One cannot but feel amused at the thought that there was indeed a time when a judge felt that the surest way to vindicate the Court’s dignity and prestige was to intellectually expose the detractor.

Sanjoy Ghose


Kerala, marketed as “God’s Own Country”, was the first state where a Communist Party was democratically elected to govern. EM Sankaran Namboodripad or EMS as he was popularly known, with the support of five legislators from outside, was sworn in as Chief Minister of a Leftist government, though he hailed from a traditional landlord family.EM Sankaran NamboodripadThis is the story of the legal tangle that engulfed him when he chose to speak his mind at a Press Conference on November 9, 1967 in the capital city, which then went by the name Trivandrum.


EMS was in full flow. Citing Marx and Engels, he informed the gathered reporters that the judiciary was an instrument of oppression. He elaborated that judges were “guided and dominated by class hatred, class interests and class prejudices and where evidence is balanced between a well-dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favours the former.”


With this, EMS built his case for election of judges as presently the judiciary was “against workers, peasants and other sections of the working class.”


Election of judges as presently the judiciary was “against workers, peasants and other sections of the working class.”EM Sankaran NamboodripadWhen asked whether what he said was contempt, the Chief Minister said that he had not challenged “the integrity of the individual judge or cast reflections on individual judgements”. For good measure, EMS signed off with,
“The High Court and the Supreme Court can haul me up, it they want!”


T Narayanan Nambiar, an advocate, initiated contempt proceedings against EMS in the Kerala High Court, by filing a sworn affidavit on the basis of an Indian Express news report. Not much is available in the public domain on the litigant who arrayed Independent India’s first sitting Chief Minister as a contemnor. 
The Kerala High Court had noted that he was “a member of the Bar Councils of India and of this State’s, acting, it is said, at the instance of the latter body”. There is one Nambiar by the same name who had contested the 1957 Kerala Assembly elections on a Congress ticket and had lost in the Madayi constituency. Could this be the same person?
When a three-judge Bench of the High Court took up contempt proceedings against the sitting Chief Minister, he filed an affidavit contending that he had said nothing new. He had merely given expression to “Marxist Philosophy” which was included in Chapter 5 of the Programme of the Communist Party of India (Marxist).
EMS’ defence alas appealed only to a third of the bench – Justice KK Mathew penned a 43-page dissent, which Upendra Baxi calls seminal, as his two brothers, Justices Raman Nair and Krishnamoorthy Iyer, remained unmoved.
Justice Mathew, who would subsequently be elevated to the Supreme Court, wrote:
“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 KK MathewGadbois claims that Matthew was suspected by his brother judges to be a “communist” sympathiser. He goes on to observe:
“Matthew told me that was not true. He described himself as a Leftist and as less supportive of private property rights than most of his colleagues in Kerala and Delhi. He said the Communist label gained currency particularly after his dissent in the EMS Namboodripad contempt case.”
By majority, EMS was held to be in contempt and was sentenced to a fine of Rs 1,000 or simple imprisonment of one month.
EMS was determined to shake off his convict tag. The servant of the people looked to Bhagwan Das Road. A legendary litigant settled for a legendary lawyer. The leader of Malayalees landed up at the doorstep of someone who had appealed to Nehru, and, he had Nehru’s ear all right,
“Don’t listen to this Malayalee (referring to KN Panikkar) and create an independent Kerala because an independent Kerala will become a red bastion for Communism”.

VK Krishna Menon


EMS’ cause would be pleaded by none other than the brilliant barrister at law, VK Krishna Menon, better known as Indian’s infamous Defence Minister during the China War a few years ago, and Pandit Nehru’s favourite person. Krishna Menon had been compared to a viper by the western media.
 He, as per Jairam Ramesh, was an “orator par excellence”, who at one time held the record for the longest speech at the United Nations, eight hours over two days after which he had fainted. Chief Justice KG Balakrishnan would one day go on to describe Menon as “one of the best lawyers India has produced.”
In the Supreme Court, EMS’ challenge to his conviction for contempt would be heard by a Bench presided by none other than Chief Justice Mohammad Hidayatullah with Justices GK Mitter and AN Ray sitting with him.


 Gadbois had described the Chief as “a highly energetic and strong personality whose intellect and leadership qualities inspired respect and awe from colleagues, and a man who looked like he was born to be CJI”.
However, he himself was unsure whether he would be “acceptable” for the top post after Justice Wanchoo’s retirement. After all, though wedded to a Hindu, Pushpa Shah, he would be the nation’s first Muslim to hold that post.
Justice Gopendra Krishna Mitter was a “probashi Bangali” or non-resident Bengali from Muzaffarpur, Bihar, who had been brought to Delhi by another Bengali, Chief Justice AK Sarkar. 
He was, however, sworn in after the summer vacation and Sarkar had retired by then. Mitter was also a Barrister called to the Bar from Lincoln’s Inn. He came from an era when a there was a thriving Bengali population in Bihar. 


Gopendra Mitter had moved practice to the Calcutta High Court. Eighteen years later, at the age of forty-six, he was elevated as a judge of that court. Perhaps as a practicising Barrister, he had made acquaintance with a young lawyer, Ajith Nath Ray, also a Barrister but from Gray’s Inn.


