No Legislative Vacuum On Hate Speech; Union & States May Consider If Amendments Needed : Supreme Court

The Supreme Court on Wednesday observed that the existing criminal law adequately deals with the offence of hate speech. The notion that the offence of hate speech is unoccupied by the legislation is misconceived, the Court observed.

The Court emphasised that there is no legislative vacuum in that regard. It added that it was beyond the remit of the judiciary to create an offence, as it is a field exclusively within the domain of the legislature.

A bench comprising Justice Vikram Nath and Justice Sandeep Mehta was pronouncing the judgment in a batch of petitions seeking directions and guidelines to address the growing menace of hate speeches.

"The creation of criminal offences and the prescription of punishments lies squarely within the legislative domain. The Constitutional scheme founded upon the doctrine of separation of powers does not permit the judiciary to create new offences or expand the contours of criminal liability through judicial directions," the Court observed at the outset. At the highest, the Court can only draw the attention of the legislature and the executive on the need for reforms.

"The contention that the field of hate speech remains legislatively unoccupied is misconceived. The existing framework of the substantive criminal law, including the provisions of the IPC, and allied legislations, adequately addresses acts that promote enmity, outrage to religious sentiments, or disturb public tranquillity. The field is therefore not unoccupied," the Court added.

The Court said that the grievance of the petitioners arises not from the absence of law, but from the lack of enforcement. Such concerns do not however justify law-making by the judiciary. The Court noted that the Bharatiya Nagarik Suraksha Sanhita provides for the registration of FIRs in cognizable offences, and remedies before the Magistrate in case of default by the police.

At the same time, the Court observed :

"While we decline to issue directions sought, we deem it appropriate to observe that the issues relating to hate speeches and rumour mongering bear direclty upon the preservation of fraternity, dignity and Constitutional order. It is open to the Union and the States to consider in their wisdom whether any further legislative measures are warranted in the light of evolving societal changes and challenges, or to bring suitable amendments as suggested by the Law Commission 267 report dated 23 March 2017."

The Court closed the contempt petitions filed alleging non-compliance by police officials of various states. 

Background

Most of the petitions were filed in 2020, in the context of the 'Corona Jihad' slander campaign in social media, as well as the 'UPSC Jihad' show ran by Sudarshan TV. In 2020, the Court had passed orders to stop the telecast of the UPSC Jihad show.

Other petitions (Qurban Ali, Major General SG Vombatkere) were filed in the subsequent years with respect to the alleged hate speeches uttered during 'Dharam Sansad' events and religious gatherings.

Among the batch were also PILs (Adv Ashwini Upadhyaya) seeking legislation against hate speech.

In 2023, the Court had passed a direction to all States/UTs that the police should suo motu register FIRs in respect of speeches promoting communal hatred and offending religious sentiments, without awaiting any formal complaint. Later, contempt petitions were filed alleging non-compliance with the Court's directions.

Most recent was an application seeking the takedown of an AI-generated video allegedly posted on social media by the BJP's Assam unit, which purportedly depicted apprehension of Muslims taking over the State if the party lost elections.

While reserving judgment in January, the bench had said that all the matters will be closed, reserving the right of the parties to pursue other remedies. Although, it decided to keep one matter (Kazeem Ahmad Sherwani v. The State Of Uttar Pradesh And Ors) alive, which related to a 2021 alleged hate crime committed against a Muslim cleric in Noida, to ascertain the progress in trial and related steps.

Headnote

Constitution of India – Article 32 vs. Statutory Remedies - Extraordinary Jurisdiction under Article 32 cannot be routinely invoked to bypass efficacious statutory mechanisms - The Supreme Court clarified that while constitutional remedies under Articles 32 and 226 remain available as vital safeguards against the failure of statutory authorities, this jurisdiction is extraordinary in nature - It ought not to be invoked in a routine manner to bypass the comprehensive, multi-tiered remedies provided under the statutory framework of the Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023). [Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 56, 61, 98]

Code of Criminal Procedure, 1973 – Section 156(3) & Sections 196, 197 - Prior Sanction is NOT a precondition for directing registration of an FIR or conducting an investigation at the pre-cognizance stage - The Supreme Court set aside the Delhi High Court's view and ruled that the statutory requirement of obtaining prior sanction under Sections 196 and 197 of the CrPC operates strictly at the stage of "taking cognizance" by a Court - It does not extend to the anterior, pre-cognizance stage of registering an FIR or directing a police investigation under Section 156(3) - An order passed by a Magistrate directing an investigation under Section 156(3) does not amount to "taking cognizance" within the meaning of Section 190 of the CrPC - To condition the registration of an FIR upon prior sanction would invert the sequential statutory scheme and render investigative provisions unworkable. [Relied on State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728; Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 101-164]

