One Family, One Constitution: The Supreme Court’s Stand on Hate Speech, Free Speech, and the Limits of Judicial Power
Prologue: Why Everyone was worried
Imagine you live in a big, noisy neighborhood. Next door, someone keeps shouting things that make you and your family feel unsafe. You complain to the local guard, but he does nothing. You go to the head of security, but still no action. Finally, you run to the highest authority in the town and beg them to step in.
That is exactly what happened in India between 2020 and 2026. A group of concerned citizens, activists, and even some political leaders approached the Supreme Court of India. Their complaint? **Hate speech** was spreading across the country – on news channels, social media, and in public speeches. They said this hate speech was targeting specific religious communities. They said it was making life dangerous for ordinary people. And they said the police and the government were not doing enough to stop it.
The case became a landmark. It was not just about a few angry speeches. It was about whether the Supreme Court can force the government to make new laws, whether the police can refuse to register cases against powerful people, and what “freedom of speech” really means in a country as diverse as India. This is the story of that judgment.
Part 1: The Spark that lit the Fire
The COVID-19 Blame Game
The first spark came during the COVID-19 pandemic. You may remember those dark days in 2020 and 2021. The whole world was scared. Hospitals were full. People were losing jobs and loved ones.
In India, something ugly happened. Some public speakers and news anchors started blaming **one particular religious minority** for spreading the virus. They said members of that community were not following social distancing rules. They said a religious gathering in Delhi’s Nizamuddin area (called the Tablighi Jamaat event) became a “super-spreader” because of them. The language was harsh. It was angry. It was, according to many, pure hate speech.
The government’s own Ministry of Health and Family Welfare had to issue a statement saying: *”Stop stigmatizing any community. COVID-19 does not see religion.”* But the damage was done. Muslims in many parts of India faced violence, boycotts, and harassment. Some lost their jobs. Some were attacked on the streets.
The First Petitioners Raise Their Voice
Between 2020 and 2025, more than a dozen petitions (legal requests) landed in the Supreme Court. The first one was filed by a man named Ashwini Kumar Upadhyay. He asked the Court to direct the central government to study international laws on hate speech and take strong action. He also pointed to a 2017 report by the Law Commission of India (Report No. 267) which had recommended new legal provisions against hate speech. He said: “The government has done nothing on that report. Please force them to act.”
Then came more petitions. Some were filed by Muslim organizations. Some by Hindu groups. One petition complained about hate speech against Hindus in certain states. Another complained about Islamophobic content on Twitter and Sudarshan News (a Hindi news channel). One petition even named a specific politician, Mr. Nitesh Rane, and asked the Court to order an FIR against him for inflammatory speeches in Mumbai.
The message from all these petitioners was the same: **The existing laws are not enough, and even where laws exist, nobody enforces them properly.
Part 2: The Court Decides to Listen
A Massive List of Cases
The Supreme Court clubbed (combined) all these petitions together. The list was huge – 13 writ petitions, two special leave petitions (appeals), and several contempt petitions. The lead case was “Writ Petition (Civil) No. 943 of 2021” (Ashwini Kumar Upadhyay vs. Union of India).
The judges who heard this case were “Justice Vikram Nath” and “Justice Sandeep Mehta”. They knew this was not a simple matter. It touched the very soul of India’s democracy: free speech, religious harmony, the power of courts, and the duty of the police.
The Four Big Questions
After reading all the petitions, the judges framed “four main issues”:
1. Can the Supreme Court create a new criminal offence? For example, if Parliament has not made “hate speech” a specific crime, can the judges do it themselves?
2. Does India already have enough laws against hate speech? Or is there a “vacuum” (empty space) that only Parliament can fill?
3. What can an ordinary person do if the police refuse to register an FIR?** Is the current legal process good enough, or does the Court need to step in?
4. Should the Court issue a “continuing mandamus”? That is a fancy legal term for saying: “We will keep watching over the government forever until you fix this problem.”*
The judges then invited lawyers from all sides to argue.
