BRIEF FACTS

November 9, 1967- E. M. Sankaran Namboodiripad, then Chief Minister of Kerala at a press

conference referred to the judiciary 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 Indian Express newspapers and thereafter he was called
in the High Court to show cause as to why he should not be committed for contempt.

• Response to the Show Cause-

• The Chief Minister said that he had not challenged “the integrity of the
individual judge or cast reflections on individual judgements”
• Observations at the press conference did no more than give expression to the
Marxist philosophy, 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.
• That the statement read as a whole amounted to a fair and reasonable criticism
of the present judicial system in our country, that 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.
• In a 2:1 judgment, the High Court of Kerala found him guilty of contempt, while
Justice KK Matthew dissented.

Issue in appeal - Whether the remarks by EMS was protected under Article 19(1)(a) of the
Constitution?

Appellant’s arguments:
• Contempt must be read without encroaching upon the guaranteed freedom of
speech and expression in Article 19(1)(a) of the Constitution.
• A general remark regarding courts in general did not constitute contempt of
court.
 • Article 19 (2):
“(2) 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 conferred by the said sub-clause in the interests of the sovereignty
and integrity of India,] the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or incitement to an
offence.”
• Till now the Contempt of Courts Act 1952 was in force, which did not define
‘contempt’.
Sanyal Committee Report 1963- recommended reforms to clarify the law on contempt- that
contempt cannot be defined

Supreme Court’s remarks

• Bench - M. Hidayatullah, C.J., A.N. Ray and G.K. Mitter, JJ.

“There are many kinds of contempt. 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.
“freedom 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”
Hidayatullah, C.J entered into a discussion of what is the ‘correct’ theory of Marx which
according to the court was being ‘distorted’ by the appellant. [ paras 14-32]
“To charge the judiciary as an instrument of oppression, the judge as guided and dominated
by class hatred, class interests and class prejudices, instinctively favouring 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.” [para 34]
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 his 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, are 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 of 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.” [para 36]

Contempt of Courts Act, 1971

Section 2
(a) “contempt of court” means civil contempt or criminal contempt;
(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ
or other process of a court or wilful breach of an undertaking given to a court;
(c)“criminal contempt” means the publication (whether by words, spoken or written, or by
signs, or by visible representations, or otherwise) of any matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;

“Indian courts are patriarchal, sexist and misogynist”

[add Arundhati roy judgement]

 • We must be aware of the danger of ourselves sitting in judgment on the truth of the
allegations in the statements against judges and courts. We should leave it to the
people of this country to decide whether the system of administering justice in courts
has the defects alleged and requires change.”
Justice K.K Mathew in his dissenting opinion in the Kerala HC judgment.

EMS’s Response

“I do not know whether it is the function of the Court to ‘expose’ the ‘errors’ committed by
an accused before it with regard to the systems of political philosophy of which the teachings
of Marx and Engels is an important one. To my mind, the function of the Court is to interpret
and administer law as it is, and not to pronounce their verdict on the various systems of
philosophy in which litigants repose their faith. It will be an extraordinary state of affairs if
the judges are asked to become interpreters of systems of political philosophy. ….
Coming to the present case, it was certainly the Court’s duty to examine whether my speeches
and statements were against the law and to give a verdict on this specific legal question. I
wonder whether the judges should be concerned with the question whether my claim to have
been faithfully following the teachings of Marx and Engels is correct or not. I must be
punished if I have acted against the law as the judges interpret it, even if my claim with
regard to the teachings of Marx and Engels is correct. On the other hand, even if I am making
a false claim, I cannot be punished if I have not transgressed the law as it is interpreted by the
judges.
But since the highest judicial authority in the country has taken upon itself the task of trying
to find out what the true teachings of Marx and Engels are and to ‘expose’ my ‘error’ with
regard to them, may I crave the indulgence of your columns to point out that it is not me who
is in ‘error about the true teachings of Marx and Engels’…..”
[ EMS in a letter to the Kerala Law Times, 1970.
Reproduced in EMS,  History, Society and Land Relations (LeftWord Books, 2010) ]
P. Shiv Shankar’s case

