Supreme Court: A 3-Judge Bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ. has held that representatives of Facebook will have to appear before the Committee on Peace and Harmony constituted by the Delhi Legislative Assembly. At the same time, the Court felt constrained to put certain fetters qua the exercise sought to be undertaken by the Committee.
The instant petition challenged the notices issued by the Committee directing the petitioners to appear before it. The Conclusion of the Court is delineated below, after which follows a detailed analysis of the controversy and the Court’s discussion and opinion.
(i) There is no dispute about the right of the Delhi 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 of the Committee 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 v. T.N. Legislative Assembly, (2005) 1 SCC 603.
(vii) 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.
(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.
Disruptive Potential of Social Media
In the opening paras, the Court noted that,
“[W]hile social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation.
Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such ‘debates’, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth.”
Later, the Court also said that the unprecedented degree of influence of social media necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. Our country has a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role.
Use of Algorithms and the Role of Facebook
The Court rejected the simplistic approach adopted by Facebook ─ that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information. The Court said that companies like Facebook cannot deny that they use algorithms (sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content.
Factual Context and the Writ Petition
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 the Mr Ajit Mohan, Vice President and Managing Director of Facebook India. Mr 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.
It is this second summons which triggered the filing of the instant proceedings under Article 32 of the Constitution of India. It was prayed that (a) the first and the second summons be set aside; (b) the Delhi Assembly be restrained from taking any coercive action against the petitioners in furtherance of the impugned summons. 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.
Analysis and Opinion
Contradictory stand in different jurisdictions not acceptable
“Facebook has the power of not simply a hand but a fist, gloved as it may be.”
The Court was not convinced by the simplistic approach of Facebook, and was of the view that the business model of intermediaries like Facebook being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the USA, Facebook projected itself in the category of a publisher, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. The Court said:
Role of Facebook need to be looked into
Turning to the incident at hand, the Court said that the capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails.
Three broad heads
(a) Issue of Privilege
The privilege issue arose out of the plea advanced by the petitioners that both, the first and the second summons, were to summon petitioners with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that he is not inclined to state.
While on this, the Court noted that the wordings of Article 194(3) of the Constitution of India are unambiguous and clear. 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 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. 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.
Noting that only a summons has been issued for appearance before the Committee and the question of any privilege power being exercised is yet far away; 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 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.
(b) Privileges, Free Speech and Privacy
Petitioners sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. It was submitted that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.
The Court refrained from entering into any substantial discussion on this point, as such issue is also a subject of reference pending consideration before a 7-Judge Bench.
(c) Legislative Competence
This head dealt with the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the Seventh Schedule. The bedrock of petitioner’s submissions was based on the alleged 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. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings.
On this, 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.
“Peace and Harmony” as opposed to “Law and Order”
The respondent’s argument was premised on a broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order.
The moot point was whether the expression “peace and harmony” can be read in as expanded a manner as respondent sought to do by relying a on a number of Entries in List II and List III. The Court had no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists.
The divergent contentions lead the Court to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police to undertake a concerted effort albeit not to the extent as canvassed by the respondents. Facebook cannot excuse themselves from appearing pursuant to the new summons issued to them on 3-2-2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues.
The Court was of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule.
Terms of Reference of the Committee on Peace and Harmony
The Court discussed that a part of the Terms of Reference of the Committee on Peace and Harmony was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain.
While respecting the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, the Court was of the view that it could not permit the proceedings to go on in a manner that encroaches upon the prohibited entries. The Court did not seek to control how the Committee proceeds. In fact, the Committee was yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what persuaded the Court to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit.
The Court found that para 4(vii) of the Terms of Reference was a troublesome aspect. It read: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence”.
It was held by the Court that clearly 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. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court.
In order to justify the legislative competence and the remit of the Committee, the respondents practically gave up this para 4(vii) and the Court made it clear that this cannot be part of the remit of the Committee. It was also recorded that by issuing the new summons which withdrew the earlier summons, fallacies in the notices stood removed.
Press-conference by Chairman of the Committee
The Court noticed that the statements made by the Chairman of the Committee during the press conference on 31-8-2020 could not be diluted or brushed aside. It was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. He further said: “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation”, and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filed considering Facebook as a co-accused”.
Such statements and conclusions, as per the Court, were completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners could also not be doubted. Such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things.
Putting fetters qua the exercise undertaken by the Committee
In view of the aforesaid, while giving the widest amplitude in respect of inquiry by a legislative committee, the Court was constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself could be claimed to be vitiated.
The Court said that the Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. This aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge.
In any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings.
The Court expressed its confidence that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further.
The writ petition was accordingly dismissed. [Ajit Mohan v. Delhi Legislative Assembly, Writ Petition (C) No. 1088 of 2020, decided on 8-7-2021]
Tejaswi Pandit, Senior Editorial Assistant has reported this brief.