INTRODUCTION
We are living in a time when “contempt of court” makes it to the heading in newspapers at least weekly, if not daily. With the increasing use of social media, there is a greater number of contempt cases coming up. The earlier restricted nature of contempt cases has witnessed a dynamic change, with cyberspace providing a bigger platform for speech and expression, which in turn increases the instances of scenarios ending up as contempt. Earlier, with limited platforms for expressing views, like the traditional media, including Newspaper, TV, Magazines, etc, criticism, defamation, derogatory publication, and speeches related contempt cases were fewer than the contempt cases arising from Police and Bureaucratic Non-Compliance. However, this trend has changed due to cyberspace, with the latter being overtaken by the former. Many recent contempt cases have caught in attention of the public, like the suo motto criminal contempt against the publisher by the Madras High Court1, contempt proceedings against Ajay Shukla for scandalous remarks against a senior judge2, the Prashant Bushan contempt case3, contempt proceedings against Kunal Kamra4, the AG’s nod for the contempt proceedings against Rachita Taneja5. The Prashant Bhushan contempt case which he was held guilty of contempt, has stirred up the question of the constitutionality of “contempt by scandalising the court”. The interpretation of the law on contempt is complex due to the difficulty in determining the actual nature of the offence. There are a plethora of cases where contempt by scandalizing the court was interpreted. Interestingly, there is a high degree of subjectivity involved in the interpretation of this. The judiciary’s endeavour to advance the concept of orderly administration of law and promote free expression is demonstrated by certain verdicts. Conversely, the other catena of judgements is indicative of the courts’ self-doubt and apprehension regarding their public image. There is no hard and fast rule of interpretation and the Court have the duty to find that thin line of balance between what constitutes contempt and what is fair criticism as of now. In such a scenario, where there is intense debate happening on the constitutionality of contempt by scandalizing the court, the highly confusing views of the judiciary, the misuse of this provision etc., there is one interesting and controversial case that happened long time back, but one which is still discussed when contempt of court is discussed. This case comment will be on the famous and controversial SC verdict on EMS v. TN Nambiar.
FACTS
EMS, the then CM of Kerala, held a press conference in Trivandrum that was reported by various Indian newspapers including the Indian express. Indian Express reported this as “Marx and Engels considered the Judiciary as an instrument of oppression and even today when the state setup has not undergone any change….Judges are guided and dominated by class hatred, class interests, class prejudices, and where the 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…. His party had always taken the view, the Chief Minister said, ‘that judiciary is part of the class rule of the ruling classes. 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 laws and the system of judiciary essentially serve the exploiting classes…We hold the view that they are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred and class prejudices. In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments. The High Court and the Supreme Court can haul me up, if they want.”
T.N. Nambiar, an advocate and a member of Bar Council of Kerala approached the Kerala High Court alleging the public statement by EMS is grave contempt of court. The HC held EMS guilty of contempt and ordered a Rs. 1000 fine or simple imprisonment for one month against which EMS appealed to the SC.
BACKGROUND
Before analysing the judgment, the background of contempt of court has to be understood. Tracing back the history of contempt of Court will lead to its common law origin. Back in 1968, the Contempt of Courts Act, 19526, was in existence in India, which is now replaced by the 1971 Act7. The Contempt of Courts Act, 1952 consisting of only four sections defines and limits the powers of High Courts in punishing contempt of Courts. The Act does not create any power to punish for contempt but recognizing the existence of such power seeks merely to define and limit them. S.3 provides for the power of High Court to punish contempt of Subordinate Courts. Section 4 delineates the maximum penalties for contempt of court, while Section 5 authorises the High Court to adjudicate acts perpetrated or offenders located beyond its jurisdiction. Apart from the Act, Article 1298 and 2159 of the Constitution recognize the contempt jurisdiction of the SC and the HCs. The expression ‘contempt of court’ has not been defined in the Constitution or in the Contempt of Courts Act, 1952, or in the General Clauses Act10, although it occurs in Article 19 (2) of the Constitution11. The courts in India have been adopting the rules of the English common law, interpreting “contempt of court” and then, in some of its judgments, have came up with its own interpretation of it.
ANALYSIS
The whole case was based on a simple question as to whether EMS has said anything that brings him out of the protection of Article 19(1)(a)12 and exposes him to a charge of contempt of court. The relevant part of his Press Conference is already reproduced in the facts, and in essence the contempt proceedings was taken against EMS for the statement he made to the effect that judiciary is an instrument of oppression and that Judges are guided and dominated by class hatred, class interest and class prejudices. The court before going to the merits of the case have discussed the forms of contempt’s and observed that it include scandalising of courts and opined “it happens when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard and all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority even if committed in respect of a single judge or a single court, the whole of the judiciary or judicial system”.
V.K. Krishna Menon, the counsel for EMS, argued a four-fold defence:
1) The law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression, that the intention of the contemnor should be examined.
2) EMS’s speech is just a bona fide reproduction of thoughts of Marxist ideologists.
3) The species of contempt called scandalising the court had fallen in desuetude.
4) Moreover, a general remark regarding courts in general did not constitute contempt of court.
To answer the third defence, the court observed that the case referred by the Appellant, Mcleod v. St. Aubyn13 that held that the scandalising the court had fallen into disuse in England, was disapproved in later cases thus making ‘scandalising the court’ a live species of contempt of court. With regards to the fourth defence, the counsel for appellant relied on The Government Pleader, High Court, Bombay v. Tulsidas Subhanrao Jadhav14 and the Court observed that “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 courts together. All it said was that action should not be taken in such a case.” Interestingly, the Court went on clarifying that if at all the judgment meant so, SC will overrule the verdict as an incorrect statement of law.
