In December 2021, the Supreme Court asked the Delhi high court to decide expeditiously, “preferably within a period of three months”, a petition seeking criminal action against political leaders accused of making inflammatory speeches in the period surrounding the northeast Delhi riots.The case remained before the high court for nearly five more years.On Monday (October 5), the high court dismissed seven petitions, and its reasoning reaches well beyond them. The judgment converts the Supreme Court’s counsel of restraint on hate speech into a working rule of closure for writ courts. Justices Vivek Chaudhary and Manoj Jain reached that result through three steps in reasoning. Each step can be defended on its own, yet together they leave a writ petitioner with very little room.The bench declined to direct FIRs against politicians accused of inflammatory speeches before the February 2020 violence in north-east Delhi. It also refused an independent probe into the Delhi Police’s conduct, and further orders on evidence and compensation. The reasoning rests on the Supreme Court’s April 29 ruling in Ashwini Kumar Upadhyay v. Union of India. Justices Vikram Nath and Sandeep Mehta delivered that ruling on a batch of petitions seeking judicial directions against hate speech.The first move: A precedent read wider than its factsAshwini Kumar Upadhyay decided two distinct things: As a matter of principle, it held that existing criminal law covers hate speech and that grievances over unregistered FIRs belong before magistrates. As a matter of fact, it dealt with one complaint, filed by Communist Party of India (Marxist) (CPI (M)) leader Brinda Karat. That complaint concerned speeches by two Bharatiya Janata Party (BJP) leaders: Anurag Thakur’s speech of January 27, 2020, and Parvesh Verma’s of the following day.The petitions before the high court concerned many more speeches than those two. The lead petition, by Shaikh Mujtaba Farooq, also named BJP leaders Mishra and Abhay Verma. A rival petition, filed by Lawyers Voice, sought FIRs against several opposition figures. It named Sonia Gandhi, Rahul Gandhi, Priyanka Gandhi Vadra, Manish Sisodia, Amanatullah Khan, Waris Pathan, Akbaruddin Owaisi and Mehmood Pracha. None of the speeches attributed to these leaders had been placed before the Supreme Court.The high court nevertheless held that the issue overlapped with the precedent “in every which way”, legal, factual and procedural. The legal overlap is evident, since both cases turn on remedies for unregistered FIRs. The factual overlap, however, holds for only two of the many speeches placed on record. By treating the precedent as covering the whole field, the bench spared itself the task of examining each remaining speech.One omission in the judgment complicates this reading of the precedent. The Supreme Court had agreed with the police that the Thakur and Verma speeches disclosed no cognisable offence. The high court’s judgment nowhere mentions that conclusion, and records only that the Supreme Court directed no FIR. The bench may have wished to avoid extending a finding on two speeches to others, since it reserved the merits of every individual complaint.The second move: A higher threshold in the higher forumThe bench accepted that Lalita Kumari v Govt of U.P. (2013) obliges the police to register an FIR once information discloses a cognisable offence. A cognisable offence is one for which the police may arrest without a warrant. Ashwini Kumar Upadhyay restates the corollary: the truth and reliability of the information are matters for investigation, and cannot justify refusal at the threshold.When it came to its own jurisdiction, however, the high court applied a more exacting test than the one binding the police. The transcripts, video recordings and clippings before it were excerpts, it said, whose completeness and authenticity remained unestablished. Writ jurisdiction under Article 226 of the Constitution is discretionary, and the bench found no exceptional circumstance to exercise it.The distinction between a statutory duty and a discretionary remedy is doctrinally sound. Its practical effect is nevertheless worth noting, because the two standards now diverge sharply. A police officer must act on information alone, whereas a constitutional court asked to enforce that duty expects authenticated proof. The citizen who turns to the writ court because the police declined to act therefore meets the stricter standard there.The bench’s remark on the petitioners’ motives raises the threshold in a similar way. It found “an element of political selectivity” in the speeches each petitioner chose to target, without recording a finding on motive. The duty under Lalita Kumari, however, turns on what each piece of information discloses, whoever brings it. Rival petitions naming rival politicians had together placed speeches from every side before the court. That circumstance could equally have supported even-handed scrutiny of all of them.The third move: Delay as its own justificationThe passage of “more than six years” recurs as a reason in the passages on FIRs, the probe and compensation. The bench noted 757 registered cases, with chargesheets in 369 and investigation continuing in 249 as on February 19, 2026. Courts had returned 22 convictions, 108 acquittals and 16 discharges. A wholesale transfer now, it held, would unsettle pending trials and could prejudice victims, witnesses and accused alike.That concern is real in 2026, although it arises largely from the pendency of the petitions themselves. On February 26, 2020, Justices S. Muralidhar and Talwant Singh heard a petition by Harsh Mander and Farah Naqvi. They had the speeches played in court and asked the police to take a “conscious decision” on FIRs. In