# AJIT MOHAN & ORS v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY OF DELHI & ORS

- **Citation:** [2021] 14 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 2021-07-08
- **Case number:** Writ Petition No. 1088 of 2020
- **Bench:** Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajit-mohan-ors-v-legislative-assembly-national-capital-territory-of-delhi-ors-35367
- **Pages:** 125

## Headnote

Constitution of India - Articles 194, 105 and 19(1)(a), (2) -
Online hate speech content - Social media platforms - Accountability
of - Parliamentary Privilege/ Privilege of Legislature - In the wake
of Delhi riots, Legislative Assembly of the National Capital Territory
of Delhi constituted a Committee on Peace and Harmony - Summons
issued to Managing Director of Facebook India, to appear before
it - Challenge to - Impugned summons withdrawn, new summons
issued - Held: There is no dispute about the right of the Assembly
or the Committee to proceed on grounds of breach of privilege per
se - Power to compel attendance by initiating privilege proceedings
is an essential power - Members and non-Members (like the
petitioners) can equally be directed to appear before the Committee
and depose on oath - 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 - However, on facts, only a summons
has been issued for appearance before the Committee - Issue of
privileges is premature - The question of any privilege power being
exercised is yet far away - Plea raised on the exercise of privilege
is a pre-emptive strike - Complete plea of the petitioners is premature
as nothing has really happened other than them having been asked
to appear before the Committee - Facebook cannot excuse
themselves from appearing pursuant to the New Summons issued -
Information Technology Act, 2000 - s.69A - Government of
National Capital Territory Act, 1991.
Information Technology Act, 2000 - Online hate speech
content on social media platforms - Role, accountability of such
platforms - Plea of Facebook that it is merely a platform posting
[2021] 14 S.C.R. 611
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third party information and has no role in generating, controlling or
modulating that information - Held: Not accepted - These platforms
are by no means altruistic in character but rather employ business
models that can be highly privacy intrusive and have the potential to
polarize public debates - Further, business model of intermediaries
like the petitioner being one across countries, they cannot be permitted
to take contradictory stands in different jurisdictions.
Constitution of India - Seventh Schedule, List II, Entries 1, 2
& 18 - Committee on Peace and Harmony constituted by Delhi
Legislative Assembly in the wake of Delhi riots - Validity of - Held:
The Assembly is no different from any other State assembly, except
to the extent that certain powers in List II of the Seventh Schedule
have not been conferred (i.e., Entries 1, 2 & 18) - 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 - 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 - Committee can trace
its legitimacy to several Entries in List II and List III without
encroaching upon the excluded fields of public order or police to
undertake a concerted effort albeit not to the extent as canvassed -
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.
Constitution of India - Articles 194, 105 - Functions
performed by an elected Parliament or Assembly not confined to
only enacting laws - Role of Committees constituted by legislative
bodies in the functioning and the working of the Houses Held: Unless
the committee embarks on a course completely devoid of its functional
mandate specified by the Assembly, or the Assembly itself lacks
jurisdiction to deal with the subject matter, the widest amplitude
must be given to th

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AJIT MOHAN & ORS.
v.
LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY
OF DELHI & ORS.
(Writ Petition (C) No. 1088 of 2020)
JULY 08, 2021
[SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
HRISHIKESH ROY, JJ.]
Constitution of India - Articles 194, 105 and 19(1)(a), (2) -
Online hate speech content - Social media platforms - Accountability
of - Parliamentary Privilege/ Privilege of Legislature - In the wake
of Delhi riots, Legislative Assembly of the National Capital Territory
of Delhi constituted a Committee on Peace and Harmony - Summons
issued to Managing Director of Facebook India, to appear before
it - Challenge to - Impugned summons withdrawn, new summons
issued - Held: There is no dispute about the right of the Assembly
or the Committee to proceed on grounds of breach of privilege per
se - Power to compel attendance by initiating privilege proceedings
is an essential power - Members and non-Members (like the
petitioners) can equally be directed to appear before the Committee
and depose on oath - 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 - However, on facts, only a summons
has been issued for appearance before the Committee - Issue of
privileges is premature - The question of any privilege power being
exercised is yet far away - Plea raised on the exercise of privilege
is a pre-emptive strike - Complete plea of the petitioners is premature
as nothing has really happened other than them having been asked
to appear before the Committee - Facebook cannot excuse
themselves from appearing pursuant to the New Summons issued -
Information Technology Act, 2000 - s.69A - Government of
National Capital Territory Act, 1991.
