Prominent activists and religious leaders on Tuesday (Jan 20, 2026) urged the Supreme Court to recognize hate speech as a “constitutional offence” rather than a mere breach of law and order. They argued that its inherently “discriminatory” character strikes at the heart of constitutional guarantees.
A constitutional tort is a judicial remedy through which a state can be held vicariously liable for the actions of its officials when they violate constitutional guarantees.
A bench of Justice Vikram Nath and Justice Sandeep Mehta heard a number of petitions highlighting the rise in cases of hate speech and seeking directions on how to regulate religious gatherings and congregations promoting such practices. The bench reserved its order and directed the parties to file their written submissions within two weeks.
Advocate Shahrukh Alam, appearing for activist Syed Hameed and academician Alok Rai, said hate speech could not be reduced to a routine police concern. “Hate speech must be seen through the prism of law and order, given its discriminatory impact. Treating it as a constitutional offense would ensure greater accountability,” she told the court.
Responding to these concerns, advocate Nizam Pasha, appearing for journalist-petitioners Shaheen Abdullah and Qurban Ali, pointed out that despite the Supreme Court’s October 21, 2022 order directing states to register suo motu FIRs against those who utter hate speech that incites communal violence, nothing has changed in practice.
“Such speeches are often made by habitual offenders. There is clear prior knowledge of the nature of these religious congregations, but state investigative agencies still fail to act,” Mr Pasha said.
He further argued that even when aggrieved individuals approach police stations to register FIRs, the law enforcement agencies routinely ignore the court’s directions. “In several cases, FIRs are either dismissed or, even when registered, the relevant criminal provisions are not invoked. There is an inherent reluctance to act against persons of power and influence, hence this court has ordered suo motu registration. However, this objective remains frustrated,” he said.
Mr. Pasha further informed the Bench that there is a direct link between hate speech and hate crimes, with acts of violence often following inflammatory public expressions. He urged the court not to entertain the petitions and asked for continued judicial supervision of the matter.
“The interconnectedness of this matter has a tangible impact. It is worth keeping it alive so that claimants can go to court whenever there is a breach,” he said.
Senior advocate Sanjay Hegde, assisting the court as amicus curiae, said the “contemporary use of media platforms” to promote hate speech needed to be addressed. He argued that the reforms were necessary to rein in the large media corporations that have made hate speech commercially profitable.
“Something that starts as bazaar rumors or catchphrases immediately migrates to social media… There has to be a mechanism to invalidate hate speech. Why does the media end up lying on the pulpit of bullies,” he asked.
He pointed out that the Supreme Court’s 2018 judgment in Tehseen Poonawala v Union of India, which directed nodal officers to prevent hate crimes and ensure registration of crimes, was not effectively implemented.
“The problem is that what one individual or organization sees as an exercise of free speech often equates to hate speech to another. At its core, it’s about bashing those with a lower social quotient,” he said.
In 2018, the Supreme Court in the Tehseen Poonawala case laid down elaborate guidelines to appoint a nodal officer responsible for preventing hate crimes and even registering crimes. This judgment came in the wake of increasing cases of mob lynching and hate crimes by cow vigilante groups.
Four years later, in October 2022, the Supreme Court witnessed the unabated fury of hate crimes and condemned the “tragic” level to which we have “reduced religion” in the 21st century. It said that “a climate of hatred prevails in the country”. Accordingly, the court directed the police and authorities to suo motu register cases against hate speech perpetrators without waiting for anyone to file formal complaints.
In 2021, advocate Ashwini Kumar Upadhyay filed the lead petition in the case seeking a different legal framework to manage hate speech, incidents highlighting the lack of clarity in existing laws. He pointed out that the 267th Report (2017) of the Law Commission of India (2017) has recommended two new criminal provisions on hate speech, which prescribe imprisonment for up to two years for incitement to hatred or discrimination.
Published – 20 Jan 2026 20:35 IST
