As per case facts, petitioners invoked Article 32 seeking directions for the Union of India to examine laws on 'hate speech' and 'rumour-mongering', implement Law Commission recommendations, and address related ...
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
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 India
1 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 267
th Report dated 23
rd 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 Tablighi-
jamaat" 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 l ight 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 bec ome
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 non -
registration 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 an d
constitutional order. While the Bharatiya Nyaya
Sanhita, 2023 continues to retain offences earlier
contained in the Indian Penal Code , 1860
2
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 267
th 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 21
st 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 India
3, 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 20
th 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 respondent-
Election 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 India
4, has observed that the
implementation of existing law would solve the
problem of hate speech to a great extent as the root-
cause 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 me asures 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 whic h 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 India
5, 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. In the mid-eighteenth century, during the intellectual
movement of reform which awakened human
rationality and later came to be known as the age of
enlightenment, the idea of liberty began to assume a
wider meaning in political thought. It was in this
backdrop that the French political philosopher
Montesquieu, in his seminal work The Spirit of Laws,
articulated the theory concerning the distribution of
governmental powers.
W.P.(C)No.943 of 2021 etc.etc. Page 33 of 125
19. Montesquieu postulated that in every system of
government there exist three distinct kinds of power:
the legislative power; the executive power relating to
matters dependent upon the law of nations; and the
executive power concerning matters governed by civil
law, which in substance corresponds to the judicial
power. While the first pertains to the authority to
enact laws, the second concerns the execution of
laws, and the third relates to the adjudication of
disputes arising under them.
20. He emphasised that liberty would be imperilled if the
legislative, executive and judicial powers were
concentrated in the same person or body. It was
therefore essential that these powers remain distinct
and independent so that each organ of the State could
operate as a check upon the others. This conception
later came to be known as the Doctrine of Separation
of Powers.
21. One of the earliest constitutional incorporations of
this doctrine may be found in the Federal
Constitution of the United States of America, 1787,
where separate Articles are devoted to the Legislature,
the Executive and the Judiciary, delineating their
respective powers, functions and limitations.
W.P.(C)No.943 of 2021 etc.etc. Page 34 of 125
(i) Separation of Power under the Indian Constitution
22. The question whether the Constitution of India
embodies the Doctrine of Separation of Powers has
engaged the attention of this Court on several
occasions. In Rai Sahib Ram Jawaya Kapur v. The
State of Punjab
6, this Court observed that while the
Constitution of India does not recognise the doctrine
of separation of powers in its absolute rigidity, the
functions of the different organs of the State have
nevertheless been sufficiently demarcated and
differentiated.
23. In Kesavananda Bharati v. State of Kerala
7, this
Court observed that the Constitution itself furnishes
ample indication of a system of checks and balances,
whereby powers are distributed in such a manner
that none of the three organs of the State can assume
such predominance as to disable the others from
exercising the functions entrusted to them. The Court
further held that although the Constitution of India
does not incorporate the doctrine of separation of
powers in its strict or absolute form, as is the case
under the Constitution of the United S tates, it
6
AIR 1955 SC 549
7
(1973) 4 SCC 225
W.P.(C)No.943 of 2021 etc.etc. Page 35 of 125
nonetheless envisages a functional separation of
powers to a significant degree.
24. In a similar vein, while examining the contours of the
doctrine of separation of powers, the Constitution
Bench of this Court in Supreme Court Advocates -
on-Record Association v. Union of India
8, adverted
to the deliberations of the Constituent Assembly,
particularly the acceptance of the proposal moved by
Dr. B.R. Ambedkar to incorporate Article 39A of the
Draft Constitution (which now finds place as Article
50 of the Constitution of India). The said provision
casts an express obligation upon the State to take
steps to separate the judiciary from the executive in
the public services of the State.
25. The constitutional scheme thus makes it evident that
while the Constitution recognises the doctrine of
separation of powers, it does not adopt it in its rigid
or absolute form. Nonetheless, the functional
demarcation between the three organs of the State
remains fundamental. One organ cannot usurp the
essential functions assigned to another. Just as the
Legislature cannot assume the function of
8
(2016) 5 SCC 1
W.P.(C)No.943 of 2021 etc.etc. Page 36 of 125
interpreting laws, which lies within the domain of the
Judiciary, the Judiciary likewise cannot assume the
role of the Legislature by enacting laws.
(ii) Limits of Judicial Power in the Creation of Criminal
Offences
26. The question whether this Court can create or
recognise a criminal offence must, therefore, be
examined in the light of the constitutional framework
and the precedents of this Court.
27. Another three-Judge Bench of this Court in Asif
Hameed v. State of J&K
9, was concerned with the
question whether the High Court was justified in
issuing a writ of mandamus directing the State
Government to constitute a “statutory independent
body” for the purpose of making selections for
admission to medical colleges. This Court strongly
disapproved of the directions issued by the High
Court, holding them to be patently erroneous, and
observed that such a direction would effectively
compel the State Legislature to enact a law in that
regard, an exercise beyond the permissible limits of
9
1989 Supp (2) SCC 364
W.P.(C)No.943 of 2021 etc.etc. Page 37 of 125
judicial review. For the sake of convenience, the
relevant extract is reproduced hereunder: -
“17. Before adverting to the controversy directly
involved in these appeals we may have a fresh look on
the inter se functioning of the three organs of
democracy under our Constitution. Although the
doctrine of separation of powers has not been
recognised under the Constitution in its absolute
rigidity but the Constitution makers have
meticulously defined the functions of various
organs of the State. legislature, executive and
judiciary have to function within their own spheres
demarcated under the Constitu tion. No organ can
usurp the functions assigned to another. The
Constitution trusts to the judgment of these organs
to function and exercise their discretion by strictly
following the procedure prescribed therein. The
functioning of democracy depends upon the
strength and independence of each of its organs .
legislature and executive, the two facets of people's
will, they have all the powers including that of finance.
Judiciary has no power over sword or the purse
nonetheless it has power to ensure that the aforesaid
two main organs of State function within the
constitutional limits. It is the sentinel of democracy.
Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the
legislature and executive. The expanding horizon of
judicial review has taken in its fold the concept of
social and economic justice. While exercise of
powers by the legislature and executive is subject
to judicial restraint, the only check on our own
exercise of power is the self-imposed discipline of
judicial restraint.
. . .
19. When a State action is challenged, the function of
the court is to examine the action in accordance with
law and to determine whether the legislature or the
executive has acted within the powers and functions
W.P.(C)No.943 of 2021 etc.etc. Page 38 of 125
assigned under the Constitution and if not, the court
must strike down the action. While doing so the court
must remain within its self-imposed limits. The court
sits in judgment on the action of a coordinate branch
of the Government. While exercising power of judicial
review of administrative action, the court is not an
Appellate Authority. The Constitution does not
permit the court to direct or advise the executive
in matters of policy or to sermonize qua any matter
which under the Constitution lies within the sphere
of legislature or executive, provided these
authorities do not transgress their constitutional
limits or statutory powers.
. . .
21. The High Court's directions for constituting
“Statutory Independent Body” obviously mean that
the State Legislature must enact a law in this
respect. The Constitution has laid down elaborate
procedure for the legislature to act thereunder. The
legislature is supreme in its own sphere under the
Constitution. It is solely for the legislature to
consider as to when and in respect of what subject-
matter, the laws are to be enacted. No directions in
this regard can be issued to the legislature by the
courts. The High Court was, therefore, patently in
error in issuing directions in Jyotshana Sharma
case and reiterating the same in the judgment under
appeal.”
(emphasis supplied)
28. While reiterating that the Legislature is supreme
within its constitutionally assigned sphere of law-
making, this Court has simultaneously cautioned
that the power of judicial review, though a potent
constitutional instrument to restrain
W.P.(C)No.943 of 2021 etc.etc. Page 39 of 125
unconstitutional exercise of power by the Legislature
or the Executive, must be exercised with due
restraint. The only limitation upon the exercise of this
power is the self-imposed discipline of judicial
restraint. The constitutional position, therefore,
remains clear that the Legislature, being supreme in
its own domain under the Constitution, is the sole
authority to determine when and in respect of what
subject matter laws ought to be enacted.
29. This Court in SCWLA v. Union of India
10, was seized
of a writ petition under Article 32 of the Constitution
of India seeking a direction to the Union of India to
introduce “chemical castration” as an additional
punishment for offences involving sexual abuse of
children. The petitioners therein contended that
certain perpetrators had repeatedly engaged in acts
of physical and sexual abuse of minor girls, some as
young as two to five years of age, and in certain
instances had even murdered the victims thereafter.
30. While considering the said plea, this Court observed
that the statutory framework already provided for the
relevant offences as well as the punishment
10
(2016) 3 SCC 680
W.P.(C)No.943 of 2021 etc.etc. Page 40 of 125
prescribed therefor. The Court further held that the
question whether a higher or additional punishment
ought to be introduced falls within the legislative
domain. In that context, the Court observed as
follows: -
5. At the very outset, we must make it clear that
the courts neither create offences nor do they
introduce or legislate punishments. It is the duty
of the legislature. The principle laid down in Vishaka
case [Vishaka v. State of Rajasthan, (1997) 6 SCC 241
: 1997 SCC (Cri) 932] is quite different, for in the said
case, the Court relied on the International Convention,
namely, “Convention on the Elimination of All Forms of
Discrimination against Women” especially articles
pertaining to violence and equality in employment and
further referred to the concept of gender equality
including protection from sexual harassment and right
to work with dignity and on that basis came to hold
that in the absence of enacted law to provide for
effective enforcement of the basic human right of
gender equality and guarantee against the sexual
harassment and abuse, more particularly against
sexual harassment at work places, guidelines and
norms can be laid down in exercise of the power under
Article 32 of the Constitution, and such guidelines
should be treated as law declared under Article 141 of
the Constitution.
. . .
6. We have referred to the said passage
from Vishaka case [Vishaka v. State of Rajasthan,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932] as it is clear
that the Court has clearly taken note of the
constitutional silence or constitutional abeyance
and dealt with the constitutional obligation to
protect the right of women at the workplace.
. . .
W.P.(C)No.943 of 2021 etc.etc. Page 41 of 125
7. In the case at hand, the legislature has enacted
the law and provided the punishment and,
therefore, we cannot take recourse to
the Vishaka [Vishaka v. State of Rajasthan ,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932] principle.
There is no constitutional silence or abeyance.
. . .
14. This Court cannot provide a higher
punishment. It can only suggest to the legislature.
...”
(emphasis supplied)
It thus becomes evident that, in the absence of
constitutional silence or a legislative vacuum, the
Judiciary cannot assume the role of the Legislature
by determining what ought to constitute an offence
or by prescribing the appropriate punishment for a
particular criminal act. Where the Legislature has
already enacted a law governing the field and has
provided for the corresponding punishment, the
Court cannot, in exercise of its jurisdiction, supplant
the legislative scheme.
31. In such circumstances, this Court has held that
recourse cannot be taken to the principles laid down
in Vishaka v. State of Rajasthan
11, for the purpose
of framing rules or guidelines to occupy the field. The
power exercised in Vishaka (supra) was premised
11
(1997) 6 SCC 241
W.P.(C)No.943 of 2021 etc.etc. Page 42 of 125
upon the existence of a legislative vacuum. Where the
law already occupies the field, the formulation of
norms in the nature of legislation would fall beyond
the permissible contours of judicial power.
32. In another decision of a three-Judge Bench in Dr.
Ashwini Kumar v. Union of India,
12 this Court was
called upon to consider a prayer seeking a direction
to the Union of India to enact a comprehensive
standalone legislation to address custodial torture.
While dealing with the said request, the Court
acknowledged that in the course of inter preting
statutes and constitutional provisions, the judiciary
inevitably contributes to the development of the law
by laying down binding precedents.
33. The Court observed that such interpretative exercise,
often described as “judge-made law”, arises as a
natural consequence of adjudication. However, it
clarified that this process of judicial interpretation
cannot be equated with legislation, which lies within
the exclusive domain of the Legislature. The relevant
extract of the aforesaid decision is reproduced
hereinbelow: -
12
(2020) 13 SCC 585
W.P.(C)No.943 of 2021 etc.etc. Page 43 of 125
“22. Seven Judges of this Court in P.
Ramachandra Rao v. State of Karnataka [P.
Ramachandra Rao v. State of Karnataka, (2002) 4
SCC 578 : 2002 SCC (Cri) 830] had, while
interpreting Articles 21, 32, 141 and 142 of the
Constitution, held that prescribing period at which
criminal trial would terminate resulting in
acquittal or discharge of the accused, or making
such directions applicable to all cases in present or
in future, would amount to judicial law-making and
cannot be done by judicial directives. It wa s
observed that the courts can declare the law,
interpret the law, remove obvious lacuna and fill up
the gaps, but they cannot entrench upon the field
of legislation. The courts can issue appropriate and
binding directions for enforcing the laws, lay down
time-limits or chalk out a calendar for the proceeding
to follow to redeem the injustice and for taking care of
the rights violated in the given case or set of cases
depending on the facts brought to the notice of the
court, but cannot lay down and enact the provisions
akin to or on the lines of Chapter XXXVI of the Code of
Criminal Procedure, 1973.
