Courts and contempt powers

A case for a new approach in India to the law of contempt.

A. G. NOORANI

IN every democratic country governed by the rule of law, the law of contempt is being
liberalised. India presents the depressing spectacle of a trend in the opposite direction, launched
by its Supreme Court, no less.

The contrast is best illustrated by reading the observations of the Chief Justice of India (CJI), Dr.
A.S. Anand, on October 15, 1999, on Arundhati Roy, her essay published in Frontline and
in Outlook and her book The Greater Common Good (Narmada Bachao Andolan vs. Union of
India & Ors. (1999) 8 SCC 308), with observations made 30 years ago, on February 26, 1968,
by the Court of Appeal in England, comprising the Master of Rolls, Lord Denning, and Lords
Justices Salmon and Edmund Davies, on a distinguished barrister, Quintin Hogg, Q.C. M.P., in
respect of an article he wrote in Punch. It was entitled The Gaming Muddle and appeared under
the general heading Political Parley (R. vs. Commissioner of Polic e of the Metropolis, Ex parte
Blackburn (No.2) (1968) 2 Q.B. 150).

In January 1968, the Court of Appeal dismissed Raymond Blackburn's appeal against a Queen's
Bench Divisional Court's dismissal of his application for a writ of mandamus directing the
Commissioner of Police to assist in prosecuting violations of the Betti ng, Gaming and Lotteries
Act, 1963. While dismissing the appeal, the Court of Appeal criticised the way in which the law
had been enforced, the drafting of the various Acts, and their interpretation; in particular,
decisions of the Divisional Court. That drove a furious Quintin Hogg - later the Lord Chancellor,
Lord Hailsham - to write to Punch on February 14, 1968, vigorously criticising the Court of
Appeal's strictures on lawyers, Parliament, the police, and its earlier decisions; but, he in
correctly attributed to the Court of Appeal decisions which were, in fact, those of the Divisional
Court.

The salient passages read thus: "The recent judgment of the Court of Appeal is a strange example
of the blindness which sometimes descends on the best of judges. The legislation of 1960 and
thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the
leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they
do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambast
the police for not enforcing the law which they themselves had rendered unworkableand which is
now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an
impending dies irae on a series of parties not before them, whose crime i t has been to take
advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have
advised their clients. Blame Parliament for passing Acts which they have interpreted so
strangely. Everyone, it seems, is out of step, except the courts... The House of Lords overruled
the Court of Appeal... it is to be hoped that the courts will remember the golden rule for judges in
the matter of obiter dicta. Silence is always an option." (emphasis added, throughout).
Hogg's counsel admitted the factual error which was patent and inexcusable in a Q.C. The Court
of Appeal had given no decisions in gaming cases which were erroneous, nor one which was
overruled by the House of Lords.

Compare Hogg's censures to "some of the objectionable passages in the book The Greater
Common Good by Ms. Arunadhati Roy", which were quoted by Justice Anand, in his judgment
(paragraph 4; page 312). They read thus:

"I stood on a hill and laughed out loud.

I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the
opposite bank from where I could see, ranged across the crowns of low, bald hills, the
tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragi le
homes. I could see their fields and the forests behind them. I could see little children with
littler goats scuttling across the landscape like motorised peanuts. I knew I was looking
at a civilisation older than Hinduism, slated - sanctioned (by the highest court in the
land) - to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will
rise to submerge it.

***

Why did I laugh?

Because I suddenly remembered the tender concern with which the Supreme Court
Judges in Delhi (before vacating the legal stay on further construction of the Sardar
Sarovar dam) had inquired whether tribal children in the resettlement colonies would
have children's parks to play in. The lawyers representing the Government had hastened
to assure them that indeed they would and what's more, that there were seesaws and
slides and swings in every park. I looked up at the endless sky and down at the river rus
hing past, and for a brief, brief moment the absurdity of it all reversed my rage and I
laughed. I meant no disrespect.

***

Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge questions.
They are being taken hugely seriously by the State. They are being answered in one voice
by every institution at its command - the army, the police, the bureaucracy , the courts.
And not just answered, but answered unambiguously, in bitter, brutal ways.

