In a recent judgment, the Supreme Court leaned in favour of the legislative privileges, if they conflicted with fundamental rights, but offered no remedies to those aggreived by the disruptive potential of the social media.
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THE case of Ajit Mohan & Ors versus Legislative Assembly (NCT of Delhi), decided by a Supreme Court bench comprising Justices S.K. Kaul, Dinesh Maheshwari and Hrishikesh Roy in July 2021, arose from a summons made by the Committee on Peace and Harmony, constituted by the Delhi Legislative Assembly (‘DLA’), to Ajit Mohan, Vice President and Managing Director of Facebook India. The committee was investigating complaints it received against Facebook for spreading hate speech biased towards the Bharatiya Janta Party in the context of the February 2020 riots in North-East Delhi.
As per the Committee, Facebook colluded with some third-party elements who had a stake in the volatile situation, and, as such, Facebook should be treated as a co-accused. In furtherance of this, the committee called on Facebook to give any explanations that it may have for such allegations.
Mohan refused to go before the committee. A second summons was also issued. Challenging the summons and the authority of the committee, Mohan filed a case before the Supreme Court.
In this case, the Supreme Court commented on a range of issues such as the influence of Facebook and other social media platforms on the world at large, the power of the Parliament (and its committees) to issue summons to private individuals who are not part of the Executive, and the conflict between Parliamentary Privilege and the right to free speech and privacy.
The arguments advanced by Facebook India can be categorized into three broad categories:
(a) Privileges issue,
(b) Privilege, right to privacy and free speech, and
(c) Legislative competence.
The judgment delved into the accountability of online intermediaries in different nations such as the United Kingdom and the United States. The court referred to the U.S. Congress summoning the Chief Executive Officers of Google, Twitter, and Facebook for discussing alleged misinformation on their platforms.
Also read: Is Facebook Fuelling Hate Speech?
Privileges issue
This issue arose out of the plea that the Committee’s power to summon cannot extend to compelling private individuals, who are not members of the House, to give statements or opinions. The argument presented by Mohan was that no non-member of the Assembly could be summoned by the Committee, provided they had not intruded on Assembly’s functioning.
It was argued that privilege powers are not constitutional and are present only by virtue of the Government of National Capital Territory of Delhi Act, 1991 (‘GNCTD Act’). On this point, the court clarified that the GNCTD Act should be read in light of Article 239AA (Special provisions with respect to Delhi) of the Constitution and not in isolation.
In its written submissions, Facebook contended that since it is merely an intermediary body, its non-appearance in front of the Committee would not breach Parliamentary Privilege, provided such privilege extends to non-members of the Assembly. It demanded an exceptional privilege not to appear before the Committee. However, such a line of argument was not accepted by the court.
The court rejected Facebook’s argument of being a ‘mere intermediary’ in this whole scenario. As such, the Court rejected the plea of an exceptional privilege being created for Facebook to avoid the summons.
The court observed that Facebook has earlier been accused and convicted of meddling in the affairs of sovereign nations. Even the U.K. Commons Privileges Committee, referred to in the judgment, observed that Facebook is guilty of misleading the electorate and Parliamentarians, thereby inducing decisions that favour the company or the political wing that the company is currently supporting. Based on this reasoning, the court rejected Facebook’s argument of being a ‘mere intermediary’ in this whole scenario. As such, the court rejected the plea of an exceptional privilege being created for Facebook to avoid the summons.
Right to silence
Senior counsel Harish Salve, appearing for Mohan, contended that with the right to free speech and expression under Article 19, the Constitution also guarantees a negative right of “right to silence,” and such right is a virtue considering the present “noisy times.” Facebook contended that it cannot be compelled to speak before the Committee and that the court ought to uphold its right to silence. Through this line of argument, Facebook sought to expand the scope of Article 19(1)(a) and consequently, refused to follow the multiple summons issued by the Committee.
