# ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS

- **Citation:** Writ Petition Civil 943 / 2021
- **Court:** Supreme Court of India
- **Decided:** 2026-04-29
- **Case number:** Writ Petition Civil 943 / 2021
- **Bench:** VIKRAM NATH, SANDEEP MEHTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashwini-kumar-upadhyay-v-union-of-india-ors-217505
- **Pages:** 125

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W.P.(C)No.943 of 2021 etc.etc. Page 1 of 125

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL APPELLATE/ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 943 OF 2021
ASHWINI KUMAR UPADHYAY ...PETITIONER(S)
 VERSUS
UNION OF INDIA & ORS. ...RESPONDENT(S)
WITH
WRIT PETITION (CIVIL) NO. 788 OF 2020
AND
WRIT PETITION (CIVIL) NO. 789 OF 2020
AND
WRIT PETITION (CIVIL) NO. 477 OF 2020
AND
WRIT PETITION (CIVIL) NO. 956 OF 2020
AND
SLP (CIVIL) NO. 6913 OF 2021
AND
WRIT PETITION (CIVIL) NO. 907 OF 2021
AND
WRIT PETITION (CIVIL) No. 1265 OF 2021
AND
Digitally signed by
NEETU KHAJURIA
Date: 2026.04.29
20:15:37 IST
Reason:
Signature Not Verified
W.P.(C)No.943 of 2021 etc.etc. Page 2 of 125

WRIT PETITION (CIVIL) No. 24 OF 2022
AND
WRIT PETITION (CIVIL) No. 80 OF 2022
AND
WRIT PETITION (CIVIL) No. 940 OF 2022
AND
SLP (CRIMINAL) NO. 5107 OF 2023
AND
CONMT. PET.(C) NO. 776 OF 2023
IN
WRIT PETITION (CIVIL) NO. 940 OF 2022
AND
DIARY NO. 11853 OF 2023
AND
WRIT PETITION (CIVIL) NO. 515 OF 2023
AND
CONMT. PET.(C) NO. 1153 OF 2023
IN
 WRIT PETITION (CIVIL) NO. 943 OF 2021
AND
DIARY NO. 41754 OF 2023
AND
CONMT. PET.(C) NO. 1235 OF 2023
IN
WRIT PETITION (CIVIL) NO. 940 OF 2022
AND
W.P.(C)No.943 of 2021 etc.etc. Page 3 of 125

DIARY NO. 5793 OF 2024
AND
WRIT PETITION (CIVIL) No. 128 OF 2024
AND
WRIT PETITION (CIVIL) NO. 200 OF 2024
AND
DIARY NO. 1579 OF 2025
AND
DIARY NO. 3470 OF 2025

J U D G M E N T
VIKRAM NATH, J.
For easy exposition and clarity in addressing the issues
arising in the present batch of matters, we have
structured this judgment into four parts. Part 'I' deals
with the writ petitions; Part 'II' addresses the Special
Leave Petitions; Part 'III' concerns the contempt petitions;
and Part 'IV' sets out the conclusions along with the final
directions of this Court.
Part I
Table of Contents
A. Overview of the reliefs sought in the present proceedings . 6
B. Issues before this Court ................................................... 18
W.P.(C)No.943 of 2021 etc.etc. Page 4 of 125

C. Submissions on behalf of the parties ............................... 19
D. Analysis and Discussion .................................................. 29
Nature
and
Essential
Attributes
of
Crime
in
Criminal
Jurisprudence........................................................................... 30
ISSUE I: Whether this Court can create or expand criminal
offences in the absence of legislative action? ................... 32
(i) Separation of Power under the Indian Constitution ............. 34
(ii) Limits of Judicial Power in the Creation of Criminal Offences
 ................................................................................................. 36
ISSUE II: Whether the existing field of substantive criminal
law adequately deals with offences relating to hate speech, or
the field is legislatively unoccupied? ................................ 48
Law Commission Report No. 267 on 'Hate Speech' ................. 49
ISSUE III: Whether the existing framework of criminal
procedural law provides adequate and efficacious remedies to
address the grievances raised by the petitioners, particularly
in cases of non-registration of a First Information Report?55
(i) Statutory Framework governing Registration of Offences under
CrPC/BNSS .............................................................................. 55
(ii) Mandatory Registration of FIR upon Disclosure of Cognizable
Offence ..................................................................................... 58
(iii) Statutory Mechanism to address Non-registration of FIR ... 59
(iv) Constitutional Remedies in cases of Continuing Non-redressal
 ................................................................................................. 66
ISSUE IV: Whether a continuing mandamus is warranted in
the present case? ............................................................. 68
E. Epilogue: An ode to 'Fraternity' in the Preamble vis-à-vis the
idea of 'vasudhaiva kutumbakam'....................................... 73
W.P.(C)No.943 of 2021 etc.etc. Page 5 of 125