Information Technology Act, 2000 - Online hate speech
content on social media platforms - Role, accountability of such
platforms - Plea of Facebook that it is merely a platform posting
[2021] 14 S.C.R. 611
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third party information and has no role in generating, controlling or
modulating that information - Held: Not accepted - These platforms
are by no means altruistic in character but rather employ business
models that can be highly privacy intrusive and have the potential to
polarize public debates - Further, business model of intermediaries
like the petitioner being one across countries, they cannot be permitted
to take contradictory stands in different jurisdictions.
Constitution of India - Seventh Schedule, List II, Entries 1, 2
& 18 - Committee on Peace and Harmony constituted by Delhi
Legislative Assembly in the wake of Delhi riots - Validity of - Held:
The Assembly is no different from any other State assembly, except
to the extent that certain powers in List II of the Seventh Schedule
have not been conferred (i.e., Entries 1, 2 & 18) - 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 - 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 - Committee can trace
its legitimacy to several Entries in List II and List III without
encroaching upon the excluded fields of public order or police to
undertake a concerted effort albeit not to the extent as canvassed -
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.
Constitution of India - Articles 194, 105 - Functions
performed by an elected Parliament or Assembly not confined to
only enacting laws - Role of Committees constituted by legislative
bodies in the functioning and the working of the Houses Held: Unless
the committee embarks on a course completely devoid of its functional
mandate specified by the Assembly, or the Assembly itself lacks
jurisdiction to deal with the subject matter, the widest amplitude
must be given to the functioning of these committees - The
inquisitorial role of the committee in the functioning of House is of
great significance, and as recognized, the investigation of a
complicated social problem prior to legislation often rests frequently
on such legislative committees - Intelligent legislative action and
deliberation thereon rests on the power to investigate into questions
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of public importance and, thus, issuance of summons is key to this
investigative exercise.
Constitution of India - Articles 194, 105; Seventh Schedule,
List II, Entries 1 and 2 - Para 4(vii) of the Terms of Reference
tasked the Committee with recommending action against such persons
against whom incriminating evidence is found - Held: In order to
justify the legislative competence and the remit of the Committee, the
respondents have practically given up this para - It does not survive
for any opinion of the Committee - Further, it will not be permissible
for the Committee to encroach upon any aspects strictly within the
domain of Entries 1 and 2 of List II of the Seventh Schedule - As
such, any representative of the petitioners would have the right to
not answer questions directly covered by these two fields.
Constitution of India - Part III - Issue of privileges vis-à-vis
the right of free speech, silence, and privacy - Held: Larger issue
of privileges vis-à-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. Legislative Assembly
reported as (2005) 1 SCC 603.
Dismissing the writ petition, the Court
HELD: 1. In this modern technological age, it would be
too simplistic for the petitioners to contend that they are merely
a platform for exchange of ideas without performing any significant
role themselves - especially given their manner of functioning
and business model. Debate in the free world has shown the
concern expressed by Governments across the board and the
necessity of greater accountability by these intermediaries which
have become big business corporations with influence across
borders and over millions of people. Facebook today has influence
over 1/3rd population of this planet! In India, Facebook claims to
be the most popular social media with 270 million registered
users. The width of such access cannot be without responsibility
as these platforms have become power centres themselves,
having the ability to influence vast sections of opinions. Without
undermining the role performed by Facebook in giving a voice
to various sections of society across the world, it has to be noted
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that their platform has also hosted disruptive voices replete with
misinformation. These have had a direct impact on vast areas of
subject matter which ultimately affect the governance of States.