. . .
24. . . . This requires a Judge to interpret the
provisions to decide the case and, in this process,
he may take recourse and rely upon fundamental
rights, including the right to life, but even then he
does not legislate a law while interpreting such
provisions. Such interpretation is called “Judge-
made law” but not legislation.
. . .
25. Legislating or law-making involves a choice to
prioritise certain political, moral and social values
over the others from a wide range of choices that
exist before the legislature. It is a balancing and
integrating exercise to give expression/meaning to
diverse and alternative values and blend it in a
manner that it is representative of several
viewpoints so that it garners support from other
W.P.(C)No.943 of 2021 etc.etc. Page 44 of 125
elected representatives to pass institutional
muster and acceptance. Legislation, in the form of
an enactment or laws, lays down broad and general
principles. It is the source of law which the Judges
are called upon to apply. Judges, when they apply
the law, are constrained by the rules of language
and by well-identified background presumptions as
to the manner in which the legislature intended the
law to be read. Application of law by the Judges is
not synonymous with the enactment of law by the
legislature. . . .
26. Legislature, as an institution and a wing of the
Government, is a microcosm of the bigger social
community possessing qualities of a democratic
institution in terms of composition, diversity and
accountability. Legislature uses in-built procedures
carefully designed and adopted to bring a plenitude
of representations and resources as they have
access to information, skills, expertise and
knowledge of the people working within the
institution and outside in the form of executive. . .
. The Constitution s tates that legislature is
supreme and has a final say in matters of
legislation when it reflects on alternatives and
choices with inputs from different quarters, with a
check in the form of democratic accountability and
a further check by the courts which exercise the
power of judicial review. It is not for the Judges to
seek to develop new all-embracing principles of law
in a way that reflects the stance and opinion of the
individual Judges when the society/legislators as a
whole are unclear and substantially divided on the
relevant issues [ Lord Browne -Wilkinson
in Airedale N.H.S. Trust v. Bland, 1993 AC 789,
pp. 879-880 : (1993) 2 WLR 316 (HL)] . In Bhim
Singh v. Union of India [Bhim Singh v. Union of
India, (2010) 5 SCC 538] , while observing that the
Constitution does not strictly prohibit overlapping
of functions as this is inevitable in the modern
parliamentary democracy, the Constitution
prohibits exercise of functions of another branch
W.P.(C)No.943 of 2021 etc.etc. Page 45 of 125
which results in wresting away of the regime of
constitutional accountability. . . .
. . .
29. It can be argued that there have been occasions
when this Court has “legislated” beyond what can
be strictly construed as pure interpretation or
judicial review but this has been in cases where the
constitutional courts, on the legitimate path of
interpreting fundamental rights, have acted
benevolently with an object to infuse and ardently
guard the rights of individuals so that no person or
citizen is wronged, as has been observed in para 46
of the judgment of Dipak Misra, C.J. in Kalpana
Mehta case [Kalpana Mehta v. Union of India,
(2018) 7 SCC 1] . Secondly, these directions were
given subject to the legislature enacting the law
and merely to fill the vacuum until the legislature
takes upon it to legislate. These judgments were
based upon gross violations of fundamental rights
which were noticed and in view of the vacuum or
absence of law/guidelines. The directions were
interim in nature and had to be applied till
Parliament or the State Legislature would enact
and were a mere stop -gap arrangement. The se
guidelines and directions in some cases as
in Vishaka [Vishaka v. State of Rajasthan, (1997)
6 SCC 241 : 1997 SCC (Cri) 932] had continued for
long till the enactment of “The Sexual Harassment
of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013” because the legislature
(it would also include the executive) impliedly and
tacitly had accepted the need for the said
legislation even if made by the judiciary without
enacting the law. Such law when enacted by
Parliament or the State Legislature, even if
assumably contrary to the directions or guidelines
issued by the Court, cannot be struck down by
reason of the directions/guidelines; it can be
struck down only if it violates the fundamental
rights or the right to equality under Article 14 of
the Constitution. . . .”
W.P.(C)No.943 of 2021 etc.etc. Page 46 of 125
(emphasis supplied)
From the foregoing discussion, it emerges that
the constitutional role of the judiciary is primarily to
interpret and apply the law, and not to legislate. In
appropriate cases, particularly where a legislative
vacuum exists, this Court may issue directions or
evolve principles while interpreting statutory
provisions or enforcing fundamental rights. Such
directions, however, are inherently interim in nature
and are intended to operate only until the Legislature
enacts an appropriate law governing the field.
34. The authority to enact binding and general norms of
conduct, which necessarily involve broader political,
social and moral considerations, lies exclusively
within the legislative domain. Any attempt by Courts
to prescribe detailed statutory schemes or to frame
provisions akin to legislation would amount to
judicial law-making and would impermissibly trench
upon the functions assigned to the Legislature. Thus,
while Courts may fill interstitial gaps in order to
safeguard constitutional rights, they cannot supplant
the legislative function or create enduring legal
frameworks that properly fall within the province of
Parliament or the State Legislatures.
W.P.(C)No.943 of 2021 etc.etc. Page 47 of 125
35. Very recently, this Court in Union of India v. K.
Pushpavanam
13, was called upon to consider the
correctness of directions issued by the High Court
requiring the Union Government to introduce a Bill in
relation to liability in tort. This Court expressed its
disapproval of the directions so issued, observing that
the High Court had transgressed the permissible
limits of judicial review by effectively directing the
introduction of legislation. The Court observed as
follows: -
“7. As far as the law of torts and liability thereunder of
the State is concerned, the law regarding the liability
of the State and individuals has been gradually evolved
by courts. Some aspects of it find place in statutes
already in force. It is a debatable issue whether the law
of torts and especially liabilities under the law of torts
should be codified by a legislation. A writ court
cannot direct the Government to consider
introducing a particular bill before the House of
Legislature within a time frame. Therefore, the first
direction issued under the impugned judgment [ K.
Pushpavanam v. Union of India, 2021 SCC OnLine
Mad 17062] was unwarranted .
. . .
13. The law regarding power of the writ court to
issue a mandate to the legislature to legislate is
well settled. No constitutional court can issue a
writ of mandamus to a legislature to enact a law on
a particular subject in a particular manner. The
Court may, at the highest, record its opinion or
recommendation on the necessity of either
13
(2023) 20 SCC 736
W.P.(C)No.943 of 2021 etc.etc. Page 48 of 125
amending the existing law or coming out with a new
law. . . . The only exception is where the Court finds
that unless a rule-making power is exercised, the
legislation cannot be effectively implemented.”
(emphasis supplied)
36. It is thus well settled that while exercising its writ
jurisdiction, this Court may interpret and develop the
law and may also indicate the necessity for legislative
reform where the circumstances so warrant.
However, the Court cannot issue a writ of mandamus
directing the Legislature or the Government to enact
a particular law or to introduce a Bill before the
Legislature within a stipulated time frame. While the
Court may draw attention to the need for legislative
action, it cannot compel the Legislature to undertake
the law-making function.
ISSUE II: Whether the existing field of substantive
criminal law adequately deals with offences relating to
hate speech, or the field is legislatively unoccupied?
37. The submission that there exists a legislative or
constitutional vacuum in addressing hate speech and
allied offences is misconceived. The field is not
unoccupied. The criminal law, as shall be presently
demonstrated, already contains several provisions
which penalise acts that promote enmity between
W.P.(C)No.943 of 2021 etc.etc. Page 49 of 125
different groups, outrage religious sentiments, or
disturb public tranquillity. These provisions
represent a conscious legislative effort to regulate
speech which threatens communal harmony and
public order.
38. The mere occurrence of incidents of hate speech
cannot lead to the conclusion that the law is silent on
the subject. More often than not, the difficulty lies in
the effective enforcement and application of the
existing statutory framework. At best, such instances
may reveal deficiencies in implementation in
particular cases. That, however, cannot furnish a
ground for the Court to assume the legislative
function or to supplant the statutory scheme enacted
by the Legislature.
Law Commission Report No. 267 on ‘Hate Speech’
39. This Court in Pravasi Bhalai Sangathan (supra),
observed that the issue of hate speech warranted a
deeper and more comprehensive examination by the
Law Commission of India. Accordingly, this Court
requested the Law Commission to consider the issues
highlighted in the judgment, examine the desirability
of defining the expression “hate speech”, and make
W.P.(C)No.943 of 2021 etc.etc. Page 50 of 125
appropriate recommendations to Parliament,
including suggestions for strengthening the powers of
the Election Commission to effectively curb the
menace of hate speech.
40. Pursuant to the aforesaid observations, the Law
Commission of India, under the Chairmanship of Dr.
Justice (Retd.) B.S. Chauhan, submitted its 267
th
Report dated 23
rd March, 2017, titled “Hate Speech”,
to the Union Minister for Law and Justice,
Government of India. The Report undertook a
comprehensive examination of the legal framework
governing hate speech and analysed the issue from
constitutional, comparative and statutory
perspectives.
41. In Chapter II of the Report, titled “Legal Provisions on
Hate Speech in India”, the Law Commission surveyed
the existing legislative provisions addressing hate
speech under Indian law. For the sake of
convenience, the relevant extract is reproduced
hereinbelow: -
“2.3 Hate speech has not been defined in any law in
India. However, legal provisions in certain legislations
prohibit select forms of speech as an exception to
freedom of speech.
Legislations Around Hate speech:
W.P.(C)No.943 of 2021 etc.etc. Page 51 of 125
2.4 Presently, in our country the following legislations
have bearing on hate speech, namely:
(i) the Indian Penal Code, 1860 (hereinafter IPC)
• Section 124A IPC penalises sedition
• Section 153A IPC penalises ‘promotion of enmity
between different groups on grounds of religion,
race, place of birth, residence, language, etc., and
doing acts prejudicial to maintenance of
harmony’.
• Section 153B IPC penalises ‘imputations,
assertions prejudicial to national-integration’.
• Section 295A IPC penalises ‘deliberate and
malicious acts, intended to outrage religious
feelings of any class by insulting its religion or
religious beliefs’.
• Section 298 IPC penalises ‘uttering, words, etc.,
with deliberate intent to wound the religious
feelings of any person’.
• Section 505(1) and (2) IPC penalises publication
or circulation of any statement, rumour or report
causing public mischief and enmity, hatred or ill-
will between classes.
(ii) the Representation of The People Act, 1951
• Section 8 disqualifies a person from contesting
election if he is convicted for indulging in acts
amounting to illegitimate use of freedom of
speech and expression.
• Section 123(3A) and section 125 prohibits
promotion of enmity on grounds of religion, race,
caste, community or language in connection with
election as a corrupt electoral practice and
prohibits it.
(iii) the Protection of Civil Rights Act, 1955
• Section 7 penalises incitement to, and
encouragement of untouchability through words,
either spoken or written, or by signs or by visible
representations or otherwise
W.P.(C)No.943 of 2021 etc.etc. Page 52 of 125
(iv) the Religious Institutions (Prevention of Misuse) Act,
1988
• Section 3(g) prohibits religious institution or its
manager to allow the use of any premises
belonging to, or under the control of, the
institution for promoting or attempting to
promote disharmony, feelings of enmity, hatred,
ill-will between different re ligious, racial,
language or regional groups or castes or
communities.
(v) the Cable Television Network Regulation Act, 1995
• Sections 5 and 6 of the Act prohibits transmission
or retransmission of a programme through cable
network in contravention to the prescribed
programme code or advertisement code. These
codes have been defined in rule 6 and 7
respectively of the Cable Television Network
Rules, 1994.
(vi) the Cinematograph Act, 1952
• Sections 4, 5B and 7 empower the Board of Film
Certification to prohibit and regulate the
screening of a film.
(vii) the Code of Criminal Procedure, 1973
• Section 95 empowers the State Government, to
forfeit publications that are punishable under
sections 124A, 153A, 153B, 292, 293 or 295A
IPC.
• Section 107 empowers the Executive Magistrate
to prevent a person from committing a breach of
the peace or disturb the public tranquillity or to
do any wrongful act that may probably cause
breach of the peace or disturb the public
tranquillity.
• Section 144 empowers the District Magistrate, a
Sub-divisional Magistrate or any other Executive
Magistrate specially empowered by the State
Government in this behalf to issue order in urgent
cases of nuisance or apprehended danger. The
W.P.(C)No.943 of 2021 etc.etc. Page 53 of 125
above offences are cognizable. Thus, have serious
repercussions on liberties of citizens and
empower a police officer to arrest without orders
from a magistrate and without a warrant as in
section 155 CrPC.”
