Two recent judicial directives pertaining to hate speech were illuminating — but not reassuring. While dismissing a clutch of petitions underlining instances of inflammatory speeches by State representatives in recent times, the Supreme Court recently said that the idea that there exists a legislative vacuum when it comes to act against such transgression is flawed. The highest court is correct on this point. There are enough legislative instruments to deal with hate speech: the provisions in the Bharatiya Nyaya Sanhita are a case in point. Invoking the doctrine of separation of powers, the apex court firmly located the issue within the domain of the legislature, stating that it is now up to lawmakers to decide whether the malaise needs to be treated with sharper legislative tools. But are legislators keen to act on the matter? This is a question that must weigh on the minds of not only the people but also the judiciary, especially since the Supreme Court pointed out, even on this occasion, that lacunae exist in the implementation of legal instruments. That the court has also stated that no objectionable case can be made out against Anurag Thakur and Parvesh Verma of the Bharatiya Janata Party for their allegedly toxic speeches during the public protests against the Citizenship (Amendment) Act compounds matters further. In a nation where elected legislators are loath to curb inflammatory remarks, could such judicial reprieve grant a sense of impunity to mischief-mongers?

There is more to chew on. Has the judiciary’s position on hate speech, a contagion harnessed by the political class that is eating into India’s pluralist body politic, been consistent? There is no doubt that the courts have expressed concern about such loaded statements consistently. In 2023, in a landmark verdict, the Supreme Court had directed states and Union territories to ensure that the police suo motu register first information reports on communally-charged statements. This heartening verdict was the need of the hour given the seeming institutional inertia to act against hate speech. But the court has since also made it clear that it cannot be expected to take up the mantle of repeated interventions, effectively substituting other institutions that have the mandate to act. The court’s restraint and willingness to goad the legislature to act since then is constitutionally sound. But what happens when the other organs fail to keep their end of the bargain?