It is this role which has been persuading independent democracies
to ensure that these mediums do not become tools of manipulative
power structures. These platforms are by no means altruistic in
character but rather employ business models that can be highly
privacy intrusive and have the potential to polarize public debates.
For them to say that they can sidestep this criticism is a fallacy as
they are right in the centre of these debates. Facebook as a
platform is in the nature of a mass circulation media which raises
concerns of editorial responsibility over the content circulated
through its medium. The width of the reach of published material
cannot be understated or minimized. Facebook has acknowledged
in their reply that they removed 22.5 million pieces of hate speech
content in the second quarter of 2020 itself, which shows that
they exercise a substantial degree of control over the content
that is allowed to be disseminated on its platform. To that extent,
a parallel may be drawn with editorial responsibility cast on other
mass circulation media. The business model of intermediaries
like the petitioner being one across countries, they cannot be
permitted to take contradictory stands in different jurisdictions.
Thus, for example in the United States of America, Facebook
projected itself in the category of a publisher, giving them
protection under the ambit of the First Amendment of its control
over the material which are disseminated in their platform. This
identity has allowed it to justify moderation and removal of content.
Conspicuously in India, however, it has chosen to identify itself
purely as a social media platform, despite its similar functions
and services in the two countries. Thus, dependent on the nature
of controversy, Facebook having almost identical reach to
population of different countries seeks to modify its stand
depending upon its suitability and convenience. [Paras 149151][707-B-H; 708-A-C]
2.1 The Issue of Privilege:
The privilege issue arises out of the plea advanced by the
petitioners that both, the First Impugned Summons dated
10.09.2020 and the Second Impugned Summons dated 18.09.2020,
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were to summon Petitioner No.1 or a duly authorized
representative of Petitioner No. 2 respectively with a threat of
"privilege". This argument was coupled with a plea that such
power of privilege cannot extend to compel an individual, who is
not a member of the House, into giving evidence/opinion that
they are not inclined to state. [Para 159][710-G-H; 711-A]
2.2 Wordings of Article 194(3) are unambiguous and clear,
and thus do not require any twist or interpretation to them. These
are not wordings of a statute, but that of the primary document -
the Constitution. The powers, privileges and immunities of a
House of the State Legislature as well as its committees have
been clearly defined as those of the House and all members and
committees thereof before the coming into force of Section 26 of
the Constitution 44th Amendment Act, 1978. There was no
timeline provided for codification of powers, privileges and
immunities of a House. 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. Is it for
this constitutional court to nudge them in that direction? The
answer would be in the negative. [Para 162][711-E-G]
2.3 It is not disputed that committee proceedings cannot
be equated to proceedings before the court of law. No doubt these
powers have to work in the context of the business of each House,
and no House can be a knight in shining armour to correct issues
in respect of which it has no legislative power. Yet, it would be a
monumental tragedy to conclude that the legislature is restricted
to the function of enacting laws. The role of the legislature is
sought to be diminished by such an argument. Once the wider
array of functions performed by an elected Parliament or Assembly,
not confined to only enacting laws are recognized, 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
line of argument 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
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Committee is not appreciated. 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. [Paras 165167][712-E-G; 713-A-D]
Amarinder Singh v. Special Committee, Punjab Vidhan
Sabha & Ors. (2010) 6 SCC 113: [2010] 4 SCR 1105
- distinguished.
Re. Special Reference of 1964 2 AIR 1965 SC 745:
[1965] SCR 413; Justice (Retd.) Markandey Katju v.
Lok Sabha & Anr. (2017) 2 SCC 384:[ 2016] 11
SCR 621 - referred to.
2.4 In the factual matrix, only a summons has been issued
for appearance before the Committee. The question of any
privilege power being exercised is yet far away. Even if there
was any breach of privilege recorded by the Committee, the
Committee would in turn have to make a recommendation to the
Assembly. The Assembly then would be entitled to consider
whether it is a fit case to exercise the power of breach of privilege.