(i) Fraternity in the Constitutional Ethos of Indian Society ....... 74
(ii) Vision of the Constituent Assembly and the Duties of
Constitutional Citizenship ........................................................ 80
F. Conclusion of Part I: ........................................................ 83

1. The jurisdiction of this Court has been invoked under
Article 32 of the Constitution of India1 by way of the
present writ petitions seeking, inter alia, appropriate
directions to the respondent-Union of India to
examine the existing legal framework governing 'hate
speech' and 'rumour-mongering', and to take such
steps as may be necessary to effectively address and
regulate the same by way of a legislation.
2. The proceedings have been occasioned primarily by
two developments. First, reliance has been placed
upon the 267th Report dated 23rd March, 2017, of the
Law Commission of India which recommended
certain amendments to the criminal law, including
the introduction of specific provisions dealing with
'incitement to hatred'. Secondly, the petitioners have
referred to the emergence of public speeches during
the
COVID-19
pandemic
allegedly
targeting
particular religious minorities, wherein it was

1 Hereinafter, referred to as "Constitution".
W.P.(C)No.943 of 2021 etc.etc. Page 6 of 125

insinuated that members of those communities were
responsible for spreading the virus by engaging in
communal conduct rather than adhering to public
health protocols such as social distancing.
A. Overview of the reliefs sought in the present
proceedings
3. These proceedings arise from 13 writ petitions filed
by petitioners from various part of the country. The
reliefs sought in each of these petitions are captured
in the table below, for ease of reference: -
Sr.
No.
Case
Details
Relief sought
1.
W.P. (C)
No. 943
of 2021
a. direct
the
Centre
to
examine
the
international
laws
relating
to
'Hate
Speech' and 'Rumor Mongering' and take
appropriate effective stringent steps to
control
'Hate
Speech'
and
'Rumor
Mongering' in order to secure Rule of Law,
Freedom of Speech & Expression, Right to
Life Liberty and Dignity and other
fundamental rights of citizens;
b. alternatively, direct the Centre to take
apposite
steps
to
implement
recommendations of Law Commission
Report-267 on Hate Speech;
c. direct and declare that Sentence for
committing the Offences Against Public
Tranquillity,
Offences
Relating
to
Elections, Offences Relating to Religion
W.P.(C)No.943 of 2021 etc.etc. Page 7 of 125

and
Offences
relating
to
Criminal
Intimidation, Insult and Annoyance shall
be Consecutive, not Concurrent;
d. pass such other order(s) or direction(s) as
the Court deems fit and proper to control
Offences
Against
Public
tranquillity,
Offences Relating to Elections, Offences
Relating to Religion and Offences relating
to Criminal Intimidation, Insult and
Annoyance.
2.
W.P. (C)
No. 788
of 2020
a. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
against the concerned Respondents to
stop the dissemination of fake news and
communally biased news by the media,
including print, electronic and on social
platforms and on information vilifying
Muslims, and communalising the incident
of the Tabligh-Jamaat at the Markaz
Nizmauddin and in accordance with
statement denouncing all forms of social
stigma released by the Hon'ble Ministry of
Health and Family Welfare on Wednesday
(April 8, 2020); and/or;
b. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
against the concerned Respondents to
take steps and lodge criminal cases
against persons who have committed acts
of violence against Muslims, and sought
to endanger the peace and harmony of the
society;
c. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
against the concerned Respondents to
take steps to guarantee the safety and
W.P.(C)No.943 of 2021 etc.etc. Page 8 of 125

security of Muslims, who are being
victimised on account of the reckless
vilification by the media; and/ or
d. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
against the concerned Respondents to
give a detailed report on the cases that
have been filed and lodged against
miscreants who have committed acts of
violence against Muslims, and sought to
endanger the peace and harmony of the
society; and/or
e. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to the Respondents to outlay and make
public the cluster areas and hotspots of
Coronavirus in the country, as well as
publicise necessary precautions to the
residents and inhabitants of such areas;
and/or
f. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to the Respondents to evolve a national
policy as to what extent and to what
details the names and identities of
person(s) who are being tested, and/or
found positive and/or being quarantined
for Covid-19 be disclosed to the public,
and such a national policy be respectful of
individual dignity and privacy, and only
after the reports have been provided to
such Covid-19 +ve patients and are made
aware of the implications the report in
accordance with statement denouncing
all forms of social stigma released by the
Hon'ble Ministry of Health and Family
W.P.(C)No.943 of 2021 etc.etc. Page 9 of 125

