BREAKING| 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.

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