***

According to the Land Acquisition Act of 1894 (amended in 1984) the Government is not
legally bound to provide a displaced person anything but a cash compensation. Imagine
that. A cash compensation to be paid by an Indian government official to an illite rate
tribal man (the women get nothing) in a land where even the postman demands a tip for a
delivery! Most tribal people have no formal title to their land and therefore cannot claim
 compensation anyway. Most tribal people - or let's say most small farm ers - have as
much use for money as a Supreme Court Judge has for a bag of fertiliser."

Ask yourself as to which of these two passages is sharper in criticism of the court, Quintin
Hogg's or Arundhati Roy's? Hogg's, by any test. He wrote in anger; charged the judges with
"blindness", with rendering a statute "virtually unworkable" by "unrea listic, contradictory and
... erroneous" decisions, also with failure to apologise though an apology was called for; and,
instead, criticised all others. And all this was based on an admitted factual error.

RAJEEV BHATT
The Supreme Court of India.

His article concerned violations of the law on gambling. Her

article, with peril to the lives and livelihood of thousands. Hogg
wrote in anger from the comforts of his office. Arundhati Roy
wrote in pain and anguish after visits to the site at no small d
iscomfort. Even if her disavowal of any "disrespect" to the judges
was not accepted, her sarcasm ("tender concern" of the judges) is
nowhere as offensive as Hogg's attribution of "blindness" to them.
In the context, the "laugh" was not in scorn for the j udges. It was
a bitter laugh at the tragedy she found - the illiterate tribal people having no legal documents to
claim compensation and who in any case, would have "as much use for money as a Supreme
Court Judge has for a bag of fertiliser."

To characterise the court's decision to vacate the stay on further construction of the dam,
whereby the entire place would be drowned by the waters of the reservoir, as one which
"sanctioned" the result is no worse than similar censures of its decisions even by academic
lawyers, indeed, by Judges of the court itself - both serving and retired. The writings and
speeches of Justice V.R. Krishna Iyer, a man of deep commitments, are replete with bitter
censures.

NOW, compare the way the Court of Appeal handled the Hogg case with the manner in which
the Supreme Court dealt with Arundhati Roy. Lord Denning said: "Let me say at once that we
will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer
foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism,
nor do we resent it. For there is something far more important at stake. It is no less than freedom
of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the
broadcast, to make fair comment, even outspoken comment, on matters of public interest... Mr.
Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. Th e
article contains an error, no doubt, but errors do not make it a contempt of court. We must
uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the
application." He did not hold it to be a contempt at all. The other two judges concurred. Thus a
Bench of three judges unanimously ruled that Hogg's article did not constitute contempt. They
did not rule it to be a contempt and forgave the contemnor out of magnanimity or after his apol
ogy, which was not called for in the first instance.
All three laid emphasis on freedom of speech; not the dignity of the court. The aspect of taste
was deemed irrelevant. Salmon L.J. said: "It is the inalienable right of everyone to comment
fairly upon any matter of public importance. This right is one of the pillars of individual liberty -
freedom of speech, which our courts have always unfailingly upheld.

"It follows that no criticism of a judgment, however vigorous, can amount to contempt of court,
provided it keeps within the limits of reasonable courtesy and good faith. The criticism here
complained of, however rumbustious, however wide of the mark, whether expressed in good taste
or in bad taste, seems to me to be well within those limits." If "the limits" had been drawn
narrowly, Hogg would have been found guilty. Salmon L.J. expressed the opinion that "he owes
no apology, save, perhaps, to t he readers of Punch for some of the inaccuracies and
inconsistencies which his article contains."

Edmund Davies L.J. was of the same opinion. Whether despite his great learning and his
distinction as a Queen's Counsel, Hogg paid proper respect to the standards of accuracy,
fairness and good taste when he was composing his Punch article may, un happily, be open to
doubt. But whether his article amounted to contempt involves different, and graver,
considerations. For my part also, inaccurate though the article is now acknowledged to be in a
material respect, I have no doubt that contempt has not been established, this application... My
conclusions regarding the fairness and good taste of the article in question are immaterial, and I
therefore refrain from revealing them."