Part 3: The Arguments – A Clash of Ideas
What the Petitioners Said
A very respected lawyer, “Shri Sanjay R. Hegde”, was appointed as “Amicus Curiae” (frient of the court). He told the judges:
a. The State (government) is not just a neutral observer. It has a duty to protect the “constitutional atmosphere.” If the government sits back and watches hate speech spread, it is violating Article 21 (right to life with dignity).
b. The current laws are reactive, not preventive. They only punish after something bad happens. What about stopping hate speech before it leads to violence?
c. The penalties are too small. Big media companies make money from sensational, hateful content. A small fine does not scare them.
d. Other countries like Germany have “duty of care” laws – social media platforms must remove hate speech within a fixed time, or pay huge fines. India should have something similar.
Shri Ashwini Kumar Upadhyay (arguing for himself) added:
a. Hate speech is not just “offensive words”. It is a misuse of free speech.
b. India’s criminal laws (IPC and the new BNS) do not have a proper definition of hate speech. That creates confusion.
c. Even where laws exist, police often refuse to register FIRs. Or they delay. Or they dilute the charges. By the time they act, the harm is already done.
Shree Nizamuddin Pasha, another lawyer, made a very sharp point:
a. The petitioners are not asking the Court to make new laws. They are asking the Court to tell the police to follow existing laws.
b. When hate speech comes from powerful people – ministers, MPs, celebrities – the police hesitate. They say: “We need permission from the government to arrest such a person.”* That hesitation kills public trust.
c. If a police officer watches a hate speech happening in front of him and does nothing, that is not a legal vacuum. That is cowardice or bias.
What the Government and Others Said
The “Union of India” (central government) did not even file written submissions on time. But from earlier affidavits, their stand was clear:
a. People should not directly run to the Supreme Court under Article 32. First, they must use the remedies available in lower courts and police stations.
b. Making new laws is Parliament’s job, not the Court’s job. The Court should not interfere in “legislative policy.”
c. The “doctrine of separation of powers” (each branch of government has its own role) must be respected. Judges cannot become lawmakers.
The “Election Commission of India” (through its lawyer) said:
a. We already have rules. During elections, candidates cannot appeal to caste or religion. We issue show-cause notices and even ban campaigning if needed.
b. The problem is not the absence of laws. The problem is lack of effective execution. This Court itself said that in an earlier case called “Pravasi Bhalai Sangathan”.
A media association called “News Broadcasters and Digital Association” (through their lawyer) said:
a. There is no vaccum in the law. But if the Court wants, it can ask for strict complaince with existing rules
Part 4: The Court’s Deep Dive – What the Judges Thought
On Creating New Crimes: A Firm “No”
The judges went back to first principles. They asked: What is a crime?
In simple English, a crime is an act that the “law” says is wrong. If the law does not say it is a crime, then it is not a crime. That is a fundamental rule of justice: “No punishment without a law” (nullum crimen, nulla poena sine lege).
The judges then explained the “separation of powers”
a. In India, “the Legislature” (Parliament and state assemblies) makes laws.
b. The “Executive” (Police, bureaucrats, government) implements laws.
c. The “Judiciary” (courts) interprets laws and punishes violations.
The court quoted its own old judgements:
- In Kesavananda Bharati (1973), the Court said: The Contitution has a system of checks and balances. No organ can assume the functions of another.
- In Asif Hameed (1989), the Court said: The Legislature is supreme in its own sphere. No direction can be issued to the legislature to enact a law.
- In SCWLA (2020), the Court said: Courts neither create offences nor introduce punishments. That is the duty of the legislature.
Then the judges delivered the key message:
“If the Legislature has already enacted a law governing the field, the Court cannot supplant the legislative scheme. The Court may fill gaps temporarily, but it cannot become a permanent lawmaker.”
So, on Issue I, the answer was “NO”. The Supreme Court will not create a new “hate speech” offence.
