Facebook Cannot Invoke Article 32; Ajit Mohan's Rights Not Violated : Delhi Assembly Tells Supreme Court

Dr. Abhishek Manu Singhvi, senior counsel appearing on behalf of the Delhi Assembly panel concluded his submissions today in the plea filed by Facebook India's Vice President, Mr. Ajit Mohan challenging the summons issued to him by the Delhi Legislative Assembly's Committee on Peace and Harmony.

A bench comprising of Justice S.K. Kaul, Justice Hrishikesh Roy and Justice Dinesh Maheshwari continued to hear Mr. Mohan's plea for the third consecutive week.

Beginning his submissions in the first half of the proceeding today, Dr. Singhvi concluded by submitting that the petitioner, by filing an Art. 32 petition in the Apex Court, wants an advance ruling with respect to a committee which is at the stage of summoning witness.

According to Dr. Singhvi, the role and functioning of the Committee, as noted in the Kalpana Mehta judgment, cannot be limited to public order only.

"Can you limit the legislature only to public order? Can you limit that to one entry? Is it not constitutionally wrong and misleading to put a narrow straight-jacket?" Singhvi submitted.

During the course of hearing, Justice Kaul had sought clarification from Dr. Singhvi on the aspect of encroachment of jurisdiction of entries vested to the Delhi Legislative Assembly.

To this, Dr. Singhvi requested the bench to take note of his submission wherein he dictated:

"In view of the constitutional exclusion of entries 1, 2 and 18, List 2, sanctified by the Supreme Court Constitution Bench in the NCT judgment, the Respondent has never and does not ever intent to encroach upon this constitutional demarcation and the petitioners are merely tilting at windmills in advance."

Furthermore, Dr. Singhvi went ahead to argue that the Courts cannot have a restricted approach as far as interpreting the powers of the legislative assembly under various lists are concerned.

"There will always be sub-laps but that cannot be restricted by your lordships" Singhvi argued.

While relying heavily on the Kalpana Mehta judgment in backing up his argument on functioning of the committee, Singhvi argued that parliamentary committees have an inquisitorial power which includes the power to summon witnesses and recording of their evidences on oath.

However, according to Singhvi, in the present matter, that power is not even exercised as the case is at a premature stage of summoning.

"That inquisitorial power is useless unless you summon somebody and asks questions. That power after stage 2, stage 3, stage 4 and stage 5 may result in a product. Then that product will be judged constitutionally. Not on the stage of summon, recommendation or discussion. If the ultimate product is noxious, your lordships will strike it down. But on stages of summon on discussion, how can that be struck down?" Singhvi remarked at the outset.

Lastly, arguing on the jurisdictional aspect of the matter, Singhvi argued that Facebook, being a corporation, has no locus to approach the Supreme Court under Article 32 and to get over that difficulty, the writ has been filed with Ajit Mohan, the Facebook Vice President, as the first petitioner. However, Mohan has not been individually affected. The substituted summons sent by the Assembly requires only appearance by a senior responsible person from Facebook, and not necessarily Mohan.

Moreover, it was the case of Dr. Singhvi that Mr. Mohan is not a shareholder of Facebook or Facebook India, petitioner 2 and 3 respectively and that corporations alone cannot invoke Art. 32 jurisdiction.

"Summons are not subjected to Art. 21 otherwise the constitutional structure will come to a standstill. Where is the question of Art. 21 violation here? There is no privacy of a corporation. So long as Mr. Ajit Mohan doesn't show that his privacy rights are violated or I have asked him self incriminating questions, absent that, why are your lordships asked to answer on Art. 19(1)(a) because they have raised some abstract questions of law? It is not even a maintainable Art. 32 petition." Singhvi submitted.

