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Ashwini Kumar Upadhyayv.Union of India & Ors

Citation:
2026 INSC 431
Date:
30 April 2026
Reading time:
15 min read

Legal Analysis: Ashwini Kumar Upadhyay vs. Union of India & Ors

Citation: 2026 INSC 431
Court: Supreme Court of India
Bench: Justice Vikram Nath and Justice Sandeep Mehta (Division Bench)
Judgment Author: Justice Vikram Nath
Date of Decision: April 29, 2026
Nature of Judgment: Judgment in a batch of Writ Petitions (under Article 32), Special Leave Petitions, and Contempt Petitions concerning hate speech, registration of FIR, and prior sanction.


Synopsis of the Judgment

The Court dismissed writ petitions seeking directions to the Union of India to enact legislation on hate speech, holding that the creation of criminal offences lies within the exclusive domain of the legislature under the separation of powers doctrine. The existing criminal law (IPC/BNS) already contains adequate provisions addressing hate speech (Sections 153A, 153B, 295A, 505, etc.). Procedural remedies under CrPC/BNSS, including Sections 154(3), 156(3), and 200, provide a complete mechanism for registration of FIR and investigation. The Court refused to issue a continuing mandamus. In a related criminal appeal, the Court held that prior sanction under Sections 196/197 CrPC is not required for a Magistrate to direct registration of an FIR under Section 156(3) CrPC; such a direction is pre-cognizance. Contempt petitions alleging failure to register FIRs were partly disposed of.


1. Basic Information of the Judgment

Field Details Case Title Ashwini Kumar Upadhyay vs. Union of India & Ors. (with connected matters) Writ Petition (Civil) No.943 of 2021 and batch Bench Justice Vikram Nath and Justice Sandeet Mehta (as per signature; the judgment is authored by Vikram Nath, J.) Date of Decision April 29, 2026 Citation 2026 INSC 431 Appeal From Various High Courts; also original writ jurisdiction under Article 32


2. Legal Framework

Laws and Provisions Involved:

  • Constitution of India, 1950: Article 32 (writ jurisdiction), Article 19(1)(a) (freedom of speech and expression), Article 21 (right to life and dignity), Article 51A (fundamental duties – to promote harmony and fraternity), Preamble (fraternity, dignity).

  • Indian Penal Code, 1860 (IPC): Sections 124A, 153A (promoting enmity between groups), 153B (imputations prejudicial to national integration), 295A (outraging religious feelings), 298, 505 (public mischief), 504, 506.

  • Bharatiya Nyaya Sanhita, 2023 (BNS): Corresponding provisions (not separately cited).

  • Code of Criminal Procedure, 1973 (CrPC): Section 154 (registration of FIR), Section 154(3) (approach to Superintendent of Police), Section 156(3) (Magistrate’s power to order investigation), Section 190 (taking cognizance), Section 196 (sanction for offences against State/Chapter VI), Section 197 (sanction for public servants), Section 200 (complaint procedure), Section 202 (post-cognizance inquiry), Section 482 (inherent powers).

  • Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Corresponding provisions (Sections 173, 175, 210, 217, 218, etc.).

  • Representation of the People Act, 1951: Sections 8, 123(3A), 125.

  • Cable Television Networks (Regulation) Act, 1995: Sections 5, 6.

Precedents Cited:

  • Kesavananda Bharati v. State of Kerala (1973) – Preamble part of Constitution; separation of powers.

  • Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) – Functions of organs demarcated.

  • Asif Hameed v. State of J&K (1989) – Court cannot compel legislature to enact law; separation of powers.

  • SCWLA v. Union of India (2021) – Court cannot create offences or prescribe punishments; Vishaka principle applies only when legislative vacuum exists.

  • Dr. Ashwini Kumar v. Union of India (2020) – “Judge-made law” is interpretation, not legislation.

  • Union of India v. K. Pushpavanam (2022) – Court cannot direct introduction of a Bill.

