We have penned down our views on the issues raised by the petitioners, but in view of the elaborate arguments and length of the [179] judgment, we consider it appropriate to summarise the ratio/directions in the following terms: I. There is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se. II. The power to compel attendance by initiating privilege proceedings is an essential power. III. Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath. IV. In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made. V. Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case. VI. In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi.149 149 Supra note 46. [180] VII. The Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the I.T. Act. VIII. The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of onthe-ground governance being in the hands of the Delhi Government. IX. Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields. [181] 229. That brings us to the end of this saga. The writ petition is accordingly dismissed, subject to terms aforesaid.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.1088 OF 2020
AJIT MOHAN & ORS. … PETITIONERS
VERSUS
LEGISLATIVE ASSEMBLY
NATIONAL CAPITAL TERRITORY
OF DELHI & ORS. …RESPONDENTS
INDEX
S. No. Contents Page No.
1. Prolegomenon 2
2. The Factual Context 10
3. The Submissions 33
(a) The Privilege Issue 35
(b) Privileges, Free Speech and Privacy 73
(c) Legislative Competence 89
4. Recent Developments 129
5. The Opinion 135
(a) On the issue of Privilege 143
(b) On Privileges & Fundamental Rights 160
(c) On Legislative Competence 164
6. Conclusion 185
7. Postscript 187
[1]
J U D G M E N T
SANJAY KISHAN KAUL, J.
Prolegomenon1
:
1. The technological age has produced digital platforms – not like the
railway platforms where trains were regulated on arrival and departure.
These digital platforms can be imminently uncontrollable at times and
carry their own challenges. One form of digital platforms are the
intermediaries that claim to be providing a platform for exchange of ideas
without any contribution of their own. It is their say that they are not
responsible for all that transpires on their platform; though on complaints
being made, they do remove offensive content based on their internal
guidelines. The power and potentiality of these intermediaries is vast,
running across borders. These are multinational corporations with large
wealth and influence at their command. By the very reason of the
platform they provide, their influence extends over populations across
borders. Facebook is one such corporation.
2. A testament to the wide-ranging services which Facebook offers is
1 “Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers –
Comparative Common Law Perspectives (Springer, 2020).
[2]
the fact that it has about 2.85 billion monthly active users as of March,
2021.2
This is over 1/3rd of the total population of this planet. In the
national context, Facebook is the most popular social media platform in
India with about 270 million registered users. Such vast powers must
necessarily come with responsibility. Entities like Facebook have to
remain accountable to those who entrust them with such power. While
Facebook has played a crucial role in enabling free speech by providing a
voice to the voiceless and a 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. The successful functioning
of a liberal democracy can only be ensured when citizens are able to
make informed decisions. Such decisions have to be made keeping in
mind a plurality of perspectives and ideas. The information explosion in
the digital age is capable of creating new challenges that are insidiously
modulating the debate on issues where opinions can be vastly divided.
Thus, while social media, on the one hand, is enhancing equal and open
dialogue between citizens and policy makers; on the other hand, it has
become a tool in the hands of various interest groups who have
2 Facebook, Press Release, Facebook reports 1
st
Quarter 2021 Results, (2021)
accessible at https://www.prnewswire.com/news-releases/facebook-reports-firstquarter-2021-results-301279518.html.
[3]
recognised its disruptive potential. This results in a paradoxical outcome
where extremist views are peddled into the mainstream, thereby
spreading misinformation. Established independent democracies are
seeing the effect of such ripples across the globe and are concerned.
Election and voting processes, the very foundation of a democratic
government, stand threatened by social media manipulation. This has
given rise to significant debates about the increasing concentration of
power in platforms like Facebook, more so as they are said to employ
business models that are privacy-intrusive and attention soliciting.3
The
effect on a stable society can be cataclysmic with citizens being
‘polarized and parlayzed’ by such “debates”, dividing the society
vertically. Less informed individuals might have a tendency to not verify
information sourced from friends, or to treat information received from
populist leaders as the gospel truth.
3. It is interesting to note that the Oxford Dictionary in 2016 chose
“Post-Truth” as the word of the year. The adjective has been defined as
“relating to or denoting circumstances in which objective facts are less
3 UNESCO, Concept Note, Media for Democracy, Journalism and Elections in times
of Misinformation, (2019) accessible at:
https://en.unesco.org/sites/default/files/wpfd2019_concept_note_en.pdf.
[4]
influential in shaping public opinion than appeals to emotion and
personal belief.”4
This expression has a period relevance when it came to
be recognised contextually with divided debates about the 2016 US
Presidential Elections and Brexit – two important events with effects
beyond their territorial limits. The obfuscation of facts, abandonment of
evidentiary standards in reasoning, and outright lying in the public sphere
left many aghast. A lot of blame was sought to be placed at the door of
social media, it being a source of this evolving contemporary
phenomenon where objective truth is becoming a commodity with
diminishing value. George Orwell, in his 1943 essay titled “Looking
Back on the Spanish War” had expressed “…the very concept of
objective truth is fading out of the world. After all, the chances are that
those lies, or at any rate similar lies will pass into history”5
– the words
have proved to be prophetic.
4. In the conspectus of the aforesaid, 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
4 Oxford Dictionary Word of the Year 2016, accessible at:
https://languages.oup.com/word-of-the-year/2016/.
5 See K. Gessen, Introduction, 26, in All Art Is Propaganda: Critical Essays (G.
Orwell et. al., 2008).
[5]
or modulating that information. The endeavour to hide behind such
simplistic models have been found to be unacceptable by the UK
Parliament. The House of Commons Digital, Culture, Media and Sport
Select Committee in its 2018 Report had opined that this would amount
to shirking of their responsibilities with respect to content regulation on
their site.6
5. Serious questions have been raised about whether there is a faulty
architecture of such intermediary platforms and whether the kind of free,
liberal debate which they sought to encourage has itself become a
casualty, defeating the very objective of providing that platform. It is too
late in the day for companies like Facebook to deny that they use
algorithms (which are sequences of instructions) with some human
intervention to personalise content and news to target users. The
algorithms select the content based on several factors including social
connections, location, and past online activity of the user. These
algorithms are often far from objective with biases capable of getting
6 Digital, Culture, Media and Sport Committee, U.K. House of Commons,
Disinformation and 'fake news': Final Report, 20-44 (18/02/2019), accessible at:
https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/1791.
pdf.
[6]
replicated and reinforced. The role played by Facebook is, thus, more
active and not as innocuous as is often presented when dealing with third
party content.
6. In fact, in the proceedings before us, it is their contention that there
are times when they are at the receiving end of both groups alleging bias
towards the other but then this is a sequitur to their ability to decide
which content to amplify, suggest, and elevate. 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.7
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.
7 Facebook admits it was used to 'incite offline violence' in Myanmar, BBC
(06/11/2018), accessible at: https://www.bbc.com/news/world-asia-46105934.
Joshua Brustein, Facebook Apologizes for Role in Sri Lankan Violence, Bloomberg
(13/05/2020), accessible at: https://www.bloomberg.com/news/articles/2020-05-
12/facebook-apologizes-for-role-in-sri-lankan-violence.
[7]
7. There have been endeavours in light of the aforesaid by countries
like Australia, US, the UK, and the EU for ways to regulate platforms
such as Facebook in an efficient manner but their efforts are still at a
nascent stage as studies are undertaken to understand the dynamism of
the platform and its disruptive potential. A recent example has been
Australia’s effort to formulate a legislation that would require Facebook
to pay publishers for using their news stories. The law was seen as a tool
to regulate the platform’s unchecked influence over political discourse,
society, and democracy. In response, Facebook blocked all news on its
platform across the country with the result that there was some relaxation
but ultimately a via media was found. The US has also seen heated
debates arising from the 2016 Presidential elections with allegations of
supposed interference by Russia allegedly facilitated by platforms like
Facebook. Last year, the EU formulated legislative proposals namely the
Digital Services Act and Digital Markets Act, setting out rules for
platforms to follow.8
8 News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 was
formulated by Australia; See Alex Barker, Jamie Smyth et al., Facebook bans
Australian news as impact of media law is felt globally, Financial Times
(18/02/2021), accessible at: https://www.ft.com/content/cec5d055-c2d1-4d5fa392-a6343beb0b01. See also European Parliament, Social media and
democracy: we need laws, not platform guidelines (10/02/2021) accessible at:
https://www.europarl.europa.eu/news/en/headlines/society/20210204STO97129/
[8]
8. We have penned down a detailed introduction to appreciate the
gravity of what was debated before us in the context of Facebook’s hands
off approach, who have urged that they cannot be compelled to
participate in proceedings of Sub Committees formed by the Parliament
or the Legislative Assemblies. The immense power that platforms like
Facebook wield has stirred a debate not only in our country but across the
world. The endeavour has been to draw a line between tackling hate
speech and fake news on the one hand and suppressing legitimate speech
which may make those in power uncomfortable, on the other. This
delicate balance has thus far only been maintained by the intermediaries
by being value-neutral. The significance of this is all the more in a
democracy which itself rests on certain core values. This unprecedented
degree of influence necessitates safeguards and caution in consonance
with democratic values. Platforms and intermediaries must subserve the
principal objective as a valuable tool for public good upholding
democratic values.
social-media-and-democracy-we-need-laws-not-platform-guidelines.
[9]
9. The sheer population of our country makes it an important
destination for Facebook. We are possibly more diverse than the whole
of Europe in local culture, food, clothing, language, religion, traditions
and yet have a history of what has now commonly been called ‘unity in
diversity’. This cannot be disrupted at any cost or under any professed
freedom by a giant like Facebook claiming ignorance or lack of any
pivotal role.
The factual context:
10. Delhi, the capital of our country, witnessed an unfortunate eruption
of violence between 24th and 29th February, 2020 with communal riots in
different parts of North-East Delhi. This caused loss of life and property
and disrupted the working of civic services in Delhi. It need not be stated
that like any other incident of this nature, it also took a political colour.
This produced a divide in the society with people across political
affiliations blaming each other.
11. In the wake of these riots, the Legislative Assembly of the National
Capital Territory of Delhi (“the Assembly”) resolved to constitute a
Committee on Peace and Harmony (“the Committee”) under the
[10]
chairmanship of Mr. Raghav Chadha, Member, Legislative Assembly on
02.03.2020, to inter alia “consider the factors and situations which have
the potential to disturb communal harmony in the National Capital
Territory of Delhi and suggest measures to eliminate such factors and
deal with such situations so as to establish harmony among different
religious or linguistic communities or social groups.” It is the say of the
Assembly and the Committee, that it is their objective to detect what
happened and formulate recommendations to ensure it does not happen
again. It is appropriate to extract the Terms of Reference of the
Committee dated 12.03.2020 as issued by the Assembly Secretariat as
under:
“LEGISLATIVE ASSEMBLY SECRETARIAT
NATIONAL CAPITAL TERRITORY OF DELHI
BULLETIN PART-II
(General information relating to legislative and other matters)
Thursday 12th March, 2020/ 22, Phalgun, 1941 (Shaka)
No.: 11
Subject: Terms of Reference of the Committee on Peace and
Harmony.
Hon’ble Members are hereby informed that Hon’ble Speaker
has approved the following Terms of Reference for the Committee
on Peace and Harmony constituted on 02.03.2020:
1. There shall be a Committee on Peace and Harmony inter-alia to
[11]
consider the factors and situations which have the potential to
disturb communal harmony in the National Capital Territory of
Delhi and suggest measures to eliminate such factors and deal with
such situations so as to establish harmony among different
religious or linguistic communities or social groups.
2. The Committee shall consist of nine members who shall be
nominated by the Speaker.
3. The term of the Committee shall be one year.
4. The functions of the Committee shall be:-
(i) to consider the petitions, complaints or reports from the
members of the public, social organizations, journalists etc. on the
situations prevailing in a particular area/areas which have the
potential to disturb communal peace and harmony or where
communal riots have occurred and to examine in detail and
identify the factors responsible for it.
(ii) to recommend suitable measures to defuse the situation and
restore harmony among religious communities, linguistic
communities or social groups.
(iii) to recognise, reward and felicitate individuals who played a
role in the protection of fellow citizens during acts of communal
violence, or undertook any activity that led to the restoration of
peace in the state.
(iv) to recognize, reward and felicitate individuals whose
information resulted in the registration of First Information Reports
(FIRs) in relation to the crimes committed during the communal
riots.
(v) to undertake scientific study of the religious, linguistic and
social composition of the population of NCR Delhi, with a view to
identifying and strengthening the factors which unite the people
despite the diversity in terms of their social, religious, economic
[12]
and cultural tradition.
(vi) to recommend measures to be undertaken by the government
towards establishing communal harmony and peace in the state.
(vii) to recommend action against such persons against whom
incriminating evidence is found or prima facie case is made out for
incitement to violence.
(viii) to examine such other matters, broadly in conformity with
the objectives of the Committee, as may seem fit to the Committee
or are specifically referred to it by the House or the Speaker.
(ix) The Committee shall submit its report to the House. If the
House is not in session the Committee may submit the report to the
Speaker who may forward the same to the Govt. for necessary
action thereon. The Secretary shall lay the report on the Table of
the House on the first day of the next session.
(x) As soon as maybe after the submission of the report to the
House by the Committee, the Govt. shall take appropriate action in
the matter dealt with in the report and a complete statement on the
action taken by all the authorities thereon shall be laid in the House
within two weeks after the report is presented in the House.
(xi) In considering/examining the complaints/reports etc., the
Committee may engage the services of experts.
(xii) The Speaker shall reconstitute the Committee on the expiry of
its term.
(xiii) Except in respect of matters provided in these rules, other
matters in connection with the Committee shall be dealt with under
the general rules relating to the Committees.
(xiv) The Speaker may issue such directions as he may consider
necessary for regulating the procedure in connection with all
matters involving the consideration of any question that may be
[13]
brought up before the Committee.
(xv) The Committee shall have all the powers, privileges and
immunities as are available to the Committees of the Legislative
Assembly of National Capital Territory of Delhi.
C. Velmurugan
Secretary”
(Emphasis supplied)
12. It appears that the first public meeting was held on 05.03.2020,
which was attended by religious leaders, social workers and various
officials from different walks of life. It is the say of the Committee that
thousands of complaints were received which inter alia suggested that
Facebook had been used as a platform for fomenting hate and
jeopardising communal harmony. This was further fuelled by an article
published in the Wall Street Journal on 14.8.2020 titled “Facebook’s
Hate-Speech Rules Collide with Indian Politics” (“the Article”)
suggesting that there was a broad pattern of favouritism towards the
ruling party and Hindu hardliners. The Article also made serious
allegations of lapses on the part of Facebook India in addressing hate
speech content.
13. The aforesaid resulted in two important developments. The first
[14]
was that on 20.08.2020 the Parliamentary Standing Committee on
Information Technology (“Parliamentary Committee”) issued a notice
requesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President and
Managing Director of Petitioner No. 2 Facebook India Online Services
Private Limited, to appear before the Parliamentary Committee on
02.09.2020. The notice stated that the Committee was seeking Facebook
India’s views inter alia on the subject of “safeguarding citizens’ rights
and prevention of misuse of social/online news media platforms
including special emphasis on women security in the digital space.” The
letter reads as under:
“MOST IMMEDIATE
LOK SABHA SECRETARIAT
(STANDING COMMITTEE ON INFORMATION
TECHNOLOGY BRANCH)
FAX: 23010756 PARLIAMENT HOUSE
ANNEXE
NEW DELHI-110001
No.18/1(iv)/IT/2020 20th August, 2020
From
Y.M. Kandpal
Director
To
Shri Ajit Mohan
Vice President & MD,
Facebook India Online Services Pvt. Ltd.,
[15]
7
th Floor, Parsvnath Capital Towers,
Bhai Veer Singh Marg, Gole Market,
New Delhi-110001.
Subject: Examination of the subject ‘Safeguarding citizens’ rights
and prevention of misuse of social/online news media platforms
including special emphasis on women security in the digital space’
xxxxx
Sir,
I am directed to state that the Standing Committee on
Information Technology are examining the subject ‘Safeguarding
citizens’ rights and prevention of misuse of social/online news
media platforms including special emphasis on women security in
the digital space’.
2. Keeping in view the importance of the subject and its wider
implications in the present context, the Committee have decided to
hear the views of representatives of Facebook India on the above
subject at their sitting scheduled to be held on Wednesday, 2nd
September, 2020 from 1600 hrs. onwards in Main Committee
Room, Parliament House Annexe, New Delhi.
