There is something unusual about the Supreme Court’s April 2026 judgment in the hate speech cases. It correctly diagnoses the problem. Then it applies a solution that replicates, at a different level of government, the very failure it just identified.The bench of Justice Vikram Nath and Justice Sandeep Mehta, deciding a batch of writ petitions that had been before various Supreme Court benches for six years, dismissed the applications seeking new criminal legislation on hate speech. The creation of criminal offences, the court held, “lies squarely within the legislative domain”. Courts cannot assume that function.The bench found no legislative vacuum: the Bharatiya Nyaya Sanhita, 2023 and the Representation of the People Act, 1951 already penalise acts that promote enmity, outrage religious feelings, or disturb public order. The problem, the court said plainly, is that the law, though present, is not being enforced. That is a correct and important finding. It is also where the judgment’s difficulty begins.What the court had already triedThe 2026 judgment arrives in a context of a series of directions from the Supreme Court, generated over the preceding four years in relation to this batch of cases, seeking to compel state police forces to do what the law already required.In October 2022, the court directed all states and Union Territories to register FIRs suo motu when speeches attracting offences under Sections 153A, 153B, 295A, and 505 of the Indian Penal Code occurred, even without a formal complaint. The bench warned that delay in doing so would be treated as contempt of court.By November 2023, the Union government filed a status report confirming that 28 states and Union Territories had appointed Nodal Officers in compliance with an earlier order from the Tehseen Poonawalla proceedings. Contempt petitions had by then already been filed over non-compliance.The court’s suo motu FIR direction was, in other words, an attempt to solve the enforcement problem by making enforcement judicially supervised. It did not work well. The contempt petitions that followed were evidence of that. Nodal officers were appointed only on paper. Suo motu FIRs were not registered at the scale the directions contemplated.Also read: Full Text | SC Judge Justice Abhay S. Oka on Hate Speech for Electoral Gains and the Right to DissentThis is the context in which the April 2026 judgment arrived. The court closed most of the contempt petitions. Several were given a two-week window to respond; a follow-up date of May 19, 2026 was set. The high courts, the judgment said, are encouraged to issue practice directions to ensure that the principles it had articulated are implemented at the ground level.The design failureReading that solution carefully reveals that the court correctly identified the problem as enforcement, not law. Its response was to close its own accountability mechanism, the contempt jurisdiction it had been exercising, and delegate enforcement responsibility to the high courts through an unspecified, non-mandatory encouragement to issue practice directions.Thus instead of solving the enforcement problem, the court stopped at describing what it hoped would happen.The contempt jurisdiction the court had been exercising was, whatever its limitations, the one mechanism through which states faced a direct accountability relationship with the Supreme Court on hate speech enforcement. Closing those petitions removes that mechanism. No replacement accountability structure was put in place. The high courts were not given specific directions. They were not told what minimum standards their practice directions should meet. They were not asked to report back. They were “encouraged.”Twenty-five high courts issuing different practice directions, with different emphases, different procedural requirements and different enforcement mechanisms will produce 25 different enforcement regimes. In some jurisdictions, practice directions will be robust and actively monitored. In others, they will be drafted, published and largely ignored, just as the National Nodal Officer framework that preceded them was largely ignored. Such fragmentation of enforcement can only replicate the coordination problem.The structure of the court’s own suo motu direction from 2022 was actually better designed than what replaced it: a single national standard, directly enforceable through contempt and applicable to all states regardless of political orientation. However, states produced a compliance failure based on the calculation that the cost of non-compliance with a Supreme Court direction was lower than the political cost of prosecuting their own supporters for hate speech. The court’s response to that compliance failure was to dismantle the directing mechanism and substitute it with hope.Separation of powers without enforcementThe court’s invocation of separation of powers in declining to create new criminal offences is correct and entirely appropriate. Hate speech legislation is the legislature’s job. Courts cannot and should not be writing criminal law. The 2026 judgment is on firm constitutional ground when it refuses to do so.But separation of powers is not a complete answer to the enforcement problem. The law under which a trial for hate speech is expected to proceed exists. The investigating powers of the police exist. The magistrate’s power to direct investigation under Section 175 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which the court clarified does not require prior government sanction) exists. What is missing is the will, across multiple state governments, to use these powers against politically connected speakers.That is a political problem as much as a legal one. The court cannot compel political will through practice directions any better than it could through contempt proceedings. But the contempt mechanism at least made non-compliance visible and created a direct institutional cost. Practice directions issued by high courts, particularly in states where the government has shown consistent disinclination to prosecute hate speakers, are not going to change the political calculus.Who bears the costThe communities most affected by the hate speech that has been the subject of this litigation are, disproportionately, religious minorities, particularly Muslims, who have been the target of speeches at religious gatherings and public events calling for economic boycotts, describing them as demographic threats and there are documented cases of people calling for violence against them.These communities brought or supported the petitions before the Supreme Court precisely because they had already tried every other available mechanism: complaints to the police, applications to magistrates, public appeals. They sought from the Supreme Court an institutional backstop that would function when every other mechanism had failed. The suo motu FIR direction was an imperfect version of that backstop. It was frequently flouted. But its existence created at least the possibility of contempt proceedings when it was not followed.Also read: Watch: How the Supreme Court Has Interpreted Hate Speech Over the YearsThe 2026 judgment closes that chapter. The advice to high courts to issue practice directions is now the primary enforcement design. For communities in states governed by administrations that have shown no inclination to enforce existing hate speech law, the practical question is: what has changed? The answer the judgment provides is: the nature of the institutional actor giving the direction.Instead of the Supreme Court directing states, high courts will encourage practice directions. That is not an obvious improvement for someone who has watched a local police station decline to register an FIR for a speech that called for an economic boycott of their business.The judgment’s better instinctsThe court clarified one significant legal point that may have practical value: directing an investigation under Section 175 BNSS does not amount to “taking cognisance” of an offence and therefore does not require prior government sanction. This corrects a misreading that had been used in some states to delay or prevent FIR registration. magistrates now have a clearer basis on which to order investigations when police fail to act. That is a genuine, if modest, contribution.But one procedural clarification is not a substitute for an enforcement architecture. And the high court’s practice direction route, if it produces anything useful, will take months to develop in each jurisdiction. It will also vary widely in quality and ambition and it will face the same compliance problem the Supreme Court’s directions faced. Since enforcement ultimately depends on state government actors whose incentives do not run towards prosecution.Diagnosis without treatmentThe 2026 hate speech judgment correctly says the problem is enforcement, not law. That much is right, and this needed to be stated clearly. But it then closes the court’s own enforcement mechanism and substitutes a non-binding encouragement to high courts to try something.The communities that brought these cases and the lawyers who argued them over six years understood that the law was there. They came to the Supreme Court because the law was not being applied. The judgment’s closing position is, in effect that the court agrees the problem is application, and yet it leaves application to the same mechanisms that were failing when the petitioners arrived, and then returns them to the respective high courts.That is not an enforcement solution. It is an exit.Kshitij Saruparia is a graduate from NALSAR University of Law, Hyderabad.