“Once the constitutional ideal of fraternity is internalised by citizens, both individuals and those in positions of influence, the very impulse to engage in “hate speech” would stand diminished”
The Supreme Court is at pain to state that hate speech is not merely a deviation from acceptable discourse; it is fundamentally antithetical to the constitutional value of fraternity and strikes at the moral fabric of our Republic, in addition to being running counter to the deeper civilisational ethos of India. However, while examining the existing legal framework governing ‘hate speech’ and ‘rumour-mongering’, the Apex Court held that the judiciary cannot create or expand criminal offences, prescribe punishments, or compel legislation in the field of hate speech where the field is already occupied by existing statutory provisions; the constitutional role of the Court is to interpret and enforce law, not to legislate.
The Apex Court held that there is no legislative vacuum in respect of hate speech, as the existing framework of substantive criminal law and allied statutes already addresses acts promoting enmity, outraging religious sentiments, and disturbing public tranquillity, and that the real concern is enforcement, not absence of law. It emphasised that the CrPC/BNSS provides a comprehensive and efficacious multi-tiered mechanism for redressing grievances relating to non-registration of FIRs, including recourse to the Superintendent of Police under Section 154(3) CrPC / Section 173 BNSS, the Magistrate under Section 156(3) CrPC / Section 175 BNSS, and complaint proceedings under Section 200 CrPC, with constitutional remedies remaining extraordinary safeguards. Accordingly, Article 32 jurisdiction should not be routinely invoked to bypass this statutory architecture, and no continuing mandamus is warranted in the absence of legislative vacuum or systemic failure justifying continuous judicial monitoring.
The Court also held that prior sanction under Sections 196 and 197 CrPC operates only at the stage of taking cognizance and does not apply to the pre-cognizance stage of registration of FIR or investigation under Section 156(3) CrPC. An order under Section 156(3) directing investigation does not amount to taking cognizance. Nevertheless, in the facts of the criminal appeal before it, the Court held that no cognizable offence was disclosed on the material placed on record.
A two-Judge Bench comprising Justice Vikram Nath and Justice Sandeep Mehta began by emphasising that crime, in law, is conduct expressly prohibited by the sovereign authority of the State through legislation, and that for conduct to amount to a crime, the act or omission must be legislatively proscribed. This foundational premise informed the Court’s approach to the petitioners’ prayer that the Court either create new offences or expand existing criminal liability in the field of hate speech.
On the first issue, the Bench held that the Constitution recognises separation of powers, though not in an absolute sense, and that the functional demarcation between Legislature, Executive and Judiciary is fundamental. It reiterated that courts may interpret law, enforce rights, and in cases of true legislative vacuum issue interim directions of a stop-gap nature, but cannot direct the Legislature to enact a law, cannot create criminal offences, and cannot prescribe punishments where the field is already occupied by statute.
On the second issue, the Bench expressly rejected the argument that hate speech is an unoccupied legislative field. It noted that the Law Commission itself had surveyed several existing enactments dealing with the subject, including Sections 124A, 153A, 153B, 295A, 298 and 505 IPC, provisions of the Representation of the People Act, the Protection of Civil Rights Act, the Religious Institutions (Prevention of Misuse) Act, the Cable Television Networks Regulation Act, the Cinematograph Act, and preventive provisions under the CrPC. The Bench observed that even if further strengthening of the law may be desirable, the existence of incidents of hate speech demonstrates enforcement difficulties, not legal silence.
The Bench observed that the Law Commission’s 267th Report recommended introduction of proposed Sections 153C and 505A IPC to address incitement to hatred and fear or provocation of violence, but held that once the Court finds no legislative vacuum, the formulation of policy and legislative response remains within legislative discretion. At best, the Court may draw the Legislature’s attention to the issue; it cannot itself supplant the statutory scheme.
On the third issue, the Bench held that the CrPC/BNSS contains a complete statutory mechanism for dealing with cognizable offences and non-registration of FIRs. It reaffirmed that under Section 154 CrPC / Section 173 BNSS, registration of FIR is mandatory where information discloses a cognizable offence, following Lalita Kumari, and no preliminary inquiry is permissible except in limited categories. It further held that where police fail to register an FIR, the aggrieved person has remedies under Section 154(3) CrPC before the Superintendent of Police, Section 156(3) CrPC before the Magistrate, and Section 200 CrPC by way of complaint, with constitutional remedies under Articles 32 and 226 remaining available in exceptional cases after exhaustion of statutory remedies.