3. It is, therefore, requested that senior most representatives of
Facebook India may make it convenient to appear before the
Committee on the said date, time and venue. The
names/designations of the representatives from Facebook India
who will appear before the Committee may be intimated to this
Secretariat by 27th August, 2020 or before positively. In view of
the COVID-19 pandemic, you are requested to restrict the number
of representatives who will attend the scheduled sitting on 2nd
September, 2020 to a maximum of 5 persons.
4. You may like to submit a brief note highlighting your
views/comments on the subject matter to the Committee before
sitting. The same can be e-mailed at comit@sansad.nic.in.
[16]
5. Entry passes to the venue of the sitting may be collected
from the IT Committee Branch in advance.
6. A copy of the points of Conduct and Etiquette to be
observed by non-official witnesses appearing before the
Committee is enclosed at Annexure-I for your guidance.
Yours faithfully,
Sd/-
Director
Tel No.23034388/5235
comit@sansad.nic.in”
14. Along with the aforesaid letter was annexed as Annexure-I the
Points of Conduct and Etiquette for the guidance of witnesses appearing
before the Parliamentary Committees or their sub-committees, which
inter alia in para 8, set out as to what would constitute breach of
privilege and contempt of the Parliamentary Committee. The said
Annexure reads as under:
“ANNEXURE-I
POINTS OF CONDUCT AND ETIQUETTE FOR THE
GUIDANCE OF WITNESSES APPEARING BEFORE THE
PARLIAMENTARY COMMITTEES OR THEIR SUBCOMMITTEES.
The witnesses should note the following points while
appearing before Parliamentary Committee:
1. Due respects to the Chairman and the Committee/SubCommittee should be shown by the witness by bowing while
[17]
taking his seat.
2. The witness should take the seat earmarked for him opposite
to the seat of the Chairman.
3. The witness should take the oath, or make affirmation, if so
asked by the Chairman. The oath or affirmation will be
administered by the Secretary. The witness will take the oath or
make affirmation standing in his seat and bow to the Chair just
before taking the oath or making the affirmation and immediately
afterwards.
4. The witness should answer specific questions put to him
either by the Chairman, or by a Member of the Committee or by
any other person authorized by the Chairman. The witness may be
asked to place before the Committee any other points that have not
been covered and which a witness thinks are essential to be placed
before the Committee.
5. All submissions to the Chair and the Committee should be
couched in courteous and polite language.
6. When the evidence is completed, and the witness is asked to
withdraw, he should, while leaving, bow to the Chair.
7. The witness should not smoke or chew when he is seated
before the Committee.
8. Subject to the provisions of Rule 270 of the Rules of
Procedure and Conduct of Business in the Lok Sabha, the witness
should note that following acts shall constitute breaches of
privilege and contempt of Committee:-
(a) Refusal to answer questions.
(b) Prevarication or willfully giving false evidence or
suppressing the truth or misleading the Committee.
(c) Trifling with the Committee; returning insulting answers.
(d) Destroying or damaging a material document relative to the
[18]
enquiry.
9. The witness should not bring cellular phones inside the
Parliament House Complex.
xxxxx”
15. Mr. Ajit Mohan, Petitioner No. 1, duly appeared before the
Parliamentary Committee and offered his views.
16. The second development took place on 31.08.2020 when the
Chairman of the Committee held a press conference (“the press
conference”) wherein he summarised the complaints received in the
hearings conducted between 25.08.2020 and 31.08.2020. In this process,
he stated that it prima facie appeared that Facebook had colluded with
vested interests during the Delhi riots in February, 2020. Comments were
also made by the Chairman to the effect that Facebook ought to be treated
as a co-accused and an independent investigation should be carried out
into its role in the riots. It was stated that if the investigation uncovered
strong evidence against Facebook, a supplementary chargesheet should
be filed in this regard (we may note here itself that the stand taken during
the course of arguments was that these were not the Chairman’s own
views but were merely the views expressed by the Committee). Since
[19]
Facebook had not been heard, it was observed in the press conference
that before any action is taken in writing, Facebook should be given a
chance to appear before the Committee. Consequently, notice for
appearance was issued on 10.09.2020 (“First Impugned Summons”) by
the Assembly to Mr. Ajit Mohan in the capacity of Vice President and
Managing Director of Facebook India. The First Impugned Summons
highlighted the factum of numerous complaints alleging intentional
omission and deliberate inaction on the part of Facebook in tackling hate
speech online. The Article was also referred to and Mr. Ajit Mohan was
called upon to deliver insights to the Committee with respect to Facebook
India’s internal functioning and enforcement of policies in view of the
special knowledge that he possessed. It was clearly stated that he was
being called as a witness for testifying on oath before the Committee on
15.09.2020. Significantly, no consequences in the form of breach of
parliamentary privilege were intimated in case Mr. Ajit Mohan refused to
appear. The same reads as under:
“LEGISLATIVE ASSEMBLY
NATIONAL CAPITAL TERRITORY OF DELHI
OLD SECRETARIAT, DELHI 110054.
Notice/Summon for Appearance
No.24/3/P&H/2020/LAS-VII/Leg./33 Date: 10.09.2020
[20]
To,
Mr. Ajit Mohan,
Vice President & Managing Director,
India-Facebook,
Address:-1 Address:-2
Facebook India Online Services Pvt. Ltd. One BKC
Level-17, DLF Horizon Building, Bandra Kurla Complex
Two Horizon Centre, Golf Course Road, Bandra (E)
DLF Phase 5, Sector 43, Mumbai, India-400051
Gurugram, Haryana 122022
Subject: Notice for Appearance before the Delhi Legislative
Assembly’s Committee on Peace and Harmony, NCT of Delhi.
The Delhi Legislative Assembly’s committee on ‘Peace and
Harmony’, headed by Hon’ble Member of Legislative Assembly of
NCT of Delhi, Mr. Raghav Chadha, as its Chairman along with
other Hon’ble Members of the Legislative Assembly, assisting and
facilitating the state’s endeavour to maintain and promote an irenic
atmosphere in the city as well as establishing a conducive milieu of
concordance, peace and pacification amongst different
communities residing in NCT of Delhi.
Pertinently, the committee has received numerous complaints
alleging inter alia intentional omission and deliberate inaction on
the part of social media platform-Facebook to apply hate speech
rules and Polices which has allegedly led to serious repercussions
and disruption of peace and harmony across the NCT of Delhi. A
few complainants have also drawn considerable strength from the
news report published by The Wall Street Journal on 14.08.2020,
titled as ‘Facebook’s Hate-Speech Rules Collide With Indian
Politics’. The committee had promptly taken cognizance of
serious allegations set out in the vetted complaints and have begun
the proceedings in this regard, pursuant to which numerous
witnesses have been examined.
Significantly, in the wake of serious allegations leveled against
[21]
Facebook India unit which you have been spearheading since
2019, you, the addressee, as the Vice-President and Managing
Director of Facebook India and as a representative of the same, are
best suited to deliver insights to the committee with respect to
Facebook India’s internal functioning and enforcement of policies,
and thus, your special knowledge in this regard would be
imperative for the committee while examining the current issue in
hand.
In view thereof, the committee, under the Chairmanship of Hon’be
(sic) MLA Sh. Raghav Chadha, calls you, the addressee, as a
witness for testifying on oath and for rendering your assistance by
providing the relevant information and explanations in order to
smoothly expedite the determination of the veracity of allegations
leveled against Facebook in the complaints and depositions made
before the committee. In pursuance thereof, we hereby summon
you, the addressee, to appear before the committee on 15th
September, 2020 at 12 Noon at MLA Lounge-1, Delhi Vidhan
Sabha, for the purpose of recording your deposition on oath and
participating in the proceedings carried out by the committee.
(Deputy Secretary)
The Committee on Peace and Harmony
NCT of Delhi
PH-011-23890384
Email ID dvscommittee@delhi.gov.in”
17. One Mr. Vikram Langeh, Director of Trust and Safety, Facebook
sent a reply dated 13.09.2020 emphasising that Facebook’s internal
policies seek to protect user safety and security and also emphasised the
different mechanisms it employs to tackle hate speech content. The
factum of Facebook having given testimony before the Parliamentary
[22]
Committee was also set out. A plea was raised that the role of regulation
of intermediaries like Facebook squarely fell within the exclusive
authority of Union of India; in exercise of which the Parliament had
enacted the Information Technology Act, 2000 (“the IT Act”). Not only
that, the subject of law and order in the NCT of Delhi was stated to fall
within the exclusive domain of the Union of India. On these pleas the
First Impugned Summons was objected to and requested to be recalled.
The reply reads as under:
September 13, 2020
To,
The Hon’ble Chairman,
The Committee on Peace and Harmony,
Delhi Legislative Assembly, NCT of Delhi.
Subject: Response to Notice for Appearance before the Delhi
Legislative Assembly’s Committee on Peace and Harmony, NCT
of Delhi dated September 10, 2020
Hon’ble Chairman,
Facebook India Online Services Private Limited is in receipt of the
notice dated September 10, 2020 (“Notice”) issued by the Delhi
Legislative Assembly’s Committee on Peace and Harmony
(“Committee”).
Facebook, Inc. (“Facebook”) operates and manages the Facebook
platform, and provides the Facebook service to users in India.
Facebook shares the Committee’s concerns regarding the
dissemination of hate speech online and has implemented robust
[23]
measures to curb its spread on Facebook’s platforms. Facebook
bans individuals and groups that proclaim a hateful and violent
mission from having a presence on its platforms. Facebook seeks
to apply its comprehensive standards uniformly and has identified
a range of such individual and groups across the globe.
Facebook has also built some of the most advanced systems in the
world to protect its users’ safety and security, investing billions of
dollars in technology and hiring tens of thousands of people to
work on safety and security. Based on these efforts, we removed
22.5 million pieces of hate speech content in the second quarter of
2020 (up from just 1.6 million pieces of hate speech removed in
the last quarter of 2017), nearly 95 percent of which we removed
before it was reported to us. Facebook is committed to being more
transparent about how it combats hate speech and routinely
publishes a Transparency Report, which provides details about
steps taken by Facebook to prevent and action content that violates
its policies.
In view of the importance of this subject, the Parliament’s Standing
Committee on Information Technology (“Parliamentary Standing
Committee”) is examining the issues raised in your Notice as a part
of its inquiry into “Safeguarding citizens’ rights”. We gave
testimony before the Parliamentary Standing Committee. We are
enclosing the notice received from the Parliamentary Standing
Committee for your reference. (Annexure A)
As you are well aware, the regulation of intermediaries like
Facebook falls within the exclusive authority of the Union of India
and in exercise of this power to regulate “communications”,
Parliament has enacted the Information Technology Act, 2000.
Further, the subject of “law and order” in the National Capital
Territory of Delhi also falls within the exclusive domain of the
Union of India.
Given that the issues raised by the Notice involve subject matter
within the exclusive domain of the Union of India, and that the
matters are under active consideration by Parliament, we
[24]
respectfully object to the Notice and request that you recall it.
Facebook responds to the Notice without prejudice to, and
expressly reserving, any and all of its rights.
Sincerely,
For Facebook
Vikram Langeh
Director,
Trust & Safety, Facebook.”
18. The aforesaid was not acceptable to the Committee, which
formulated a reply to Facebook’s response on 18.09.2020, this time
addressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The three
annexures enclosed with the reply were: (a) Terms of Reference of the
Committee (“Terms of Reference”); (b) Sections 18 and 37 of the
Government of National Capital Territory Act, 1991 (“GNCTD Act”);
and (c) fresh summons issued to Mr. Ajit Mohan (“Second Impugned
Summons”) under Rule 172 of the Rules of Procedure and Conduct of
Business in the Legislative Assembly of NCT of Delhi (“the Rules”).
19. The Committee’s reply alluded to its Terms of Reference to
emphasise that it was in furtherance of the objective of good governance
and to carry out responsibilities of the State under the Constitution. The
[25]
purpose, it was stated, was to invite the public to join this exploratory
process, the remit of which included making suggestions to the Union
Government beyond using the mechanisms of the Inter-State Council.
This was stated to be in line with the principles of cooperative
federalism, which encompassed a large number of areas. It is at this
stage that a perceived element of threat was held out to Mr. Ajit Mohan
stating that his refusal to appear was inconsistent with the law of
privileges of a legislature (which extends to the Committee and its
members). He was asked to appear before the Committee on 23.09.2020
in the “spirit of democratic participation and constitutional mandates.”
Importantly, it was clearly stated that non-compliance would be treated as
breach of privilege of the Committee and necessary action would be
taken.
20. It is the aforesaid Second Impugned Summons which triggered the
filing of the present proceedings under Article 32 of the Constitution of
India by Mr. Ajit Mohan as the first petitioner, in his capacity as the Vice
President and Managing Director of Facebook India Online Services
Private Limited, which is the 2nd petitioner. The third petitioner is the
parent company, Facebook Inc., US. The array of respondents include the
[26]
Assembly as the first Respondent while Respondent Nos. 2 to 4 are the
Union of India, represented through different Ministries, being Ministry
of Law and Justice, Ministry of Home Affairs and Ministry of Electronics
and Information Technology. Respondent Nos. 5 & 6 are the Lok Sabha
and the Rajya Sabha respectively. Delhi Police was impleaded as the 7th
respondent. We may note that in the course of the proceedings the
Committee sought to be impleaded as a party and in terms of the consent
order dated 20.01.2021 the said entity was permitted to intervene. The
prayers made in the writ petition are as under:
“a. Issue a writ/order or direction in the nature of Mandamus
setting aside the Impugned Summonses dated September 10, 2020
and September 18, 2020;
b. Issue a writ/order or direction in the nature of Prohibition
restraining Respondent No.1 from taking any coercive action
against Petitioners in furtherance of the Impugned Summonses;
c. Issue or pass any writ, direction or order, which this Hon’ble
Court may deem fit and proper under the facts and circumstances
of the case.”
21. On 23.09.2020, in the presence of the counsel of the parties, notice
was issued. Dr. Singhvi, learned Senior Advocate appearing for
Respondent No.1, on instructions, stated that the meeting scheduled for
the said date had already been deferred and no further meeting would be
[27]
fixed qua the petitioners till the next date of hearing. Further, on the
Court’s query regarding the role of Respondent Nos. 5 and 6 (the Lok
Sabha and the Rajya Sabha respectively), Mr. Harish Salve, learned
Senior Advocate appearing for Petitioner Nos. 1 and 2 submitted that the
only purpose of serving them was that although no relief was claimed,
there was a perception that there may be some interplay of powers
between the Delhi Secretariat and the Secretariat of the Central
Government.
22. The aforesaid interim arrangement continued as pleadings were
completed. The matter was set down for hearing with rule nisi being
issued on 21.01.2021. The issue was debated before us on numerous
dates thereafter and the hearing concluded on 24.02.2021. We recorded
that the counsels had argued over a period of 26 hours, leaving the task to
us to pen down the judgment - which we seek to perform now.
23. At this stage, we must note a significant development that arose
during the course of the proceedings, possibly emanating from certain
questions posed by the Court qua the press conference, the summonses
issued to Petitioner No.1, and on account of certain submissions
[28]
advanced by learned counsel for the Petitioners. An affidavit was placed
before us (as recorded in the proceedings of 04.02.2021) in terms
whereof the two impugned summonses issued to Petitioner No.1 dated
10.09.2020 and 18.09.2020 stood withdrawn. A fresh notice was issued
on 03.02.2021 (“The New Summons”) to Petitioner No. 2, i.e. Facebook
India alone. The New Summons dated 03.02.2021 reads as under:
“LEGISLATIVE ASSEMBLY
NATIONAL CAPITAL TERRITORY OF DELHI
OLD SECRETARIAT, DELHI 1100 54
Committee on Peace and Harmony
No.24/3/P&H/2020/LAS-VII/Leg./1305 Date: 03.02.2021
Notice/Summon for Appearance
To,
Facebook India Online Services Pvt Limited
Address 1
One BKC, Bandra Kurla Complex
Bandra (E)
Mumbai, India-400051
Address 2
Level-17, DLF Horizon Building,
Two Horizon Centre, Golf Course Road,
DLF Phase 5, Sector 43,
Gurugram, Haryana 122022
Subject: Notice for Appearance under Rule 172 of Rules of
Procedure and Conduct of Business in the Legislative Assembly of
NCT of Delhi.