Facebook further argued that the powers and immunities under Articles 105(3) and 194(3) of the Constitution should not be allowed to weaken the fundamental right under Article 19(1)(a). Facebook requested the court to treat the summons as nothing but an “invitation” and allow Facebook the freedom to decide whether to answer such an invitation or not. Through this, Facebook asked the court to constrain the powers and scope of this “potential violator” of the right to free speech and privacy. In arguendo, if the court upholds the right of Parliamentary privilege of the House, Facebook contended that the court must “narrowly” construe such privilege so as to give maximum importance to the right to privacy and the right to remain silent.
In its arguments, Facebook raised a critical question about the “definition of the limits to legislative/parliamentary powers and whether they should prevail over fundamental rights of free speech, silence, and privacy of citizens?”
Narrow reading
The petitioners claimed that the rights under Part III of the Constitution come into play as soon as a State action is brought against a citizen that is threatening to infringe their fundamental rights. In order to support their argument, they used the Supreme Court’s judgments in Justice K.S. Puttaswamy (Retd.) versus Union of India (2017) and Selvi versus State of Karnataka (2010) to drive home the fact that Article 21 of the Constitution allows the citizen a right to autonomy and the right of a private choice whether to or not to make statements, without the threat of any legal sanction.
Even though the court accepted these rights under Article 21, it qualified the application of such rights saying that mere threat of sanctions cannot trigger them.
The court said that Part III of the Constitution cannot be invoked unless one can show that some tangible action has been taken towards infringement of one’s fundamental rights, and if one cannot showcase the presence of such action, Part III of the Constitution cannot be invoked. This is a very narrow reading of the applicability of fundamental rights.
In effect, the court said that Part III of the Constitution cannot be invoked unless one can show that some tangible action has been taken towards infringement of one’s fundamental rights.
This is a very narrow reading of the applicability of fundamental rights. If such an interpretation is widely accepted, it will defeat the principles of justice and equity enshrined in the Constitution.
Insufficient reasoning
The respondents argued on the basis of the Supreme Court’s judgment in M.S.M. Sharma versus Krishna Sinha (1958), in which the majority opinion held that Article 19(1)(a) would not override privileges under Article 194. In counter, the petitioners argued that the Supreme Court had overruled the authority of M.S.M. Sharma in subsequent pronouncements, such as in the case of Special Reference No. 1 of 1964, In Re (1964), in which the court held that Part III of the Constitution normally ‘controls’ legislative supremacy.
The court refused to address this clear contradiction between judicial pronouncements and simply said that since the matter is already in question before a Constitution bench of the court in the pending case of N. Ravi & Ors. versus Speaker, Legislative Assembly, Chennai & Ors., the court would not deal with it. However, N. Ravi has been pending since 2005, and the Supreme Court has awarded no clarification regarding the applicability of privileges over fundamental rights. Even with such a delay in pronouncing this decision, the court in the instant judgment breezed past the rights of citizens without even deliberating on the matter, and rejected the plea on the grounds of it being “premature.”
Counsel for the petitioners tried to strengthen their argument regarding the supremacy of Part III by reading together the rights under Articles 14, 19, and 21 (the Golden Triangle). In response, the respondents argued that the reading together of rights as provided in the Supreme Court’s landmark judgments in R. C. Cooper versus Union of India (1970) and Maneka Gandhi versus Union of India (1978) was only meant for the creation of a due process in light of Constitutional limitations. They further argued that each right under Articles 14, 19, and 21 has its own limitations, and they cannot be merged into one single right, and as such, they will not override the authority of Article 194(3).
The court never negated this argument of the respondents, but remarked that since this issue is already before a higher bench in N. Ravi, it will not comment on this issue. However, based on its final decision, it effectively concurs with the respondents’ view, thereby massively reducing the scope of Maneka Gandhi.
The court ruled in favour of the Committee but observed that Mohan would be well within his rights to not answer any question put by the Committee if such question falls within the prohibited domains of ‘law and order’ and ‘police.’ The Committee was allowed the authority to pose any questions to Facebook, provided they stayed clear of those subjects. The court also held that the dimensions of “peace and harmony” are wider than just those of “law and order,” “police,” or “information technology.”