Welfare on Wednesday (April 8, 2020);
and/or
g. Issue a writ in the nature of Mandamus or
any other appropriate writ/ order or
direction to the Respondents to refrain
them from publishing or publicising the
names of the Person(s) further on, before
the public or in any other public platform
or forums, in case the reports of the
Person(s) turn out to be negative for
Covid-19 novel Coronavirus; and/ or
3
W.P. (C)
No. 789
of 2020
a. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
against the concerned Respondents to
stop the dissemination of fake news and
communally biased news by the media,
including print, electronic and on social
platforms and on information vilifying
Muslims, and communalizing the incident
of the Tabligh-Jamaat at the Markaz
Nizmauddin and in accordance with
statement denouncing all forms of social
stigma released by the Hon'ble Ministry of
Health and Family Welfare on Wednesday
(April 8, 2020); and/or;
b. Issue a writ in the nature of Mandamus or
any other appropriate a writ/ order or
direction for constituting an independent
Enquiry Committee as to the negligence of
the concerned Respondent authorities as
well as the Nizamuddin Markaz in the
screening of foreigners who were granted
permission to enter such public places,
when the Coronavirus pandemic had
already broken out world-wide; and/or
W.P.(C)No.943 of 2021 etc.etc. Page 10 of 125

c. Issue a writ in the nature of Mandamus or
any other appropriate a writ/ order or
direction for eliciting a detailed report into
the conduct of the concerned Respondent
authorities as well as the Nizamuddin
Markaz, as to what steps and measures
that they have taken since, for the
purpose of identification and confinement
of Coronavirus amongst the attendees of
the
Tabligh-Jamaat
at
the
Markaz
Nizmauddin and file a Report before this
Hon'ble Court; and/or
d. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to
the
Respondents
to
elicit
a
response/report as to why only so far
'Tablighis' or attendees of the Tablighijamaat" at the Nizamuddin Markaz, are
being tested and why sufficient testing for
corona virus is not being conducted
despite the availability of testing kits;
and/or
e. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to the Respondents to outlay and make
public the cluster areas and hotspots of
Coronavirus in the country, as well as
publicise necessary precautions to the
residents and inhabitants of such areas;
and/or
f. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to the Respondents to evolve a national
policy as to what extent and to what
details the names and identities of
person(s) who are being tested, and/or
found positive and/or being quarantined
W.P.(C)No.943 of 2021 etc.etc. Page 11 of 125

for Covid-19 be disclosed to the public,
and such a national policy be respectful of
individual dignity and privacy, and only
after the report have been provided to
such Covid-19 +ive patients and are made
aware of the implications the report in
accordance with statement denouncing
all forms of social stigma released by the
Hon'ble Ministry of Health and Family
Welfare on Wednesday (April 8, 2020);
and/or
g. Issue a writ in the nature of Mandamus or
any other appropriate a writ/ order or
direction to the Respondents to refrain
them from publishing or publicising the
names of the Person(s) further on, before
the public or in any other public platform
or forums, in case the reports of the
Person(s) turn out to be negative for
Covid-19 novel Coronavirus; and/or
h. Issue a writ in the nature of Mandamus or
any other appropriate a writ/ order or
direction to the Respondents to, that in
the event the reports of the a person(s)
testing +ive for the Covid-19, such
person(s)
be
made
aware
of
their
conditions of quarantine as well the
Respondents give a detailed outlay of the
services
and
amenities,
including
medicines and medical requirements that
they would be provided and will have
access
to,
in
furtherance
of
their
observation of quarantine; and/or
i. Issue a writ in the nature of mandamus
and/ or any other writ/ order or direction
to
the
Respondents
to
stop
the
dissemination
of
fake
news
and
W.P.(C)No.943 of 2021 etc.etc. Page 12 of 125