[29]
1. In supersession of earlier notice(s)/summons dated 10.09.2020
and 18.09.2020, the present notice for appearance is being issued.
2. I am directed to state that the National Capital Territory of Delhi
had witnessed unprecedented communal disharmony and violence
in February 2020. The Hon’ble Speaker of the Legislative
Assembly of NCT of Delhi has constituted a Committee on Peace
on (sic.) Harmony under the Chairmanship of Sh. Raghav Chadha
along with other Hon’ble Members of the Legislative Assembly to
recommend suitable measures to defuse the situation and restore
harmony among religious communities, linguistic communities or
social groups. The Committee aims to recommend preventive and
remedial measures concerning issues of governance, social
cohesion, unity, brotherhood and peace. The Committee further
aims to recommend measures to strengthen overall social and
economic development in the context of establishing communal
harmony and peace in society in the NCT of Delhi.
3. Keeping in view the importance of the above subject and its
implication on persons in the NCT of Delhi, various persons
including journalists, former bureaucrats and community leaders
have appeared before the Committee to offer their evidence and
suggestions. The Committee has observed and is of the opinion
that social media has a very important role in curbing the spread of
false, provocative and malicious messages which can fan the
violence and disharmony.
4. Since, Facebook has lakhs of users in the NCT of Delhi, in the
above-stated context, the Committee has decided to hear the views
of representative(s) of Facebook India on the above subject at their
sitting scheduled to be held on 25th
February, 2021 from 11 AM
onwards in MLA Lounge-1, Assembly Complex, Old Secretariat,
[30]
Delhi-110054 as per the Rules of Procedure and Conduct of
Business of the House.
5. It is, therefore, requested that a competent senior
representative(s) of Facebook India well conversant with the issues
involved may appear before the Committee on the said date, time
and venue as a witness. The names/designations of the
representatives from Facebook India who will appear before the
Committee may be intimated to this Secretariat by 24th February,
2021 or before positively. Because of the COVID-19 pandemic,
you are requested to restrict the number of representatives to a
minimum.
6. Please note that failure to send a representative as summoned
above, could in terms of the Rules of Procedure and Conduct of
Business in the Legislative Assembly of NCT of Delhi lead to
initiation of proceedings for breach of privilege/contempt of the
Assembly.
7. In light of the abovementioned supersession, previous
notice(s)/summons dated 10.09.2020 and 18.09.2020 stand
withdrawn
Sd/-
(Sadanand Sah)
Deputy Secretary
PH-011-23890384
E-mail ID: dvscommittee@delhi.gov.in ”
Dr. Singhvi submitted that since the legal position was being
debated in the larger context, the New Summons would not make a
difference, except that the specific challenge to the earlier summonses
[31]
would not stand as they stood withdrawn and had been substituted with
the New Summons. It was Mr. Salve’s view, that this would not really
be a redeeming feature and the matter still had to be debated.
24. Notably, a discordant note did arise in the stands canvassed on
behalf of the Assembly by Dr. Singhvi and on behalf of the Committee by
Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earlier
summons were as good in law as the New Summons and, thus, it made
no difference. Obviously, Dr. Singhvi thought otherwise, as there would
have been no occasion to withdraw the earlier summons and issue a fresh
summons. We say so as this is one aspect emphasised in the course of
arguments in rejoinder by Mr. Salve.
25. One aspect to be noticed is that the New Summons dated
03.02.2021 has been issued by the Deputy Secretary of the Committee.
Thus, on the one hand, the Committee deemed it appropriate to withdraw
the earlier summons and issue a fresh one (apparently wiser after some
arguments from Mr. Salve and possibly some remarks of the Court) while
on the other hand as an intervening entity, peculiarly, the stand of Dr.
[32]
Dhavan was that this was not required to be done! On this, we say no
more.
The Submissions
26. In his opening arguments Mr. Salve punched hard on the issue that
niceties aside, one has to consider the true intent with which the
summons was issued. In short, it was his say that the objective was to
file a supplementary chargesheet and rope in Facebook. To substantiate
this contention, he refers to three factors, i.e. (a) Para 4 (vii) read with 4
(i) of the terms of reference of the Committee; (b) the Article and (c) the
press conference dated 31.08.2020.
27. The aforesaid was in the background of what was a politically
polarised issue and Mr. Salve contended that the Petitioner had no intent
to become part of such a debate. The parent company (Facebook Inc.)
being an intermediary based in the US, could hardly be expected to be
roped into this political battle which formed the basis of the summonses
that have been issued. It was emphasised that the Committee’s actions
amounted to a clear and present danger of coercive action, which was in
violation of Petitioner No. 1’s fundamental rights. In the process of
[33]
reading his note of arguments, which were more detailed with different
nuances, broadly four issues were sketched out:
Does a House have a privilege to summon a person to give
evidence who is not directly or indirectly part of the executive?
Do powers of privilege extend to summoning an individual and
compelling them to give evidence on matters of fact or seek
their opinion on any subject matter?
If there does indeed exist a privilege, how is the same to be
reconciled with an individual’s right to privacy and free speech?
Is the House constrained by the subject matter which constitutes
a part of the business of the House relating to its legislative
functions?
In light of these four issues canvassed by Mr. Salve, we propose to set out
the detailed arguments and thereafter proceed with our analysis under
three broad heads – (a) the privileges issue, (b) privilege, right to privacy
and free speech and (c) legislative competence.
Privilege Issue
28. Mr. Salve took us through the history of the notion of privilege,
[34]
how it emanated, and how it is to be understood in the current context.
He urged that privilege is a special right enjoyed by the House as a shield
in order to enable it to work without fear or interference. It owes its
origination in the United Kingdom under the rubric of the constitutional
role of the House of Commons (functioning as a court). This role,
however, has to be appropriately adapted to the Indian Constitution
where there is a sharp separation of powers. A distinction was, thus,
sought to be drawn that while privileges have arisen by virtue of House
of Commons being a Court (with powers such as summoning persons to
its “bar”) it cannot be read into the privileges of a Parliament of a
republic. It was, thus, argued that in the Indian context, parliamentary
privileges are strictly restricted to legislative functions. Privileges serve
the distinct purpose of safeguarding the integrity of the legislative
functions against obstructions which could be caused by either members
or non-members. Learned counsel sought to refer to certain judicial
pronouncements in this behalf.
(i) In State of Karnataka v. Union of India9
the proceedings
related to a Commission of Inquiry appointed by the Central
9 (1977) 4 SCC 608.
[35]
Government under the Commission of Inquiry Act, 1952 against
the then Chief Minister of Karnataka. The challenge was laid by
the State Government which was repelled by a majority judgment
of six Judges with one dissenting Judge.
The most significant aspect emphasised was that the
“powers” meant to be indicated in Article 194(3) are not
independent but are such powers which depend upon and are
necessary for the conduct of business of each House. Thus, they
could not be expanded into those of the House of Commons in
England for all purposes. The Constitution is sovereign or
supreme and thus, the Parliament as well as each legislature of the
State in India enjoys only such legislative powers as the
Constitution confers upon it. A distinction was made in the role
performed by the Parliament and Legislative Assembly while
exercising its legislative power as against a court of justice. In
taking up proceedings which are quasi judicial in cases of
contempt of its authority and motions concerning its “privileges”
and “immunities”, the House only seeks removal of obstructions to
the due performance of its legislative functions. However, if the
[36]
question of jurisdiction arises as to whether a matter falls here or
not, it has to be decided by the ordinary courts in appropriate
proceedings.10
(ii) The next judgment relied upon is Amarinder Singh v. Special
Committee, Punjab Vidhan Sabha & Ors.11 In this case, Shri
Amarinder Singh, then a Member of the Punjab Vidhan Sabha was
expelled for the remaining part of the 13th Vidhan Sabha on
allegations of criminal misconduct relating back to his tenure as
the Chief Minister of Punjab during the 12th term of the Vidhan
Sabha qua alleged responsibility for improper exemption of a
vacant plot of land licensed to a private party. On a challenge
being laid, the Supreme Court opined in favour of Shri Amarinder
Singh holding that the proper course of action for the State
Government should have been to move the criminal law machinery
with the filing of a complaint followed by investigation as
contemplated under the Code of Criminal Procedure and thus, the
Punjab Vidhan Sabha had exceeded its powers by expelling the
appellant on the ground of breach of privilege when there existed
10 Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (1975) 2 SCC 159.
11 (2010) 6 SCC 113.
[37]
none. The alleged improper exemption of land was only an
executive act and it did not distort, obstruct, or threaten the
integrity of legislative proceedings in any manner observed the
Constitution Bench of five Judges. In coming to the conclusion,
the scope of the powers, privileges and immunities available under
Articles 105(3) and 194(3) have been discussed in paras 33 to 37.
It was noticed that they were not codified by way of statute till date
and, thus, the Supreme Court held that it could consider the
principles and precedents relatable to the British House of
Commons. This Court had adopted a similar approach towards the
concept of legislative privileges to interpret Article 194(3) in Re.
Special Reference 1 of 1964.
12 An aspect emphasised was that
there was a distinction between exercise of legislative privileges
and ordinary legislative functions. In that context it was observed
as under:
“45. In U.P. Assembly case (supra.), this Court had also
drawn a distinction between the exercise of legislative
privileges and that of ordinary legislative functions in the
following manner:
12 AIR 1965 SC 745.
[38]
"70. ….There is a distinction between privilege and
function, though it is not always apparent. On the whole,
however, it is more convenient to reserve the term
`privilege' to certain fundamental rights of each House
which are generally accepted as necessary for the
exercise of its constitutional functions. The distinctive
mark of a privilege is its ancillary character. The
privileges of Parliament are rights which are ‘absolutely
necessary for the due execution of its powers.’ They are
enjoyed by individual Members, because the House
cannot perform its functions without unimpeded use of
the services of its Members; and by each House for the
protection of its Members and the vindication of its own
authority and dignity."
(iii) The next judgment relied upon is in the case of Justice (Retd.)
Markandey Katju v. Lok Sabha & Anr.13 Facebook, as an
intermediary, was used by Justice Markandey Katju, former Judge
of this Court to make a statement that Mahatma Gandhi was a
British agent causing harm to India and that Netaji Subhash
Chandra Bose was an agent of Japanese fascism. This naturally
invoked the hackles of the Parliamentarians and a discussion took
place in the Rajya Sabha. A resolution was passed unanimously
with the Lok Sabha doing the same on the next day unequivocally
condemning the remarks of Justice (Retd.) Katju. Letters and e13 (2017) 2 SCC 384.
[39]
mails were written questioning this methodology as he was not
given an opportunity of hearing in compliance with the principles
of natural justice. Since it provoked no response, these resolutions
were sought to be assailed by Justice (Retd.) Katju in judicial
proceedings before this Court. Since no aspect of privilege was
invoked and it was an expression of the views of the Parliament
falling within the domain of freedom of speech in Parliament, the
petition was rejected. It is in that context that a distinction was
made between the exercise of contempt or breach of privilege
where action was sought to be initiated against a citizen,-whether a
member or a non-member. The law has developed that the action
of such citizen must have interfered with fundamental functioning
of the House so as to enable the House to initiate any proceedings
against the citizen. The earlier judgments inter alia in the case of
MSM Sharma v. Dr. Shree Sri Krishna Sinha14
, Raja Ram Pal15
,
Special Reference No. 1 of 1964 16 and Amarinder Singh17 were
discussed to conclude that Chapter 20 of the Lok Sabha Rules
14 AIR 1960 SC 1186.
15 (2007) 3 SCC 184.
16 Supra note 12.
17 Supra note 11.
[40]
entitled privileges and Rules 222 to 228 thereof deal with matters
of privileges. Similarly Rules 187 to 203 of the Rajya Sabha Rules
deal with issues concerning privileges. Thus, an inquiry would be
along the lines submitted by the petitioner only if such a privilege
action was proposed to be taken which was not so in that case.
In the conspectus of the aforesaid legal principles, it was urged that the
petitioners in the instant case being non-members could only be
summoned if they had intruded upon any functions of the Assembly.
Their non-appearance or unwillingness to participate in the debate in
which they were compelled to participate did not in any manner disrupt
the functioning of the Committee so as to face the consequences of
breach of privilege. The Committee could always make its
recommendations but the petitioners do not want to be part of it. There
were no legislative functions to be performed and thus, the contention
was that this was a case of expanding unbridled privileges in the garb of
an amorphous set of rules to make an exception to the rule of law. As
such, it was argued that the Terms of Reference had to be given a
restrictive meaning.
[41]
29. Next, Mr. Salve sought to deal with the issue of judicial scrutiny of
proceedings of the Assembly by seeking to canvas that there is no
absolute bar on Courts to look into the validity of the proceedings of the
Assembly. In the context of Article 212 of the Constitution read with
relevant sections of the GNCTD Act, if proceedings adopted by the
Assembly suffer from lack of jurisdiction or are illegal or
unconstitutional, a challenge can be made before the competent court.
Learned senior counsel relied upon judicial pronouncements in Special
Reference No.1 of 196418
, Raja Ram Pal v. Hon’ble Speaker, Lok
Sabha & Ors.19 and Kalpana Mehta And Ors. vs Union of India And
Ors.20
30. In Special Reference No.1 of 196421 the dispute arose out of a
conflict between the legislature and the judiciary, if one may say so, as a
consequence of the power exercised by the U.P. Assembly in sentencing
one Keshav Singh to be detained in a civil prison for a period of 7 days
and the judiciary (Allahabad High Court) enlarging him on bail
thereafter. This was taken as an affront by the legislature, which passed a
18 Supra note 12.
19 Supra note 15.
20 (2018) 7 SCC 1.
21 Supra note 12.
[42]
resolution against the two concerned judges to be brought in custody
before the House. A Full Bench of 28 judges consisting of the strength of
the Court thereafter assembled to deal with the petitions filed by the two
judges against this resolution. The bench restrained the Speaker from
issuing a warrant against the judges and the Marshal of the House from
executing the warrant. In order to resolve this confrontation, the
President of India decided to exercise the power to make a reference to
this Court under Art. 143(1) of the Constitution. The reference was on the
important question of the exercise of powers, privileges and immunities
of the State legislature vis-à-vis the power of the High Court and the
Judges to discharge their duties. Suffice to say that the opinion rendered
by the Court in the reference was that the powers conferred on the High
Court under Article 226 of the Constitution and the authority of the
Supreme Court under Article 32 of the Constitution are not subject to any
restrictions. It could not be said that a citizen cannot move the High
Court or the Supreme Court to invoke its jurisdiction, even in cases
where fundamental rights have been violated. Once the judiciary was
authorized to consider the validity of the actions of the legislature, it was
opined that the judiciary cannot be prevented from scrutinizing the
[43]
validity of the actions of the legislatures trespassing on the fundamental
rights conferred on the citizens.
31. In Raja Ram Pal22 a private channel’s telecast based on a sting
operation in the “cash for query case” where 10 Members of Parliament
accepted money through middlemen to raise certain questions in the
House resulted in an inquiry and subsequent expulsion of these members
from the House. The members challenged the said expulsion. The three
questions framed by the Supreme Court were all answered in the
affirmative – (i) that the Supreme Court within our constitutional scheme
has the jurisdiction to decide the content and scope of powers, privileges
and immunities of the legislature and its members; (ii) the power and
privileges of the legislature in India, in particular reference to Article
105 of the Constitution, includes the power of expulsion of its members;
and (iii) in case of expulsion, the Supreme Court had jurisdiction to
interfere to exercise such power and privileges. While rejecting the plea
on expulsion, the Court expounded on the scope of such judicial review.
Significantly, it was opined that though there would be a presumption
that the Parliament would always perform its functions and exercise its
22 Supra note 15.
[44]
powers within a reasonable manner, there could be no scope for a general
rule that the exercise of power by the legislature was not amenable to
judicial review. This would neither be in the letter nor the spirit of the
Constitution. The touchstone, however, would not be that of an ordinary
administrative action but the legislature could not be said to have the
licence even to commit a jurisdictional error.
32. In Kalpana Mehta and Ors.23 a vaccination drive conducted by
NGOs without the vaccine going through all the pre-requisite trials
caused loss of life, resulting in a parliamentary standing committee being
constituted to inquire into the matter. The report of the standing
committee was sought to be relied on in a Public Interest Litigation
dealing with the issue. The question which arose was whether such a
report of a standing committee could be relied upon in the judicial
review. The relevant observations for our purposes are the summary of
conclusions which deal with the judicial review of such legislative action.