However, while the Court of Appeal referred to Hogg with conspicuous courtesy despite his false
accusation of "blindness", Justice A.S. Anand referred to Arundhati Roy sneeringly. One is not
concerned here with the Narmada Bachao Andolan (NBA), which was a party in the litigation
before the court. Arundhati Roy was not. On July 22, 1999, the court made an order in which it
referred to statements by the NBA as well as to Arundhati Roy's article and her book and said:
"We have gone through the stat ements, the press releases, the article and certain portions of the
book referred to above. Prima facie, it appears to us that there is a deliberate attempt to
undermine the dignity of the court and to influence the course of justice. These writin gs, which
present a rather one-sided and distorted picture, have appeared in spite of our earlier
directions restraining the parties from going to the press, etc., during the pendency of the
proceedings in this court.

"However, before we decide to proceed any further, we consider it proper to appoint

an amicus to advise the court about the action, if any, which is required to be taken in this
respect as also in respect of the writ petition itself."

On October 15, 1999, the court delivered judgment after hearing the amicus and other counsel.
After quoting the offending passages (reproduced above from para 4) Chief Justice Anand said
(in para 5): "Ms. Arundhati Roy is not a party to the procee dings pending in this court. She has,
however, made comments on matters connected with the case, being fully alive to the pendency
of the proceedings in this court. Judicial process and institution cannot be permitted to
be scandalised or subjecte d to contumacious violation in such a blatant manner in which it has
been done by her" - violation of an order which bound the parties, not those who were strangers
to the proceedings.
Criminal contempt may take any of these four forms. Contempt in the face of the court, for
example, insulting the judge; publication prejudicial to a fair criminal trial or to civil
proceedings; scandalising the court; and other acts which interfe re with the course of justice.
The instant case involved comments allegedly prejudicial to the Narmada case before the
Supreme Court and "scandalising" the court (by denigrating it). All the forms must be tested on
the anvil of the citizen's funda mental right to freedom of speech and expression embodied in
Article 19(1)(a) of the Constitution. Clause(2) permits the state to impose, by law, only
"reasonable restrictions" on the right in the interests inter alia of "contempt of court". It is now
well settled that "the state", as defined in Article 12, includes the judiciary and it is as much
bound to respect the fundamental rights as the executive and the legislature. Clause(2) of Article
19 mandates the court to balance the competin g values of free speech and judicial authority,
with a tilt in favour of free speech.

IN Britain, there has been no successful application of the charge of "scandalising the court" in
the last 70 years; not since the New Statesman was hauled up for writing, very fairly, that Marie
Stopes had no hope of a fair trial before Justice A vory, a Roman Catholic opposed to birth
control, besides being a notoriously egotistic Judge. A noted authority holds that "the offence of
scandalising the court is now so unimportant in practice that it may appear fruitless to spend
much space in debati ng its justification" (Freedom of Speech by Eric Barandt; Oxford; 1985;
pages 222).

Or, are we to lapse into "cultural relativism" with the Privy Council and hold that liberalism is
all right for the whites but unsafe for us? Zahid F. Ebrahim's excellent article (Frontline;
October 8, 1999) tellingly cites Commonwealth and other cases on this aspect. In 1998 the Privy
Council noted in Gilbert Ahnee vs. D.P.P., in an appeal from Mauritius: "In England such
proceedings are rare and none have been successfully brought for more than 60 years. But it is
permissible to take int o account that on a small island such as Mauritius the administration of
justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising
the court is greater on a small island."

In the case of De Haes & Gijsels vs. Belgium, De Haes and Gijsels had published articles
accusing four Belgian judges of bias and had been prosecuted for contempt in Belgian courts.
The European Court of Human Rights ruled that "although Mr. De Ha es' and Mr. Gijsels'
comments were without doubt severely critical, they nevertheless appeared to be proportionate
to the stir and indignation caused by the matters alleged in their articles. As to the
journalists' polemical and even aggressive tone, which the court should not be taken to approve,
it must be remembered that Article 10 protects not only the substance of the ideas or information
expressed but also the form in which they are conveyed."

Article 10(2) of the European Convention on Human Rights permits restrictions by law on
freedom of expression which "are necessary in a democracy" inter alia "for maintaining the
authority and impartiality of the judiciary". This mandates, as Arti cle 19(2) of our Constitution
does, a balance between the two values.

