Context of the Case
- In January 2026, prominent activists, journalists, and religious leaders urged the Supreme Court of India to recognise hate speech as a “constitutional tort”, not merely a law-and-order issue.
- Petitioners highlighted the rise in hate speech incidents, particularly at religious congregations, and sought regulatory and accountability mechanisms.
Relevance
- GS 1: Social harmony, communal relations, and challenges to fraternity in a diverse society.
- GS 2: Fundamental Rights, Supreme Court jurisprudence, constitutional torts, governance and rule of law.
- GS 3: Internal security implications of hate speech and its linkage with communal violence.
What is a Constitutional Tort?
Conceptual Meaning
- A constitutional tort is a judicially evolved remedy where the State is held vicariously liable for actions or omissions of its agents that violate fundamental rights.
- It moves beyond criminal prosecution to public law compensation and accountability, rooted in Articles 14, 19, and 21.
Judicial Evolution in India
- Recognised through landmark cases such as:
- Rudul Sah v. State of Bihar (1983)
- Nilabati Behera v. State of Odisha (1993)
- D.K. Basu v. State of West Bengal (1997)
- Courts held that monetary compensation can be awarded for State failure to protect constitutional rights.
Why Hate Speech is Argued as a Constitutional Tort ?
Discriminatory Character of Hate Speech
- Petitioners argued that hate speech is inherently discriminatory, targeting individuals or groups based on religion, caste, ethnicity, or identity.
- Such speech violates:
- Article 14 (Equality before law)
- Article 15 (Non-discrimination)
- Article 21 (Dignity and life)
Beyond Law and Order Paradigm
- Treating hate speech as a routine policing issue reduces it to crowd control or preventive detention, ignoring its systemic and structural harm.
- Petitioners stressed that hate speech erodes constitutional morality, not just public order.
Failure of Existing Legal and Administrative Framework
Supreme Court’s 2022 Directions
- In October 21, 2022, the Supreme Court directed States to:
- Register suo motu FIRs against hate speech that incites communal violence
- Act irrespective of religion or political affiliation of offenders
Ground-Level Non-Compliance
- Petitioners cited persistent inaction by police despite prior knowledge of habitual offenders and recurring hate-speech events.
- Common administrative failures include:
- Refusal to register FIRs
- Invocation of weaker penal provisions
- Delayed investigations
Hate Speech and Hate Crimes: Empirical Link
Causal Relationship
- Petitioners argued a direct correlation between hate speech and hate crimes, where incendiary public speeches often precede:
- Mob violence
- Communal riots
- Targeted attacks
Constitutional Implications
- Failure to prevent hate speech despite foreseeability constitutes State negligence, engaging vicarious liability under constitutional tort doctrine.
Governance and Federal Accountability Issues
Police as a State Subject
- Public order and police fall under the State List, but constitutional rights impose non-negotiable obligations on States.
- Repeated inaction suggests institutional complicity or abdication of constitutional duty.
Need for Judicial Oversight
- Petitioners urged continued Supreme Court monitoring, arguing that mere advisory directions lack enforceability.
Ethical and Democratic Dimensions
Impact on Constitutional Morality
- Hate speech undermines the values of fraternity, secularism, and dignity, enshrined in the Preamble.
- Normalisation of hate corrodes democratic discourse and legitimises exclusion.
Free Speech vs Harm Principle
- While Article 19(1)(a) protects free speech, Article 19(2) permits reasonable restrictions to prevent:
- Public disorder
- Incitement to violence
- Harm to social harmony
- Hate speech falls squarely within constitutionally permissible restrictions.
Arguments Against Overreach (Counterview)
- Expanding constitutional tort doctrine may:
- Increase judicial overreach into executive functions
- Create chilling effects on legitimate speech
- Raise concerns of subjective interpretation
- Hence, safeguards and clear doctrinal thresholds would be necessary.
Way Forward
Legal and Institutional Measures
- Develop clear judicial standards to identify hate speech triggering constitutional tort liability.
- Fix personal accountability of supervisory police officers for non-compliance with court directions.
Preventive and Structural Reforms
- Mandatory videography and prior permission for large religious congregations with history of hate speech.
- Independent monitoring mechanisms under State Human Rights Commissions.
Strengthening Constitutional Culture
- Training law enforcement in constitutional values and hate-crime sensitivity.
- Reaffirmation of fraternity and dignity as enforceable constitutional norms.