42. It is thus evident that there is no complete legislative
vacuum in the substantive criminal law insofar as
addressing hate speech is concerned. The Law
Commission, towards the conclusion of its Report,
emphasised that while the right to freedom of speech
and expression is a fundamental democratic
guarantee, it is not absolute and may be reasonably
restricted in the interests of public order, dignity and
equality. The Report observed that although several
existing statutory provisions address facets of hate
speech, certain gaps remain in effectively dealing with
incitement to hatred and discrimination. In this
backdrop, the Commission recommended
strengthening the legal framework by introducing
specific penal provisions, namely proposed Sections
153C (prohibiting incitement to hatred) and 505A
(causing fear, alarm or provocation of violence), in the
IPC, along with measures aimed at promoting
responsible speech and ensuring more effective
enforcement.
W.P.(C)No.943 of 2021 etc.etc. Page 54 of 125
43. Once the Court arrives at the conclusion that no
legislative vacuum exists, the principle of judicial
restraint assumes considerable significance while
addressing the manner in which a particular social
concern ought to be regulated through policy
measures. It is well settled that the formulation of
policy and the choice of legislative response fall
squarely within the domain of the Legislature. At
best, the Court may draw the attention of the
Legislature to an emerging concern and recommend
that appropriate measures be considered. Whether,
and in what manner, the Legislature chooses to act
upon such observations remains entirely within its
legislative discretion.
44. The issues and instances brought to the notice of this
Court in the present petitions indicate that the
difficulty does not arise from the absence of
substantive law governing the field. On the contrary,
the existing legal framework contains provisions
capable of addressing the conduct in question. The
concern, rather, appears to stem from selective,
delayed, or inconsistent application of the procedural
mechanisms entrusted with enforcing these
provisions. The problem, therefore, is not one of
W.P.(C)No.943 of 2021 etc.etc. Page 55 of 125
legislative vacuum but of inadequate or uneven
invocation of the legal processes designed to give
effect to the law.
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?
45. Before addressing the specific grievances raised by
the petitioners, it is necessary to examine the
statutory framework governing the initiation of
criminal proceedings. The question whether the
existing legal regime is inadequate must be assessed
in the context of the scheme of the Code of Criminal
Procedure, 1973
14 (now replaced by Bharatiya
Nagarik Suraksha Sanhita, 2023
15), and the remedies
it provides.
(i) Statutory Framework governing Registration of
Offences under CrPC/BNSS
46. The CrPC provides a comprehensive statutory
framework governing the recording of information
14
For short, “CrPC”.
15
For short, “BNSS”.
W.P.(C)No.943 of 2021 etc.etc. Page 56 of 125
relating to cognizable offences, the consequent
investigation by police authorities, and the
supervisory jurisdiction of the Magistrate over the
process. Importantly, CrPC also envisages specific
remedies to address situations where the police fail or
decline to register a First Information Report
16 despite
disclosure of a cognizable offence. It is, therefore,
necessary to briefly examine the scheme of the Code,
the duty cast upon the police to register an FIR upon
disclosure of a cognizable offence, and the remedies
available to an aggrieved person in cases of non-
registration.
47. While emphasising the significance of FIR, the
Constitution Bench of this Court in Lalita Kumari
v. Government of Uttar Pradesh & Ors.
17,
recognised it as a foundational document in the
criminal law process, the primary object of which is
to set the criminal law in motion. Section 154 of CrPC
(Section 173 of BNSS) lays down the procedural
architecture for this purpose. The use of the
expression “shall” in the provision makes it
abundantly clear that every information relating to
16
For short, “FIR”.
17
(2014) 2 SCC 1
W.P.(C)No.943 of 2021 etc.etc. Page 57 of 125
the commission of a cognizable offence, if given orally
to an officer in charge of a police station, must be
reduced to writing and entered in the prescribed
register. The provision, thus, casts a mandatory duty
upon the police officer, leaving no discretion in the
matter. The underlying object is to ensure that the
earliest information regarding the commission of a
cognizable offence is formally recorded, thereby
enabling the investigative machinery to act promptly,
trace the offence, and bring the offender to justice.
48. The scheme of the CrPC makes a clear and conscious
distinction between cognizable and non-cognizable
offences. In respect of cognizable offences, the police
are vested with the power to register the case, arrest
without warrant, and proceed with investigation
without prior judicial sanction. On the other hand, in
cases of non-cognizable offences, Section 155 of CrPC
(Section 174 of BNSS) requires prior authorization of
the Magistrate before any investigation can be
undertaken. This distinction reflects the legislative
intent to ensure immediacy of action in serious
offences affecting public order and safety.
49. However, even under Section 155 of CrPC (Section
174 of BNSS), the use of mandatory language
W.P.(C)No.943 of 2021 etc.etc. Page 58 of 125
obligates the officer in charge of a police station to
record the substance of information relating to a non-
cognizable offence in the prescribed register. Though
investigation in such cases requires prior
authorization of the Magistrate, the recording of
information itself is not left to discretion.
(ii) Mandatory Registration of FIR upon Disclosure of
Cognizable Offence
50. The issue whether registration of an FIR is mandatory
upon disclosure of a cognizable offence is no longer
res integra. This Court in Lalita Kumari (supra) has
conclusively held that the statutory scheme of CrPC
leaves no discretion with the police in such cases and
mandates registration of an FIR. This Court further
clarified that no preliminary enquiry is permissible to
test the veracity or credibility of the information
before registration.
51. The principle underlying the said judgment is that the
registration of an FIR is only the first step in the
criminal investigative process. Questions relating to
the truthfulness, reliability or sufficiency of the
allegations fall squarely within the domain of
W.P.(C)No.943 of 2021 etc.etc. Page 59 of 125
investigation and cannot be made a ground to refuse
registration of the FIR at the threshold.
(iii) Statutory Mechanism to address Non-registration
of FIR
52. Equally significant is the fact that the CrPC itself
provides a comprehensive set of remedies in cases
where the police fail or refuse to register an FIR
despite disclosure of a cognizable offence.
53. In the first instance, Section 154(3) of CrPC (Section
173 of BNSS) enables an aggrieved person to
approach the Superintendent of Police by submitting
the substance of such information. Upon being
satisfied that the information discloses the
commission of a cognizable offence, the
Superintendent of Police may either undertake the
investigation himself or direct an investigation to be
conducted by a subordinate officer.
54. In addition, the remedy under Section 156(3) of CrPC
(Section 175 of BNSS) confers supervisory powers
upon the Magistrate. Section 156(3) of CrPC
empowers the Magistrate to direct registration of an
FIR and investigation by the police. This Court in
W.P.(C)No.943 of 2021 etc.etc. Page 60 of 125
Madhu Bala v. Suresh Kumar ,
18 clarified that the
power to order investigation under Section 156(3)
implicitly includes the power to direct registration of
a case. The relevant extract is reproduced hereunder:
-
“7. On completion of investigation undertaken
under Section 156(1) the officer in charge of the
police station is required under Section 173(2) to
forward to a Magistrate empowered to take
cognizance of the offence on a police report, a
report in the form pres cribed by the State
Government containing all the particulars
mentioned therein. Chapter XIV of the Code lays
down the conditions requisite for initiation of
proceedings by the Magistrate. Under sub-section (1)
of Section 190 appearing in that Chapter any
Magistrate of the First Class and any Magistrate of the
Second Class specially empowered may take
cognizance of any offence (a) upon receiving a
“complaint” of facts which constitutes such offence; (b)
upon a “police report” of such facts; or (c) upon
information received from any person other than a
police officer, or upon his own knowledge that such
offence has been committed. Chapter XV prescribes
the procedure the Magistrate has to initially follow if it
takes cognizance of an offence on a complaint under
Section 190(1)(a).
8. From a combined reading of the above provisions
it is abundantly clear that when a written
complaint disclosing a cognizable offence is made
before a Magistrate, he may take cognizance upon
the same under Section 190(1)( a) of the
Code and proceed with the same in accordance
with the provisions of Chapter XV. The other option
available to the Magistrate in such a case is to send
18
(1997) 8 SCC 476
W.P.(C)No.943 of 2021 etc.etc. Page 61 of 125
the complaint to the appropriate police station
under Section 156(3) for investigation. Once such
a direction is given under sub-section (3) of Section
156 the police is required to investigate into that
complaint under sub-section (1) thereof and on
completion of investigation to submit a “police
report” in accordance with Section 173(2) on which
a Magistrate may take cognizance under Section
190(1)(b) — but not under 190(1)( a). Since a
complaint filed before a Magistrate cannot be a “police
report” in view of the definition of “complaint” referred
to earlier and since the investigation of a
“cognizable case” by the police under Section
156(1) has to culminate in a “police report” the
“complaint” — as soon as an order under Section
156(3) is passed thereon — transforms itself to a
report given in writing within the meaning of
Section 154 of the Code, which is known as the first
information report (FIR). As under Section 156(1),
the police can only investigate a cognizable “case”,
it has to formally register a case on that report.”
(emphasis supplied)
It is, therefore, clear that once a Magistrate
directs investigation under Section 156(3) of CrPC,
the police is duty-bound to first register an FIR and
thereafter proceed with the investigation into the
complaint, which, upon such direction, attains the
character of a duly registered case disclosing a
cognizable offence.
55. This Court in Sakiri Vasu v. State of U.P.,
19 had
occasion to consider the scope and ambit of Section
19
(2008) 2 SCC 409
W.P.(C)No.943 of 2021 etc.etc. Page 62 of 125
156(3) of CrPC. While examining the scheme of the
provision and the supervisory role of the Magistrate,
the Court observed as follows: -
“15. Section 156(3) provides for a check by the
Magistrate on the police performing its duties
under Chapter XII CrPC. In cases where the
Magistrate finds that the police has not done its
duty of investigating the case at all, or has not done
it satisfactorily, he can issue a direction to the
police to do the investigation properly, and can
monitor the same.
. . .
17. In our opinion Section 156(3) CrPC is wide
enough to include all such powers in a Magistrate
which are necessary for ensuring a proper
investigation, and it includes the power to order
registration of an FIR and of ordering a proper
investigation if the Magistrate is satisfied that a
proper investigation has not been done, or is not
being done by the police . Section 156(3) CrPC,
though briefly worded, in our opinion, is very wide and
it will include all such incidental powers as are
necessary for ensuring a proper investigation.
. . .
24. In view of the abovementioned legal position,
we are of the view that although Section 156(3) is
very briefly worded, there is an implied power in
the Magistrate under Section 156(3) CrPC to order
registration of a criminal offence and/or to direct
the officer in charge of the police station concerned
to hold a proper investigation and take all such
necessary steps that may be necessary for ensuring a
proper investigation including monitoring the same.
Even though these powers have not been expressly
mentioned in Section 156(3) CrPC, we are of the
opinion that they are implied in the above provision.”
W.P.(C)No.943 of 2021 etc.etc. Page 63 of 125
(emphasis supplied)
The position of law, therefore, stands clarified
that Section 156(3) of CrPC impliedly empowers the
Magistrate to direct registration of a criminal case.
56. In Sakiri Vasu (supra), this Court also deprecated
the practice of directly invoking the jurisdiction of
constitutional Courts in matters relating to non-
registration of FIRs. While delineating the statutory
mechanism available to an aggrieved informant, the
Court observed as follows: -
“25. We have elaborated on the above matter because
we often find that when someone has a grievance that
his FIR has not been registered at the police station
and/or a proper investigation is not being done by the
police, he rushes to the High Court to file a writ petition
or a petition under Section 482 CrPC. We are of the
opinion that the High Court should not encourage
this practice and should ordinarily refuse to
interfere in such matters and relegate the
petitioner to his alternating remedy, first unde r
Section 154(3) and Section 36 CrPC before the
police officers concerned, and if that is of no avail,
by approaching the Magistrate concerned under
Section 156(3).
26. If a person has a grievance that his FIR has not
been registered by the police station his first
remedy is to approach the Superintendent of Police
under Section 154(3) CrPC or other police officer
referred to in Section 36 CrPC. If despite
approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still
persists, then he can approach a Magistrate under
W.P.(C)No.943 of 2021 etc.etc. Page 64 of 125
Section 156(3) CrPC instead of rushing to the High
Court by way of a writ petition or a petition under
Section 482 CrPC. Moreover, he has a further remedy
of filing a criminal complaint under Section 200 CrPC.
Why then should writ petitions or Section 482 petitions
be entertained when there are so many alternative
remedies?
27. As we have already observed above, the
Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper
investigation and for this purpose he can monitor
the investigation to ensure that the investigation
is done properly (though he cannot investigate
himself). The High Court should discourage the
practice of filing a writ petition or petition under
Section 482 CrPC simply because a person has a
grievance that his FIR has not been registered by
the police, or after being registere d, proper
investigation has not been done by the police. For
this grievance, the remedy lies under Sections 36 and
154(3) before the police officers concerned, and if that
is of no avail, under Section 156(3) CrPC before the
Magistrate or by filing a criminal complaint under
Section 200 CrPC and not by filing a writ petition or a
petition under Section 482 CrPC.”
