தமிழர் மத நம்பிக்கை எதிரான வெறுப்பு பேச்சு பேசுவோர் மீது போலீஸ் நடவடிக்கை இல்லையே- உச்சநீதிமன்றத்தில் விவாதம்

 

Treat hate speech as constitutional tort, not mere policing issue, petitioners urge Supreme Court

The top court reserved its order on a batch of petitions highlighting the rise of hate speech and seeking directions to regulate religious gatherings that promote such practices Updated - January 20, 2026 

Prominent activists and religious leaders on Tuesday (January 20, 2026) urged the Supreme Court to recognise hate speech as a “constitutional tort” rather than a mere disruption of law and order. They contended that its inherently “discriminatory” character strikes at the core of constitutional guarantees.

A constitutional tort is a judicial remedy through which the State can be held vicariously liable for the actions of its agents when they violate constitutional guarantees.

A Bench of Justice Vikram Nath and Justice Sandeep Mehta was hearing a batch of petitions highlighting the rise in hate speech incidents and seeking directions to regulate religious gatherings and congregations that promote such practices. The Bench reserved its order and directed the parties to file their written submissions within two weeks.

ppearing for activist Syeda Hameed and academic Alok Rai, advocate Shahrukh Alam submitted that hate speech could not be reduced to a routine policing concern. “Hate speech must be viewed beyond the prism of law and order, given its discriminatory impact. Treating it as a constitutional tort would ensure greater accountability,” she told the court.

Echoing 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 delivering hate speeches that incite communal violence, there had been little change on the ground.

“Such speeches are often delivered by habitual offenders. There is clear prior knowledge of the nature of these religious congregations, yet there is persistent inaction by State investigating agencies,” Mr. Pasha said.

He further contended that even when aggrieved individuals approach police stations seeking registration of FIRs, law enforcement authorities routinely flout the court’s directions. “In several cases, FIRs are either refused or, even when registered, the appropriate penal provisions are not invoked. There is an inherent reluctance to proceed against persons wielding power and influence, which is why this court mandated suo motu registration. That objective, however, stands defeated,” he said.

Mr. Pasha further apprised the Bench that there is a direct correlation between hate speech and hate crimes, with acts of violence frequently following incendiary public speeches. Urging the court not to dispose of the petitions, he sought continued judicial oversight of the matter.

“The pendency of this matter has had a tangible impact. There is value in keeping it alive so that petitioners may approach this court whenever violations occur,” he submitted.

Senior advocate Sanjay Hegde, assisting the court as amicus curiae, submitted that the “concerted use of media platforms” to propagate hate speech needed to be addressed. He argued that reforms were required to rein in large media corporations that had rendered hate speech commercially profitable.

“Something that begins as a bazaar rumour or a phrase immediately migrates to social media... There must be a mechanism to make hate speech unprofitable. Why is it that the media ultimately ends up lionising the bully pulpit,” he asked.

He pointed out that the apex court’s 2018 ruling in Tehseen Poonawala v. Union of India case, mandating nodal officers to prevent hate crimes and ensure registration of offences, was not being effectively implemented.

“The difficulty is that what one individual or organisation believes to be an exercise of free speech often amounts to hate speech for another. At its core, it is about punching down on those with a lower social quotient,” he said.

In 2018, the Supreme Court in the Tehseen Poonawala case had laid down elaborate directions to appoint a nodal officer responsible for preventing hate crimes and even registering offences. This judgment was passed in the context of increasing instances of mob lynching and hate crimes by cow vigilante groups.

Four years later, in October 2022, witnessing the unabated ferocity of hate crimes, the Supreme Court had rued the “tragic” level to which “we have reduced religion to” in the 21st century. It had said a “climate of hate prevails in the country”. Accordingly, the court had directed the police and authorities to suo motu register cases against hate speech offenders without waiting for someone to file formal complaints.

In 2021, advocate Ashwini Kumar Upadhyay had filed the lead petition in the case seeking a distinct legal framework for governing hate speech, incidents highlighting the lack of clarity in existing laws. He had pointed out that the Law Commission of India’s 267th Report (2017) had recommended two new penal provisions on hate speech, prescribing imprisonment of up to two years for incitement to hatred or discrimination.