Tl;dr
A Bench of Justices Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy has rejected the plea filed by the Managing Director of Facebook India, Ajit Mohan against the summons issued by the Peace and Harmony Committee of Delhi Assembly which sought his appearance in an inquiry related to the Delhi Riots. The bench has made important observations of powers of legislatures, parliamentary privileges, and the power Facebook wields in India.
Context
In February, 2020 Delhi witnessed widespread communal riots. On 2nd March, 2020, in the wake of these riots, the Legislative Assembly of Delhi constituted a Committee on Peace and Harmony (“the Peace and Harmony Committee/the Committee”) under the chairmanship of Mr Raghav Chadha. One of the objectives of the Peace and Harmony Committee is to understand the factors which caused riots and provide recommendations to ensure such riots do not happen again. After the Peace and Harmony Committee’s constitution, it received complaints which suggested that the Facebook platform had been used to endanger communal harmony. Thereafter, on 14th August, 2020 an article published in Wall Street Journal titled “Facebook’s Hate Speech Rules Collide with Indian Politics” presented a journalistic investigation into the role of officials at Facebook India who applied content moderation policies in a partisan manner enabling hate speech.
In this context, the Parliamentary Standing Committee on Information Technology (“Parliamentary Committee”) and the Peace and Harmony Committee issued separate summons requesting Mr Ajit Mohan, Vice President and Managing Director of Facebook India Online Services Private Limited, to appear before them. While Mr Mohan appeared before the Parliamentary Committee, he refused to appear before the Peace and Harmony Committee on the ground that the regulation of intermediaries like Facebook squarely fell within the legislative domain of the Parliament (as opposed to Delhi Assembly). Upon the refusal, the Peace and Harmony Committee replied with another summon asking Mr Mohan to appear before them and stated that his refusal was inconsistent with the law of privileges of all legislatures. The law of privileges of a legislature, which is stated in the constitution (Articles 105 and 194), enables legislative assemblies and the parliament to initiate proceedings against those who hinder their functioning.
In response, Mr Ajit Mohan filed a petition under Article 32 of the Constitution before the Supreme Court of India. In the petition, Mr Mohan asked the Court to set aside the summons issued by the Peace and Harmony Committee. While the proceedings before the Court were pending, the Peace and Harmony Committee issued another summon, this time addressed to Facebook India. In the summons, the Committee requested that a competent senior representative of Facebook India appear before them. This summons was issued in supersession of the two summons issued to Mr Mohan and it substituted those summons as the subject matter of the proceedings before the Supreme Court.
Broadly, there were two issues before the Supreme Court.
- Whether the Peace and Harmony Committee established by the Delhi Assembly could summon a non-member and threaten them with breach of privilege even though they had not intruded on the functioning of the Assembly?
- Whether the Peace and Harmony Committee established by the Delhi Assembly could compel executives of Facebook to appear as a witness even though the Assembly may lack competence to enact laws on regulating intermediaries such as Facebook?
The Judgment
On 8th July, 2021 Supreme Court’s bench consisting of Justices Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy pronounced their judgment on the writ petition filed by Mr Mohan. The Court rejected Mr Mohan’s (and Facebook India’s) contentions that the Peace and Harmony Committee could not summon a non-member and investigate an issue on which it lacked the power to enact laws. The premise of the Court’s decision was that the function of a legislature is not restricted to enacting laws. The Court noted Walter Bagehot’s seminal work “the English Constitution” where he elucidated five significant functions of the legislature - elective, expressive, teaching, informing and finally, legislative. Thus, the court held that the function of the Delhi Assembly and thereby, the Committee is wider than enacting laws, hence, they could conduct an inquisition into the events leading to the Delhi riots. To that end, the Peace and Harmony Committee was justified in summoning executives of Facebook.
Mr Rahul Narayan has made a similar argument here where he has stated that:
“politically, the Assembly is the voice of the people of a State and their discussions are an expression of popular will. Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State?”
The Court also noted that the concerns of Mr Mohan and Facebook India were premature since Peace and Harmony the Committee had only summoned them and had not even asked them to show cause for breach of privilege.
At the same time, the Court also held that the Peace and Harmony Committee could not recommend actions against persons against whom incriminating evidence is found because it wasn’t within the powers of the Assembly. The Court noted that recommending actions against persons was akin to ‘policing’ which was within the remit of the Union Government in National Capital Territory of Delhi. Thus, representatives of Facebook can refuse to answer questions posed by the Committee which are strictly within the domain of the Central Government.
Observations on Facebook
The judgment is noteworthy for chronicling the powers of the legislature. But the judgment also makes several crucial observations on how Facebook functions and the power Facebook wields in India. The Court noted that:
“while Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and means to escape state censorship, we cannot lose sight of the fact that it has simultaneously become a platform for disruptive messages, voices and ideologies.” (Paragraph 2)
The Court questioned whether Facebook is merely an intermediary when it stated it is “difficult to accept the simplistic approach adopted by Facebook - that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information” (Paragraph 4). The Court used the same line of reasoning in rejecting Facebook’s contention that its non-appearance would not disrupt the functioning of the Committee, and thus will not constitute breach of privilege. The Court observed that 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.” (Paragraph 167).
Apart from this, the Court was also critical of Facebook’s conduct in other countries. The Court stated that:
“internationally, Facebook has had to recognise its role in failing to prevent division and incitement of offline violence in the context of the stated ethnic cleansing in Myanmar where a crescendo of misinformation and posts, somehow missed by Facebook employees, helped fuel the violence. The platform similarly apologised for its lack of serious response to evident signs of abuse of the platform in Sri Lanka, which again is stated to have stoked widespread violence in 2018 in the country and had to acknowledge its need to be regulated though the exact method is still unclear and a prerogative of law making authority.” (Paragraph 7)
Conclusion
The decision of the three-judge bench of the Supreme Court is welcome. In 2020, the Committee began a much-needed inquiry into the events that led to the Delhi riots. The Court’s decision allows the Committee to continue working in that direction. Importantly, the Committee is not restricted from evaluating the role of Facebook in the riots. The findings reported in the earlier mentioned Wall Street Journal article necessitated an inquiry into whether Facebook intentionally enabled the spread of hate speech on its platform. Previously, on 17th August 2020 IFF had sent a representation to the Parliamentary Committee asking them to summon Facebook’s senior management. As mentioned earlier, the Parliamentary Committee did summon Mr Mohan who duly appeared. We are glad that the Delhi Assembly can also conduct a similar exercise.
Important Documents
- Judgment of the Supreme Court in Ajit Mohan & Ors. vs Legislative Assembly National Capital Territory of Delhi & Ors. Writ Petition (C) No. 1088 of 2020 (link)
- Representation to Parliamentary Standing Committee on IT regarding the WSJ Story on Facebook India dated 17th August 2020 (link)
- Previous post examining Facebook’s Human Rights Policy and its conduct in India dated 30th March 2021 (link)