Only Centre Can Control Internet Intermediaries; Legislative Assembly Cannot : Salve Submits For Facebook VP
A three judge bench of the Supreme Court headed by Justice S.K. Kaul on Thursday heard Facebook India Vice President, Ajit Mohan's challenge to the two summons issued by the Delhi Legislative Assembly's Committee "Peace and Harmony" in connection with the Delhi riots that broke out in February 2020. The two summons were issued on 10th September 2020 and 18th September 2020 demanding...
A three judge bench of the Supreme Court headed by Justice S.K. Kaul on Thursday heard Facebook India Vice President, Ajit Mohan's challenge to the two summons issued by the Delhi Legislative Assembly's Committee "Peace and Harmony" in connection with the Delhi riots that broke out in February 2020.
The two summons were issued on 10th September 2020 and 18th September 2020 demanding Mr. Mohan to appear before the committee for testifying on the role or complicity of Facebook officials in Delhi riots. On September 23, the Court had recorded the submission made on behalf of the Chairman of the Assembly Panel that no coercive action will be taken against the Ajit Mohan for failing to appear.
Senior Advocate Harish Salve appeared on behalf of Mr. Ajit Mohan today.
The thrust of Mr. Salve's submissions rested on the argument that the Committee could not have summoned him as being a third party and that the privileges of the Delhi Legislative Assembly does not include to compel appearances of non members.
According to Mr. Salve, "How the privilege of the house can be reconciled with the Right to Privacy and Right to Free Speech and Expression including the Right to Silence enshrined under Part III of the Constitution?"
Furthermore, Mr. Salve argued on analyzing the concept of parliamentary privilege by examining the Indian concept with the UK concept of privileges.
"The word privilege means it is a shield. It is your privilege. The genesis of privilege is that the privilege of people is against the crown. They have misunderstood the notion of what is a privilege. And it can only relate to legislature and executive." Mr. Salve submitted.
Salve also submitted that the stand of the Committee on cooperative federalism is misconceived as it does not authorize the Committee to intrude upon matters reserved exclusively for the Union of India.
Mr. Salve also submitted that the sole purpose of the Committee for summoning Mr. Ajit Mohan was a "politically polarized matter". In submitting so, he argued:
"The notice was sent to Mr. Ajit Mohan. That is for the Facebook to decide who will be the competent person. He has been told that "you" have been heading Facebook India and hence you will be the best suited person. They don't want to hear facebook but Mr. Ajit Mohan. These are politically polarized narratives. I don't want to say it."
In view of this, it was the case of Mr. Salve that Mr. Mohan, being the Facebook India Vice President, does not wish to appear before the committee as he did not want to be a part of a political debate and that this was well within his rights of remaining silent to do so.
"Lets not have the concept of cooperative federalism. The committee was clear since the beginning what it wanted to do. The committee wanted to drag us because it wanted to say that Facebook was siding with the ruling government." He argued.
On the issue of dealing with complaints of hate speech, Mr. Salve argued that Indian legislature has an existing law for dealing with instances of hate speech under the Information Technology Act.
While relying on the Shreya Singhal Judgment, Mr. Salve submitted that sec. 69 of the Act offers a mechanism of filing a complaint either in the court or to the police officer.
"You can go to a court and take an order to take down the content or you can go to a police officer. And since you are taking down somebody's content, it is the principle of natural justice that you hear the person and the intermediary. These are matters which are covered by law." Salve submitted.
According to Mr. Salve, regulation of Intermediaries, including in connection with the Facebook service, falls within the exclusive domain of the Union of India under Entry "communication" in the Union List (Entry 31 of List I of the Seventh Schedule).
"If an organization is working in a certain way, that is for Union Government to summon us. The Legislative Assembly cannot do so. They (Committee) rely on Wall Street Journal articles which are completely polarized. This is not how the powers are to be exercised. This is abuse of powers." He argued.
Moreover, Salve went ahead to argue that a privilege is primarily meant to be shield. A privilege is considered as something necessary to enable the house to conduct its business. According to him, such privilege could extend to those who are connected with executives.
"There are therefore two dimensions, first, privileges are to enable you to discharge your functions, and second, they are against the executive government. The shield of privilege is to prevent the crown, which in our system will be the executive from interfering with the working of a house." He argued.
The matter will now be heard on 27th January 2021 on Wednesday.
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