The Supreme Court on Wednesday (April 29) held that existing legal provisions are sufficient to deal with the charges of hate speech. It flagged the uneven enforcement of the laws rather than legislative silence as a concern.
The bench comprising Justices Vikram Nath and Sandeep Mehta said, “The contention that the field of hate speech remains legislatively unoccupied is misconceived. The existing framework of substantive criminal law, including the provisions of the IPC and allied legislation, adequately addresses acts that promote enmity, outrage religious sentiments, or disturb public tranquillity. The field is therefore not unoccupied.”
The trigger for the petitions lay partly in the Law Commission of India’s 2017 report, which recommended new offences to deal with the incitement of hatred. The petitions pointed to media narratives around the Tablighi Jamaat congregation during the Covid-19 pandemic, speeches at religious gatherings, and police inaction, particularly where those accused of making inflammatory remarks held positions of power.
The court adjudicated on the premise that the law itself is absent, holding that “there is no complete legislative vacuum in the substantive criminal law insofar as addressing hate speech is concerned.”
Hate speech has no statutory definition in the earlier IPC or the BNS. The Law Commission acknowledged this and recommended the insertion of two new sections — Section 153C to prohibit incitement to hatred and Section 505A to cover provocation of violence.
But the absence does not mean the law is silent on the conduct itself. The court held that Section 153A of the IPC penalises promoting enmity between groups on the grounds of religion, race, place of birth, residence, language, or caste. Section 153B addresses imputations prejudicial to national integration.
Section 295A of the IPC targets the “deliberate and malicious intention of outraging the religious feelings of any class of citizen,” whereas Section 298 covers the “intention of wounding the religious feelings of any citizen” deliberately, either by words or gestures. Section 505 also deals with statements that promote hatred between classes.
The Representation of the People Act, the Protection of Civil Rights Act, the Religious Institutions (Prevention of Misuse) Act, and the Cable Television Networks Regulation Act add further layers. In addition, Sections 107 and 144 of the Code of Criminal Procedure, which pertain to preventing breach of peace and issuing urgent orders to maintain public order, respectively, allow authorities to act before a situation escalates.
The court held that, “These provisions represent a conscious legislative effort to regulate speech which threatens communal harmony and public order. The mere occurrence of incidents of hate speech cannot lead to the conclusion that the law is silent on the subject….such instances may reveal deficiencies in implementation in particular cases. That, however, cannot furnish a ground for the Court to assume the legislative function or to supplant the statutory scheme enacted by the Legislature.”
Refusal to step in
The court limited its own role once it clarified that the issue was of enforcement. The power to define and prescribe punishments lies with the legislature, while courts interpret the law but generally refrain from stepping into the legislative domain.
The precedent most often relied on is the Vishakha & Ors v State of Rajasthan, in which the court laid down binding guidelines on workplace sexual harassment in the absence of any legislation. That principle, the court said, applies only where the law is silent.
“It is thus well settled that while exercising its writ jurisdiction, this Court may interpret and develop the law and may also indicate the necessity for legislative reform where the circumstances so warrant. However, the Court cannot issue a writ of mandamus directing the Legislature or the Government to enact a particular law or to introduce a Bill before the Legislature within a stipulated time frame,” it said.
The problem with enforcement
The petitioners pointed to the fragmented nature of existing provisions as evidence of inadequacy, particularly in dealing with contemporary forms of speech amplified by media and digital platforms. The court did not fully reject that diagnosis, but it declined to accept that the law itself was insufficient.
Across petitions, a recurring issue was police inaction in registering FIRs, delayed action, or diluted charges. The court held that the existing criminal codes already have a procedural framework in place. Criminal law provides a set of remedies, from escalation within the police hierarchy to recourse to a magistrate and eventual judicial review. These mechanisms, in the court’s view, are sufficient in design. Their uneven use does not justify replacing them with court-led supervision.
As the court put it, “A greater extent of the concerns highlighted by the petitioners arise not from the absence of law but from deficits in its consistent and effective enforcement. Such concerns, however significant, cannot justify the judicial assumption of legislative functions.”
The court further disagreed with the petitioners’ argument for sustained judicial oversight in such cases. While a standard writ of mandamus is used to compel the performance of a specific public duty, a “continuing mandamus” is a judicial innovation intended to ensure that court judgments are not rendered “illusory” by institutional inertia.
However, the court stressed that this tool would turn the court into a supervisory authority over executive functions. “Issuance of a continuing mandamus in the manner suggested would, in effect, require this Court to keep the matter pending in anticipation of future contingencies, including possible commission of offences. Such an approach is neither contemplated by law nor consistent with the settled principles governing the exercise of writ jurisdiction,” it said.
Article 227 places the powers of superintendence of subordinate courts with the High Courts. The court said that “to assume failure in advance… would be contrary to the principle of institutional comity and the discipline of judicial restraint.”
Two separate appeals
Alongside the main batch of petitions, the court also dealt with two appeals. The first was filed by Brinda Karat, CPI(M) leader, on the registration of FIRs over alleged hate speeches delivered by BJP leaders Anurag Thakur and Parvesh Verma in 2020. Thakur, while campaigning in Delhi for the Assembly elections, repeatedly chanted, “Desh ke gaddaro ko,” and had people responding with “goli maaro saalo ko” (“What should be done with traitors of the country? Shoot them”).
The SC disagreed with the Delhi HC’s view that prior sanction was needed even to direct an FIR under CrPC. It held that a sanction is a safeguard required before a court takes cognisance or proceeds to prosecute, not at the stage of investigation. However, it refused to register the FIR on the facts, stating that no cognizable offence was made out.
In the second appeal concerning alleged Islamophobic social media posts, the Telangana High Court held that the relief requested in the petition, such as stopping specific hashtags (such as #Islamiccoronavirusjihad), had become infructuous and that a High Court could not grant a broader restraint on online content. The Supreme Court declined to intervene, saying that the grievance had been “adequately addressed.”
Vasudhaiva Kutumbakam
The bench located hate speech as fundamentally incompatible with the idea of “vasudhaiva kutumbakam” — the world is one family — and linked it to the constitutional duty to promote harmony.
“For a nation that has historically embraced the idea of the world as one family… It is… inconceivable that citizens be classified or discriminated against on grounds such as caste, colour, creed, gender, or any other marker rooted in an “us versus them” mindset. Such an approach would be wholly inconsistent with the constitutional vision of unity, dignity, and equality,” the court said.
It suggested that the law cannot, by itself, produce conditions to prevent such speech from arising. That depends on the “constitutional conscience” of society, it said.
The trigger for the petitions lay partly in the Law Commission of India’s 2017 report, which recommended new offences to deal with the incitement of hatred. (Express illustration) 
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