A B c D E F G H 691 t. M. SANKARAN NAMBOODIRIPAD v. T. NARAYANAN NAMBIAR July 31, 1970 '[M. H!DAYATULLAH, C.J., G. K. M1TTER AND A. N. RAY, JJ.] Contempt of Court-What is-Chief Minister of State making re111ark.1 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 am/ Engels--Jf guilty of contempt-Constitution of India, Art. 19(1) and (2)-Scope of in relation to contempt of court.
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 criti· cal remarks relating to the judiciary referring to it inter alia as "an instru- ment of oppression" and the Judges as "dominated by class hatred, class prejudices'', "instinctively" favouring the rich against the poor. He also. stated that as part of the rulii\g classes the judiciary "works ·against workers, peasants and other secttons 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 the.reafter in proceed, ings commenced in the High Cour~ the apJ>Zllant was called upon to show cause why he should not be comnli'ted for contempt. Jn an affidavit in reply the appellant stated that the reports were "substantially correct", though incomp1ete in some respect5. He supplied some omissions and pleaded want of intention to show disrespect to the judiciary and justifica· tion on the ground that the offence charged could not bo held to be com- 1 milted, 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 judae- ment the appellant was convicted for contempt of court and fined Rs. IOOU/- or simple imprisonment for one month. Jn appeal to this Court it was contended on beh"lf of the appellant that the law of contemp!· must be read without encroaching upon the guarantee of freedom of spezch and expression in Article 19(l)(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 inlertere with the courts and administration of justice but also those which have that ten· dency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administratil)n of justice, there was no doubt that the appellant was guilty of contempt of court. Whether he misunder- stood the teachings of Marx and Engels or delibera'-.ly distorted :he!T. was OGt 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 SUPREME COURT REPORTS [1971] 1 s.c.R. in the ey~, 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, Er.gles and Lenin.
He had misunderstood the attack by them on state and the laws as involving an attack on the judiciary, No doupt the courts, while upholding the Jaws 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 doe3 not warrant an encroach- ment. To charge the judiciary as an instrument of oppression, the judges as guided and dominated by class hatred, class interests ·and class preji.Jdices. instinctively favouring 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 calcula'ed to raise in the minds of the people a general di'isatisfaction with~ and distrust of all judicial decisions. It· weakened the authority of law and law courts. [712 E] While the spirit underlying Art 19) ( l)(a). mus! have due play, the Court could not ove;look the provisions of the second clause of that ·Article. Its provisions are to lie re.ad with Arts. 129 and 215 which specially confer on this Court· aμct the High Courts the power to punish for contempt of themselves.
Although Art. 19( I)( a) guarantees com- plete 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 re.Jation 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. f704 CJ Samuel Roth v.
United States of America, I L.EJ.2<l 1489 at 1506; Arthur Tenniniel/o v. Ci;<y of Chiea110. 93 L.Ed. 1131 a't 1134; Charlolle Anita Whitney v. People of the State of Californio, 71 L.Ed. 1095, New York Tin1es Cotnpany v. L. B. Sulivan, 11 L.Ed. 2d. 686; and Kcdar Nath Singh v. State of Bihar, [1962] 2 Supp. S.C.R.
769. referred to. While it is true that Loru 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 '!5 Sca11da!un1 lusticiae Curiae or scandalising the Judges. had fallen into disu<e in England. as pointed out by Lord Atkin in Andre Paul Terence A111hard v.
The Attorney General of Trinidad, and Tobago, A.l.R. 1936 P.C. 141 at 143, the observations of Lord Morris were disproved within a year in The Queen v. Gray. [19001 2 Q.B. 36 at 40. Since then many convictions had taken place in which offence was held to be commi:tcd when the act constituted scandalizing a Judge. [703 DJ The Govenunent Pleader. High Court. Bo111hay v. Tu!sidas Subhanrao Jadhav. I.LR. [19381 Born. 179; explained.
