Fifteen years ago, a college dropout managed to convince the world that he could save it by connecting it, and the result was a tech conglomerate that controls the way 2 billion people talk, think, vote, and remember, with profound implications for the rest of humanity. While the halo around Facebook’s motives has since dimmed considerably, the arrogance fuelling its dominance and growth retains gargantuan proportions.
Consider a few examples. Despite overwhelming evidence that Facebook enabled interference in democratic elections (see the US in 2016), it has taken negligible steps to resolve this; in India, Facebook continues to allow unauthorised advertisements in violation of the Election Commission of India’s pre-certification requirements to proliferate on its platform. Despite an acknowledgement that hate speech on the platform has incited widespread communal violence, no meaningful changes have been made; in India, the platform continues to selectively apply moderation rules to hate speech based on the political climate.
Recently, when the Peace and Harmony Committee of the Delhi assembly (P&H Committee) summoned Facebook’s Indian vice-president (VP) in connection with an inquiry into occurrences during the Delhi riots of 2020, Facebook refused to appear and instead challenged the authority of the P&H Committee to issue summons before the Supreme Court of India.
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State assemblies in India have often used their powers of privilege petulantly; a prime example is the Special Reference No. 1 of 1964 case, where the Uttar Pradesh assembly ordered the arrest of an allegedly disrespectful private citizen, and subsequently his lawyer and the two judges of the Allahabad high court who later ordered his release. Facebook is thus, of course, entitled to challenge any over-reach by the Delhi assembly. However, the fact remains that a foreign company with a known history of facilitating human rights violations has refused to meaningfully engage with a body of elected representatives concerned with horrific violence affecting their citizens, by relying on a series of rather faulty legal arguments.
This article examines the arguments advanced by Facebook in its petition before the Supreme Court (Ajit Mohan v Legislative Assembly, NCT of Delhi, 2020); a fact-checking of their propositions, if you will.
On the Competence of the Delhi Assembly
The terms of reference of the P&H Committee, which lay out the scope and extent of its mandate, specify, inter alia, that it shall examine factors responsible for the Delhi riots, consider complaints from the public, and make recommendations to the government. Facebook contends that these objectives are beyond the jurisdiction of the assembly since they relate to matters exclusively under the jurisdiction of the Central government via the allocations in Schedule VII of the Constitution: Entry 31 in List I (Communications), and Entry 1 (Public Order) & 2 (Police) in List II, which cover the scope of the issues assigned to the P&H Committee, are beyond the jurisdiction of the Delhi assembly. On this basis, the authority of the P&H Committee to summon the VP is impugned.
This is, however, incorrect. While the Delhi assembly cannot pass laws pertaining specifically to the aforesaid subjects, it is not prevented from discussing, inquiring into, passing resolutions, or making recommendations on these issues. The function of a state assembly is not merely to pass laws, but also to discuss and pass resolutions on matters of public importance, and make recommendations to the government. Wide freedom in respect of such discussions and resolutions has always been the norm, even where legislative competence is not possessed. Consider the fact that multiple State Assemblies passed resolutions against the Citizenship Amendment Act (CAA) which was enacted by parliament in 2019, and that the Tamil Nadu state assembly has consistently passed resolutions against the Sri Lankan government on the ethnic conflict in the country.
Indeed, free speech in the assembly has been held by the judiciary in numerous cases to be ‘absolute’, ‘unfettered’, and ‘sacrosanct’, limited solely by rules of procedure and express Constitutional restrictions. In Markandey Katju v Lok Sabha, the Supreme Court held:
“insofar as discussion in Parliament is concerned, the only substantive restriction in the Constitution is that no discussion shall take place concerning the conduct of a Judge of the Supreme Court / High Court in the discharge of his duties. Barring such provision under Article 121, the Constitution has placed no restriction on what can be debated or discussed in Parliament.”
Thus, Schedule VII, which enumerates a division of the legislative competences between the Centre and state to create a harmonious federal union, entails no restrictions on speech in the Assembly.
Facebook India’s Ajit Mohan and Delhi assembly panel on Peace and Harmony head Raghav Chadha. Photos: Facebook and Twitter/@AamAadmiParty
On the power to summon witnesses
Facebook further submits that the Delhi assembly has no power to compel non-members to appear before it, unless they impede the drafting or enactment of legislation. Yet this is unsupported by the two cases cited in Facebook’s petition; both the Katju case and Karnataka v Union of India establish that privilege motions and contempt powers may be exercised to prevent interference with the fundamental functioning of the House. As discussed above, this is not limited merely to drafting or enacting laws but includes inquiries by House Committees and other empowered functions.
