Police Failure To Suo Motu Register FIR Against Hate Speech Not Automatically Contempt : Supreme Court

The Supreme Court recently held that the failure of the police to suo motu register FIR with regard to hate speech incidents would not automatically become contempt of the Court's orders, and that contempt jurisdiction cannot be invoked at the instance of a party who has not approached the police at the first instance.

"In cases where the petitioner has not even approached the authorities or placed the relevant material before them, it would be wholly inappropriate to infer disobedience or “hesitation” on the part of the authorities. In the absence of such foundational facts, the contempt jurisdiction cannot be invoked", the Court said.

A bench comprising Justice Vikram Nath and Justice Sandeep Mehta made the observations in its recent judgment in the batch of cases concerning hate speech. Observing that willful disobedience by police authorities could not be discerned when no complaint had been made or material placed before them, it disposed of two contempt petitions.

In the contempt petitions, the petitioners had contended that the Court's orders dated 21.10.2022 and 28.04.2023 required police authorities to suo motu register FIR against hate speech incidents. As the respondent-authorities failed to act suo motu, they were guilty of contempt.

The bench however disagreed, finding the submission "overly broad and untenable". It said that the earlier orders were passed to remind the authorities of their statutory duties and to ensure prompt action in appropriate cases. Nonetheless, the element of "hesitation" or failure to act despite knowledge of a cognizable offense was a sine qua non for invoking contempt.

"A common contention raised in some of the contempt petitions is that the respondent-authorities were under an obligation to register FIRs suo motu, and failure to do so would automatically amount to contempt of the orders dated 21st October, 2022 and 28th April, 2023. We find this submission to be overly broad and untenable. The aforesaid directions were issued to remind the authorities of their statutory obligations and to ensure prompt action in appropriate cases. The element of “hesitation” or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking the contempt jurisdiction of this Court.

In cases where the petitioner has not even approached the authorities or placed the relevant material before them, it would be wholly inappropriate to infer disobedience or “hesitation” on the part of the authorities. In the absence of such foundational facts, the contempt jurisdiction cannot be invoked."

While it declined to issue general directions, pointing out that creation of offences was within the exclusive domain of the legislature, the bench also noted that there was no legislative vacuum with regard to hate speech, and the existing legal framework adequately addressed such crimes. Whether further amendments are needed was left to the wisdom of the Union and the States.

Headnote

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

Click here to read the judgment