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The Supreme Court recently Refused to quash summons issued by Delhi State Legislative Assembly to Facebook MD Ajit Mohan.

Factual Matrix:

• North East Delhi witnessed communal riots between February 24-25, 2020, causing huge loss of life and property.
• On March 2, 2020, Legislative Assembly, NCT of Delhi, constituted a 9-member Committee on Peace and Harmony under the Chairmanship of Mr. Raghav Chadha, Member State Legislative Assembly.
• The main objective of the committee was to consider situations potential to disturb communal harmony in the NCT of Delhi and suggest measures to eliminate the same.
• On the basis of complaints received, the Committee concluded that Facebook was used as a platform for “formenting hate and jeopardising communal harmony”

What followed?

• On August 31, 2020, the Committee held a press conference stating that as per complaints submitted, Facebook appears to have colluded with vested interests during the Delhi Riots in February, 2020.
• It was also the opinion of the Chairman that Facebook should be treated as a co-accused in the matter and an independent investigation be held against it.
• Consequently, Summons were issued against Mr. Mohan on September 10, 2020.
• Director of Trust and Safety, Facebook, responded to the summons call, stating that Facebook’s role as an intermediary fell within the exclusive authority of Union of India.

Committee's Take:

• Committee expressed strong disagreement with the stand of Facebook, issuing second summons on September 18, 2020.
• Reliance was placed on “Terms of Reference”, Sections 18, 37 GNCTD Act, 1991, Rule 172, Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi.
• Non-Appearance triggered filing of proceedings under Article 32 by Facebook MD Mr. Ajit Mohan seeking directions to set aside the aforementioned summons.
• Fresh and Final summons were issued to the petitioner on February 3, 2021 warning for a contempt action in case of non-compliance, under Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi.

Mohan approached the Supreme Court and sought the intervention of Court for quashing of the summons by Delhi Assembly.

Issues Identified By The Court 

• What was the scope of inquiry of the Committee?
• Whether it could be said that there is any aspect of inquiry which falls within the legislative domain of the Assembly?
• Whether the attendance of the petitioners could be compelled legitimately?

What Did The Court Broadly Say? 

1. 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

2. Facebook cannot excuse themselves from appearing pursuant to the New Summons issued to them on 03.02.2021.

3. 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.

4. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in light of the dual power structure in Delhi.

5. It is only the factum of Delhi being the capital and the sensitivities arising therefrom in respect of public order or police which has possibly persuaded these powers to be retained by the Central Government.

6. Cannot say that informed deliberation inter alia on the best measures through which online mass hate and violence in their geographical jurisdiction can be addressed, would not be within the Committee’s area of competence as it would undermine the very purpose of a vital democratic polity.

Opinion of the Court

• 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.
• Too simplistic for Facebook to contend that they are merely a platform for exchange of ideas – it has the power of not simply a hand but a fist, gloved as it may be.
• Facebook claims to be the most popular social media with 270 million registered users – width of such access cannot be without responsibility as these platforms have become power centres themselves, with ability to influence vast sections of people.
• Business model of intermediaries cannot take contradictory stand in different jurisdictions – While in the US, Facebook projects itself as a publisher seeking protection under the first amendment, in India it has chosen to identify itself as a purely social media platform, despite similar functions & services.

Ratio/Directions by the Court 

• No dispute regarding Right Of Assembly or the Committee to proceed on grounds of Breach of Privilege per se.
• Power to compel attendance by initiating privilege proceedings is an essential power.
• Members & Non-members can equally be directed to appear before the Committee and depose on oath.
• Canvassing a clash between privilege powers and Fundamental Rights – Pre-emptory.
• Assembly admittedly has no power to legislate on law and order and police in view of Entries 1 and 2 of List II, 7th Schedule, inter alia being excluded – Petitioners would have Right Not To Answer questions directly covered by these two fields.
• Regulation of Intermediaries – subject matter of IT Act, 2000.
• “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 Delhi Government.

Obiter – On Relation Between Centre & NCT Of Delhi 

• Central & the State Government have been unable to see eye to eye on governance issues in Delhi – This has been responsible for a spate of litigation and despite repeated judicial counsel to work in tandem, this endeavour has not been successful.
• Political dispensation which is in power in the State has to recognise the constitutional scheme of division of powers in Delhi which circumscribes their ability to work only within those powers.
• Maturity is required from both sides and we have to reluctantly note the absence of such maturity in this important inter-relationship.

Obiter – On Brief Synopsis & Judicial Time 

• There needs to be clarity in the thought process on what is to be addressed before the Court.
• Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides and then strictly adhered to.
• The Wren & Martin principles of precis writing must be adopted.
• If a question is raised about a legal proposition, the judgment must be relatable to that proposition – and not multiple judgments – contribution to the development of law can be nurtured by comprehensible precedent.