Chief Justice Anand's judgment made not even an attempt to strike the balance; cited not a single
case; is charged with anger and written in intemperate language unedifying in any judicial
pronouncement, especially one of the apex court. No attempt was m ade to distinguish between
the two forms of contempt and then establish where Arundhati Roy had gone wrong, as is evident
in the introductory censorious para 5, quoted above. Neither factual inaccuracy nor bad taste is
relevant. Nor was any statement of hers held up to establish either "charge" specifically.

This is what Chief Justice Anand wrote: "While hyper-sensitivity and peevishness have no place
in judicial proceedings - vicious stultification and vulgar debunking cannot be permitted to
pollute the stream of justice. Indeed, under our Constituti on there are positive values like right
to life, freedom of speech and expression, but freedom of speech and expression does not include
freedom to distort orders of the court and present incomplete and a one-sided picture
deliberately which has t he tendency to scandalise the court." It is well settled that distortion of
the court's order cannot possibly amount to "scandalising" it.

He continued: "Whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she
decided to use her literary fame by misinforming the public and projecting in a
totally incorrect manner, how the proceedings relating to resettlem ent and rehabilitation had
shaped in this court and distorting various directions given by the court during the last about 5
years. The writings referred to above have the tendency to create prejudice against this court.
She seems to be wholly ign orant of the task of the court. The manner in which she has given a
twist to the proceedings and orders of the court is in bad taste and not expected from any
citizens, to say the least.

"We wish to emphasise that under the cover of freedom of speech and expression no party can be
given a licence to misrepresent the proceedings and orders of the court and deliberately paint an
absolutely wrong and incomplete picture whic h has the tendency to scandalise the court and
bring it into disrepute or ridicule."

Arundhati Roy had not "decided to use her literary fame by misinforming the public" or used
"the cover of freedom of speech". She simply exercised her right to freedom of speech. Her words
went far because of her fame. The Judges' remarks reek of bad logic, bad law, bad English...

How can the passages from Arundhati Roy's book quoted above possibly justify the charges
levelled by the Chief Justice lumped together so indiscriminately - "vicious stultification and
vulgar debunking", mis-information, bad taste, misrepresentation, sca ndalisation of the court
and distortion of the facts?

Chief Justice Anand ruled: "An offence of scandalising the court per se is one such qualification,
since that offence exists to protect the administration of justice and is reasonably justified and
necessary in a democratic society. It is not only an offence under the Contempt of Courts Act but
is sui generis." This ignores Article 19(2) and the ethos of free speech.

As for prejudice to a civil proceeding, that proceeding was in the apex court by judges of
experience, not before a jury. Is the public to forbear from discussing the merits of the Narmada,
meanwhile?
Section 5 of the English Contempt of Court Act, 1981 says: "A publication made as, or as part
of, a discussion in good faith of public affairs or other matters of general public interest is not to
be treated as a contempt of court under the strict liabil ity rule if the risk of impediment or
prejudice to particular legal proceedings is merely incidental to the discussion."

IN Attorney General vs. English (1982), the House of Lords held that a Daily Mail article by
Malcolm Muggeridge, which argued for a "Pro-Life" candidate in a byelection and in so doing
referred to an alleged practice among doctors of allowi ng deformed babies to die, was not in
contempt of the contemporaneous trial of Dr. Leonard Arthur on a charge of murdering a
Down's Syndrome baby. The Law Lords, who heard the case on appeal, echoed the Phillimore
report by stating that what Section 5 wa s intended to prevent was the "gagging of bona
fide discussion of controversial matters of general public interest merely because there are in
existence contemporaneous legal proceedings in which some particular instance of those
controversial mat ters may be in issue." They found that although Muggeridge's
article was likely to create serious prejudice in Dr. Arthur's trial, it met the requirements of the
Section 5 defence and was not, therefore, a contempt. In other words, they decided th at the
report was part of a bona fide discussion of a matter of public interest and the prejudice was
merely incidental to that discussion.

The Supreme Court's record on this branch of the law over the years has been disquieting. Chief
Minister of Kerala E.M.S. Namboodiripad was found guilty of contempt for calling the judiciary
"an instrument of oppression" and the judges as ones "guided an d dominated by class hatred,
class interests and class prejudices, instinctively favouring the rich against the poor" (AIR 1970
S.C. 2016). But Union Law Minister P. Shiv Shankar was let off despite his defamatory
remarks against the Supreme Court spe cifically. "The Supreme Court composed of the elements
from the elite class had their unconcealed sympathy for the haves; i.e. the zamindars" and "anti-
social elements, i.e. FERA violators, bride burners and a whole horde of reactionaries have
found their haven in the Supreme Court" (P.N. Duda vs. P. Shiv Shanker, AIR 1988 S.C. 1208).

