New Delhi: The Supreme Court of India on Tuesday (January 20) reserved its orders on a massive cluster of petitions that have, for over four years, sought judicial intervention to curb the rising tide of hate speech across the country.
A bench comprising Justice Vikram Nath and Justice Sandeep Mehta indicated that it intends to close the proceedings in most of these matters, while granting the petitioners the freedom to seek other legal remedies for specific grievances. However, in a significant move, the Court decided to keep one specific case “alive”—a 2021 alleged hate crime involving the assault of a Muslim cleric in Noida—to monitor the progress of the trial and ensure justice is served.
The legal battle against hate speech in the top court began largely in 2020. Many of the initial petitions were filed during the first wave of the COVID-19 pandemic, targeting media campaigns and social media trends like ‘Corona Jihad’ that blamed a specific community for the spread of the virus.
One of the most high-profile cases in this batch concerned the ‘UPSC Jihad’ show aired by Sudarshan TV, which the Court eventually stayed, observing that the program was vilifying a community. Over the years, the scope of the petitions expanded to include:
- Inflammatory speeches at ‘Dharam Sansads’ (religious assemblies).
- PILs filed by Advocate Ashwini Upadhyay seeking specific legislation to define and punish hate speech.
- Petitions by activists like Qurban Ali and organizations like the PUCL regarding the "reluctance" of the state to act against repeat offenders.
During the final hearing, the courtroom saw intense arguments regarding why hate speech continues to persist despite the Court’s clear directions in 2023. In that landmark interim order, the Supreme Court had directed all States and Union Territories to register suo motu (on its own motion) FIRs against hate speech without waiting for a formal complaint.
Advocate Nizam Pasha, representing petitioner Qurban Ali, argued that the primary hurdle isn't a lack of laws, but a lack of "political will." He pointed out that hate speech events are often advertised days in advance.
"When the Court intervened in the past, incidents didn't happen. But generally, the same 'usual suspects' go from state to state delivering the same speeches. FIRs are filed, but no arrests are made, which allows them to repeat the offence," Pasha submitted.
He also brought the Court’s attention to modern challenges, such as an AI-generated video allegedly shared by a political unit in Assam, which used deepfake technology to spread communal apprehension.
Another technical but crucial legal point was raised by Senior Advocate Siddharth Aggarwal, appearing for CPI(M) leader Brinda Karat. Karat had challenged the Delhi High Court’s refusal to order an FIR against certain political leaders for alleged hate speech during the 2020 Delhi riots.
The lower courts had ruled that an FIR cannot be registered without "prior sanction" from the government. Aggarwal argued that this is a legal error: "Sanction is required only when a Magistrate takes 'cognizance' (starts a trial), not at the initial stage of registering an FIR." The bench has asked for a brief note on this specific legal question.
Representing the victim in the Noida assault case, Advocate Shahrukh Alam urged the Court not to view hate speech merely as a "law and order" issue. She argued that hate speech should be recognized as a "Constitutional Tort" because it violates the fundamental right to dignity and creates a climate of discrimination.
She noted that while the "UPSC Jihad" show was stopped, similar content often resurfaces under different names, suggesting a systemic problem that needs a more robust constitutional solution.
Senior Advocate Sanjay Hegde, acting as the Amicus Curiae (Friend of the Court), touched upon the commercial side of hate. He noted that both mainstream and social media often amplify hate speech because it generates "traction" and views.
"Is there some way these corporations can be reined in? Can we make hate speech unprofitable?" Hegde asked the bench.
On behalf of the government, Additional Solicitor General (ASG) SV Raju maintained that the states are complying with the Court’s 2023 directions. He cited data showing that in several reported incidents, FIRs had indeed been registered, while in others, the police found that no actual offence was committed.
The Election Commission of India (ECI) and the News Broadcasters and Digital Association (NBDA) also informed the Court that they have internal guidelines to handle such issues and are open to strengthening them.
The bench has asked all parties to submit their written notes within the coming days. By reserving its orders, the Supreme Court is expected to deliver a final judgment that will likely:
- Summarize the responsibilities of State Police under the Tehseen Poonawalla guidelines.
- Clarify whether the 2023 direction for suo motu FIRs will become a permanent standard.
- Decide on the legal necessity of "sanction" for registering FIRs in hate speech cases.
While the broader batch of petitions nears a close, the "Kazeem Ahmad Sherwani" case remains a symbolic anchor, ensuring that the Court continues to watch over the practical enforcement of justice on the ground.
Case Title: Ashwini Kumar Upadhyaya v. Union of India | W.P.(C) No. 943/2021 (and connected matters)