The Supreme Court declined to frame new directions on hate speech, holding that creation of offences lies within the legislative domain, while permitting the Union and States to consider further amendments if needed.
The Supreme Court on Wednesday observed that existing criminal law adequately deals with hate speech offences.
A Bench of Justice Vikram Nath and Justice Sandeep Mehta held that hate speech does not remain outside legislation.
The Court said there is no legislative vacuum on hate speech.
It also held that the judiciary cannot create a criminal offence.
The Court observed that creation of criminal offences and prescription of punishments fall within the legislative domain.
It said the doctrine of separation of powers does not allow courts to create new offences.
The Bench also said courts cannot expand criminal liability through judicial directions.
However, the Court may draw the attention of the legislature and executive to the need for reform.
The Supreme Court held that existing criminal law already covers acts promoting enmity.
It said the legal framework also covers acts outraging religious sentiments and disturbing public tranquillity.
The Court referred to provisions of the IPC and allied laws.
Therefore, it rejected the argument that hate speech remains legislatively unoccupied.
The Court noted that the petitioners’ real grievance related to lack of enforcement.
It said the grievance was not about absence of legal provisions.
However, the Bench held that enforcement concerns cannot justify judicial law-making.
The Court also referred to the Bharatiya Nagarik Suraksha Sanhita.
It noted that the BNSS provides for registration of FIRs in cognizable offences.
It also provides remedies before the Magistrate when police fail to act.
Even while declining the directions sought, the Court noted the seriousness of hate speech.
It said hate speech and rumour mongering directly affect fraternity, dignity and constitutional order.
The Court said the Union and States may consider further legislative measures if required.
It also referred to the Law Commission’s 267th Report dated March 23, 2017.
The Supreme Court closed contempt petitions alleging non-compliance by police officials of various States.
These petitions concerned earlier directions on hate speech.
Most petitions in the batch were filed in 2020.
They arose in the context of the “Corona Jihad” social media campaign and the “UPSC Jihad” programme aired by Sudarshan TV.
In 2020, the Supreme Court had restrained the telecast of the “UPSC Jihad” show.
Other petitions came in later years.
These included petitions by Qurban Ali and Major General S.G. Vombatkere.
They concerned alleged hate speeches during “Dharam Sansad” events and religious gatherings.
The batch also included PILs filed by Advocate Ashwini Upadhyaya.
He sought legislation against hate speech.
In 2023, the Supreme Court directed all States and Union Territories to act against hate speech.
The Court directed police to suo motu register FIRs in cases involving communal hatred or offences against religious sentiments.
It also said police should act without waiting for a formal complaint.
Later, several contempt petitions alleged non-compliance with those directions.
The most recent application concerned an AI-generated video allegedly posted by the BJP’s Assam unit.
The video allegedly showed fear of Muslims taking over Assam if the party lost elections.
While reserving judgment in January, the Bench had indicated that it would close all matters.
It also said parties could pursue other remedies.
However, the Court kept one matter alive.
That case is Kazeem Ahmad Sherwani v. The State of Uttar Pradesh And Ors.
It concerns an alleged 2021 hate crime against a Muslim cleric in Noida.
The Supreme Court will examine trial progress and related steps in that matter.
