the teachings and the texts of Marx, Engels and Lenin on whose teachings the appellant supposedly made the statements which was questioned in the court for the contempt of court. As we can see from the judgement when the appellant side claimed that there is no intention from his side to attack the court or a certain individual the court said that want of intention is not that of much importance.
In this contempt of court case the main question was whether the statement made by the appellant can give a false idea about courts that they are influenced by certain parties might create distrust among public on the justice delivery system which is very vital for a democratic republic.
The appellant said that the statement he made was based on the ideas given by Marx, Engels and lenin from their works. Justice Hidayatullah throughout his course of giving away the judgement convince us that what the appellant said in the statement was a misinterpretation of the true teachings of Marx and Lenin. Justice Hidayatullah also asserted on the point that never in their teachings judicial system is mentioned explicitly in their texts.
Justice Hidayatullah started off by stating various reasons why there was an inherent hostility towards class capitalists which made these philosophers turn their attention. The class capitalists emerged from the gains they got by exploiting the working class benefitting from the surplus labour value the working class produced. This creates certain tensions in between the class capitalists and working class. It was also said in their works that the capitalists might also reach out to the way the state and law functions.
The class capitalists who was coined by the term bourgeois influenced the law makers and the state to make laws which favours them which again makes the working class go into a worse position. There is a gross injustice happening here between class capitalists and the working class.
Class capitalists also will go to great extent to make the state above the society and use the functionaries of the state for their own benefit and this are the explanations why there is a general distrust towards state and its functionaries which is why Marx and Engels said in their texts that state is an organ of oppression and class rule wherein Lenin has interpreted that state cannot be formed if there is a general distrust towards it if it was run by the bourgeois class especially if this state is formed in a democratic republic.
Also Marx�s, Engel�s and Lenin�s main contention was against the possibility of the state and its law degrading just to function for the majority class in the community thus further exploiting the class oppressed. Justice Hidayatullah also states in his judgement that the appellant misinterpreted the work of Marx and Engels because they never raised a criticism against the working of judiciary in the state.
Time, place and the socio economic culture also comes into play when we consider the case because the time period when Marx and Engels came up with their work was when industrialization was booming throughout the world which also paved way to the emergence of the class capitalist and if we consider the political scenario of majority of the nations it was not democratic in nature even if they claimed to be democratic there was slight trail of the control of the royal family belonging to each state which is all the more reason not to rely on the state to come up with schemes that would benefit the working class.
When it comes to the time period of Lenin there were certain changes that happened globally the most important of the transitions that were happening was the change in the political scenario of certain states wherein they adopted democratic ways and this explains the way Lenin has interpreted Marx�s works. When we consider the socio � political atmosphere of the state in which the appellant was making this statement has to be considered as well. India is a democratic state where there is separation of powers among executive, judiciary and legislature.
The constitution which is the supreme law in the country is the one wherein which the judiciary draws it powers from. Even if the laws that were made is to be believed is in derogation of any fundamental rights there are provisions to bring in certain amendments to the particular law thus explaining the rigid and flexible nature of the constitution. Judiciary in this country is believed to maintain its impartiality throughout the case proceedings for the sake of providing justice.
A statement made by a public figure like the appellant jeopardize the judicial system by creating distrust among people about the functioning of the judicial system. Weakening the judicial system means the weakening of the democracy in the state because judiciary has its own autonomy in carrying forward its function and it is also an institution which safeguards the democratic nature of the country.
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