Supreme Court: While considering writ petition seeking appropriate directions to the Union of India to examine the existing legal framework governing “hate speech” and “rumour mongering”, and to take necessary steps to effectively address and regulate the same by way of a legislation, the Division Bench of Vikram Nath* and Sandeep Mehta, JJ., held that the creation of criminal offences and prescription of punishments lie within the legislative domain. The constitutional scheme founded upon the doctrine of separation of powers, does not permit the judiciary to create new offences or expand the contours of criminal liability through judicial directions.
As regards to issues of hate speech and rumour mongering, the Court held that existing framework of substantive criminal law and allied legislations, adequately addresses acts that promote enmity, outrage religious sentiments, or disturb public tranquility. “The field is, therefore, not unoccupied.”
Background
The petitioner invoked the Supreme Court’s writ jurisdiction under Article 32 of the Constitution seeking to address alleged legislative lacuna vis-a-vis hate speech and rumour mongering. The petitioners were motivated to bring the proceedings primarily due to two developments: Law Commission’s 267th Report dated 23 March 2017, which recommended certain amendments to the criminal law, including the introduction of specific provisions dealing with “incitement to hatred” and emergence of public speeches during the COVID-19 Pandemic allegedly targeting particular religious minorities insinuating that members of those communities were responsible for spreading the virus.
The petitioners thus sought a wide range of relief via the present petition including directing the Union of India to fill the legislative gaps over hate speeches.
The Court was also considering a petition wherein it had to decide whether the existence of prior sanction is a precondition for directing registration of an FIR under offences committed in the IPC and commencement of investigation under Section 156(3) CrPC.
Issues Framed
Given the aforestated context of the petition, the Court framed the following issues:
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Whether the Court can create or expand criminal offences in the absence of legislative action?
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Whether the existing field of substantive criminal law adequately deals with offences relating to hate speech, or the field is legislatively unoccupied?
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Whether the existing framework of criminal procedural law provides adequate and efficacious remedies to address the grievances raised by the petitioners, particularly in cases of non-registration of a First Information Report (FIR)?
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Whether continuing mandamus should be issued in the present case?
Court’s Assessment
Perusing the matter, the Court firstly delved into the nature and essential attributes of crime in criminal jurisprudence and explained that for conduct to constitute a crime in the eye of law, the act or omission in question must be expressly prohibited by the sovereign authority of the State through legislation governing the field.
Answer to Issue 1
Answering whether the Court can create or expand criminal offences in the absence of legislative action, it was stated that the constitutional scheme makes it evident that while the Constitution recognises the doctrine of separation of powers, it does not adopt it in its rigid or absolute form. Nonetheless, the functional demarcation between the 3 organs of the State remains fundamental. One organ cannot usurp the essential functions assigned to another. Just as the legislature cannot assume the function of interpreting laws, which lies within the domain of the judiciary, the judiciary likewise cannot assume the role of the legislature by enacting laws.
The Court stated that 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. It was further explained that in the absence of constitutional silence or a legislative vacuum, the judiciary cannot assume the role of the legislature by determining what ought to constitute an offence or by prescribing the appropriate punishment for a particular criminal act. Where the legislature has already enacted a law governing the field and has provided for the corresponding punishment, the Court cannot, in exercise of its jurisdiction, supplant the legislative scheme.
Distinguishing the circumstances in which principles were laid down in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, the Court explained that the power exercised in Vishaka (supra) was premised upon the existence of a legislative vacuum. Where the law already occupies the field, the formulation of norms in the nature of legislation would fall beyond the permissible contours of judicial power. The constitutional role of the judiciary is primarily to interpret and apply the law, and not to legislate. In appropriate cases, particularly where a legislative vacuum exists, the Court may issue directions or evolve principles while interpreting statutory provisions or enforcing fundamental rights. Such directions, however, are inherently interim in nature and are intended to operate only until the legislature enacts an appropriate law governing the field.
“Court may interpret and develop the law and may also indicate the necessity for legislative reform where the circumstances so warrant. However, the Court cannot issue a writ of mandamus directing the Legislature or the Government to enact a particular law or to introduce a Bill before the Legislature within a stipulated time frame.”