The Bench also underscored that the Magistrate’s power under Section 156(3) CrPC is of wide amplitude and includes power to direct registration of FIR and proper investigation, and to monitor the same. It stressed that the existence of this layered statutory and constitutional framework means that the grievance is not absence of remedies but uneven application and enforcement.
On the fourth issue, the Bench declined to issue a continuing mandamus. It reasoned that such a course would require the Court to keep the matter pending in anticipation of future contingencies and possible offences, which is not contemplated by law and would undermine statutory authorities and constitutional boundaries. The Court’s epilogue placed the issue of hate speech within the constitutional values of fraternity, dignity, equality and secularism. It observed that hate speech is antithetical to fraternity and to the constitutional vision of an inclusive and cohesive society, and referred to Article 51A duties to promote harmony and common brotherhood. At the same time, the Bench maintained the distinction between recognising the constitutional evil of hate speech and assuming legislative power to create new offences or judicially supervise all future enforcement.
On the contempt petitions, the Bench held that failure to register FIR suo motu does not automatically amount to contempt. The earlier directions were intended to remind authorities of their statutory obligations, and contempt would require foundational facts showing “hesitation” or failure to act despite knowledge of a cognizable offence. Accordingly, petitions where FIRs had already been registered were closed, petitions where no complaint had been made were rejected as not disclosing contempt, and in certain petitions where there were specific averments of inaction despite complaints, time was granted to authorities to file responses.
Briefly, the petitions concerned alleged hate speech, rumour-mongering, non-registration of FIRs, and the prayer for judicial directions to the Union of India to strengthen the legal framework, including by implementing the Law Commission of India’s 267th Report on Hate Speech. The petitions essentially arose from multiple incidents and grievances, including alleged communal speeches during the COVID-19 pandemic, dissemination of fake and communally biased news concerning the Tablighi Jamaat/Nizamuddin Markaz episode, calls for investigation into specific hate speeches, directions for registration of FIRs, action against speakers and organisations, and requests for continuing mandamus and independent SIT investigations.
The petitioners broadly contended that hate speech constitutes a targeted misuse of free speech, that the current legal regime does not comprehensively define or effectively address hate speech, that enforcement failures and police inaction undermine the preventive purpose of criminal law, and that the Law Commission’s recommendation for specific offences addressing incitement to hatred has not been implemented.