  • Lalita Kumari v. Government of U.P. (2014) (Constitution Bench) – Registration of FIR mandatory on disclosure of cognizable offence; preliminary inquiry permissible only in limited categories.

  • Sakiri Vasu v. State of U.P. (2008) – High Court should relegate to statutory remedies under Section 154(3) and 156(3) CrPC; Magistrate has wide powers under Section 156(3) to direct registration and monitor investigation.

  • Mohd. Yousuf v. Afaq Jahan (2006) – Order under Section 156(3) is pre-cognizance; does not amount to taking cognizance.

  • State of Karnataka v. Pastor P. Raju (2005) – Sanction under Section 196 only at cognizance stage, not at registration or investigation stage.

  • R.R. Chari v. State of U.P. (1951) – Taking cognizance requires application of mind for proceeding under Chapter XV.

  • Anil Kumar v. M.K. Aiyappa (2013) – Distinguished (sanction required when cognizance taken).

  • Tehseen S. Poonawalla v. Union of India (2018) – Directions on mob lynching (not extended to hate speech).

  • Pravasi Bhalai Sangathan v. Union of India (2014) – Implementation, not absence of law, is the issue.

  • *Citizenship Act, 1955, Section 6-A, In Re* (2024) – Fraternity as a constitutional value.

  • K.S. Puttaswamy v. Union of India (2017) – Preamble embodies foundational values.

What the Judgment is About: The judgment addresses multiple grievances: (i) the demand for a standalone legislation or amendments to criminal law to deal with hate speech; (ii) the adequacy of existing procedural remedies for non-registration of FIR; (iii) the question whether prior sanction is required for a Magistrate to order registration of an FIR under Section 156(3) CrPC for offences under Chapter VI IPC; and (iv) contempt petitions alleging failure to act on hate speech incidents. The Court ruled that judicial power does not extend to creating offences or compelling legislation; the existing law is adequate; procedural remedies must be exhausted; and prior sanction is not required at the pre-cognizance stage.


3. Relevant Facts

  • Writ petitions (13 in number): Filed under Article 32 by various petitioners, including Ashwini Kumar Upadhyay, seeking directions to the Union of India to take steps to control hate speech, implement the 267th Law Commission Report (2017) recommending new provisions, and to take action against media spreading communal hatred during COVID-19 (Tablighi Jamaat incident). Some petitions also sought a continuing mandamus to monitor registration of FIRs.

  • Criminal Appeal (SLP (Crl.) No. 5107/2023): Arising from a complaint filed by the appellants alleging that speeches delivered on 27-28 January 2020 by certain public functionaries constituted offences under Sections 153A, 153B, 295A, 505 IPC. The Magistrate dismissed the application under Section 156(3) CrPC on the ground that prior sanction under Section 196 CrPC was required. The High Court affirmed. The appeal challenged that view.

  • Civil Appeal (SLP (C) No. 6913/2021): Challenged High Court order closing a PIL concerning Islamophobic social media posts; the Court found the grievance adequately addressed.

  • Contempt petitions: Filed alleging violation of this Court’s orders dated 21.10.2022 and 28.04.2023 directing police authorities to register suo motu FIRs on hate speech incidents. Some contempt petitions showed compliance; others had no prior complaint; some were pending response.


4. Issues

  1. Issue I: Whether this Court can create or expand criminal offences (e.g., define “hate speech” or prescribe new penalties) in the absence of legislative action.

  2. Issue II: Whether the existing field of substantive criminal law adequately deals with offences relating to hate speech, or is legislatively unoccupied.

  3. Issue III: Whether the existing framework of criminal procedural law provides adequate and efficacious remedies to address grievances of non-registration of FIR.

  4. Issue IV: Whether a continuing mandamus is warranted in the present case to supervise enforcement of hate speech laws.

  5. Separate issue in Criminal Appeal: Whether a Magistrate, while exercising power under Section 156(3) CrPC to direct registration of an FIR, can refuse to do so on the ground that prior sanction under Sections 196/197 CrPC has not been obtained for the offences alleged (which fall under Chapter VI IPC).