AN Ray was brought by Hidayatullah himself to the Apex Court. His first choice, however, was PN Mookerjee, who declined. 
Those were still days when High Court judges would consider their courts more glamourous and Delhi weather less appealing. Chagla was another who had repeatedly refused to get himself to Delhi leaving his favourite city Bombay. 

Bhachawat, who knew Ray during his Calcutta days, weighed in to bring Ray, who eventually, through a supersession, would one day sit on Hidayatullah’s seat.
Both these Bengali barrister judges could not have anticipated that years later, they would sit on a bench in the Supreme Court to decide the fate of a Malayali Chief Minister!
Before the Apex Court, VK Krishna Menon, contended that EMS’ approach to the judiciary was that:
Verdict of courts should be respected and obeyed;
No aspersions or motives should be cast on individual judges;
Criticism of the judicial system or judges going against the spirit of the legislation should be permitted; and,
Education of the people that the State (which included the judiciary) was an instrument of exploitation of the majority by the ruling and exploiting classes, was legitimate.
The pillar of his argument was that the law of contempt should not infringe on the freedom of speech and expression.
The judgment was authored by Hidayatullah himself, and delivered on July 31, 1970. The Chief Justice began by acknowledging that that law of contempt, which could be traced back to the days of the Star Chamber as “Scandalum Justiciae Curiae” (scandalising the judges), had “fallen into disuse” in England.
Inexplicably, as EMS had fallen back on Marx, Justice Hidayatullah took upon himself the task to find a Marxist justification why the action was in contempt. He says “we proceed to explain how Marx believed man’s inherent rationalism and virtue and depended upon them.”
The judge proceeded to conclude that Marx was not the first philosopher to be troubled by social injustice and oppression. In fact, “Marx’s contribution was to create a scientific and ethical approach to the problem if inequality”, by adopting the “Hegelian dialectic form”. 
Then he referred extensively to Das Kapital and the Communist Manifesto. The discourse then shifted to the writings of Engels and Lenin to conclude that “in all these writings there is no direct attack on the judiciary selected as the target of people’s wrath.”
Hidayatullah, after this extensive investigation into Marxist philosophy, concludes
“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 administration of justice must change with laws and changes in society, there was thus no need to castigate the judges as such beyond saying that the judicial system is the prop of the state.”
Former Chief Justice of India, Mohammad HidayatullahWhile a lay observer would find it astounding that the Court embarked on a Marxist philosophical journey, those who knew this professor of jurisprudence of Nagpur University from 1934 to 1943, would not be surprised.
 Hidayatullah had deep ties with academia, having been dean of University College of Law from 1951 to 1955. He had also served on Nagpur University’s executive and academic councils.
The Court’s final conclusion is that EMS had misguided himself about the true teachings of Marx, Engels and Lenin. Rejecting Krishna Menon’s exhortation to consider EMS’ position ‘as head of a State, his sacrifices, his background and his integrity’, the Court held that it “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 the party and outside” would have.
Therefore, the charge of a class-biased judiciary was thrown out as “draw[ing] 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.”

Former Chief Justice of India, Mohammad Hidayatullah


Having exposed the Communist leader’s dogmatic ignorance of Marx & Co, the Court felt that this would be a worthy punishment in itself and proceeded to further reduce the sentence of fine to only Rs 50, and to carry a default imprisonment of one week.
The Communist leader and his fifty rupees were finally parted.
Hidayatullah was not off mark when he concluded that his judicial certification of EMS’s ignorance of Marxian philosophy was the greatest punishment. A stung Namboodripad responded:
“While I do not intend to say anything about the confirmation of conviction, …I am prompted to write this letter only by way of explanation to that part of the judgment in which the Supreme Court purports to “expose” my “error” about the teachings of Marx and Engels”.


He goes on to record,
“I do not claim that I have studied all the writings of Marx and Engels. I can only salute the courage of anyone who claims to have studied all the writings. May I also point out that all the writings of the founders of Marxism are yet to be made available in English. Is it claimed that the Hon’ble Chief Justice or the other judges have read all writings in their original German?”


Then, he went on to quote passages he felt supported his claim.Dr Rajeev Dhawan and Balbir Singh observe:
“Scholars of Marxism may think that Chief Justice Hidayatullah’s comment on Marxism is superficial and incomplete, and his general comment on the position of judges in Marxist theory as misleading.


 But the most important part of the judgment is that the court under-rated the complexities of the criminal law aspect of the problem in that it seemed to overlook that contempt of court is a criminal offence which carries a penalty and which must be imposed with care and circumspection.”


They also critique the verdict as rushing to make an equivalence with American Law, without appreciating that this law applied the doctrine of “clear and present danger” and preferred to uphold free speech. They conclude:
“But, with respect, we may point out that the Supreme Court has emphasised the sanctity of the fundamental rights, which includes freedom of expression and criticism of public authorities; but when it deals with exercise of a fundamental right directed against itself it loses the broad critical perspective it appears to have taken elsewhere.”
While Hidayatullah, a celebrated jurist otherwise, has been roundly criticised for his approach in this case, let us not forget that he also concluded that the harshest sentence was to expose EMS’ ignorance. 


One cannot but feel amused at the thought that there was indeed a time when a judge felt that the surest way to vindicate the Court’s dignity and prestige was to intellectually expose the detractor.
Well, then again, that was the era of Tall Men and Small Egos!
The author is an Advocate practicing at the Delhi High Court.

courtesy Bar and Bench

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