A Retreat: How the Supreme Court is redrawing the boundaries of hate-speech enforcement By calling them “small incidents,” the Court risks overlooking hate speech’s cumulative harm and its impact on equality and dignity
28, Nov 2025 | CJP Team
On November 25, the Supreme Court made it clear that it would not convert itself into a “national monitoring authority” for every incident of hate speech occurring across the country. A Bench of Justices Vikram Nath and Sandeep Mehta, hearing an application alleging calls for the social and economic boycott of a particular community, underscored that the Court’s role could not expand into legislative or policing domains simply because a petitioner sought blanket supervision.
According to the Hindu, the bench remarked “We are not legislating in the garb of this petition. Rest assured, we are not inclined to either legislate or monitor every small incident which takes place in X, Y, Z pocket of this country”. Stressing the constitutional architecture already in place, the judges noted, “There are high courts, there are police stations, there are legislative measures. They are already in place.”
The Supreme Court’s latest remarks—disclaiming responsibility for monitoring hate-speech incidents and directing petitioners to High Courts and police stations—represent an increasingly pronounced judicial retreat at a time when hate speech has become pervasive, organised, and often politically sanctioned. Coming from a Bench of Justices Vikram Nath and Sandeep Mehta, the Court’s insistence that it “cannot legislate or monitor every small incident” may appear administratively pragmatic, but constitutionally, it raises serious concerns.
‘Approach the High Court; We cannot monitor the entire country’
The Bench initially directed the applicant to raise the grievance before the concerned High Court. “How can this court continue to monitor all such instances all over the country?” it asked, according to The Print. “You approach the authorities. Let them take action, otherwise go to the high court.”
Counsel for the applicant, Advocate Nizam Pasha, submitted that he had filed an application in an already pending writ petition on hate speech, bringing forth “additional instances” of boycott calls. When the Bench observed that the calls appeared to be made by private individuals, counsel responded that “some public representatives are also issuing similar calls.”
Solicitor General Tushar Mehta interjected sharply: “Public interest cannot be selective to one particular religion… There are severe hate speeches going on amongst all religions. I will supply those details to my friend (applicant). Let him add that and espouse that public cause on a pan-religion basis.”
The applicant’s counsel insisted that he approached the Court only because the authorities “are not taking any action,” and invoked earlier directions of the Court where State inaction on hate speech was to trigger suo motu registration of FIRs and potential contempt for non-compliance.
Mehta maintained that while “no one can be indulging in hate speech,” a public-spirited litigant “cannot be selective.” The Bench reiterated that statutory mechanisms existed: “Whichever state you have a problem with, you approach the jurisdictional high court for appropriate relief.”
Advocate Nizam Pasha, appearing for journalist Qurban Ali and others, reminded the Court of its October 2022 order. In October 2022, disturbed by the “unabated ferocity” of hate crimes and warning that a “climate of hate prevails in the country,” the Court had directed police authorities to suo motu register cases against hate-speech offenders. However, these remarks suggest a recalibration: the Supreme Court asserting that enforcement must be handled at the proper institutional levels, not continuously escalated to the apex court.
In addition to this, Pasha also referred to an affidavit flagging a post shared by an Assam minister following the BJP’s victory in Bihar, claiming it referenced the 1989 Bhagalpur massacre by alluding to “Bihar approving gobi farming”—an alleged nod to victims whose bodies were buried in cauliflower fields.
The Bench listed the matter for further hearing on December 9, 2025.
To read about the surge of hate speech during elections, read here, here and here.
A Court that once called arresting hate crimes a “sacrosanct duty” now says: go elsewhere
These oral observations represent a notable moment nearly seven years after the Court’s landmark Tehseen Poonawala (2018) judgment, where it held that preventing hate crimes is the State’s “sacrosanct duty.” The Court had then laid down extensive guidelines to prevent mob violence and lynching.
In Tehseen Poonawala (2018), the Supreme Court emphatically held that preventing hate crimes is the State’s “sacrosanct duty” and placed considerable constitutional responsibility on the judiciary to ensure compliance.
When the Bench says: “We are not inclined to either legislate or monitor every small incident”, the question naturally arises: What counts as “small” in hate speech? Hate speech is not an isolated “X, Y, Z pocket” problem; it is a structural, national, and increasingly legitimised phenomenon that fuels violence, radicalises communities, and undermines constitutional fraternity. Treating each incident as merely local—best handled at the nearest police station—ignores the systemic, not episodic, nature of the problem.
Additionally, the petitioner’s counsel explicitly reminded the Court of its own earlier directions: If States fail to act on hate speech, police must register FIRs suo motu; if police fail, contempt proceedings follow. By refusing to even monitor compliance with its own framework, the Court creates a paradox:
- Duty to act remains,
- but enforcement evaporates.
This turns constitutionally mandated preventive oversight into judicial suggestion, not judicial command.