5. Ratio Decidendi

A. Judicial power cannot create criminal offences or compel legislation (Issue I & II)

The Court held that the creation of criminal offences and prescription of punishments lies exclusively within the legislative domain. The doctrine of separation of powers, though not rigidly applied in India, demarcates functions: the legislature makes laws; the judiciary interprets and applies them. In SCWLA v. Union of India, the Court refused to introduce “chemical castration” as punishment, holding that in the absence of legislative vacuum, courts cannot supplant the legislative scheme. The Vishaka principle applies only where there is a constitutional silence or abeyance (e.g., sexual harassment at workplace). Here, the field is occupied by existing penal provisions. Therefore, the Court cannot issue directions to enact a new hate speech law or expand existing offences (Para 26-36, 37-44).

B. Existing criminal law adequately addresses hate speech (Issue II)

The Court noted that the IPC (and now BNS) contains several provisions: Sections 153A (promoting enmity between groups), 153B (prejudicial to national integration), 295A (outraging religious feelings), 505(1)(c) (inciting hatred), etc. Additionally, the Representation of the People Act, 1951, the Cable Television Networks (Regulation) Act, 1995, and the Cinematograph Act, 1952 provide regulatory mechanisms. Preventive powers under Section 95, 107, 144 CrPC are also available. The Law Commission’s 267th Report acknowledged the existence of these provisions and only recommended strengthening. Hence, there is no legislative vacuum (Para 37-44).

C. Procedural remedies for non-registration of FIR are complete and efficacious (Issue III)

The Court reiterated the Constitution Bench decision in Lalita Kumari: registration of FIR is mandatory upon disclosure of a cognizable offence. The CrPC provides a layered remedy: (i) approach the Superintendent of Police under Section 154(3); (ii) if unsatisfied, approach the Magistrate under Section 156(3); (iii) alternatively, file a complaint under Section 200. The Magistrate’s power under Section 156(3) is wide and includes the power to direct registration of an FIR and to monitor investigation. Constitutional remedies under Articles 32/226 are available only after exhaustion of statutory remedies or in exceptional cases. Thus, no direction for a “continuing mandamus” is required (Para 45-62, 70-76).

D. Continuing mandamus not warranted (Issue IV)

A continuing mandamus would require the Court to assume continuous supervisory oversight over executive functions, which would transgress the separation of powers and amount to micro-management. The Court, following National Federation of Indian Women v. Union of India, held that such a course is neither feasible nor consistent with the constitutional scheme (Para 63-76).

E. Prior sanction under Sections 196/197 CrPC not required for Section 156(3) direction (Criminal Appeal)

The Court held that an order under Section 156(3) CrPC directing investigation and registration of FIR is made at the pre-cognizance stage. “Taking cognizance” under Section 190 CrPC requires the Magistrate to apply judicial mind for proceeding under Chapter XV. A direction under Section 156(3) is not cognizance; it is a step to set the criminal law in motion. Relying on Pastor P. Raju and Mohd. Yousuf, the Court held that sanction under Sections 196 and 197 is required only at the stage of taking cognizance, not at the stage of investigation or registration of FIR. The lower courts erred in refusing to direct registration on the ground of absence of prior sanction (Para 104-138). However, on merits, the Court agreed with the High Court’s conclusion that the speeches in question did not disclose any cognizable offence; therefore, the appeal was partly allowed only on the legal proposition, but no FIR was directed (Para 137-138).

F. Contempt petitions

The Court held that contempt requires proof of “hesitation” or wilful disobedience. Where no complaint was made to authorities, contempt cannot be inferred. In cases where complaints were made and no action taken, the respondents were given time to respond. Where FIRs were already registered, petitions were closed (Para 141-163).


6. New Legal Principles Established / Reiterated

  • Clarification that Section 156(3) direction is pre-cognizance, hence no prior sanction required: The judgment explicitly overrules the contrary view taken by some courts that sanction under Section 196 CrPC is a condition precedent for ordering investigation under Section 156(3) for offences under Chapter VI IPC. It reaffirms that the bar operates only at the cognizance stage.

