The Supreme Court on Wednesday maintained that though it wants hate speeches and incitement to violence to stop, it cannot pre-empt people’s right to free speech and assembly by restraining them from holding meetings or processions without first granting them an audience.

A bench of justices Sanjiv Khanna and Dipankar Datta emphasised that the top court was inclined to strengthen the guidelines laid down by it in 2018 to prevent hate crimes and instigation for violence, including hate speeches, by making nodal officers and the police authorities at the district level accountable.

“After we passed the last order (on appointment of nodal officers), it did have an impact on the ground. It (hate speech) stopped…And we want it to stop,” the bench told senior counsel Kapil Sibal, who pressed for a direction to the authorities in Maharashtra and Chhattisgarh for stopping rallies planned by Hindu Janajagruti Samiti and Bharatiya Janata Party MLA T Raja Singh later this week.

According to Sibal, the MLA from Telangana’s Goshamahal constituency was a habitual offender of hate speeches and was booked by the Maharashtra police in a separate case for allegedly making incendiary speeches at a rally in the Solapur district.

“See the kind of venom and hate that is being perpetrated. No action is being taken despite lodging of the FIR. There is no arrest, and he (Singh) keeps on. What’s the point of all this?” asked the senior counsel, requesting the court to stop the proposed rallies on January 18 and 19.

But the bench turned down Sibal’s plea. “See, they are objectionable. But some action has been taken in the other case that you are citing. But we are not going to stay the procession…Authorities will take action if there is any hate speech or incitement to violence. But it cannot be pre-emptory.”

Sibal, who was appearing for one of the petitioners in the batch of pleas relating to hate speech, argued that the guidelines on taking preventive steps and installation of CCTV cameras have not made a difference due to lack of concrete action by police.

At this point, the bench, however, pointed out that the applicant has not made Singh a party to the plea despite seeking direction against his holding processions, which is also a face of fundamental right.

“Mr Sibal, is he (Singh) a party in your application? The order you are seeking is going to affect someone. Have you made that person a party here? Your prayer is don’t grant permission to X. And if the permission is granted, withdraw it. Can we do it without hearing him? How can we pass this order without this person being a party or hearing them?” it asked Sibal, who conceded that the MLA has not been added as a party to the application.

The bench then underscored that it would be in breach of principles of natural justice to pass an order impacting a person’s rights without hearing him. “That goes against the fundamentals of natural justice,” it highlighted.

The court added that since there are already guidelines in place, it would ask the authorities concerned to remain vigilant and take appropriate steps during the rallies in Maharashtra’s Yavatmal and Chhattisgarh’s Raipur.

“It is to be noted that persons against whom allegations have been made are not made parties. Nevertheless in view of assertions made, we require authorities to be cautious of the fact that no incitement to violence or hate speech can be permitted. We accordingly direct the district magistrates and superintendents of police of Yavatmal in Maharashtra and Raipur in Chhattisgarh to take notice of the allegations and take appropriate steps as required. If necessary and deemed appropriate, police will install CCTV cameras with recording facilities so that perpetrators can be identified if anything happens,” the court said in its order.

Adjudicating a clutch of petitions seeking to curb hate speeches, the court had in November said that the Supreme Court cannot monitor the problem pan-India by dealing with scores of applications filed by individuals and groups citing various instances of hate speech. “In a country as big as India, there will be problems. But the question to be asked is whether we have an administrative mechanism to deal with it,” it noted on November 29, adding that the mechanism envisaged under the 2018 judgment ought to be strengthened.

The 2018 judgment in the Tehseen Poonawalla case laid down extensive guidelines and preventive steps to be taken by states to curb instances of mob lynching and hate speeches.

The court had at the time sought to know the status of compliance by the Centre and states with a slew of previous orders requiring nodal officers , not below the rank of superintendent of police, to maintain case diary of hate speeches, installing CCTVs at places where the police apprehended trouble and sensitising police about reporting hate speeches to the nodal officer. It had further asked the Centre to propose guidelines on how nodal officers could aid in preventing hate speeches by way of quick action.

To be sure, there is no definition of hate speech under the Indian Penal Code and the offenders are booked under the provisions dealing with creating enmity between two different groups, acts intended to outrage religious feelings and statements conducive to public mischief.

The lead petition in the case was filed in 2021 by advocate Ashwini Kumar Upadhyay, demanding a specific definition and a separate law on hate speech.

The Law Commission of India, in its 267th Report that was released in March 2017, suggested that criminal law should be amended to introduce specific legal provisions to deal with hate speech. It proposed two new provisions to penalise instances of hate speech, entailing a jail term up to two years. The commission sought to define hate speech as an incitement to hatred or discrimination, primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like. The government, however, is yet to introduce specific provisions on hate speech in the penal law.