In regards to Solicitor General’s assertion that public interest cannot be selective and that all religions face hate speech is a familiar rhetorical manoeuvre that:
- Equates majority-to-minority hate speech with minority-to-majority rhetoric, flattening unequal power structures;
- Deflects from documented, systemic hate speech targeting Muslims, including political campaigns;
- Reframes structural discrimination as generic social disharmony.
The Court’s willingness to echo the “pan-religion basis” line dilutes the urgency of addressing majoritarian hate speech, a constitutional and empirical reality widely acknowledged by previous benches.
For detailed report of significant orders of Supreme Court on hate speech issue, read here.
Chhattisgarh High Court: Reinforcing judicial distance from enforcement
The Chhattisgarh High Court’s decision on November 21 in a separate hate-speech matter further illustrates the judiciary’s growing reluctance to scrutinise investigative lapses in such cases. A Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru dismissed a plea seeking coercive action against Johar Chhattisgarh Party leader Amit Baghel, accused of repeated inflammatory statements against Agrawal, Sindhi, and Jain communities
The Division Bench held firmly that the petitioner had failed to substantiate allegations of State inaction, emphasising that mere accusations of “State apathy” could not justify extraordinary judicial intervention.
The Court observed:
- “The Petitioner has not brought forth any cogent material to demonstrate that the investigating agency has either shut the investigation or refused to act on the FIRs.”
- “Mere dissatisfaction with the pace or nature of investigation cannot, in law, furnish a ground for invoking the extraordinary jurisdiction of this Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 or Article 226 of the Constitution.”
The Bench cautioned that the reliefs sought—direction for arrest, supervision by a specific-rank officer, periodic status reports, consolidated chargesheet—would amount to “judicial micromanagement” of investigation and intrude into the statutory domain of the police.
The Court reiterated established law: a writ of mandamus cannot compel arrest, dictate the course of investigation, or require a consolidated chargesheet when the statute does not mandate one. “The Petitioner has not shown any exceptional circumstance to indicate non-compliance with these guidelines, nor is there any imminent threat to public order warranting extraordinary measures,” the Court added in its order.
Finding no exceptional urgency or imminent threat to public order, the petition was dismissed.
The Chhattisgarh High Court’s dismissal of the plea against Amit Baghel fits seamlessly into this larger pattern of institutional distancing. By insisting that:
- dissatisfaction with investigation pace is not enough,
- courts cannot “micromanage,”
- no “exceptional circumstances” exist,
the High Court reinforces a trend where judicial review of State inaction on hate speech is increasingly restricted, even as hate speech intensifies.
Order of the Court may be read here.
The constitutional misdiagnosis at the heart of India’s hate-speech crisis
The core difficulty lies in the Court’s very conceptualisation of hate speech: by repeatedly characterising it as a routine “law-and-order” matter to be handled by local police or challenged before jurisdictional High Courts, the Supreme Court collapses a profound constitutional crisis into an administrative problem. This framing disregards the Court’s own jurisprudence recognising hate speech as a threat to equality, an assault on dignity, a catalyst for mob violence, a barrier to democratic participation, and a weapon disproportionately used against minorities and dissenters—phenomena that cannot be meaningfully addressed through ordinary policing. Far from being “pocket-level incidents,” contemporary hate speech is intimately connected to electoral mobilisation, vigilante networks, and entrenched patterns of institutional discrimination, placing it well beyond the capacity or neutrality of local law-and-order mechanisms. The Court’s withdrawal from scrutiny therefore carries structural consequences: it signals to State authorities that inaction will not attract judicial oversight; it chills public-spirited litigation by suggesting that constitutionally significant harms are too “small” or “local” for the Supreme Court’s attention; and it sits uneasily with the Court’s own earlier precedents mandating suo motu FIRs and warning States of contempt, thereby diminishing both doctrinal coherence and the credibility of constitutional adjudication. In effect, reducing hate speech to a routine policing matter does not merely minimise its gravity—it risks normalising it.
Conclusion: A constitutional moment demanding vigilance, not withdrawal
India is living through a documented and politically charged escalation in hate speech, and at such a moment the Supreme Court’s assertion that it cannot monitor “every small incident” risks being interpreted not as judicial restraint but as a signal that State authorities may do less, not more. No constitutional court is expected to police every episode—but it is expected to ensure that State machinery functions, that fundamental rights are meaningfully protected, and that its own earlier mandates are not rendered hollow through non-enforcement. By appearing to withdraw just when constitutional vigilance is most necessary, the Court creates a troubling gap between constitutional promises and institutional practice. At a time when hate speech carries structural, electoral, and communal consequences, this is not a moment for judicial distance but for principled constitutional engagement; stepping back now risks weakening precisely the safeguards the Constitution relies on courts to uphold.
Related:
Unveiling the diverse impact of Hate Speech: From elections to escalating violence
India’s Struggle for Social Harmony: Challenges Amidst Surge in Hate Speech
Three separate benches of the Indian Supreme Court interrogate hate speech
CJP writes to Minorities Commission over repeated attacks on Muslims
