Hate speech stems from an ‘us versus them’ mindset: Supreme Court judgment

The Supreme Court, in a batch of petitions filed over five years, delivered a judgment on April 29, 2026, holding that no legislative vacuum exists in India'...

What Happened

The Supreme Court, in a batch of petitions filed over five years, delivered a judgment on April 29, 2026, holding that no legislative vacuum exists in India's law to deal with hate speech.
A Bench of Justices Vikram Nath and Sandeep Mehta ruled that existing criminal law — including provisions of the Bharatiya Nyaya Sanhita (BNS) and allied legislations — adequately addresses acts that promote enmity, outrage religious sentiments, or disturb public tranquillity.
The Court held that the creation of new criminal offences and the prescription of punishments lies squarely within the legislative domain; courts cannot compel Parliament or State legislatures to create new offences through judicial directions.
The Court observed that hate speech is not merely a deviation from acceptable discourse — it is fundamentally antithetical to the constitutional value of fraternity and strikes at the moral fabric of the Republic.
The petitions stemmed from incidents including the "Corona Jihad" campaign (2020), the "UPSC Jihad" broadcast by Sudarshan TV (previously restrained by the Court), and inflammatory speeches at religious congregations.
The Court left the door open for legislative action, noting that Union and State governments may consider whether further amendments are warranted in light of evolving societal changes.

Static Topic Bridges

Constitutional Value of Fraternity

Fraternity is enshrined in the Preamble of the Indian Constitution as one of four objectives — alongside justice, liberty, and equality. It is the only constitutional objective that appears exclusively in the Preamble and not as an enumerated Fundamental Right. Fraternity means assuring the dignity of the individual and the unity and integrity of the Nation. The Supreme Court's observation in this judgment directly engages this Preamble provision, treating it as a legally operative constitutional value rather than a mere aspirational statement.

Fraternity appears in the Preamble inserted through the original Constitution of India (not an amendment).
The 42nd Constitutional Amendment (1976) added the words "unity and integrity" to the Preamble; the word "integrity" is linked to fraternity's role in countering divisive forces.
The Supreme Court has in several cases treated the Preamble as part of the basic structure of the Constitution (Kesavananda Bharati v. State of Kerala, 1973).

Connection to this news: The Court explicitly grounded its concern about hate speech in the threat it poses to fraternity, elevating the Preamble value to a legally relevant standard in adjudication.

Fundamental Duty under Article 51A(e)

Article 51A of the Constitution, inserted by the 42nd Constitutional Amendment (1976), enumerates eleven fundamental duties of citizens. Article 51A(e) specifically mandates every citizen to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and to renounce practices derogatory to the dignity of women. The eleventh fundamental duty — to strive towards excellence — was added by the 86th Amendment (2002).

Fundamental duties are enumerated in Part IV-A of the Constitution (inserted in 1976; 11 duties originally, one added in 2002).
Fundamental duties are not justiciable (cannot be directly enforced by courts) but are relevant to the validity of laws and judicial interpretation.
The Verma Committee (1999) recommended making some fundamental duties justiciable.

Connection to this news: The Court cited Article 51A(e) as part of the constitutional architecture that already obligates citizens to promote harmony — reinforcing that the absence of specific hate speech legislation does not create a legal vacuum.

Existing Legal Framework for Hate Speech (BNS / IPC)

India's criminal law contains several provisions that address hate speech, now consolidated under the Bharatiya Nyaya Sanhita, 2023 (which replaced the Indian Penal Code, 1860, with effect from July 1, 2024):

Section 196 BNS (formerly Section 153A IPC): Punishes whoever promotes or attempts to promote disharmony, enmity, hatred, or ill-will between different religious, racial, language or regional groups or castes or communities. Punishment: imprisonment up to three years, or fine, or both.
Section 299 BNS (formerly Section 295A IPC): Punishes deliberate and malicious acts intended to outrage the religious feelings of any class. Enacted first in 1927 following a communal controversy over a publication.
Section 353 BNS (formerly Section 505 IPC): Punishes statements, rumours, or reports made with intent to cause fear, alarm, or incitement of one community against another.

The BNS came into force on July 1, 2024, replacing the IPC (enacted 1860).
Section 196 BNS is broader than old Section 153A — it additionally includes sex, gender identity, and sexual orientation as protected categories.
Prosecution under Section 196/153A requires prior government sanction.

Connection to this news: The Supreme Court held that these provisions, taken together, constitute an adequate legal framework — the problem lies not in the absence of law but in its enforcement by State authorities.

Doctrine of Separation of Powers

The doctrine of separation of powers, though not explicitly stated in the Indian Constitution, is a part of its basic structure (as held in Kesavananda Bharati, 1973, and Ram Jawaya Kapur v. State of Punjab, 1955). It distributes state power among three branches — legislature, executive, and judiciary — each exercising distinct functions. Indian courts have consistently held that while judicial review empowers courts to strike down unconstitutional laws, they cannot usurp the legislative function of creating new criminal offences.

Kesavananda Bharati v. State of Kerala (1973): Held that separation of powers is part of the basic structure of the Constitution.
Ram Jawaya Kapur v. State of Punjab (1955): Laid down that India does not have strict separation but functional separation with checks and balances.
The principle that courts cannot legislate through judicial directions is well established — courts can read down or strike down laws, but not write new ones.

Connection to this news: The Court invoked the separation of powers doctrine to decline petitioners' requests for judicial directions to create a standalone hate speech law, holding that this is exclusively a legislative prerogative.

Public Interest Litigation (PIL) Jurisdiction

Public Interest Litigation (PIL) under Articles 32 (Supreme Court) and 226 (High Courts) allows any person to approach the courts in the public interest, even if not personally aggrieved. The Supreme Court evolved PIL jurisprudence beginning with S.P. Gupta v. Union of India (1981) and Hussainara Khatoon v. State of Bihar (1979). PILs can seek mandamus to compel state action or issue guidelines in the absence of legislation (as done in Vishaka v. State of Rajasthan, 1997 — sexual harassment guidelines).

Vishaka guidelines (1997) set a precedent for courts issuing guidelines pending legislation — but the Court in the present case declined to follow this path for hate speech.
The petitions in the hate speech case included both PIL and individual grievance petitions.
The Court's refusal signals limits of PIL in compelling Parliament to legislate on a specific subject.

Connection to this news: The batch of petitions included PILs seeking a dedicated hate speech law or specific guidelines; the Court's refusal draws a clear line at using PIL to direct Parliament to legislate.

Key Facts & Data

Judgment delivered: April 29, 2026; Bench — Justices Vikram Nath and Sandeep Mehta.
BNS Section 196 (formerly IPC 153A): promotes enmity — punishment up to 3 years.
BNS Section 299 (formerly IPC 295A): outraging religious feelings — punishment up to 3 years.
BNS Section 353 (formerly IPC 505): incitement/alarm — punishment up to 3 years.
Fraternity: in the Preamble of the Constitution (not a Fundamental Right).
Article 51A(e): Fundamental duty to promote harmony — Part IV-A, inserted by 42nd Amendment (1976).
42nd Amendment (1976): Added Fundamental Duties (Part IV-A) and modified the Preamble.
Kesavananda Bharati (1973): Separation of powers is part of the basic structure.
BNS effective from: July 1, 2024 (replaced IPC 1860).
Vishaka v. State of Rajasthan (1997): Precedent for court-issued guidelines pending legislation — distinguished in the hate speech case.