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‘Delhi committee can’t hold hearings on central subjects’: Ajit Mohan, Facebook tell Supreme Court

The Supreme Court has directed the Delhi Legislative Assembly’s Committee on Peace and Harmony to not hold hearings deliberating Facebook’s alleged role in the Delhi riots until further orders, Bar and Bench and LiveLaw reported. It had ruled so in response to a petition filed by Facebook India head Ajit Mohan, who had been summoned by the committee for a hearing scheduled on Wednesday (September 23). 

It is learnt that Mohan, in his petition, had argued that the committee’s summons to him are an overreach by the state government as public order in Delhi is the prerogative of the Union Ministry of Home Affairs. Thus, Mohan and Facebook have asked the Supreme Court to quash the summons. They have also argued that the summons are in violation of Mohan’s fundamental rights to free speech and privacy.

Mohan and Facebook’s petition — filed on September 22 —  was heard by a three-judge bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari. 

After hearing from the counsels of the committee, Facebook and Mohan, the Court reportedly issued notice in the matter, and directed the committee to not hold a meeting on the matter until further orders. The matter will be heard next on October 15. 

What is this about?

The Delhi’s Peace and Harmony Committee has held two hearings to explore the possible role of Facebook in inciting violence during the northeast Delhi riots that transpired in February this year. The committee was formed in the aftermath of the riots, in an attempt to promote and maintain peace in the city-state. The committee had taken up the matter after the Wall Street Journal reported last month that Facebook had refused to take down hate speech posted by leaders of the ruling Bharatiya Janata Party (BJP).

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In August, it held two hearings where it heard from several journalists on the matter of Facebook’s content moderation policies and whether it had deliberately failed to curtail hate speech on its platform. On August 31, after conclusion of the second hearing, Aam Aadmi Party (AAP) MLA and committee chairperson Raghav Chadha declared that Facebook was prima facie guilty of aggravating the riots. The committee then issued summons to Ajit Mohan to appear before it to present Facebook’s version on the matter.

On the scheduled date of this hearing, September 15, Mohan was a no show. Facebook chose to reply to the committee in the form of a letter, in which it requested the committee to recall its summons since the subject of social media platforms was being considered by the Parliamentary Standing Committee on Information Technology, and that the subject of communication itself is part of the Union List, and thus within the purview of the central government, not the state. 

After reading out Facebook’s letter in public (available here), Chadha said Mohan would be issued one more summons, and if he failed to appear before the committee, it would be treated as breach of the Assembly’s privileges. He also called Mohan’s refusal to appear before the committee an “insult” against the Delhi Assembly and the state’s people. Mohan was subsequently issued a second summons for September 23.

Mohan went on the offensive

On Tuesday, just a day before the committee’s scheduled hearing, Mohan approached the Supreme Court with a writ petition, essentially challenging the Delhi state government’s authority to hear on central subjects (as prescribed in the Seventh Schedule of the Constitution).

Mohan and Facebook’s counsels claimed that the committee’s summons violated Mohan’s fundamental right to stay silent, as part of his right to free speech under Article 19 (1), and his right to privacy under Article 21. Their petition claimed the committee was “targeting” Facebook and thereby creating a “chilling effect” on free speech of the platform’s users. 

What are Mohan and Facebook’s arguments?

The petition largely makes three arguments, based on which it wants the summons issued to Mohan by the Peace and Harmony Committee to be quashed:

