A sharp U-turn in Supreme Court’s approach in dealing with Hate Speech Holds “no cognizable offence” made out in Anurag Thakur case while also denying guidelines against Hate Speech
04, Jun 2026 | CJP Team
On April 26, 2026, the Indian Supreme Court delivered its final judgement on multiple petitions filed seeking pro-active curbs on violence inciting hate speech. Thirteen petitions had been filed by different sets of petitioners and were being collectively heard since 2021. Through these public interest petitions the citizens had, invoking criminal law, and statutory safeguards prayed for directions from the Court to these. The recommendations of the Law Commission of India in several reports had also been invoked and some petitioners had also prayed for the need for specific hate speech laws. India has, in the past decade, seen widely publicized, inciteful speeches being made by several politicians in positions of executive power, many of which have even led to stray and collective targeted violence. These speeches were the trigger for this litigation.
In its final judgement, the Court held that hate speech is “fundamentally antithetical” to Constitutional values of fraternity. It also found hate speech at odds with the ethos of Indian civilisation that are best captured by the maxim “vasudhaiva kutumbakam”. While the Court pronounced these notions splendiferously in the obiter, the operative part of the judgement remained minimal when it came to reliefs sought by the petitioners. Speech delivered by persons in positions of high political influence was also high in vitriol and the discrimination and harm test. As a result of the judgement dated April 26, BJP politicians and ministers Anurag Thakur and Kapil Mishra remain judicially uncensored for their inciteful conduct as have other protagonists who have contributed to a fragile social climate where, religious minorities most especially live in constant fear of harm, attack and acts of overt discrimination.
This piece analyses how and where the Supreme Court limited itself in this case. Before doing so, we examine hate speech itself. We contextualize how the efforts towards making a breakthrough in jurisprudence in understanding and tackling speech that causes harm (hate speech) –including the 267th Law Commission Report—have been qualitatively diffused by this final verdict of the Supreme Court.
What is Hate Speech?
Hate speech is any speech that attacks a person or group on the basis of their race, ethnicity, religion, gender, sexuality, or any other characteristic. It can be subtle or overt, and can have a profound impact on the targets of the speech. Primarily hate speech reduces the social standing of a particular group in the society. Hate speech can lead to stigmatisation, societal discrimination, physical and other kinds of harassment, and violence, including gendered violence where women and children are vulnerable. Hate speech creates a climate of intimidation, fear and division in society.
As per Jeremy Waldron, hate speech damages two related qualities. Firstly, he argues that it affects inclusivity. In pluralist democracies, we observe a milieu of different identities living together forming a heterogeneous social fabric. In such social fabrics, inclusiveness entails an assurance to each person that they can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.” Secondly, he contends that dignity is damaged by hate speech too. Dignity as defined by him is one’s “basic [and equal] social standing… as a proper object of society’s protection and concern”. Hate speech—as we defined earlier—pierces through the heart of these values. Hate speech, ontologically, is a type of speech that aggressively shows groups as “others” by belittling them. At this juncture, it is important to note that speech, at least on some level, is constitutive of social reality. The existence of certain forms of expression makes a noticeable difference to the environment in which we live our lives. In an environment that is marred with hate speech the message of ‘exclusion’ and ‘hostility’ becomes part of the very look of that environment (becomes an intrinsic feature of that society), and thus breaks down the assurance of inclusiveness and damages dignity of groups.
Issues that have dogged the Courts, given the high decibel hate speech that India has been witnessing are evident in several judgements, analysed by the 267th Law Commission Report (Chairman was Justice B.S. Chauhan). This report is itself worth a reference read as it analyses evolving hate speech jurisprudence the world over. We recommend that you read this report that is available here. Submitted by the Law Commission to the Ministry of Law and Justice on March 23, 2017, this critical document was made available to the public only on August 16, 2022.
Infact it was the orders passed by the Supreme Court in Pravasi Bhalai Sangathan v. UOI, 2014 that led to the 267th Law Commission Report on Hate Speech in the first place.