It was opined that constitutional courts are not prevented from
scrutinising the validity of the actions of the legislature trespassing on the
fundamental rights conferred on the citizens. There could, thus, be no
23 Supra note 20.
[45]
immunity to parliamentary proceedings under Article 105(3) of the
Constitution though it was subject to the restriction contained in other
constitutional provisions such as Article 122 or Article 212. The
prohibition on the jurisdiction of the Court was restricted to the ground of
irregularity of procedure but if the proceedings are tainted on account of
substantive or gross illegality or unconstitutionality, there would be no
protection against judicial scrutiny.
33. Finally, on the issue of privileges, Mr. Salve referred to the
prevalent position in some other countries regarding the exercise of
privilege powers. It was contended that such privilege powers could not
be used to compel speech, more so when the organisation in question is
an American corporation. We may notice at this stage itself that we really
do not appreciate the second limb of this submission. When these
corporations are working within the territory of our country and are
subject to the jurisdiction of this Court, then what kind of special
privilege would they have by reason of being an American corporation or
a corporation incorporated in any other country! Now turning to the two
enactments sought to be referred to by learned senior counsel – the first
one is the Scotland Act, 1998, more specifically Section 23 and the
[46]
Government of Wales Act, 2006, more specifically Section 37. We
reproduce the relevant provisions as under:
“Section 23 of the Scotland Act, 1998:
23. Power to call for witnesses and documents
(1)The Parliament may require any person—
(a)to attend its proceedings for the purpose of giving evidence,
or
(b)to produce documents in his custody or under his control,
concerning any subject for which any member of the Scottish
Executive has general responsibility.
[…]”
“Section 37 of the Government of Wales Act, 2006
37. Power to call
(1) Subject as follows, the Assembly may require any person—
(a) to attend Assembly proceedings for the purpose of giving
evidence, or
(b) to produce for the purposes of the Assembly (or a committee
of the Assembly or a sub-committee of such a committee)
documents in the possession, or under the control, of the
person, concerning any matter relevant to the exercise by the
Welsh Ministers of any of their functions.
[…]”
[47]
34. In the context of the aforesaid provisions, emphasis was laid on the
expression “may” to submit that there is no element of compulsion. The
second aspect emphasised was that, as these legislations suggest,
privilege should relate to matters in connection with functions of the
ministers. This in turn was sought to be linked with the argument that
what the Committee was seeking to perform was not a core function of
the Assembly and thus, cannot be said to be their function. Further, if
only an opinion was being sought, as had been urged by the respondents,
then it was submitted that oath could only be on a question of fact and
not a matter of opinion.
35. Learned senior counsel also assailed the intent of the New
Summons as only a subterfuge. Compelling experts to give an opinion in
a democratic polity, it was argued, would be an “abhorrent proposition”
as it could only be a voluntary act. As such, the act of Assembly it was
stated, reeked of constitutional arrogance. In fact, what senior counsel
sought to stress was that his submission was not challenging the exercise
of privilege power but the very existence of the same. In this behalf it
was stressed that the Assembly (the Committee being only a smaller
group constituted) would have to reconcile with where their powers to
[48]
summon originate from. Entry 39 of List II (Powers, privileges and
immunities of the Legislative Assemblies) could not be a source of power
of the Assembly and the scenario was rather of a statutory source of
power emanating from Section 18 of the GNCTD Act, which was enacted
in pursuance of Article 239AA (3)(a) and (3)(b) of the Constitution. Thus,
a distinction was sought to be made between a power directly emanating
from the Constitution and one flowing from a statutory provision. In the
given facts, this was a case of the latter, which, it was urged would
necessarily have to be tested on the touchstone of Part III of the
Constitution. The relevant provisions are extracted hereinunder to
appreciate the controversy:
“Article 239AA (3)(a) and (3)(b)
239AA. Special provisions with respect to Delhi.—
xxxx xxxx xxxx xxxx xxxx
(3) (a) Subject to the provisions of this Constitution, the
Legislative Assembly shall have power to make laws for the whole
or any part of the National Capital Territory with respect to any of
the matters enumerated in the State List or in the Concurrent List
in so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2 and 18.
[49]
(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect to
any matter for a Union territory or any part thereof.”
…. …. …. …. …. ….
“Section 18 of the GNCTD Act
18. Powers, privileges, etc., of members.—(1) Subject to the
provisions of this Act and to the rules and standing orders
regulating the procedure of the Legislative Assembly, there shall be
freedom of speech in the Legislative Assembly.
(2) No member of the Legislative Assembly shall be liable to any
proceedings in any court in respect of anything said or any vote
given by him in the Assembly or any committee thereof and no
person shall be so liable in respect of the publication by or under
the authority of such Assembly of any report, paper, votes or
proceedings.
(3) In other respects, the powers, privileges and immunities of the
Legislative Assembly and of the members and the committees
thereof shall be such as are for the time being enjoyed by the
House of the People and its members and committees.
(4) The provisions of sub-sections (1), (2) and (3) shall apply in
relation to persons who by virtue of this Act have the right to speak
in, and otherwise to take part in the proceedings of, the Legislative
Assembly or any committee thereof as they apply in relation to
members of that Assembly.”
36. We may clarify at this stage that since the submissions were drawn
in the context of certain questions raised, this latter submission really
arises in the context of privilege powers vis-à-vis the constitutional
[50]
provisions under Part III of the Constitution which are to be considered
under a separate section.
37. It appears that the petitioners wanted to avail of the benefit of
another senior counsel, possibly to further buttress their submissions and
thus, Mr. Arvind Datar, learned senior counsel sought to address us next,
on behalf of Petitioner No. 3, Facebook Inc.
38. Mr. Datar, in an endeavour to trace out the constitutional history,
referred to the origin of powers and privileges by inviting our attention to
Section 71 of the Government of India Act, 1935. It was stressed that the
provincial legislatures had no powers but only privileges; they did not
have powers to punish people under that Act. Next, in the context of
Erskine May’s seminal commentary on Parliamentary Practices, it was
pointed out that Chapter XI deals with powers and Chapter XII deals with
privileges and immunities which are used interchangeably.24 Power,
however, remains, distinct. The primary power given to the House was
to make laws or legislative powers. It is these powers from the Act of
1935, which are stated to have been adopted under Article 194(3) of the
24 Erskine May’s Treatise on the law, privileges, proceedings, and usage of
Parliament, (Sir David Natzler, 25th Edition, 2019).
[51]
Indian Constitution, which applies to the State Government and every
State Assembly.
39. Learned senior counsel submitted that Delhi is different as it is on
a special footing being categorised as a Union Territory in Article 239AA
of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datar stressed
that the powers and privileges conferred on the Delhi Assembly are not
derived from the Constitution but by reason of statutory enactments, i.e.,
Section 18 of the GNCTD Act. The privilege and powers of the
Assembly are, thus, undoubtedly to be tested against Part III of the
Constitution. These being statutory in nature, the aspect of constitutional
balancing of powers with fundamental rights, as arose in In Special
Reference No.1 of 1964 25 and MSM Sharma26 does not arise in the
present case. The privilege here is a “derivative” from an Act of
Parliament and not from any Constitutional provision.
40. We now turn to the submissions of the respondents on this issue,
which were as vehemently argued. Dr. Singhvi, learned senior counsel
25 Supra note 12.
26 Supra note 14.
[52]
seeking to address submissions on behalf of the Assembly, sketched out
the contours of his submissions as under:
(i) The occasion to argue privilege has not even arisen and was
premature as there was no actual notice of privilege. There
was, thus, no factual matrix before the Court to analyse the
exercise of the power and what was being sought by the
petitioners qua the aspect of privilege amounted to seeking an
advance ruling on the issue.
(ii) Were the arguments of the petitioners to be accepted, it would
have wide ramifications on the working of the committees
across the nation both at the State as well as the Parliamentary
levels. The argument of the petitioners, it was urged, had the
propensity to destroy the system of committees which had been
found historically to do yeoman work, possibly away from the
more aggressive stances in the Parliament.
(iii) The petitioners could not be conferred with the privilege to
appear before the kind of committees they want to appear
before. The petitioners admittedly had appeared on more than
one occasion of a similar nature without any qualms.
[53]
(iv) In the similar vein, the reference to the IT Act was premature
as the Assembly was not debating any legislation of the issue
but only discussing a particular aspect.
(v) Arguments of the petitioners were premised on lack of mutual
respect and difference between the organs of our democracy.
(vi) Committee proceedings are House proceedings and the
Supreme Court would normally never interfere with House
proceedings and therefore also not with committee proceedings.
41. The obvious political divergence between Central Government and
the State Government came out quite openly during the arguments where
Dr. Singhvi sought to put forth the argument that the bold stand of the
petitioners stood on a support base from the Central Government. The
appearance before the Parliamentary Committee was sought to be
justified by the petitioners as being based on commercial and operational
reasons and not in view of any compulsion (an aspect disputed by learned
Solicitor General on behalf of the Central Government). The petitioners,
it was argued, were actually canvassing a case on absence of any
commercial and operational consequences/compulsions rather than lack
of jurisdiction. It was, however, fairly assured and rightly so, that the
[54]
Assembly and the Committee were not oblivious to the constitutional
exclusion of entries 1, 2 and 18 of List II and the respondent would never
contend to encroach upon this constitutional demarcation. One aspect
which Dr. Singhvi sought to emphasise, in our view not very
convincingly, was that the issue of the press conference was an
afterthought, raised by the petitioners to create prejudice. We say so as
the press conference being held is not in doubt nor what transpired there.
The only turn which Dr. Singhvi could seek to give to this is that what the
Chairman of the Committee mentioned in the press conference were
views of the persons who had deposed and not his own view per se. To
say the least, we find this submission very difficult to accept and we will
deal with it at the relevant stage.
42. The other aspect which Dr. Singhvi pointed out was the withdrawal
of the Second Impugned Summons and the New Summons being issued,
which no longer compelled Petitioner No.1 to appear before the
Committee. However, this aspect has been labeled as a “subterfuge” by
Mr. Salve, on account of the divergent views taken on the aspect of
withdrawal by Dr. Singhvi and Dr. Dhavan– and surprisingly so.
[55]
Consequently Dr. Singhvi will have to bear the burden of the cross for the
same.
43. On the specific plea of privilege Dr. Singhvi commenced by
seeking to establish that all committees of legislatures have the power to
summon and compel attendance. Any power, without subsidiary powers
to ensure implementation, it was urged, was akin to having no power at
all. The power to compel attendance by initiating privilege proceedings
is therefore, an essential power. The argument was further supplemented
with the contention that the power of privileges was amorphous in
common law and the Parliament has consciously not codified this area of
law so that they can cater to unimagined situations in the future.
44. Dr. Singhvi, in fact, cautioned that this Court should not embark on
the path suggested by Mr. Salve, who had argued that it was time that
these privileges were codified. Dr. Singhvi urged this Court to not even
opine on the necessity of codifying such privileges and that the same
should be left to the Parliament, if they so desire without any nudge by
this Court.
[56]
45. Dr. Singhvi sought to erase the distinction between the exercise of
privilege powers under the Constitution and under the GNCTD Act by
putting them on the same pedestal, urging that the two together provide
for the scheme of operation. Learned senior counsel referred to
provisions (7)(a) & (b) of Article 239AA in the context that the GNCTD
Act was not to be deemed to be an amendment to the Constitution for
purposes of Article 368 of the Constitution notwithstanding that it may
contain any provision which amends or has the effect of amending the
Constitution. The Assembly was, thus, submitted to be a privileged body
with members enjoying freedom of speech in the House as well as
freedom to vote and had all the privileges (under Section 18 of the
GNCTD Act) as are enjoyed by Members of Parliament. It was thus
urged that calling into question the proceedings of the Committee
amounted to calling into question the proceedings of the Assembly in a
court of law for which the powers were not vested. The regulation of the
procedure of conduct of business was not subject to jurisdiction of the
courts. In order to establish parity of the privilege powers, Dr. Singhvi
drew the attention of the Court to Article 105 of the Constitution, Section
18 of the GNCTD Act coupled with Rule 172 of the Rules.
[57]
46. On this aspect, parity was sought to be drawn by relying on
Parliamentary privileges in Entry 74 of List I and that of the Legislative
Assembly in Entry 39 of List II which were stated to be pari materia.
Delhi was no different, it was submitted, and thus the powers of the
Assembly are the same under entry 39 of List II as any other Assembly in
the context of Article 239AA of the Constitution. To further amplify this
aspect, learned counsel sought to draw strength from the observations of
this Court in State (NCT of Delhi) v. Union of India and Anr.27 which
comprehensively dealt with the segregation of powers between the State
and the Central Government in view of an ongoing conflict on various
issues in this behalf. It was opined by this Court that all entries in List II
will have full play except three specific entries which were excluded, i.e.
entries 1, 2 & 18.
47. In view of Article 239AA(3)(a) the power to summon and compel
attendance was stated to be akin to that of any other legislative assembly.
Testimonies before committees were stated to be mostly under oath and
the rationale for the same was that the process was solemn in nature and
that it would improve the quality of debate. There was stated to be no
27 (2018) 8 SCC 501.
[58]
competing entry in List I and the question of repugnancy would only
arise in terms of any entry in List III where there are central statutes in a
given scenario. The committees of legislatures all over the country
(including Delhi), thus, possess the power to compel attendance of
witnesses as a part of their constitutionally recognized powers and
privileges and there could be no distinction based on the kind of
committee or the type of person who is summoned in exercise of these
powers.
48. We may note another submission of Dr. Singhvi where he
cautioned the court against ruling in a manner wished for by the
petitioners on account of its wider ramifications especially in the context
of observations made in Kalpana Mehta And Ors.28on the importance of
committees. Any hampering of the working of the committee would
hamper the working of the Assembly as passing laws is not the only
function of the Assembly. Thus, the practice of passing resolutions by
Assemblies on the sense of the house would be disrupted. On the
significance of the working of these committees, it is not necessary to go
into depth as the issue has been well considered in Kalpana Mehta And
28 Supra note 20.
[59]
Ors.29 We, thus, consider it appropriate to only extract some of the
relevant paragraphs:
66. Woodrow Wilson, the 28th President of the United States, was
quoted as saying in 1885 that “it is not far from the truth to say that
Congress in session is Congress on public exhibition, whilst
Congress in its Committee rooms is Congress at work.” This is
because most of the work of Congress was referred to committees
for detailed review to inform debate on the floor of the House.”
…. …. …. …. …. ….
“70. The importance of Committees in today's democracy has
further been detailed thus:
“Committees may not be of much service in the more spectacular
aspect of these democratic institutions, and they might not be of
much use in shaping fundamental policy, or laying down basic
principles of government. But they are absolutely indispensable for
the detailed work of supervision and control of the administration.
Not infrequently, do they carry out great pieces of constructive
legislation of public economy. Investigation of a complicated
social problem, prior to legislation, maybe and is frequently carried
out by such legislative committees, the value of whose service
cannot be exaggerated. They are useful for obtaining expert advice
when the problem is a technical one involving several branches
within an organization, or when experts are required to advise
upon a highly technical problem definable within narrow limits.
The provision of advice based on an inquiry involving the
examination of witnesses is also a task suitable for a committee.
The employment of small committees, chosen from the members
of the House, for dealing with some of the items of the business of
the House is not only convenience but is also in accordance with
the established convention of Parliament. This procedure is
particularly helpful in dealing with matters which, because of their
29 Supra note 20.
[60]
special or technical nature, are better considered in detail by a
committee of House. Besides expediting legislative business,
committees serve other useful services. Service on these
committees keeps the members adequately supplied with
information, deepens their insight into affairs and steady their
judgment, providing invaluable training to aspirants to office, and
the general level of knowledge and ability in the legislature rises.
Committees properly attuned to the spirit and forms parliamentary
government can serve the country well as the eyes and ears and to
some extent the brain of the legislature, the more so since the
functions and fields of interest of the government increase day by
day.”