communally biased news by the media,
including print, electronic and on social
platforms, and/or
4.
W.P. (C)
No. 477
of 2020
a. Issue a writ in the nature of mandamus,
or any other writ, order or direction to the
Central
Government
to
stop
the
dissemination of fake news and take strict
action against the sections of the media
spreading communal hatred in relation to
the Nizamuddin Markaz incident; and/or
b. Issue a writ in the nature of mandamus,
or any other writ, order or direction to the
Ministry of Information and Broadcasting
to identify and take strict action against
sections
of
the
media
who
are
communalising the Nizamuddin Markaz
incident; and/or
c. Issue a writ in the nature of mandamus,
or any other writ, order or direction to all
sections of the media to strictly comply, in
letter and spirit, with the directions of the
Hon'ble Supreme Court dated March 31,
2020 in Writ Petition (Civil) No. 468/2020;
and/or
d. Issue a writ in the nature of mandamus,
or any other writ, order or direction to all
sections of the media to strictly comply, in
letter and spirit, with the media advisory
dated 08.04.2020 [ANNEXURE P-16]
issued by the Ministry of Health and
Family Welfare.
5.
W.P. (C)
No. 956
of 2020
a. To issue suitable writ or any other writ/
order of direction to the Respondent No.1
&
2
to
issue
necessary
instructions/guidelines to restrain the
Media channels both print and electronic
W.P.(C)No.943 of 2021 etc.etc. Page 13 of 125

as well as social media networks as well
as Respondent No.5 from broadcasting or
reporting any news relating to religion or
which
has
any
angle
communal
disharmony or the contents of the video as
in ANNEXURE P1 or the scheduled
programmed Bindas Bol to be aired on
28th August 2020 at 8.00 pm on
Sudarshan News Channel.
b. To restrain the Respondent No. 5 from
broadcasting any show or airing any news
which is offensive/defamatory under the
Indian Penal 1860 or the Information
Technology Act 2000 relating to any
community, religion or any class of society
which disturbs the peace and the law and
order including public order;
c. To set up an enquiry in the matter of the
programme referred to in the ANNEXURE
P1 as the Hon'ble Court deems fit against
the Respondent No. 5 for its hatred
towards communities especially Muslims
of the Country by a committee in this
behalf.
6.
W.P. (C)
No. 907
of 2021
a. Issue a writ of continuing mandamus or
any other writ, order or direction to the
Respondents directing them to assume a
duty of care in relation to the meaning of
hate speech as laid down in Amish
Devgan v. Union of India (supra);
b. Issue a writ of mandamus or any other
writ, order or direction to the Respondents
directing them to comply with the
guidelines laid down by this Hon'ble Court
in Tehseen Poonawalla v. Union of India
(supra);
W.P.(C)No.943 of 2021 etc.etc. Page 14 of 125

c. Issue a writ of mandamus or any other
writ, order or direction to the Respondents
directing the application of punitive
measures against public authorities for
breaches resulting in harm as laid down
by
this
Hon'ble
Court
in
Tehseen
Poonawalla v. Union of India (supra);
d. Issue a writ of mandamus or any other
writ, order or direction defining the
contours of 'duty of care in investigations'
or the tort of negligent investigations
resulting in harm; and
7.
W.P. (C)
No.
1265 of
2021
a. Pass appropriate writ, direction, orders
seeking report from the Respondent No 1
in relation to the action taken by different
state mechanism in relation to the hate
speeches, more particularly targeting the
personality
of
Prophet
Mohammad
(PBUH),
in
the
light
of
mandatory
direction passed in the case of Tehseen
Poonawal v Union of India (supra)
b. Pass appropriate writ, direction, orders
constituting an independent committee to
for compiling all the complaints relating to
hate crime in the country;
c. Pass appropriate writ, direction, orders for
court
monitored
investigation
and
prosecution of the hate crimes.
8.
W.P. (C)
No. 24 of
2022
a. Issue a writ of mandamus or any other
writ, order or direction to ensure that an
independent,
credible
and
impartial
investigation
is
conducted
into
the
incidents of hate speeches against the
Muslim
community
including
the
speeches delivered between the 17th &
19th of December 2021 at Haridwar and
W.P.(C)No.943 of 2021 etc.etc. Page 15 of 125

Delhi by an SIT or otherwise as deemed
appropriate by this Hon'ble Court;
b. Issue a writ of mandamus or any other
writ, order or direction to the Respondents
directing them to comply with the
guidelines laid down by this Hon'ble Court
in Tehseen Poonawalla v. Union of India
(supra)
specifically
mentioned
under
Paragraph 40 thereof;
c. Issue a writ of mandamus or any other
writ, order or direction defining the
contours of 'duty of care in investigations'
or the tort of negligent investigations
resulting in harm;
9.
W.P. (C)
No. 80 of
2022
a. Issue an appropriate writ, order or
direction
constituting
a
high
level/ranking
Special
Investigation
Team(s)
that
operates
under
the
supervision of this Hon'ble Court;
10.
W.P. (C)
No. 940
of 2022
a. Issue a writ of mandamus or any other
writ, order or direction to the Respondent
to initiate appropriate action under the
relevant penal statues including the
Unlawful Activity Prevention Act, 1967,
against the speakers as well as the
organizations engaging in activities that
lead spread of communal disharmony and
act as a threat to the unity and integrity
of India;
b. Issue a writ of mandamus or any other
writ, order or direction to ensure that an
independent,
credible
and
impartial
investigation
is
conducted
into
the
incidents of hate speeches and hate
crimes against the Muslim community,
including those referred to in the instant
W.P.(C)No.943 of 2021 etc.etc. Page 16 of 125