Pravasi Bhalai Sangathan v. UOI
This was the first case of recent times that made some breakthrough in outlining the harm and discriminatory components that qualify hate speech. In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court was called to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech. The court owing to the doctrine of Separation of powers, delegated this task to the Law Commission of India. However, while deferring the case the Court made certain observations that laid down the legal framework for hate speech laws vis-à-vis free speech. The Court then went on to hold that
“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”
(Paragraph 7)
By putting “marginalisation and delegitmis [ation]” as the fulcrum of determining hate speech, the Court effectively, held dignity and equality to be the grundnorm that speech must respect. It further clarified that hate speech is not directed towards individuals, or rather, is not about personal offence. It is as a matter of fact, an offence against a people. The Court goes on to adopt a consequentialist approach and lays down that hate speech has “societal impact” that could lead to violence. Hence, it establishes a causal link between speech and its (violent) reactions. Lastly, the Court says that hate speech is anathema to democracy.
This judgment lays the stepping stone for the “Proactive approach” that Supreme Court adopts in dealing with hate speech for the next few years.
This report by CJP, that may be read here, calls for a re-look at the provisions on hate speech, calling for a definition that takes into account recent jurisprudence and moves away from the colonial construct in Indian penal laws
Amish Devgan v. UOI
Another judgement, both recent and relevant, is the 2020 Amish Devgan v Union of India. Here, the Supreme Court was called upon to quash FIR filed against TV journalist Amish Devgan who had allegedly made derogatory remarks against an Islamic saint. The Court denied the relief. However, while refusing to quash the FIR the Court gave further directions on how to classify hate speech;
“The ‘context’, as indicated above, has a certain key variable, namely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion, time and under what circumstances’ the case arises. The ‘who’ is always plural for it encompasses the speaker who utters the statement that constitutes ‘hate speech’ and also the audience to whom the statement is addressed which includes both the target and the others. Variable context review recognises that all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hate speech depends on the person who has uttered the words. The variable recognises that a speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street.” …
(Para 51)
“Further, certain categories of speakers may be granted a degree of latitude in terms of the State response to their speech. Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation, it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising. Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech.”
(Para 51)
While seemingly obvious, the Court in this case gives a crucial direction about contextualisation when deciding on hate speech. The Court recognises two realities. Freedom of expression as a facilitator in a diverse and plural society, critical to equality and free thought within a democracy. However, just like a regular marketplace, the marketplace of ideas is also rife with inequalities. These inequalities include limitations in access, opportunity and socio-cultural status: persons with executive/political influence, journalists, and public figures command a much wider reach and audience. Hence, when such public figure spew hate speech, the impact is significantly higher, ergo they should be more cautious. Second, the Court humanises the speaker and the audience. In most cases, the social standing of the speaker and the audience is different; certain communities have a historic disadvantage while others hold a dominant position in society even today. Subsequently, the Court gave a wider margin of speech to the marginalised communities owing to their lived realities and historic experiences; it further conceded that hate speech made by dominant group against vulnerable groups has a significantly more impact.
While recognising these realities, the Court did its job in tailoring a hate speech jurisprudence that is suitable with the Indian social structure blemished with caste, religious differences and patriarchy. These two previous judgements laid the foundation for a proactive approach against hate speech. They will continue to guide future legal interventions.
Coming back to the 267th Law Commission that remains a crucial and seminal document for anyone who wishes to engage with hate speech. After a close and thorough examination of the Constituent Assembly debates, Indian constitutional courts jurisprudence and International law (a crucial reference), the Law Commission recommends that measures which limit or restrain freedom of speech and expression, may/can do so when the “three-part test” is justified [(UN HRC, “General Comment 34” One Hundred and Second Session July 11-29, 2011 (July 21, 2011)]:
i) Measure/s must be prescribed by law;
ii) Measure must satisfy legitimate aims;
iii) Measure must be necessary to achieve its stated aim and must be proportionate to the harm that it attempts to prevent or redress. The standard of proportionality in this context has also been understood to include a requirement for minimum impairment of the right being restricted, i.e., the restriction must not do any more damage to the right than is absolutely necessary to meet its aim. [Necessity and proportionality]
Finally, the 267th Law Commission Report makes relevant and sharp recommendations. Concluding that the Supreme Court, in the case of Pravasi Bhalai Sangathan v. Union of India & Ors., AIR 2014 SC 1591, observed that the issue of hate speech deserved deeper consideration by the Law Commission of India. Quoting the Court, the Law Commission stated that “…we request the Law Commission to also examine the issues raised herein thoroughly and also to consider, if it deems proper, defining the expression “hate speech” and make recommendations to the Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made”.