The Union of India opposed the petitions on the footing that Article 32 jurisdiction should not be invoked without exhausting statutory remedies, that the petitioners ought first to have approached the police and other competent authorities, and that the reliefs sought fell within legislative policy and therefore outside the judiciary’s law-making domain. The Election Commission submitted that the statutory framework already contains provisions such as Sections 153A, 153B, 295A, 298 and 505 IPC, provisions of the Representation of the People Act, 1951, and preventive powers under the CrPC, and that the real problem is implementation rather than absence of law.
Appearances:
Senior Advocates Sanjay Hegde and M. R. Shamshad, AORs Mrigank Prabhakar, Lzafeer Ahmad B. F., Farrukh Rasheed, Pulkit Agarwal, Sylona Mohapatra, Talha Abdul Rahman, Ashwani Kumar Dubey, Preeti Singh, Vishnu Kant, V. Elanchezhiyan, Adeel Ahmed, Mrigank Prabhakar, Ejaz Maqbool, Sumita Hazarika, Dharitry Phookan, Anantha Narayana M.g., Vishnu Shankar Jain, T. R. B. Sivakumar and Amit Pai, along with Advocates Anas Tanwir, Ebad Ur Rahman, Zainab Shaikh, Sakshi Banga, Astha Singh, Masoom Raj Singh, Fakhre Alam, Ankit Tiwari, Ashish Kumar, Arijit Sarkar, Nizam Pasha, Rashmi Singh, Mushtaq Salim, Sidharth Kauhik, Sachin Dubey, Awstika Das, Madhav Deepak, Amit Pai, Shahrukh Alam, Rashid N Azam, Danish Saifi, Shafik Ahmed, Anju, Naman Dwivedi, Sunny, Manoj Kumar, Chunri Gupta, Rishab Sardana, Burhan V. Bukhari, Zain Maqbool, Meeran Maqbool, Saif Zia, C. George Thomas, Sakshi Banga, Astha Singh, Barun Kumar Sinha, Pratibha Sinha, Sneh Vardhan, Rakesh Mudgal, Pankaj Kumar Shukla, Chhail Bihari Singh, Ritu Raj, Kanika, Ganesh Kamath, Vaibhav Singh, Hari Shankar Jain, Parth Yadav, Mani Munjal, Marbiang Khongwir, Ashish Kumar Dwivedi, Shaurya Krishna, Saurabh Singh, Deva Vrat Anand, Sarah Sunny, N. Ashwani Kumar, and Pankhuri Bhardwaj, for the Petitioners
Tushar Mehta, Solicitor General (NP), K.M. Nataraj, A.S.G. (NP), Kanu Agrawal, Adv., Rajat Nair, Adv., Mayank Pandey, Adv., Siddharth Dharamadhikari, Adv., Varun Chugh, Adv., Amit Sharma-b, Adv., Saumya Tandon, Adv., Sudarshan Lamba, AOR, S.V. Raju, A.S.G., Aaditya Aniruddha Pande, AOR, Shrirang B. Varma, Adv., Bharat Bagla, Adv., Sourav Singh, Adv., Aditya Krishna, Adv., Adarsh Dubey, Adv., Chitransha Singh Sikarwar, Adv., Rajat Nair, Adv., Sanjay Kumar Tyagi, Adv., Varun Chugh, Adv., Mayank Panday, Adv., Amit Sharma-b, Adv., Udai Khanna, Adv., Amit Sharma, Adv., Arvind Kumar Sharma, AOR, Aman Mehta, Adv., Mukesh Kumar Maroria, AOR, Rajat Nair, Adv., Varun Chugh, Adv., Aman Mehta, Adv, Rajan Kr. chourasia, Dr. N. Visakamurthy, AOR, Amrish Kumar, AOR, Ruchira Goel, AOR, Indira Bhakar, Adv., Satwik Misra, Adv., Satwik Misra, Adv, P V Surendranath, Sr. Adv., Biju P Raman, AOR, John Thomas Arakal, Adv., Nandana Harikrishnan, Adv., Sawan Kumar Shukla, Adv., Dimple Nagpal, Adv., Subhash Chandran K.R., Adv., Lekha Sudhakaran, Adv., Sanjay Parikh, Sr. Adv., Srishti Agnihotri, AOR, Kritika, Adv., Tara Elizabeth Kurien, Adv., D.P. Singh, Adv., Anchal Kanthed, Adv., Dama Seshadri Naidu, Sr. Adv., Prateek Kumar, AOR, Devansh Rai, Adv., Abhinav Thakur, Adv., Deepak Sharma, Adv., Sunil Dalal, Sr. Adv., Shoumendu Mukherji, AOR, Soumava Karmakar, Adv., Manisha Saroha, Adv., Nikhil Beniwal, Adv., Satya Ranjan Swain, Adv., Sahaj Garg, Adv., Chetanya Puri, Adv., Aniruddha Ghosh, Adv., Saurav Kumar, Adv., Surabhi Tuli, Adv., Kunal Kant, Adv., Shadan Farasat, Sr. Adv. (NP), Sarah Sunny, Adv., T. R. B. Sivakumar, AOR, Shadan Farasat, Sr. Adv. (NP), Shahrukh Alam, Adv., Shantanu