In many cases, it may well be that the Assembly considers that it
is not worthwhile to do so, even if the Committee was to prima
facie opine so. The exercise by the Assembly is further dependent
on the opinion of the Privileges Committee. Thus, there are
various tiers of scrutiny before there is culmination of the exercise
of power of privilege. None of those eventualities have at all arisen
in the present case. 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. [Para 169][713-F-G; 714-A-D]
2.5 The committees constituted by legislative bodies like
the Assemblies for the States and Parliament for the Union,
perform a key role in the functioning and the working of the
Houses. These committees undertake deliberations and provide
recommendations as precursors to legislative activities, and the
effective working of committees is a prelude to the core working
of the Assemblies. The committees are an extension of the
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legislature itself and do informed work. The contention of the
petitioners cannot be accepted to create an artificial division
between Assembly's core/essential and non-essential functions,
with any restrictive clauses being placed on the deliberations of
the committees. Such water-tight compartmentalisation is not
advisable. Unless the committee embarks on a course completely
devoid of its functional mandate specified by the Assembly, or
the Assembly itself lacks jurisdiction to deal with the subject
matter, the widest amplitude must be given to the functioning of
these committees. It is the parliamentary committee system that
has been recognised as a creative way of parliaments to perform
their basic functions. The same principle would apply, even if it is
to some extent beyond their legislative domain. This is because
they will not be able to make any valid legislative
recommendations in the absence of competence over the subject
matter. However, they may debate aspects which may be a
reflection of their sense and consequently the sense of the House,
if so adopted by the House. [Paras 171, 172][714-E-H; 715-A-E]
Kalpana Mehta And Ors. vs Union of India And Ors.
(2018) 7 SCC 1: [2018] 4 SCR 1 - relied on.
Comment of US Representative James Shannon during
the 1995 Conference on the Role of Committees in
Malawi's Legislature as noted in Kalpana Mehta at note
20 - referred to.
2.6 The inquisitorial role of the committee in the functioning
of House is of great significance, and as recognized, the
investigation of a complicated social problem prior to legislation
often rests frequently on such legislative committees. This task
involves the examination of witnesses and is helpful in dealing
with matters of special and technical nature, wisened by insight
into affairs of the workings of different aspects and the views
expressed by different stakeholders. It can hardly be said that in
the context of what has been debated, the petitioners have no
role to play or are "outsiders". Intelligent legislative action and
deliberation thereon rests on the power to investigate into
questions of public importance and, thus, issuance of summons
is key to this investigative exercise. [Para 174][716-C-E]
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Bagehot: The English Constitution, (P. Smith, 2001);
J.R. Mallory, The Uses of Legislative Committees, 6
Canadian Public Administration 1, 6 (1963); Promila
Suri, Growth of Committee System in Central Legislature
of India 1920-1947, (1979) - referred to.
2.7 The endeavour of the petitioners to sidestep their
appearance before the Committee on a perceived notion of not
being an official representative - is not acceptable- whether the
exercise is for a legislative enactment, or for other purposes
connected with its legislative domain. The Committee is yet to
start its work qua the assistance to be rendered by the petitioners.
The petitioners cannot themselves frame and presume possible
questions that they might face before the Committee, and then
seek to encompass it under the argument of legislative
incompetence. The work of The Committee could encompass
several fields where organisations and individuals are expected
to cooperate. The scheme of privilege has to be seen in the
context of provisions of Article 239AA of the Constitution, as
well as the GNCTD Act. They are not divorced from each other.
Thus, Clauses 7(a) and 7(b) of Article 239AA were rightly referred
to contend that the GNCTD Act was not deemed to be an
amendment to the Constitution for the purposes of Article 368,
notwithstanding that it may contain any provision which amends
or has the effect of amending the Constitution. Rights and
privileges are the same as any other House and, thus, the calling
into question of the proceedings of a sub-committee amounts to
calling into question the proceedings of the Assembly. At the
cost of repetition, it is said that there has been no exercise of
privilege power. However, the Court has been called upon to
deliberate, if one may say, to some extent unnecessarily over
this issue on account of insistence of the petitioners to advance
this argument prematurely. It is not known whether on
participation of the petitioners any question of privilege would
arise, whether the Committee would make a reference to the
Assembly, whether the Assembly would consider it to be referred
to the Privileges Committee, what would be the opinion of the
Privileges Committee and finally whether the Assembly itself
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would embark on a path of a breach of privilege by the petitioners.