• In 1987, P. Shiv Shankar, the then Union Minister for Law, delivered a speech at a
meeting of the Bar Council of Hyderabad. He said that the Supreme Court composed
of people from the elite class and had sympathies for the Zamindars.
• The court’s attitude in this case was completely opposite :
“the speech of the Minister read in its proper perspective, did not bring the
administration of justice into disrepute or impair the administration of justice. In some
portions of the speech the language used could have been avoided by the Minister
having the background of being a former Judge of the High Court. The Minister
perhaps could have achieved his purpose by making his language mild but his facts
deadly. With these observations, it must be held that there was no imminent danger of
interference with the administration of justice, nor of bringing an institution into
disrepute. In that view, it must be held that the Minister was not guilty of contempt of
this Court".
[P N Dua vs V P Shiv Shankar, AIR 1988 SC 1208]

• Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406-

“The definition of criminal contempt is wide enough to include any act by a person which
would tend to interfere with the administration of justice or which would lower the
authority of court. The public have a vital stake in effective and orderly administration
of justice. The Court has the duty of protecting the interest of the community in the due
administration of justice and, so, it is entrusted with the power to commit for
contempt of court, not to protect the dignity of the Court against insult or injury, but, to
protect and vindicate the right of the public so that the administration of justice is not
perverted, prejudiced, obstructed or interfered with. “It is a mode of vindicating the
majesty of law, in its active manifestation, against obstruction and outrage.”
(Frankfurter, J. in Offutt v. U.S. [(1954) 348 US 11, 14 : 99 L ed 11] ) The object and
purpose of punishing contempt for interference with the administration of justice is not
to safeguard or protect the dignity of the Judge or the Magistrate, but the purpose is to
preserve the authority of the courts to ensure an ordered life in society.”
• In Re : Arundhati Roy, AIR 2002 SC 1375.
 “ any insinuation to undermine the dignity of the Court under the garb of mere
criticism is liable to be punished”

[In Re: Prashant Bhushan and Ors (2021)1 SCC 745]

• P.B had tweeted that the Supreme Court has allowed the destruction of the democracy
in the last 6 years.
“The foundation of the judiciary is the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation itself is sought to be shaken by
acts which tend to create disaffection and disrespect for the authority of the court by creating
distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious
attacks by the alleged contemnor No. 1 are not only against one or two judges but the entire
Supreme Court in its functioning of the last six years. Such an attack which tends to create
disaffection and disrespect for the authority of this Court cannot be ignored”

• Origins of ‘Contempt’ – The King was believed to be the fountainhead of justice who
delegated it to judges, and so to disrespect or question the court was a challenge to the
wisdom and the superiority of the King. The basis of contempt law lies in the fact that
it must protect the authority of the courts eyes of people. -the judiciary has created in
its own eyes, a self satisfied image, and wishes to retain its ‘majesty’ in the eyes of the
people. [Mriganka Shekhar Dutta and Amba Kak, “Contempt of Court: Finding the
limit” NUJS L Rev 61(2009) ]
• In most of common law jurisdictions including UK and Australia, punishment for
‘scandalizing the judges is now obsolete [Defence Secretary v Guardian Newspapers
(1985) 1 A.C 339; ‘Report on Review of Law of Contempt’, The Law Reform
Commission of Australia, June 2003]
• Contempt- scandalizing the court – these terms still remain unclear. The uncertainty of
the law is justified by the need for flexibility; however the greater evil that comes
with this, cannot be ignored. Although, it is the administration of justice that this law
aims to protect, it often ends up being used to protect individual judges. [Mriganka
Shekhar Dutta and Amba Kak, “Contempt of Court: Finding the limit” NUJS L Rev
61(2009) ]
• 2006 Amendment- Section 13 - justification by truth can be a valid defence if the
Court is satisfied that it is in public interest and the request for invoking the said
defence is bona fide. Refer to Mid-day Newspaper Case [Court on its Own Motion v.
M.K. Tayal and Ors., MANU/DE/8520/2007.]