The Law Commission quoting the Supreme Court referred to its consistent clarifications that directions are issued only when there appears to be a total vacuum in law, i.e. “complete absence of active law to provide for the effective enforcement of basic human rights”. In case there is inaction on the part of the executive for whatsoever reason, the court has always stepped in to discharge its constitutional obligation to enforce the law. The Court further observed “in case of vacuum of legal regime, to deal with a particular situation, the court may issue guidelines to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.”
Given the above observations and directives of the Supreme Court in the Pravasi Bhalai Case, “the Commission considered the laws on hate speech in various jurisdictions, judicial pronouncements of the Supreme Court and the High Courts and analysed the existing provisions relevant to the subject matter. “Consequently, the Commission made concrete suggestions.
“The Law Commission suggests amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC, and accordingly amending the First Schedule of the CrPC.”
These suggestions have been put together in the form of the Commission’s Report No. 267 title “Hate Speech”, which was submitted for consideration by the Government in March 2017.
What did the Union Government do, however?
The present government, in its first term in 2017, is currently in its third. While the Law Commission found, previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) wholly inadequate in identifying and prosecuting the growing corrosive phenomenon of hate speech and recommended legislative additions through amendments. The newly implemented Criminal Laws, the Bharatiya Nyaya Sanhita (BNS) 2023 broke no new ground and completely bypassed or ignored both the Supreme Court and Law Commission.
In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm. Infact the new criminal laws had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee also ignored Supreme Court judgements with clear-cut directions on sections in our law for prosecuting hate speech, as also the Law Commission’s 267th Report is the moot point.
Read this CJP’s Report on Comparisons between the IPC/CRPC and BNSS here. The new criminal laws dealing with the subject matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law. An opportunity to amend our laws to the betterment of a diverse society has been lost.
It is in this context, and failure by the executive, again, that the journey of the present litigation, interim orders and then the final judgement dated April 26, 2026 needs to be understood and read.
In the Interim: Several Preventive Orders to Curb Hate Speech
The backdrop to multiple Interim Orders lies in petitions filed before the Supreme Court arising from the Haridwar Dharam Sansad of December 2021, at which Hindu religious leaders made genocidal calls against Muslims. These petitions, filed by journalist Qurban Ali, former Patna High Court Judge Anjana Prakash, activist Tushar Gandhi, and advocates Firoz Iqbal Khan and Harpreet Mansukhani Saigal, were clubbed together and heard by a bench of former Justice K.M. Joseph and Justice B.V. Nagarathna (Tushar Gandhi vs. Rakesh Asthana).
In September 2022, a bench comprising of J K.M Joseph and Hrishikesh Roy (in Ashwini Kumar Upadhyay vs. UOI) expressed serious concern at unregulated television news channels and directed the Union of India to state on affidavit whether it intended to legislate against hate speech in line with the Law Commission’s 267th Report.
Shaheen Abdullah and Suo Moto FIRs: In October 2022, the same bench (J K.M Joseph and Hrishikesh Roy) in Shaheen Abdullah vs. UOI passed a watershed order in these clubbed matters directing the Governments of Delhi, Uttarakhand, and Uttar Pradesh to take suo-moto action against any hate speech crime without waiting for a complaint, warning that failure to act would be contempt of court. The order may be found here.
In January 2023, in the Tushar Gandhi contempt petition, a bench of CJI Chandrachud and Justice Narasimha pulled up the Delhi Police for taking five months to register an FIR against Sudarshan News editor Suresh Chavhanke, who had administered a violent oath to make India a Hindu Rashtra, in violation of the earlier Tehseen Poonawalla directions. The Order can be found here.
On February 3, 2023, the bench of former Justice Joseph and Justice Pardiwala passed preventive orders in the Shaheen Abdullah matter. Hearing a plea against a proposed Sakal Hindu Samaj rally in Maharashtra, the Court recorded the state government’s undertaking that the meeting would only be permitted if no hate speech was made, directed the police to invoke Section 151 CrPC for preventive arrests if necessary, and ordered that the event be video-recorded. In a visible on-ground effect of this order, the Uttarakhand government refused permission to a Dharam Sansad in Roorkee. This order may be found here.
On April 28, 2023, in the matter of Ashwini Kumar Upadhyay vs Union of India, the Court extended this suo moto FIR obligation from Delhi, Uttarakhand, and Uttar Pradesh to all States and Union Territories. The order for such extension may be found here.
