Supreme Court Refuses New Directions On Hate Speech, Says Existing Laws Sufficient
Supreme Court dismisses hate speech petitions, says existing laws are sufficient and issues stem from enforcement gaps.
The Supreme Court on Wednesday dismissed a batch of petitions seeking directions on hate speech, holding that there is no legislative vacuum and that the issue lies in enforcement of existing laws rather than absence of statutory provisions.
The bench of Justices Vikram Nath and Sandeep Mehta, while pronouncing judgment, emphasised that the creation of criminal offences falls squarely within the domain of the legislature and courts cannot assume that role.
“The creation of criminal offences and the prescription of punishments lies squarely within the legislative domain,” the Court held, underscoring the constitutional principle of separation of powers. It added that while constitutional courts may interpret laws and issue directions for enforcement of fundamental rights, they “cannot legislate or compel legislation.”
Rejecting the argument that hate speech is inadequately regulated, the Court observed that the existing legal framework sufficiently addresses such offences. “The contention that the field of hate speech remains legislatively unoccupied is misconceived,” the Bench noted, pointing out that provisions under criminal law already cover acts that promote enmity, outrage religious sentiments, or disturb public tranquillity.
The Court further held that concerns raised by petitioners largely stem from inconsistent implementation of the law, not its absence. Such concerns, it said, cannot justify judicial overreach into the legislative domain.
Referring to procedural safeguards, the Bench noted that the Bharatiya Nagarik Suraksha Sanhita (BNSS) provides a comprehensive mechanism to set criminal law in motion. It clarified that magistrates retain wide supervisory powers, including under Section 156(3), which operates at a pre-cognisance stage, and that the requirement of sanction applies only at the stage of taking cognisance.
While declining to issue further directions, the Court acknowledged that hate speech and rumour-mongering have a direct bearing on fraternity and constitutional order. It left it open to the Union government to consider whether legislative changes are warranted in light of evolving social conditions.
All writ petitions were dismissed, and connected contempt proceedings were closed.
Notably, on January 20, the Court had granted two weeks’ time to parties to file brief notes with clarifications, suggestions and arguments, and closed all matters except one pending case from Uttar Pradesh.
Advocate Nizam Pasha, appearing in multiple petitions including contempt pleas, argued that the issue was not the inadequacy of law but selective enforcement. He referred to repeated instances where hate speeches were delivered by the same individuals across States, with FIRs either not being registered or incorrect provisions being invoked. Pasha also pressed an application seeking the takedown of an AI-generated video posted on X by the BJP’s Assam unit, which allegedly depicted apprehensions of Muslims “taking over” the State if the party lost elections.
Several counsels echoed concerns of non-registration of FIRs. Senior Advocate Siddharth Aggarwal referred to an SLP arising from a Magistrate’s refusal to order registration of an FIR on the ground of sanction, arguing that sanction was required only at the stage of cognizance. Senior Advocate M.R. Shamshad submitted that religious figures were increasingly being targeted and complaints were routinely rejected citing sanction requirements.
Advocate Amit Pai cited casteist remarks by a municipal mayor in Andhra Pradesh, alleging complete non-compliance by police.
Senior Advocate Sanjay Parekh, appearing for PUCL, urged the Court to build upon the Tehseen Poonawalla judgment on mob lynching, contending that refinements were required to address hate speech.
During the hearing, concerns were also raised about the role of mass media and social media amplification. Senior Advocate Sanjay Hegde remarked that narratives often travel from local platforms to social and mainstream media, citing examples such as “COVID Jihad” and “UPSC Jihad”, and warned against “punching down” on communities with lower social capital.
On behalf of the Union, Additional Solicitor General S.V. Raju submitted that there had been compliance in several cases and pointed to charge sheets filed and action taken against erring officials in specific matters. Senior Advocate D.S. Naidu, for the Election Commission of India, stated that guidelines were in place and being followed.
After hearing the parties, Justice Nath directed all counsels to submit brief notes within two weeks. The Court closed all connected matters except the case titled Kazeem Ahmad Sherwani v. State of Uttar Pradesh and Ors., which will continue to be heard.
Case Title: Ashwini Kumar Upadhyay v. Union of India and connected matters
Bench: Justices Vikram Nath and Sandeep Mehta
Judgment Date: April 29, 2026