Hate Speech Runs Contrary To Deeper Civilizational Ethos Of India: Supreme Court Cautious About "Us vs Them" Mindset
The Bench clarified that while 'suo motu' FIR mandates remain in force, actual knowledge of the incident is a prerequisite for initiating contempt proceedings against officials.
The Supreme Court in its judgment on hate speech has observed that in a nation rooted in “Vasudhaiva Kutumbakam”, a binary of ‘us’ versus ‘them’ is antithetical to the Preamble’s promise of fraternity and moral fabric of the Republic.
On the modern exclusionary construct of ‘citizenship’, the Bench noted that selective exclusion or division runs contrary to deeper civilisational ethos of India.
Justice Vikram Nath and Justice Sandeep Mehta observed, “For a nation that has historically embraced the idea of the world as one family, the modern construct of ‘citizenship’ cannot be reduced to a basis for exclusion or division. It is, therefore, 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”.
On the argument that authorities were under an obligation to register suo motu FIRs, and failure to do so would automatically amount to contempt of the orders dated October 21, 2022 and April 28, 2023, the Bench noted, “…We find this submission to be overly broad and untenable. The aforesaid directions were issued to remind the authorities of their statutory obligations and to ensure prompt action in appropriate cases. The element of “hesitation” or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking the contempt jurisdiction of this Court.”.
Advocate Ashwini Kumar Upadhyay appeared in person, Senior Advocate M.R. Shamshad appeared for the petitioner and Senior Advocate Sanjay Parikh appeared for PUCL, while Senior Advocate Sanjay R. Hegde appeared as amicus curiae.
The proceedings originated from a batch of 13 writ petitions, including a lead petition by Ashwini Kumar Upadhyay, seeking directions to the Union of India to regulate "hate speech" and "rumour-mongering" through new legislation. The petitioners relied on the Law Commission's 267th Report and cited instances of inflammatory speeches during the COVID-19 pandemic targeting religious minorities as evidence of a legislative vacuum and institutional inertia.
Pursuant to which, the Court examined whether it could expand criminal offences in the absence of legislative action and if the existing criminal law, including the Bharatiya Nyaya Sanhita (BNS) and the Code of Criminal Procedure (CrPC), adequately addressed the grievances. Earlier interim orders had directed the police in Delhi, Uttarakhand, and Uttar Pradesh to take suo motu action to register FIRs against hate speech.
The issues identified by the Court were:
- Issue I: Whether the Supreme Court possesses the authority to create or expand the scope of criminal offences when there is an absence of specific legislative action on the matter.
- Issue II: Whether the current framework of substantive criminal law is sufficient to deal with offences related to hate speech, or if the field remains legislatively unoccupied.
-Issue III: Whether the existing criminal procedural law offers adequate and effective remedies for the grievances raised, particularly concerning the non-registration of First Information Reports (FIRs).
-Issue IV: Whether the circumstances of the case warrant the issuance of a "continuing mandamus" to ensure ongoing judicial oversight of the issue.
The Court noted that "fraternity" in the Preamble resonates with universal kinship and requires every citizen to recognise the shared humanity of others. It held that the existing framework, including Section 156(3) of the CrPC, provides sufficient judicial oversight to address the non-registration of FIRs. The Court further noted that continuing mandamus was not warranted as there was no systemic failure of such magnitude that would justify continuous judicial monitoring over the executive.
“Hate speech is thus not merely a deviation from acceptable discourse; it is fundamentally antithetical to the constitutional value of fraternity and strikes at the moral fabric of our Republic. It also runs counter to the deeper civilisational ethos of India. The land historically known as Bharata has, across centuries, been a refuge for diverse communities fleeing persecution, offering not merely shelter but acceptance and assimilation. This tradition of inclusivity is not episodic, but deeply embedded in the cultural consciousness of the nation”, the Bench noted.
The Court, thus, declined to issue the specific directions sought but observed that the Union of India may consider legislative measures as suggested in the Law Commission’s 267th Report. Several contempt petitions were closed, while others were granted two weeks for respondents to file responses.
Cause Title: Ashwini Kumar Upadhyay v. Union of India & Ors. Writ Petition (Civil) No. 943 Of 2021
Appearances:
Petitioner: Ashwini Kumar Upadhyay, Adv., Petitioner-in-person, M.R. Shamshad, Sr. Adv., Nizamuddin Pasha, Adv.
Respondents: Sanjay Parikh, Senior Counsel.