In re : Basudeo Prasad, Cr. Appeal No. 110 of 1960 decided on May 3~ 1962; distifl.guished. . . A B c D E F G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 56 of f968. H Appeal from the judgment and order dated February 9, 1968 of !he Kerala High Court in O.P. No. 5032 of 1967 (Contempt). E. M. s. v. NAMU!AR (Hitlayatu/lah, C.J.) 6 99 A V. K. Krishna Menon, D. P. Singh, N. Nettar and V. I. ll c D E F G H Francis, for the appellant.
A. V. V. Nair, for the respondent. M. R. K. Pille1i, for the intervc,ner. The J udgmcnt of the Court was delivered by Hidayatullah, C. J. Mr. E. M. S. Namboodiripad (former Chief Minister of Kerala) has filed this appeal against his convic- tion and sentence of Rs. 1000 fine or simple imprisonment for one month by the High Court of Kerala for contempt of Court. The Judgment, February 9, 1968, was by majority-Mr.
Justice Raman Nair (now Chief Justice) and Mr. Justice Krishnamoorthy Iyer formed the majority. Mr. Justice Mathew dissented. The case has been certified by t!iem as fit for appeal to this Court· under Art. 134( 1 )(c) of the ~·onstitution. The convictio11 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 news- papers. 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 Indian Express. The appellant showed cause against the notice sent to him and in an elaborate affidavit stated that the report 'wus substantially correct, though it was incomplete i•1 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. Nambudirinad told a news conference this moniiflil. 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-dress- ed and illiterate person the judge instinctively favours lhc former, the Chief Minister a llegcd.
The Chief Minister said that election of Judges would he a better arrangement. hut unless the basic state set up is changed, it could not solve the problem. 700 SUPREME COURT REPORTS [1971] l S.C.R. Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practised. '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. Nambu- diripad 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 judii::iary suo motu al the fag end of his news conference the Chief Minister said so many reports have appeared in the' press that Marxists like himself.
Mr. A. K. Gopalan, and Mr. lmbichi Baba (Transport Minister) were mak- ing statements critical of the judiciary "presumably with the idea that anything spoken about the court is contempt of court". )-lis party had always taken the view, the Chief Minister said that judiciary is part of the class rule of the ruling c)asses. 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 essen- tially serve the exploiting classes.
Even where the judi- ciary 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 insti- tution 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 ·vith the people. Even with regard to Judges confidential records are being kept why ? The judge i:; subject to his own idiosyncracies and prejudices. "We hold the view that they are guided by individual idiosyncracies, guided and dominated by class interests, class hatred. and class prejudices.
In these conditions we have not pledged ourselves not to criticise the judi- ciary or even individual judgments." This did not mean, he explained that they could challenge the integrity of the individual judge or cast reftectiOl)S on individual judgments, the Chief Minister contended. He did. not subscribe to the view that it was an as- persi9n on integrity when he said that judges are guided A D D F G II A B D ·~ F G H E.
M. s. v. NAMDIAR (Hidayallllla/1, 'e.J.) and dominated by class hatred and class prejudices. "The High Court and the Supreme Court can haul me up. if they want" he said". 70 I The atlidavit which he filed later in tile High Court explained his observations at the press conference, supplied some omissions and pleaded want of intention to show disrespect and justification on the ground. that the offence charged could not be held to be comn1iltcd, in view of guarantee of freedom of speech and expres- sion 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 objectiom1ble· which could be termed contempt of court. The other two learned Judges took the oppo- site view.
Judgment was entered 011 the basis of the majority view. In explaining his press conference the appellai!t 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 ad111inistration in an effort to make it conform lo the peoples· objective of a dcmocractic and egalitarian society ba~cd on socialism.
He considered that it was not only his right but 8lso his duty to educate public opinion. He claimed that the statement read as a whole amounted to a fair and rea·· son;1blc criticism of the present judicial system in our country, lhal il was not inlcndc~ lo 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 exer- cised by other parties in India. He denied that it w<l~ for the courts to tell the people what the law was and ;isserlcd that the voice of the Legislatures should be supreme. He, however. found his party at variance with the other parties in that according to the political ideology of his party the State (including al! 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) st1'i> REM E COURT REPORTS (1971] 1 S.C.lt 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 permis- A sible; and B (d) education of the people that the State (including the judiciary) was an instrument of exploitation of rhe majority by the ruling and exploiting classes, wa~ 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 act' which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when con- tempt 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 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, comme·m on pending proceedings with a tendency to pre- judice fair trial, obstruction: lo 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 administra- tion 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 ~untended that the law of contempt must be read without en- croaching upon the guaranteed freedom of speech and expression in Art. 19 (1 )(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 JJut them before the people and lastly the harm done to the c D E F G H A B c D E F H E.
