Has the Supreme Court gone soft on hate speech?

On Monday, the Supreme Court cemented a turning point in its approach to hate speech by refusing to hear a case against Assam Chief Minister Himanta Biswa Sarma. Between 2021 and 2024, the court had taken an active role in policing hate speech. But 2025 saw a change, with the court now hesitant to act on utterances that could incite divisiveness.

The case against the Assam chief minister is related to the Jamiat Ulama-i-Hind, a socio-religious Muslim organisation, approaching the Supreme Court on February 6, claiming that hate crimes in India had risen by 74% in 2024 and that nearly 98% of these incidents targeted Muslims. The organisation described several recent public statements as “communal, unconstitutional, and hate speech by persons holding high constitutional office”.

Jamait’s writ petition formed part of an petition it moved in 2021, seeking action against the repeated instances of hate speeches against Muslims. The petition has been pending since it was filed.

In its latest plea, the organisation referred to a January 27 speech by the Assam chief minister in which he allegedly spoke about removing “four to five lakh Miya voters” from the electoral rolls. He said that he and his party were “directly against Miyas”, a term the petition described as derogatory term for Muslims.

The petition argued that such statements were part of a wider pattern of similar remarks by public officials.

However, on Monday, the Supreme Court declined to entertain petitions seeking that it order an FIR to be registered against Sarma. The bench said instead of directly moving the apex court, the petitioners must first approach the High Court.

This was not the only recent signal of judicial inaction.

In January, another Supreme Court bench hearing the writ petition by Shaheen Abdullah v Union of India stated that hate-speech matters pending before it since 2021 would be closed. These were matters in which the court has asked police to register FIRs suo motu.

In doing so, the Court said that the parties could pursue other legal remedies, like moving the High Court or seeking police action.

Only one case relating to a 2021 alleged hate crime against a Muslim cleric in Noida was kept alive solely to monitor trial progress.

How it began

The current batch of hate-speech cases traces its origins to 2020, when the issue reached the Supreme Court not merely as isolated criminal complaints but as a larger constitutional concern. Two developments triggered this shift.

First, during the Covid-19 pandemic, the so-called corona jihad campaign blamed Muslims for the spread of the pandemic in India.

Second, a television programme alleged a conspiracy by Muslim candidates to enter the civil services.

Petitioners argued that such narratives violated “constitutional values of equality, dignity, and fraternity” and contended that authorities had either failed to act on them or been passive.

In an early intervention in 2020, the Supreme Court restrained the telecast of the controversial programme. The court recognised that certain forms of hate speech, especially when amplified through mass media, could reshape social relations and deepen exclusion, going beyond ordinary free-speech disputes.

"India is a melting pot of civilisations, cultures, religions and languages," the bench had said. “Any attempt to vilify a religious community must be viewed with grave disfavour by this court as the custodian of constitutional values. Its duty to enforce constitutional values demands nothing less.”

A shift to institutional accountability

Between 2021 and 2022, the docket expanded after a series of religious gatherings known as Dharam Sansads. At these events, speakers allegedly called for violence against Muslims, economic boycotts, armed mobilisation and even genocide.

Petitioners highlighted before the Supreme Court a troubling pattern: such events were openly advertised and authorities often permitted them. Moreover, the FIRs registered against the alleged instance of hate speech were either delayed or followed by ineffective investigation.

Several writ petitions were filed before the Supreme Court seeking action against hate speech. The Shaheen Abdullah case was one of them.

Abdullah, a journalist, had moved the Supreme Court in 2022 and sought directions to Delhi, Uttar Pradesh and Uttarakhand to register cases against those delivering speeches that incited hate. It was then that the Supreme Court ordered police to register suo motu FIRs in cases of hate speech.

Abdullah had again moved an application in 2023 seeking that the court’s 2022 order be implemented across states and Union territories, which the Supreme Court allowed. These developments pushed the court to confront a systemic enforcement failure rather than isolated cases of hate speech. The focus shifted from individual offenders to broader questions about state accountability and institutional inaction.

In a significant order passed in October 2022, the Supreme Court, while hearing the Shaheen Abdullah case, directed police authorities in several states to register hate-speech cases promptly, even without formal complaints.

The court warned that hesitation by officials could invite contempt proceedings.