Singh, Adv., Navneet R., AOR, Alankrita Sinha, Adv., Krishna Kant Dubey, Adv., Bhuvan Kapoor, Adv., Santosh Ramdurg, Adv., Shreekant Neelappa Terdal, AOR, Avdhesh Kumar Singh, A.A.G., Prerna Dhall, Adv., Ambuj Swaroop, Adv., Kapil Katare, Adv., Rajnandani Kumari, Adv., Prashant Singh, AOR, Abhishek Atrey, AOR, Jatinder Kumar Sethi, D.A.G., Ambika Atrey, Adv., Navneet Gupta, Adv., Devina Sehgal, AOR, Yatharth Kansal, Adv., Srikanth Varma Mudunuru, Adv., Sanchit Garga, AOR, Kunal Rana, Adv., Shashwat Jaiswal, Adv., Anshuman Ashok, AOR, Nisha Bhambhani, Adv., Rajat Arora, AOR, Mariya Shahab, Adv., Anand Shankar, AOR, Vishnu Shankar Jain, AOR, Shaurya Krishna, Adv., Ashish Kumar Dwivedi, Adv., Parth Yadav, Adv., Mani Munjal, Adv., Marbiang Khongwir, Adv., Saurabh Singh, Adv., Milind Kumar, AOR, Abhay Anil Anturkar, Adv., Dhruv Tank, Adv., Surbhi Kapoor, AOR, Sarthak Mehrotra, Adv., Subhi Pastor, Adv., Bhagwant Deshpande, Adv., Swati Ghildiyal, AOR, Neha Singh, Adv, Nishant Kumar, AOR, Anubhav Sharma, Adv., Siddharth Mohanty, Adv., Parth Awasthi, Adv., Pashupathi Nath Razdan, AOR, V. N. Raghupathy, AOR, Pukhrambam Ramesh Kumar, AOR, Karun Sharma, Adv., Anupama Ngangom, Adv., Rajkumari Divyasana, Adv., Anando Mukherjee, AOR, Shwetank Singh, Adv., Siddhesh Shirish Kotwal, AOR, Gaurav Khanna, AOR, Prashant Alai, Adv., Kunal Mimani, AOR, Surender Kumar Gupta, AOR, Mohammed Khalid, Adv., Saurav Mishra, Adv., Mokshita Sharma, Adv., Vishal Prasad, AOR, Karan Sharma, AOR, Astha Sharma, AOR, Talha Abdul Rahman, AOR, Sumit Teterrwal, AOR, Ilin Saraswat, Adv., Swati Jain, Adv., Gagan Kataria, Adv., Abhishek Yadav, AOR, Manju Jetley, AOR, Piyush Beriwal, AOR, Rudra Paliwal, Adv., Aisha Singh, Adv., Nishant Kumar, AOR, Anubhav Sharma, Adv., Siddharth Mohanty, Adv., Harsh Kaushik, AOR, Anand Shankar, AOR, Shovan Mishra, AOR, Bipasa Tripathy, Adv., Shlok Luthra, Dhawal Uniyal, AOR, Awanish Sinha, AOR, Mehmood Umar Faruqui, AOR, Pratik R. Bombarde, AOR, Sameer Abhyankar, AOR, Rahul Kumar, Adv., Aakash Thakur, Adv., Arushi Chopra, Adv., Chitranshul A. Sinha, AOR, Ranjeeta Rohatgi, AOR, Shrika Gautam, Adv., Gurmeet Singh Makker, AOR, Anirban Tripathi, Adv., Ashutosh Dubey, AOR, Rajshri Dubey, Adv., Abhishek Chauhan, Adv., H. B. Dubey, Adv., Amit P Shahi, Adv., Amit Kumar, Adv., Vatsala Vishakha, Adv., Rahul Sethi, Adv., Shashibhushan Nagar, Adv., Sumant A. Khan, Adv., Rajendra Anbhule, Adv., Trikha Chanda, Adv., Anjan Datta, Adv., Ravi Sharma, AOR, Kaleeswaram Raj, Adv., Anu K Joy, Adv., Thulasi K Raj, Adv., Aparna Menon, Adv., Alim Anvar, Adv., Chinnu Mariya Antony, Adv., Santhosh K, Adv., Nishe Rajen Shonker, AOR, Devika A.l., Adv., Devendra Singh, AOR, Suvidutt M.s., AOR, K. Enatoli Sema, AOR, Amit Kumar Singh, Adv., Chubalemla Chang, Adv., Prang Newmai, Adv., Yanmi Phazang,, Adv., Avijit Mani Tripathi, AOR, T.k. Nayak, Adv., Marbiang Khongwir, Adv., Vikas Bansal, Adv., Upendra Mishra, Adv., P.S. Negi, Adv., Upendra Pratap Singh, AOR, Disha Singh, AOR, Eliza Bar, Adv., Anas Tanwir, AOR, Sarad Kumar Singhania, AOR, Kaleeswaram Raj, Adv., Mohammed Sadique T.a., AOR, Thulasi K Raj, Adv., Aparna Menon, Adv., Chinnu Mariya Antony, Santosh Ramdurg, Adv., Shreekant Neelappa Terdal, AOR, Ashwani Bhardwaj, AOR, Annam Venkatesh, AOR, Rahul Mishra, Adv., Shailja, Adv., and Agrimaa Singh, Adv., for the Respondents