On August 2, 2023, a special hearing was convened in the Shaheen Abdullah matter following anti-Muslim violence in the Nuh district of Haryana triggered by a Bajrang Dal and VHP procession. A bench of Justices Sanjiv Khanna and SVN Bhatti directed the Delhi Police and the governments of Delhi, Uttar Pradesh, and Haryana to ensure no untoward incident took place at upcoming VHP rallies and to video-record events in sensitive areas. This order may be found here.
Moving towards “practical and effective” steps to curb hate speech
On August 25, 2023, the same bench (Sanjiv Khanna and SVN Bhatti) in the Ashwini Kumar Upadhyay Matter urged “practical and effective” steps to implement earlier directions and sought compliance reports from States on the Tehseen Poonawalla Judgement (2018) requirement to designate a Superintendent of Police-rank nodal officer in each district. This order can be found here.
Responding to this, in November 2023 the Ministry of Home Affairs filed an affidavit confirming that 28 States and Union Territories had appointed such nodal officers. An order of November 29 then directed nodal counsel to prepare a consolidated chart of all pending petitions and their prayers. This order may be found here.
In January 2024, a freshly constituted bench of Justices Sanjiv Khanna and Dipankar Datta directed the District Magistrate and Superintendent of Police in Yavatmal (Maharashtra) and Raipur (Chhattisgarh) to take appropriate steps to prevent hate speech at upcoming rallies of the Hindu Janajagruti Samiti and BJP MLA T. Raja Singh. This order may be found here.
Throughout all these orders, while the Court consistently refused to grant pre-emptive gag orders on rallies, it simultaneously imposed obligations on the State to take effective measures. This is the proactive approach in its fullest expression, not the silencing of the speaker, but the activation of the State as a guarantor of inclusive public space.
Detailed report on previous Supreme Court’s orders in this case may be found here and here.
The Gavel Falls: 2026 Judgement in Ashwini Kumar Upadhyay vs Union of India
Facts:
The 2026 judgement of Ashwini Kumar Upadhyay vs Union of India saw a sharp departure from this proactive approach. The judgement delivered clubbed all the above-mentioned petitions in its scope and adjudication.
To better understand this departure let us look at the facts of the case, and what the Court was called to adjudicate on. The petitioners, from various parts of the country, filed 13 writ petitions seeking a range of reliefs. These included directions to the Centre to implement the Law Commission’s 267th Report, directions to stop the dissemination of fake news and communally biased media content, directions to lodge criminal cases against persons committing violence against minorities, and issuance of a continuing mandamus to ensure registration of FIRs in hate speech cases. Some petitions pertained to specific incidents, such various alleged hate speeches made by public figures across different States including “desh…….” by Anurag Thakur.
In addition to the writ petitions, several contempt petitions were also filed. These alleged violation of the Court’s interim orders (as noted above) dated October 21, 2022 and April 28, 2023, both of which had directed authorities to take suo moto action against hate speech without waiting for a formal complaint.
This reveals that Indian citizens have always been on the forefront of combatting hate speech. From filing cases seeking specific reliefs that prevent hate speech to calling Court to formulate hate speech guidelines. Indian citizenry has consistently voiced its concern over legitimisation of escalating hate speech and strongly condemned it. However, in this case it was the Court that showed a marked reluctance in taking the requisite action against hate speech.
Decision:
The Court held that there exists no legislative vacuum and the pre-existing penal framework is sufficient to address hate speech. Further, it stated that no contempt proceedings could be initiated against the police for not taking suo moto actions, as it would be an overbroad interpretation of the Order that mandated such suo moto actions. Lastly, the Court dismissed filing of an FIR against the two accused citing that “no cognizable offence” can be made out.
Analysis of the Findings by the Court
On the question of legislative vacuum and need for hate speech laws
Herein, firstly, the Court had to decide whether there exists a legislative vacuum with respect to hate speech law that could prompt the Court to order guidelines or ask the government to bring in specific laws combatting hate speech. The Court declined the plea and held that Indian Criminal law has sufficient laws dealing with hate speech and therefore, no legislative vacuum exists that could prompt the Court to take any action. The Court makes no referral or mention of the developments in its own court (Pravasi Bhalai..) that led to the 267th Report of the Law Commission and its detailed findings and recommendations. By passing this jurisprudence, the Court has done little justice to a corrosive phenomenon that is negatively impacting the equality and dignity of millions of marginalised Indians.
