The Supreme Court has clarified the limits of judicial power in dealing with hate speech, holding that courts cannot create new criminal offences or prescribe punishments in the absence of legislative action.
The bench Justice Vikram Nath and Justice Sandeep Mehta emphasized that the power to define crimes and prescribe punishments lies exclusively with the legislature, and any attempt by the judiciary to step into that domain would violate the constitutional doctrine of separation of powers.
The petitions had urged the Court to direct the Union Government to frame stricter laws to curb hate speech, citing increasing instances of inflammatory speech, particularly during the COVID-19 pandemic and in public discourse. Petitioners also relied on the 267th Report of the Law Commission of India, which had recommended introducing specific provisions dealing with incitement to hatred.
However, the Court rejected the plea for judicial intervention in law-making, holding that there is no legislative vacuum in the field. It observed that existing provisions under criminal law—such as those penalising promotion of enmity, outraging religious sentiments, and disturbing public order—already address the issue of hate speech.
The bench underscored that merely because instances of hate speech continue to occur does not mean the law is inadequate. Rather, the issue lies in ineffective enforcement. “The difficulty lies not in the absence of law, but in its implementation,” the Court noted, reinforcing that enforcement agencies must act promptly and effectively within the existing statutory framework.
On the constitutional question, the Court examined whether it could expand criminal law in the absence of legislation. Answering in the negative, it reiterated that the judiciary’s role is limited to interpreting and applying the law. While courts may issue interim guidelines in cases of legislative vacuum—as seen in landmark rulings—they cannot create enduring legal frameworks where the legislature has already occupied the field.
The Court also addressed concerns regarding non-registration of FIRs in hate speech cases. It reaffirmed that under criminal procedure, registration of an FIR is mandatory upon disclosure of a cognizable offence, and remedies exist within the statutory framework to address police inaction, including approaching higher authorities and constitutional courts.
Importantly, the Court declined to issue a continuing mandamus or directions for framing new legislation, observing that such matters fall within the policy domain of Parliament. It cautioned that judicial overreach into legislative functions would disturb the constitutional balance among the three organs of the State.
The Court acknowledged the serious impact of hate speech on constitutional values such as fraternity, dignity, and social harmony. It stressed that the State has a responsibility to preserve the constitutional ethos and ensure that existing laws are enforced without bias or delay.
Case Details
Case Title: Ashwini Kumar Upadhyay Versus UOI
Citation: JURISHOUR-1014-SC-2026
Case No.: Writ Petition (Civil) No. 943 Of 2021
Date: 29/04/2026
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