Ashwini Kumar Upadhyay v. Union of India & Ors.
Background
This judgment disposed of a large batch of 13 writ petitions (led by advocate Ashwini Kumar Upadhyay's petition), two Special Leave Petitions, and several contempt petitions, all broadly concerning "hate speech" and "rumour-mongering." The main writ petitions sought directions to the Union of India to enact or strengthen laws against hate speech (relying on the Law Commission's 267th Report), some petitions specifically arose from communal vilification of Muslims linked to the Tablighi Jamaat congregation during the COVID-19 pandemic, and one connected criminal appeal challenged the dismissal of a complaint seeking registration of an FIR against a Union Minister and an MP over speeches allegedly promoting communal enmity, where lower courts had held that prior government sanction was needed even to register an FIR (not just to prosecute).
Decision Breakdown
On the main writ petitions, the Court held that under the doctrine of separation of powers, courts cannot create new criminal offences or expand criminal liability through judicial directions: that function belongs exclusively to Parliament and State Legislatures. It found that India's existing criminal law (IPC/BNS provisions on promoting enmity, outraging religious sentiments and disturbing public tranquility) already substantively covers hate speech, so the field is not "legislatively unoccupied," and that the real problem raised by petitioners was inconsistent enforcement, not absence of law, which does not justify judicial legislation. The Court declined to issue a continuing mandamus and dismissed the main writ petitions, while urging the Union and legislatures to consider the Law Commission's recommendations on their own initiative. However, on the connected criminal appeal, the Court held that the requirement of prior sanction under Sections 196/197 CrPC (now BNSS) applies only at the stage of taking cognizance, not at the earlier, pre-cognizance stage of registering an FIR or ordering investigation under Section 156(3) CrPC, so the Delhi High Court was wrong to hold that a Magistrate cannot direct FIR registration without prior sanction, and that part of the High Court's judgment was set aside. Various contempt petitions were closed as satisfied or given further time to respond.
Lesson Learnt
Courts will not step into the legislature's shoes to create new hate-speech offences, however serious the underlying social problem, when adequate criminal provisions already exist: the remedy for weak enforcement is administrative/legislative reform, not judicial rule-making; separately, citizens seeking an FIR against powerful public officials for alleged hate speech are not blocked at the threshold by the sanction requirement: that requirement only kicks in later, when a court actually takes cognizance for prosecution.