Article 194 of the Constitution provides that the state legislatures may define its own powers, privileges and immunities, and Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi explicitly enables House Committees to take evidence, summon witnesses, and call for documents. Moreover, Section 18(3) of the Government of National Capital Territory of Delhi Act, 1991 provides that the state assembly and its committees shall enjoy the same powers, privileges and immunities as that of the Lok Sabha, and Rules 269 and 270 of the Rules of Procedure and Conduct of Business in Lok Sabha expressly enables the House to summon witnesses, send for persons and papers, etc.
Thus, the ability to summon a witness such as the Facebook VP is a power and privilege of the P&H Committee, and the disregard of such summons would amount to a breach of privilege, which is punishable as contempt of the house. The Supreme Court has acknowledged the power of the assembly/parliament to punish for contempt in a plethora of cases, including Raja Ram Pal v Speaker, Lok Sabha.
On the violation of the VP’s fundamental rights
Facebook also submits that by summoning their VP, the Delhi assembly is violating his fundamental rights: to remain silent (Article 19(1)(a)), and to privacy and personal liberty (Article 21). While it is ironic that Facebook would claim for itself the very rights it has been repeatedly accused of vitiating across the globe, let us examine these arguments closely.
Facebook contends that the right to remain silent entitles their VP to refuse to appear before the P&H Committee; it relies on the observation of the Supreme Court in Selvi v Karnataka that an individual’s decision to make a statement is a ‘private choice’ and there ‘should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties’.
However, Selvi was a case where the constitutionality of invasive interrogation techniques was being challenged, and the aforesaid observation was made with specific reference to the use of brain-mapping, lie-detector tests and narco-analysis, to probe the mind of a person. The phrase ‘interfere with such autonomy [of the individual]’ must be understood in this context, wherein there is invasive compulsion employed on an individual to violate her mental privacy.
No such invasive action has been threatened against the VP or is even possible within the halls of the Delhi assembly, and his right to remain silent within the Delhi assembly remains entirely intact and unimpeded. However, this only entitles him to refuse to answer a question, provided that it does not amount to a breach of privilege – it does not entitle him to refuse to appear.
Similarly, citing the summons as violative of the right to privacy and personal liberty is wholly incorrect, and a mischaracterisation of these rights. There is no search and seizure of any personal documents or items, or the employment of invasive interrogation techniques, threatened against the VP. His privacy remains wholly intact, and the summons is a reasonable imposition on his personal liberty. Moreover, the proceedings of the P&H Committee are not of a criminal nature, and the VP is not summoned to the assembly as an accused, despite the opinion of assembly members that Facebook was used to fuel the violence in the Delhi riots. Thus, the refusal to appear on the grounds of fundamental rights violations is wholly misplaced.
AAP leader Raghav Chadha during the Delhi assembly’s Peace and Harmony Committee on Monday. Photo: Twitter/Raghav Chadha
On causing a chilling effect on free speech
The final submission of Facebook is that by summoning their VP to give testimony, the Delhi assembly will cause a ‘chilling effect’ on the right of free speech of the users of the Facebook platform. In support of this absurd contention is advanced an unrelated observation of the Supreme Court in Anuradha Bhasin v UoI on how free speech on the internet is an integral part of Article 19(1)(a), a truism that is of little use here. The mere fact that a type of speech is protected does not mean that it is absolute, and the fundamental right to free speech is subject to reasonable restrictions.
Moreover, it is unfathomable how the summoning of an employee of a social media company to give testimony before a group of elected representatives would cause a chilling effect, in any manner whatsoever, on the exercise of free speech on that platform. A chilling effect on free speech is typically caused by the threat of unreasonable criminal prosecution on vague and overbroad grounds (as seen in Shreya Singhal v UoI), or such impositions by law or force that would result in self-censorship (see Rajagopal v TN) – the actions of the Delhi assembly have levied no threat against general users of Facebook, and it is unlikely (to say the least) that any user would self-censor merely because the Facebook VP has been summoned. Indeed, far more likely to chill free speech is the propagation of hate speech on Facebook, which is the very evil that the P&H Committee seeks to address.
Also Read: Political Mudslinging Over Facebook Bias Will Only Let the Social Media Giant Off the Hook
The proceedings before the Supreme Court have now been adjourned till October 15, 2020, and the Delhi assembly has deferred its summons till the petition has been disposed of. Facebook’s most vociferous claim in the interim is that it has already appeared before the Parliamentary Standing Committee on Information Technology, on issues bearing some resemblance to those undertaken by the P&H Committee. It remains to be seen if the Supreme Court will recognise the right of a body of elected representatives to question corporations operating to the detriment of citizens, or if the Delhi assembly will be further disenfranchised in favour of the Centre.
Varun Thomas Mathew is a lawyer practising in New Delhi.