Answer to Issue 2
Answering whether existing penal framework adequately deals with offences relating to hate speech, or is the field legislatively unoccupied, the Court stated that criminal law already contains several provisions which penalise acts that promote enmity between different groups, outrage religious sentiments, or disturb public tranquility, which also represents conscious legislative effort to regulate speech which threatens communal harmony and public order. The Court clarified that mere occurrence of incidents of hate speech cannot lead to the conclusion that the law is silent on the subject. At best, such instances may reveal deficiencies in implementation in particular cases; however, that cannot furnish ground for the Court to assume the legislative function or to supplant the statutory scheme enacted by the legislature.
Examining Law Commission Report No. 267 on “Hate Speech”, the Court stated that there is no complete legislative vacuum in the substantive criminal law insofar as addressing hate speech is concerned. The Law Commission Report pointed out the gaps in effective implementation of the laws related to prevention of hate speech and recommended strengthening the legal framework by introducing specific penal provisions, namely, proposed Section 153-C (prohibiting incitement to hatred) and Section 505-A (causing fear, alarm or provocation of violence), in the Penal Code, 1860 (IPC), along with measures aimed at promoting responsible speech and ensuring more effective enforcement.
Therefore, the issues and instances brought to notice in the present petitions rather, appears to stem from selective, delayed, or inconsistent application of the procedural mechanisms entrusted with enforcing provisions on hate speech. “The problem, therefore, is not one of legislative vacuum but of inadequate or uneven invocation of the legal processes designed to give effect to the law.”
Answer to Issue 3
Answering whether the existing framework of criminal procedural law provides adequate and efficacious remedies to address the grievances raised by the petitioners, particularly in cases of non-registration of an FIR, the Court firstly examined the comprehensive statutory framework under Criminal Procedure Code, 1973 (now Nagarik Suraksha Sanhita, 2023) governing the recording of information relating to cognizable offences.
The Court further stated that the issue whether registration of an FIR is mandatory upon disclosure of a cognizable offence is no longer res integra. Furthermore, the CrPC itself provides a comprehensive set of remedies in cases where the police fail or refuse to register an FIR despite disclosure of a cognizable offence. The Court clarified that Section 156(3) CrPC1 impliedly empowers the Magistrate to direct registration of a criminal case.
However, where the grievance of the complainant persists even after exhaustion of the statutory remedies, the constitutional framework provides an additional safeguard. Articles 32 and 226 of the Constitution, respectively, confer wide powers, to ensure that the rule of law is upheld and that public authorities act within the bounds of their legal obligations. “The existence of this layered framework, both statutory and constitutional, clearly demonstrates that the legal system provides adequate and effective mechanisms to redress the grievances highlighted by the petitioners.”
The Court stated that any deficiency lies not in the absence of law, but in its application and enforcement in specific cases. “The function of the Court is not to create new offences or construct parallel regulatory regimes, but to ensure faithful implementation of the remedies already envisaged under law. Where the field stands fully occupied by legislation, supported by adequate procedural safeguards, the exercise of judicial power must necessarily be guided by the discipline of constitutional restraint.”
Answer to Issue 4
Answering whether there is a requirement for issuance of continuing mandamus in the present matter, the Court stated that the writ of mandamus is a prerogative remedy vested in Constitutional Courts under Articles 32 and 226 of the Constitution and it may be invoked in cases where no equally efficacious remedy exists and the ends of justice so demand.
The Court opined that issuance of a continuing mandamus in the present case and in the manner suggested by the petitioners would, require the Court to keep the matter pending in anticipation of future contingencies, including possible commission of offences. Such an approach is neither contemplated by law nor consistent with the settled principles governing the exercise of writ jurisdiction. Secondly, the issuance of a continuing mandamus in anticipation of a possible failure in discharge of statutory duty would result in the Court assuming functions that are not constitutionally vested in it. Such an approach would trench upon the domain of other constitutional authorities and disturb the carefully calibrated scheme of distribution of powers under the Constitution.