  • Separation of powers in the context of hate speech legislation: The Court reiterates that the judiciary cannot compel the legislature to enact a law on hate speech, nor can it create new offences by judicial fiat. This is a strong reaffirmation of legislative primacy in criminal law.

  • Continuing mandamus not to be issued for general oversight of enforcement: The Court declined to issue a continuing mandamus to monitor registration of FIRs in hate speech cases, holding that such supervision would be micro-management of executive functions.

  • Fraternity as a constitutional value and fundamental duty: The judgment extensively discusses the Preamble’s value of fraternity and Article 51A(e) (duty to promote harmony). While not issuing binding directions, it reminded citizens and public officials of their constitutional obligations.


7. Court’s Analysis and Examination of Concepts

  • Separation of powers and judicial restraint: The Court traced the doctrine from Montesquieu through American and Indian constitutional law. It held that while India does not adopt absolute separation, the essential functions are demarcated. The legislature is supreme in law-making. Judicial creativity is permissible only to fill a constitutional vacuum, not to supplant an existing legislative scheme.

  • Distinction between “judge-made law” and interpretation: The Court clarified that interpretation may result in “judge-made law” (binding precedents), but this is not legislation. Legislation involves a policy choice among competing values, which is for the elected legislature.

  • Mandatory registration of FIR – no exception for sanctionable offences: The Court held that the obligation to register an FIR under Section 154 upon disclosure of a cognizable offence applies irrespective of whether the offence requires sanction for prosecution. Sanction is for taking cognizance, not for investigation.

  • Distinction between Vishaka and present case: In Vishaka, there was no law on sexual harassment at workplace; the Court filled the vacuum. Here, laws exist; therefore, Vishaka principle does not apply.

  • Hate speech – existing provisions are adequate: The Court listed the various IPC provisions and noted that the Law Commission itself did not say there was a vacuum, only that fine-tuning was needed.


8. Critical Analysis

Strengths: The judgment is a masterclass in judicial restraint. It correctly declines the invitation to become a super-legislature on hate speech. By reaffirming that criminal offences are the domain of Parliament, it respects the separation of powers. The ruling on Section 156(3) and prior sanction is a significant clarification that will prevent magistrates from refusing to order investigation in serious cases involving public figures. The detailed exposition of the statutory remedies under CrPC is a practical guide for litigants. The judgment also reinforces the constitutional value of fraternity and the duty of citizens.

Potential concerns: The judgment may be criticised for leaving the problem of hate speech solely to executive enforcement, given the well-documented reluctance of police to register FIRs against influential persons. The Court refused to issue a continuing mandamus or any new directions, relying on existing law. However, the Court’s response is that the law already provides sufficient mechanisms; if the executive fails, the remedy lies in approaching the Magistrate under Section 156(3) or filing a complaint. The Court also upheld the High Court’s finding that the specific speeches in the criminal appeal did not disclose a cognizable offence, which may be seen as a conservative interpretation of hate speech provisions.

Practical impact: This judgment will be cited by the government to oppose PILs seeking judicial legislation on hate speech. It will also empower complainants to argue that prior sanction is not a bar to registration of FIR under Section 156(3). Police and magistrates cannot refuse to register an FIR for offences under Chapter VI IPC on the ground of lack of sanction. The judgment may also lead to a flood of Section 156(3) applications before magistrates, which is the correct remedy.


9. Final Outcome

  • All writ petitions (including W.P. (C) No. 943/2021 and batch) dismissed.

  • Civil Appeal (SLP (C) No. 6913/2021) dismissed.

  • Criminal Appeal (SLP (Crl.) No. 5107/2023) partly allowed: The impugned judgment of the Delhi High Court is set aside to the limited extent that it held that prior sanction is required for a direction under Section 156(3) CrPC. However, on merits, the Court agreed that no cognizable offence was disclosed; therefore, no FIR was directed.