Writ Petition, in a time bound manner, by
an SIT that is monitored by this Hon'ble
Court;
11.
W.P. (C)
No. 515
of 2023
a. Issue a Writ of Mandamus or any other
appropriate
writ
or
order
to
the
respondents to initiate appropriate action
under relevant Penal Statues including
the Unlawful Activity Prevention Act,
1967, against the speakers as well as the
organizations engaging in activities that
lead spread of communal disharmony and
act as a threat to the unity and integrity
of India;
b. Issue a writ of writ of mandamus or any
other appropriate writ or order to ensure
an independent, credible and impartial
investigation
is
conducted
into
the
incidents of hate speeches and hate
crimes against the Hindu community
including the referred to in the instant
writ petition in the States of Bihar,
Jharkhand, Rajasthan, Uttar Pradesh,
Madhya Pradesh, Telangana, Karnataka,
NCT of Delhi, And Tamil Nadu , in a time
bound
manner,
by
an
special
investigation
team
(S.I.T.)
that
is
monitored by the Hon'ble Court,
c. Issue directions to State Police Authorities
for conducting investigations regarding
role, duties and responsibilities of social
media applications / sites / platforms as
to whether in cases of Hate Speeches such
platforms remain only intermediaries or
become accessories to crime and take
appropriate legal action,
W.P.(C)No.943 of 2021 etc.etc. Page 17 of 125

12.
W.P. (C)
No. 128
of 2024
a. Issue a writ of mandamus or any other
writ, order or direction to ensure that an
independent,
credible
and
impartial
investigation
is
conducted
into
the
incidents of hate speeches against the
Hindu community including the speeches
delivered in various place in all over India
by an Special Investigation Team or
specialized
investigation
agency
as
deemed appropriate by this Hon'ble
Court;
b. Issue a writ of mandamus or any other
writ, order or direction to the Respondent
No.1 to 6 directing them to comply with
the guidelines laid down by this Hon'ble
Court in Tehseen Poonawalla v. Union of
India (supra) specifically mentioned under
Paragraph 40 thereof;
c. Direct the Investigation Agency to Register
FIR against the Respondents No. 7 to 15
for offences committed by them;
13.
W.P. (C)
No. 200
of 2024
a. Direct the Respondents to lodge a First
Information Report against Mr. Nitesh
Rane and other participants in the event
organized by the Sakal Hindu Samaj in
Malwani,
Mumbai,
Maharashtra
on
03.03.2024; and/or
b. Direct the Respondents to proceed,
subsequent
to
the
filing
of
the
aforementioned FIR, in accordance with
the law against Mr. Nitesh Rane and other
participants in the event organized by the
Sakal Hindu Samaj in Malwani, Mumbai,
Maharashtra on 03.03.2024; and/or
c. Direct the Respondents to carry out a
thorough and proper investigation in
W.P.(C)No.943 of 2021 etc.etc. Page 18 of 125

respect of the event organized by the
Sakal Hindu Samaj on 03.03.2024 in
Malwani, Mumbai, Maharashtra; and/or
d. Restrain Respondent No.3 from making
any inflammatory speech against the
minority community in Malwani, Malad
(West), Mumbai, Maharashtra and also
restrain him from conducting or leading
rallies
which
disturb
the
peace
in
Malwani,
Malad
(West),
Mumbai,
Maharashtra;
B. Issues before this Court
4. Upon glancing the prayers made, we find that qua
some of the prayers, the matter has become
infructuous as they pertained to the pandemic and
directions to the respondent-Union to that effect.
Therefore, largely the present batch of petitions give
rise to the following issues: -
I.
Whether this Court can create or expand criminal
offences in the absence of legislative action?
II.
Whether the existing field of substantive criminal
law adequately deals with offences relating to
hate
speech,
or
the
field
is
legislatively
unoccupied?
III.
Whether the existing framework of criminal
procedural law provides adequate and efficacious
remedies to address the grievances raised by the
W.P.(C)No.943 of 2021 etc.etc. Page 19 of 125

