Is the Supreme Court’s ‘Existing Law’ Argument on Hate Speech Enough?

IN 2025 ALONE, on average, four hate speech events occurred per day. Last week, the Supreme Court of India rejected the argument that India suffers from a legal vacuum on hate speech and declined to frame fresh guidelines, emphasising that while constitutional courts may step in to fill limited “interstitial gaps” to protect fundamental rights, such interventions are inherently temporary and cannot substitute for legislative action by Parliament or State legislatures. 

The bench comprising Justices Vikram Nath and Sandeep Mehta also held that no cognizable offence was made out against BJP leaders Anurag Thakur and Parvesh Verma, thereby upholding the Delhi High Court’s clean chit in relation to the “shoot the traitors” slogan raised against the backdrop of the 2020 protests against the Citizenship (Amendment) Act, 2019.  

What were the petitions asking for?

Around thirteen writ petitions were clubbed together. Some of these drew from the 267th Report of the Law Commission of India, which had concluded that existing laws carry structural deficiencies in addressing hate speech and had recommended inserting dedicated penal provisions into the IPC. On this basis, the petitioners urged the Court to direct the Union to revisit the existing legal framework and enact clearer, more targeted hate speech legislation.

Set out below is a brief breakdown of the background and relief asked for in a few of these petitions:

Disposing of the petitions, the Court noted that many of the specific prayers had become infructuous, having been tied to the communalisation of COVID-19 and went onto formulate four issues instead. 

The Court framed the following questions for consideration: (i) whether it could create or expand criminal offences in the absence of legislative action; (ii) whether existing substantive criminal law adequately dealt with hate speech or the field was legislatively unoccupied; (iii) whether the existing procedural framework provided adequate and efficacious remedies, particularly in cases of non-registration of an FIR; and (iv) whether a continuing mandamus should be issued.