The late H.M. Seervai pointed out the lengths to which Justice Sabyasachi Mukharji went to
exonerate the Minister (Constitutional Law of India, Fourth Edn., 1991; Volume 1; pages 75).
The court also let off another influential, Mohammed Yunus. He had attacked its ruling in the
National Anthem case. But he also said that the Judge who held that its singing was not
compulsory (Justice Chinnappa Reddy) "had no right to be called either an Indian or a Judge"
(AIR 1987 S.C. 1451). Seervai remarked: "I f a humble citizen had said of the Supreme Court"
what Shiv Shanker and Mohammed Yunus had said, "the public familiar with the recent
functioning of the Supreme Court would have had little doubt that the humble citizen would have
been found guilty of con tempt and punished after the Supreme Court gave an eloquent lecture
on its duty to uphold the dignity of the Supreme Court and its Judges in high esteem" (ibid; page
765).

The court's recent practice of oral edicts to the press not to report the names of the Judges who
made observations during the proceedings is unconstitutional. The other practice, directing the
parties not to ventilate their grievances in the press pendi ng the proceedings, is sound in
principle but needs to be qualified. What if the Chief Minister of Karnataka, S. M. Krishna, had
spoken on the Alamatti dam which exercised his State in the Assembly and the press had
reported the speech? Neither he nor th e press could have been hauled up.

Judges are public servants, not bosses*

MAY 02, 2008
V.R. Krishna Iyer

Contrary to what the Chief Justice of the Supreme Court recently said, the Right to
Information Act does cover constitutional authorities.

Absolute power and egregious error will be totally incompatible, even when the matter
involves the judiciary. Justices of the court are no higher than great Homer who, as
Lord Byron put it, sometimes nods off. The robed brethren on the High Bench do
sometimes blink.

Perhaps it is a rare occurrence, but this is what happened when the Chief Justice of
India, the countrys highest judicial functionary, claimed that the Chief Justice is not a
public servant but a constitutional authority. It may be true. But every judge is oath-
bound to dispense public justice without fear or favour, affection or ill-will. Public
justice is public service, and obviously judges are public servants. The Right to
Information Act, therefore, does cover constitutional authorities, contrary to what the
Chief Justice said. His absolutist obiter, coming as it does from a legal luminary for
whom I have high regard, is bizarre and it is a faux pas. Unfortunately, he has, in my
legal perception, slipped into an accidental innocence of jurisprudence.

This may, however, be justly overlooked, having regard to the heavy burden he bears.
He has to manage the court, handle a load of judicial work, frequently make ceremonial
journeys, give erudite speeches and interviews, and bear the tremendous strain involved
in selecting higher judicial personnel. Under public pressure or out of vanity, judges
often undertake a tremendous amount of non-judicial work, sacrificing valuable time so
necessary to study dockets, hear prolix and logomachic arguments, and write (although
some of them do not do that) judgments laying down the law of the land. Considering
this onerous background, we must forsake criticism of occasional forensic failings.

Grave goof-up

How else can one explain a grave goof-up, made unwittingly, in his saying that judges
are not public servants but constitutional authorities? The latter are, in simple
semantics, a higher category of public functionaries. They are a finer, nobler group of
public servants, democratically more accountable and qualitatively more liable than
others to furnish information to the people about themselves and their functions, if it is
relevant to the public interest.

All important constitutional authorities, such as Judges, Ministers, the Comptroller and
Auditor General, the Accountant General, the Election Commissioner, and the Speaker
of the Legislature, are a fortiori public servants with superior and more profound
obligations. These are not two antithetical categories but are, in public law, of the same
class. My candid constitutional camera perceives both as owing public duties and being
liable to pay penalties for any failures subject to the limitations laid down by law.