petitioners,
particularly
in
cases
of
nonregistration of a First Information Report?
IV.
Whether continuing mandamus should be issued
in the present case?
C. Submissions on behalf of the parties
5. Shri Sanjay R. Hegde, learned Amicus Curiae, made
the following submissions:
i.
That the State is not merely a neutral observer in
the contest of ideas but bears the responsibility of
preserving the constitutional atmosphere. According
to the learned Amicus, the failure of the State to
respond to foreseeable and systemic hate speech
may amount to a violation of the right to life with
dignity guaranteed under Article 21 of the
Constitution.
ii.
That
the
statutory
framework
appears
comprehensive on paper, it was submitted that
structural
deficiencies
remain.
The
existing
provisions are largely reactive rather than preventive
and are designed to address isolated acts rather
than systemic or corporate dissemination of hate
speech.
W.P.(C)No.943 of 2021 etc.etc. Page 20 of 125

iii.
That the penalties prescribed under the existing law
may
not
operate
as
a
sufficient
deterrent,
particularly in the context of media corporations
that may derive commercial benefit from sensational
or inflammatory content. Additionally, overlapping
regulatory jurisdictions may create uncertainty in
enforcement.
iv.
Reference was made to evolving international
regulatory standards which impose a "duty of care"
upon digital platforms and broadcasters. By way of
illustration, reliance was placed upon the German
regulatory model which requires large social media
platforms to remove manifestly unlawful content
within a prescribed time frame, failing which
substantial financial penalties may be imposed.
6. Shri Ashwini Kumar Upadhyay, petitioner-in-person,
made the following submissions:
i.
That hate speech is not merely offensive expression
but constitutes a targeted misuse of the right to
freedom of speech and expression. According to the
petitioner, the existing legal framework has proved
inadequate to effectively address the phenomenon,
and legislative inaction has allowed the problem to
persist.
W.P.(C)No.943 of 2021 etc.etc. Page 21 of 125

ii.
That Indian substantive criminal law has historically
recognised that speech which incites hatred, hostility
or discrimination against identifiable groups is not
merely the expression of opinion but a serious public
wrong capable of disturbing social harmony and
constitutional order. While the Bharatiya Nyaya
Sanhita, 2023 continues to retain offences earlier
contained
in
the
Indian Penal
Code, 18602
criminalising acts that promote enmity, make
imputations prejudicial to national integration, or
outrage religious feelings, it was contended that the
statute does not provide a comprehensive definition
of "hate speech". Consequently, the legal regime
continues to suffer from interpretative ambiguities
and enforcement vulnerabilities similar to those
which existed under the earlier law.
iii.
That the substantive limitations in the law are
compounded by procedural deficiencies. Although
offences relating to hate speech are cognizable,
thereby casting a mandatory obligation upon the
police to register a First Information Report and
initiate investigation, it was contended that in
practice there is frequent refusal, delay or dilution of

2 For short, "IPC".
W.P.(C)No.943 of 2021 etc.etc. Page 22 of 125

charges. Such institutional inertia, according to the
petitioner, undermines the preventive purpose of the
law and permits inflammatory narratives to circulate
unchecked until they manifest in overt violence.
iv.
That the 267th Report of the Law Commission of
India, recommended the creation of specific offences
dealing with incitement to hatred. It was submitted
that the failure to implement these recommendations
has resulted in a legislative vacuum, compelling
reliance upon provisions that are inadequate to
address
contemporary
manifestations
of
hate
speech.
7. Shri M.R. Shamshad, learned senior counsel
appearing for the petitioner in W.P. (Civil) No. 1265 of
2021, submitted that there is no complete vacuum in
the legal framework governing hate speech. However,
the principal concern lies in the manner of
enforcement. According to learned senior counsel,
the failure to take action in appropriate cases should
not be permitted to translate into a discretionary or
selective approach by law enforcement authorities,
particularly where victims belong to vulnerable or
minority communities.
W.P.(C)No.943 of 2021 etc.etc. Page 23 of 125