This is a completely speculative exercise. The Assembly is no
different from any other State assembly, except to the extent that
certain powers in List II of the Seventh Schedule have not been
conferred (i.e., Entries 1, 2 & 18). As a principle of law, all entries
are required to be read widely. Neither the included Entries nor
the excluded Entries have to be read restrictively. The stage for
any possible judicial intervention has not arisen in the present
case. [Paras 175-179][716-F-G; 717-A-G]
C. Subramaniam v. The Speaker, Madras Legislative
Assembly AIR 1969 Mad 10 - approved.
2.8 There is actually no serious dispute about the per se
competence of the Committee to discuss matters outside the
legislative domain of the Assembly but it was with a caveat that it
could not give rise to exercise of power of breach of privilege
and the right to summon a non-member. That being the position,
any plea raised on the exercise of privilege is a pre-emptive strike
in the absence of underlying facts. Where that situation arises in
the given factual context, the petitioners could have and would
be entitled to assail the same, but this Court will not indulge in
an advance ruling on this aspect. [Para 183][719-A-C]
3.1 Privileges & Fundamental Rights:
In view of the original notice being withdrawn, Facebook's
plea of not having the option of choosing whom to send stands
whittled away. Further, the aspect of privilege and the rights which
flow from it have been discussed at some length. Though such
proceedings are not taking place in Court, where depositions
also take place, privileges of an elected body of the Legislative
Assembly and consequently of its committees must be given full
play. [Paras 185, 187][719-F; 720-B]
3.2 No coercive action has been taken against the
petitioner, and none was intended if the authorised representative
of the petitioners simply participated in the proceedings as a
witness. Emphasis was also laid on the transparency of these
proceedings in view of them being broadcasted live. The
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summons having been lawfully issued by an empowered
committee (subject, of course to the legislative competence
discussed hereinafter), the same must be answered. The
proceedings are not criminal or judicial in nature as there is no
accused before the Committee. Naturally, the Rules framed by
the House under Section 33 of the GNCTD Act (which in turn
draws strength from Article 239AA(7) of the Constitution) would
be followed. Protection of proceedings before the Assembly or
the Committee under Article 194 would include deposition of
members or non-members. The option to not answer a question
before the Committee cannot seriously be disputed qua certain
aspects if so pleaded for good reasons, an aspect which would be
examined by the Committee as per Rules. The complete plea of
the petitioners is premature as nothing has really happened other
than them having been asked to appear before the Committee.
[Paras 189, 190][720-D-G]
MSM Sharma v. Dr. Shree Sri Krishna Sinha AIR 1960
SC 1186: [1961] SCR 96; N. Ravi v. Legislative
Assembly (2005) 1 SCC 603 - referred to.
4.1 Legislative Competence:
It is undisputed that the Assembly is different from the
other State Assemblies to the extent that certain subject matters
of List II have been specifically excluded and conferred on the
Central Government. It is, thus, nobody's case that aspects
covered by Entries 1, 2 & 18 in List II can be dealt with by the
Assembly and consequently, the Committee. While there is no
dispute about the principle of reading the Entries as widely as
possible, that proposition is in the context of challenging a law
for lack of legislative competence. Here the Court is concerned
with the interplay of Entries. The issue would be whether the
Central Government has the legislative competence or the
Assembly. The widest amplitude has to be given even to the three
Entries of which the legislative competence has been denuded
from the Assembly and conferred on the Parliament. Facebook
is an intermediary was submitted to be apparent from Section
2(1)(w) of the I.T. Act. The role of the intermediaries is covered
by this enactment including the right of the Central Government
to issue directions to block public access to any information under
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Section 69A of the I.T. Act. [Paras 193, 194 and 196][721-D-F;
722-A-B]
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963 - relied on.
