Two cases decided in the same week have sent a disquieting signal: that the judiciary may be growing uncertain—if not hesitant—when it comes to dealing with hate speech.
On April 29, the Supreme Court refused to order the registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma over speeches made during the 2020 Delhi assembly election campaign. A bench of Justices Vikram Nath and Sandeep Mehta held that the material on record did not disclose any cognisable offence.
“Upon a careful consideration of the material placed on record and the status reports, we are in agreement with the conclusion that no cognizable offence is made out,” the Court noted.
The case stemmed from complaints filed by CPI(M) leader Brinda Karat, who argued that the speeches—delivered during protests against the Citizenship Amendment Act—were inflammatory and capable of inciting communal tension. One speech by Thakur included the slogan: “Desh ke gaddaron ko… goli maaro saalon ko,” while Verma warned that protesters would “enter your houses, rape your sisters and daughters, and kill them”—a remark was widely understood as targeting Muslims.
On any objective reading, such phrases appear to single out a particular community. Yet, the Court found no sufficient evidence of incitement to violence or targeting that would attract criminal liability.
At the same time, the Court clarified an important procedural point: prior sanction is not required for ordering an investigation under Section 156(3) CrPC, but only at the stage of taking cognisance. It also declined to issue broader directions or guidelines on hate speech, stating that existing laws are adequate and that creating new offences is the legislature’s domain.
In effect, the Court’s position was clear: the problem lies not in the absence of laws, but in their uneven enforcement. That stance, however, has raised eyebrows. For many legal observers, it appears to shift responsibility away from the judiciary at a time when enforcement is already patchy.
In another ruling the same week, the Bombay High Court quashed a 2010 case against actor Shekhar Suman and comedian Bharti Singh over a joke in a television show. The Court held that there was no malicious intent to outrage religious feelings, observing that “mere mention of food items in a comic act cannot amount to insult of religion”.
The contrast between the two rulings—leniency in a political context and strict scrutiny of intent in a comedic one—has not gone unnoticed.
Even more striking is the Supreme Court’s own articulation of hate speech. The bench described it as arising from an “us versus them” mindset that undermines fraternity and equality. It invoked the constitutional vision of unity and even the civilisational ideal of Vasudhaiva Kutumbakam. Yet, critics point out that these principles seem at odds with the Court’s reluctance to act in cases involving overtly inflammatory political speech.
This perceived inconsistency becomes sharper when viewed alongside cases within the judiciary itself. In 2024, Allahabad High Court judge Shekhar Kumar Yadav delivered a speech widely criticised as communal. Though he was advised that his remarks were “avoidable,” no formal action followed, and he retired without consequence. Similar controversies involving other judges have also failed to result in meaningful action.
Such instances raise uncomfortable questions about accountability—not just for politicians, but within the judiciary.
Meanwhile, hate speech itself has become increasingly normalised. Whether during elections or in everyday discourse, it is now a persistent feature of public life. Social media has only amplified its reach.
The Law Commission’s 267th Report (2017) had recommended clearer legal provisions, including new sections in the IPC to address incitement to hatred. It argued that hate speech should be judged not only by immediate violence, but by its capacity to marginalise and harm communities over time.
Yet, little has changed. Courts continue to rely on colonial-era provisions, leading to inconsistent outcomes. Key cases, such as Feroz Iqbal Khan vs Union of India, remain pending.
The Supreme Court has repeatedly held that existing laws are sufficient. But critics argue that this position ignores a crucial reality: when enforcement depends on the political will of those in power, the law can become selectively applied.
By declining to step in more decisively, the judiciary risks reinforcing a perception that there is little deterrence—especially when the speakers are influential.
In the end, the question is not whether laws exist. It is whether they are used.
—The writer is former Senior Managing Editor, India Legal magazine
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