The Supreme Court has definitively held that the judiciary cannot create or expand criminal offences, even in response to rising instances of hate speech, affirming that such legislative authority rests exclusively with Parliament. The Court emphasized that existing statutory provisions under the Indian Penal Code and the Code of Criminal Procedure provide adequate remedies, and the real challenge lies in their consistent enforcement.
Background & Facts
The Dispute
This batch of 13 writ petitions, filed under Article 32 of the Constitution, sought judicial intervention to address the proliferation of hate speech and rumour-mongering, particularly targeting religious minorities. The petitions arose against the backdrop of inflammatory speeches during the COVID-19 pandemic, including those linking the Tablighi Jamaat gathering at Nizamuddin Markaz to virus spread, and subsequent incidents of hate speech by public figures in Haridwar, Delhi, and elsewhere. Petitioners contended that the absence of a specific statutory definition of "hate speech" created a legislative vacuum, compelling the Court to fill it.
Key Facts
- The Law Commission of India submitted its 267th Report on "Hate Speech" on 23.03.2017, recommending new provisions (Sections 153C and 505A) in the IPC to criminalize incitement to hatred.
- Multiple petitions referenced speeches delivered between January and December 2020, including by a Union Minister and a Member of Parliament.
- On 03.03.2024, an event organized by the Sakal Hindu Samaj in Malwani, Mumbai, allegedly involved inflammatory speech against minorities.
- Several petitions sought the registration of FIRs under Sections 153A, 153B, 295A, and 505 of the IPC, which criminalize promoting enmity, outraging religious feelings, and spreading false information.
- In W.P.(C) No. 940 of 2022, the Court issued an interim order on 21.10.2022 directing police authorities to register FIRs suo motu when hate speech offences were disclosed.
- A subsequent order on 28.04.2023 extended this direction to all State Police Authorities.
- Contempt petitions were filed alleging non-compliance with these directions.
Procedural History
- 23.03.2017: Law Commission submits Report No. 267 recommending new hate speech provisions.
- 08.04.2020: Ministry of Health and Family Welfare issues advisory against stigmatizing communities during COVID-19.
- 29.01.2020: Complaint filed with Delhi Police regarding speeches by public figures.
- 05.02.2020: Complaint filed under Section 156(3) CrPC before Additional Chief Metropolitan Magistrate, Delhi.
- 26.08.2020: Trial Court dismisses complaint, holding prior sanction under Section 196 CrPC required.
- 13.06.2022: Delhi High Court affirms Trial Court’s order.
- 17.04.2023: Supreme Court issues notice in SLP (Crl.) No. 5107 of 2023.
- 21.10.2022: Supreme Court issues interim directions to police to register FIRs suo motu in hate speech cases.
- 28.04.2023: Supreme Court extends suo motu FIR directive to all State Police.
- 29.04.2026: Supreme Court delivers judgment in the batch.
The Parties' Positions
Petitioners (including Ashwini Kumar Upadhyay and others):
- Argued that existing criminal law is inadequate to address modern hate speech.
- Contended that legislative inaction on Law Commission’s 267th Report created a constitutional vacuum.
- Sought creation of new offences, consecutive sentencing for hate-related crimes, and a continuing mandamus for judicial oversight.
- Invoked Vishaka v. State of Rajasthan to justify judicial law-making.
Respondents (Union of India and others):
- Argued that the judiciary cannot legislate and must respect separation of powers.
- Maintained that Sections 153A, 153B, 295A, 505 IPC and Sections 196, 197 CrPC provide a comprehensive framework.
- Asserted that the problem is not lack of law but poor enforcement.
- Opposed continuing mandamus as judicial overreach.
Relief Sought
- Direct the Union to enact legislation on hate speech and rumour-mongering.
- Declare sentences for hate-related offences under IPC to be consecutive, not concurrent.
- Issue a continuing mandamus for judicial monitoring of FIR registration.
- Direct registration of FIRs in hate speech cases, including suo motu action.
- Impose contempt proceedings for non-compliance with interim orders.
The Legal Issue
The central questions were: (1) Can the Supreme Court create new criminal offences or expand existing ones in the absence of legislative action? (2) Does the existing substantive and procedural criminal law adequately address hate speech, or is there a legislative vacuum? (3) Is a continuing mandamus warranted to ensure enforcement of statutory duties by police authorities?
Arguments Presented
For the Appellant/Petitioner
Petitioners relied on Vishaka v. State of Rajasthan to argue that judicial intervention is permissible when there is a legislative vacuum and a fundamental right is at stake. They contended that the absence of a statutory definition of "hate speech" and the non-implementation of the Law Commission’s 267th Report created a constitutional abeyance. They urged the Court to impose consecutive sentencing for offences under Sections 153A, 295A, and 505 IPC, and to issue a continuing mandamus to ensure police compliance with suo motu FIR registration. They emphasized that hate speech undermines fraternity, dignity, and secularism under the Preamble.