4.2 The intent of the Committee (and for that matter the
Assembly) was argued to be quite clear, i.e., to encroach on the
very domain which was prohibited. This was stated to be apparent
from the Terms of Reference. The Terms of Reference contained
in paragraph 4 (i) (to consider the complaints from the members
of the public, social organisations, journalists, etc. on the situation
prevailing in a particular area/areas which have the potential to
disturb communal peace and harmony or where communal riots
have occurred) have to be read in context of para 4(vii) which
tasks the Committee with recommending action against such
persons against whom incriminating evidence is found. The
respondents could not get away by simply saying that the power
of recommending action against such persons against whom
incriminating evidence is found is not capable of being enforced
in view of the lack of legislative competence. These are the
aspects which were sought to be given teeth by threatening
privilege in the last paragraph of the Terms of Reference.
[Para 197][722-C-E]
4.3 The plea that an Assembly must confine itself to the
core function of legislation cannot be accepted. This would
be unreasonably restricting the role of an elected body.
[Para 200][723-A-B]
4.4 The emphasis was that all that transpired was a
subterfuge as the real intent of the Committee was to look into
issues that were beyond their scope, while expanding their powers
on account of a political conflict between the Central and State
Governments over the issue of the riots in question. This was
stated to be quite apparent from the nature of depositions
recorded before the Committee and the statements made in the
press conference by the Chairman of the Committee. There is
little doubt over 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 cannot be
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allowed to encroach upon a subject matter where there is a specific
entry conferring power on the other body. [Paras 202, 203]
[723-C-G]
4.5 The recourse to Entries 1 & 2 of List III cannot be said
to include what has been excluded from the powers of List II,
i.e., Entries 1, 2 & 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 is not disputed by anyone,
and that this law and order issue related to communal riots also
cannot be seriously disputed. That the Assembly cannot deal with
the issue of law and order and police is also quite clear. Thus, the
moot points would be (a) what is the scope of inquiry of the
Committee; (b) whether it could be said that there is any aspect
of the inquiry which falls within the legislative domain of the
Assembly; and (c) whether the attendance of the petitioners could
be compelled legitimately. [Para 204][723-G-H; 724-A-C]
4.6 The in-principle submission drawing strength from
judicial precedents in the US, that the power to investigate is
inherent in the power to make laws by the legislative body is not
disagreed with. But while recognising this, the issue in the present
case is whether the Assembly can at all legislate on the matter.
The investigative function of committees carries with it the
possibility of researchers ending up in some "blind alleys". This
would have to presuppose that there is an alley. Thus, while the
right of the Committee is respected to the extent that there exists
an obligation on the petitioners to respond to the summons, the
proceedings cannot be permitted to go on in a manner that
encroaches upon the prohibited entries. [Para 206][724-E-G;
725-A]
4.7 The police cannot be the sole custodian of peace and
harmony and that the expression itself has various connotations.
Despite the State Government being denuded of certain powers,
it has to be noted that governance has many manifestations, and
functions of the Government can be realised in different ways.
This is especially true in the present case where the situation
was admittedly created through an intrinsically law and order
issue. The moot point is whether the expression "peace and
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harmony" can be read in as expanded a manner as sought to be
done by relying on a number of Entries in List II and List III.
Peace and harmony, whether in the National Capital or in a State
context, is of great importance. But it would be too much to permit
the argument that peace and harmony would impact practically
everything and thus, gives power under different entries across
the three lists. It is however, recognised that the inquisitorial
and recommendatory powers can be utilised under the principle
of better governance. [Paras 207, 208][725-B-D]
4.8 While keeping in mind Article 212 which restrains courts
from inquiring into the proceedings of a legislature, a narrow scope
of judicial review has always been appreciated and understood.
The Committee can trace its legitimacy to several Entries in List
II and List III without encroaching upon the excluded fields of
public order or police to undertake a concerted effort albeit not
to the extent as canvassed. Facebook cannot excuse themselves
from appearing pursuant to the New Summons issued to them on
03.02.2021. Areas which are not otherwise available to the
legislature for its legislative exercise may, however, be
legitimately available to a committee for its deliberations. This is
so in the context of a broad area of governmental functions.