8. Shri Nizamuddin Pasha, learned counsel appearing
for the petitioners in some of the aforesaid writ
petitions, made the following submissions:
i.
That the petitions do not seek the enactment of
additional legislation but rather address the
reluctance of State authorities to take action against
hate speech in accordance with existing law,
particularly where the alleged perpetrators occupy
positions of authority.
ii.
That hate speech assumes a particularly dangerous
character when it emanates from persons in
positions of power. Reference was made to instances
where speeches delivered at public events allegedly
included explicit calls for violence or economic
boycott against particular communities.
iii.
That
when
such
speech
emanates
from
constitutional
functionaries
or
public
representatives,
it
acquires
a
semblance
of
legitimacy and may contribute to its wider
dissemination
and
normalisation
in
public
discourse.
iv.
That when such speeches occur in the presence of
law enforcement authorities without any immediate
action, it creates a chilling effect and undermines
W.P.(C)No.943 of 2021 etc.etc. Page 24 of 125

public confidence in the neutrality and effectiveness
of the State's enforcement machinery.
v.
That in this backdrop, learned counsel urged that
continued judicial oversight through a continuing
mandamus may be necessary to ensure that State
authorities take prompt action in accordance with
law.
vi.
That effective compliance with the directions of this
Court may require the imposition of institutional
consequences, including contempt proceedings or
disciplinary action against erring officials, as
contemplated in the order dated 21st October, 2022.
8A. Shri Sanjay Parikh, learned senior counsel appearing
for
the
applicant-PUCL,
made
the
following
submissions:
i.
That hate speech strikes at the foundational values
of the Constitution of India. The Preamble envisages
India as a secular republic and seeks to secure
fraternity, dignity of the individual, and the unity
and integrity of the Nation. Fraternity, it was
contended, 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
undermines
these
W.P.(C)No.943 of 2021 etc.etc. Page 25 of 125

constitutional guarantees and threatens collective
social harmony.
ii.
That this Court has on several occasions held that
where the existing statutory framework fails to
adequately address a particular issue, this Court
may issue appropriate guidelines to fill the vacuum
until suitable legislation is enacted.
iii.
That the directions issued by this Court in Tehseen
S. Poonawalla v. Union of India3, which dealt with
mob lynching, may be suitably adapted and
extended to cases of hate speech. It was contended
that hate speech often precedes or precipitates acts
of mob violence, physical assault, or lynching, and
therefore the preventive and remedial measures
indicated in the said judgment would be equally
relevant.
9. On behalf of the petitioner in W.P. (Civil) No. 907 of
2021, it was submitted that apart from punitive
measures, this Court may consider issuing directions
for systemic and periodic efforts by the State to
counter the social impact of hate speech. It was
suggested that such measures may include periodic
public
service
messages
aimed
at
promoting

3 (2018) 9 SCC 501
W.P.(C)No.943 of 2021 etc.etc. Page 26 of 125

constitutional values and discouraging exclusionary
narratives.
10. By order dated 20th January, 2026, this Court, while
reserving judgment in the present matter, granted
two weeks' time to the parties to file their written
submissions. However, no such submissions have
been filed on behalf of the respondent-Union of India.
In the absence thereof, we proceed to delineate the
stand of the respondent-Union of India on the basis
of
the
affidavits
filed
during
the
course
of
proceedings. The said stand may be summarised as
follows: -
i.
That the practice of invoking the extraordinary
jurisdiction of this Court under Article 32 of the
Constitution,
without
first
availing
available
statutory remedies, ought to be discouraged, as it
has the potential to open the floodgates of litigation
before this Court.
ii.
That the writ petitioners ought to have first
approached
the
competent
authorities
and
exhausted the remedies available under the
statutory framework. It is contended that, in the
present case, the petitioners have approached this
W.P.(C)No.943 of 2021 etc.etc. Page 27 of 125

Court without even initiating proceedings before
the police or other law enforcement agencies.
iii.
That the reliefs sought by the writ petitioners fall
within the domain of legislative policy and are,
therefore, within the exclusive province of the
legislature. It is submitted that the role of the
judiciary is confined to interpretation of existing
law, and while the Court may, in appropriate cases,
fill in interstitial gaps, it ought not to trench upon
the legislative domain.
iv.
That legislation is a constitutionally assigned
function of a higher order, vested in the competent
legislature under the scheme of the Constitution,
particularly with reference to the distribution of
legislative powers under the Seventh Schedule. Any
judicial interference in this domain, except within
permissible
constitutional
limits,
would
be
inconsistent with the doctrine of separation of
powers.
11. On the other hand, Shri Dama Seshadri Naidu,
learned senior counsel appearing for the respondentElection Commission of India, submitted as follows:
i.
That the existing statutory framework adequately
addresses the concerns raised by the petitioner.
W.P.(C)No.943 of 2021 etc.etc. Page 28 of 125

