Breaking: Supreme Court Declines To Issue Directions On Hate Speech; Says No Legislative Vacuum Exists
The Court ruled that existing laws like the IPC and BNSS sufficiently cover hate speech, emphasizing that the issue is one of enforcement rather than a "legislative vacuum."
The Supreme Court has dismissed a batch of petitions seeking fresh judicial guidelines to tackle hate speech, asserting that the power to create new offences rests solely with Parliament.
While recognizing that rumor-mongering and incendiary oratory threaten constitutional fraternity, the Court maintained that the judiciary cannot assume legislative functions under the doctrine of separation of powers.
Crucially, the Court corrected a prevailing legal error by clarifying that prior government sanction is not a prerequisite for a Magistrate to order the registration of an FIR or an investigation under Section 156(3) of the CrPC (now Section 175 of the BNSS), as such an order does not amount to "taking cognizance" of an offence.
On January, 2026, the Court reserved the order in various pleas seeking directions to tackle hate speech incidents in the country. The Court previously ordered that when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC, etc., a suo motu action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders.
The Bench of Justice Vikram Nath and Justice Sandeep Mehta observed, "While we decline to issue directions of the nature sought, we deem it appropriate to observe that issues relating to hate speech and rumor-mongering bear directly upon the preservation of fraternity, dignity, and constitutional order. It would be open to the Union of India and competent legislative authorities to consider, in their wisdom, whether any further legislative or policy measures are warranted in light of evolving societal challenges, or to bring about suitable amendments as suggested by the Law Commission's 267th Report dated March 23, 2017."
It added, "The statutory framework under the CrPC (now the Bharatiya Nagarik Suraksha Sanhita, 2023) provides a comprehensive and layered mechanism to set the criminal law in motion. The duty of the police to register an FIR upon disclosure of a cognizable offence is mandatory, as settled in Lalitha Kumari. In cases of non-registration of an FIR, the CrPC/BNSS provides efficacious remedies...An aggrieved person may approach the Superintendent of Police under Section 154(3) of the CrPC (or corresponding Section 173(4) of the BNSS) and thereafter invoke the jurisdiction of the Magistrate under Section 156(3) of the CrPC (corresponding Section 175 of the BNSS), or proceed by way of a complaint under Section 200 of the CrPC (corresponding Section 223 of the BNSS). These remedies constitute a complete statutory architecture. The availability of such remedies, coupled with the supervisory jurisdiction of constitutional courts under Articles 32 and 226 of the Constitution, demonstrates that no legislative vacuum exists warranting the intervention sought."
The Court observed that the appropriate course lies in ensuring faithful and even-handed enforcement of the existing law. The supervisory jurisdiction of the Magistrate under Section 156(3) of the CrPC (or corresponding Section 175 of the BNSS) is of wide amplitude and includes supervisory oversight over the investigation at appropriate stages. This power is intended to ensure that the investigation is conducted in a fair, impartial, and lawful manner, and may be exercised simultaneously during the stage of investigation where the material on record discloses any deficiency, inaction, or taint in the investigative process.
"The requirement of prior sanction under Sections 196 and 197 of the CrPC (Sections 217 and 218 of the BNSS) operates at the stage of taking cognizance and does not extend to the pre-cognizance stage of registration of an FIR or investigation under Section 156(3) of the CrPC (corresponding Section 175(3) of the BNSS). An order directing investigation under Section 156(3) of the CrPC does not amount to "taking cognizance" within the meaning of Section 190 of the CrPC (corresponding Section 210 of the BNSS)", it added.
The Court concluded:
1. 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.
2. The precedents of this Court consistently affirm that 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.
3. 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 legislations, adequately addresses acts that promote enmity, outrage religious sentiments, or disturb public tranquility. The field is, therefore, not unoccupied. The material placed before this Court indicates that 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 rejected the argument that there is a "legislative vacuum" regarding hate speech. It noted that the IPC (and allied laws) already covers these acts; the issue is one of enforcement, not an absence of law.
The Court dismissed the writ petitions, but the criminal appeal was partly allowed to correct the legal error regarding prior sanctions. Several contempt petitions were closed due to compliance, while others were given a two-week window for responses, with a follow-up date of May 19, 2026.
The High Courts are encouraged to issue practice directions to ensure these legal principles are implemented effectively at the ground level.
In November 2023, the Union of India had filed a status report giving the list of 28 States and Union Territories, which had appointed Nodal Officers in compliance with the order passed by the Court in the Tehseen Poonawalla judgment.
The Supreme Court had said that it is not inclined to either legislate or monitor every incident of hate speech across the country, as legislative measures, police stations, and High Courts are already in place.
The Madhya Pradesh Government had filed an affidavit in court stating that for effective prevention of hate speech and hate crimes, the Home Department, Government of MP, by its order on November 20, 2023, has appointed the Superintendent of Police of the Districts of each District and the Deputy Commissioner of Police (DCP) of each Commissionarate as Nodal Officers, and all anti-social elements and unruly youths of the area are being monitored through all the Nodal Officers/ SHO/ Chowki Incharge.
In November 2023, the Court had clarified that it would not be adjudicating on individual matters related to hate speeches and orally asked the concerned parties to approach the respective High Courts for such issues. The Court had specified that its role would be limited to devising a mechanism for the effective implementation of measures in this regard. The clarification was made while the court declined to consider the other listed matters in the batch, asserting that it could only proceed once comprehensive information on compliance from all states had been received.
Pertinently, the Court, in its order dated August 25, 2023, had noted, “the Learned Additional Solicitor General states that the Home Ministry will ascertain and get information from the State Government(s) regarding appointment of the Nodal Officer(s), and a status report will be filed within a period of three weeks from today. In case any State government does not furnish information/ details, the said factum will be stated”.
For the background, in the matter of Poonawalla, a bench of the then Chief Justice of India, Dipak Misra, Justice A.M. Khanwilkar, and the present Chief Justice of India, D.Y. Chandrachud, had pronounced a detailed judgment on the issue. The batch of petitions required a constitutional framework to deal with cow vigilantism and other incidents of lynching or targeted violence, and the commission of offences affecting the human body and against private and public property by mobs under the garb of self-assumed and self-appointed protectors of law.
In another matter, the Court had dismissed a Public Interest Litigation (PIL) filed under Article 32 seeking urgent intervention against a rising tide of incendiary speeches, alleging that they endanger state security, promote divisive ideologies, and challenge national unity. It also sought directions for the issuance of guidelines to regulate and prevent the delivery of provoking speech jeopardizing the sovereignty and endangering the security of the State.