Facebook India Head Ajit Mohan told the Supreme Court today that the summons issued to him by the Delhi Legislative Assembly’s Peace and Harmony Committee, which is probing the Delhi riots of February 2020, was “politically motivated”.
Mohan, through Senior Advocate Harish Salve, claimed that the summons was based on reports in the Wall Street journal and with a belief that “Facebook favours the ruling government”.
Invoking his client’s right to silence, Salve said that he will not appear before the Committee which is examining the role of Facebook in failing to curb hate speech in connection with the riots.
“To us it appears as a politically motivated move. Just because they think we play a friendly match on the government turf, it’s like come and play on our turf, (Committee). The investigating officer of Delhi riots cannot put me on oath.”
The Court was hearing a plea by Facebook India and its Vice-President and Managing Director, Ajit Mohan challenging the September 10 and September 18 notices issued by the Committee which sought Mohan’s presence before the panel as part of its inquiry into the Delhi riots.
Interestingly, Salve said that Facebook chose to appear before the Ministry of Information Technology as a commercial necessity, since they are empowered to shut down Facebook. However, since the Committee constituted by the Delhi Assembly has no such powers, Facebook has chosen not to appear before it.
“I don’t run Facebook, it is run by the Valley (Silicon Valley, USA). You are trying to hold an inquisition against Facebook. We go to Ministry of Information Technology because its a commercial necessity and they can shut us down. But Delhi committee cannot, we choose not to appear before them”, Salve submitted.
Salve also claimed that the inquiry by the Committee will soon evolve into what is hate speech and what is permissible speech, which would be very polarising subjects.
“This inquiry will soon drift to why was something not taken down. It’s not as simple as what were you doing on the evening of Delhi riots. This enquiry will soon get into areas of what is hate speech and what is permissible speech. It is a very highly polarized area. My right to silence preserves this,” said Salve.
Importantly, it was also contended by Salve that the privilege to summon a person to appear is limited to the Legislative Assembly and not to committees constituted by the Assembly.
The Delhi government’s summons asking Mohan to appear before the Committee had stated that if he failed to appear, it would be a “breach of privilege”. Salve countered,
“Privilege is primarily supposed to act as a shield and enable a House to conduct its business. Parliament primarily has two broad functions – legislative and executive. Holding executive to check and make laws.”
Justice Roy, in an attempt to skim through the argument asked Salve,
“You are saying privilege as a shield can be taken only when summoning is by the assembly. But since here the summoning is by a committee outside the assembly then the shield of privilege will not apply?”
To this, Salve replied in the affirmative. The inquiry by the Committee is entirely beyond the legislative and executive powers of the Delhi Assembly, he added.
“The inquiry against Facebook relates to the complaints received against it, and is to examine as to why a supplementary chargesheet should not be filed. Such an inquiry is alien to the legislative. The attempt to try and suggest that the inquiry is also to elicit some expert views or to come to certain conclusions on how the communal harmony should be maintained is a sorry attempt to somehow clutch a jurisdiction which is not available,” Salve argued.
To substantiate how Assembly privileges are being misused, Salve referred to the Arnab Goswami case in which the Maharashtra assembly speaker had claimed privilege over the assembly discussions and argued against providing it to the Supreme Court.
Salve also argued that there will be no violation of the principle of cooperative federalism if Mohan does not appear before the committee.
“You invited me and I chose not to come. How does cooperative federalism come into the picture ? I can be criticized for not coming. But here I was being asked to take oath. Oath is when you given evidence on matters of fact,” he submitted.
The matter will now be heard on January 27. Senior Advocate Arvind Datar appearing for Facebook Inc will argue after Salve concludes.
In his petition, Mohan stated that the public order of Delhi is within the domain of the Central government and the Delhi government does not have jurisdiction over a law-and-order issue.
It was also his argument that there “is no law that empowers a State Legislature, including a committee formed by that Legislature, to take coercive action against any person unless it obstructs or impedes its legislative functions.”
Mohan also claimed that by targeting Facebook – a platform that allows users to express themselves – “summons create a chilling effect on the free speech rights of users of the Facebook service.”