(emphasis supplied)
Thus, where an informant is aggrieved by non-
registration of an FIR, the first remedy available is to
approach the Superintendent of Police under Section
154(3) of CrPC (Section 173 of BNSS). If the grievance
persists, the informant may thereafter invoke the
jurisdiction of the Magistrate under Section 156(3) of
CrPC (Section 175 of BNSS), who is empowered to
W.P.(C)No.943 of 2021 etc.etc. Page 65 of 125
direct registration of the FIR and consequent
investigation.
57. The supervisory jurisdiction of the Magistrate under
Section 156(3) of CrPC (Section 175 of BNSS) is of a
wide amplitude, encompassing judicial oversight over
the investigative process at various stages. Such
jurisdiction is not confined merely to the pre -
cognizance stage, but extends, in appropriate cases,
even after the submission of the police report under
Section 173 of CrPC (Section 193 of BNSS).
58. The object of vesting such power in the Magistrate is
to ensure that the investigating agency acts strictly in
accordance with law and conducts the investigation
in a fair, impartial, and effective manner. The
provision serves as a vital safeguard against
arbitrariness or inaction on the part of the police,
enabling the Magistrate to intervene where the
material on record discloses that the investigation is
either deficient, tainted, or not being carried out in
accordance with established legal principles.
59. The underlying rationale is to keep the Magistrate
informed and engaged in the process, so that, where
W.P.(C)No.943 of 2021 etc.etc. Page 66 of 125
necessary, appropriate directions may be issued to
secure a proper and lawful investigation.
(iv) Constitutional Remedies in cases of Continuing
Non-redressal
60. However, where the grievance of the complainant
persists even after exhaustion of the statutory
remedies, the constitutional framework provides an
additional safeguard. Articles 32 and 226 of the
Constitution of India confer wide powers upon this
Court and the High Courts, respectively, to ensure
that the rule of law is upheld and that public
authorities act within the bounds of their legal
obligations. The power of judicial review, having been
recognised as part of the basic structure of the
Constitution of India, remains ever available to
ensure that authorities entrusted with statutory
duties do not fail in their performance.
61. In an appropriate case, therefore, the constitutional
Courts may exercise their jurisdiction to ensure that
the statutory duty of registering and investigating
cognizable offences is not defeated by inaction or
arbitrary refusal on the part of the authorities. At the
same time, it must be emphasised that such
W.P.(C)No.943 of 2021 etc.etc. Page 67 of 125
jurisdiction is extraordinary in nature and is to be
exercised with circumspection, ordinarily after
exhaustion of the remedies available under the
statutory scheme. The existence of this layered
framework, both statutory and constitutional, clearly
demonstrates that the legal system provides adequate
and effective mechanisms to redress the grievances
highlighted by the petitioners.
62. In view of the layered statutory and constitutional
remedies available within the existing legal
framework, it cannot be contended that the law is
either silent or deficient in addressing grievances
arising from conduct that disturbs public order or
fosters inter-group hostility. Any deficiency lies not in
the absence of law, but in its application and
enforcement in specific cases. The function of this
Court is not to create new offences or construct
parallel regulatory regimes, but to ensure faithful
implementation of the remedies already envisaged
under law. Where the field stands fully occupied by
legislation, supported by adequate procedural
safeguards, the exercise of judicial power must
necessarily be guided by the discipline of
constitutional restraint.
W.P.(C)No.943 of 2021 etc.etc. Page 68 of 125
ISSUE IV: Whether a continuing mandamus is
warranted in the present case?
63. In the present case, it was contended by learned
counsel, Shri Nizamuddin Pasha, that a continuing
mandamus may be warranted to ensure sustained
judicial oversight so that the State authorities act
promptly in accordance with law, particularly with
respect to registration of FIRs and initiation of action
by the State machinery.
64. The writ of mandamus is a prerogative remedy vested
in constitutional courts under Articles 32 and 226 of
the Constitution of India. In Union of India v. S.B.
Vohra
20, this Court explained that mandamus lies
where a legal right is established and a corresponding
public duty, arising either from statute or otherwise,
remains unperformed. The object of mandamus is to
prevent a failure of justice, and it may be invoked in
cases where no equally efficacious remedy exists and
the ends of justice so demand.
65. A recent three-Judge Bench decision of this Court in
Lok Prahari v. Union of India
21, while dealing with
Article 224-A of the Constitution of India pertaining
20
(2004) 2 SCC 150
21
(2021) 15 SCC 80
W.P.(C)No.943 of 2021 etc.etc. Page 69 of 125
to the appointment of retired Judges to High Courts,
recognised that the concept of “continuing
mandamus” is a judicial innovation evolved through
interpretative exercise and does not constitute a
substantive writ remedy in itself.
66. This Court further observed that the device of
continuing mandamus enables the Court to ensure
that the fruits of its judgments are not rendered
illusory on account of administrative or institutional
inertia. It provides an effective mechanism to secure
compliance and to ensure that the rights declared by
this Court are translated into tangible outcomes,
rather than remaining merely on paper.
67. We are therefore, unable to accept the submission
that issuing continuing mandamus in the present
case is called for, for more than one reason. In the
first place, issuance of a continuing mandamus in the
manner suggested would, in effect, require this Court
to keep the matter pending in anticipation of future
contingencies, including possible commission of
offences. Such an approach is neither contemplated
by law nor consistent with the settled principles
governing the exercise of writ jurisdiction. It would
not only undermine the confidence of authorities
W.P.(C)No.943 of 2021 etc.etc. Page 70 of 125
entrusted with statutory functions but also disturb
the balance inherent in the statutory framework of
CrPC.
68. The scheme of the law already incorporates adequate
checks and balances to ensure that statutory duties
are duly performed, and in cases of failure, provides
for corrective mechanisms through supervisory and
judicial intervention. However, such intervention is
warranted only upon a demonstrated failure in the
discharge of duty and not on a mere apprehension
thereof. To assume failure in advance and to exercise
continuous oversight on that basis would be contrary
to the principle of institutional comity and the
discipline of judicial restraint.
69. Secondly, the issuance of a continuing mandamus in
anticipation of a possible failure in discharge of
statutory duty would result in this Court assuming
functions that are not constitutionally vested in it.
Such an approach would trench upon the domain of
other constitutional authorities and disturb the
carefully calibrated scheme of distribution of powers
under the Constitution of India.
W.P.(C)No.943 of 2021 etc.etc. Page 71 of 125
70. In Tirupati Balaji Developers (P) Ltd. v. State of
Bihar
22, this Court has categorically held that, within
the constitutional framework, both this Court and the
High Courts are courts of record, and the High Courts
are not subordinate to the Supreme Court. It was
further emphasised that the power of
superintendence over subordinate courts and
tribunals under Article 227 of the Constitution of
India is vested exclusively in the High Courts and not
in this Court.
71. In such a backdrop, to assume a role of continuous
supervisory oversight over executive or investigative
functions, particularly in anticipation of possible
default, would not only blur constitutional
boundaries but also amount to an impermissible
expansion of judicial power beyond its legitimate
limits.
72. Therefore, in our considered opinion, this Court must
exercise due circumspection while invoking its
constitutional powers and employing judicially
evolved mechanisms. Such tools cannot be deployed
in anticipation of a possible failure or omission in the
22
(2004) 5 SCC 1
W.P.(C)No.943 of 2021 etc.etc. Page 72 of 125
discharge of statutory duties, much less in relation to
contingencies that have not yet arisen.
73. Where the statute itself provides a complete and
efficacious remedial framework, it would be
inappropriate for this Court to transgress the limits
imposed by the doctrine of separation of powers by
assuming functions that are primarily vested in the
Executive. It is only upon a demonstrated failure in
the discharge of statutory obligations that
constitutional Courts may justifiably step in, in
exercise of their power of judicial review. As observed
in S.B. Vohra (supra), a writ of mandamus is
ordinarily issued in situations where the law provides
no specific remedy and where justice, despite being
sought, has not been rendered.
74. More recently, this Court in National Federation of
Indian Women v. Union of India
23, was approached
under Article 32 of the Constitution seeking
enforcement and compliance of the directions issued
in Tehseen Poonawalla (supra) concerning
incidents of lynching and mob violence. While
examining the maintainability and feasibility of such
23
Writ Petition (Civil) No. 719 of 2023
W.P.(C)No.943 of 2021 etc.etc. Page 73 of 125
a course, this Court observed that it would not be
appropriate for this Court, sitting at the national
level, to monitor incidents occurring across various
States.
75. This Court cautioned that such an exercise would
amount to “micro-management” of matters falling
within the domain of the executive authorities and
would be neither feasible nor consistent with the
constitutional scheme. It was thus emphasised that
mechanisms for enforcement must operate within the
existing institutional framework rather than through
continuous monitoring by this Court.
76. In view of the foregoing, we find no justification to
issue a continuing mandamus. Such a course would
result in an unwarranted assumption of functions
vested in statutory authorities and governed by
settled principles of law.
E. Epilogue: An ode to ‘Fraternity’ in the Preamble vis-
à-vis the idea of ‘vasudhaiva kutumbakam ’
77. The question as to whether the Preamble forms part
of the Constitution is no longer res integra. In
Kesavananda Bharati (supra), although this Court
delivered eleven separate opinions and there was
W.P.(C)No.943 of 2021 etc.etc. Page 74 of 125
divergence on certain aspects of the constitutional
scheme, the majority unequivocally held that the
Preamble is an integral part of the Constitution of
India.
78. This position was reaffirmed by a nine-Judge Bench
of this Court in K.S. Puttaswamy v. Union of
India
24, wherein the majority opinion, while
approving the view of Sikri, C.J., in Kesavananda
Bharati (supra) observed that the Preamble
embodies the foundational values of the Constitution,
i.e. justice, liberty, equality and fraternity, which
together constitute the guiding faith and normative
framework of the constitutional order, imbued with a
sense of permanence.
(i) Fraternity in the Constitutional Ethos of Indian
Society
79. While elucidating the concept of “fraternity”, this
Court in K.S. Puttaswamy (supra) underscored that
it is essential to promote fraternity in order to secure
the dignity of the individual. The expression
“fraternity”, however, is not merely aspirational
24
(2017) 10 SCC 1
W.P.(C)No.943 of 2021 etc.etc. Page 75 of 125
rather it carries substantive constitutional meaning
and relevance.
80. In this regard, a recent Constitution Bench of this
Court in Citizenship Act, 1955, Section 6 -A, In
Re
25, had occasion to examine the content and scope
of the principle of fraternity. This Court, referring to
Dr. B.R. Ambedkar’s address in the Constituent
Assembly Debates
26, observed that fraternity signifies
“a sense of common brotherhood of all Indians”. It was
further held that neither the debates in the
Constituent Assembly nor Dr. Ambedkar’s
conceptualisation of fraternity indicate any limitation
of this principle to a particular community or segment
of citizens; rather, it is a unifying constitutional value
that transcends all forms of social, religious, or
cultural divisions.
81. This Court in Kaushal Kishor v. State of U.P.
27, (per
the minority opinion) observed that the concept of
fraternity is founded upon the principle that citizens
bear reciprocal obligations towards one another.
Speech that fosters division or animosity, particularly
25
(2024) 16 SCC 105
26
Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. 11, 25
th
November,
1949.
27
(2023) 4 SCC 1
W.P.(C)No.943 of 2021 etc.etc. Page 76 of 125
in the nature of “hate speech”, strikes at the very root
of fraternity, which is the sine qua non of a cohesive
society founded upon plurality and multiculturalism,
as is the case in India.
82. The historical experience of our nation underscores
the importance of this value. Indian society has, at
various points in time, witnessed deep fissures
arising out of caste-based discrimination, as well as
communal divisions exacerbated during the colonial
period and the eventual partition of the subcontinent.
It was in this backdrop that the framers of our
Constitution consciously envisioned a modern Indian
State founded upon secularism, inclusivity, and unity
in diversity. They emphatically rejected the notion
that people professing different faiths and beliefs
cannot coexist.
83. It is in furtherance of this constitutional vision that
the Preamble incorporates the principle of fraternity,
mandating a sense of common brotherhood among all
citizens. The idea of belonging to one nation cannot
be made contingent upon selective inclusio n or
exclusion; rather, it requires a collective commitment
to shared constitutional values. Fraternity, therefore,
demands that every citizen recognise and respect the
W.P.(C)No.943 of 2021 etc.etc. Page 77 of 125
equal dignity of others, irrespective of differences, and
consciously eschew conduct that undermines social
harmony.
84. Once this constitutional ideal is internalised by
citizens, both individuals and those in positions of
influence, the very impulse to engage in “hate speech”
would stand diminished. Hate speech, at its core,
stems from a perception of difference that breeds
exclusion, where the “other” is viewed as alien,
inferior, or undeserving of equal regard. So long as
this binary of “us” and “them” persists, the promise
of fraternity remains unrealised, and true
constitutional belonging becomes elusive.
