In its observation that India’s existing legal frameworks are adequate to handle hate speech, the Supreme Court may have taken a credible position, but it still does not offer solutions to the problem. The Court noted that it is not the absence of laws but the failure in their implementation that has aggravated the issue and held the executive responsible for the gaps in enforcement. While hearing multiple petitions seeking separate laws to adjudicate hate speech and related crimes, it asserted that hate speech is “fundamentally antithetical” to the constitutional value of fraternity. Pointing out relevant provisions in the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) that cover hate crimes, the Court said they were designed for sufficient remedial action, including investigation and prosecution.

There is no denying that poor enforcement of the law has further enabled a culture of hate in public discourse. The Court reminded public figures of their duty to exercise restraint in their speech. It reiterated its earlier judgments, which directed police officers to register FIRs immediately on receiving complaints about hate speech. It has been stated that prior sanction is not necessary for a magistrate to take cognisance of a complaint on the matter. The Court said the “constitutional role of the judiciary is primarily to interpret and apply the law, and not to legislate”; therefore, attempts by the courts to prescribe statutory schemes or frame provisions akin to legislation would amount to judicial law-making. While all this is true, it is notable that the Court’s past orders have not helped curb hate speech. Not many cases have been filed in connection with incidents of hate speech. Even when cases were registered—some involving brazenly divisive utterances—they resulted in acquittal.

While the Court has stated its position, some issues stand out. It has directed the states to register cases against those indulging in hate speech, but the directive is largely ignored. Should the Court not take action on this? The inadequacy is systemic: when the offenders are people in positions of power, the complaints do not go anywhere. Though courts have stated what constitutes hate speech, there is still a lack of clarity. A legal definition may not be possible, given that at times, speech is defined by context. This leaves governments and the police with considerable latitude. Very often, courts also fail to see hate in speech, even when it is clear and unmistakable. (Source: DH)