Supreme Court 2026: Judiciary Cannot Create New Criminal Offences Through Judicial Directions on Hate Speech

In Ashwini Kumar Upadhyay v. Union of India (2026 SCC OnLine SC 741), the Supreme Court of India addressed the limits of judicial power in relation to hate speech and communal disharmony. The Court held that the creation of criminal offences and the prescription of punishments are functions that lie exclusively within the legislative domain, and that the judiciary cannot create new offences or expand criminal liability through judicial directions. The judgment was delivered in response to a public interest petition seeking directions for the criminalisation of various forms of hate speech not expressly covered by existing provisions of the Indian Penal Code (now Bharatiya Nyaya Sanhita, 2023) and allied legislation. While acknowledging the grave harm caused by hate speech to social harmony and public order, the Court held that the remedy lies with Parliament and state legislatures, not with judicial lawmaking.

The Petition: Seeking Judicial Criminalisation of Hate Speech

The petition filed by advocate Ashwini Kumar Upadhyay sought wide-ranging directions from the Supreme Court, including the formulation of guidelines to curb hate speech that targets communities on the basis of religion, caste, ethnicity, gender, or linguistic identity. The petitioner argued that existing criminal provisions, including Sections 153A and 295A of the Indian Penal Code (now Sections 196 and 299 of the Bharatiya Nyaya Sanhita), are inadequate to address the full spectrum of hate speech in modern India, particularly speech disseminated through social media platforms and public gatherings. The petitioner sought directions requiring the Union Government to enact a comprehensive anti-hate speech law, and in the interim, sought the Court to lay down binding guidelines that would effectively create new categories of criminal speech. The petition relied on the Supreme Court's power under Article 142 of the Constitution to issue directions necessary for doing complete justice, and cited precedents where the Court had laid down guidelines in the absence of legislation, such as the Vishaka guidelines on sexual harassment at the workplace.

The Court's Holding: Separation of Powers and Legislative Primacy

The Supreme Court declined to issue the directions sought, holding that the creation of criminal offences is a function that belongs exclusively to the legislature under the constitutional scheme. The Court observed that under Article 246 read with the Seventh Schedule of the Constitution, criminal law and criminal procedure are subjects on which Parliament and state legislatures have the competence to legislate. The power to define what constitutes a criminal offence, prescribe the ingredients of that offence, and determine the punishment for its commission are core legislative functions that cannot be exercised by the judiciary without violating the doctrine of separation of powers. The Court distinguished the present case from the Vishaka precedent by noting that in Vishaka, the Court was filling a legislative vacuum to protect a fundamental right (the right to work with dignity), and the guidelines were explicitly intended as an interim measure pending legislation. In the hate speech context, the Court found that there is no legislative vacuum because existing provisions under the BNS, the Representation of the People Act 1951, the Information Technology Act 2000, and various state-level legislation already criminalise multiple forms of hate speech and incitement to communal disharmony.

Existing Legal Framework for Hate Speech in India

The Court reviewed the existing legal provisions that address hate speech and communal disharmony. Under the Bharatiya Nyaya Sanhita, 2023, Section 196 (formerly Section 153A IPC) criminalises the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, or community, with a punishment of up to five years. Section 197 (formerly Section 153B IPC) specifically addresses imputations and assertions prejudicial to national integration. Section 299 (formerly Section 295A IPC) punishes deliberate and malicious acts intended to outrage religious feelings with imprisonment up to three years. Section 302 (formerly Section 298 IPC) addresses uttering words with deliberate intent to wound religious feelings. Beyond the BNS, the Representation of the People Act, 1951 provides for disqualification of candidates who promote enmity between classes, and the Information Technology Act, 2000 along with its intermediary guidelines provides mechanisms for the removal of online hate speech. The Court noted that the problem is not the absence of laws but rather their inadequate enforcement, and directed the Union Government and state governments to ensure vigorous enforcement of existing provisions.

Article 142 and Its Limits: What the Court Can and Cannot Do

The judgment provides important clarification on the scope and limits of Article 142 of the Constitution. While Article 142 grants the Supreme Court power to pass any decree or order necessary for doing complete justice, the Court held that this power cannot be exercised to effectively legislate on matters within the exclusive domain of Parliament. The Court cannot, under the guise of doing complete justice, create new criminal offences, expand the scope of existing offences beyond their statutory language, or prescribe punishments that the legislature has not authorised. This observation is significant because it sets boundaries on the expanding use of Article 142 in public interest litigation. While Article 142 has been used to fill legislative gaps, grant divorce in the absence of statutory ground, and devise remedies not provided by statute, the Court affirmed that it cannot be used to encroach upon the core legislative function of defining crimes and punishments. The creation of criminal liability is a matter of such fundamental importance to individual liberty that it must emanate from the people's elected representatives, not from judicial directions.

Significance for Free Speech and Constitutional Governance

The judgment has significance for both the hate speech debate and broader constitutional governance. On hate speech, it clarifies that any expansion of the criminal law in this area must come through the legislative process, ensuring democratic deliberation, committee scrutiny, and public consultation before new speech restrictions are imposed. This is consistent with the requirement under Article 19(2) of the Constitution that reasonable restrictions on free speech must be imposed by law made by the legislature. On the broader question of judicial activism, the judgment reinforces the constitutional boundary between the judicial and legislative functions. It signals that the era of expansive judicial directions through PIL, while not over, has limits. Courts can direct enforcement of existing laws, recommend legislative action, and fill temporary gaps to protect fundamental rights, but they cannot permanently assume the function of the legislature by creating binding norms that effectively constitute new law. For law enforcement agencies, the judgment's direction for vigorous enforcement of existing provisions means that the focus should shift to better implementation of the already comprehensive hate speech framework rather than waiting for new legislation.