Hate-Free India: SC in 2023 -- Several Steps Forward but Miles to go

Throughout 2023, citizens knocked on the doors of the Supreme Court persistently seeking prompt judicial intervention on rising instances of hate speech, delivered across states especially those going to the polls. In the guise of “religious processions” these mobilisations were both aggressive and political. This carefully calibrated (mis)use of hate speech has been itinerant and consistent for the past decade, especially since May 2014 when women and men in constitutional positions embarked on the use of hate speech to divide the polity. December 2021, that marked the controversial “Dharm Sansad” in Uttarakhand’s Hardwar, at which so-called “Hindu Godmen” called for a “genocide” of Indian Muslims however, marked a new and dangerous low, even for the present regime. Therefore, while spotlighting the judicial directives and orders in 2023, this piece also marks some of the interventions in the previous year too.

Citizens for Justice and Peace (CJP)’s Hate Watch programme on the ground has consistently monitored dozens of such instances of  hate speech targeting minorities, many of whom often led to heightened communal tensions and even targeted violence which is the objective of the perpetrators and hate speech offenders. Our complaints have included pre-emptive complaints to the jurisdictional police whenever such events where likely hate speeches are scheduled to be delivered given that they are hosted by habitual offenders, individual and organisational. Complaints to the police and state police chiefs after events too have also been repeatedly made. Then there are complaints to the statutory bodies like the National Commission for Minorities (NCM) and NBDSA, even the NCSC and NCST Commissions.

CJP’s HW programme has also established how the combined deleterious impact of on-ground hate speech by motivated political leaders is successfully manipulated on social media platforms especially through the troll armies of supremacist outfits and the algorithms of  mega social media platforms that see “profit” and “market” benefits” through ensuring the virality of hate.

What was noteworthy in 2023 and 2022 too, however is the multiple petitions and interlocutory applications/interventions that were filed in the Supreme Court by different sets of citizens and groups; all with the common objective of urging the Court to take pointed and prompt action against those, through use of slur, stigma and hate, inciting a climate of violence and a situation of discrimination and social communal disharmony in India.

Supreme Courts orders of 2023

On January 13, in one of the first orders delivered by the Supreme Court in the year 2023,  the Supreme Court bench of Former Justice KM Joseph and Justice BV Nagarathna observed that television channels in India are dividing society because they are motivated by agendas, competing to sensationalize news, and follow the instructions of their funders. The bench had also raised questions against the News Broadcasting and Digital Standards Authority and the Union/Central government over regulating the airing of hate speech programs. In view of the same, through the order, the SC bench asked all the states to submit a response on the steps undertaken to follow the court’s guidelines on hate speech while directing several states to register cases for hate speech under the relevant sections of the Indian Penal Code without waiting for a complaint to be filed.

“We make it clear that any hesitation to act in accordance with this direction will be viewed as contempt of this court and appropriate action will be taken against the erring officers,” the court had said.

Specifically, the bench directed the State of Uttarakhand to file a status report regarding the investigation of hate speech cases in respect of the aforementioned Haridwar Dharam Sansad event where genocidal calls against Muslims were made.

On January 16, while continuing with the hearing of the contempt petition filed by Tushar Gandhi, in the matter of inaction in the Dharm Sansad case, the Supreme Court bench of CJI Chandrachud and Justice PS Narasimha had pulled up the Delhi Police for a delay of five months in filing FIR in the investigation of the Hindu Yuva Vahini hate speech case. Through his petition, Gandhi had stated that the Delhi Police had violated the directions issued by the Supreme Court in the Tehseen Poonawalla and Tushar Gandhi (2018) case, wherein the court had directed that FIR in cases where there was call for mob violence needed to be filed in a timely manner, by refusing to file an FIR against Sudarshan News editor Suresh Chavhanke for administering an oath to “die for and kill” to make India a “Hindu Rashtra” or a “Hindu Nation”.  The Delhi Police had filed an FIR in May 2022 when the incident had taken place in December 2021. Through this order, the Court emphasised upon the punitive measures that need to be employed after an inflammatory speech has been delivered. The court ordered for the police and the investigating officer in the case to place on record the steps taken to pursue the investigation in the said case.

For details of the Tehseen Poonawalla case, read here.

