SC dismisses Facebook India VP Ajit Mohan’s plea against summons by Assembly Panel And held th

Ajit Mohan and ors. V. Legislative Assembly National Capital Territory of Delhi and ors.

Writ Petition (C) No. 1088 of 2020, decided on 8-7-2021

BENCH- Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy. JJJ.

FACTS- Current petition is filed by the petitioners under Article 32 of the Constitution of India against the summons issued by a Committee on Peace and Harmony, constituted by the Legislative Assembly of NCT of Delhi. In the petition it is prayed that: (a) issue a writ/ order or direction in the nature of mandamus to set aside first and the second summons; (b) Issue a writ/order or direction in the nature of Prohibition restraining the committee from taking any coercive action against Petitioners in furtherance of the Impugned Summonses; (c) Issue or pass any writ, direction or order, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.”

The backdrop of the present case is set in the unfortunate communal riots in different parts of North-East Delhi in February, 2020. In the wake of these riots, the Legislative Assembly of NCT of Delhi resolved to constitute a Committee on Peace and Harmony to a “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.” The Committee received thousands of complaints which suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14-8-2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content.

Subsequently, the Delhi Assembly issued notice for appearance (“first summons”) to Ajit Mohan, Vice President and Managing Director of Facebook India. Ajit Mohan was the first petitioner in the instant writ petition. The first summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15-9-2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr. Mohan refused to appear.

In its reply, Facebook objected to the first summons and requested to recall it. This was rejected by the Delhi Assembly, and a second summons was issued. It is at this stage that a perceived element of threat was held out to Mr. Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23-9-2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be taken. Notably, during pendency of the proceedings, the two summonses issued to Mr Mohan were withdrawn and a new summons dated 3-2-2021 was issued to Facebook India alone.

ISSUES-

1. Can power of privilege extend to compel an individual, who is not a member of the House, into giving evidence/opinion that they are not inclined to state?

2. Is mere threat of “necessary action” i.e., the possibility of a breach of privilege, enough to infringe both the right to free speech and privacy?

3. Is there any lack of legislative competence of the Delhi Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners?

HELD- While dealing with all the issues court said, court notices in the context of the first issue the wordings of Article 194(3) of Constitution of India are unambiguous and clear, and thus do not require us to give our own twist or interpretation to them. These are not wordings of a statute, but that of the primary document- The Constitution. The Court held the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law; and that the stage for any possible judicial intervention had not arisen in the instant case. The Constitution has given leeway to the Legislature to define the same from time to time, but there was no compulsion qua the same. If the Legislature in its wisdom is of the opinion that it needs to be so done, they will do so. It is not for this constitutional court to nudge them in that direction. It was the Court’s opinion that it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. Further, once the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws is recognised, any act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.

The Court saw no merit in the catena of arguments that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly.

The Court observed: “This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power.” The Court was not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the Government of National Capital Territory of Delhi Act, 1991. It was Court’s opinion that the scheme of privilege has to be seen in the context of provisions of Article 239-AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other.

The Court refrained from entering into any substantial discussion on the second issue, in any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.

Considering the third issue the Court reiterated the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries (in the three Lists) cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. The Court was of the view that the recourse to Entries 1 and 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 and 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose was not disputed by anyone, and that this law and order issue related to communal riots also could not be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear.

The Delhi Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the Information and Technology Act, 2000. The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on the ground governance being in the hands of the Delhi Government.

CASES REFERRED-

1. State of Karnataka v. Union of India, 1978 AIR 68 1978 SCR (2) 1

2. Amarinder Singh v. Special Committee, Punjab Vidhan Sabha (2010) 6 SCC 113

3. Justice (Retd.) Markandey Katju v. Lok Sabha & Anr. (2017)2SCC384

4. MSM Sharma v. Dr. Shree Sri Krishna Sinha 1960 AIR 1186

5. Kalpana Mehta and Ors v. UOI (2017) 7 SCC 302

6. Maneka Gandhi v. Union of India AIR 1978 SC 597

7. R.C. Cooper v. Union of India AIR 1970 SC 564

8. N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.

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