M. s. \'. NAMRIAR (Hidayat11/lah. C..T.) 70:1 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.
A11by11( 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, Hig/1 Court, Bombay v. T11/sklas S11bhanrao Jadhav(') and the obser- vations of Lord Denning M.
R. in R. v. Metropolitan Police Comm1'.fsioner('). It is no doubt true that Lord Morris in [ 1899] A.C. 549 at p. 56 I observed that the contempt of court k[\own from the days of the Star Chamber as Scanda/11m J11sticiae Curiae or scandalis- ing the judges, had fallen into disuse in England. But as pointed out by Lord Atkin in Andre P(lll/ Terence Ambard v. The Attor- ney General of Trinidad and Tobago(1) the observations of Lord Morris were disproved within a year in The Queen v.
Gray('). 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 court' together.
All it said was that action should not be taken in such' a case. lf the Chief Justice intended laying down the broad proposition con- tended 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 was also influenced by the unconditional apology and therefore discharged the rule. Another case cited in this connection may be considered here.
Tn Criminal Appeal No. 110 of I 960 (In Re Ba.mddeo 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 re- mark was made after the report of the law Commission was pub- (! I LR. [1899] A. C. 549 ill 1.L.R. [1918] Bom· 179. ()) (1968) 1 W.L.R. 1104. (4) A.l.R. 1916 P.C'. 141 at 141. (5) (1900] 1 Q.R Jn al 40. slll'Rl'M r COlJRT REPORTS [1971] 1 S.C.R. 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 1udgcs and that the remarks were within the proper limits of public criti- cism 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 derision must be rc•ached in the context' of what was clone or saiil The appellant has contended before us that the Jaw of con- tempt should be so applied that the freedom of speech and ex- pression are not whittled down. This is true. The spirit ur.der- lying Art. 19(l)(a) must have due play but we cannot over- look th.e provisions of the second clause of the article.
While it is intended that there should be freedom of speech and eJ!:pression. it is llso intended that in the exercise. of the right, contempt of court shall not he committed. The words of the second clause arc "Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing Jaw or prevent .the state from making any law. in so far as such Jaw im- poses reasonable restrictions on the exercise of the right conferred by the sub-clause ........ in relation to con- tempt 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) guaran- tees 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 intend- ed 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 con- tempt or that attacks upon judges and courts will be condoned.
Mr. V. K. Krishna Menon read to us observations from Sa;11111•/ Roth v. l!11ited Stales of Ameri'ca( 1 ), Arthur Termin;elln v. City of Chicago{°). Chadofle Anita Whitney v. Penep/e of the State of California(") and Ne11· York Time.1· Company v. L. B. Su/lil'an (') on the high-toned ohjectivc in guaranteeing freedom of speech. We agree with the ohservations and can only say that' (I) H .. rd.2d 14S9 n1 ij06. (2J 93 LM rd.
I 13 I nt I 134. (11 71 L. ed. !095. (41 It L. ed. /d.
616. A B c D E F G H A c D E F G H E. M. s. 1'. NAMHIAR ( Hidaya111//ah, C.J.) 70 5 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. The observations of this Court in Kedar Nath Singh v. State of Bihar(I) in connection with sedi•i.on 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 Ml!rX and Engels. Indeed he claims to be descended from the last philosophe and seeks to educate the exploited peo- ples 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 ins- trument which the exploited majority can use against these classes. Tn this transformation he wish~s to make the state wither away and with the state its organs. namely. the Legislature, the Execu- tive 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( l) which guarantees freedom of speech and expression.