Pursuant to this, on February 3, the Supreme Court bench comprising of former Justice K.M. Joseph and Justice JB Pardiwala passed preventive orders against individual rallies while hearing a plea to prevent Sakal Hindu Samaj’s proposed meeting on February 5 in the state of Maharashtra. An interlocutory application had been moved by petitioner Shaheen Abdullah in the earlier, hate speech case. The petitioner had contended that the proposed rally by the Hinduvta outfit will include anti-Muslim hate speech, as had been made during ‘Hindu Jan Aakrosh Morcha’ held in Mumbai on January 29. It had been highlighted that the Mumbai rally, purportedly organized against ‘love jihad’ and ‘land jihad’, ended with a provocative speech by Goshamahal MLA T Raja Singh calling for a boycott of Muslim owned businesses and for Hindus to ‘slit throats’ .

While dealing with the same, the bench took on record an undertaking by the Maharashtra government providing that the meeting will only be allowed if no hate speech is made and that it will be the responsibility of the state government has to ensure that there is no hate speech delivered in the rally. Not only this, but the bench also directed the state police to, if the permission was granted and the occasion arose, to invoke Section 151 of the Code of Criminal Procedure, which allows the police to make preventive arrests. In this petition filed by petitioner Shaheen Abdullah, the bench also accepted his demand for the recording of the meeting on video, and issued an appropriate direction to that effect to the police inspector of the area.

This above-mentioned order of February 2023 was one of the rare instances where some action on the ground had resulted after an order of the Supreme Court. Particularly, due to the regular and effective interventions of the Supreme Court at this stage, and the impact of the February 2023 order, the Uttarakhand government actually refused to give permission to a “Dharam Sansad” or a religious conclave in Roorkee and deployed heavy police forces after the court said that the state’s chief secretary would be responsible if any hate speech is delivered in the rally.

On April 28, the Supreme Court bench of former Justice Joseph and Justice Nagarathna had extended its October 2022 order for suo-moto action for an FIR in hate speech cases to all States/UTs. As highlighted above, the application of the said October 2022 order had been limited to Uttar Pradesh, Delhi and Uttarakhand. With this order, the directions set by the Court regarding filing suo-moto registration of FIRs and cases in accordance to law irrespective of the religion of the maker of the speech and filing of reports of action taken on the said hate speech was applicable to all the state and UTs of India.

Apart from the above=mentioned petition, the Court was also hearing the contempt petition that had been moved by Shaheen Abdullah in the same case against the State of Maharashtra for not registering and prosecuting multiple instances of hate speech over the past six-eight months. In March 2023, Abdullah filed the said petition based on news reports stating that as many as 50 rallies spurring hate had taken place in Maharashtra over the previous four months. Pursuant to the hearing, on May 19, an affidavit was filed by the Director General of Police, Maharashtra providing that the Maharashtra police had, since February 2023, filed as many as 30 FIRs in hate speech related cases in the state. It is essential to note that most of these had been filed after the April hearing of the Supreme Court, which is to say that until then, the Maharashtra police was ignoring its statutory duties under the law to register and prosecute such offences.

The complete order can be read here:

On May 17, 2023 Supreme Court former Justice KM Joseph heard the petitions on hate speech and hate crime for the last time before his retirement on June 16 last year.  On the said day, the matter of Shaheen Abdullah was adjourned to August 2023 as no copies of FIRs had been supplied to the petitioners by the states despite being enumerated in the document produced in the Court.

On August 2, a special hearing by the Supreme Court was held in view of the anti-Muslims violence that had broken out in the Nuh district of Haryana and had spread to various other districts of the state. The aforementioned had been a result of the “clashes” that took place during a religious procession of the Bajrang Dal and Vishwa Hindu Parishad on July 31. On the morning of August 2, a list of reactionary events and rallies planned by the far-right VHP in Delhi-NCR started doing rounds on social media. Anticipating more communal tensions and violence, along with life threatening consequences for the Muslim community that could result from the said events, an application in the Shaheen Abdullah case was moved. In the bench that was constituted after Justice KM Joseph’s retirement, Justice BV Nagarathna did not figure in the bench constituted to continue hearing the case.

On August 2, 2023, while no stay was granted on the proposed rallies, the Supreme Court bench comprising Justices Sanjiv Khanna and SVN Bhatti had directed the Delhi Police, and the Governments of Delhi, Uttar Pradesh and Haryana to ensure that no untoward incident takes place in the rallies. The Court also directed the authorities to video record the rallies in sensitive areas and preserve the footage. The bench had also reminded the police of the October 2022 order of the court asking the law enforcement officers to take suo-moto action to register FIR against hate speeches, without waiting for any formal complaint.