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  1. No breach of privilege as Mohan isn’t impeding Assembly’s legislative functions: Facebook has claimed that state legislatures can take coercive action against any person only if they obstruct or impede its legislative functions. Facebook said that Mohan had done nothing of this sort. Hence, the Delhi Assembly’s committee has no authority to hold him in breach of its privileges.
    Facebook is understood to have claimed that the Delhi Assembly’s ability to conduct legislative functions such as drafting and passing laws is unaffected by Mohan’s non-appearance for testimony. Hence Mohan cannot be compelled to appear before its committee
  1. Delhi Assembly can’t hear on the subjects concerned: Both Facebook and Mohan reiterated the company’s earlier claim that the Delhi Assembly was holding hearings on subjects it doesn’t have any powers over.
  • They claimed that the Constitution had given the central government authority over “communications” through the Union List. This includes the subject of regulation of intermediaries. A central law — the Information Technology Act, 2020 — has been enacted to regulate intermediaries.
  • Additionally, the petition claimed that the Parliamentary Standing Committee on IT is actively considering the matter of social and online news media. Mohan had appeared before this committee on September 2. However, it should be noted that all Parliamentary Standing Committees have since been dissolved and are expected to be reconstituted soon. It isn’t known if the newly-constituted committee on IT will take up this matter. 
  • The Delhi committee is conducting hearings on Facebook’s alleged role in the Delhi riots, which involves the subject of “public order” and “police”, both of which are the domain of the Ministry of Home Affairs (MHA) in Delhi, and not the state government. It should be noted that while public order and police are state subjects in the Seventh Schedule, in the national capital territory of Delhi (NCT), it is the responsibility of the MHA. In a question in Parliament, the Ministry of Electronics and Information Technology (MEITY), was asked about the spread of rumours and fake news on social media during the Delhi violence, and whether any action was taken against them. Curiously, MEITY omitted important context and replied that “police” and “public order” were the responsibility of states, even though this is not true in Delhi. 

The petition claimed that when the Assembly itself does not have any powers over the regulation of internet intermediaries or the police, it cannot compel witnesses to appear before it to hear on these subjects.

It claimed that disobedience of the Peace and Harmony Committee’s orders could be treated as contempt of the Assembly only if the order that is disobeyed is within the committee’s authority — which it isn’t.

  1. Summons violative of Mohan’s fundamental rights: Facebook and Mohan’s counsels argued that even if the committee could compel outsiders to appear before it — which they deny anyway —  it would still be violating Mohan’s fundamental rights. It claimed that Mohan’s right to remain silent as a subset of the right to free speech and right to be let alone (privacy) were being violated by the committee.

‘This is not cooperative federalism’

It is learnt that Facebook also refuted Chadha’s earlier claims that the state Assembly was allowed to discuss the matters due to the federal nature of Indian polity. Facebook is understood to have claimed that cooperative federalism only meant the states and centre should work together to address any differences that may arise, but it did not entail the Peace and Harmony Committee to “intrude” on matters reserved exclusively for the Centre.

It referred to the State (National Capital Territory of Delhi) v Union of India from 2018, in which the apex court had ruled that states must work within their spheres, and not think of “any encroachment”.

‘Facebook’s culpability in Delhi riots for judiciary to decide, not Assembly’

The petitioners argued the Delhi Assembly committee is trying to determine Facebook’s culpability in the Delhi riots. However, Facebook said, this was a function reserved for the judiciary. Hence, the committee was violating the doctrine of separation of powers between the executive, judiciary and legislature.

‘Place this matter before a 7-judge bench’

Facebook asked that the present matter be placed before a 7-judge bench, just like the N. Ravi and Ors v. Speaker, Legislative Assembly, Chennai from 2003. It argued that its case and the N. Ravi case were deliberating on whether a state legislature can indeed compel a non-member to answer questions.

‘Committee treating Mohan as guilty’

Facebook is said to have argued that committee chairperson Chadha had already publicly declared the company prima facie guilty. It said the committee’s actions were especially problematic as the committee is already treating him as an accused and guilty of the alleged crimes.

According to LiveLaw’s report, Mukul Rohtagi, appearing for Facebook, submitted that the legislature could’t act like a court of justice. The panel, he said, had already predetermined that Facebook colluded in the Delhi riots. “They have no authority of law to process an enquiry of this nature,” he said.  

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Abhishek Manu Singhvi, appearing for the committee, said that Mohan was called as a witness, and that no coercive action was intended. The panel, he claimed, did not allege any direct complicity by Facebook. 

What do Facebook and Mohan want?

Facebook requested the apex court to issue an order (writ mandamus) directing the Peace and Harmony Committee to set the summonses aside. It also asked that the committee be retrained from taking coercive action against Facebook and Mohan.

For now, Mohan seems to have achieved his immediate aim of not attending the committee’s hearing. The matter will come up again on October 15, and until then, the committee is not allowed to hold further proceedings on Supreme Court’s notice.  

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