Therefore, the Court must exercise due circumspection while invoking its constitutional powers and employing judicially evolved mechanisms. The Court reiterated that where the statute itself provides a complete and efficacious remedial framework, it would be inappropriate for the Court to transgress the limits imposed by the doctrine of separation of powers by assuming functions that are primarily vested in the Executive. It is only upon a demonstrated failure in the discharge of statutory obligations that constitutional courts may justifiably step in, in exercise of their power of judicial review.
In an ode to “Fraternity” in the Preamble vis-à-vis the idea of “Vasudhaiva Kutumbakam”, the Court stated the mandate under Article 51-A of the Constitution is unequivocal that there is a fundamental duty upon every citizen to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic, regional and sectional diversities. “The Constitution of India, thus, does not envisage classification as a means to foster division or discrimination among its citizens. On the contrary, it seeks to promote the welfare of the nation through collective coexistence, grounded in mutual respect, harmony, and a shared sense of fraternity.”
Issue regarding existence of Prior Sanction as precondition for directing registration of an FIR and commencement of investigation under Section 156(3) CrPC
Considering this issue which emanated from communally charged speeches made by a Union Minister and Member of Parliament in January 2020, the Court stated that where information discloses the commission of a cognizable offence, registration of an FIR is mandatory. The police, in such circumstances, have no discretion in the matter, either under the statutory scheme or by way of interpretative latitude. The registration of an FIR under Section 154 CrPC is the foundational step to set the criminal law in motion. The provision does not admit of any distinction based on the status or identity of the person against whom the allegations are made.
The Court explained that requirement of sanction operates at the stage of taking cognizance by the Court and not at the anterior stage of investigation. The scheme of CrPC does not contemplate any embargo on the direction for registration of an FIR or the conduct of investigation at the pre-cognizance stage.
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. Any interpretation that makes the registration of an FIR contingent upon prior sanction would invert this statutory scheme and render the provisions relating to investigation unworkable.
Conclusion and Decision
With the aforestated assessment, the Court thus concluded the following that:
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The present petitions do not require interference under Article 32 of the Constitution.
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The Supreme Court in exercise of its constitutional jurisdiction cannot create or expand criminal offences or prescribe punishments in the absence of legislative sanction.
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The field of substantive criminal law governing hate speech is not unoccupied. The existing statutory framework contains adequate provisions to address acts that promote enmity, hatred, or disturb public order. The grievance projected in the petitions pertains not to any legislative vacuum, but to issues of enforcement.
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Procedural framework under the CrPC/BNSS provides a comprehensive and multi-tiered mechanism to address grievances arising from non-registration of FIRs. The remedies available under Sections 154(3), 156(3) and 200 CrPC, coupled with the supervisory jurisdiction of the Magistrate, constitute an efficacious statutory scheme.
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The supervisory jurisdiction of the Magistrate under Section 156(3) CrPC2 is of wide amplitude and includes supervisory oversight over the investigation at appropriate stages. This power is intended to ensure that the investigation is conducted in a fair, impartial, and lawful manner, and may be exercised simultaneously during the stage of investigation, where the material on record discloses any deficiency, inaction, or taint in the investigative process.
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The requirement of prior sanction under Sections 196 and 197 CrPC3 operates at the stage of taking cognizance and does not extend to the pre-cognizance stage of registration of FIR or investigation under Section 156(3) CrPC.
[Ashwini Kumar Upadhyay v. Union of India, WRIT PETITION (CIVIL) NO. 943 OF 2021, decided on 29-4-2026]
*Judgment by Justice Vikram Nath
Advocates who appeared in this case:
Mr. Sanjay R. Hegde, Sr. Advocate, Amicus Curiae
Mr. Ashwini Kumar Upadhyay, petitioner-in-person; Mr. M.R. Shamshad, Senior counsel; Mr. Nizamuddin Pasha, Counsel; Mr. Sanjay Parikh, Senior counsel; Mr. Dama Seshadri Naidu, Senior counsel; Ms. Nisha Bhambhani, Counsel
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