Treat Hate Speech As ‘Constitutional Tort’, Not Just Law-And-Order Issue, Petitioners Tell Supreme Court
A batch of petitions seeking stronger action against hate speech has prompted lawyers to ask the Supreme Court to recognise hate speech as a “constitutional tort” – a civil wrong that violates fundamental rights – and not merely a policing issue, so that authorities can be held accountable when they fail to act.
SC Reserves Order On Hate-Speech Pleas
A bench led by Justice Sanjiv Khanna has reserved orders on multiple petitions flagging repeated hate‑speech incidents and alleging that state authorities are not following the Court’s earlier directions to act suo motu under penal provisions like Sections 153A, 295A and 505 of the IPC/BNS.
The petitions refer to controversies such as the “UPSC jihad” and “Corona jihad” TV debates, rallies calling for violence against communities, and inflammatory remarks by political and religious figures that were either ignored or weakly pursued by police.
Petitioners argue that despite earlier Supreme Court orders mandating suo motu FIRs, there is a “systemic failure” in enforcement, with police often acting selectively or after public outrage rather than as a matter of routine duty.
What Does ‘Constitutional Tort’ Mean Here?
Senior advocates submitted that hate speech should be treated as a violation of constitutional guarantees of equality, dignity and non‑discrimination, making it a “constitutional tort” that can trigger liability for both perpetrators and complicit officials.
The idea draws from earlier rulings where the Court held that if a minister’s or official’s statement leads to a rights violation through acts or omissions by state officers, the harm may be actionable as a constitutional tort, opening the door to compensation and directions.
Counsel argued that when police ignore clear hate‑speech calls to violence, affected individuals and communities should be able to seek remedies directly against state authorities, not just pursue criminal trials against individual speakers.
From ‘Law-And-Order’ To Rights Violation
One of the advocates told the bench that hate speech must not be seen only as a disturbance of public order, because it normalises discrimination and intimidation against minorities and marginalised groups, undermining their fundamental rights.
By categorising such speech as a constitutional wrong, petitioners say the Court can push governments to treat non‑action as dereliction of duty under the Constitution, rather than mere administrative lapse.
They have also cited the Law Commission’s 2017 report and past Supreme Court observations that hate speech involves not just offensive content but intent and impact, including the potential to incite violence or segregation.
Centre & States’ Stand Before The Bench
- Government lawyers have pointed out that India already has detailed provisions against promoting enmity, insulting religion and spreading rumours that threaten communal harmony, under both the IPC and the newer Bharatiya Nyaya Sanhita.
- States have argued that policing hate speech in real time is complex in the age of 24×7 television and social media, and warned that overbroad directions could chill legitimate political and religious speech.
- Some counsel urged the Court to leave finer calibration of definitions and penalties to Parliament, while petitioners countered that basic enforcement of existing law is itself lacking.
What Happens Next?
With orders now reserved, the Supreme Court is expected to decide whether to close the current batch of petitions with broad guidelines, or to lay down a more specific framework on police duties, monitoring mechanisms and possible constitutional‑tort remedies.
Any ruling that recognises hate speech as a constitutional tort, even partially, could reshape how victims seek justice, how police respond to incendiary speeches and how political discourse is conducted in the run‑up to future elections.
