Facebook Vs Delhi Assembly- State Assemblies Cannot Deal With Issues Demanding National Response: Centre Tells Supreme Court
"If your lordships finds that there is a problem with Facebook, answer is not to give power to one committee of a state legislature. The answer is that there should be a national response by the national body namely the Parliament." - Tushar Mehta, SGI
The Solicitor General of India, Tushar Mehta representing the Central Government on Wednesday informed the Supreme Court that the problem emerging from social mediums like Facebook and Twitter is an "uncontrollable global problem" which cannot be legislated by State Assemblies. He also told the Court that such an issue of global importance has to be examined on a national level by a national...
The Solicitor General of India, Tushar Mehta representing the Central Government on Wednesday informed the Supreme Court that the problem emerging from social mediums like Facebook and Twitter is an "uncontrollable global problem" which cannot be legislated by State Assemblies. He also told the Court that such an issue of global importance has to be examined on a national level by a national body namely the Parliament.
"This is an uncontrollable global problem. By the nature of this problem, this has to be examined on a national level. We cannot have 20 committees looking into what can be done." Submitted SGI.
The submission came while a Supreme Court bench comprising Justice S.K. Kaul, Justice Hrishikesh Roy and Justice Dinesh Maheshwari was hearing the challenge made by Facebook India Vice President Ajit Mohan to the summons issued by the Delhi Assembly panel to enquire into the role of social media behind Delhi riots.
Clarifying the stand of the Central Government on the issue, SGI informed the Court that it was neither on the side of Facebook nor the Delhi Legislative Assembly. The clarification came after the bench insisted the SGI to "clear its stand" since nothing was put on the affidavit by the Union of India.
SGI informed the Court that the submission of the Central Government is restricted to the point of jurisdiction of the Delhi Assembly in summoning people and asking them to give evidence on oath.
While arguing that Delhi is a "sui generis case", SGI informed the Court that there is a specific entry in the Union List dealing with telecommunications which makes the field occupied by the Parliament and therefore, it is not within the legislative competence of a State Assembly to deal with issues concerning intermediaries like Facebook.
Submitting that the issue must strictly be dealt by the Parliament and not the States, SGI argued:
"Our constitutional envisages cooperative federalism but sometimes we have to differentiate between cooperative federalism and constructive federalism. It would be hazardous if every unit of the States will start commenting upon everything."
At the outset, he submitted that in the event of an overlapping between an entry in List 1 (Union List) and List 2 or List 3, the Union List will prevail owing to the doctrine of pith and substance.
"Your lordships will go through the 3 Lists. Entry in List 2 or 3 which is general in terms, but there is a specific entry in List 1, and it is that list which will prevail. There might be some overlapping. But the pith and substance test is here. This question isn't coming before your lordships for the first time. If there is a specific entry in Union list and the field is occupied by their committee, there is a parliamentary standing committee on IT which is going into it." SGI submitted.
Backing up the submission, SGI referred to the judgment of Pandit MSM Sharma v. Shree Krishna Sinha wherein the Court held that "Parliamentary privilege is defined as " the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals."
SGI concluded his submissions by arguing that the offences pertaining to intermediaries like Facebook are statutorily covered by the Information Technology Act, regulation of which is within the domain of the Union of India.
"Facebook is an intermediary. It cannot be doubted. If the intermediary plays any role having impact on peace, public order or harmony, the legislature contemplates sec. 69A. Recommendations can be made by NGOs, individuals or experts. But here we have an Assembly which cannot do so." SGI argued.
Furthermore, the SGI ended his submissions by arguing that a committee of Delhi Legislature embarking on anything which is not under its competence, would be "colorable exercise of power" by the Assembly.
"If they want law and order, if peace and harmony was jeopardized, that is not within their competence. Discussion can be done but recommendation cannot be permitted. There is no concept of the committee having recommendatory jurisdiction." SGI submitted at the outset.
The matter will now be heard on 24th February 2020.
Previous Reports can be read here:
Delhi Assembly Competent To Discuss Delhi's Peace & Harmony : Singhvi Defends Summons To Facebook VP