The complete order can be read here:

On August 25, the bench of Justices Khanna and Bhatti advocated for ‘practical and effective’ steps to deal with the problem of hate speech so that the earlier decisions delivered by the Court are followed both in letter and in spirit. With this, the bench opted for a constructive approach and sought responses from the state government on the status of their compliance with the Tehseen Poonawalla guideline requiring the establishment of district-level nodal officers. For context, in the 2018 Poonawalla judgement, the Supreme Court bench of the then Chief Justice of India, Dipak Misra, Justice A.M. Khanwilkar and the present Chief Justice of India D.Y. Chandrachud had dealt with the issue of cow vigilantism and other incidents of lynching or targeted violence. The said bench had, then, issued an array of directions covering the arena of preventive, remedial and punitive measures. Under preventive measures, the Court inter alia had directed: The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district.

On November 21, 2023, complying with the order of the Supreme Court requiring information on the state compliance with the Tehseen Poonawalla judgement, the Deputy Secretary of the Ministry of Home Affairs filed an affidavit for the Union of India. Through the said affidavit, the court was informed about the appointments of Nodal officers in 28 States and Union Territories of India with the aim of devising a strategy to tackle lynching and mob violence following hate speech incidents in the country. The order issued pursuant to the filing of the affidavit, on November 29, urged the nodal counsels of the case, namely Advocates-on-Record Anas Tanwar and Mrigank Prabhakar, to prepare a chart indicating the name of the petitioners and respondents of the petitions filed as well as the prayers made in each of the petitions.

The complete order can be read here:

No hearing in the said matter took place in the month of December. With Justice KM Joseph retiring, the hearings on the hate speech cases and the enforcement of action taken slowed down.

Supreme Court orders of 2024

In the recent hearing of the Supreme Court on the petitions concerning hate speech, on January 17, 2024 the Supreme Court bench of Justices Sanjiv Khanna and Dipankar Datta (a freshly constituted bench) expressed their anguish at the petitioners being forced to approach the Supreme Court multiple times against individuals and organisations even after there being guidelines for tacking and taking action against hate speeches. During the said hearing, while hearing an interlocutory application filed in the Shaheen Abdullah case, the Supreme Court issued an order directing the District Magistrate and Superintendent of Police at Yavatmal, Maharashtra and Raipur, Chhattisgarh to take ‘appropriate steps’ to ensure that no incitement to violence or hate speech occurs at the rallies scheduled in the said districts in the coming few days of January. The said order was passed following the concerns raised by the petitioners over delivery of potential hate speeches at rallies planned by Hindu Janajagruti Samiti and Bharatiya Janata Party legislator T Raja Singh in the month of January.

The complete order can be read here:

It is essential to highlight here that in all the applications moved by the petitioners in the Shaheen Abdullah case, including the one in January 2024, the Court has refused to deny permission to hold the rallies. Citing the right to freedom of speech and pre-emptive gag orders being against the fundamental rights guaranteed to the citizens, the Supreme Court has rather focussed on ensuring that their previous orders are followed by the law enforcement agencies and the governments.

Clearly, the Supreme Court has become the court of “last resort” for petitioners attempting to seek an urgent curb in the cases of spiralling hate speech, given that these organised mobilisations either tacitly or openly supported by the ruling dispensation have been precursors to divisions in society and targeted, violent attacks on India’s minorities. For students and activists concerned with this phenomenon, today, we have no definition of “hate speech” in Indian penal law that may be used to prosecute any provocative or offences speeches that are delivered by any group or any individual.

For decades, the legally relied on provisions include Sections 153A, which penalises actions that disrupt harmony and promote enmity between different groups; 153B, which punishes words or actions that cause hatred towards a community or imply that they should be deprived of their rights as Indian citizens; and Section 505 that enable prosecution of “Statements conducing public mischief with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community,” and punishments thereof. In 2017, the Law Commission of India, in its 267th report had made recommendations for inserting new provisions in the criminal law governing our country. As per the recommendation, a Section 153C needed to be introduced for prohibiting incitement of hate speech and Section 505A for prohibiting causing fear, alarm, or provocation of violence through such speech.

