New Delhi: The Supreme Court of India has dismissed a batch of writ petitions seeking directions to the Union of India to examine the existing legal framework governing hate speech and rumour-mongering and to take legislative action thereon, including implementation of the recommendations contained in the Law Commission’s 267th Report on Hate Speech dated 23rd March, 2017.
The Bench comprising Justice Vikram Nath and Justice Sandeep Mehta, inter alia, held that courts cannot create or expand criminal offences in the absence of legislative sanction; that the existing statutory framework of criminal law is not legislatively unoccupied in the field of hate speech; that adequate procedural remedies exist under the Code of Criminal Procedure for aggrieved persons; that a continuing mandamus is unwarranted; and that the requirement of prior sanction under Sections 196 and 197 of the CrPC operates only at the stage of taking cognizance and not at the pre-cognizance stage of ordering registration of an FIR under Section 156(3) of CrPC.
The Court also delivered an extended epilogue on the constitutional significance of fraternity and the idea of vasudhaiva kutumbakam as a bulwark against the menace of hate speech.
The proceedings had been occasioned primarily by two developments. First, reliance was placed upon the 267th Report of the Law Commission of India, which had recommended amendments to the criminal law, including the introduction of specific provisions dealing with incitement to hatred. Second, the petitioners referred to the emergence of public speeches during the COVID-19 pandemic allegedly targeting particular religious minorities by insinuating that members of those communities were responsible for spreading the virus. The batch comprised thirteen writ petitions seeking, inter alia, directions to the Union of India to implement the Law Commission’s recommendations, to stop the dissemination of fake news and communally biased media coverage, to ensure registration of FIRs against those delivering hate speeches, to constitute independent investigative committees, and to impose enhanced and consecutive sentences for offences against public tranquillity and religion.
The batch also included an SLP challenging the dismissal of a complaint seeking a direction for registration of an FIR against certain public functionaries in relation to speeches delivered on 27th and 28th January, 2020; a criminal SLP arising out of a High Court judgment on the question of prior sanction; and several contempt petitions.
On the first issue—whether this Court can create or expand criminal offences in the absence of legislative action—the Court held that the constitutional role of the judiciary is primarily to interpret and apply the law and not to legislate. The Court relied upon the decisions in SCWLA v. Union of India (2016) 3 SCC 680, Dr. Ashwini Kumar v. Union of India (2020) 13 SCC 585, and Union of India v. K. Pushpavanam (2023) 20 SCC 736 to reiterate that courts cannot issue a writ of mandamus directing the legislature or the executive to enact a particular law or to introduce a Bill within a stipulated time frame.
It was held that the authority to enact binding and general norms of conduct, necessarily involving broader political, social, and moral considerations, lies exclusively within the legislative domain, and that any attempt by courts to prescribe detailed statutory schemes or to frame provisions akin to legislation would amount to judicial law-making and would impermissibly trench upon the functions assigned to the legislature. The exception recognised in Vishaka v. State of Rajasthan (1997) 6 SCC 241, of framing interim guidelines to fill a legislative vacuum, was held to be inapplicable where the field is already occupied by statutory law.
On the second issue—whether the existing field of substantive criminal law adequately deals with hate speech or is legislatively unoccupied—the Court held that the field is not unoccupied. The Court surveyed the provisions under Chapters VIII (offences against public tranquillity), XV (offences relating to religion), and XXI (criminal intimidation, insult and annoyance) of the Indian Penal Code, as well as provisions under allied legislation, and held that these collectively constitute an adequate statutory framework addressing acts that promote enmity, outrage religious sentiments, or disturb public order.
The Court clarified that the mere occurrence of incidents of hate speech does not lead to the conclusion that the law is silent on the subject, and that the concerns raised by the petitioners arise not from the absence of law but from deficits in its consistent and effective enforcement, a matter that cannot justify the judicial assumption of legislative functions.
On the third issue—whether the existing framework of criminal procedural law provides adequate and efficacious remedies for non-registration of FIRs—the Court held that the CrPC, as also the Bharatiya Nagarik Suraksha Sanhita, 2023, provides a comprehensive and multi-tiered mechanism.
Reaffirming the Constitution Bench judgment in Lalita Kumari v. Government of Uttar Pradesh, the Court reiterated that registration of an FIR is mandatory where information discloses the commission of a cognizable offence. The Court noted that an aggrieved person may approach the Superintendent of Police under Section 154(3) of CrPC, invoke the jurisdiction of the Magistrate under Section 156(3) for a direction to register an FIR, or proceed by way of a complaint under Section 200.