85. Hate speech is thus not merely a deviation from
acceptable discourse; it is fundamentally antithetical
to the constitutional value of fraternity and strikes at
the moral fabric of our Republic. It also runs counter
to the deeper civilisational ethos of India. The land
historically known as Bharata has, across centuries,
been a refuge for diverse communities fleeing
persecution, offering not merely shelter but
acceptance and assimilation. This tradition of
inclusivity is not episodic, but deeply embedded in
the cultural consciousness of the nation.
W.P.(C)No.943 of 2021 etc.etc. Page 78 of 125
86. The philosophical underpinning of this ethos finds
expression in the ancient maxim of “ vasudhaiva
kutumbakam”, the idea that the entire world is one
family. Rooted in the Yajur Veda, the expression
signifies a worldview that transcends narrow
identities and affirms universal kinship. In
constitutional terms, it resonates with the principle of
fraternity, which calls upon every citizen to recognise
the shared humanity and equal dignity of all others.
87. For a nation that has historically embraced the idea
of the world as one family, the modern construct of
“citizenship” cannot be reduced to a basis for
exclusion or division. It is, therefore, inconceivable
that citizens be classified or discriminated against on
grounds such as caste, colour, creed, gender, or any
other marker rooted in an “us versus them” mindset.
Such an approach would be wholly inconsistent with
the constitutional vision of unity, dignity, and
equality.
88. It is in furtherance of this constitutional ethos that
Part IVA, incorporating the Fundamental Duties, was
introduced into the Constitution of India. Article 51A,
inter alia, mandates as follows: -
W.P.(C)No.943 of 2021 etc.etc. Page 79 of 125
“51A. Fundamental duties.– It shall be the duty of
every citizen of India–
…
(e) to promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory
to the dignity of women;
…
(j) to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement;”
89. The constitutional mandate is, therefore,
unequivocal. A fundamental duty is cast upon every
citizen to promote harmony and the spirit of common
brotherhood among all the people of India,
transcending religious, linguistic, regional and
sectional diversities. It also enjoins upon citizens the
obligation to renounce practices that are derogatory
to the dignity of women.
90. The Constitution of India, thus, does not envisage
classification as a means to foster division or
discrimination among its citizens. On the contrary, it
seeks to promote the welfare of the nation through
collective coexistence, grounded in mutual respect,
harmony, and a shared sense of fraternity.
W.P.(C)No.943 of 2021 etc.etc. Page 80 of 125
(ii) Vision of the Constituent Assembly and the Duties
of Constitutional Citizenship
91. Dr. B.R. Ambedkar, while addressing the Constituent
Assembly on 25
th November, 1949
28 sounded a note
of enduring caution in relation to the working of the
Constitution. He observed, “… however good a
Constitution may be, it is sure to turn out bad because
those who are called to work it happen to be a bad lot.
However bad a Constitution may be, it may turn out to
be good if those who are called to work it happen to be
a good lot…” These words continue to resonate with
undiminished relevance, reminding us that the
vitality of our constitutional framework ultimately
depends upon the conduct of those entrusted with its
operation.
92. The caution sounded by Dr. Ambedkar is a reminder
that every constitutional actor, be it a citizen, a public
official, a legislator, or a judge, bears a corresponding
responsibility to preserve and uphold the
foundational values embodied in the Constitution.
The liberties secured by the Constitution cannot be
sustained unless they are matched by a collective
28
Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. 11, 15
th
November,
1949.
W.P.(C)No.943 of 2021 etc.etc. Page 81 of 125
commitment to its ethos. In particular, the value of
fraternity demands conscious restraint in both
speech and conduct, ensuring that no expression
degenerates into hatred, ridicule, or exclusion of
others.
93. The liberty secured to us under the Constitution is
not an abstract inheritance, but the result of a
collective struggle waged by countless men and
women across regions, faiths, and walks of life
against the formidable might of a colonial regime.
This shared sacrifice underscores that the freedoms
we enjoy today are neither incidental nor expendable.
They must not be diminished by a failure to
appreciate the responsibilities that accompany them.
If citizens are unable to uphold the values of mutual
respect and solidarity, the caution expressed by Dr.
B.R. Ambedkar that, even the finest Constitution may
falter in the hands of those who fail to work it in its
true spirit, may well stand vindicated.
94. Before parting, it is necessary to reiterate that the
guarantee of Freedom of speech and expression
under Article 19(1)(a) occupies a central position in
our constitutional democracy. The marketplace of
ideas, the freedom to question authority, and the
W.P.(C)No.943 of 2021 etc.etc. Page 82 of 125
right to dissent are indispensable to a vibrant and
open society. At the same time, this freedom is not
absolute. The Constitution itself contemplates
reasonable restrictions in the interest of public order,
dignity, and harmony. Speech that is designed to
inflame passions, promote hatred between
communities, or disturb public tranquillity does not
strengthen democracy; it corrodes the foundational
values of fraternity, dignity, and equality.
95. Hate speech, in this sense, is not merely an exercise
of free expression but a distortion of it, one that
undermines the constitutional promise of an
inclusive and cohesive society by fostering hostility
and discrimination against identifiable groups.
96. It must, therefore, be borne in mind that the
preservation of constitutional order is not the
responsibility of the State alone. In a constitutional
democracy, public discourse carries with it a
corresponding duty of restraint and responsibility.
Individuals, public figures, and institutions alike
must remain mindful that words have consequences,
particularly in a society as diverse as ours.
W.P.(C)No.943 of 2021 etc.etc. Page 83 of 125
97. While the law provides mechanisms to address
conduct that threatens public order or communal
harmony, the more enduring safeguard against the
menace of hate speech lies in the collective
constitutional conscience of society. Ultimately, the
Constitution does not survive merely through
institutions or legal frameworks, but through the
sustained fidelity of its citizens to the values it
embodies.
F. Conclusion of Part I:
98. Having bestowed our thoughtful consideration upon
the issues arising in the present batch of matters, we
are of the considered view that the reliefs sought by
the petitioners do not warrant exercise of our
jurisdiction under Article 32 of the Constitution.
98.1. On the first issue, we hold that this Court, in
exercise of its constitutional jurisdiction, cannot
create or expand criminal offences or prescribe
punishments in the absence of legislative sanction.
Any such exercise would transgress the settled
doctrine of separation of powers and encroach upon
the legislative domain.
W.P.(C)No.943 of 2021 etc.etc. Page 84 of 125
98.2. On the second issue, we find that the field of
substantive criminal law governing hate speech is not
unoccupied. The existing statutory framework
contains adequate provisions to address acts that
promote enmity, hatred, or disturb public order. The
grievance projected before us pertains not to any
legislative vacuum, but to issues of enforcement.
98.3. On the third issue, we hold that the procedural
framework under the CrPC (now Bharatiya Nagarik
Suraksha Sanhita, 2023) provides a comprehensive
and multi-tiered mechanism to address grievances
arising from non-registration of FIRs. The remedies
available under Sections 154(3), 156(3) and 200 of the
CrPC, coupled with the supervisory jurisdiction of the
Magistrate, constitute an efficacious statutory
scheme.
98.4. We further clarify that while constitutional remedies
under Articles 32 and 226 remain available as a
safeguard against failure of statutory authorities,
such jurisdiction is extraordinary in nature and
ought not to be invoked in a routine manner so as to
bypass the remedies provided under the statutory
framework.
W.P.(C)No.943 of 2021 etc.etc. Page 85 of 125
98.5. On the fourth issue, we are not inclined to issue a
writ of continuing mandamus. In the absence of any
legislative vacuum or systemic failure of such
magnitude as would warrant continuous judicial
monitoring, such a course would be neither justified
nor consistent with the principle of judicial restraint.
Part II
29
99. Leave granted in SLP (Civil) No. 6913 of 2021 and SLP
(Criminal) No. 5107 of 2023.
Criminal Appeal @ SLP (Crl.) No. 5107 of 2023
100. The present Criminal Appeal, arising out of SLP (Crl.)
No. 5107 of 2023, assails the judgment dated 13
th
June, 2022, passed by the High Court of Delhi at New
Delhi
30 in Writ Petition (Crl.) No. 1624 of 2020,
whereby the High Court dismissed the writ petition
preferred by the appellant and affirmed the order
dated 26
th August, 2020, passed by the learned
Additional Chief Metropolitan Magistrate (I), Rouse
Avenue Courts, Delhi
31 in Complaint Case No. 4 of
29
This Part deals with SLP (Civil) No. 6913 of 2021 and SLP (Crl.) No. 5107 of
2023.
30
Hereinafter, in this Part referred to as “High Court”.
31
Hereinafter, in this Part referred to as “Trial Court”.
W.P.(C)No.943 of 2021 etc.etc. Page 86 of 125
2020. By the said order, the learned Magistrate had
declined the prayer made under Section 156(3) of
CrPC seeking a direction for registration of an FIR
under Sections 153A, 153B, 295A, 504, 505 and 506
of the IPC against certain public functionaries.
101. The principal question of law which arises for our
consideration in the present appeal is whether the
existence of prior sanction is a precondition for
directing registration of an FIR under offences
committed in the IPC and commencement of
investigation under Section 156(3) of CrPC.
102. The facts relevant for adjudication of the present
controversy are as follows: –
102.1. Certain speeches delivered on 27
th January, 2020
by the then Union Minister and on 28
th January,
2020 by a Member of Parliament were alleged by the
appellants to disclose commission of cognizable
offences, including promotion of communal enmity,
issuance of threats, and acts prejudicial to national
integration. In this regard, the appellants submitted
a complaint dated 29
th January, 2020, to the
Commissioner of Police, Delhi, seeking registration of
an FIR against the persons concerned.
W.P.(C)No.943 of 2021 etc.etc. Page 87 of 125
102.2. Upon failure of the authorities to take any action,
the appellants, by a subsequent communication
dated 2
nd February, 2020, approached the Station
House Officer, Parliament Street Police Station, New
Delhi, reiterating their request for immediate
registration of an FIR.
102.3. As no action ensued, the appellants were
constrained to file a complaint under Section 156(3)
of CrPC before the Trial Court, being Complaint Case
No. 4 of 2020, on 5
th February, 2020. In response, a
status report was submitted by the investigating
agency stating that no cognizable offence was made
out on the basis of the material placed on record.
102.4. By order dated 26
th August, 2020, the Trial Court
dismissed the complaint filed by the appellants,
holding that the same was not maintainable in law in
the absence of prior sanction from the competent
authority to prosecute the named accused.
102.5. Aggrieved thereby, the appellants invoked the writ
jurisdiction of the High Court under Articles 226 and
227 of the Constitution of India, read with Sections
482 and 483 of CrPC.
W.P.(C)No.943 of 2021 etc.etc. Page 88 of 125
102.6. The High Court, vide judgment dated 13
th June,
2022, dismissed the writ petition, holding that in
respect of offences falling within the ambit of Section
196 of CrPC, the power under Section 156(3) of CrPC
to direct registration of an FIR and investigation could
not be exercised in the absence of prior sanction. The
High Court accordingly affirmed the order of the Trial
Court.
103. Aggrieved by the aforesaid judgment, the appellants
are before this Court.
Analysis and Discussion
104. This Court, vide order dated 17
th April, 2023, issued
notice to the respondents. Pursuant thereto, learned
counsel appearing on behalf of the respondent -
authorities entered appearance and sought time to
file a counter-affidavit, as recorded in the order dated
15
th May, 2023.
105. However, as per the latest office report dated 12
th
January, 2026, no counter-affidavit has been filed on
behalf of either of the respondents till date. In these
circumstances, we proceed to determine the issues
arising in the present appeal on the basis of the
material available on record.
W.P.(C)No.943 of 2021 etc.etc. Page 89 of 125
106. At the outset, we are unable to subscribe to the view
taken by the High Court in the impugned judgment.
It is pertinent to note that the Trial Court did not
adjudicate upon the merits of the complaint. The
dismissal of the complaint was founded solely on the
ground of lack of jurisdiction, premised on the
absence of prior sanction.
107. In order to properly appreciate the controversy in
issue, it would be apposite to first advert to the
reasoning adopted by the High Court in arriving at
the conclusion that prior sanction is a sine qua non
for directing registration of an FIR and investigation.