The law of contempt, he says, cannot be used to d.eprive 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" favouring the rich against the poor. He said that as part of the ruling classes the judiciary "works against workers. peasants and, ofher sections of the working class.s" 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 sub- mission 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 in 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 an( insulted' labouring masses. Marx wns neither first nor alone in this. B~fore him the Judeo- Christians demanded social justice. Others who preached social (t) [1962] 2 Supp. SC.R.769 706 SUPREME COURT REPORTS [1971) 1 S.C.R. equality and denounced social injustice were the Utopian Socialists A and the ·Christian Socialists.
They had all pointed out inequali- ties of ci!vilization based on urban industrial development. We had thu; Auguste Comte's Cours de phi/osophfe positive, Feuer- bach's His'tory 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 adopt~d the Hegelian dialectical form to explain how the capitalist society had arisen and showed how it would meet its fall.
His view was that it nursed within itself the germ of its own destruction. In his classic book Das Kapital he d.isclosed the clues for the transition from capitalism to socialism. His labour theory was that the capita- 1.;st 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 capita- list.
In t!1is 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 i_ncreased unemployment lead- ing to reduction of wage3. in this way the means of production passed into the hands of a few. Marx saw that this led to tensions which Marx thou~ht would ultimately destroy the capitalist sys- tem.
He saw the Revolution drawing nearer which wm!ld destroy 'classes' and the exploitation of man by man. There was in his view one obstruction to the triumph o.f the working classes and that was government established by the capitalists who could frame laws to enforce the difference:;. From this stemmed his hostility to the state. its government and its laws. The Communist Manifesto, which spoke of clao.s struggle, particularly between the bourgeoisie and the proletarians gave a history of the domi,Dation of the ruling classes converting ev~ryone not belonging to itself into paid wage-labourers.
He said that these reactonaries were gearing all production to their own benefit and oower. Describin" the communists in this con- text. the Manifesto said that they had no separate interests but represented the proletariat as a whole. irresoective of nationali- ties and that the class struggle was universal. The communists were to settle the lines of action and their aim was abolition of property- not propertv of the common man but the bourgeois pronerty of the capitalist created bv surplus from wage-labour ""'' esulting in accumulation of capital in the hands of the capi- talist.
According to the communists. this c;1pital became not a nersonal but social oower and the fi<'ht visualised in the Mani· festo was the termination of its cla" character. Wage-labour would thus leave no surnlus. nor would it lead to accumulation of more wage-labour yielding still greater sumlus hut the gains of B c D E F G H B c D E F E. M. S, \', NAMBIAR (Hidayat11/lah, C.J.) 707 produc:ion would go to enrich labour in the communist society.
Freedom according to the Manifesto never meant the abolition of property i11 /Oto ~bu_t the abolition of the bourgeois individuality. What 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 uescribed as the largest and poorest class.
Engels in his Analysis of Socialism explained the different types but we are not concerned with them here. The radicals' appeal followed the forces of reaction releJsed in the 1880s by Tzar Alexander III. The Populists of Plekhanov were routed and driven out. Thea in 1890s the young iniellectuals took up the cause of socialism and Marxism urovided the answer where the moderation and escapism of the Populists had failed.
The former was based on a scientific ap- proach while Populism was empiric and tended to make Russia. as Bulgakov wrote, 'a peasant and crude country'. The Populists based themscives 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 ol the appellant when he made his pronouncements. We are doubt- ful if he has fully appreciated the literature, if he has read it.
Lenin's teachings on the State had remo'i'ed the distortions of Marxism froKI the minds of the people. He quoted long extracts from Marx and Engels to establish his points. Lenih first took up Engel's Origin of the Family, Privat~ 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.
Ac- cording 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 distor- tion which had crept into Marxism was that the State was regarded .as an organ for the reconciliation of the classes. Lenin reinter- preted 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 re- volutionaries were exactly the converse. The disputes which have arisen in our country over the in'loil- ability cf rrop~rty as a fundamental right have the same founda- tions: One side views that the chapter on Fundamental Rights re- conciles. through itself, the basic and fundamental class antago- nisms 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 surRP.ME COURT REPORTS [1971] I S.C.R. the legislature. a continual power of rcadjustme11t throu¥h laws a.nd amendments or the Constitution. Both views do not accord with the Communist Manifesto and hence the cfotrust of the Constitu- tion by the communists disclosed hy the appellant. Lenin, however. thought that the State de.generated into an instrument for the exploitation of the oppressed classes and wielded special public powers to tax and maintain armies.
