SC Rules On Separation of Powers and Magistrate's Powers Under Section 156(3).

While hearing a batch of petitions on hate speech, the power of magistrate to order an investigation, Supreme Court clarified and analyzied on the following issues: 1. Whether this Court can create or expand criminal offences in the absence of legislative action? 2. Whether the existing field of substantive criminal law adequately deals with offences relating to hate speech, or the field is legislatively unoccupied? 3. Whether the existing framework of criminal procedural law provides adequate and efficacious remedies to address the grievances raised by the petitioners, particularly in cases of non-registration of a First Information Report? 4. Whether a continuing mandamus is warranted in the present case?

Background: A massive batch of matters, including 13 writ petitions, special leave petitions, and several contempt petitions, all centered on the regulation of "hate speech" and "rumour-mongering" in India.

The petitioners, including Ashwini Kumar Upadhyay, argued that the existing legal framework was insufficient and sought directions for the Union of India to enact specific legislation based on the Law Commission's 267th Report and submitted that failure to enact the specific legislation leading to a legislation vacuum.

And the petitioners prayed for a "continuing mandamus" to ensure the registration of First Information Reports (FIRs) against those using inflammatory language, particularly in instances targeting religious minorities.

Analysing the 1st issue of create or expand criminal offences in the absence of legislative action, the Apex Court held that the creation of criminal offences and the prescription of punishments are exclusive functions of the Legislature. Under the Doctrine of Separation of Powers, the judiciary cannot legislate or compel the Parliament to enact laws simply because a social concern exists.

Reflecting on the 2nd and 3rd issues, the Supreme Court clarified that there is no legislative vacuum since the existing provisions, like Sections 153A, 153B, 295A, and 505 of the IPC are adequate since it give power to the Magistrate to order an investigation or the registration of an FIR under Section 156(3) CrPC.

The Apex Court held that Sections 153A, 153B, 295A, and 505 of the IPC (now corresponding to the Bharatiya Nyaya Sanhita) already penalize acts that promote communal enmity or outrage religious feelings. Further, the Apex Court also cautioned against bypassing these statutory remedies to routinely invoke extraordinary writ jurisdictions.

The judgment reaffirms that the solution to hate speech lies in the faithful enforcement of existing laws and the exhaustion of statutory remedies before invoking extraordinary writ jurisdictions, as such difficulty lies in the "selective, delayed, or inconsistent application" of these laws by enforcement agencies, rather than a lack of law itself.

The APex Court reitrated that though Article 19(1)(a) protects free speech, it does not grant a license to corrode foundational values of social harmony.

Coram: Justice Vikram Nath and Justice Sandeep Mehta.