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The concept of peace and harmony goes much beyond law and order and Police: SC

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 (Para 228(VIII)).



AJIT MOHAN &ORS V. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY OF DELHI &ORS.

WRIT PETITION (C) NO.1088 OF 2020

Decided on July 08, 2021


A Three-Judge bench comprising of Justice Sanjay KishanKaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy decided the present case. The Supreme Court dismissed the writ petition stating that there was no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se. As a consequence, the Court stated that the right of free speech, silence, and privacy still remains at large within the meaning of Part III of the Constitution.


Delhi saw an outbreak of violence between February 24th and February 29th, 2020, resulting in loss of life. The violence took on a political colour and divided the society, with people across political affiliations blaming one another. On 02.03.2020, the Legislative Assembly of the National Capital Territory of Delhi (the Assembly) constituted a Committee on Peace and Harmony (the Committee) headed by Raghav Chadha, Member of the Legislative Assembly with the objective to identify the factors of violence 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.


In the first meeting which was held on 05.03.2020, the committee received complaints that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony which lead in development of two issues, one where the Parliamentary Standing Committee on Information Technology (“Parliamentary Committee”) on 20.08.2020 issued a notice requesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President and Managing Director of Petitioner No. 2 Facebook India Online Services Private Limited, to appear before the Parliamentary Committee on 02.09.2020.


The second issue was when the Chairman of the Committee held a press conference stating that Facebook ought to be treated as a co-accused and an independent investigation should be carried out into its role in the riots and since facebook’s side was not heard, Mr. Ajit Mohan in the capacity of Vice President and Managing Director of Facebook India was summoned via a notice issued on 10.09.2020(First Impugned Summons) to deliver insights to the Committee with respect to Facebook India’s internal functioning and enforcement of policies in view of the special knowledge that he possessed but no consequences in the form of breach of parliamentary privilege were intimated in case Mr. Ajit Mohan refused to appear.


VikramLangeh, Director of Trust and Safety at Facebook, sent a reply dated 13.09.2020 in which he explained how Facebook's policies aim to protect user safety. He also emphasized a variety of mechanisms the company employs to combat hate speech. There was a contention that the role of regulating intermediaries such as Facebook fell squarely within the exclusive domain of the Union of India; in exercising that authority, the Parliament had enacted the Information Technology Act, 2000 ("the IT Act") to which was not acceptable to the committee and issued a Second Impugned Summons, due to which the present proceeding was filed by Mr. Ajit Mohan, the first petitioner, Facebook India Online Services Private Limited, which is the second petitioner and Facebook Inc., US as the third petitioner.


In his argument, Mr. Harish Salve, learned Senior Advocate suggested that the summons was meant as a way for Facebook to be included in a supplementary charge sheet. He further argued that it was all a political game and the Petitioner had no intent to become part of such a debate and stated that the Committee's actions constituted a clear and present danger of coercion, which was in violation of Petitioner No. 1's fundamental rights. He raised four issues, that (a) Does a House have a privilege to summon a person to give evidence who is not directly or indirectly part of the executive? (b)Do 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?, (c)If there does indeed exist a privilege, how is the same to be reconciled with an individual’s right to privacy and free speech? and (d)Is the House constrained by the subject matter which constitutes a part of the business of the House relating to its legislative functions?, which was analysis under three broad heads – (a) the privileges issue, (b) privilege, right to privacy and free speech and (c) legislative competence.


DrSinghvi rebutted the arguments put forth on the behalf of the petitioners stating that it is not appropriate to equate the expression “peace and harmony” with “law and order” as the former was a much broader term. In clarifying the Committee's purpose, he stated that it made only recommendations, including suggestions that would contribute to peace and harmony among the people of the region the NCT of Delhi in the future which relates to various heads of competence of the Assembly in List II and List III of the 7th Schedule. Dr. Singhvi argued that it was inappropriate for the petitioners to link competence to discuss the subject matter with privilege authority.


Dr.Dhavan concluded his arguments by submitting on this aspect that: (a) it was not his contention that conventions and broad concepts are sources of power; (b) underlying principles, however, are fundamental to both interpretation of the Constitution and powers exercised through the Government or their legislatures; (c) a recommendatory committee has a duty to inform the Central Government of the problems it encounters so that organs of Government can act in furtherance of this principle of cooperative pragmatic federalism; (d) the Committee by itself did not claim the power to punish the breach though it does possess the power to summon without penal consequences. It could at best make a recommendation which would have to be examined by the House through the process of a privileges committee. This was a routine part of every summon, only indicative of the power of the Parliament/Assembly.


The Court after hearing from both the parties made an observation that, “Facebook as a platform is in the nature of a mass circulation media which raises concerns of editorial responsibility over the content circulated through its medium. The width of the reach of published material cannot be understated or minimized. Facebook has acknowledged in their reply that they removed 22.5 million pieces of hate speech content in the second quarter of 2020 itself, which shows that they exercise a substantial degree of control over the content that is allowed to be disseminated on its platform. To that extent, a parallel may be drawn with editorial responsibility cast on other mass circulation media” (Para 150)


The Court on the issue of privilege stated that, “We may record, at the end, that there is actually no serious dispute about the per se competence of the Committee to discuss matters outside the legislative domain of the Assembly but it was with a caveat that it could not give rise to exercise of power of breach of privilege and the right to summon a non-member. That being the position, we have already noticed that any plea raised on the exercise of privilege is a preemptive strike in the absence of underlying facts. Where that situation arises in the given factual context, the petitioners could have and would be entitled to assail the same, but this Court will not indulge in an advance ruling on this aspect. We have already clarified that we are not inclined to accept the distinction between a member and non-member in the aforesaid context; and the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law. So much for the aspect of privilege”(Para 183)


On the issue of Privileges & Fundamental Rights, the court stated that, “Be that as it may, we also agree with what Dr. Singhvi contended -that this is another aspect which is premature. No coercive action has been taken against the petitioner, and none was intended if the authorised representative of the petitioners simply participated in the proceedings as a witness. Emphasis was also laid on the transparency of these proceedings in view of them being broadcasted live. The summons having been lawfully issued by an empowered committee (subject, of course to the legislative competence discussed hereinafter), the same must be answered. The proceedings are not criminal or judicial in nature as there is no accused before the Committee. Naturally, the Rules framed by the House under Section 33 of the GNCTD Act (which in turn draws strength from Article 239AA(7) of the Constitution) would be followed. Protection of proceedings before the Assembly or the Committee under Article 194 would include deposition of members or non-members.”(para 189)


The Court concluded by stating that, “We have penned down our views on the issues raised by the petitioners, but in view of the elaborate arguments and length of the judgment, we consider it appropriate to summarise the ratio/directions in the following terms:

I. There is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se.

II. The power to compel attendance by initiating privilege proceedings is an essential power.

III. Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath.

IV. In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made.

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

VI. 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.

VII. 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 I.T. Act.

VIII. 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.

IX. Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields.”(Para 228).



Utkarsh Kumar Jayaswal

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