At this juncture, Justice Kaul intervened and asked Dr. Singhvi about the remedy available to Facebook in case it was not intending of appearing before this committee. To this, Dr. Singhvi responded "The remedy is that the committee can refer the case to speaker. Then the speaker can consider it and refer it to an independent adjudicatory body being the privilege committee. Summons may then be issued. There are 4 to 5 stages I can think of now."

After conclusion of submissions by Dr. Singhvi, Senior Advocate Rajeev Dhavan began his submissions today on behalf of the Committee of Peace and Harmony.

Before beginning the submissions, Justice Kaul sought clarification from Dr. Dhavan if he wanted to have Mr. Salve's views on the fresh substituted notice issued in the matter.

To this, Dr. Dhavan expressed his discontent by arguing "Why has a substituted notice been given when the entire argument was over Mr. Ajit Mohan's rights? I was given pressure from the bench. I am serious about this. I find this distasteful. And therefore, Mr. Mohan would apprehend something which should be substituted. My respectful argument is that first summons and second summon was correct and new summon shouldn't have been made."

While arguing so, Dr. Dhavan submitted that the only difference in the new summon is that of "sending the best man". According to Dr. Dhavan, since Mr. Salve argued strictly on the aspect of Mr. Ajit Mohan's appearance and not on the aspect of "sending the best man", the whole position of Petitioner no. 1 i.e. Ajit Mohan and his violations of fundamental rights was unclear.

At this stage, Justice Kaul asked Adv. Mayank Pandey, AOR for the petitioner as to whom the fresh summon was given. To this, Mr. Pandey informed the bench that it was served to Facebook and that Mr. Salve would be addressing the arguments in length on behalf of Petitioner no. 1 and 2.

Beginning his submissions, Dr. Dhavan started with arguing on the principle of exclusionary jurisdiction in the exclusive case of Government of NCT of Delhi (GNCTD).

"When Delhi Riots happened, buses were burnt not very far from my house. Will the Central Govt jump into it, I don't think so. Will the NCT of Delhi jump in? The basic argument is, because they are excluded from Police, they are not permitted to come in. They are restricted. The only kind of action which can be taken is police action. The end result is that nobody will look into issues of peace and harmony. I shudder to think what will be the consequences of such an argument, when they say that in case of any communal disturbance, the only action which can be taken is police action. Nothing will be more harmful to public harmony to send the police." Dhavan argued.

Giving short descriptions of his arguments, Dhavan submitted before the bench that the legislative privileges are frozen under Art. 194 (3) of the Constitution and being in such a frozen state of affairs, any claim by the petitioners on the parliamentary privileges cannot sustain.

Touching upon the jurisdictional aspect of the petition, Dhavan argued that there was a "symbiotic relationship" between Mr. Ajit Mohan and Facebook and that in such a situation, the veil on Mr. Mohan should be lifted.

Referring to the reply filed by Mr. Salve to the new substituted notice, Mr. Dhavan submitted that "Here they are saying this is out top man. All that nuances "we don't know" "a better man", this makes it clear that this is the man. Your lordship wanted to know the position of the other side, I explored it. Its on affidavit. This is the view of Facebook that this is our top man. So Mr. Ajit Mohan appears as an Indian citizen. The point is that you needed an Indian citizen which is why Mr. Ajit Mohan was called."

The matter will now be heard tomorrow i.e. 10th February 2021.

Reports of previous hearings:

Only Centre Can Control Internet Intermediaries; Legislative Assembly Cannot : Salve Submits For Facebook VP

Delhi House Panel Cannot Deal With 'Law And Order' As It Is Union's Subject : Salve Submits For Facebook VP

Delhi Assembly Lacks Competence To Summon Facebook For Enquiry Into Delhi Riots : Datar In Supreme Court

Any "Senior, Responsible Officer" From Facebook Can Appear Before Delhi Legislative Assembly: Dr. Abhishek Singhvi Clarifies Before Supreme Court

Delhi Assembly Competent To Discuss Delhi's Peace & Harmony : Singhvi Defends Summons To Facebook VP