The Supreme Court on Wednesday refused to pass additional directions to curb hate speech across the country, reasoning that existing laws are sufficient [Ashwini Kumar Upadhyay v. Union of India & Ors.].A Bench of Justices Vikram Nath and Sandeep Mehta summarised the conclusions as follows:- Creation of criminal offences lies squarely within legislative domain.- Constitutional courts may interpret the law but they cannot compel legislation.- The field of hate speech is not unoccupied. The concerns don’t arise from law, but implementation. - The statutory mechanism under BNSS provides comprehensive way to put criminal law in motion. No legislative vacuum exists. - Supervisory jurisdiction of magistrate under section 156(3) CrPC [now 175 (3) BNSS] has wide amplitude, - Requirement of prior sanction operates at cognisance stage and doesn’t extend to pre-cognisance stage or registration of First Information Report (FIR), or investigation under section 156(3) CrPC [now 175 (3) BNSS]. .The Bench held that legislation on hate speech lies in the domain of the legislature and not the courts."...while constitutional courts may interpret the law and issue directions to secure the enforcement of fundamental rights, they cannot legislate or compel legislation. At the highest, the court may draw attention to the need for reform. The decision whether and in what manner to legislate remains within the exclusive domain of the Parliament and the state legislatures.".Listing out the remedies already available in law under the Code of Criminal Procedure (CrPC) and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Court said,"The duty of the police to register an FIR upon disclosure of a cognisable offence is mandatory, as settled in Lalita Kumari. In cases of non-registration of FIR, the CrPC-BNSS provide efficacious remedies. An aggrieved person may approach the Superintendent of Police under Section 154(3) of CrPC or corresponding Section 173(4)of the BNSS and thereafter invoke the jurisdiction of the magistrate under Section 156(3) of CrPC, corresponding Section 175 of BNSS, or proceed by way of a complaint under Section 200 of CRPC, corresponding section 223 of BNSS.".It also refused to hold that an order directing investigation under Section 156 (3) of the CrPC amounts to taking cognizance within the meaning of Section 190 of CrPC or the corresponding Section 210 of BNSS.While refusing to pass orders to this effect, the Court acknowledged,"We deem it appropriate to observe that issues relating to hate speech and rumour mongering bear directly upon the preservation of fraternity, dignity and constitutional order."It thus the legislative authorities to consider whether any further legislative or policy measures are warranted in light of evolving societal challenges. These include making amendments to laws as suggested by the Law Commission's 267th Report of 2017..The Court delivered judgement in a batch of petitions tracing their origins to events dating back to 2020, when multiple pleas were filed alleging the spread of communal narratives through broadcast media and social platforms. Among the earliest matters were challenges linked to the circulation of content popularly described as the “Corona Jihad” campaign, as well as a programme aired by Sudarshan TV under the title “UPSC Jihad.” In response to those proceedings, the Court had at the time restrained further telecast of the programme.In the years that followed, additional petitions were instituted raising concerns about speeches delivered at religious congregations, including gatherings described as “Dharam Sansad” events. These included petitions filed by individuals such as journalist Qurban Ali and Major General SG Vombatkere, who sought intervention against alleged hate speeches delivered at such forums. The batch also came to include petitions seeking broader legislative measures to curb hate speech.During the pendency of these matters, the Court passed significant directions in 2023 requiring all States and Union Territories to act proactively in cases involving speeches promoting communal hatred or offending religious sentiments. It directed police authorities to register First Information Reports (FIRs) on their own motion, without waiting for formal complaints. Subsequently, contempt petitions were moved alleging that these directions had not been implemented effectively..[Read Judgement]