Ultimately, it is the State Government and the State Assembly
which has to deal with the ground reality even in the dual power
structure in Delhi. It cannot be said that informed deliberation
inter alia on the best measures through which online mass hate
and violence in their geographical jurisdiction can be addressed
would not be within the Committee's area of competence as it
would undermine the very purpose of a vital democratic polity.
[Paras 209, 210][725-E-H; 726-A-C]
4.9 The unfortunate communal riots between 24th and 29th
February, 2020 in various parts of Delhi, led to the death of 53
persons, caused significant damage to public and private property,
disruptions to schools, transport, water supply, medical and other
civic amenities. The complexity of communal tensions and their
wide-ranging ramifications is a matter affecting citizens of Delhi
and it cannot be said that the Government of NCT of Delhi cannot
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look into the causal factors in order to formulate appropriate
remedial measures. Appropriate recommendations made by the
State Government in this regard could be of significance in the
collaborative effort between the Centre and the State to deal with
governance issues. It is in that context that this Court had
recognised that certain local interests are best addressed by the
elected representatives of the concerned State. Because of the
pervasive impact of the riots, the Committee could legitimately
attend to such grievances encompassing varied elements of public
life. Thus, it would be entitled to receive information and
deliberate on the same to examine their bearing on peace and
harmony without transgressing into any fields reserved for the
Union Government in the Seventh Schedule. [Paras 211, 212]
[726-C-E, G; 727-A]
Delhi Minorities Commission, Government of NCT of
Delhi, Report of the DMC Fact-Finding Committee on
North-East Delhi Riots of February, 2020 - referred
to.
4.10 Now turning to the Terms of Reference. In the larger
context of what the Committee is supposed to do, reliance was
placed on paragraph 4(i), i.e., to 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 with the object
of establishing harmony among different religious or linguistic
communities or social groups. This is not purely a law and order
or policing aspect and has several connotations. It was not
necessary at that stage for the Terms of Reference to spell out
as to what aspects it would legislate upon (having legislative
competence) and on what aspects it would like to consider making
recommendations. That would have been a pre-hearing of the
issue. The object of para 4(i) of the Terms of Reference was to
consider petitions, complaints or reports from the members of
the public, social organisations and journalists on the matter in
issue where communal riots have occurred. Once again this was
intrinsically linked to the larger issue. However, the real
troublesome aspect is para 4(vii). Clearly it is not within the remit
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of the Assembly to recommend action against such persons against
whom incriminating evidence is found or prima facie case is made
out for incitement of violence. This is an aspect purely governed
by policing. It is the function of the police to locate the wrong
doer by investigation and charge them before a competent court
and this is what has really given a handle to the petitioners to
approach this Court. In order to justify the legislative competence
and the remit of the Committee, the respondents have practically
given up this para 4(vii) and the same is recorded and it is made
clear that this cannot be part of the remit of the Committee.