The High Court, while dismissing the writ petition,
has, inter alia, recorded the following conclusions: -
i. That Section 196 of CrPC expressly bars any Court
from taking cognizance of offences punishable
under Chapter VI and Sections 153A, 295A and
505 of the IPC without previous sanction of the
Central or the State Government, as the case may
be.
ii. That Section 197 of CrPC similarly prohibits a
Court from taking cognizance of offences alleged
to have been committed by Judges or certain
categories of public servants in the discharge of
W.P.(C)No.943 of 2021 etc.etc. Page 90 of 125
their official duties, except with prior sanction of
the competent authority.
iii. That in the present case, the allegations pertain,
inter alia, to offences under Sections 153A, 295A
and 505 IPC, which, according to the High Court,
attract the bar contained in Section 196 of CrPC.
iv. That the expression “taking cognizance” occurring
in Sections 196 and 197 of CrPC ought not to be
construed narrowly, but must be given a wider
connotation so as to include within its fold the
exercise of powers under Section 156(3) of CrPC,
which necessarily involves application of judicial
mind.
v. That the legislative intent underlying the
requirement of prior sanction is to prevent
frivolous or motivated prosecution, particularly in
matters involving public figures, and to ensure
that the criminal process is not set in motion in a
routine or vindictive manner.
vi. That reliance was placed on the decisions of this
Court in Anil Kumar v. M.K. Aiyappa
32, and L.
Narayana Swamy v. State of Karnataka
33, to
32
(2013) 10 SCC 705
33
(2016) 9 SCC 598
W.P.(C)No.943 of 2021 etc.etc. Page 91 of 125
hold that in cases where prior sanction is
required, a Magistrate cannot direct registration of
an FIR or investigation under Section 156(3) of
CrPC in the absence of such sanction.
108. The scheme of CrPC in relation to registration of an
FIR upon receipt of information disclosing a
cognizable offence, stands authoritatively settled by
the Constitution Bench of this Court in Lalita
Kumari (supra). This Court unequivocally held that
registration of an FIR under Section 154 of CrPC is
mandatory where the information discloses the
commission of a cognizable offence.
109. This Court expressly rejected the contention that a
preliminary inquiry could be conducted, as a matter
of course, prior to registration of an FIR, and clarified
that such inquiry is permissible only in limited
categories of cases and not as a general rule so as to
dilute the statutory mandate contained in Section
154 of CrPC. The relevant conclusions recorded by
the Constitution Bench are reproduced hereinbelow:
-
“120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under
Section 154 of the Code, if the information discloses
W.P.(C)No.943 of 2021 etc.etc. Page 92 of 125
commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only
to ascertain whether cognizable offence is disclosed or
not.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later
than one week. It must disclose reasons in brief for
closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not
register the FIR if information received by him discloses
a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify
the veracity or otherwise of the information received
but only to ascertain whether the information reveals
any cognizable offence.
120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
W.P.(C)No.943 of 2021 etc.etc. Page 93 of 125
The aforesaid are only illustrations and not exhaustive
of all conditions which may warrant preliminary
inquiry.”
110. The position of law, as crystallised by this Court, is
unequivocal. Where information discloses the
commission of a cognizable offence, registration of an
FIR is mandatory. The police, in such circumstances,
have no discretion in the matter, either under the
statutory scheme or by way of interpretative latitude.
111. In Madhu Bala (supra) a co-ordinate Bench of this
Court authoritatively delineated the courses open to
a Magistrate upon receipt of a complaint disclosing
commission of an offence. It was held that the
Magistrate may, in the first instance, take cognizance
under Section 190(1)(a) of CrPC and proceed in
accordance with Chapter XV thereof, which governs
complaints to Magistrates.
112. Alternatively, the Magistrate may, in exercise of
powers under Section 156(3) of CrPC, direct the
complaint to be forwarded to the jurisdictional police
station for investigation. Upon such direction being
issued, the police are obliged to register an FIR and
undertake investigation in terms of Section 156(1) of
CrPC. The investigation, upon completion,
culminates in a police report under Section 173(2) of
W.P.(C)No.943 of 2021 etc.etc. Page 94 of 125
CrPC, on which the Magistrate may thereafter take
cognizance under Section 190(1)(b) of CrPC.
113. This Court, in Mohd. Yousuf v. Afaq Jahan ,
34
examined in extenso the distinction between “taking
cognizance” and “ordering investigation” under the
CrPC. The Court clarified the conceptual and
procedural interplay between these two stages and
delineated the scope of the Magistrate’s powers under
Section 156(3) vis-à-vis Section 190 of CrPC. The
relevant observations of the judgment are reproduced
hereinunder: -
“8. The various steps to be adopted for investigation
under Section 156 of the Code have been elaborated in
Chapter XII of the Code. Such investigation would start
with making the entry in a book to be kept by the officer
in charge of a police station, of the substance of the
information relating to the commission of a cognizable
offence. The investigation started thereafter can end up
only with the report filed by the police as indicated in
Section 173 of the Code. The investigation
contemplated in that chapter can be commenced
by the police even without the order of a
Magistrate. But that does not mean that when a
Magistrate orders an investigation under Section
156(3) it would be a different kind of investigation.
Such investigation must also end up only with the
report contemplated in Section 173 of the Code .
But the significant point to be noticed is, when a
Magistrate orders investigation under Chapter XII he
does so before he takes cognizance of the offence.
34
(2006) 1 SCC 627
W.P.(C)No.943 of 2021 etc.etc. Page 95 of 125
9. But a Magistrate need not order any such
investigation if he proposes to take cognizance of
the offence. Once he takes cognizance of the
offence he has to follow the procedure envisaged in
Chapter XV of the Code. A reading of Section 202(1)
of the Code makes the position clear that the
investigation referred to therein is of a limited nature.
The Magistrate can direct such an investigation to be
made either by a police officer or by any other person.
Such investigation is only for helping the Magistrate to
decide whether or not there is sufficient ground for him
to proceed further. …
…
11. The clear position therefore is that any Judicial
Magistrate, before taking cognizance of the
offence, can order investigation under Section
156(3) of the Code. If he does so, he is not to examine
the complainant on oath because he was not taking
cognizance of any offence therein. For the purpose of
enabling the police to start investigation it is open to
the Magistrate to direct the police to register an FIR.
There is nothing illegal in doing so. After all registration
of an FIR involves only the process of entering the
substance of the information relating to the
commission of the cognizable offence in a book kept by
the officer in charge of the police station as indicated
in Section 154 of the Code. Even if a Magistrate does
not say in so many words while directing
investigation under Section 156(3) of the Code that
an FIR should be registered, it is the duty of the
officer in charge of the police station to register the
FIR regarding the cognizable offence disclosed by
the complainant because that police officer could
take further steps contemplated in Chapter XII of
the Code only thereafter.”
(emphasis supplied)
Thus, upon a comprehensive examination of the
scheme of CrPC, this Court has consistently held that
W.P.(C)No.943 of 2021 etc.etc. Page 96 of 125
the power exercised by a Magistrate under Section
156(3) of CrPC falls at the pre-cognizance stage. An
order directing investigation under the said provision
does not amount to taking cognizance of the offence.
114. In Sakiri Vasu (supra), this Court recognised the
structured statutory mechanism available to an
aggrieved complainant and held that where the Police
fail to register an FIR under Sections 154(1) and
154(3) of CrPC, the appropriate course is to approach
the Magistrate under Section 156(3) of CrPC, rather
than invoking the writ jurisdiction of the High Court
or its inherent powers under Section 482 of CrPC in
the first instance.
115. Further, in Mohd. Yousuf (supra), this Court
clarified that even where the Magistrate, while
exercising jurisdiction under Section 156(3) of CrPC,
does not expressly direct registration of an FIR, such
a direction is implicit. It is the bounden duty of the
officer in charge of the police station to register an FIR
upon disclosure of a cognizable offence and to
proceed with the investigation in accordance with
Chapter XII of CrPC.
W.P.(C)No.943 of 2021 etc.etc. Page 97 of 125
116. The interpretative exercise undertaken by this Court
has consistently been guided by the need to render
the statutory framework workable and to ensure
accountability of the authorities entrusted with its
implementation. Any construction which renders the
statutory mandate otiose or defeats the legislative
intent cannot be countenanced.
117. The registration of an FIR under Section 154 of CrPC
is the foundational step to set the criminal law in
motion. The provision does not admit of any
distinction based on the status or identity of the
person against whom the allegations are made.
118. In Lalita Kumari (supra), while affirming the
mandatory nature of registration of an FIR upon
disclosure of a cognizable offence, this Court carved
out limited categories where a preliminary inquiry
may be conducted prior to registration, namely
matrimonial or family disputes, commercial offences,
medical negligence cases, corruption cases, and
cases involving abnormal delay or laches in initiating
prosecution.
119. Even within these limited categories, the scope of
preliminary inquiry is circumscribed. Such inquiry is
W.P.(C)No.943 of 2021 etc.etc. Page 98 of 125
only to ascertain whether a cognizable offence is
disclosed and cannot be employed as a device to avoid
or indefinitely defer registration of an FIR.
120. In the present case, the High Court has declined to
direct registration of an FIR on the ground that prior
sanction under Sections 196 and 197 of CrPC had not
been obtained. The High Court has further proceeded
on the premise that while exercising jurisdiction
under Section 156(3) of CrPC, the Magistrate is
deemed to have taken cognizance, and therefore, the
requirement of prior sanction becomes a condition
precedent.
121. A coordinate Bench of this Court in State of
Karnataka v. Pastor P. Raju
35, had occasion to
consider the stage at which prior sanction becomes
necessary under CrPC. The Court categorically held
that there is no embargo on the registration of a
criminal case, the conduct of investigation by the
police, or the submission of a report under Section
173 of CrPC in the absence of prior sanction.
122. The requirement of sanction, this Court clarified,
operates at the stage of taking cognizance by the
35
(2006) 6 SCC 728
W.P.(C)No.943 of 2021 etc.etc. Page 99 of 125
Court and not at the anterior stage of investigation.
In this context, after surveying the earlier precedents
on the subject, this Court observed as follows: -
“12. In Narayandas Bhagwandas Madhavdas v. State
of W.B. [(1960) 1 SCR 93 : AIR 1959 SC 1118 : 1959
Cri LJ 1368] it was held that before it can be said that
any Magistrate has taken cognizance of any offence
under Section 190(1)(a) of the Criminal Procedure
Code, he must not only have applied his mind to
the contents of the petition but must have done so
for the purpose of proceeding in a particular way as
indicated in the subsequent provisions of the
Chapter—proceeding under Secti on 200 and
thereafter sending it for inquiry and report under
Section 202. It was observed that there is no
special charm or any magical formula in the
expression “taking cognizance” which merely
means judicial application of the mind of the
Magistrate to the facts mentioned in the complaint
with a view to taking further action. It was also
observed that what Section 190 contemplates is
that the Magistrate takes cognizance once he
makes himself fully conscious and aware of the
allegations made in the complaint and decides to
examine or test the validity of the said allegations.
The Court then referred to the three situations
enumerated in sub-section (1) of Section 190 upon
which a Magistrate could take cognizance. Similar view
was expressed in Kishun Singh v. State of Bihar [(1993)
2 SCC 16 : 1993 SCC (Cri) 470] that when the
Magistrate takes notice of the accusations and applies
his mind to the allegations made in the complaint or
police report or information and on being satisfied that
the allegations, if proved, would constitute an offence,
decides to initiate judicial proceedings against the
alleged offender, he is said to have taken cognizance of
the offence. …”
(emphasis supplied)
W.P.(C)No.943 of 2021 etc.etc. Page 100 of 125
Thus, defining attribute of “taking cognizance”
of an offence lies in the application of judicial mind
by the Magistrate to the contents of the complaint or
police report with a view to proceed in accordance
with law, including under Sections 200 or 204 of
CrPC. Until such stage is reached, any action
undertaken by the Magistrate cannot be construed as
taking cognizance of the offence.
123. In Pastor P. Raju (supra), the FIR therein had been
registered under Section 153B of IPC, and the
respondent was arrested and produced before the
Magistrate. At the stage of remand under Section 167
of CrPC, the respondent sought quashing of the
proceedings on the ground of absence of prior
sanction under Section 196(1-A) of CrPC. While
delineating the distinction between “taking
cognizance” and subsequent procedural stages,
including issuance of process, this Court held as
follows: -
“13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the
initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a complaint
or to a police report or upon information received
from any other person that an offence has been
committed. The issuance of process is at a
W.P.(C)No.943 of 2021 etc.etc. Page 101 of 125
subsequent stage when after considering the
material placed before it the court decides to
proceed against the offenders against whom a
prima facie case is made out.
14. In the present case neither any complaint had been
filed nor any police report had been submitted nor any
information had been given by any person other than
the police officer before the Magistrate competent to
take cognizance of the offence. After the FIR had been
lodged and a case had been registered under Section
153-B IPC, the respondent was arrested by the police
and thereafter he had been produced before the
Magistrate. The Magistrate had merely passed an
order remanding him to judicial custody. Section
167 CrPC finds place in Chapter XII which deals
with information to the police and their powers to
investigate. This section gives the procedure which
has to be followed when investigation cannot be
completed within twenty-four hours and requires that
whenever any person is arrested and detained in
custody and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed
by Section 57 and there are grounds for believing that
the accusation or information is well founded, he shall
be forthwith transmitted to the nearest Judicial
Magistrate along with a copy of the entries in the
diary. Sub-section (2) of Section 167 will show that
even a Magistrate who has no jurisdiction to try the
case can authorise the detention of the accused. A
limited role has to be performed by the Judicial
Magistrate to whom the accused has been
forwarded viz. to authorise his detention. This is
anterior to Section 190 CrPC which confers power
upon a Magistrate to take cognizance of an offence.
