Pleas against hate speeches: No legislative vacuum exists warranting intervention, says SC

The Supreme Court on Wednesday said hate speech is fundamentally antithetical to the constitutional value of fraternity and strikes at the moral fabric of our republic, but no legislative vacuum exists warranting intervention as the existing framework adequately addresses the issue.

The Supreme Court on Wednesday said hate speech is ''fundamentally antithetical'' to the constitutional value of fraternity and strikes at the moral fabric of our republic, but no ''legislative vacuum'' exists warranting intervention as the existing framework adequately addresses the issue. Terming as ''misconceived'' the contention that the field of hate speech remains legislatively unoccupied, a bench of justices Vikram Nath and Sandeep Mehta said 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. It said the precedents of the apex 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. The top court delivered its verdict on a batch of petitions, including those seeking a direction to the Centre to examine the existing legal framework governing hate speech and rumour-mongering, and to take necessary steps to effectively address and regulate it by way of a legislation. ''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 bench said in its 125-page verdict. It said the constitutional scheme 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,'' it said. The bench said just as the legislature cannot assume the function of interpreting laws, which lies within the domain of the judiciary, the judiciary likewise cannot assume the role of the legislature by enacting laws. The top court said it must be borne in mind that the preservation of constitutional order is not the responsibility of the State alone and 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,'' it said. It said 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,'' the bench observed. It held that the 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, it said. The bench said, ''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''. It said the procedural framework under the Code of Criminal Procedure (now Bharatiya Nagarik Suraksha Sanhita, 2023) provides a comprehensive and multi-tiered mechanism to address grievances arising from non-registration of FIRs. ''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,'' the bench said. It further said, ''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 public tranquillity. The field is, therefore, not unoccupied''. The bench said materials placed before it indicated 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. It said the appropriate course lies in ensuring faithful and even-handed enforcement of existing law. ''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 said. The bench said it would be open to the Centre 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 Law Commission's 267th report of March 2017. It dismissed several pleas and also closed the separate contempt petitions filed against the authorities of some states for their alleged failure in complying with the court's directions of taking action against those involved in hate speeches.