Background of the petitions against hate speeches:

The first batch of petitions that were filed in the Supreme Court, which had brought the issue of anti-Muslim hate speech under the gaze of the Supreme Court, had begun with the provocative and communal speeches made during a three-day “Dharam Sansad” or religious assembly held in Uttarakhand’s Haridwar from December 17 to December 19 in 2021. These speeches, through which the religious minority community was targeted, several Hindu religious leaders addressed the gathering and raised genocidal calls to take up arms against Muslims as they gave a clarion call for a ‘Hindu nation’. Repeated hate offender Yati Narsinghanand had delivered an anti-Muslim diatribe and stated that “arming the Hindu brigade with bigger and better weapons” would be the “solution” against the “threat of Muslims.”  A plea was moved to the Supreme Court by journalist Qurban Ali and former Judge of Patna High Court and Senior Advocate Anjana Prakash.

Tushar Gandhi, a social activist and the great-grandson of Mahatma Gandhi, filed a contempt petition against the then-District General of Police of Uttarakhand Ashok Kumar and the then-Chief of the Delhi Police Rakesh Asthana in January 2022, alleging that the controversial three-day conclave, ‘Dharma Sansad’ were permitted to take place in Haridwar from December 17-19, and an event in Delhi held on December 19, 2021 by members of Hindu Yuva Vahini. According to the petitioner, the said conclave was conducted in defiance of orders issued by the Supreme Court in 2017 that called for prevention of hate speech. The said petition was allowed by the Supreme Court and was heard by a bench of the then Justice DY Chandrachud and Justice Hima Kohli.

Soon, by the year 2022, two other separate benches of the Supreme Court were hearing different batch of writ petitions which seek the directions to regulate hate speech. Among the batch were petitions filed against the “UPSC Jihad” show aired by Sudarshan News TV, which were being heard by the bench of Former Justice K.M. Joseph and Justice Hrishikesh Roy. Advocate Firoz Iqbal Khan had moved the petition against the aforementioned show. Notably, the case against the anti-Muslim show aired by Sudarshan TV was related to a program named ‘Bindass Bol’ (Free Talk) in which provocative and unsubstantiated remarks were made against Muslim candidates who cleared the UPSC examination, hinting at some larger conspiracy and bias. Pleas seeking regulation of social media messages communalising the COVID pandemics were also a part of the batch of petitions being heard by the Court.

The third petition on hate speech had been filed by advocate Harpreet Mansukhani Saigal wherein the petitioner had claimed that a larger conspiracy is afoot to turn India into a police state, victimising the average person in the most arbitrary and unconstitutional ways possible. This amounted to, it was argued, waging war against civilians through state-sponsored violence, with proponents of such hate speech being hand in glove with central agencies, and “terror” groups.

These petitions highlighted the issues related to the implementation of the hate speech law in the country, urging the Supreme Court to formulate clear broad guidelines to curb hate speech. One of the main arguments raised by the petitioners before the court was regarding the failure of the police to take action for the prevention of these hate speeches or to prosecute the people responsible after these speeches have been made. As a consequence, the petitioners had prayed for the court to directly order investigations into these cases. The said plea also attempted to shed light deliberate unlawful acts against the country had been perpetrated in order to commit hate crimes by targeting members of minority communities and using hatred and violence to win the support of the Hindu majority, transforming India into a Hindu Rashtra, and overthrow the state governments that were not BJP-ruled. Petitioner advocate Harpreet Mansukhani Saigal claimed that the intent and pattern of hate crimes have up-ended the foundations of democracy and sparked instability across the country. The said plea was heard by a bench of the then Chief Justice of India UU Lalit and former Justice Ravindra Bhat. The petition had also alleged that deliberate unlawful acts against the country had been perpetrated in order to commit hate crimes by targeting members of minority communities and using hatred and violence to win the support of the Hindu majority, transforming India into a Hindu Rashtra (Hindu Nation), and overthrow the state governments that were not BJP-ruled. The petitioner claimed that the intent and pattern of hate crimes have upended the foundations of democracy and sparked instability across the country.

Hearing the said petition, which also spoke about hate speech being mixed with criminal conspiracy, the bench had remarked that such instances of hate speeches are sullying the entire atmosphere of the country. The bench had sought for particulars of instances of hate speech being referred to by the petitioner. Notably, a total of 58 incidents of hate speech had been detailed by the petitioner in the petition. With regards to the same, the bench asked the petitioner to provide specific information of the incidents that took place, such as whether or not a crime was committed, registered, the identity of the perpetrators, progress of the investigation, etc.