Therefore, an order remanding an accused to
judicial custody does not amount to taking
cognizance of an offence. In such circumstances
Section 196(1-A) CrPC can have no application at
all and the High Court clearly erred in quashing the
proceedings on the ground that previous sanction of
the Central Government or of the State Government or
of the District Magistrate had not been obtained. It is
W.P.(C)No.943 of 2021 etc.etc. Page 102 of 125
important to note that on the view taken by the High
Court, no person accused of an offence, which is of the
nature which requires previous sanction of a specified
authority before taking of cognizance by the court, can
ever be arrested nor such an offence can be
investigated by the police. The specified authority
empowered to grant sanction does so after applying his
mind to the material collected during the course of
investigation. There is no occasion for grant of
sanction soon after the FIR is lodged no r such a
power can be exercised before completion of
investigation and collection of evidence. Therefore,
the whole premise on the basis of which the
proceedings have been quashed by the High Court is
wholly erroneous in law and is liable to be set aside.”
(emphasis supplied)
124. A cumulative reading of the principles laid down in
Pastor P. Raju (supra) and Sakiri Vasu (supra)
makes the legal position abundantly clear that an
order passed by a Magistrate under Section 156(3) of
CrPC does not amount to “taking cognizance” of an
offence within the meaning of Section 190 of CrPC.
125. In the present case, the appellants, being aggrieved
by the inaction of the police authorities in registering
an FIR, approached the Magistrate by way of an
application under Section 156(3) of CrPC. The bar
contained in Sections 196 and 197 of CrPC operates
only at the stage of taking cognizance. In other words,
it restrains the Magistrate from proceeding under
W.P.(C)No.943 of 2021 etc.etc. Page 103 of 125
Section 190 and thereafter invoking the procedure
under Sections 200 or 204 of CrPC in the absence of
prior sanction.
126. The scheme of CrPC does not contemplate any
embargo on the direction for registration of an FIR or
the conduct of investigation at the pre-cognizance
stage. To hold otherwise would amount to introducing
a restriction not envisaged by the legislature. The
process of criminal law is sequential: information of a
cognizable offence must first be received; an FIR must
then be registered; investigation must follow; a report
under Section 173 of CrPC must thereafter be
submitted; and it is only at that stage that the
question of taking cognizance arises.
127. The requirement of sanction is, therefore, a
condition precedent only for taking cognizance and
not for the registration of an FIR or for the conduct of
investigation. Any interpretation that makes the
registration of an FIR contingent upon prior sanction
would invert this statutory scheme and render the
provisions relating to investigation unworkable.
128. In the facts of the present case, the prayer before the
Trial Court was limited to seeking a direction to the
W.P.(C)No.943 of 2021 etc.etc. Page 104 of 125
Station House Officer, Parliament Street Police
Station, to register an FIR on the basis of the
complaint dated 29
th January, 2020. In law, the
Magistrate had two options: either to direct
investigation under Section 156(3), or to take
cognizance under Section 190(1)(a) and proceed in
accordance with Chapter XV.
129. The bar under Sections 196 and 197 of CrPC would
operate only in respect of the latter course. It could
not have been invoked to deny the former. The Trial
Court, therefore, fell in error in declining to exercise
jurisdiction under Section 156(3) of CrPC on the
ground of absence of prior sanction, and the High
Court, in affirming such view, has adopted an
interpretation which cannot be sustained in law.
130. In the present case, the relief sought before the Trial
Court was confined to a direction to the Station
House Officer, Parliament Street Police Station, to
register an FIR on the basis of the complaint
submitted by the appellants. At this stage, the
Magistrate was not required to take cognizance of the
offence. The limited enquiry before the Magistrate was
whether the complaint disclosed the commission of a
cognizable offence, in which event a direction under
W.P.(C)No.943 of 2021 etc.etc. Page 105 of 125
Section 156(3) of CrPC for registration of an FIR was
warranted.
131. Investigating agencies, being creatures of statute,
are bound by the duties and obligations cast upon
them under the law. They cannot evade or dilute
these statutory obligations by resorting to provisions
which are inapplicable at the stage of investigation.
Any such approach undermines the rule of law and
erodes public confidence in the administration of
criminal justice.
132. The criminal process is designed to protect both the
rights of the accused and the interests of society.
While the requirement of sanction serves as a
safeguard against frivolous or vexatious prosecution
at the stage of cognizance, it cannot be permitted to
operate as a shield to prevent the very initiation of the
investigative process where a cognizable offence is
disclosed.
133. Failure on the part of the authorities to perform their
statutory duties at the threshold stage not only
defeats the legislative intent but also places the
ordinary citizen in a position of vulnerability against
institutional inaction. The rule of law mandates that
W.P.(C)No.943 of 2021 etc.etc. Page 106 of 125
the machinery of investigation be set in motion in
accordance with law, uninfluenced by extraneous
considerations.
134. A three-Judge Bench of this Court in R.R. Chari v.
State of U.P.
36, while approving the decision of the
Calcutta High Court in Supt. And Remembrancer of
Legal Affairs v. Abani Kumar Banerjee ,
37
authoritatively explained the concept of “taking
cognizance”. It was held that a Magistrate can be said
to have taken cognizance of an offence only when he
applies his mind to the contents of the complaint for
the purpose of proceeding under Chapter XV of CrPC,
such as under Sections 200 and 202. Conversely,
where the Magistrate applies his mind for a different
purpose, such as ordering investigation under
Section 156(3) of CrPC or issuing a search warrant in
aid of investigation, it would not amount to taking
cognizance of the offence.
135. In this backdrop, the reliance placed by the High
Court on the decisions of this Court in Anil Kumar
(supra) and L. Narayana Swamy (supra) is
misconceived. Those decisions arose in the context of
36
1951 SCC OnLine SC 22
37
1950 SCC OnLine Cal 49
W.P.(C)No.943 of 2021 etc.etc. Page 107 of 125
sanction under Section 19 of the Prevention of
Corruption Act, 1988. Moreover, the correctness of
the view expressed therein, insofar as it relates to the
stage at which sanction is required while exercising
powers under Section 156(3) of CrPC, this Court vide
judgment dated 27
th March, 2018, in Manju Surana
v. Sunil Arora
38, has already referred to a larger
Bench in view of the divergence of judicial opinion.
136. Having clarified the legal position, we now turn to
the merits of the case. 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.
137. Upon a careful consideration of the material placed
on record, including the alleged speeches, the status
report dated 26
th February, 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.
38
(2018) 5 SCC 557
W.P.(C)No.943 of 2021 etc.etc. Page 108 of 125
138. 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. The appeal against the
impugned judgment dated 13
th June, 2022, therefore,
stands partly-allowed to the aforesaid extent.
Civil Appeal @ SLP (Civil) No. 6913 of 2021
139. The Civil Appeal arising out of SLP (Civil) No. 6913
of 2021 is directed against the final order dated 22nd
April, 2021, passed by the High Court for the State of
Telangana at Hyderabad in Writ Petition (PIL) No. 134
of 2020, whereby the High Court closed the writ
petition without granting any substantive relief. For
the sake of convenience, the relevant observations of
the High Court are reproduced hereinbelow: -
“1. The present petition has been filed with three
prayers. Learned for the petitioner concedes that the
first prayer, which is to direct the respondents No.1 to
4 to stop the illegal trending on the social network of
the respondent No.5 under the name of
Islamiccoronavirusjihad, Tablighijamat etc., does not
survive any longer as it has worked itself out.
2. The second relief prayed for by the petitioner is for
issuing directions to the respondents No.1 and
2/Central Government to restrain all online social
media networks operating in India and not to carry out
any Islamophobic posts or messages hurting or
insulting the feelings of a particular community.
Having regard to the manner in which the second
W.P.(C)No.943 of 2021 etc.etc. Page 109 of 125
prayer is couched, this court being a State High Court
cannot grant such a relief. It is for the petitioner to
approach the Supreme Court for appropriate orders.
3. In so far as the third relief is concerned, which is for
issuing directions to the respondent No.1/Government
of India, to register criminal complaint against the
respondent No.5/Twitter and its users, who are
spreading hatred messages, it is directed that the
respondent No.2 shall consider the averments made in
the present petition and take appropriate steps, if
considered expedient, as contemplated in law.
4. The present petition is, accordingly, closed along
with the pending applications, if any.”
140. In our considered view, the grievance raised by the
appellant stands adequately addressed by the High
Court. Even assuming that certain concerns may still
subsist, in light of the discussion and conclusions
recorded in Part I of this judgment, no further
adjudication is warranted.
Part III
39
141. The present batch of contempt petitions has been
filed alleging, inter alia, violation of the directions
issued by this Court. In order to properly appreciate
39
Contempt Petitions will be dealt in this Part, being Diary No. 5793 of 2024,
Diary No. 3470 of 2024, Contempt Petition (Civil) No. 776 of 2023, Diary No.
11853 of 2023, Contempt Petition (Civil) No. 1153 of 2023, Diary No. 41754 of
2023, Contempt Petition (Civil) No. 1235 of 2023 and Diary No. 1579 of 2025.
W.P.(C)No.943 of 2021 etc.etc. Page 110 of 125
the controversy, it is necessary to briefly advert to the
relevant orders passed by this Court.
142. This Court was earlier seized of Writ Petition (Civil)
No. 940 of 2022, wherein concerns relating to the
growing instances of hate speech were brought to its
notice. In that context, this Court deemed it
appropriate to issue an interim direction.
Accordingly, by order dated 21
st October, 2022, it was
clarified that the concerned authorities shall not
hesitate to act in accordance with their statutory
duties and in compliance with the earlier directions
issued by this Court. For the sake of convenience, the
relevant portion of the said order is reproduced
hereunder: -
“...
The Constitution of India envisages Bharat as a secular
nation and fraternity assuring the dignity of the
individual and unity and the integrity of the country is
the guiding principle enshrined in the Preamble. There
cannot be fraternity unless members of community
drawn from different religions or castes of the country
are able to live in harmony. The petitioners points
out that there are appropriate provisions such as
Sections 153A, 153B, 505, and 295A of the Indian
Penal Code. He voices his concern that no action
has been taken even after this Court has been
approached in the matter and the transgressions
have only increased. We feel that this Court is
charged with the duty to protect the fundamental
rights and also preserve the constitutional values and
W.P.(C)No.943 of 2021 etc.etc. Page 111 of 125
the secular democratic character of the nation and in
particular, the rule of law.
The matter needs examination, and some form of
interim directions.
Issue notice.
Respondent No.2-Commissioner of Police, New Delhi,
Respondent No.3 -Director General of Police
Uttarakhand and Respondent No.4 - Director General
of Police, Uttar Pradesh will file a report as to what
action has been taken in regard to such acts as are the
subject matter of this writ petition within their
jurisdiction.
Respondent Nos. 2 to 4 shall ensure that
immediately as and when any speech or any action
takes place which attracts offences such as
Sections 153A, 153B and 295A and 505 of the IPC
etc., suo motu (sic) action will be taken to register
cases even if no complaint is forthcoming and
proceed against the offenders in accordance with
law. Respondent Nos.2 to 4 will therefore issue
direction(s) to their subordinates so that
appropriate action in law will be t aken at the
earliest.
We make it clear that any hesitation to act in
accordance with this direction will be viewed as
contempt of this Court and appropriate action will
be taken against the erring officers.
...”
(emphasis supplied)
143. The order passed by this Court contained, inter alia,
three directions addressed to respondent No. 2 -
Commissioner of Police, New Delhi; respondent No. 3-
Director General of Police, Uttarakhand; and
W.P.(C)No.943 of 2021 etc.etc. Page 112 of 125
respondent No. 4-Director General of Police, Uttar
Pradesh.
144. Firstly, the said authorities were directed to file
status reports indicating the action taken by them in
respect of the incidents forming the subject matter of
the writ petition.
145. Secondly, they were directed to ensure that
whenever any speech or action, irrespective of the
identity or religion of the speaker, attracts offences
under Sections 153A, 153B, 295A or 505 of IPC, suo
motu action is taken for registration of cases, even in
the absence of a formal complaint, and that such
cases are proceeded with in accordance with law. In
furtherance thereof, the authorities were required to
issue appropriate directions to their subordinate
officers to ensure prompt and effective compliance.
146. Lastly, this Court clarified that any failure or
hesitation on the part of the authorities in complying
with the aforesaid directions would be viewed
seriously and may attract proceedings for contempt
of court.
147. Subsequently, noting the persistence of incidents of
hate speech and the apparent inadequacy of response
W.P.(C)No.943 of 2021 etc.etc. Page 113 of 125
by the authorities across the country, this Court, by
order dated 28
th April, 2023, passed in Writ Petition
(Civil) No. 943 of 2021 and connected matters,
reiterated and expanded the earlier directions by
extending them to officials of all State Governments.
