08 Jul 2121

Delhi Legislative Assembly’s Committee can only examine the factors involved in Delhi Riots and formulate recommendations but cannot act as a prosecuting agency - Supreme Court of India

Case : Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors. Writ Petition (C) No. 1088 of 2020

Court : Supreme Court of India

Bench : Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy

Decided on : 08 Jul 2121

Relevant Statues

Article 14, 19(1) (a), 21, 32, 105, 194, 212, 239AA of the Constitution of India, 1950

Section 2(1) (w), 69A of the Information Technology Act, 2000.

Sections 18, 33, 37 of the Government of National Capital Territory Act, 1991

Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi, 2002

Brief Facts & Procedure History

1. The relevant seminal facts state that due to the eruption of violence in Delhi between 24th and 29th February 2020 also with communal riots, the Legislative Assembly of the National Capital Territory of Delhi resolved to constitute a Committee on Peace and Harmony under the chairmanship of Mr. Raghav Chadha on 02.03.2020. Their objective was to detect what happened and formulate recommendations. The Committee received thousands of complaints which inter alia suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. Further, an article was published in the Wall Street Journal on 14.8.2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” suggesting a broad pattern of favouritism towards the ruling party and Hindu hardliners as well as made serious allegations of lapses on the part of Facebook India in addressing hate speech content.

2. Therefore, on 20.08.2020, the Parliamentary Standing Committee on Information Technology issued a notice for appearance to Mr. Ajit Mohan, Petitioner No. 1, Vice President and Managing Director of Petitioner No. 2, Facebook India Online Services Private Limited, seeking Facebook India’s views on “safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space”. Petitioner No. 1 offered his views before the Parliamentary Committee.

3. On 31.08.2020, the Chairman of the Committee held a press conference where he stated that it prima facie appeared that Facebook had colluded with vested interests during the Delhi riots in February 2020. Consequently, notice for appearance was issued on 10.09.2020 by the Assembly to Mr. Ajit Mohan in the capacity of Vice President and Managing Director of Facebook India. One Mr. Vikram Langeh, Director of Trust and Safety, Facebook sent a reply dated 13.09.2020 emphasising that Facebook’s internal policies seek to protect user safety and security and also emphasised the different mechanisms it employs to tackle hate speech content. The First Impugned Summons was requested to be recalled.

4. Subsequently, the Committee formulated a reply to Facebook’s response on 18.09.2020, addressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The three annexures enclosed with the reply were: (a) Terms of Reference of the Committee; (b) Sections 18 and 37 of the Government of National Capital Territory Act, 1991; and (c) fresh summons issued to Mr. Ajit Mohan under Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of National Capital Territory of Delhi. He was asked to appear before the Committee on 23.09.2020 in the “spirit of democratic participation and constitutional mandates” and also stated that the non-compliance would be treated as a breach of the privilege of the Committee and necessary action would be taken.

5. Hence, Mr. Ajit Mohan filed the present proceedings under Article 32 of the Constitution of India as the first petitioner, in his capacity as the Vice President and Managing Director of Facebook India Online Services Private Limited, which is the 2nd petitioner.

The Issue(s) of the Case

Whether the powers of privilege extend to summoning an individual and compelling them to give evidence on matters of fact or seek their opinion on any subject matter?

If such privilege exists, how is the same to be reconciled with an individual’s right to privacy and free speech?

Whether the House is constrained by the subject matter which constitutes a part of the business of the House relating to its legislative functions?

The Observations of the Court

The Honourable Supreme Court observed the following:

1. Observed the Affidavit placed before the Court seeking withdrawal of the two impugned summonses issued to Petitioner No.1 dated 10.09.2020 and 18.09.2020 and a fresh notice was issued to Petitioner No. 2, i.e. Facebook India on 03.02.2021.

With respect to Issue 1,

2. Disagreed with the line of argument 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.

3. Took cognizance of the fact that only summons has been issued for appearance before the Committee. Therefore, the exercise of any privileged power is itself in question. Also even if there was any breach of privilege recorded by the Committee, it can only make a recommendation to the Assembly. The Assembly would be entitled to consider whether it is a fit case to exercise the power of breach of privilege.

4. Contemplated this case to be a preventive endeavour by the Petitioner to preclude the Respondents from even considering the aspect of privilege by seeking the Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power.

5. By referring to the case of Kalpana Mehta and Ors. v. Union of India and Ors., (2018) 7 SCC 1, the Court witnessed the significance of the Committees stating that they are the extension of the legislature itself and opined that the Petitioners cannot be considered as an outsider.

6. Disagreed with the contention of the Petitioners to create an artificial division between Assembly’s core/essential and non-essential functions, with any restrictive clauses being placed on the deliberations of the committees.

7. Contemplated that the scheme of the privilege powers of the Assembly has to be seen in the context of provisions of Article 239AA of the Constitution of India, 1950 as well as the Government of National Capital Territory Act, 1991. By referring to the case of C. Subramaniam v. The Speaker, Madras Legislative Assembly, AIR 1969 Mad 10, the Court opined that the stage for any possible judicial intervention has not arisen in the present case.

With respect to Issue 2,

8. Concurred with the Respondent that no coercive action has been taken against the petitioner yet and none was intended if the authorized representative of the petitioners simply participated in the proceedings as a witness. The Court also witnessed the transparency of these proceedings by being broadcasted live.

9. Hence, the summons having been lawfully issued by an empowered committee then the same must be answered. The complete plea of the petitioners is premature as nothing happened other than them having been asked to appear before the Committee.

10. Reference was made to several precedents such as MSM Sharma v. Dr. Shree Sri Krishna Sinha, AIR 1960 SC 1186; N. Ravi v. Legislative Assembly, (2005) 1 SCC 603; In re. Special Reference 1 of 1964, AIR 1965 SC 745.

With respect to Issue 3,

11. Disagreed with the view that the petitioners cannot be drawn into what is perceived to be a political divide as Facebook is a platform where such political differences are reflected. Similarly, the Court rejected the plea that an Assembly must confine itself to the core function of legislation.

12. Opined that the recourse to Entries 1 & 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 & 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.

13. Contemplated the right of the Committee to the extent that there is an obligation on the petitioners to respond to the summons. But did not permit the proceedings to go on in a manner that encroaches upon the prohibited entries. It further recognised that the inquisitorial and recommendatory powers of the Committee can be utilised under the principle of better governance.

14. With respect to the Terms of Reference, the Court opined that it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence as it is the function of the police.

15. In regard to the statements made by the Chairman of the Committee during the press conference, the Court opined that they are completely outside the remit of the Committee and should not have been made.

The Decision held by the Court

The Honourable Supreme Court issued the following directions:

1. The power to compel attendance by initiating privilege proceedings is an essential power and there is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se.

2. Canvassing a clash between the privilege powers and certain fundamental rights is also preemptory in the present case.

3. The 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 Technology Act, 2000.

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