Listen to this articleAjit Mohan and ors. V. Legislative Assembly National Capital Territory
of Delhi and ors.
Writ Petition (C) No. 1088 of 2020, decided on
8-7-2021
BENCH- Sanjay
Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy. JJJ.
FACTS- Current petition is filed by the
petitioners under Article 32 of the Constitution of India against the summons
issued by a Committee on Peace and Harmony, constituted by the Legislative
Assembly of NCT of Delhi. In the petition it is prayed that: (a) issue a writ/ order or direction in the nature of
mandamus to set aside first and the second summons; (b) Issue
a writ/order or direction in the nature of Prohibition restraining the
committee from taking any coercive action against Petitioners in furtherance of
the Impugned Summonses; (c) Issue or pass any writ, direction or order, which
this Hon’ble Court may deem fit and proper under the facts and circumstances of
the case.”
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 Ajit Mohan, Vice President and Managing Director of
Facebook India. Ajit 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. 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.
ISSUES-
1.
Can power of privilege extend to compel
an individual, who is not a member of the House, into giving evidence/opinion
that they are not inclined to state?
2.
Is mere
threat of “necessary action” i.e., the possibility of a breach of privilege, enough
to infringe both the right to free speech and privacy?
3.
Is there any 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?
HELD- While dealing with all the issues court said, court
notices in the context of the first
issue the wordings of Article 194(3) of Constitution of
India are unambiguous and clear, and thus do not require us to give our own
twist or interpretation to them. These are not wordings of a statute, but that
of the primary document- The Constitution. 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. The Constitution has given leeway
to the Legislature to define the same from time to time, but there was no
compulsion qua the same. If the Legislature in its wisdom is of the opinion
that it needs to be so done, they will do so. It is not for this constitutional
court to nudge them in that direction. 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 catena of arguments 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.
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 refrained from entering into any substantial
discussion on the second issue, 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.
Considering the third
issue 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.
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. 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.
CASES REFERRED-
1.
State
of Karnataka v. Union of India, 1978 AIR 68 1978 SCR (2) 1
2.
Amarinder
Singh v. Special Committee, Punjab Vidhan Sabha (2010)
6 SCC 113
3.
Justice
(Retd.) Markandey Katju v. Lok Sabha & Anr.
(2017)2SCC384
4.
MSM
Sharma v. Dr. Shree Sri Krishna Sinha 1960 AIR 1186
5.
Kalpana
Mehta and Ors v. UOI (2017) 7 SCC 302
6.
Maneka
Gandhi v. Union of India AIR 1978
SC 597
7.
R.C. Cooper v. Union of India AIR 1970 SC 564
8. N. Ravi v. T.N. Legislative Assembly, (2005) 1 SCC 603.