The great judge Jerome Frank, in his book Courts on Trial, said he had little patience
with, or respect for, the view that it is dangerous to tell the public unpalatable truths
about the judiciary. He wrote: I am unable to conceive that in a democracy, it can
ever be unwise to acquaint the public with the truth about the workings of any branch
of government. It is wholly undemocratic to treat the public as children who are unable
to accept the inescapable shortcomings of man-made institutions The best way to
bring about the elimination of those shortcomings of our judicial system which are
capable of being eliminated is to have all our citizens informed as to how that system
now functions. It is a mistake, therefore, to try to establish and maintain, through
ignorance, public esteem for our courts.

Democratic instrumentality

I stand solidly for a judiciary that is a democratic instrumentality, not an occult class of
divinity. David Pannick, QC, observed: We need judges who are trained for the job,
whose conduct can be freely criticised and is subject to investigation by a Judicial
Performance Commission; judges who abandon wigs, gowns and unnecessary linguistic
legalisms; judges who welcome rather than shun publicity for their activities.

Information about judges wealth, other activities and even private doings, if they affect
judicial duties, cannot be kept secret. To cite David Pannick again: The judiciary is not
the least dangerous branch of government They send people to prison and decide
the scope and application of all manner of rights and duties with important
consequences for individuals and for society. Because the judiciary has such a central
role in the government of society, we should (in the words of Justice Oliver Wendell
Holmes), wash. with cynical acid this aspect of public life. Unless and until we treat
judges as fallible human beings whose official conduct is subject to the same critical
analysis as that of other organs of government, judges will remain members of a
priesthood who have great powers over the rest of the community, but who are
otherwise isolated from them and misunderstood by them, to their mutual
disadvantage.

Let us not confuse between the papacy and the judiciary.

Judges, like Ministers, Governors, Presidents, Speakers and a host of other

functionaries, are constitutional authorities. And, most emphatically, they are public
servants, not absolutist bosses with vast political power but above democratic
accountability. They should have functional transparency and be fundamentally
incorruptible.

Indeed, judges must be free from graft, nepotism, abuse of power, and arrogance. They
should be the paradigm of clean personal life, open and accessible custodians of public
justice and paragons of moral excellence and humanist simplicity, sans consumerist
craving and greed to grab. They are a higher cadre with a more sublime calibre.

Trustees of judicial power

In short, justices wear robes on oath under the Constitution as trustees par excellence of
judicial power, of course within their legal jurisdiction and constitutional jurisprudence.
The Supreme Court, in a ruling of the Constitution Bench in K. Veeraswami vs. Union
of India (1991 SCC P-655), held that the expression public servant, used in the
Prevention of Corruption Act, is undoubtedly wide enough to denote every judge,
including judges of the High Court and the Supreme Court. Judges are under the law,
not above it. Your public life, and even private life to the extent it influences your
judicial role, should be accountable and transparent to the public. A plea of secrecy is
sinister allergy. Democracy is a disaster if the President, the Speaker, the Prime
Minister and the Chief Justice hide their wealth and dealings from the scrutiny of We,
the People of India, the sovereign of the nation.

To err is human and to forgive is divine. Chief Justice K.G. Balakrishnan is a fine
citizen, a sublime soul, a versatile jurist, a graceful instance of dignity and refinement.
If I have erred in disagreeing with his disclaimer of judges being public servants, he
will forgive me. But judges certainly are not divine.

The Indian judiciary must accept Frankfurter, that frank and superlative U.S. Judge who
wrote: Judges as persons, or courts as institutions, are entitled to no greater immunity
from criticism than other persons or institutions. Just because the holders of judicial
office are identified with the interests of justice they may forget their common human
frailties and fallibilities. There have sometimes been martinets upon the bench as there
have also been pompous wielders of authority who have used the paraphernalia of
power in support of what they called their dignity. Therefore judges must be kept
mindful of their limitations and of their ultimate public responsibility by a vigorous
stream of criticism expressed with candor however blunt.

Our judges shall remain awake and alert and accept the Preamble to the Constitution
that makes clear that this republic is socialist, secular, democratic.

We meanwhile need a judicial appointments and performance commission of supreme

stature, its members selected from among the highest judicial, political and public-
spirited wonders of popular confidence.

