A wounded man lies on a road in northeast Delhi. His face is bruised, his voice trembling. Around him stand uniformed policemen—not as protectors, but as enforcers of humiliation. He is forced to sing the national anthem. Each word falters. A blow follows. The camera does not turn away.
The video—later verified and widely circulated—became one of the most searing visual testimonies of the February 2020 Delhi riots, among the worst episodes of communal violence in the capital in recent memory. The victim, Faizan, later succumbed to his injuries. His death, and the circumstances surrounding it, drew judicial scrutiny, with the Delhi High Court taking note of allegations of custodial violence and dereliction of duty.
This was not merely an instance of brutality. It marked a rupture in constitutional guarantees—where the State appeared to abandon its obligation under Article 21 to protect life and dignity. From that moment emerges a deeper constitutional question—one that now frames a growing legal debate on hate speech.
Recently, a bench of the Supreme Court, comprising Justices Vikram Nath and Sandeep Mehta, addressed the continuing vacuum in India’s legal framework governing hate speech. The Court acknowledged that India lacks a standalone, codified law that comprehensively defines and penalises hate speech. While existing provisions— such as Sections 153A and 295A of the Indian Penal Code—remain applicable, the bench observed that it is ultimately for parliament to decide whether further legislation is necessary.
Yet, within this judicial restraint lies a profound tension. When constitutional guarantees—equality before law (Article 14), non-discrimination (Article 15), and religious freedom (Articles 25-28)—stand visibly strained, can the Court remain confined to restraint alone? Or does the Constitution compel a more expansive interpretative response when rights are not merely threatened, but fractured in practice?
A RIOT SCRIPTED BEFORE IT BEGAN
The February 2020 riots claimed around 53 lives and left over 500 injured, with a majority of victims belonging to the Muslim community. Entire neighbourhoods were reduced to rubble, places of worship desecrated, and the fragile fabric of coexistence torn apart. Yet, the violence bore the imprint of prior incitement.
Videos circulated in the days leading up to the riots showed political actors delivering incendiary speeches. Among them was Kapil Mishra, whose public ultimatum on February 23, 2020—issued in the presence of police—was followed almost immediately by the outbreak of violence. Legal challenges seeking FIRs against him reached the Delhi High Court, which initially made strong oral observations questioning police inaction. However, what followed was marked by delay, bench transfers, and the absence of decisive prosecutorial outcomes. To date, no conclusive criminal liability has been established in relation to these speeches.
Similarly, figures such as Anurag Thakur and Parvesh Verma faced allegations of provocative rhetoric. Complaints were filed, some examined by courts and the Election Commission, but the arc from accusation to accountability remains uncertain.
What emerges is not merely a story of violence—but of impunity shadowing provocation.
AMNESTY’S MIRROR: A SYSTEM UNDER STRAIN
Findings by Amnesty International India in its August 2020 briefing laid bare institutional fractures. The report documented delayed police response, alleged complicity in violence, and systemic bias in complaint registration and investigation.
It concluded that the State’s failure was not episodic, but structural—implicating both action and inaction. Crucially, it underscored that the equal protection of law under Article 14 and the right to life under Article 21 were not uniformly upheld.
The riots, in this framing, were not merely a breakdown of order—but a failure of constitutional governance.
THE LAW THAT EXISTS—AND THE CONSTITUTION THAT SPEAKS
India’s response to hate speech exists—but in fragments. Sections 153A, 295A, and 505(2) of the Indian Penal Code criminalise various forms of incitement and communal hatred. These provisions derive legitimacy from constitutional principles: equality before law (Article 14), non-discrimination (Article 15), and reasonable restrictions on speech in the interest of public order [Article 19(2)]. Articles 25-28 further secure religious freedom, forming the backbone of India’s pluralist framework.
The Supreme Court has long affirmed that secularism is part of the Constitution’s basic structure, notably in the landmark judgment SR Bommai vs Union of India. In Pravasi Bhalai Sangathan vs Union of India, it acknowledged the inadequacy of existing mechanisms to curb hate speech.
The architecture, then, is not absent—it is underutilised.
The Court’s recent deference to parliament reflects respect for separation of powers. But India’s constitutional jurisprudence has rarely been static. In Vishaka vs State of Rajasthan, the Court laid down binding guidelines in the absence of legislation, invoking constitutional principles to fill a legal vacuum.
Hate speech presents a similar challenge. When speech corrodes fraternity—a value embedded in the Preamble—it threatens the Republic’s cohesion. When it targets identity, it undermines dignity. When it fosters fear, it violates equality.
In such circumstances, restraint alone may risk creating a vacuum where rights exist in theory but falter in practice.
A WARNING IGNORED
The Law Commission of India anticipated this dilemma in its 267th Report (2017). It recommended introducing specific provisions—Sections 153C and 505A—to criminalise incitement to hatred and acts intended to provoke violence against identifiable groups.
The report highlighted that existing laws were vague, inconsistently applied, and ill-equipped to address evolving forms of hate speech, particularly in political and digital contexts.
Nearly a decade later, its warnings remain unheeded.
The convergence between judicial observation and expert recommendation reveals a missed legislative moment—one that continues to leave enforcement agencies navigating ambiguity and victims navigating uncertainty.
BETWEEN LAW AND ITS ENFORCEMENT
Delhi 2020 exposed not just the fragility of law—but of its enforcement. Even where legal provisions existed, their application appeared uneven. Video evidence did not consistently translate into timely prosecution. FIRs were delayed. Investigations appeared selective.
This raises a foundational question: can equality before law exist where enforcement itself is unequal?
The image of the injured man on the road endures—not merely as memory, but as a constitutional challenge. It questions whether institutions can act independently when power is implicated. It asks whether the judiciary can move beyond restraint when rights are visibly imperilled.
The Court has recognised the absence of a law. The Constitution has already made a promise. What remains is the will—to bridge the distance between promise and practice. Because when silence begins to scream, it is not just the victim on trial. It is the Republic itself.
—The writer is a New Delhi-based journalist, lawyer and trained mediator
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