For the sake of completeness, the relevant extract of
the said order is reproduced hereunder: -
“…
Respondent Nos. 9 to 36 shall ensure that immediately
as and when any speech or any action takes place
which attracts offences such as Sections 153A, 153B
and 295A and 505 of the IPC etc., suo motu action will
be taken to register cases even if no complaint is
forthcoming and proceed against the offenders in
accordance with law.
Respondent Nos.9 to 36 will therefore issue
direction(s) to their subordinates so that
appropriate action in law will be taken at the
earliest. We make it clear that any hesitation to act
in accordance with this direction will be viewed as
contempt of this Court and appropriate action will
be taken against the erring officers.
We further make it clear that such action will be taken
irrespective of the religion that the maker of the speech
or the person who commits such act may profess, so
that the secular character of India, that is, Bharat as
is envisaged by the Preamble, is pr eserved and
protected.
…”
(emphasis supplied)
148. The subsequent order was thus issued to extend
pan-India applicability to the directions earlier
W.P.(C)No.943 of 2021 etc.etc. Page 114 of 125
confined to the police authorities of the States of Uttar
Pradesh, Uttarakhand and the National Capital
Territory of Delhi, by reiterating and reinforcing the
obligations already cast upon them.
149. It is in the backdrop of the aforesaid orders dated
21
st October, 2022 and 28
th April, 2023, passed in
Writ Petition (Civil) Nos. 940 of 2022 and 943 of 2021,
respectively, that the present contempt petitions have
been instituted alleging wilful disobedience on the
part of the respondent-authorities. For the sake of
clarity, the following table summarises the subject
orders forming the basis of each contempt petition: -
Case Number Subject order
Contempt Petition (Civil) No.
776/2023
21
st
October, 2022
Diary No. 11853/2023 21
st
October, 2022
Contempt Petition (Civil) No. 1153 of
2023
28
th
April, 2023
Diary No. 41754/2023 28
th
April, 2023
Contempt Petition (Civil) No.
1235/2023
28
th
April, 2023
Diary No. 5793/2024 21
st
October, 2022
Diary No. 1579/2025 28
th
April, 2023
Diary No. 3870/2024 21
st
October, 2022
150. The contempt petitions allege that the respondent-
authorities, who were bound by the directions
W.P.(C)No.943 of 2021 etc.etc. Page 115 of 125
contained in the aforesaid orders, failed to register
criminal cases despite the occurrence of incidents
allegedly constituting hate speech. It is contended
that certain political figures, including sitting
members of State Legislatures, have made statements
targeting different religious communities, namely
Hinduism, Islam and Christianity, which, according
to the petitioners, attract penal provisions.
151. In Contempt Petition (Civil) No. 776 of 2023, the
respondent, in their counter-affidavit dated 26
th April,
2023, has specifically stated that action was taken in
compliance with the directions of this Court and that
an FIR has been duly registered. This position stands
admitted by the contempt petitioner in the rejoinder-
affidavit dated 26
th February, 2025.
152. Similarly, in Diary No. 11853 of 2023, the
respondent, in their counter-affidavit dated 10
th May,
2023, has stated that suo motu FIR Nos. 151 of 2023
and 258 of 2023 have already been registered at Mira
Road Police Station, District Thane, and Shrirampur
Police Station, District Ahmednagar, respectively.
153. In Contempt Petition (Civil) No. 1153 of 2023, the
contempt-petitioner alleges that certain public
W.P.(C)No.943 of 2021 etc.etc. Page 116 of 125
functionaries, including the Speaker of a State
Legislative Assembly, a Minister of the State of Tamil
Nadu, a Member of Parliament, and another State
Minister, have made statements amounting to hate
speech directed against the religion professed by the
petitioner. The respondent-authorities have not yet
had the opportunity to file their response.
154. In Diary No. 41754 of 2023, the grievance pertains
to an alleged instance of hate speech dated 11
th
September, 2023, by one Kavati Manohar Naidu, then
Mayor of the Guntur Municipal Corporation, directed
against the petitioner, being a political party and its
President. The respondent-authorities have not yet
had the opportunity to file their response.
155. In Contempt Petition (Civil) No. 1235 of 2023, it is
alleged that a sitting Minister has made statements
against followers of a particular religion. The
petitioner asserts that despite lodging a complaint, no
FIR has been registered, thereby amounting to
disobedience of the order dated 28th April, 2023. The
respondent-authorities have not yet had the
opportunity to file their response.
W.P.(C)No.943 of 2021 etc.etc. Page 117 of 125
156. In Diary No. 5793 of 2024, the allegation pertains to
instances of hate speech by a political leader across
three States. However, there is no averment to
indicate that the petitioner approached the concerned
authorities with a complaint. The petitioner instead
proceeds on the assumption that non-registration of
an FIR suo motu would ipso facto amount to
contempt.
157. In Diary No. 1579 of 2025, the petitioner alleges that
certain remarks were made against Ajmer Sharif
Dargah. It is stated that the petitioner approached the
Nanded Rural Police Station and, upon inaction,
made representations to the Superintendent of Police
as well as the Director General of Police. The
respondent-authorities have not yet had the
opportunity to file their response.
158. In Diary No. 3470 of 2024, the petitioner has
enumerated as many as 55 alleged instances of hate
speech across different States. However, there is
nothing on record to indicate that these incidents
were brought to the notice of the concerned
authorities by way of any complaint or
representation.
W.P.(C)No.943 of 2021 etc.etc. Page 118 of 125
159. A common contention raised in some of the
contempt petitions is that the respondent-authorities
were under an obligation to register FIRs suo motu,
and failure to do so would automatically amount to
contempt of the orders dated 21
st October, 2022 and
28
th April, 2023. We find this submission to be overly
broad and untenable. The aforesaid directions were
issued to remind the authorities of their statutory
obligations and to ensure prompt action in
appropriate cases. 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.
160. 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.
161. Accordingly, in Diary No. 5793 of 2024 and Diary
No. 3470 of 2024, where no complaint has been made
to the authorities, we are unable to hold that there
has been any wilful disobedience of the directions of
W.P.(C)No.943 of 2021 etc.etc. Page 119 of 125
this Court. No case of contempt is made out in these
matters.
162. In Contempt Petition (Civil) No. 776 of 2023 and
Diary No. 11853 of 2023, it is evident from the
affidavits on record that FIRs have already been
registered in compliance with the directions of this
Court. These petitions, therefore, stand closed.
163. However, in Contempt Petition (Civil) No. 1153 of
2023, Diary No. 41754 of 2023, Contempt Petition
(Civil) No. 1235 of 2023 and Diary No. 1579 of 2025,
there are specific averments that the respondent-
authorities have failed to act despite complaints
having been made. In these matters, we deem it
appropriate to grant opportunity to respondent-
authorities therein to file their response.
Part IV
Our Conclusions
164. For the foregoing reasons and discussion, our
conclusions are summarised as follows: -
I. The creation of criminal offences and the
prescription of punishments lie squarely within
W.P.(C)No.943 of 2021 etc.etc. Page 120 of 125
the legislative domain. The constitutional
scheme, founded upon the Doctrine of
Separation of Powers, does not permit the
judiciary to create new offences or expand the
contours of criminal liability through judicial
directions.
II. The precedents of this Court consistently affirm
that while constitutional Courts may interpret
the law and issue directions to secure the
enforcement of fundamental rights, they cannot
legislate or compel legislation. At the highest,
the Court may draw attention to the need for
reform; the decision whether, and in what
manner, to legislate remains within the
exclusive domain of the Parliament and the
State Legislatures.
III. The contention that the field of hate speech
remains legislatively unoccupied is
misconceived. The existing framework of
substantive criminal law, including the
provisions of the IPC and allied legislations,
adequately addresses acts that promote
enmity, outrage religious sentiments, or disturb
W.P.(C)No.943 of 2021 etc.etc. Page 121 of 125
public tranquillity. The field is, therefore, not
unoccupied.
IV. The material placed before this Court indicates
that a greater extent of the concerns
highlighted by the petitioners arise not from the
absence of law, but from deficits in its
consistent and effective enforcement. Such
concerns, however significant, cannot justify
the judicial assumption of legislative functions.
V. The statutory framework under the CrPC (now
the Bharatiya Nagarik Suraksha Sanhita,
2023), provides a comprehensive and layered
mechanism to set the criminal law in motion.
The duty of the police to register an FIR upon
disclosure of a cognizable offence is mandatory,
as settled in Lalita Kumari (supra).
VI. In cases of non-registration of FIR, the
CrPC/BNSS provide efficacious remedies. An
aggrieved person may approach the
Superintendent of Police under Section 154(3)
of CrPC or corresponding Section 173(4) of
BNSS and thereafter invoke the jurisdiction of
the Magistrate under Section 156(3) of CrPC
(corresponding Section 175 of BNSS) or proceed
W.P.(C)No.943 of 2021 etc.etc. Page 122 of 125
by way of a complaint under Section 200 of
CrPC (corresponding Section 223 of BNSS).
These remedies constitute a complete statutory
architecture.
VII. The availability of such remedies, coupled with
the supervisory jurisdiction of constitutional
Courts under Articles 32 and 226 of the
Constitution demonstrates that no legislative
vacuum exists warranting the intervention
sought. The appropriate course lies in ensuring
faithful and even-handed enforcement of
existing law.
VIII. The supervisory jurisdiction of the Magistrate
under Section 156(3) of CrPC or corresponding
Section 175 of BNSS is of wide amplitude and
includes supervisory oversight over the
investigation at appropriate stages. This power
is intended to ensure that the investigation is
conducted in a fair, impartial, and lawful
manner, and may be exercised simultaneously
during the stage of investigation, where the
material on record discloses any deficiency,
inaction, or taint in the investigative process.
W.P.(C)No.943 of 2021 etc.etc. Page 123 of 125
IX. The requirement of prior sanction under
Sections 196 and 197 of CrPC (corresponding
Sections 217 and 218 of BNSS) operates at the
stage of taking cognizance and does not extend
to the pre-cognizance stage of registration of
FIR or investigation under Section 156(3) of
CrPC (corresponding Section 175(3) of BNSS).
An order directing investigation under Section
156(3) of CrPC does not amount to taking
cognizance within the meaning of Section 190
of CrPC (corresponding Section 210 of BNSS).
X. While we decline to issue directions of the
nature sought, we deem it appropriate to
observe that issues relating to ‘hate speech’ and
‘rumour mongering’ bear directly upon the
preservation of fraternity, dignity, and
constitutional order. It would be open to the
Union of India and competent legislative
authorities to consider, in their wisdom,
whether any further legislative or policy
measures are warranted in light of evolving
societal challenges or to bring about suitable
amendments as suggested by the L aw
W.P.(C)No.943 of 2021 etc.etc. Page 124 of 125
Commission’s 267
th Report dated 23
rd March,
2017.
Final Directions
165. In view of the foregoing discussion, all the Writ
Petitions and the Civil Appeal arising out of SLP (Civil)
No. 6913 of 2021 stand dismissed.
166. The Criminal Appeal arising out of SLP (Criminal)
No. 5107 of 2023 is partly allowed in terms of our
discussion in Part II of this judgment. The impugned
judgment dated 13
th June, 2022, passed by the High
Court of Delhi at New Delhi in W.P. (Crl.) No. 1624 of
2020 is set aside to the limited extent that it holds
that a Magistrate, while exercising powers under
Section 156(3) of CrPC, cannot direct registration of
an FIR in the absence of prior sanction.
167. Insofar as Contempt Petition (Civil) No. 776 of 2023,
Diary No. 11853 of 2023, Diary No. 5793 of 2024, and
Diary No. 3470 of 2024 are concerned, in view of the
findings recorded in Part III of this judgment, we are
satisfied that either compliance has been effected or
no case of contempt is made out. Accordingly, the
said contempt petitions stand closed.
W.P.(C)No.943 of 2021 etc.etc. Page 125 of 125
168. In Contempt Petition (Civil) No. 1153 of 2023, Diary
No. 41754 of 2023, Contempt Petition (Civil) No. 1235
of 2023, and Diary No. 1579 of 2025, for the reasons
recorded in Part III, the respective respondent-
authorities are granted two weeks’ time to file their
response. Let these matters be listed separately for
consideration on 19
th May, 2026.
169. The Registry of this Court is directed to transmit a
copy of this judgment to all the High Courts. The High
Courts may, in their administrative side, consider
examining the feasibility of issuing appropriate
practice directions or guidelines, as may be deemed
necessary, to give full and effective implementation to
the law declared in the present judgment.
170. Pending application(s), if any, shall stand disposed
of.
………………………………………..J.
[VIKRAM NATH]
………………………………………..J.
[SANDEEP MEHTA]
NEW DELHI
APRIL 29, 2026
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