Legislation on hate speech lies in domain of legislature, not courts: SC

New Delhi: Holding that existing laws are sufficient to curb hate speech across the country, the Supreme Court on Wednesday refused to pass additional directions in this regard.

A division bench, comprising Justices Vikram Nath and Sandeep Mehta, ruled that the creation of criminal offences lies squarely within the legislative domain. And that Constitutional courts may interpret the law, but they cannot compel legislation. The top court ruled that legislation on hate speech lies in the domain of the legislature and not the courts.

The Bench ruled that the field of hate speech is not unoccupied. "The concerns do not arise from the law, but its implementation. The statutory mechanism under BNSS provides a comprehensive way to put criminal law in motion," the Bench ruled. It held that no legislative vacuum exists in this regard. And that supervisory jurisdiction of the magistrate has wide amplitude.


"...while constitutional courts may interpret the law and issue directions to secure the enforcement of fundamental rights, they cannot legislate or compel legislation. At the highest point, the court may draw attention to the need for reform. The decision whether and in what manner to legislate remains within the exclusive domain of the Parliament and the state legislatures," the Bench held.

Enlisting remedies already available in the law under the Code of Criminal Procedure (CrPC) and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Bench held that "the duty of the police to register an FIR upon disclosure of a cognisable offence is mandatory. In cases of non-registration of FIR, the CrPC-BNSS provides efficacious remedies. An aggrieved person may approach the Superintendent of Police under Section 154(3) of CrPC or corresponding Section 173(4)of the BNSS and thereafter invoke the jurisdiction of the magistrate under Section 156(3) of CrPC, corresponding Section 175 of BNSS, or proceed by way of a complaint under Section 200 of CRPC, corresponding section 223 of BNSS."

It also refused to hold that an order directing investigation under Section 156 (3) of the CrPC amounts to taking cognizance within the meaning of Section 190 of CrPC or the corresponding Section 210 of BNSS. While refusing to pass orders in this regard, the Bench said "we deem it appropriate to observe that issues relating to hate speech and rumour mongering bear directly upon the preservation of fraternity, dignity and constitutional order".

The Bench said it is for the legislative authorities to consider whether any further legislative or policy measures are warranted in light of evolving societal challenges.

The Bench delivered the judgement in a slew of petitions relating to incidents of hate speech when multiple petitions were filed alleging the spread of communal narratives through broadcast media and social platforms.

During the pendency of these cases, the Bench passed a slew of significant directions in 2023 mandating all state governments and Union Territories to act proactively in cases involving speeches promoting communal hatred or offending religious sentiments.