[Paras 213-216][727-B-D; 727-F-H; 728-A]
4.11 Wiser advice prevailed in issuing the New Summons
dated 03.02.2021, which consciously specified the diluted area of
inquiry, conscious of the aforesaid limitation and rightly so. What
it takes care of is that it is not addressed to Petitioner No.1 directly
but instead it calls for the views of an authorised representative
of Petitioner No. 2, Facebook India. It has rightly used the
expression "requested" and also used the expression "could"
in the context of initiation of proceedings for breach of privilege
and has categorically withdrawn the previous notices and
summons. The result of the aforesaid is that fallacies in the notices
stand removed. The statements made by the Chairman of the
Committee during the press conference cannot be diluted or
brushed aside. The said statements and conclusions are
completely outside the remit of the Committee and should not
have been made. That it may give rise to apprehension in the
minds of the petitioners can also not be doubted. It was sought
to be conveyed that in view of the "incriminating material", the
representatives of Facebook would be called upon to satisfy
principles of natural justice before conviction. The prima facie
view expressed is that Facebook is a co-accused and hence,
investigations regarding their role during the Delhi riots should
be carried out and after such investigation, a supplementary
chargesheet should be filed. it is as if the Committee was
convinced that Facebook must be prosecuted, and as if the
Committee itself was the prosecutor with a right to direct the
filing of a supplementary chargesheet. It was meeting as a formality
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to give a right of hearing before doing so, i.e. "before taking any
action." Such statements are hardly conducive to fair proceedings
before the Committee and should have been desisted from. This
is especially so as that was not even the legislative mandate, and
the Assembly or the Committee had no power to do any of these
things. In view of the aforesaid, thus, while giving the widest
amplitude in respect of inquiry by a legislative committee, certain
fetters are put in the given factual scenario otherwise tomorrow
the proceedings itself can be claimed to be vitiated. [Paras 217219, 221-224][728-B-F; 729-B-F]
4.12 The importance of Committees cannot be over
emphasised. Committees seek to perform the function of holding
the Government accountable to implement its policies, and its
duties under legislation and the performance of governmental
agencies can be the subject matter of reports formulated by these
Committees. However, in the context of the present case, on a
particular subject matter there is no legislative mandate to enact
a legislation even if, in a broader sense, an inquiry is made. Thus,
the aspect of holding the State Government accountable is not
really envisaged as per the Terms of Reference. Rather, it seems
as if the Committee seeks to hold certain private players
responsible for a law and order scenario, which is within the
domain of the Central Government. Therefore, the general
principles applicable to Committees would apply with a little
difference in the given scenario. the wide jurisdictions of the High
Court under Article 226 or of this Court under Article 32 of the
Constitution should not normally be exercised in a manner
oblivious to the enormous work carried out by the Parliamentary
Committees "in the field". An Assembly, more so in the nature
of Delhi Assembly with its own peculiarities (i.e., the exclusion
of certain powers), even if given the widest amplitude and powers
which a Committee should have; cannot step on the toes or rather
shoes of an entity having exclusive jurisdiction by reason of List
I. The Committee cannot have a misconception that it is some
kind of a prosecuting agency which can embark on the path of
holding people guilty and direct the filing of supplementary
chargesheet against them. This aspect has to be kept in mind by
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the Committee so as to not vitiate future proceedings and give
rise to another challenge. In any eventuality, as speculative as it
may be, if the Committee seeks to traverse the path relating to
the excluded Entries, i.e. law and order and police, any
representative of Facebook who would appear before the
Committee would be well within their right to refuse to answer
the query and such an approach cannot be taken amiss with
possibility of inviting privilege proceedings. It is a delicate balance
to follow and the Court does not seek to give an excuse to the
representative of the petitioners to not answer questions and
frustrate the proceedings before the Committee qua the
petitioners. However, at the same time, this very limited
protection is given were the Committee to embark on these
prohibited areas. [Paras 225-227][729-G; 730-A-H; 731-A-C]
5. The ratio/directions:
I. There is no dispute about the right of the Assembly or
the Committee to proceed on grounds of breach of privilege per
se.
II. The power to compel attendance by initiating privilege
proceedings is an essential power.
III. Members and non-Members (like the petitioners) can
equally be directed to appear before the Committee and depose
on oath.
IV. In the given facts of the case, the issue of privileges is
premature. Having said that, the insertion of para 4(vii) of the
Terms of Reference taken along with the press conference of
the Chairman of the Committee could legitimately give rise to
apprehensions in the mind of the petitioners on account of which
a caveat has been made.
V. Canvassing a clash between privilege powers and certain
fundamental rights is also preemptory in the present case.
VI. 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.
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VII. The 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 I.T. Act.
VIII. 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.
IX. Para 4(vii) of the Terms of Reference does not survive
for any opinion of the Committee. It will not be permissible for
the Committee to encroach upon any aspects strictly within the
domain of Entries 1 and 2 of List II of the Seventh Schedule.