On Existing Laws: “The Field Is Not Empty”
The petitioners had argued that there is a “legislative vaccum” (empty space) regarding hate speech. The Court disagreed strongly.
The judges pulled out the “Law Commission’s 267th Report” and listed all the existing laws that deal with hate speech in India. Here is a sample:
| Law | What is does |
| IPC Section 153A | Punishes promotion of enmity between different groups |
| IPC Section 295A | Punishes deliberate insult to religious feelings |
| IPC Section 505 | Punishes rumors causing public mischief or enmity |
| Representation of People Act | Bans communal appeals during elections |
| Cable TV Network Regulation Act | Has a programme code against hate speech |
| CrPC Sections 95, 107, 144 | Allows forfeiture of hateful publications, preventive action |
The Court said:
“The mere occurrence of incidents of hate speech does not mean the law is silent. More often, the difficulty lies in enforcement, not in the absence of law.”
So, on Issue II, the answer was “NO”. India already has plenty of laws.
On Police Refusing FIRs: The Law Has Remedies
This was a very practical issue. Many petitioners said: “We go to the police station with a complaint of hate speech. The police refuse to register an FIR. What do we do?”*
The Court explained the “step-by-step remedy” that already exists in the CrPC (Criminal Procedure Code) and the new BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023):
1. First step: Go to the local police station. The officer must register an FIR if your information discloses a cognizable offence (serious crime). This is mandatory – the police have no discretion. This was settled in the famous “Lalita Kumari” case (2014).
2. Second step: If the police refuse, go to the “Superintendent of Police” under Section 154(3) of CrPC (now Section 173 of BNSS). The Superintendent can order an investigation.
3. Third step: If that also fails, go to a “Judicial Magistrate” under Section 156(3) of CrPC (now Section 175 of BNSS). The Magistrate can direct the police to register an FIR and investigate. This was confirmed in Sakiri Vasu (2008).
4. Fourth step: If the Magistrate also does nothing, you can file a **private complaint** under Section 200 of CrPC (now Section 223 of BNSS).
5. Final step: Only after exhausting all these remedies, you can go to the “High Court” (under Article 226) or the **Supreme Court** (under Article 32).
The Court warned:
We often find people running directly to the High Court or Supreme Court without trying the statutory remedies. This should be discouraged. The Magistrate has very wide powers to ensure proper investigation.
So, on Issue III, the Court said the “remedies are adequate”. The problem is that people do not use them properly.
On Continuing Mandamus: “We Cannot Police the Police”
Some petitioners asked the Court to issue a **continuing mandamus**. That means the Court would keep the case open for years, monitor every hate speech incident, and keep passing orders to the police.
The judges said “no” to this as well. Why?
a. A mandamus (a type of court order) is issued when there is a legal right and a public duty that is not being performed. But here, the duty is already defined by law. The Court cannot assume that the police will fail in the future.
b. Issuing a continuing mandamus would mean the Court is micromanaging the executive. That is not the Court’s job. The Court is not a super-police station.
c. In a case called **National Federation of Indian Women** (2023), the Court had already said that continuous monitoring of lynching incidents would be “micro-management” and is not feasible.
The judge explained:
“To assume failure in advance and to exercise continuous oversight on that basis would be contrary to the principle of institutional comity and judicial restraint.”
So, on Issue IV, the answer was “NO” – on continuing mandamus.
Part 5: A Special Side Story – The Sanction Question
What happened in the Delhi High Court
One of the cases (SLP Criminal No. 5107 of 2023) came from the “Delhi High Court”. Here, the petitioners had complained about hate speeches made by a Union Minister and an MP in January 2020. When the police did nothing, they went to a Magistrate under Section 156(3) of CrPC.
The Magistrate refused to order an FIR, saying: “These offences (like 153A, 295A, 505 IPC) require prior sanction from the government under Section 196 of CrPC. You don’t have that sanction.”
The Delhi High Court agreed and dismissed the petiton.