  • Contempt petitions disposed: Some closed (compliance shown); some closed (no contempt made out); some listed for further response.

  • Directions to Registry: Copy of judgment to be transmitted to all High Courts for consideration of practice directions.


10. Practical Application (Use in Court)

  • By complainants seeking registration of FIR for offences under Sections 153A, 153B, 295A, 505 IPC: If the police refuse to register an FIR citing lack of prior sanction or citing the status of the accused, file an application under Section 156(3) CrPC (or Section 175 BNSS) before the Magistrate. Cite this judgment to argue that prior sanction is not required at the stage of directing investigation; it is only required at the stage of taking cognizance. The Magistrate can and should order registration of FIR if a cognizable offence is disclosed.

  • By petitioners seeking judicial legislation: If you are seeking a court to create a new criminal offence or to compel Parliament to enact a law, cite this judgment to understand that such relief will not be granted. The proper course is to approach the legislature or the Law Commission. The court may only recommend, not mandamus.

  • By police and magistrates: When dealing with complaints of hate speech, do not refuse registration of FIR on the ground that the offence requires sanction. Sanction is not a pre-condition for investigation. The obligation to register FIR under Section 154 CrPC is mandatory upon disclosure of a cognizable offence, regardless of whether the accused is a public servant or the offence falls under Chapter VI. The Magistrate can direct investigation under Section 156(3) without sanction.


11.  Court Lines

“The creation of criminal offences and the prescription of punishments lie squarely within the legislative domain. The constitutional scheme, founded upon the Doctrine of Separation of Powers, does not permit the judiciary to create new offences or expand the contours of criminal liability through judicial directions.” (Para 35)

“The requirement of prior sanction under Sections 196 and 197 of CrPC (corresponding Sections 217 and 218 of BNSS) operates at the stage of taking cognizance and does not extend to the pre-cognizance stage of registration of FIR or investigation under Section 156(3) of CrPC (corresponding Section 175(3) of BNSS). An order directing investigation under Section 156(3) of CrPC does not amount to taking cognizance within the meaning of Section 190 of CrPC.” (Para 126-127)

“The contention that the field of hate speech remains legislatively unoccupied is misconceived. The existing framework of substantive criminal law, including the provisions of the IPC and allied legislations, adequately addresses acts that promote enmity, outrage religious sentiments, or disturb public tranquillity.” (Para 37)

“We are therefore, unable to accept the submission that issuing continuing mandamus in the present case is called for… such a course would result in this Court assuming functions that are not constitutionally vested in it.” (Para 69, 76)


12. Legal Strategy Insight

For complainants (victims of hate speech): Do not file a writ petition directly in the High Court or Supreme Court seeking directions to the police. First, file a complaint with the police. If they refuse to register FIR, immediately file an application under Section 154(3) CrPC before the Superintendent of Police. If that fails, file an application under Section 156(3) CrPC before the jurisdictional Magistrate. In that application, cite this judgment to argue that prior sanction is not required. If the Magistrate rejects the application, challenge it before the High Court under Section 482 CrPC or by way of revision. Only after exhausting these remedies should you consider a writ petition. This judgment makes it clear that constitutional courts will not entertain a writ petition in the first instance.

For the accused (persons accused of hate speech): If the Magistrate orders registration of FIR under Section 156(3) without prior sanction, you cannot challenge the order on the ground of lack of sanction. The proper stage to raise the issue of sanction is after the police file the charge-sheet (final report) and the Magistrate takes cognizance. At that stage, you can argue that the court cannot take cognizance without sanction. However, note that the investigation itself can proceed even without sanction.

For magistrates:
When a complainant approaches you under Section 156(3) alleging offences under Sections 153A, 153B, 295A, 505 IPC, do not reject the application on the ground that prior sanction is required. Instead, examine whether the complaint discloses a cognizable offence. If yes, direct the police to register an FIR and investigate. The question of sanction will be considered at the time of taking cognizance after the police report is filed. Your role under Section 156(3) is to set the criminal law in motion, not to adjudicate on the merits of the case.

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