Supreme Court Directs Delhi Assembly Panel to Withhold Coercive Action Against Facebook Until October 15

The Supreme Court Wednesday directed a Delhi Legislative Assembly panel not to take coercive action against Facebook India VP and MD Ajit Mohan till October 15 in connection with a summon asking him to depose before it with regard to north east Delhi riots.

Delhi Assembly's peace and harmony committee had issued a notice to Facebook India vice president and managing director in connection with complaints accusing the social media giant of deliberately not taking action to curb hateful content on its platform.

A bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari issued notices to the secretary of the Legislative Assembly, the ministries of Law and Justice, Home Affairs, Electronics and IT, Lok Sabha and Rajya Sabha, represented by the Secretary General, and Delhi Police, asking them to respond to the plea.

“Counter affidavit be filed within one week. Rejoinder affidavit be filed within one week thereafter,” the bench said.

It orally observed that "no coercive action shall be taken against the petitioner till October 15."
The apex court noted that the only purpose of serving notice to Lok Sabha and Rajya Sabha is because in the perception of the petitioner's lawyer there may be some interplay of the powers of the Delhi Assembly and the Secretariats in question.

The apex court's order came on the plea filed by Mohan, Facebook India Online Services and Facebook, which contended that the committee lacks the power to summon or hold petitioners in breach of its privileges for failing to appear and it was exceeding its constitutional limits.

They challenged the September 10 and 18 notices issued by the committee that sought Mohan's presence before the panel which is probing the Delhi riots in February and Facebook's role in spread of alleged hate speeches. 

Senior advocate Harish Salve, appearing for Mohan, submitted that committee cannot decide the breach of privilege of the house and administrative control over social media is with the Central government.

“Privilege is something to be decided by the Assembly. A committee cannot decide whether action on privilege can be taken or not," Salve said adding that the Delhi government could not put Mohan "in the pain of punishment" by asking him to appear before the Committee.

The senior advocate submitted that Mohan has the fundamental right not to speak under Article 19(1)(a) of the Constitution and being an employee of a US-based company he does not want to comment on this "politically sensitive issue."

“Issue is very sensitive and has political overtones. I don't want to comment on the issue which has the political overtones," Salve said.

He said that no coercive action can be taken against his client for not appearing before the Committee.
Senior advocate Mukul Rohatgi, appearing for Facebook, argued that if he (Mohan) does not go before the Committee, it is not breach of privilege.

“I personally as a lawyer have been called by Parliament for giving opinions number of times. You cannot compel and say non-appearance will be breach of privilege. There is no penalisation," he said.
The top court noted the submission of senior advocate A M Singhvi, appearing for the legislative committee, that the meeting scheduled for today already stands deferred and no further meeting will be fixed qua the petitioners till the next date.

However, Singhvi submitted that it is not proper for the court to stay the proceedings in the matter.
"I have sought instructions from the Committee that Mohan has been asked (to appear) only as a witness and there is no question of coercive action," Singhvi said.

The petition by Mohan said "the committee seeks to compel petitioner No. 1 (Ajit Mohan) to provide testimony on subjects within the exclusive domain of the Union of India. Specifically, the Committee is seeking to make a ''determination of the veracity of allegations levelled against Facebook'' in the Delhi riots, which intrudes into subjects exclusively allocated to the Union of India." 

It said there is no law that empowers a State Legislature, including a committee formed by the Legislature, to take coercive action against any person unless it obstructs or impedes its legislative functions.

"When a Legislative Assembly has been denied powers over subjects exclusively assigned to the Union of India, a Committee of that Assembly cannot compel witnesses to appear and provide evidence on those subjects,” the plea said.

Peace and Harmony Committee Chairman and AAP MLA Raghav Chadha had earlier said non-appearance of any Facebook representative before the panel was not only "contempt" of Assembly, but also an "insult" of the two crore people of Delhi.

The hearing by the assembly panel follows a Wall Street Journal report that claimed that one of Facebook's senior India policy executives intervened in internal communication to stop a permanent ban on a BJP lawmaker from Telangana after he allegedly shared communally-charged posts.

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