To understand what constitutes hate speech and the Indian laws that deal with the same, kindly refer to this article.

Significant orders of the Supreme Court in 2022:

A total of eleven writ petitions, including the three mentioned above, were then clubbed by the Supreme Court and heard by a Supreme Court division bench comprising former Justice K.M. Joseph and Justice Hrishikesh Roy. During a hearing of the case on September 21, 2022, the SC bench had expressed its serious concern at the new channels running unregulated, even exclaiming “Where is our nation headed!”. The Court then went on to emphasise the need of having a strict regulatory framework against hate speech and questioned the Indian government as to “why it is standing as a mute witness while all this is happening?”  In the order issued, the bench had referred to the 267th Law Commission of India (2017) which had analysed hate speech in a detailed manner and had made recommendation for introducing provisions for prohibiting incitement of violence and perpetration of discriminatory attitudes through hate speech. With this, the bench had then ordered that the Union of India to state, on affidavit, whether it plans to adopt a legislation that forbids inciting hate speech in accordance with the Law Commission’s recommendations or not.

The complete order can be read here:

In another significant order of the Supreme Court, issued on October 21 2022, the said Supreme Court bench had directed the Governments of NCT of Delhi, Uttarakhand and Uttar Pradesh to take suo-moto action against any hate speech crime, without waiting for any complaint. Failure to take action against incidents of hate speech – irrespective of the religion of the maker of such speech – would be contempt of court, the bench had warned. While issuing a set of interim directions to curb hate speech, the Supreme Court had clearly observed, “There cannot be fraternity unless different religious communities are available to live in harmony.” The order had brought in focus the “prevailing climate of hate in the country” and the total inaction of the authorities.

Even after the issuance of the aforementioned orders, the Supreme Court kept its door open to monitor incidents of hate speeches. Below are the orders issued by the Supreme Court in 2023 in petitions and cases filed before it. These orders vary from passing key directions underlining statutory duties of law enforcement authorities to prevent and prosecute hate speech to taking suo-moto action against the speakers irrespective of their religion without waiting for a formal complaint.

Hate speech continues?

One scroll down any social media platform will be enough for any individual to understand the continuing danger that hate speech is posing to the secular fabric of India. The stern guidelines issued by the Supreme Court to take “immediate” action against any and every hate speech that is delivered have remained, on the ground, to mere utterances, limited to just pen and paper, with provocative and divisive speeches being delivered unabated. State police chiefs and jurisdictional police stations are clearly immune or uninformed of these directives and orders.

All these directives issued by the Supreme Court throughout the year of 2023 were not new constructs, rather they built upon the October 2022 order of the Court which itself reiterated existing statutory obligations of the State and Police, to perform constitutional and statutory duty: lodge criminal cases and investigate these without waiting for formal complaints from a citizen. Many a times during the hearings, the Supreme Court of India has, vocally bemoaned the fact that police and other authorities have not noted for inaction against instances of hate speech despite orders from the Supreme Court. Despite or in spite of this. Shockingly, even these words by India’s highest court have been met with a lackadaisical response from police authorities on ground.

Not only is there a lack of implementation of the Supreme Court guidelines at the grass root level, from the state and local police to local governments (even those states where the Opposition is in power), poor or no follow-up action is taken against any of those against whom FIRs are actually filed. When the directive included a guideline of video-recording the event and even this is not followed up the authorities (including during subsequent hearings by the Court), the failure to prosecute incidents that have already occurred and further failure to curb or control future recurrence is the result.

With this reluctance or apathy from institutions meant to ensure the rule of the Constitutional Order—that includes the protection of the lives and properties of all Indians including its minorities (rendered vulnerable by such targeted hate)– when the police refuse to carry out their duties, who do the populace turn to? CJP’s commitment to ensure that its Hate Watch programme sustains and grows depends largely on systematic dissemination of such information and support at local levels, across the length and breadth of the country.

Today at the beginning of 2024, with a general elections around the corner and hate speech being the base of extreme right political formations, the challenges to ensure that an active and informed citizenry joins in to monitor and counter Hate Speech, register complaints and prosecute offenders, becomes vital. It is also crucial to ensure the safety and protection of all Indians and social harmony of all.