49. Dr. Singhvi concluded by emphasising that not a single judicial
precedent had been cited from our country or outside where the Court
had intervened at the stage of summoning of a witness by the legislature
(sub-committee). Reliance was placed on the judgment of the Madras
High Court in C. Subramaniam v. The Speaker, Madras Legislative
Assembly.30 In this case, on a speech being made by a former Member of
the Madras Assembly a show-cause notice was issued by the Speaker of
the Assembly as to why his conduct should not be treated as a breach of
privilege. The endeavour to assail the notice was rejected by the Full
Bench of the High Court, on the short ground that it was premature at
that stage as no action had been taken. It was held to be akin to a writ of
30 AIR 1969 Mad 10.
[61]
prohibition restraining the Speaker of the Legislative Assembly from
proceeding further, which was virtually on the ground of absence of an
ab initio jurisdiction. It was further opined that the power vested under
Article 194(3) of the Constitution empowered the Speaker with the right
to call upon a third party like the writ petitioner to show cause against an
alleged breach of privilege by way of contempt. In the facts of the
present case, it was urged, even a show cause notice had not been issued
as the Petitioner had only been called upon to depose. Thus, there was
not even an initiation of any privilege proceedings.
50. We now turn to the arguments of Dr. Rajeev Dhavan on behalf of
the Committee which sought to intervene in the present proceedings. We
may note at the threshold that the Committee is really a creation of the
Assembly, but it appears that like the petitioners, the respondents wanted
assistance of more than one counsel in the belief that it would further
advance their case. In the process, as noticed above, some contradiction
of stand came into being regarding the implication of the issuance of the
New Summons and withdrawal of the old one.
[62]
51. Dr. Dhavan laid great emphasis on the main functions of the
Committee as enunciated, taking a cue from its very description as a
“Peace and Harmony Committee.” The main functions, thus, were to
consider viewpoints across society about prevalence of such a situation
which had the potential to disturb communal peace and harmony or
where communal riots had occurred and to examine in detail and identify
the factors responsible for it. This was coupled with the mandate to
undertake scientific study on religious, linguistic, and social
compositions of the population of Delhi NCR, with a view to identify and
strengthen the factors which unite people despite their diversity. The
Committee also sought to recommend measures to be undertaken by the
government towards establishing communal harmony and peace in the
State. We may note with some trepidation Dr. Dhavan’s submissions
while seeking intervention that even if a writ was issued to the Assembly
it could not be deemed to have been issued to the Committee because the
Committee was an autonomous body which would eventually report to
the Assembly and thus, enjoys a separate legal existence. Suffice for us
to say at this stage that if the Committee is the creation of the Assembly
and seeks to derive its powers and strength from the Assembly, it is
[63]
surprising to note a submission that the -Committee would not be bound
by a direction of this Court if it was not specifically made a party. Be that
as it may, we did permit the Committee to intervene and to that extent
there was no objection from Mr. Salve.
52. The initial rebuttal to the challenge is based on the anticipatory
nature of the proceedings, being presumptive and pre-emptive. There are
several stages of scrutiny before a breach of privilege notice is even
issued; much less any conviction arising from such a breach of privilege.
53. It was further contended that no factual basis had been laid for the
concerns regarding the First and Second Impugned Summons and the
press conference. Fundamental rights could not be said to be violated by
a mere issuance of summons. There was stated to be lack of specificity of
any claim of mala fides which could not be general in character but must
be specifically pleaded and proved by all material particulars in relation
to the persons concerned.31 This was an aspect absent in the present case.
Dr. Dhavan categorised the writ petition as a SLAPP (Strategic Lawsuit
31 State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566; K. Nagraj v.
State of Andhra Pradesh (1985) 1 SCC 523.
[64]
Against Public Participation), engineered to silence the Committee and
interfere with the democratic process.
54. Dr. Dhavan clarified the statements made by Mr. Raghav Chadha
during the press conference on 31.08.2020 to contend that it was merely a
summary of the complaints received by the Committee. They were stated
not to represent the Chairman’s views, the Committee’s conclusions or
the scope of the Committee’s functions. The Committee had not suo
moto decided that the petitioners were responsible for causing
disharmony. It had received complaints from several different people,
who specifically attributed the disharmony caused by the riots in Delhi to
Facebook. The statements made in the press conference were, thus, not
made in bad faith and were simply repetitions of the depositions made to
the effect that Facebook may have had a role in the riots.
55. The contention on the Committee’s Terms of Reference
recommending criminal action was stated to be “toothless.” Thus, in a
sense what was conceded was that the said part of the Committee’s Terms
of Reference (i.e. in paragraph 4(vii)) was “otiose.” The Committee
could, at best, make recommendations. Whether criminal action was, in
[65]
fact, initiated was entirely the remit of the police or the judiciary and in
that context no real threat was made to the petitioners either by the Terms
of Reference or by the impromptu statements made by the Chairman in
the press conference.
56. The aforesaid submissions, in our view, may have mollified the
petitioners though apparently not Mr. Salve. As per his submissions, all
the aspects would have to be read together to come to a conclusion
whether the petitioners had a real concern to approach the Court or not.
We say so in the context of the Terms of Reference which included
recommending criminal action, the utterances of Mr. Raghav Chadha in
the press conference (undoubtedly in the background of the depositions
before the Committee) and the limitation on the legislative domain by
carving out of certain entries from List II as applicable to the Assembly.
We will pen down our view on this aspect at a later stage.
57. We now come to arguments of Dr. Dhavan that were in sync with
what Dr. Singhvi had argued, i.e., in view of the judicial observations,
these committees are the eyes and ears of the Parliament, essential for the
democratic polity. The functions performed by the committees are part
[66]
of the core legislative functions of State Assemblies, which may include
(a) supervising administration, (b) taking evidence on legislation, and (c)
dealing with a crisis or governance generally. In that context, Dr. Dhavan
pointed out that the petitioners had not challenged the constitution of the
Committee itself or its Terms of Reference. The petitioners had also not
challenged the summons issued by the Parliament despite Parliament’s
threat to initiate breach of privilege proceedings in case they refused to
appear. As such, Facebook could not be said to have any issues while
appearing before the Parliamentary Committee. The role of
intermediaries in governance was relevant and the testimony of the
petitioners was important in that context. The refusal was sought to be
labeled down as one relating to “political reasons.”
58. Dr. Dhavan then turned to the aspect of the distinction drawn by
Dr. Singhvi between members and non-members in the context of the
legislature’s power to summon witnesses or initiate breach of privilege
proceedings. He canvassed that no rule existed as per which nonmembers have the power to refuse a summons issued by a legislative
committee. The core function of the legislature is democracy and not just
to legislate, an aspect we agree with. Thus, it was the obligation of every
[67]
person to cooperate with the legislature and appear when requested to
assist in the realisation of this core function. There were several ways in
which the legislature may seek democratic participation, one example
was appearance before committees.
59. In support of the aforesaid plea, Dr. Dhavan illustrated the
proposition by giving instances of notices issued to non-members which
also form a subject matter of a treatise by Dr. Dhavan “Only the Good
News: On the Law of the Press in India” published in 1987.
“- Thaniram (1975), (1975) XX P.D. (No.2) 49 (Kerala
Legislative Assembly) – Reprimand to person who
questioned the partiality of Speaker.
- Satyayug (1977), (1977) XXII P.D. (No.1) 18 (West
Bengal) – The West Bengal Legislature was maligned and
the feature writer did not apologise but the editor did.
- Udayavani (1978), (1977) XXII P.D. (No.2) 47
(Karnataka) – An unrepentant editor of a newspaper
reprimanded by the Legislature for accusations of harassing
educational institutions.
- Nagrik (1978), (1981) XXVI P.D. (No.1) 19 (Tripura)
– An editor, who criticized the alleged leak of a budget by
the Chief Minister, subject to imprisonment for a day.
- Varsha Joshi and K.W. Deson (1982), (1982) XXVII
P.D. (No.1) (Gujarat) – The threat to institute legal
proceedings against a speaker for allowing discussion on sub
[68]
judice matters caused the Committee to recommend
imprisonment of a person.”
60. On the constitutional status of the Assembly, Dr. Dhavan sought to
make a distinction between all Union Territories on the one hand, and
Delhi and Puducherry on the other. A second distinction was made
between the Delhi and the Puducherry Legislative Assemblies. The
significant distinction was stated to be that while the Puducherry
Legislative Assembly was empowered by Article 239A, the Delhi
Legislative Assembly was created through an exercise of constituent
power by the 69th Amendment Act, 1991. Thus, while Article 239AA
excluded police power and public order from the scope of the Assembly’s
competence, that did not detract from it being a full-fledged working
Legislative Assembly similar to the Parliament. This aspect was stated to
be reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’s
view, the powers of privilege of the Assembly could be traced to Article
239AA(2) & (7) of the Constitution, Section 18(3) of the GNCTD Act
and Rules 160 and 172(4) of the Rules. Dr. Dhavan drew strength from
Article 212(1) to canvas that the Constitution grants internal autonomy to
[69]
each House of the State legislature and the validity of any proceedings
cannot be questioned on an allegation of “irregularity of procedure.”32
There were conceded to be limitations to Article 212(1) of the
Constitution and this Court had held that interference with the internal
functioning of the State Legislative Assemblies can only be limited to
cases of “gross illegality and unconstitutionality.”33 No such illegality
having occurred in this case and only a summons being issued, no
proceedings for breach of privilege had been initiated and no question
had been asked. As such there was no occasion whatsoever to call for
interference by this Court.
61. Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasised on
the sui generis nature of parliamentary powers and privileges and
vehemently opposed the suggestion that these privileges needed to be
codified. The powers and privileges of the legislature do not require a
law and learned senior counsel sought to repel the argument of Mr. Salve
that the amorphous nature of privileges offends the law and due process.
It would not amount to claiming privilege as they want, as the Supreme
Court has recognized a “Lakshman Rekha” to confine the extent and
32 Supra note 14.
33 Supra notes 12 and 15.
[70]
exercise of their powers.34 There could be many other legal concepts that
are similarly amorphous or in HLA Hart’s language “open textured.”
This would not amount to ipso facto undermining the credibility of these
concepts or reducing the importance of the meaning given to them by the
Supreme Court. Thus, at this stage, the only question was whether a
simpliciter issuance of summons from a sub-committee was
constitutionally improper to which the answer should be in the negative.
62. The last set of arguments on this point by Mr. Tushar Mehta,
learned Solicitor General of India, were in a limited contour. He
supported learned counsel for the respondents on the power of the
Parliament and Assemblies per se to summon but that would be subject to
judicial review. However, his next submission was in sync with the
submission of the petitioners that the Assembly lacks legislative
competence to deal with the subject matter in question. That being his
submission, it was felt that a complete argument on privilege was not
required to be considered. In substance, his contention was that the
summonses could not have been issued because of lack of legislative
competence but if the Assembly had the legislative competence, then the
34 Supra note 12.
[71]
principles as enunciated by learned counsel for the respondents were the
correct principles.
Privileges, Free Speech and Privacy
63. We have dealt with the aspect of rival contentions arising from the
privilege of the House to summon a person, to compel them to give
evidence on matters of fact, and seek their opinion – which are the first
two questions framed by Mr. Salve under the head of privileges as
aforesaid. Having done so, we proceed to the third question dealing with
the interesting aspect of privileges vis-à-vis an individual’s right to
privacy and free speech.
64. We may at the threshold note that Mr. Salve had to deal with the
aspect raised by the respondents on the petition being premature – both in
the context of privilege per se and in the interaction between privileges
and fundamental rights.
65. Mr. Salve strongly refuted the plea of the petition being premature
on the basis of the summonses issued by the Committee where it was
threatened that “necessary action” would be taken against the petitioners
for breach of privilege if they do not appear. He submitted that even a
[72]
threatened breach of fundamental rights is sufficient to invoke
jurisdiction of this Court under Article 32 of the Constitution.35 Further
elucidating on this aspect, Mr. Salve submitted that access to justice is a
human right available where there is even a threat to personal liberties.36
In that context, he stated that the Second Impugned Summons left no
room for doubt that Respondent No. 2 was determined that the failure to
appear would constitute a breach of privilege for which “necessary
action” will be taken, which included the risk of arrest and imprisonment.
This argument arose from the plea of Mr. Salve that the petitioner had a
right to not appear and in the alternative a right to remain silent if he so
appears.
66. In view of the aforesaid fact and the plea that the summons itself
was without jurisdiction, it was submitted that the threat of coercive
action is itself without jurisdiction and a person need not wait for injury
to occur before seeking the Court’s protection.37 Mr. Salve emphasised
the importance of the observations made in S.M.D. Kiran Pasha v.
Government of A.P. and Ors. , where the Court recognized that “if a
35 K.K. Kochunni v. State of Madras, AIR 1959 SC 725, at 729-730; D.A.V. College
v. State of Punjab (1971) 2 SCC 261, at para 5; Anita Kushwaha v. Pushap Sudan
(2016) 8 SCC 509, at para 42.
36 Tashi Dalek Gaming Solutions Ltd. v. State of Karnataka (2006) 1 SCC 442.
37 Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412.
[73]
threatened invasion of a right is removed by restraining the potential
violator from taking any steps towards violation, the rights remain
protected and the compulsion against its violation is enforced.”
38 Mr.
Salve further relied on Bengal Immunity Co. Ltd. v. State of Bihar and
Ors., wherein the Court observed “It is, therefore, not reasonable to
expect the person served with such an order or notice to ignore it on the
ground that it is illegal, for he can only do so at his own risk and peril.”
39
The certainty of a legal proposition qua the right of a person was, thus,
emphasised by this Court observing “a person placed in such a situation
has the right to be told definitely by the proper legal authority exactly
where he stands and what he may or may not do.”40
67. The plea raised by Mr. Salve is on the premise that even if a right
of privilege validly accrued, the same would have to be narrowly
construed and reconciled with the petitioner’s right under Part III of the
Constitution . The First and Second Impugned Summons addressed to
Petitioner No.1 explicitly stated that it was so addressed to him as the one
“spearheading Facebook”, and thus, no option was left to Facebook to
38 (1990) 1 SCC 328, at para 14.
39 (1955) 2 SCR 603 at para 7.
40 Ibid.
[74]
decide who would appear before the Committee. Of course, with the
recall of the Second Impugned Summons and the issuance of the New
Summons; this aspect urged before the recall of the first notice would not
really survive.
68. Learned counsel, once again, took us to Article 194(3) of the
Constitution to contend that it provided that privilege powers would,
from time to time, be defined. The submission was that the Constitution
makers had envisaged a clear ambit to be defined for privilege powers,
which has unfortunately never happened. That is why, the plea has been
made to the effect that either this Court defines the privilege power or
direct/request the legislature to at least consider the issue of defining
these privilege powers on the pari materia basis as in Scotland and
Wales. In the context of the language of Article 194(3), it was submitted
that only such privileges are available to legislatures that can be
exercised without impinging on fundamental rights.
69. In the conspectus of this general proposition, it was urged that the
summons issued to the petitioner violated his right to remain silent which
was not limited to Article 20 (which was inapplicable by virtue of these
[75]
not being criminal proceedings); but also implicit in his rights under
Article 19(1)(a) and Article 21 of the Constitution. The right of personal
autonomy has been held by this Court to include aspects of the choice
between speaking and remaining silent.41
70. The summons per se, as per the submissions, were violative of the
petitioner’s right against arbitrary State action under Articles 14, 19, and
21 of the Constitution. Learned counsel was conscious of the judgment of
this Court in MSM Sharma42 and the view expressed therein about
powers, privileges, and immunities available in terms of Articles 105(3)
and 194(3) of the Constitution. The Court had taken the view that such
powers, privileges, and immunities stood in the same position as Part III
of the Constitution and that the fundamental right to free speech and
expression under Article 19(1)(a) must yield to Article 194. Mr. Salve
sought to distinguish this proposition in view of subsequent judicial
developments. The principle propounded was submitted to have been
eroded by subsequent constitutional developments as per which the right
to free speech under Article 19 was to be seen as part of a trilogy of rights
41 Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263; K.S. Puttaswamy and
Anr. v. Union of India and Ors. (2017) 10 SCC 1; Excel Wear v. Union of India &
Ors. (1978) 4 SCC 224.
42 Supra note 14.
[76]
along with Articles 14 and 21, and the rights no longer existed in silos. It
was thus, his contention, that the fundamental proposition that privileges
can override Article 19 but not Article 21 stood overruled in view of the
judicial pronouncements in Maneka Gandhi v. Union of India43 and
R.C. Cooper v. Union of India44. It would be relevant to reproduce para
6 of Maneka Gandhi45 as it traces the constitutional development in this
regard through various judicial pronouncements as under:
“6. We may at this stage consider the interrelation between Article
21 on the one hand and Articles 14 and 19 on the other. We have
already pointed out that the view taken by the majority in A.K.
Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383]
was that so long as a law of preventive detention satisfies the
requirements of Article 22, it would be within the terms of Article
21 and it would not be required to meet the challenge of Article 19.
This view proceeded on the assumption that “certain articles in
the Constitution exclusively deal with specific matters” and where
the requirements of an article dealing with the particular matter in
question are satisfied and there is no infringement of the
fundamental right guaranteed by that article, no recourse can be
had to a fundamental right conferred by another article. This
doctrine of exclusivity was seriously questioned in R.C. Cooper
case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-ruled
by a majority of the full Court, only Ray, J., as he then was,
dissenting. The majority Judges held that though a law of
preventive detention may pass the test of Article 22, it has yet to
satisfy the requirements of other fundamental rights such as Article
19…”
43 (1978) 1 SCC 248.
44 (1970) 2 SCC 298.
45 Supra note 43.
[77]
71. We may note in the end an aspect which was raised in the writ
petition, but not really contended on behalf of the petitioners: a similar
question related to the interplay between the State Legislature’s privilege
powers under Article 194(3) and a non-member’s fundamental rights was
pending before a 7-Judge Bench of the Supreme Court in N. Ravi v.
Legislative Assembly46 on account of a perceived conflict between MSM
Sharma47 and Special Reference No.1 of 196448
. Dr. Singhvi mentioned
this issue only to distinguish and state that N. Ravi49 was a case that
related to the conviction of a non-member which is not so in the facts of
the present case.
72. Dr. Singhvi, on behalf of Respondent No.1, once again, at the
threshold submitted that akin to the privileges issue, this issue is also
premature as no coercive action has been taken against the petitioner and
none was intended if the authorised representative fairly attended and
participated in the proceedings as a witness. The transparency of the
proceedings was sought to be emphasised as there was a live broadcast
46 (2005) 1 SCC 603.
47 Supra note 14.
48 Supra note 12.
49 Supra note 46.
[78]
and therefore there could be no question of any apprehension in respect
of the proceedings.
73. Learned counsel also sought to assail the maintainability of the
writ petition because Petitioner Nos. 2 & 3 are not citizens of India and
no shareholder had been impleaded as a petitioner. But then one must
note that the initial summons was sent to Petitioner No.1, who is a citizen
of India, albeit holding an office in Petitioner No.2 organisation.
Subsequently, the summons issued to him was withdrawn and re-worded
summons was issued. However, the parties had agreed to proceed on the
basis of existing pleadings and questions raised. We are thus, not inclined
at the threshold itself to look into this contention with any seriousness.
74. Insofar as the submission about the summons issued to Petitioner
No.1 is concerned (even though summons was withdrawn), it was urged
that a witness could not claim his right to remain silent or to be let alone
in response to a summon to depose before a lawful committee of an
empowered legislature. Such a right was not a fundamental right under
Article 20 of the Constitution unless a person is an accused; as was the
case in Selvi50 which involved rights of an accused in context of narco
50 Supra note 41.
[79]
analysis and other tests. Petitioner No.1, and for that matter anyone who
deposes, is not an accused. There is no conflict between Article 19(1)(a)
of the Constitution and Rule 174 of the Rules. The right to remain silent
is relevant only in criminal investigations. The proceedings before the
Committee are not criminal or judicial proceedings. There is no accused
before the Committee. All persons who appear before it are witnesses
and subject to examination by the members as per the Rules of the
House. These Rules have been made in exercise of the powers conferred
under Section 33 of the GNCTD Act, which in turn draws its strength
from Article 239AA(7) of the Constitution. Thus, it was submitted that
the mere summons to give expert deposition before the Committee on the
issues falling within the remit of the Committee cannot be said to be a
violation of any fundamental rights so as to invoke Article 32 of the
Constitution. We may note at this stage that the third issue we will deal
with is the perceived remit of the Committee and whether the remit has
the sanction of the Constitution in the context of division of subject
matter under the three Lists of the 7th Schedule.
75. The distinction between members and non-members carved out by
Mr. Salve was sought to be brushed aside by Dr. Singhvi by submitting
[80]
that there was no such distinction as Article 105(4) uses the expression
“in relation to persons”. The apprehension about self-incrimination was
also urged to be misconceived in view of the constitutional protection
envisaged under Article 105(2) of the Constitution.
76. Dr. Singhvi then engaged with the arguments of the petitioners
regarding encroachment of fundamental rights, the submissions originally
addressed by both parties being in the context of Petitioner No.1. In this
regard, it was submitted that not even a prima facie case was established
for the breach of any fundamental right. Petitioner No.1 had not been
summoned to speak as a private individual but to speak on behalf of
Petitioner No.2. Only a shareholder could have asserted the right on
behalf of Petitioner Nos. 2 & 3, as they were corporate entities, because
individuals’ rights are not to be subsumed in the company.51
77. We may note that surprisingly, Dr. Singhvi sought to urge that
Petitioner No.1 has not been summoned to speak as a private individual
but to speak for Petitioner No.2. We are saying this is surprising because
the New Summons also permits any suitable officer to speak on behalf of
51 Supra note 44; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788;
Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238.
[81]
Petitioner No. 2 and if a shareholder can urge a right under Article 32 of
the Constitution, we fail to appreciate why an officer of a corporation to
the extent he has been asked to speak cannot urge this aspect. The First
and Second Impugned Summons were specifically addressed to
Petitioner No.1 and only during the course of arguments, facing certain
difficulties (which somehow Dr. Dhavan did not consider relevant) the
initial summons was withdrawn and a new summons issued.
78. The more relevant submission is that in the context of Article 21, at
this stage, only a summons to appear was issued and there was no
question of restriction of personal liberty. The proceedings were not for
breach of privilege. No coercive action was taken or was intended if
Petitioner No.1 (or any other officer) merely appeared and assisted the
Committee as a witness. On the issue of right to privacy under Article 21,
it was urged that Article 21 itself would have to be read as confined to a
person while a corporation has no personhood.52
79. The argument of Mr. Salve, based on the trilogy of rights under
Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out of context
52 Chiranjit Lal Chowdhury v. Union of India 1950 SCR 869; Petronet LNG Ltd. v.
Indian Petronet Group and Anr. (2009) 158 DLT 759.
[82]
in the present case as the Constitution sets clear parameters for the
applicability of certain fundamental rights. Article 19 is still available
only to citizens. Article 21 is available only to humans who are capable
of having personhood and Article 19(1)(a) continues to be unavailable
when legislative privilege is invoked especially if the legislatures are to
function effectively. In that context it was urged that the ratio of the
decisions in MSM Sharma53 and In Special Reference 1 of 196454 still
hold good. On the right to remain silent, it was urged that this was not a
right protected under Article 19(1)(a) of the Constitution as it was not a
general right; and if at all this right had to be pleaded, it was to be before
the legislature which had summoned Petitioner No. 1, and not before the
Supreme Court. If silence is to be pleaded for a good reason in response
to a specific question, that request should be dealt with by the Committee
as per applicable rules. Reliance in the petition on the pending reference
in N. Ravi55 would be of no avail to the petitioners as there has been no
punishment for any breach so far, making the present case
distinguishable.
53 Supra note 14.
54 Supra note 12.
55 Supra note 46.
[83]
80. Dr. Dhavan while advancing his case on behalf of the Committee
sought to lift the corporate veil between Petitioner Nos. 1 & 2, as the true
petitioner is Facebook and not Ajit Mohan. The purpose of the summons
was to seek Facebook’s assistance regarding its role as a social media
platform/intermediary in a situation like the Delhi riot, where persons had
deposed before the Committee and pointed out the aggravation which had
taken place because of platforms like Facebook. The summons had been
issued to Facebook’s senior representative who could be of assistance and
the summon itself had made it clear that this notice was issued to
Facebook India, not to a specific individual: inasmuch as the notice was
issued to Petitioner No.1 in his capacity as a representative of Facebook.
Thus, it was contended that neither Article 32 nor Article 19(1)(a) of the
Constitution were available to the petitioners as these rights do not
extend to corporations. This was stated to be of significance as the
petitioner had claimed the right against compelled speech under Article
19(1)(a) of the Constitution. As far as corporations are concerned, there
are no personal liberties for corporations though they have certain
responsibilities.56
56 Supra notes 44 and 51.
[84]
81. Learned counsel took us through Article 194(3) to emphasise that it
has two parts. The first part deals with privileges being enacted
statutorily, while the second part states that until such a law is enacted,
legislative privileges are frozen as they stood on 20.06.1979. A trilogy of
pre-1979 cases authoritatively discussed which fundamental rights are
attracted in relation to a breach of privilege.57 MSM Sharma58 declared
that the relevant portion of the Ganupati Keshavan Reddy59 was obiter
and therefore not binding. Thus, it was submitted that the correct legal
position regarding privileges and fundamental rights was laid down in
MSM Sharma60 and Special Reference No. 1 of 1964 61; i.e., Article 19
of the Constitution does not apply to exercise of privileges under Article
194(3). The relevant portion of the judgment in MSM Sharma62 as part
of para 27 is extracted as under:
“27. .…Article 19(1)(a) and Art. 194(3) have to be reconciled and
the only way of reconciling the same is to read Art. 19(1)(a) as
subject to the latter part of Art. 194(3), just as Art. 31 has been
read as subject to Art. 265 in the cases of Ramjilal v. Income-tax
Officer, Mohindargarh (1) and Laxmanappa Hanumantappa v.
57 Ganupati Keshavan Reddy v. Nafisul Hasan AIR 1954 SC 636 (“the Blitz case”);
Supra note 14 (“the Searchlight case”); Supra note 12 (“the Legislative Assembly
case”).
58 Supra note 14.
59 Supra note 57.
60 Supra note 14.
61 Supra note 12.
62 Supra note 14.
[85]
Union of India (2), where this Court has held that Art. 31(1) has to
be read as referring to deprivation of property otherwise than by
way of taxation. In the light of the foregoing discussion, the
observations in the Madhya Bharat case (3) relied on by the
petitioner, cannot, with respect, be supported as correct. Our
decision in Gunupati Keshavram Reddy v. Nafisul Hasan (4), also
relied on by learned advocate for the petitioner, proceeded entirely
on a concession of counsel and -cannot be regarded as a
considered opinion on the subject. In our judgment the principle of
harmonious construction must be adopted and so construed, the
provisions of Art. 19(1)(a), which are general, must yield to Art.
194(1) and the latter part of its el. (3) which are special.”
82. Dr. Dhavan in sync with the arguments of Dr. Singhvi disputed Mr.
Salve’s case that Articles 14, 19, & 21 of the Constitution were integrated
by R. C. Cooper63 and Maneka Gandhi64 into one single right. He
submitted that the effect of these cases was only to create India’s due
process as far as constitutional limitations are concerned. Each of these
rights have their own independent existence and correspondingly their
own independent limitations. The golden triangle does not invalidate the
cases ruling that Article 194(3) of the Constitution, though subject to
Article 21, was not subject to Article 19 of the Constitution. The
argument of Mr. Salve was, thus, pleaded to be overstated and
contradictory.
63 Supra note 44.
64 Supra note 43.
[86]
83. In the end it was contended that no fundamental right was violated
by issuance of summons to the petitioner.
84. Suffice to say that so far as learned Solicitor General is concerned
no specific arguments were addressed in this behalf except that he drew
attention of this Court to N. Ravi65
.
Legislative Competence
85. Elaborate submissions were addressed on the first three aspects by
Mr. Salve even though one of the primary issues was whether it was more
speculative in character and premature, as at this stage of the assailed
proceedings only summons had been issued to the petitioners. The
bedrock of Mr. Salve’s submissions was based on the alleged lack of
legislative competence of the Assembly and consequently of the
Committee to look into the subject matter qua which the notice had been
issued to the petitioners. The submission, thus, was that in the absence of
any such legislative competence, the petitioners were entitled to approach
the Court at this stage itself rather than being compelled to wait for
further progress in the proceedings.
65 Supra note 46.
[87]
86. There were three limbs of this submission. The first limb was in
respect of the statutory enactments, i.e., the IT Act, enacted by the
Parliament under List I, governs and regulates Facebook. This could not
be an aspect with which the State Government was concerned. In fact,
this was stated to be the reason why the petitioners had willingly
cooperated and appeared before the Parliamentary Committee in the past.
The second limb was based on the subject matter which the Committee
wanted to go into, even though it had been specifically denuded of the
power as those subject matters fall within the jurisdiction of the Central
Government under Entry 31 (Communications) and under Article
239AA(3)(a) of the Constitution read with Entries 1 and 2 in List II
(Public Order and Police). The third limb flowed from these two issues
and is based on the unique status of Delhi. He argued that the
constitutional scheme specifically took away certain subject matters
which would normally fall in List II and would ordinarily be dealt with
by a State Assembly. However, in Delhi’s case, these powers were
conferred on the Central Government.
87. He then took us through the provisions of the IT Act to contend
that it is undisputed that Facebook was an intermediary within the
[88]
definition of the IT Act. Section 2(1)(w) of the IT Act defines
intermediaries as under:
“2(1). In this Act, unless the context requires otherwise,
xxxx xxxx xxxx xxxx xxxx
[(w) "intermediary", with respect to any particular electronic
records, means any person who on behalf of another person
receives, stores or transmits that record or provides any
service with respect to that record and includes telecom
service providers, network service providers, internet service
providers, web-hosting service providers, search engines,
online payment sites, online-auction sites, online-market
places and cyber cafes;]”
88. In the context of the controversy sought to be raised as regards the
role of intermediaries during such law and order problems, Mr. Salve
contended that this aspect was covered by the power to issue directions to
block public access to any information and was thus, squarely covered by
Section 69A of the IT Act.
89. The aforesaid provision and its role was not a grey area in view of
the judicial pronouncement of this Court in Shreya Singhal v. Union of
India.
66 Thus, a well-developed procedure to deal with such issues was
66 (2015) 5 SCC 1.
[89]
already in place and consequently, the matter was an occupied field by
the Central Government.
90. Another issue raised by Mr. Salve was that the legislative domains
of “public order” and “police” both stood explicitly outside the
competence of the Assembly. It was contended that recommendations in
matters which fall within List I or which do not fall within List II cannot
be said to be legislative functions. It was stressed that the purpose for
which the summons was issued, and the issue sought to be addressed by
the Committee were aspects of public order and therefore they were not
primary functions of the Assembly.
91. The utterances in the press conference were pointed out to contend
that it was amply clear that the purpose behind its exercise was to file a
supplementary chargesheet which was alien to the powers of the
Assembly.
92. The endeavour of Respondent No.1 had been confirmed in the
reply filed by the respondents to compel Petitioner No.1 to testify as an
expert witness as part of its decision “to delve into the matter of concern
raised in the complaints (about Facebook)”. The complaints, in turn,
dealt with content allegedly posted on Facebook and how they
[90]
contributed to the Delhi riots. By respondents’ own pleadings, the
endeavour of compelling Petitioner No.1 to appear before it was in
furtherance of the following:
a. Examine testimonies relating to Facebook’s alleged role in the
Delhi riots;
b. Examine instances of inaction/inability on the part of social
media platform (Facebook) to enforce its policies against
hateful content;
c. Seek views of Petitioner No.1 as a representative of Facebook
to understand Facebook India’s internal policies and their
implementation.
d. Ascertain (Petitioners’) views on the question whether the said
company’s platform has contributed to the Delhi riots and also
how these platforms could be used to strengthen unity among
the citizens of Delhi in the future.
93. Conscious of the line sought to be adopted by the respondents by
referring to “Cooperative Federalism”, Mr. Salve contended that the same
was misconceived as it arose in a factual matrix where the Union and the
[91]
State exercise overlapping powers. The exercise of power by the
Assembly in question had no connection with any such area of overlap.
He argued that cooperative federalism cannot be converted into an
independent head of power in addition to the powers conferred by the
statute. In this regard reference was made to two judicial
pronouncements in K. Lakshminarayan v. Union of India & Anr.67 and
State (NCT of Delhi) v. Union of India68
.