Reference was made to Sections 153A, 153B, 295A,
298 and 505 of IPC (now corresponding provisions
under the Bharatiya Nyaya Sanhita), as well as
Sections 8, 123(3A) and 125 of the Representation
of the People Act, 1951. Preventive powers under
Sections 95, 107 and 144 of the Code of Criminal
Procedure, 1973 were also relied upon. According to
the
respondent,
these
provisions
sufficiently
empower the authorities to curb hate speech and
rumour-mongering.
ii.
That this Court in Pravasi Bhalai Sangathan v.
Union
of
India4,
has
observed
that
the
implementation of existing law would solve the
problem of hate speech to a great extent as the rootcause of the problem is not the absence of laws
rather lack of the effective execution.
iii.
That
the
Election
Commission
ensures
that
elections are conducted in accordance with the
Model Code of Conduct. In cases where hate speech
is alleged during the electoral process, the
Commission takes note of such instances and issues
show-cause notices to the concerned candidates.
Upon consideration of their responses, appropriate

4 AIR 2014 SC 1591
W.P.(C)No.943 of 2021 etc.etc. Page 29 of 125

action may be taken, including advisories, censure,
temporary prohibition from campaigning, or the
initiation of criminal complaints.
iv.
That the Commission has also issued guidelines in
the nature of "Do's and Don'ts" to be followed by
political
parties
and
candidates
after
the
announcement of elections and until the completion
of the electoral process, which specifically prohibit
appeals based on caste or communal sentiments.
12. Ms. Nisha Bhambhani, learned counsel appearing for
respondent No. 4- News Broadcasters and Digital
Association, submitted that there exists no statutory
or regulatory vacuum in the legal framework
governing hate speech. However, it was suggested
that this Court may direct strict compliance with the
punitive and remedial measures laid down in
Tehseen
S.
Poonawalla
(supra),
including
monitoring of provocative content and ensuring
timely investigation and prosecution where offences
are disclosed.
D. Analysis and Discussion
13. We have heard the learned counsel appearing in
support of the writ petitions as well as those opposing
W.P.(C)No.943 of 2021 etc.etc. Page 30 of 125

the same, and have perused the material placed on
record. Since the issues raised in the present
proceedings traverse multiple facets of constitutional
and legal significance, we propose to deal with them
under separate heads.
Nature and Essential Attributes of Crime in Criminal
Jurisprudence
14. Crime, in its broadest sense, refers to the commission
of an act prohibited by law or the omission of an act
which the law mandates, resulting in a violation of
public law and causing harm to society, for which the
State prescribes punishment. Conduct which a
sufficiently
powerful
section
of
a
community
perceives as destructive of its collective interests, or
as endangering its safety, stability or public order, is
ordinarily treated as criminal and is sought to be
repressed through the coercive authority of the State.
15. Historically, the idea of crime has evolved alongside
the development of organised society. The existence
of social norms and the consequences attached to
their violation form an intrinsic part of social
organisation. Discourse on crime, deviance and
wrongdoing, whether described as sin, villainy, or
W.P.(C)No.943 of 2021 etc.etc. Page 31 of 125

misconduct, can be traced through the literature and
social thought of different eras. Early accounts found
in criminal biographies, pamphlets and literary
works of the early modern period reflect rudimentary
attempts
to
explain
deviant
conduct.
In
contemporary times, however, the identification of
crime is largely a matter of legislative determination,
reflecting the policy choices of the State as to which
forms of conduct should be prohibited in the larger
public interest.
16. This Court in P. Rathinam v. Union of India5, while
considering the constitutional validity of Section 309
of the IPC relating to 'attempt to commit suicide',
noted
with
approval
the
formulation
of
the
characteristics of crime as set out in Kenny's
Outlines of Criminal Law (19th Edn.). It was
observed that a crime ordinarily exhibits three
essential attributes: -
i.
it involves harm brought about by human
conduct which the sovereign power in the State
seeks to prevent;

5 (1994) 3 SCC 394.
W.P.(C)No.943 of 2021 etc.etc. Page 32 of 125

ii.
the measures adopted for such prevention
include the threat or imposition of punishment;
and
iii.
legal proceedings of a special character are
employed to determine whether the person
accused has in fact caused such harm and is
legally punishable for the same.
17. It therefore follows that, for conduct to constitute a
crime in the eye of law, the act or omission in
question must be expressly prohibited by the
sovereign authority of the State through legislation
governing the field.
ISSUE I: Whether this Court can create or expand
criminal offences in the absence of legislative action?
18.