Answering the first issue, the Court made it clear that freedom of speech and expression will always prevail except where contempt is manifest, mischievous or substantial and the question always is on which side of the line the case falls. With respect to the relevance of intention in contempt of court, when the counsel for Appellant asked for consideration to the purpose for which the statement was made, the position of the appellant as the head of a State, his sacrifices, his background and his integrity, the Court opined that the statement made in a press conference considering the occasion and the belief of the people in the words of EMS and the influence it can have on the people, there is not even the need of having any mischief in his words, to hold him guilty. Contempt law penalises not only actions that actually disrupt the courts and justice system, but also those that are likely to result in a specific outcome. The court was of the opinion that even if EMS said those words misunderstanding the teachings of Marx and Engels or deliberately distorted them doesn’t matter; it is the likely effect of his words that has to be considered. According to the Court, his words have the potential to cause distrust in judiciary and therefore weakens the authority of law and law courts. Therefore, intention cannot be a justification here and it can only be considered in determining the sentence.
The Court in order to answer the second issue went on interpreting the Marxist ideologies. The major part of the judgment i.e. para 13 to 31 was just the interpretation of the Marxist ideologies alone. The Court has thus put in more effort in this interpretation rather than the interpretation of the contempt vis-à-vis freedom of speech. The HC judgment whereas opposite to this was majorly the interpretation of what constitutes contempt, the plethora of judicial pronouncements on this and the aspect of contempt vis-à-vis freedom of speech. Since, three of the judges in HC gave their separate opinions, the 100-page judgment had the discussion of evolution of contempt to how it was interpreted in different Indian cases. Compared to this, the interpretation of contempt or scandalising the court or its constitutionality in the SC judgment was miniscule.
Analysing the judgment, it appears to me that, the judgment cannot be said wrong. But at the same time, the approach of the Court in devoting its efforts and time to interpret the ideology of Marxism rather than having an elaborate discussion on contempt by scandalising or giving more clarity to it especially when it’s a really subjective term which is evident from the degree of variation in the approach of court in different cases, has to be understood as a shortcoming in the judgement.
The last para of the judgment has specifically mentioned “The ends of justice in this case are amply served by exposing the appellant’s ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine.” This evidently shows the approach of the court where it felt that the best way to maintain the Court’s dignity and respect was to intellectually expose the critic. This appears to me as a move of satisfying ego rather than giving a verdict.
CONCLUSION
The SC itself has opined that “like Caesar’s wife, a judge must be above suspicion”.15 But, at present after analyzing the long history of contempt of court cases throughout the years, unfortunately there has been situations where by way of taking contempt of court the court was trying to make sure no one will have the guts to suspect or even say the suspicion in public about the judiciary or judges rather than trying to improve Judiciary. It will be wrong to say that this trend is followed always, as there are exceptions. As quoted in the dissenting opinion given by K K Mathew, in the HC Judgment16, “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.” In contempt cases, the maxim “no man can be a judge on his own case” is difficult to be applied. “Justice should not only be done but also seen to be done” is a golden rule that maintains the faith of the people in judiciary. EMS contempt case is therefore, a classic example of the interplay of ego and judgment, when dealing with contempt of court. Respect for the judiciary cannot be attained by protecting judges or courts from public scrutiny. The popularity of EMS’s response to the verdict “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?” and criticisms of the Court’s interpretation of Marxism17 by some scholars shows the public opinion. Even now, there is a battle of perceptions while analysing scandalising the court, especially when it is the judges who are the one’s analysing this.
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Footnotes
1. Soumya Yadav, Madras HC directs immediate police action over derogatory book title targeting sitting Judge; initiates suo motu criminal contempt against publisher, SCC Online (Jan. 09, 2026, 8:45 AM) https://www.scconline.com/blog/post/2026/01/09/madras-hc-suo-motu-contempt-derogatory-book-title-targeting-sitting-judge /.
2. V. Venketeshan, SC initiates contempt proceedings against journalist Ajay Shukla, SCO (Jan. 22, 2026, 9.00 PM) https://www.scobserver.in/journal/sc-initiates-contempt-proceedings-againstjournalistajayshukla/.
3. In Re: Prashant Bhushan and Anr …. Alleged Contemnor(s), (2020) SCC ONLINE SC 646.
4. Shrirang Katneshwarkar v. Kunal Kamra, (2020) SCC OnLine SC 1041.
5. Aditya Kashyap v. Rachita Taneja, (2020) SCC OnLine SC 1042.
6. Contempt of Courts Act, 1952, No. 32, Acts of Parliament, 1952 (India).
7. Contempt of Courts Act, 1971, No. 70, Acts of Parliament, 1971 (India).
8. India Const. art. 129.
9. India Const. art. 215.
10. The General Clauses Act, 1897, No. 10, Acts of Parliament, 1897 (India).
11. India Const. art. 19 (2).
12. India Const. art. 19(1)(a).
13. McLeod v. St. Aubyn, (1899) AC 549.
14. The Government Pleader, High Court, Bombay v. Tulsidas Subhanrao Jadhav, (1938) 179 ILR (BOM).
15. R.C. Chandel v. High Court of M.P., (2012) 8 SCC 58.
16. T.N. Nambiar v. E.M. Shankaran Namboodiripad, (1968) 1 ILR 384 (KER).
17. Sanjay Ghose, You Know No Marx”: The story of the contempt case against India’s first Marxist Chief Minister, Bar and Bench, (Jan. 10, 2026, 9:29 PM), https://www.barandbench.com/columns/you-know-no-marx-the-story-of-the-contempt-case-against-indias-first-marxist-chief-minister.