The Supreme Court’s Strong Correction
The Supreme Court was very unhappy with this reasoning. It said:
“The requirement of prior sanction operates at the stage of taking cognizance (starting court proceedings), not at the stage of investigation or FIR registration. If sanction was required before even registering an FIR, then no powerful person could ever be investigated for hate speech. That would make a mockery of the law.”
The Court quoted its own judgment in Pastor P. Raju (2006), where it had clearly held that sanction is not needed for registration of FIR or investigation.
So, the Supreme Court “partly allowed” that appeal. It set aside the Delhi High Court’s judgment on the sanction issue. However, after reading the actual speeches, the Court agreed that no cognizable offence was made out on the facts. So no FIR was ordered.
But the “legal principle” was now clear: You do not need prior government sanction to register an FIR for hate speech offences.
Part 6: The Contempt Petitions – Did Police Disobey Court Orders?
Earlier, in 2022 and 2023, the Supreme Court had passed interim orders saying: “Police must take suo motu action (on their own) when hate speech happens. They should not wait for a complaint. Any hesitation will be viewed as contempt.”
Some petitioners filed contempt cases, alleging that police ignored these orders.
The Supreme Court examined each contempt petition one by one:
a. In some cases, FIRs had already been registered. So those contempt petitions were closed.
b. In some cases, the petitioner had not even filed a complaint with the police. The Court said: *”How can we hold the police in contempt if they did not even know about the incident?”* Those petitions were dismissed.
c. In four cases, there were specific allegations that complaints were made but no action was taken. In those, the Court gave the police two weeks to file their response.
The message was clear: Contempt is serious. You cannot use it lightly. First, give the police a chance to act.
Part 7: The Heart of the Judgment – A Lesson in Fraternity
What the Preamble Teaches Us
The judges did not just write a dry legal order. They wrote a beautiful epilogue (a final, thoughtful section) about the Preamble of the Indian Constitution.
They recalled that the Preamble promises four things: Justice, Liberty, Equality, and Fraternity.
But what is fraternity? Dr. B.R. Ambedkar explained it as “a sense of common brotherhood of all Indians.” It means you and I, even if we are different, are part of one family.
The Court said:
“Fraternity can exist only in an environment where persons belonging to different religions, castes, and communities are able to live in mutual respect and harmony. Hate speech destroys fraternity.”
The Ancient Indian Idea of “Vasudhaiva Kutumbakam”
The judges then connected fraternity to an ancient Indian saying from the Yajur Veda: “Vasudhaiva Kutumbakam” – the whole world is one family.
They said:
“For a nation that has historically embraced the idea of the world as one family, it is inconceivable that citizens be classified or discriminated against on grounds of caste, color, creed, or gender. Hate speech is not just a deviation from acceptable discourse; it is fundamentally antithetical to the constitutional value of fraternity.”
Fundamental Duties
The Court also reminded everyone about Article 51A of the Constitution (Fundamental Duties). Every citizen has a duty:
a. To promote harmony and the spirit of common brotherhood.
b. To renounce practices derogatory to the dignity of women.
So, the Court said: “The Constitution does not see classification as a means to divide people. It seeks to promote welfare through collective coexistence.”
Dr. Ambedkar’s Warning
The judges ended this section with a powerful quote from Dr. Ambedkar’s speech on November 25, 1949:
“However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”
In simple English: A good Constitution can fail if the people running it are corrupt or lazy. A bad Constitution can still work if the people are good.
The Court added:
“The liberties we enjoy today are not an abstract inheritance. They are the result of a collective struggle against a colonial regime. They must not be diminished by a failure to appreciate the responsibilities that accompany them.”
Part 8: The Final Orders – What the Court Actually Did
What the Preamble Teaches Us
The judges did not just write a dry legal order. They wrote a beautiful epilogue (a final, thoughtful section) about the Preamble of the Indian Constitution.
They recalled that the Preamble promises four things: Justice, Liberty, Equality, and Fraternity.