E,ngels thought that this made the State stand above society and the officers 01· the State were specially protected as they had the protection of the laws. From this sprung his hostility to the State. Engels sumni.~d it up thus : 'The State is by no means a power forced on "iciety. from without. Neither as little is it 'the reality of the ethical idea". 'the image and reality o.f reason· as Hegel maintains.
The state is a product of society at certain stage of development: it is the admission that this sxiety has become entan<!led in an insoluble contradiction with itself, that it is" cleft into irreconcilable antagonsims which it is powerless to dispel. Rut in order that these antagonisn1s. classes \.vith conflicting econon1ic interests. might not consume themselves and society in sterile struggle, a power seemingly standing above society tc- comes necessary For the purpose of moderating the con- flict, of keeping it within the bounds of 'order".
And . this power, arisen out of society. but placing itseU ab<lve it, and increasir,gly alienating itself fr<im it. is the stak.". Leni.n resumed thi~ thought ftnther thus : "This expresses with perfect clarity the basic idea of Marxism on the question of the historical role and mean- ing of the state. The State is the product and the mani- festation o: the irreco11cilabili1y of class antagonism>.
The state arises when, where and to the extent that class antagonisms objectively cannot be reconciled. And, con- versely, the existence 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 ol the oppressed classes. The Paris Commune of 1871 had stated its conclusions how the state gets above society but it was blurred in . a rcacticllary manner later by Kautsky in 1912.
Lenin cleared the misconce[ltion in an exposition of Engel's philosophy : " ....... As the sJatc arose from the need to hold class antagonisms in check. but as it arose, at the same time, in th~ midst of the contlict of these classes, it is, as a A ll (' f) F G II A II c n E F G H r. M. s. '" NAMRlAR ( llida\'flflllla/1, C.J.) rule, the state of the most powerful economically domi- nant class, which through the medium of the 'tare. becomes also the politically dominant class and thus acquires means of holding down and exploiting the oppressed classcss ........ the modern representative state is an instrument of exploitation of wage labour by capital." · f'ngcls 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 F.xchangc." 709 Lenin gave the example that "at the present time, imperia· ]ism 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".
J-1~ concluded that "a democratic republic is the best possible political shell for capitalism" and that "it establishei; 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 'wither- ing away of the state'. Although Leni.n thought that Engel's doc- trines were an .adulteration of Marxism. he was not right.
Marx himscl.f 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 rower properly so-called. since political power is pre- cisely the oflicial expre"ion of antagonism in bourgeois society." Marx and Engels in the Manifesto had considered the true state to be 'the pro'etariat organised as the ruling class'.
It was the Kau'.skyites (the Dictatorship of the Proletariat) who, misunder- standing 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. In thi, light for power· the Communist Manifesto gave a purely ab ;tract solution. It was substitution of the commune for the bourgc:Jis state mad1inery and a fuller democracy.
The Army 710 I SUPREME COURT REPORTS [l971] l was to be replaced by armed people, the ofticials 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 execu- tive and the legislature at the same time. The principles were for- mulated 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 sl!premacy. 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 peo- ple were to go, only Jaws 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 con- demned 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 ubiquitous 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 sub- servience to succeeding J!OVernments, and, therefore, be elected In one of his letters to the Spanish Federal Council of the Inter- national Workingrnen's Association, London, February 13, 1871. he: talked <X the powet" of the po5sessing classes-the landed ariSlocracy 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 annv. 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 A B c D F F G H A B c D E G H t. JI!. s. \'. NAMBIAR (Hidayatullah, C.!.) 711 and the Jaws 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 uppellant quotes them as saying.
We have summarized into a very small compass, many thou- sands 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. W.z have done so because Mr. V. K. Krishna Menon sneared that many people learn about communism 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 Jaws and changes in society, there was thus no need to castigate the judges as such beyond saving that the judicial system is the prop of the state. The courts in India are not .rni generh.
They owe their exis- tence. from. powers and jurisdictions to the Constitution and the laws. The Constitution is the supreme law and the other Jaws 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 in- terests are apparent.
The actio