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There is something unusual about the Supreme Court’s April 2026 judgment in the hate speech cases. It correctly diagnoses the problem. Then it applies a solution that replicates, at a different level of government, the very failure it just identified.

The bench of Justice Vikram Nath and Justice Sandeep Mehta, deciding a batch of writ petitions that had been before various Supreme Court benches for six years, dismissed the applications seeking new criminal legislation on hate speech. The creation of criminal offences, the court held, “lies squarely within the legislative domain”. Courts cannot assume that function.

The bench found no legislative vacuum: the Bharatiya Nyaya Sanhita, 2023 and the Representation of the People Act, 1951 already penalise acts that promote enmity, outrage religious feelings, or disturb public order. The problem, the court said plainly, is that the law, though present, is not being enforced. That is a correct and important finding. It is also where the judgment’s difficulty begins.

What the court had already tried

The 2026 judgment arrives in a context of a series of directions from the Supreme Court, generated over the preceding four years in relation to this batch of cases, seeking to compel state police forces to do what the law already required.

In October 2022, the court directed all states and Union Territories to register FIRs suo motu when speeches attracting offences under Sections 153A, 153B, 295A, and 505 of the Indian Penal Code occurred, even without a formal complaint. The bench warned that delay in doing so would be treated as contempt of court.

By November 2023, the Union government filed a status report confirming that 28 states and Union Territories had appointed Nodal Officers in compliance with an earlier order from the Tehseen Poonawalla proceedings. Contempt petitions had by then already been filed over non-compliance.

The court’s suo motu FIR direction was, in other words, an attempt to solve the enforcement problem by making enforcement judicially supervised. It did not work well. The contempt petitions that followed were evidence of that. Nodal officers were appointed only on paper. Suo motu FIRs were not registered at the scale the directions contemplated.

Also read: Full Text | SC Judge Justice Abhay S. Oka on Hate Speech for Electoral Gains and the Right to Dissent

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