Code of Criminal Procedure, 1973 – Section 154 & Section 156(3) - Mandatory Duty to Register FIR — Non-Registration Remedied by Efficacious Multi-Tiered Architecture - Where information discloses the commission of a cognizable offence, the registration of an FIR under Section 154 of the CrPC is mandatory, and the police hold no discretion to refuse it at the threshold - If the police fail or refuse to register an FIR, the CrPC provides a complete and comprehensive statutory architecture to address the grievance - The aggrieved person must first approach the Superintendent of Police under Section 154(3), and if the grievance persists, invoke the wide supervisory jurisdiction of the Magistrate under Section 156(3) to order registration and monitor the investigation. [Relied on Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 and Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Paras 47-56, 164]

Constitutional Law – Separation of Powers & Judicial Review - Judiciary cannot create or expand criminal offences or prescribe punishments in the absence of legislative action - The Supreme Court held that the authority to enact binding general norms of conduct, formulate policy, and choose legislative responses falls squarely within the exclusive province of the Legislature - Under the Doctrine of Separation of Powers embedded in the Indian Constitution, the functional demarcation between the organs is fundamental; one organ cannot usurp the essential functions of another - While Courts can fill interstitial gaps to protect fundamental rights when a absolute legislative vacuum or constitutional silence exists, they cannot supplant the legislative scheme or construct parallel regulatory regimes where the field is already fully occupied by substantive law. [Relied on SCWLA v. Union of India (2016) 3 SCC 680; Dr. Ashwini Kumar v. Union of India (2020) 13 SCC 585; Paras 25 98, 164]

Constitutional Law – Writ of Continuing Mandamus - Continuing Mandamus cannot be issued in anticipation of future contingencies or to micro-manage executive functions - The device of "continuing mandamus" is a judicial innovation designed to secure compliance with a declared right against institutional inertia, rather than a substantive standalone writ remedy - It cannot be deployed to keep matters pending in anticipation of future contingencies or possible defaults that have not yet arisen - To assume executive failure in advance and maintain continuous judicial oversight would violate the principle of institutional comity, transgress the doctrine of separation of powers, and unconstitutionally reduce the Court's role to the "micro-management" of matters falling strictly within the executive domain. [Relied on Lok Prahari v. Union of India (2021) 15 SCC 80 and National Federation of Indian Women v. Union of India (W.P. (C) No. 719 of 2023; Paras 65, 67, 69, 73, 75]

Hate Speech & Preamble – Fundamental Values - Substantive meaning of 'Fraternity' and civilisational ethos of 'Vasudhaiva Kutumbakam' run fundamentally counter to Hate Speech - Supreme Court observed that the field of substantive criminal law addressing hate speech is fully occupied by existing statutory provisions (such as Sections 153A, 153B, 295A, 298, and 505 of the IPC/BNS), which penalise speech threatening communal harmony and public order - Hate speech is fundamentally antithetical to the core constitutional value of "Fraternity" enshrined in the Preamble and the Fundamental Duty cast under Article 51A(e) to promote harmony and the spirit of common brotherhood - Fraternity mandates a reciprocal obligation among citizens to respect the equal dignity of others - True citizenship cannot be reduced to a tool of exclusion or division based on an "us versus them" binary, which directly corrodes both the secular fabric of the Republic and India's civilisational maxim of vasudhaiva kutumbakam (the world is one family). [Relied on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 and Section 6-A of the Citizenship Act, 1955, In Re (2024) 16 SCC 105. (Paragraphs 78, 80, 81, 86, 88, 95]

Contempt of Court – Invocation of Contempt Jurisdiction - Demonstrated "hesitation" or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking contempt - Where the Supreme Court has issued pan-India interim directions (orders dated 21.10.2022 and 28.04.2023) mandating suo motu registration of FIRs against hate speech infractions, the failure to register a case must stem from a willful default or standard of hesitation despite having active knowledge of the cognizable offence - In cases where a petitioner has not even approached the competent authorities or placed the relevant material before them by way of a complaint, a failure to act suo motu cannot ipso facto translate to willful disobedience or automatic contempt - Foundational facts demonstrating institutional awareness and subsequent inaction are a prerequisite. [Paras 156 - 160]

Case Title : Ashwini Kumar Upadhyaya v. Union of India, W.P.(C) No. 943/2021 (and connected cases)

Citation : 2026 LiveLaw (SC) 437

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Also from the judgment - Magistrate Doesn't Require Prior Sanction To Direct FIR Registration Under S.156(3) CrPC : Supreme Court