Legislative competence
Facebook argued that setting up such a peace panel is not in the core functioning of the DLA, as a ‘law and order’ issue in the national capital would be under the purview of the Union Government. The Delhi Police is responsible for the National Capital Territory’s law-and-order situation, and it falls under the mandate of the Union Government.
The court held that the dimensions of “peace and harmony” are wider than just those of “law and order,” “police,” or “information technology.”
Conversely, the DLA and the Committee submitted that Facebook, as a multinational corporation, does not have the requisite locus standi to approach the court under Article 32 of the Constitution and challenge the notice issued by the Committee. The counsel for the respondents contended that, in order to skirt this principle of due process of law, Facebook filed this petition through their India Vice President, Mohan. They further argued that the writ petition filed by Facebook, even if maintainable, is premature as no action has been taken against Facebook or Mohan.
To this, the petitioners argued that the DLA and the Committee lacked ‘legislative competence’ to investigate the matters qua which notices had been served to Mohan. Subsequently, in the absence of such legislative competence, Facebook is entitled to approach the Supreme Court at the very onset of the issue and cannot be compelled to wait for further development in the proceedings.
However, the court ruled that the privileges of an elected body such as the DLA (and axiomatically, of its Committees) ought to be given “full play,” and it would be a “tragedy” to limit such a body to just law-making, as suggested by the petitioners. Therefore, the court upheld the formation and powers of the Committee.
Major takeaways
The decision came at a time when social media behemoths are fighting a legal battle against various provisions of the new Information Technology Rules that will govern their functioning. With the implementation of these rules, the responsibility of such social media intermediaries toward the Legislature and the populace will only be heightened.
The court ruled that the privileges of an elected body such as the DLA (and axiomatically, of its Committees) ought to be given “full play,” and it would be a “tragedy” to limit such a body to just law-making, as suggested by the petitioners.
Also read: Explained: Bombay High Court order partially stay new IT rules on plea by The Leaflet
However, the court failed to make any substantive change in the present scenario, irrespective of the fact it compelled Mohan to act in accordance with the summons issued by the Committee and upheld the power of the DLA to constitute a committee to look into the ‘social’ issue of the Delhi Riots of 2020. But at the same time, it ruled that the Committee is not a prosecuting body and cannot act as one.
The court ordered the Committee not to ask questions relating to ‘law and order’ or the ‘police’. One major allegation against Facebook is spearheading hate speech biased toward the ruling party using its platform. Herein, any obligation that could have been put on Facebook to remove such content is provided under the Information Technology Act, 2000, which is under the purview of the Union Government (or the ruling party), and the court ordered the Peace and Harmony Committee to not infringe on the functions of the Union.
One of the primary objectives of the Committee is to provide guidelines and recommendations to ensure that riots such as those that happened in North-East Delhi do not happen again. But the court’s ruling drastically restricts the powers of the Committee, so much so that any recommendations provided by this Committee would be essentially incapable of handling any on-ground situation.
The court’s ruling drastically restricts the powers of the Committee, so much so that any recommendations provided by this Committee would be essentially incapable of handling any on-ground situation.
Regarding Article 194(3) of the Constitution, the court observed that it is unambiguous and does not need any interpretation by the court. It also refused to order the Parliament to enact any guidelines or rules further to clarify the scope and extent of the provision.
Interestingly, at the conclusion of the judgment, authored by Justice Kaul, there is a postscript, wherein the time consumed in this particular case at the stage of submissions and the production of relevant documents is noted. The court noticed the 26 hours that went into the proceedings, even after excluding time taken to present synopses, replies, and rejoinders. It expressed concern over such proceedings consuming a great deal of judicial time, and advised the counsels for both parties to be direct in oral pleadings and do so by taking a minimum of the court’s time.
As social media intermediaries play a vital role in enhancing open dialogue between the government and citizens, they are also transforming into tools of various powerful and influential groups, who have recognized the disruptive potential of these media channels. As a result, a paradox is created where extremist views are pushed into the mainstream, and in so doing, misinformation is spread.