In Para 37, the Court held that “several provisions which penalise acts that promote enmity between different groups, outrage religious sentiments, or disturb public tranquillity [exist]”, later the Court goes on to list the provisions of the IPC that cover the previously mentioned. Now, with respect, this is where the Court’s understanding of hate speech is lacking. Hate speech is not necessarily the same as “outraging religious sentiments” or “disturbing public tranquillity”; these are separate offences that have separate requirements. The Court here has conflated these offences with hate speech, and owing to the confusion, held that there exists no legislative vacuum.
The Court mentions Section 124A, 153A, 153B, 295A, 298, and 505(2) of the Indian Penal Code to be covering hate speech.
Section 124A criminalises sedition. Sedition is a fundamentally different act as compared to hate speech, the former deals with inciting violence against the country while the latter is about lowering dignity of a people. Sedition laws clearly have nothing to do with hate speech (as also highlighted by the Law commission’s report on hate speech in paragraphs 6.19 & 6.20).
Further, Section 153 and 505 disallows promotion of feeling of enmity, hatred or ill will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony. While prima facie it seems to prohibit hate speech, the judicial interpretation of these provisions show a different picture. Moreover, to repeat the aspect of impact and intent in causing harm and denial of equal rights and dignity –aspects dealt with at length in Pravasi Bhalai and subsequently the 267th Law Commission Report, have been left un-mentioned in this verdict.
On the question of Contempt Proceedings against Authorities
Secondly, the Court was called to decide whether contempt proceedings should be initiated against the Police in pursuance to its own order dated April 28, 2023. As per the Order the police was expected to file a suo moto complaint against hate speech whenever an instance comes across them. Any failure or hesitation on the part of the authorities in complying with the previously mentioned directions would be viewed seriously and may attract proceedings for contempt of Court. In pursuance of this Order, several petitioners asked for the contempt proceedings to be started against the responsible authorities. However, the Court denied the plea and held,
“The element of “hesitation” or failure to act despite knowledge of a cognizable offence is a sine qua non for invoking the contempt jurisdiction of this Court. In cases where the petitioner has not even approached the authorities or placed the relevant material before them, it would be wholly inappropriate to infer disobedience or “hesitation” on the part of the authorities. In the absence of such foundational facts, the contempt jurisdiction cannot be invoked.”
(Paragraphs 159 & 160)
The Court therefore held that in the absence of material placed before the authorities, it can be assumed that the authorities had no knowledge, and therefore, it could not be said that they were hesitant in starting proceedings against the accused. This reluctance or failure to hold police authorities responsible for such egregious conduct (hate speech) can only add to the prevalent climate of impunity. Previous and several Orders by the Supreme Court, it is mandated for police to “monitor” and “videotape” speeches in sensitive areas where there is a likelihood of utterance of hate speech. Now, in the final judgement, the Court’s failure to initiate action on the police authorties’ failure or reluctance to act, the Court permits inaction on such crimes committed. In doing so, it failed to take into account its own Orders that mandated monitoring of rallies and speeches by the police. The authorities now can, refuse to monitor the rallies where hate speech is made and claim immunity from contempt proceedings that arise out of their inaction by simply pleading ignorance. In essence, it appears that the Court made non-compliance with its previous order (monitoring) as a defence to contempt proceedings in instances of no suo moto action being taken!
On the question of appeal of Delhi High Court’s Order [“no cognizable offence made out”]:
The Supreme Court was also required to check the correctness of the Delhi High Court order that dismissed the Writ petition pleading the High Court to file FIR against Anurag Thakur and Parvesh Varma. Before we analyse the Supreme Court’s response to the appeal, it is pertinent to first look at the High Court’s order.
Owing to the bar on prosecution of public servants under Section 197 of the CrPC (that is without sanction granted by the executive), the magistrate refused to file an FIR against Anurag Thakur and Parvesh Verma as there was no “prior sanction” to prosecute the public servant as required in Section 197. The writ in the High Court dealt exclusively dealt with this question of jurisdiction, i.e., “the only question for consideration before this Court is limited to the extent of adjudicating whether the [Magistrate] has rightly dismissed the complaint [owing to lack of sanction]” The High Court, congruent to the Trial Court, did not delve into the merits of the complaint. Hence, neither the Trial Court nor the High Court adjudged whether the contents of the speech itself made by the accused constituted the crime of hate speech. The High Court on the question of jurisdiction sided with the Trial Court’s finding and held that no FIR could be filed wanting sanction. It is in this backdrop, that the Supreme Court’s was required to examine the speeches themselves
The Supreme Court in this appeal, did, overrule the High Court’s finding on the question of jurisdiction. The High Court had incorrectly concluded that government sanction needed to be obtained before a Magistrate could direct the police to register an FIR under Section 156(3) CrPC.