This approach was further strengthened in April 2023, when the court extended the directive nationwide.

It ordered states to take suo motu action whenever hate speech occurred and listed specific penal provisions under which offenders should be booked, including promoting enmity, public mischief, and deliberate insult to religious beliefs.

The court also directed senior police officials to ensure compliance and warned that failure to act could amount to contempt.

During these hearings the government argued that the Supreme Court should not function like a trial or monitoring court examining every incident. It maintained that enforcement should remain primarily the responsibility of state authorities.

Why the Supreme Court pulled back

However, by 2025, the tone of hearing began to change. The Supreme Court now felt that it did have the capacity to “continue tracking every instance of hate speech across the country” and that aggrieved parties should first approach the relevant authorities. It added that if “no action was taken, they could then seek relief” before the High Court concerned.

Judges observed that the Supreme Court could not act as a “permanent national monitoring body, nor replace police stations, magistrates, or state governments”.

“We are not legislating in the garb of this petition,” the bench had said. “Rest assured, we are not inclined to either legislate or monitor every small incident which takes place in X, Y, Z pocket of this country. There are high courts, there are police stations, and there are legislative measures. They are already in place.”

This shift culminated in early 2026, when the Court moved to close several hate speech matters pending before it, while encouraging litigants to pursue other legal remedies.

But even as the court narrowed its supervisory role, petitioners sought to expand the legal framework governing hate speech.

During the hearing on January 20, activists and religious leaders urged the Supreme Court to recognise hate speech as a “constitutional tort” rather than a “mere disruption of law and order”.

A constitutional tort allows the state to be held responsible for a violation of rights.

Senior Advocate Shahrukh Alam argued that hate speech cannot be treated as a routine law-and-order issue and must be seen “beyond the prism of policing” because of its discriminatory impact.

Senior Advocate Nizam Pasha said there was “persistent inaction” despite court orders, with FIRs often refused or diluted due to reluctance to act against powerful offenders. He stressed a “direct correlation between hate speech and hate crimes”.

Amicus Senior Advocate Sanjay Hegde warned of the “concerted use of media platforms” making hate speech profitable, urging mechanisms to “make hate speech unprofitable.”

However, the bench reserved its order and directed the parties to file their written submissions within two weeks. It further closed all matters except one pending case from Uttar Pradesh.

Rising incidents, weak enforcement

Even as the court seems to have changed its approach, even its earlier, more direct role saw few results. Despite the Supreme Court directing police to register hate-speech cases suo motu, the situation on the ground appears to have changed little. Reports indicate that while documentation of such incidents has increased over the years, actual police action against offenders has often remained limited.

According to a June-August 2025 hate crime tracker report by the Association for Protection of Civil Rights, enforcement remained very poor.

The report found that FIRs were registered in only four out of 102 documented hate speech incidents during this period. Similarly, in cases of hate crimes, police filed FIRs in just 22 out of 141 recorded incidents, highlighting a significant gap between reported violations and formal legal action.

This poor enforcement has allowed hate speech incidents to shoot up.

According to a recent report by India Hate Lab, at least 1,318 hate-speech events targeting religious minorities, particularly Muslims and Christians, were recorded in 2025 across 21 states, one Union Territory, and the National Capital Territory of Delhi. This translates to an average of roughly four hate-speech incidents being reported every day.

The figure represents a 13% rise from 2024 and a 97% increase compared to 2023, when 668 such incidents were documented.

The report further found that Muslims were overwhelmingly the primary targets. Nearly 98% contained anti-Muslim content, either exclusively (1,156 cases) or alongside anti-Christian rhetoric (133 cases).

Another significant trend highlighted in the report relates to geography and political context. It noted that nearly 88% took place in states governed by the BJP, either independently or in coalition, as well as in Union Territories administered by the party.

Most egregiously, senior leaders of the party were found to be delivering hate speeches themselves.

According to India Hate Lab, Uttarakhand Chief Minister Pushkar Singh Dhami emerged as the most prolific hate-speech actor in 2025, with 71 speeches, followed by Antarrashtriya Hindu Parishad chief Pravin Togadia with 46 speeches and Bharatiya Janata Party leader Ashwini Upadhyay with 35 speeches.