But what is fraternity? Dr. B.R. Ambedkar explained it as “a sense of common brotherhood of all Indians.” It means you and I, even if we are different, are part of one family.
The Court said:
“Fraternity can exist only in an environment where persons belonging to different religions, castes, and communities are able to live in mutual respect and harmony. Hate speech destroys fraternity.”
The Ancient Indian Idea of “Vasudhaiva Kutumbakam”
The judges then connected fraternity to an ancient Indian saying from the Yajur Veda: “Vasudhaiva Kutumbakam” – the whole world is one family.
They said:
“For a nation that has historically embraced the idea of the world as one family, it is inconceivable that citizens be classified or discriminated against on grounds of caste, color, creed, or gender. Hate speech is not just a deviation from acceptable discourse; it is fundamentally antithetical to the constitutional value of fraternity.”
Fundamental Duties
The Court also reminded everyone about Article 51A of the Constitution (Fundamental Duties). Every citizen has a duty:
a. To promote harmony and the spirit of common brotherhood.
b. To renounce practices derogatory to the dignity of women.
So, the Court said: “The Constitution does not see classification as a means to divide people. It seeks to promote welfare through collective coexistence.”
Dr. Ambedkar’s Warning
The judges ended this section with a powerful quote from Dr. Ambedkar’s speech on November 25, 1949:
“However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”
In simple English: A good Constitution can fail if the people running it are corrupt or lazy. A bad Constitution can still work if the people are good.
The Court added:
“The liberties we enjoy today are not an abstract inheritance. They are the result of a collective struggle against a colonial regime. They must not be diminished by a failure to appreciate the responsibilities that accompany them.”
After all this analysis, the judges issued their final directions:
1. All writ petitions (the main cases asking for new laws and directions) were dismissed. The Court will not create a new hate speech offence, will not issue a continuing mandamus, and will not force Parliament to make a new law.
2. The Civil Appeal (from Telangana) was also dismissed as not requiring further relief.
3. The Criminal Appeal (from Delhi) was partly allowed – the legal principle on sanction was corrected, but no FIR was ordered on the facts.
4. Contempt petitions were handled individually:
a. Where compliance was shown → closed.
b. Where no complaint was made → closed.
c. Where complaints were made but no action → police given two weeks to respond.
5. The Court directed its Registry to send a copy of this judgment to all High Courts. The High Courts may, on their administrative side, consider issuing practice directions to ensure that the law declared here is properly implemented.
Epilogue: What This Judgment Means for You
So, after reading this long story, what is the bottom line?
If you are an ordinary citizen:
a. You cannot ask the Supreme Court to invent a new crime called “hate speech.” Only Parliament can do that.
b. You can go to the police, then the Superintendent, then the Magistrate, then the High Court, and finally the Supreme Court if the police refuse to act.
c. You do not need prior government sanction to get an FIR registered against a powerful person for hate speech.
d. The police must register an FIR if your complaint shows a cognizable offence. They cannot hide behind “preliminary inquiry” or “lack of sanction.”
If you are a police officer:
a. You are already bound by existing laws. You cannot hesitate to act against hate speech, no matter how powerful the speaker is.
b. If you hesitate, you could face contempt of court proceedings.
If you are a citizen speaking in public:
You have freedom of speech, but it is not absolute.
Hate speech – words that inflame passions, promote hatred, or disturb public order – is not protected as free speech.
The Constitution expects you to promote fraternity, not division.
And finally, the Court’s parting message to all of us:
“The Constitution does not survive merely through institutions or legal frameworks, but through the sustained fidelity of its citizens to the values it embodies.”
In simple English: The law can only do so much. The rest depends on you and me – on whether we choose to respect each other as brothers and sisters of one family.
That is the complete story of the Supreme Court’s judgment of April 29, 2026. It is a judgment that says no to judicial overreach, yes to enforcing existing laws, and yes to the ancient Indian value of Vasudhaiva Kutumbakam – the world is one family.