This is essential to ensure that the finest and most independent members of the
fraternity would exercise judicial power, and that they would be held in the highest
esteem by the enlightened wisdom of the people of India. This desideratum demands a
diamond-hard constitutional code that covers every dimension of judicial performance.
Remembering EMS Namboodiripad & The Contempt Judgment By Justice
Hidayatullah

BY: NAMIT SAXENA MARCH 26, 2017...

I recently had a conversation with my friends on how Justice Hidayatullah imposed a
fine of Rs. 50 for contempt of court in 1970 on a former communist chief minister.
None of us then realised that this month celebrates 108th year of that politicians
birth.

he first elected communist government in the world was formed in Kerala in 1957
when Sankaran Namboodiripad was appointed as its first chief minister. Born in 1909
to an affluent Brahmin family, he was cushioned by Brahmin deities. Namboodiris
occupy... a very high position amongst all other communities and have maintained
cordial relations with the ruling establishment for long....

His leaning towards the Left at last culminated into membership of the Communist
Party of India in 1940, and Sankaran emerged as EMS Namboodiripad. Ten years
later, after Independence and a sustained political movement, he was sworn in as
the first chief minister of Kerala in 1957....

Then Prime Minister Jawaharlal Nehru was not immediately alarmed at the prospect
of communists in power, but later on he realised so and in the next two years, a
manufactured law and order crisis overwhelmed Kerala to justify the imposition of
Presidents rule in 1959....

Nevertheless, EMS refused to be cowed, and 10 years later, during his second stint in
power, land reforms became a reality....

It was during his tenure then as the Chief Minister on 09.11.1967, that EMS at a
press conference in Thiruvananthapuram gave his famous Judiciary as an instrument
of oppression speech based on teachings of Marx and Engels....

EMS reportedly called judges as dominated by class hatred, class interests and class
prejudices, instinctively favouring the rich against the poor. Based on reportage of
the event in Indian Express, an advocate of the High Court of Kerala commenced the
proceedings.

EMS filed an affidavit explaining his press conference, stating that he did not offend
the majesty of law, undermine the dignity of courts or obstruct the administration of
justice....
Instead, he argued that what he said was a fair criticism of judiciary and covered by
freedom of speech and expression....
The high court in 1968, by a split verdict of 2:1, found him guilty of committing
contempt of court....
Justice Mathew dissented. Justice Raman Nair and Justice Krishnamoorthy Iyer
convicted and sentenced EMS for a fine of Rs. 1,000 or simple imprisonment for one
month....

Under the certificate granted as per Article 134(1)(c) of the Constitution, the matter
reached the doors of the Supreme Court. A bench comprising Justice Hidayatullah,
Justice Mitter and Justice AN Ray in 1970, in a very interesting judgment, held that
EMSs understanding of Marx, Engels and Lenin was incorrect and that he stood
misguided and misunderstood....

Through an arguably incorrect judgment authored by Justice Hidayatullah, the

Supreme Court also convicted EMS, however, reduced the fine to Rs. 50....
I do not wish to comment on the merits of the case, but I must today revisit certain
observations made by Justice Hidayatullah while convicting and sentencing a political
leader by inserting his own understanding of the issue....
My friend pointed out during our conversation that judges must not decide on the
basis of their views....
It is exactly what happened here. Let us see how: In Para 15 onwards [(1970) 2 SCC
325] when Justice Hidayatullah instead of checking whether what EMS said
amounted to scandalising the court, went ahead with a lecture on interpreting Marx,
Engels and Lenin.

Justice Hidayatullah wrote the next 13 paras, supplanting his views on the subject,
and in Para 28 came to a conclusion that either EMS did not know or he deliberately
distorted the writing of Marx, Engels and Lenin for his own purpose....
Instead, with greatest respect to the institution, if the way EMS interpreted
communist teachings was incorrect, Justice Hidayatullah was equally unjustified in
convicting a citizen based on how he interpreted the same teachings by same
people!...

Although how Justice Hidayatullah supplanted his views on class struggle,

bourgeoisie, proletarians and his interpretation of history of domination of ruling
class is debatable, it was incorrect to insert his observations and instead of judging
the matter on the contours of free speech and contempt of court. Nevertheless,
much water has flown below the bridge and now history carries in its sweep that a
true leader of the masses was convicted because of expressing his views....

Namit Saxena is a Lawyer practicing in the Supreme Court of India....