For the Respondent/State
The Union argued that the judiciary cannot assume legislative functions under the doctrine of separation of powers. It cited SCWLA v. Union of India and Dr. Ashwini Kumar v. Union of India to assert that courts may interpret law but cannot prescribe punishments or create offences. It maintained that Sections 153A, 153B, 295A, and 505 IPC, along with Sections 196 and 197 CrPC, provide a robust framework. The Union stressed that the issue is not legal absence but institutional inertia, and that remedies under Sections 154(3), 156(3), and 200 CrPC are available and must be exhausted before approaching the Court.
The Court's Analysis
The Court undertook a comprehensive doctrinal analysis, beginning with the foundational principle of separation of powers under the Indian Constitution. It reaffirmed that while the Constitution does not adopt the doctrine in its rigid form, the functional demarcation between the Legislature, Executive, and Judiciary remains sacrosanct. The Court held that the power to define crimes and prescribe punishments lies exclusively with the Legislature, citing Asif Hameed v. State of J&K, SCWLA v. Union of India, and Union of India v. K. Pushpavanam.
"The Legislature, being supreme in its own domain under the Constitution, is the sole authority to determine when and in respect of what subject matter laws ought to be enacted. No directions in this regard can be issued to the legislature by the courts."
The Court rejected the petitioners’ reliance on Vishaka, clarifying that judicial guidelines are permissible only in the face of a legislative vacuum. Here, the Court found no such vacuum: Sections 153A, 153B, 295A, and 505 IPC, along with the Representation of the People Act, 1951, and the Cable Television Network Act, 1995, already criminalize hate speech in various forms.
On the issue of FIR registration, the Court reaffirmed Lalita Kumari v. Government of Uttar Pradesh, holding that registration is mandatory upon disclosure of a cognizable offence, with no discretion left to the police. It held that a preliminary inquiry is permissible only in limited categories and not to delay or avoid registration.
Crucially, the Court addressed the contention that prior sanction under Section 196 CrPC is required before a Magistrate can direct FIR registration under Section 156(3). It held that Section 196 operates only at the stage of taking cognizance under Section 190 CrPC, not at the pre-cognizance stage of investigation. The Court cited State of Karnataka v. Pastor P. Raju and Mohd. Yousuf v. Afaq Jahan to clarify that directing an FIR under Section 156(3) is not "taking cognizance" and therefore does not trigger the sanction requirement.
"The requirement of sanction is, therefore, a condition precedent only for taking cognizance and not for the registration of an FIR or for the conduct of investigation."
Regarding continuing mandamus, the Court held that such a remedy cannot be issued in anticipation of future non-compliance. It emphasized that judicial oversight must be triggered by demonstrated failure, not speculative apprehension, citing Lok Prahari v. Union of India and National Federation of Indian Women v. Union of India.
The Court also examined the contempt petitions and found that where FIRs had been registered in compliance with its orders, no contempt was made out. Where complaints had not been filed with authorities, the Court declined to infer wilful disobedience.
The Verdict
The Supreme Court dismissed all writ petitions and the civil appeal. The criminal appeal was partly allowed. The Court held that: (1) The judiciary cannot create or expand criminal offences; (2) The existing substantive and procedural law under the IPC and CrPC adequately addresses hate speech; (3) Prior sanction under Section 196 CrPC is not required for a Magistrate to direct FIR registration under Section 156(3); (4) A continuing mandamus is impermissible; and (5) Contempt petitions fail where compliance has occurred or where no complaint was lodged with authorities. The Delhi High Court’s judgment was set aside to the extent it held that prior sanction is required for Section 156(3) orders. The Court directed that all High Courts examine the feasibility of issuing practice directions to implement this judgment.
What This Means For Similar Cases
FIR Registration Is Mandatory Without Prior Sanction
- Practitioners must now argue that Section 196 CrPC does not bar a Magistrate from directing FIR registration under Section 156(3) in cases involving Sections 153A, 295A, or 505 IPC.
- Police cannot refuse to register an FIR on the ground that sanction is pending.
- Applications under Section 156(3) must be decided on whether a cognizable offence is disclosed, not on the status of the accused.
Judicial Review Must Follow Statutory Remedies
- Petitioners must exhaust remedies under Sections 154(3) (Superintendent of Police) and 156(3) (Magistrate) before approaching High Courts under Articles 226 or 32.
- Writ petitions seeking FIR registration will be dismissed if statutory remedies are bypassed.
- Courts will not entertain routine complaints about non-registration without proof of prior statutory recourse.
Legislative Vacuum Cannot Justify Judicial Law-Making
- Courts will not create new offences, even for urgent social issues like hate speech.
- The Law Commission’s recommendations remain advisory; Parliament alone may enact new laws.
- Advocates must frame arguments around enforcement of existing law, not judicial innovation.
Contempt Requires Demonstrated Disobedience
- Contempt petitions based on non-registration of FIRs will fail if no complaint was ever filed with police.
- "Suo motu" obligations under interim orders apply only when authorities have actual knowledge of a cognizable offence.
- Compliance with interim orders must be evidenced by FIR registration or official action, not mere assertion.