94. In order to appreciate what is meant by “cooperative federalism” in
the context of what appears to be a continuous judicial battle between the
Central Government and the State Government has been enunciated in
State (NCT of Delhi) (2018), where the Court encouraged walking handin-hand even if there are different political dispensations in power. We
do believe and may note at this stage that such hope has been repeatedly
belied! The enunciation of the principle is set out in para 119 as under:69
“119. Thus, the idea behind the concept of collaborative
federalism is negotiation and coordination so as to iron out the
differences which may arise between the Union and the State
Governments in their respective pursuits of development. The
Union Government and the State Governments should
endeavour to address the common problems with the intention to
67 (2020) 14 SCC 664.
68 Supra note 27.
69 Supra note 27 at para 119.
[92]
arrive at a solution by showing statesmanship, combined action
and sincere cooperation. In collaborative federalism, the Union
and the State Governments should express their readiness to
achieve the common objective and work together for achieving
it. In a functional Constitution, the authorities should exhibit
sincere concern to avoid any conflict. This concept has to be
borne in mind when both intend to rely on the constitutional
provision as the source of authority. We are absolutely
unequivocal that both the Centre and the States must work
within their spheres and not think of any encroachment. But in
the context of exercise of authority within their spheres, there
should be perception of mature statesmanship so that the
constitutionally bestowed responsibilities are shared by them.
Such an approach requires continuous and seamless interaction
between the Union and the State Governments. We may hasten
to add that this idea of collaborative federalism would be more
clear when we understand the very essence of the special status
of NCT of Delhi and the power conferred on the Chief Minister
and the Council of Ministers on the one hand and the Lieutenant
Governor on the other by the Constitution.”
95. Thus, Mr. Salve contended that while the Court has touched on the
concept of collaborative federalism, it has also simultaneously observed
in “absolutely unequivocal” terms that both the Centre and the State have
to work within their spheres and not think of any encroachment. It was,
thus, contended that what was sought to be done was clearly an
encroachment by relying on the larger principle of cooperative
federalism.
[93]
96. An important aspect has, once again, been emphasized in K.
Lakshminarayan70, that the Assembly can seek to exercise power as
conferred under the GNCTD Act, promulgated by the Parliament
exercising its residuary powers under Entry 74 of List I. In that context it
was emphasised that there is a difference between Articles 239A and
239AA of the Constitution. The former is with respect to the Union
Territory of Puducherry, which simply provided purely enabling
provisions while the latter contained extensive provisions among which
sub-clause (7) empowered the Parliament to legislate and give effect to
all the provisions. Mr. Salve assailed the endeavour of the Assembly to
“clutch at a jurisdiction that is not available”.
97. In response to the Court’s queries arising from the earlier summons
being superseded by the New Summons, the respondents’ contention that
the aspect of privilege had not arisen, and whether the petitioners could
claim to be an unaccountable platform; Mr. Salve contended that the
petitioners were ready to comply with any Indian law and had been doing
so. What they were not desirous of doing was to be drawn into an aspect
of political divide. To emphasise this point he referred to a letter dated
70 Supra note 67.
[94]
01.09.2020 by the Union Communication Minister alleging inter alia that
Facebook India was leading a concerted effort to shrink the space for
dialogue for those with a right-of-centre ideology. It was, thus, submitted
that on the one hand the respondents seem to allege that there was a proGovernment or a pro-right bias of Facebook while the Central
Government claimed the opposite – the common factor being that both
positions were for their respective political reasons by alleging bias
against the petitioners albeit from different sides. Mr. Salve’s contention
was that an Assembly must limit itself to its core function of legislation.
Even if it were to summon a witness, this must be in relation to matters
that were within its ambit as demarcated by the Court in the judgment of
State (NCT of Delhi) v. Union of India71. This judgment made it clear
that in reference to the Code of Criminal Procedure, 1973, the powers in
relation to the Entry of public order were conferred on the Parliament and
consequently denuded from the powers of the Assembly. In that context,
even if the widest amplitude was given to the Entries, that was with the
objective of not restricting the legislative competence of the Parliament
or the Assembly in a field which they in principle were competent to
71 Supra note 27 and Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259.
[95]
legislate. In the present case, one was concerned with the powers of the
Central Government vis-à-vis the State Government and therefore the
principle of widest meaning of entries could not result in overlapping
powers as that can hardly be conducive to administrative exigencies.
That it was so was obvious from the submission of the learned Solicitor
General who contended that the doctrine of pith and substance would
have to be applied to the reading of the entries while dealing with them to
demarcate the ‘Lakshman Rekha’ for the Parliament and the State
Assemblies. In the context of the controversy, it was urged, that allowing
such wide reading of entries would lead to a slippery slope.
98. In the end, Mr. Salve also emphasised the ‘doublespeak’ between
the stand of the counsel for the Assembly and the Committee; which was
a telltale sign that the New Summons was only subterfuge to get over the
possibility or anticipation of an adverse judicial consideration. The right
to remain silent was a virtuous right and in today’s noisy times, should
not be curbed or abrogated.
99. Mr. Datar, learned senior counsel for Petitioner No.3, once again,
supporting the stand of Mr. Salve sought to urge that any powers or
privileges were in turn circumscribed by the legislative competence of
[96]
the Assembly. Thus, any powers or privileges have to be exercised
within the assigned legislative fields. He sought to draw strength from
May’s Commentary as also the Commentary of Kaul and Shakdher in
this context where it was observed in the former “Disobedience to the
order of a committee made within its authority is a contempt of the
House.” (emphasis supplied).72 In the latter it was observed
“Disobedience to the orders of a Committee of the House is treated as a
contempt of the House itself, provided the order disobeyed is within the
scope of the Committee’s authority…” (emphasis supplied).73 Learned
counsel thereafter turned to the judicial precedents in this regard.74
100. He submitted that the powers and privileges are controlled by the
basic concepts of the written Constitution which could be exercised
within the legislative fields allotted to their jurisdiction by the three lists
under the 7th Schedule; and the legislatures were not competent to travel
beyond the lists.75
101. It was, thus, contended that if a primary legislation can be struck
down for being outside the legislative domain, then a committee cannot
72 Supra note 24 at para 38.57.
73 M. N. Kaul and S. L. Shakhder, Practice and Procedure of Parliament, 303 (A.
Mishra, 7
th Edn. 2016).
74 Supra notes 9 and 15.
75 Supra note 20.
[97]
be formed to deal with such matters. Thus, it was argued that the
respondents could not say that they had the power to go into a roving and
fishing inquiry before the Committee relating to all perceived fields
based on a belief that the State Assembly deals with the core functions in
Delhi. Its legislative competence by various entries should not be read in
such an expansive manner as to not be restricted by specific exclusions,
at least for the purposes of discussion.
102. Mr. Datar then turned to judicial precedents from the United States
to analyse the similar federal structure of governance in both India and
USA. The cases dealt with enquires by the Congress.
103. In Watkins v. United States76 it was observed that “no enquiry is
an end in itself, it must be related to a legitimate task of Congress.”
Thus, academic enquiries cannot be undertaken – it is only what is within
the powers of the Congress that can be enquired into. “Broad is the
power of inquiry, but not unlimited.”77 Such power of enquiry of the
Congress is limited to its “legitimate tasks”, which would imply
legislative competence in the present case.
76 354 US 178 (1957) at pg. 187.
77 Ibid.
[98]
104. We may note at this stage that a plea was advanced by Dr. Dhavan
that this judgment stood overruled in Barenblatt v. United States78 and
Eastland v. United States Servicemen’s Fund79
. Mr. Datar clarified that
the aspect he was seeking to rely upon the judgment for was not only not
overruled, but there was confirmation on the limits on the power of
inquiry of the Congress as laid down in Watkins80
.
105. He next referred to the judgment in Howard Jarvis Taxpayers
Association v. Padilla81 for the observation that the legislature may not
use its powers to “defeat or materially impair” the exercise of its fellow
branches’ constitutional functions, nor “intrude upon a core zone” of
another branch’s authority. The investigative powers may not be used to
trench upon matters falling outside the legislative purview and the
investigative power permits inquiry only into those subjects in reference
to which the legislature has power to act.
106. In the context of the requirement of reading of entries widely, Mr.
Datar contended that the power to legislate conferred by Article
239AA(3)(a) was in respect of matters in List II except Entries 1, 2 & 18.
78 360 US 109 (1959) at pg. 111-112.
79 421 US 491 (1975) at pg. 504.
80 Supra note 76.
81 62 Cali 486 (2016) at pg. 499.
[99]
If the principle of reading entries widely is to be applied in this context,
even the excluded entries have to be read widely as conferring the power
on the Parliament. It could not be said that entries conferring power on
the State Assembly were to be read widely while at the same time a
restrictive meaning was to be given to entries under which powers have
been specifically excluded. The phraseology “with respect to” entails
that the entries encompass anything with a nexus to public order and/or
the police. The powers with respect to such activities, thus, squarely lie
with the Parliament. Once again, a judicial view already taken was clear
and explicit, i.e., that the Assembly did not have any power – legislative
or executive, over the police and its functions.82 Thus, exempted entries
would have to be read in substance and not hyper-technically, and Article
239AA would have to be read contextually as also widely to include all
ancillary and subsidiary matters. This in turn denuded the Assembly and
the Committee of the powers to legislate or enquire into that aspect. As
such, what has been specifically denied to the Assembly could not be
achieved through Committees under the garb of “peace and harmony.”
The Assembly had no jurisdiction to address violence and communal
82 Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259.
[100]
riots, if Entries 1 & 2 of List II are interpreted as submitted. In the end
there could be no power even to investigate these matters.
107. The Committee, it was argued, was a creation of the Assembly
and could not have a larger jurisdiction than the Assembly itself. The
Bulletin issued on 02.03.2020 suggested that the Committee was formed
to deal with matters falling in Entries 1 & 2 of List II while stating this to
be “in view of the recent communal riots and violence….”. This made it
amply clear that the Committee was meant to deal with the violence and
disturbance caused to public order during the riots. The expression
“public order” has to be interpreted broadly and would encompass
communal peace and harmony. The summons issued by the Committee
related to the law and order situation of Delhi for which the Assembly
had no power to investigate or formulate law. If there was no
competence with regard to such matters, the summons in that context
would be without jurisdiction and, thus, void ab initio.
108. Since cooperative federalism was propagated as the basis to justify
the constitutionality of the actions of the respondents, it was submitted
that the same would not amount to a license to place reliance on Entries 1
[101]
& 2 of List III to sidestep the explicit exclusion in Article 239AA(3)(a) of
the Constitution. The relevant Entries are as under:
“LIST III – CONCURRENT LIST
1. Criminal law, including all matters included in the Indian Penal
Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified
in List I or List II and excluding the use of naval, military or air
forces or any other armed forces of the Union in aid of the civil
power.
2. Criminal procedure, including all matters included in the Code
of Criminal Procedure at the commencement of this Constitution.”
109. The matters relating to criminal law would not include power to
legislate on issues pertaining to public order and communal peace and
harmony as the same is traceable to “public order”, if the latter is to be
interpreted broadly.
110. Mr. Datar further argued that Entry 45 of List III, which relates to
inquiries, cannot enable the Assembly to inquire into public order, police
functions or communications. The power of inquiry has to be directly
related to the legitimate subjects over which the Assembly has powers to
legislate. To buttress his argument on the concept of collaborative
federalism, Mr. Datar relied upon the observations of this Court in State
[102]
(NCT of Delhi) v. Union of India83 which held that “both the Centre and
the States must work within their spheres and not think of any
encroachment.”
111. Mr. Datar argued that obviously the Central Government and the
State Government had different perceptions as to what transpired in Delhi
and it can hardly be disputed that it was a law and order issue arising
from communal riots. This was not an aspect that either the Assembly or
any of its committees could deal with. If the Assembly cannot legislate
on a subject, it cannot explore the same under an executive investigation.
The mere reluctance to participate could not be threatened with a breach
of privilege and the subject matter being dealt with by the Committee
was outside the purview and power of the Assembly.
112. Mr. Datar emphasised that the role of Facebook was of an
intermediary and, thus, the relevant regulatory mechanism was under the
IT Act. He went as far as to contend that there was no jurisdiction to
examine Facebook, as its operations were covered by Entry 31, List I,
under “other forms of communication”. Since the Parliament has
overriding power to legislate with respect to entries in List I under Article
83 Supra note 27.
[103]
246(1) of the Constitution, the Assembly could not intervene in matters
relating to intermediaries/other forms of communication. In addition, it
was urged that this special entry of “communication” overrides the
general entries of “inquiries” and “criminal law” (List III), which the
Delhi Assembly had attempted to rely on.84
113. Learned counsel next turned to Section 79 of the IT Act which
deals with exemption from liability of intermediaries in certain cases.
114. Mr. Datar finally urged that an intermediary like Facebook has no
control over the content hosted on it and is in fact, prohibited from
knowing the substance of the content on their platform or exercising any
control over the same except as prescribed by law. It was, thus,
submitted that an intermediary cannot be held liable for any third party
data/information made available/hosted by them. Facebook was simply a
platform where messages are transferred from one person to the other.
Whatsapp, Signal, Telegram are even end-to-end encrypted. These are
intermediaries who are not liable for third party information hosted on
them. The only obligation which Section 79 of the IT Act imposes is that
of due diligence on the part of intermediaries as Facebook did not initiate
84 Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC
466.
[104]
the transmissions, nor controlled the same. Hence, they cannot be held
liable and any action taken against intermediary has to be in the manner
prescribed by the Act.85 It was stated that the New Summons did not
change the position in any way as the content of the inquiry was the
same.
115. Dr. Singhvi, seeking to rebut the arguments canvassed on behalf of
the petitioners sought to emphasise that it is not appropriate to equate the
expression “peace and harmony” with “law and order” as the former was
a much broader term. In any case, Legislative Assemblies have wide
inquisitorial powers,86 i.e. areas which are otherwise not available to a
legislature for legislative interference are still available to a committee of
the legislature. The relevant para from Kalpana Mehta reads as under:
“335. Various committees of both Rajya Sabha and Lok Sabha are
entrusted with enormous duties and responsibilities in reference to the
functions of the Parliament. Maitland in 'Constitutional History of
England' while referring to the committees of the Houses of British
Parliament noticed the functions of the committees in the following
words:
“...Then again by means of committees the Houses now exercise what
we may call an inquisitorial power. If anything is going wrong in
public affairs a committee may be appointed to investigate the matter;
witnesses can be summoned to give evidence on oath, and if they will
85 Supra note 66.
86 Supra note 20.
[105]
not testify they can be committed for contempt. All manner of
subjects concerning the public have of late been investigated by
parliamentary commissions; thus information is obtained which may
be used as a basis for legislation or for the recommendation of
administrative reforms.”
(emphasis supplied)
116. This was stated to be in furtherance of the legislative competence
of an Assembly and in exercise of the Committee’s inquisitorial powers
to make the best possible recommendations.
117. Dr. Singhvi contended that selective extracts of the press
conference cannot be the basis for giving a different meaning to the
proceedings than the Terms of Reference. He sought to clarify that the
scope of the Committee was purely recommendatory, including making
positive recommendations to ensure peace and harmony in the NCT of
Delhi in the future which relates to various heads of competence of the
Assembly in List II and List III of the 7th Schedule. No federal unit can
function in the absence of peace and harmony amongst various groups of
people who reside, live and work in that federal unit. Thus, the domain of
peace and harmony in the NCT of Delhi is something very broad and
inherent to the legislature of the federal unit and encompasses within it
many areas of competence of the Assembly both in List II and List III. It
[106]
was further contended that “fraternity” is a preambular value which, like
equality and liberty, imbues the functioning of the entire Constitution.
He referred to Entry 39 of List II relating to “Powers, privileges and
immunities of Legislative Assembly” to emphasise that enforcement of
attendance of persons for giving evidence or producing documents before
committees of the Legislature of the State was an intrinsic part of its
functions. This coupled with Entry 45 of List III dealing with Inquiries
and Statistics for the purposes of any of the matters specified in List II or
List III would completely cover the aspects sought to be gone into by the
Committee.