The Court further held that in cases of continued non-redressal, constitutional remedies under Articles 32 and 226 remain available, though these are extraordinary remedies not to be invoked in a routine manner so as to bypass the statutory framework. The Court accordingly declined to issue a continuing mandamus, holding on the fourth issue that such a course would amount to the assumption of functions not constitutionally vested in this Court and would involve the Court in anticipating possible failures in the discharge of statutory duty, a course inconsistent with settled principles of judicial restraint.
The Criminal Appeal arising out of SLP (Criminal) No. 5107 of 2023 was partly allowed. The appellant had filed a complaint before the Magistrate under Section 156(3) of CrPC seeking registration of an FIR against certain public functionaries for speeches alleged to disclose cognizable offences. The Magistrate had dismissed the complaint on the ground that prior sanction under Sections 196 and 197 of CrPC was a sine qua non before he could direct registration of an FIR, and the Delhi High Court had affirmed this view, holding that the exercise of power under Section 156(3) necessarily involves application of judicial mind and is therefore tantamount to taking cognizance, thereby attracting the sanction requirement.
The Supreme Court set aside this finding. Relying on Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627 and State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728, the Court held that the power exercised by a Magistrate under Section 156(3) falls squarely at the pre-cognizance stage and that an order directing investigation under the said provision does not amount to taking cognizance within the meaning of Section 190 of CrPC. The requirement of prior sanction under Sections 196 and 197 of CrPC operates only at the stage of taking cognizance and not at the anterior stage of investigation. The Court further held that even where the Magistrate does not expressly direct registration of an FIR while exercising jurisdiction under Section 156(3), such direction is implicit, and it is the bounden duty of the officer in charge of the police station to register an FIR upon disclosure of a cognizable offence.
The Court’s judgment also contained a significant epilogue described as “an ode to fraternity in the Preamble vis-à-vis the idea of vasudhaiva kutumbakam,” in which the Bench reflected upon the constitutional foundations of the value of fraternity and its relevance to the menace of hate speech. Drawing upon the majority opinion in Kesavananda Bharati v. State of Kerala and the Constitution Bench judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, the Court reaffirmed that the Preamble is an integral part of the Constitution and that the foundational values of justice, liberty, equality, and fraternity imbued therein carry substantive constitutional meaning.
Tracing the concept of fraternity to Dr. B.R. Ambedkar’s formulation of a “sense of common brotherhood of all Indians” in the Constituent Assembly Debates, the Court observed that fraternity is not limited to any particular community but is a unifying constitutional value that transcends all forms of social, religious, and cultural divisions. The Court observed that speech which fosters division or animosity, particularly hate speech, strikes at the very root of fraternity, which is the sine qua non of a cohesive society founded upon plurality and multiculturalism.
The Court further drew upon the ancient maxim of vasudhaiva kutumbakam, the idea that the entire world is one family, rooted in the Yajur Veda, as resonating in constitutional terms with the principle of fraternity. The Court noted that the constitutional mandate under Article 51A places a fundamental duty upon every citizen to promote harmony and the spirit of common brotherhood transcending religious, linguistic, regional, and sectional diversities, and cautioned that the preservation of constitutional order is not the responsibility of the State alone but requires a collective constitutional conscience and sustained fidelity of citizens to the values embodied in the Constitution.
In the Civil Appeal arising from SLP (Civil) No. 6913 of 2021, the Court, after examining the specific reliefs sought, dismissed the same for reasons consistent with the conclusions recorded in Part I of the judgment. On the contempt petitions, the Court found that compliance had been effected in several matters and that no case of contempt had been made out, and accordingly closed Contempt Petition Nos. 776 of 2023, Diary No. 11853 of 2023, Diary No. 5793 of 2024, and Diary No. 3470 of 2025. The remaining contempt petitions—Contempt Petition Nos. 1153 of 2023, Diary No. 41754 of 2023, Contempt Petition No. 1235 of 2023, and Diary No. 1579 of 2025—were adjourned with a direction to the respective respondent authorities to file their responses within two weeks and listed separately for consideration on 19th May, 2026.
The Registry was directed to transmit a copy of the judgment to all High Courts, which may consider the feasibility of issuing appropriate practice directions or guidelines to give full and effective implementation to the law declared in the judgment.
The Court further observed that 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.
Case Title: Ashwini Kumar Upadhyay v. Union of India & Ors. [W.P. (Civil) No. 943 of 2021 and connected matters]
