Supreme Court Reserves Judgment In Pleas Related To Hate Speech Incidents In Country

The Supreme Court, today, has reserved the order in various pleas seeking directions to tackle hate speech incidents in the country.

The Supreme Court has 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 ordered, "Order reserved. It is open to the parties to file brief written submissions within two weeks."

Senior Advocate Siddharth Aggarwal, Senior Advocate MR Shamshad, Senior Advocate Sanjay Parekh, Senior Advocate Sanjay Hegde and Advocate Nizam Pasha represented the Petitioners while ASG SV Raju and Senior Advocate DS Naidu appeared for the Respondents.

Advocate Nizam Pasha, representing several petitioners, highlighted a persistent "reluctance" among law enforcement agencies to act, particularly when the accused are associated with ruling establishments. He argued that the primary issue is not an inadequacy of existing laws, but a failure of implementation. Despite the Court’s previous directions, Pasha noted that "usual suspects" continue to deliver inflammatory speeches with impunity. He emphasized that in many instances, even when FIRs are registered, no arrests are made, and the "tone and tenor" of advertised events clearly signal impending hate speech that authorities fail to preempt.

"There have been instances where events were advertised in advance, indicating the tone and tenor of the event...When the Court passed orders, incidents did not take place...speeches are usually given by persons who are usual suspects. Multiple FIRs are there against the same organizations and individuals," he submitted.

The petitioners further brought to the Court’s attention the evolving nature of hate speech in the digital age. A specific application was filed regarding an AI-generated video posted on social media, which allegedly used communal narratives for political gain.

Senior Adv Siddharth Aggarwal said, "I am in an SLP in which the subject matter arises out of hate speech, that's why this SLP came to be tagged. But the issue is distinct. I filed a complaint before a Magistrate, Patiala House Court, for registration of an FIR. Magistrate refused, saying a sanction was required. But a sanction is required at cognizance stage. I am challenging the HC judgment, which confirmed that order.

Justice Nath replied, "Submit your brief note."

Senior Advocate Sanjay Hegde pointed out the lifecycle of modern hate speech: beginning as a "bazar phrase," escalating on social media, and eventually being amplified by mass media—citing the "UPSC Jihad" broadcast as a primary example. He urged the Court to consider ways to make hate speech "unprofitable" for large corporations and social media platforms.

He said, "The problem is often one man or one organisation thinking that their freedom of speech amounts to hate speech for another. It’s a question of punching down on somebody who has a lower social quotient...Why is it that the mass media ultimately gets into this kind of lionising of this bully pulpit? COVID Jihad, all sorts of things are said. I will come back with a detailed note on the larger issue."

Senior Advocate MR Shamshad and Advocate Amit Pai argued that police frequently refuse to register FIRs by incorrectly claiming that prior "sanction" is required from the government. Legal experts clarified that while a sanction may be necessary at the stage of taking cognizance by a Magistrate, it is not a prerequisite for the initial registration of an FIR or the commencement of an investigation.

Senior Advocate Sanjay Parekh represented the People's Union for Civil Liberties (PUCL), said that the focus should be on the need for specific changes to the Tehseen S. Poonawalla vs. Union of India & Ors.guidelines to better address hate speech.

Furthermore, a counsel submitted that hate speech should be recognized as a "Constitutional Tort." This perspective suggests that hate speech is not merely a law-and-order problem but a violation of constitutional rights that results in a discriminatory effect on marginalized groups. By treating it as a tort, the legal system could potentially provide better avenues for compensation and accountability beyond the standard criminal law framework.

In response, Additional Solicitor General (ASG) SV Raju, appearing for the Union, contended that there has been substantial compliance with the Court's directives. Regarding specific contempt petitions, he stated that FIRs had been registered in the majority of reported incidents, while others were found not to constitute a criminal offence upon inquiry.

While the Court reserved its orders on the broader batch of petitions, one petition, i.e. Kazeem Ahmad Sherwani v. The State of Uttar Pradesh & Ors., involving an alleged 2021 hate crime against a Muslim cleric in Noida, will be heard later.

Accordingly, the Court reserved the matter for orders and asked all the parties to file a note within two weeks.

Background

In November 2023, the Union of India 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 has 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.

Cause Title: Ashwini Kumar Upadhyay v. Union Of India & Ors. and connected matters [W.P.(C) No. 943/2021]