The Supreme Court clarified that this requirement of prior sanction only kicks in at the later stage of a court taking cognizance of an offence; it has no application at the earlier stage of simply setting the criminal justice process in motion through FIR registration.
Later, however, in Paragraphs 136-138 of the Supreme Court judgement when the Court starts to assess the merits of the complaint, we find several evasions. The Court held that “the High Court has, on an independent assessment, held that the speeches in question do not disclose the commission of any cognizable offence, observing that the statements were not directed against any specific community nor did they incite violence or public disorder” (Paragraph 136). This is, with respect, factually incorrect. The High Court had not taken any independent assessment of the speech, it merely dealt with the jurisdictional (procedural) aspect of the complaint and had not paid any heed to the content of the speech. In the following paragraph,
“Upon a careful consideration of the material placed on record, including the alleged speeches, the status report dated February 26, 2020 submitted before the Trial Court, and the reasons recorded by the courts below, we are in agreement with the conclusion that no cognizable offence is made out.”
(Para 137 of the Supreme Order).
The Court again, with respect, is mistaken in these considerations. At the cost of repetition, neither the Trial Court nor the High Court had held that “no cognizable offence is made out” while adjudicating on the content of the speech. Both Courts had merely limited themselves to the question of jurisdiction. In any case, merely agreeing with the Order of the lower Courts without giving any reasoning violates the principles of natural justice. Fundamental natural justice principles require that the Court provides some (not necessarily lengthy) reasoning for agreeing with the lower Court’s decisions. However, in this instance, the Supreme Court has overturned the legal basis of the High Court’ Order yet, without providing any reason, agreed with the outcome.
While arriving at its conclusions, the Court stated,
“Accordingly, while we disapprove the reasoning adopted by the High Court on the issue of prior sanction, we find no ground to interfere with the ultimate conclusion” (Paragraph 138).
The reason previous Courts had held that no FIR could be filed against the accused is only on grounds of the lack of jurisdiction. The Supreme Court held that the jurisdiction was proper, and the police could file an FIR against the accused without the sanction. The natural course of action here would then have been delving into the merits of the complaints or ordering the Magistrate to delve into the merits of the complaints. The Supreme Court however does neither. It absolves itself of providing any reasons for its decision by simply holding that “[there] are no grounds to interfere”.
The Court here, in effect, gives a clean chit to the accused without any application of judicial mind to the actual content of the speech, which makes out an alleged offence. At no level of judiciary was there an application of judicial mind to the content of the impugned speech. Despite that, the accused have got “a clean chit.”
Keeping in mind that the Court did not delve into content of the impugned speech, it is important for us to independently examine the speech by the two main accused can, at all, be classified as hate speech.
I. Anurag Thakur
Location: Delhi
Date: January 27, 2020
Link: <https://www.groundxero.in/wp-content/uploads/2020/07/Delhi_riots_Fact_Finding_2020_compressed.pdf>
“These [Protestors at Shaheen Bagh] are Traitors to our Country, Shoot them”
Anurag Thakur, a prominent member of the Bharatiya Janata Party (BJP) in his infamous speech had called for killing of the supposed “traitors” of the Country. Before we delve into the call for outright physical violence, it is pertinent to decode the euphuisms used, as context is very important in determining hate speech as held by the Amish Devgan judgment. The backdrop of the speech was the protestors at Shaheen bagh who were peacefully protesting against the Citizenship Amendment Act, 2019. It is very evident from the context of the speech that the traitors referred to in the speech are these protestors, none else.
Most of the people who were involved in these protests at Shaheen Bagh were Muslims. Anurag Thakur deliberately invokes the slur, calls Shaheen Bagh protestors as “traitors” of the Nation and several times ask the crowd to echo his call for violence, making a clearly inciteful speech. By calling for violence against these protestors in a charged environment (that are largely Muslims demographically), Thakur indirectly calls for violence against Muslims at large.