December 2021, the Supreme Court asked the high court to decide one of the pending petitions within three months. Monday’s judgment refers to neither the 2020 hearing nor the Supreme Court’s direction.The same figures admit a second reading, since they show nearly five acquittals for every conviction, and a third of cases still under investigation. The bench treated them as evidence that criminal law had “taken its own course”. It left unexamined what that ratio might indicate about the quality of investigation, which was the petitioners’ central grievance.On the police, the bench required material linking misconduct during the riots to bias in the later investigation. No senior or supervising officer, it noted, was alleged to have directed the acts or influenced the probe. The Delhi Minorities Commission’s report deserved consideration, the bench said, yet fell short of establishing institutional taint. This test requires petitioners to prove that the investigation was compromised from within. Evidence of that kind lies largely with the police, and an independent probe is the usual means of obtaining it.What remains of the statutory routeThe bench directed aggrieved citizens to the route mapped in Sakiri Vasu v State of U.P. (2007). That route runs from the senior police officer to the magistrate under Section 156(3) of the Code of Criminal Procedure (CrPC). A private complaint before the magistrate is the final step.The record before the bench contains only one instance of a petitioner following that route to its end, which is Karat’s. She complained to the police on January 29, 2020 and then moved a magistrate. The magistrate dismissed her application on August 26, 2020 for want of prior sanction, and the high court agreed on June 13, 2022. In April this year, the Supreme Court held that both courts had erred in insisting on sanction. It then decided the merits itself, although it recorded that the trial court had never examined them.Her review petition was dismissed in chambers on July 29. In The Indian Express on May 11, Karat argued that the finding rested on a flawed police report. Her objections to that report, she wrote, were never answered at any stage. The statutory route thus took Karat through three courts over six years, and ended without any investigation of the speeches.For the speeches that the Supreme Court did not examine, a fresh complaint before a magistrate may face a further obstacle. Section 468 of the CrPC bars cognisance after three years for offences punishable with up to three years’ imprisonment. The Bharatiya Nagarik Suraksha Sanhita retains the provision as Section 514. Section 153A of the Indian Penal Code, which penalises the promotion of enmity between groups, falls in that class. Courts may extend the period in the interests of justice under Section 473. The judgment preserves every individual’s liberty to pursue remedies in law. It does not consider whether limitation may defeat that liberty for speeches delivered more than six years ago.The unanswered question: Can an individual remedy cure selective enforcement?Section 156(3) can be an effective remedy when a police station improperly refuses to register a particular complaint. A judicial magistrate can order an investigation and exercise supervisory jurisdiction over its progress. That mechanism is important precisely because it places an independent judicial authority between the complainant and the investigating agency.The harder situation arises when the allegation concerns a pattern rather than one refusal. If similarly situated speeches attract sharply different police responses, or if complaints involving politically influential speakers repeatedly travel through several layers of litigation before investigation even begins, the problem starts to resemble the “even-handed enforcement” deficit identified by the Supreme Court rather than an isolated administrative lapse.Neither Ashwini Kumar Upadhyay nor the Delhi high court judgment clearly identifies the point at which a succession of individual enforcement failures becomes an institutional failure serious enough to warrant constitutional intervention.The high court found that threshold had not been crossed in the cases before it. It also rejected the demand for an independent Special Investigation Team (SIT) because allegations concerning individual police personnel did not, in its view, establish that the Delhi Police’s investigative machinery as a whole had become compromised. The delay does not establish that the high court should have ordered FIRs or constituted an SIT. It does, however, complicate an outcome in which litigants are now told that statutory remedies remain available several years after the underlying complaints first arose.Ashwini Kumar Upadhyay located the hate speech problem in enforcement and entrusted it to the police and magistrates. Constitutional courts, it said, may step in upon a “demonstrated failure” of statutory duty, ordinarily after statutory remedies are exhausted. The Supreme Court did not specify what a petitioner must show in order to demonstrate such a failure.Monday’s judgment suggests how demanding that standard may prove in practice. Neither a police report finding no offence, nor a magistrate’s refusal on a ground later held erroneous, was enough to meet it. The six years for which the petitions remained pending counted against the petitioners instead of supporting their grievance. If circumstances such as these fall short, the safeguard that the Supreme Court reserved for constitutional courts may seldom come into play. An appeal, if any petitioner files one, would bring that question back to the Supreme Court, which framed the scheme.V. Venkatesan is a contributing editor at Supreme Court Observer.