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:

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