Moreover, Thakur was a Union Minister of State when he uttered these statements. Therefore, his statements had the potential to have far-reaching consequences owing to both the reach and influence that politicians yield. These are important considerations when classifying hate speech applying the Amish Devgan Judgement.
II. Parvesh Verma
Location: Delhi and ANI News (Cable network through TV)
Date: January 28, 2020 & January 27, 2020
Link: <https://www.groundxero.in/wp-content/uploads/2020/07/Delhi_riots_Fact_Finding_2020_compressed.pdf>
“They will enter into your homes. They will abduct your women and rape and kill them.”
[Via TV on ANI News]
Parvesh Verma uses verbal imagery the protestors at Shaheen Bagh (largely Muslims) to instil fear in the audience. He remarks that these protestors will barge into the Hindu homes, kill, and rape Hindu women. This communally charged sentence aims at fear mongering. This is also intended to create division and disharmony between the two communities.
“If my government is formed in Delhi, then give me only one month’s time. Will not leave any mosque built in my constituency on government land, I will remove them all.”
[Via TV on ANI News]
This statement is ipso facto inflammatory, communal and a threat to Muslims. By calling for destroying all the mosques in Delhi, Varma is intimidating and threatening Muslims of Violence at large. Parvesh Verma is a politician with great reach and influence, this reach is amplified by the fact that his first two impugned statements came via Television, meaning his speech could have been accessed immediately by millions of people. This becomes an important consideration in determining hate speech.
“If the BJP comes to power in Delhi, we will clear Shaheen Bagh of all protestors within 1 hour. Not a single person will be visible.”
This statement does not require much explanation. It is direct threat to violence against the protestors of Shaheen Bagh. These statements carry greater weight as they were uttered by an influential person. He is currently the Deputy Chief Minister of Delhi.
It is these three aspects of the final judgement (a. failing to give any directions on combatting hate speech, b. failing to initiate contempt proceedings c. and giving clean chit to the accused), that we can discern a clear shift in the Court’s approach during the adjudication of these cases, over five years. Interim Orders were proactive, the final judgement status quo-ist. Despite several and specific complaints, the Supreme Court chose not to take any action against hate speech.
The Court missed an important opportunity here to carve out specific directions to combat hate speech, neither did it attempt to fill up the legislative vacuum.
The Law Commission of India in its 267th Report recognised this legal vacuum and had recommended adding specific sections to strengthen the law(s) dealing with hate speech. Worse, the Court watered down its own previous order that required suo moto actions against instances of hate speech.
By shifting the onus on complainants to file FIRs the Court restored the status quo and negated its own previous directions wherein it had placed the onus squarely on the shoulders of the authorities to prevent and take action against hate speech. Lastly, by giving a clean chit to the particular accused without even an examination into the content to merit of the speeches, the Court has set an undesirable precedent.
In the final judgement, the judges have over dozens of pages warned against dangers of hate speech in a democratic societies, in fact, the judgement had a specific section titled “Epilogue: An ode to ‘Fraternity’ in the Preamble vis- à-vis the idea of ‘vasudhaiva kutumbakam’”.
Yet, by failing to issue specific directions, it has not acted on its own wise words. Finally, this verdict will act not as a check but a possible enabler wherein influential protagonists can get away with their inflammatory speeches. Though the judgement recognises that politicians have a special duty to be mindful of their words owing to the wide reach and influence they have, the Court stops short of ensuring any accountability. The overall impact of this judgement on the hate speech jurisprudence in India is limiting. Instead of listing sharp directives to the executive to act, even directing he legislature to examine the legislative lacuna, the Court has missed an excellent opportunity.
Though India, experiences, on an average, five instances of hate speech occurring every day, these may well continue without check. In choosing general observations over specific actionable directive, the Supreme Court, also known as the “Court of last resort” has caused an acute disappointment.
The complete judgment of the Supreme Court may be read here:
Interim Orders in these cases from September 2022 to January 2024 may be found here:
The High Court Judgement in the matter may be read here:
(The legal research team of CJP consists of lawyers and interns; this resource has been worked on by Hamzah Patel)
Related:
India Hate Lab Report 2025: How Hate Speech has been normalised in the public sphere
Supreme Court in 2023: Several steps forward, miles to go in the fight against hate
Hate Speech and the Supreme Court: From constitutional alarm to institutional closure
Hate Speech by BJP’s Top Brass fuelled Build Up to Delhi Violence: Minorities Commission