118. Dr. Singhvi, in support of the manner in which such committees
can function and their remit, referred to three judicial pronouncements
from the United States: (i) Eastland v. The United States Servicemen’s
Fund87, (ii) Watkins v. United States88 and (iii) Barenblatt v. United
States89. The common thread which permeates these judgments is that
the power to investigate is inherent in the power to make law as a
legislative body cannot legislate wisely or effectively in the absence of
information with respect to the conditions that the legislation is intended
87 Supra note 79.
88 Supra note 76.
89 Supra note 78.
[107]
to affect or change. In that context, the issuance of subpoenas could be
exercised by a committee acting on behalf of the House. It was thus said:
“To conclude that the power of inquiry is other than an integral part of
the legislative process would be a miserly reading of the Speech or
Debate Clause is derogation of the integrity of the legislature.”90
119. Such an inquiry was not in turn circumscribed by what the end
result would be: “Nor is the legitimacy of a congressional inquiry to be
defined by what it produces.” 91 Such investigative function was akin to
any research with the possibility of researchers ending up in some “blind
alleys” and into non-productive enterprises, as “to be a valid legislative
inquiry there need be no predictable end result.” 92
120. On the duty of a citizen to cooperate with US Congress in an effort
to obtain the facts, it was held to be an “unremitting obligation to
respond to subpoenas, to respect the dignity of the Congress and its
committees and to testify full with respect to matters within the province
of proper investigation.”93
90 Supra note 79.
91Supra note 79.
92 Supra note 79.
93 Supra note 76.
[108]
121. On an aspect of teaching which is pursued in educational
institutions, it was observed that inquiries cannot be made into a
constitutional protection against the freedom to teach. But this would not
preclude the Congress from interrogating a witness merely because he is
a teacher. Thus, “an educational institution is not a constitutional
sanctuary from inquiry into matters that may otherwise be within the
constitutional legislative domain merely for the reason that inquiry is
made of someone within its walls.”94
122. Dr. Singhvi submitted that it was inappropriate for the petitioners
to link the competence to discuss the subject matter with the powers to
exercise privilege. The Terms of Reference that define the scope and
competence not having been challenged, it was submitted that it was not
appropriate for the petitioners to invite a view of this Court on the
competence of the Committee. The argument about excluded Entries was
labeled as a “smokescreen”. In the context of the claim of exclusion
arising from Entries it was submitted that any such exclusion would have
to be narrowly construed.95
94 Supra note 78.
95 Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109.
[109]
123. Dr. Dhavan adopted the same line of argument as Dr. Singhvi,
referring to the same judicial pronouncements. He submitted that the
holding in Watkins96 was based on Chief Justice Warren’s exclamatory
resentment of McCarthyism in the 1950s and has since been criticized as
unnecessarily limiting the powers of Congress. On the same lines were
the subsequent judgments of the Supreme Court which settled major
issues of congressional authorisation and relevance of the first
amendment.97 The view taken thereafter by the US Supreme Court
reinforces powers of the Committee rather than undermines them.98 The
essence of American Law, he contended, is that when you are summoned,
you must appear but can plead the fifth amendment in not answering
questions.
124. Dr. Dhavan proceeded with his arguments on a larger canvas that
the Delhi Government was empowered to cover every aspect of its
governance, and peace and harmony could not be equated solely with
police functions and public order. The argument can be said to be on four
different planes: (i) harmonious interpretation of entries; (ii) the ragbag
96 Supra note 76.
97 Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US
431 (1961).
98 Supra note 79.
[110]
approach; (iii) wide scope of inquiries under Entry 45 of List III; and (iv)
executive power must be interpreted widely. The emphasis of Dr.
Dhavan’s argument was that communal harmony is an important part of
Delhi’s governance that goes beyond the limited remit of police functions
and public order. The incident of February, 2020 in Delhi was stated to
prove that in addition to affecting public order, communal disharmony
has a harmful effect on trade and commerce, transportation, education
and governance generally. Considering the implication of these domains,
it was contended that it would be deeply harmful if the police were the
sole custodians of peace and harmony. The initial course of action
requires people to be educated and that governing authorities liaise with
them in order to calm tensions. To agree to the submissions of the
petitioners would be to permit the argument that there was none in the
Delhi Government who could address the issue of peace and harmony.
On a larger canvas, the message that would permeate to non-members
would be that they could get away by not appearing before the
Legislative Assemblies, as the latter had no power to compel their
appearance. It was submitted that this would make the entire system of
Committee proceedings farcical. The need for harmonious construction
[111]
required that legislative entries must be given the widest amplitude and,
thus, he submitted that it was the duty of the Court to reconcile entries
that may appear to overlap or may be in direct conflict.99
125. Dr. Dhavan sought to introduce the concept of ragbag legislation,
submitting that this was an expression used by the Indian Supreme Court
in income tax jurisprudence.100 The ragbag approach suggested that
legislative and executive powers need not be traced to only one entry, but
may instead be traced to multiple entries in the relevant list in the 7th
Schedule. Thus, this perspective of multiple entries may empower the
Committee to consider peace and harmony – some that were directly
applicable like education, and others that applied indirectly like trade and
commerce. Peace and harmony was a concept much beyond public order
and police, and illustrations of the same were given from List II and List
III. The relevant portions of List II and List III as given in the 7th
Schedule read as under:
“List II—State List
5. Local government, that is to say, the constitution and
powers of municipal corporations, improvement trusts,
districts boards, mining settlement authorities and other
99 Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596.
100 Ujagar Prints (II) v. Union of India (1989) 3 SCC 488.
[112]
local authorities for the purpose of local self-government or
village administration.
6. Public health and sanitation; hospitals and dispensaries.
7. Pilgrimages, other than pilgrimages to places outside
India.
10. Burials and burial grounds; cremations and cremation
grounds.
12. Libraries, museums and other similar institutions
controlled or financed by the State; ancient and historical
monuments and records other than those [declared by or
under law made by Parliament] to be of national importance.
13. Communications, that is to say, roads, bridges, ferries,
and other means of communication not specified in List I;
municipal tramways; ropeways; inland waterways and traffic
thereon subject to the provisions of List I and List III with
regard to such waterways; vehicles other than mechanically
propelled vehicles.
17. Water, that is to say, water supplies, irrigation and
canals, drainage and embankments, water storage and water
power subject to the provisions of entry 56 of List I.
22. Courts of wards subject to the provisions of entry 34 of
List I; encumbered and attached estates.
24. Industries subject to the provisions of [entries 7 and 52]
of List I.
26. Trade and commerce within the State subject to the
provisions of entry 33 of List III.
27. Production, supply and distribution of goods subject to
the provisions of entry 33 of List III.
28. Markets and fairs.
[113]
32. Incorporation, regulation and winding up of
corporations, other than those specified in List I, and
universities; unincorporated trading, literary, scientific,
religious and other societies and associations; co-operative
societies.
35. Works, lands and buildings vested in or in the possession
of the State.
37. Elections to the Legislature of the State subject to the
provisions of any law made by Parliament.
39. Powers, privileges and immunities of the Legislative
Assembly and of the members and the committees thereof,
and, if there is a Legislative Council, of that Council and of
the members and the committees thereof; enforcement of
attendance of persons for giving evidence or producing
documents before committees of the Legislature of the State.
65. Jurisdiction and powers of all courts, except the Supreme
Court, with respect to any of the matters in this List.”
“List III—Concurrent List
1. Criminal law, including all matters included in the Indian
Penal Code at the commencement of this Constitution but
excluding offences against laws with respect to any of the
matters specified in List I or List II and excluding the use of
naval, military or air forces or any other armed forces of the
Union in aid of the civil power.
3. Preventive detention for reasons connected with the
security of a State, the maintenance of public order, or the
maintenance of supplies and services essential to the
community; persons subjected to such detention.
8. Actionable wrongs.
[114]
12. Evidence and oaths; recognition of laws, public acts and
records, and judicial proceedings.
15. Vagrancy; nomadic and migratory tribes.
16. Lunacy and mental deficiency, including places for the
reception or treatment of lunatics and mental deficients.
20. Economic and social planning.
23. Social security and social insurance; employment and
unemployment.
25. Education, including technical education, medical
education and universities, subject to the provisions of
entries 63, 64, 65 and 66 of List I; vocational and technical
training of labour.
28. Charities and charitable institutions, charitable and
religious endowments and religious institutions.
33. Trade and commerce in, and the production, supply and
distribution of,—
(a) the products of any industry where the control of such
industry by the Union is declared by Parliament by law to be
expedient in the public interest, and imported goods of the
same kind as such products;
(b) foodstuffs, including edible oilseeds and oils;
(c) cattle fodder, including oilcakes and other concentrates;
(d) raw cotton, whether ginned or unginned, and cotton seed;
and
(e) raw jute.
38. Electricity.
39. Newspapers, books and printing presses.
[115]
40. Archaeological sites and remains other than those
[declared by or under law made by Parliament] to be of
national importance.
45. Inquiries and statistics for the purposes of any of the
matters specified in List II or List III.”
126. Dr. Dhavan further submitted that the constitutional obligation to
take preventive action to ensure non-discrimination provided for the
Government’s duty to examine and recommend action in respect of peace
and harmony as also to protect religion, cultural rights and dignity of
individuals as envisaged in various constitutional provisions, i.e., Articles
14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These
provisions are really an amalgam of fundamental rights and directive
principles of state policy. Considerable emphasis was placed by Dr.
Dhavan on Entry 45 in List III, which is a self-standing entry that has
been given the widest amplitude by this Court.101 This entry deals with
the executive power to make committees of inquiry. In that context it has
been observed that these inquiries would encompass any matter
enumerated in any of the Lists and would not be confined to those
matters as mere heads of legislative topics – extending the inquiries into
collateral matters. Further referring to Entry 39 of List II, Dr. Dhavan
101 Sriram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 at pgs. 289, 291.
[116]
urged that this entry was wide enough from a bare reading to include the
power to summon non-members having used the expression of
“enforcement of attendance of persons”.
127. The thread which permeated Dr. Dhavan’s arguments was that the
task of governance is much wider than merely drafting legislation and
executing it. Executive power would collapse if it were to be reduced to
simply executing the laws enacted by the Legislature and, thus, the
Supreme Court had explained that executive power without law had to be
construed widely.102
128. After having dealt with the four aspects referred to aforesaid, Dr.
Dhavan sought to respond to Mr. Salve’s argument of the legislative
domain being occupied by the IT Act. It was Dr. Dhavan’s submission
that the IT Act was an example of “cooperative federalism” as the Act
empowered both the State and the Centre in terms of the definition of
“appropriate government” in Section 2(e). Thus, provisions such as
Section 6 and 69 of the IT Act could refer to either the Centre or the State
and the legislative domain could not be said to be exclusively occupied
by the Centre. This is more so in the context of a mere summons that
102 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.
[117]
required the petitioner’s appearance without reaching the stage at which
punitive action may be considered. The Committee was submitted not to
be engaged in any inquisitorial exercise but was only limited to aid in the
spirit of cooperative federalism.
129. Cooperative federalism was contended not to be a source of power
but rather a part of the principles that underlie the Constitution. It was a
method of communication that makes federalism more effective requiring
both Centre and State to work together to address common problems.
Thus, the State could not exist without collaborative or cooperative
federalism.103 This was stated to be of even greater significance in light
of the tug of war between the Centre and the State in respect of the
unique position of the Delhi Legislative Assembly. As such, peace and
harmony issues ought to be resolved by a coordinated effort. He did, of
course, concede that the history of two governments was testament to a
tussle which was closer to being competitive rather than collaborative.
130. Dr. Dhavan, thus, concluded his arguments by submitting on this
aspect that:
103 Supra note 27.
[118]
(a) it was not his contention that conventions and broad concepts
are sources of power;
(b) underlying principles, however, are fundamental to both
interpretation of the Constitution and powers exercised through the
Government or their legislatures;
(c) a recommendatory committee has a duty to inform the Central
Government of the problems it encounters so that organs of
Government can act in furtherance of this principle of cooperative
pragmatic federalism;
(d) the Committee by itself did not claim the power to punish the
breach though it does possess the power to summon without penal
consequences. It could at best make a recommendation which
would have to be examined by the House through the process of a
privileges committee. This was a routine part of every summon,
only indicative of the power of the Parliament/Assembly.
131. Mr.Tushar Mehta, learned Solicitor General sought to advance
submissions substantially on this aspect as there was a conflict in the
stands taken by the State and the Central Government on this issue. As
noticed earlier – while on the one hand he was with the State
Government on the issue of the right to summon per se, a difference
[119]
arose on account of his argument that in the given factual situation, the
power to summon vested solely with the Central Government. Mr. Mehta
referred to Article 212 of the Constitution, which reads as under:
“212. Courts not to inquire into proceedings of the
Legislature. –
(1) The validity of any proceedings in the Legislature of a State
shall not be called in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom
powers are vested by or under this Constitution for regulating
procedure or the conduct of business, or for maintaining order,
in the Legislature shall be subject to the jurisdiction of any
court in respect of the exercise by him of those powers.”
132. It was his submission that proper effect should be given to the
above provision and the Court did not really have the power to deal with
the functioning/internal administration of the Parliament/Assemblies and
the committees thereof. There was, however, a narrow scope of judicial
review permitted in the present case as the person involved was not a
member of the House. The enquiry being ultra vires the powers
conferred on the Assembly, he contended that the subjects specifically
excluded by the Constitution could not be surreptitiously brought within
the purview of the Assembly by categorising the issue as “peace and
[120]
harmony.” It was intrinsically a law and order issue, which was an
occupied field and also an excluded field so far as the Assembly was
concerned.
133. While accepting that privilege was necessarily connected with
legislative power, the same (if the aspect so arose) would have to be
considered in the context of legislative competence. The plenary powers
of the legislature were circumscribed by the written Constitution which
set out the legislative fields allotted to each of their jurisdictions by the
three Lists in the 7th Schedule putting an embargo on the Legislatures to
travel beyond the entries in their respective lists.104
134. Learned Solicitor General sought to emphasise on the unique case
of Delhi with reference to its excluded entries. It was not at par with any
other State Assembly. Delhi was the national capital and thus, the law
makers had consciously made a provision keeping this larger picture in
mind and reserving to the Parliament three entries which would otherwise
be available in List II to the State Assemblies. In the absence of
legislative competence, it would be a colourable exercise of power to
engage in the subject matter. The formation of a “peace and harmony”
104 Supra note 12.
[121]
committee was stated to be one such colourable exercise of power. This
became apparent from the summons issued which explicitly provided
that, in effect, the Committee was dealing with law and order and the
police. The battle between the Centre and the State qua Delhi which
gave rise to the previous judicial pronouncements, clarified which of the
two had powers qua specific excluded entries. It would be a betrayal of
the mandate of these judgments which had upheld the rationale behind
exclusion of entries drawing from the unique position of Delhi.105
135. The pith and substance argument was sought to be advanced to
contend that reliance on entries in List II and List III was not justified if
the matter directedly related to excluded entries.106
136. Learned Solicitor General, while accepting the proposition that
entries have to be read widely, submitted that where there is a specific
entry dealing with a particular subject, that specific entry would prevail
to the exclusion of the general entry.107 The entries relied upon by the
respondents were general in nature, while the entries of “law and order”
and “police” were specific and thus, must prevail. The subsequent
105 Supra notes 27 and 82.
106 A.S. Krishna v. State of Madras AIR 1957 SC 297 at para 8; Kartar Singh v.
State of Punjab (1994) 3 SCC 569 at para 60; Zameer Ahmed Latifur Rehman
Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC 246 at para 40.
107 Supra note 84.
[122]
executive action was also not permissible for the Assembly as the Central
Government had sole jurisdiction even over executive matters relatable to
those entries in view of Article 73 of the Constitution. The executive
powers were mandated to be co-terminus with legislative competence
and the legislature could not be allowed to intervene through the indirect
method of committees and its privilege, thereby overreaching the
Constitution.
137. The principle of cooperative and collaborative federalism was not
disputed but then it was urged that the summons did not say that the
Assembly and the Committee wanted to give any recommendations. This
was only a defence and an afterthought. By way of example, Mr. Mehta
averred that on a defence strategy matter, the Assembly could not be
permitted to call the Chief of Defence Staff (CDS). In fact, it was
submitted that cooperative/collaborative federalism required the
Assembly to function within the confines of the powers conferred on it
and not commit an overreach – to read it otherwise would be combative
or competitive federalism.
138. On the doctrine of occupied field, it was urged that the subjects
which the Committee sought to go into were already occupied by the
[123]
Parliament. Facebook was an intermediary, and in that regard would be
covered under “communication”, which is Entry 31 of List I. In fact, all
three fields of intermediaries, law and order or police were occupied by
the Parliament. There was no perceived conflict of entries and the
specific omission of Entries 1 & 2 of List II and the presence of Entry 31
of List I, clearly indicated which fields were specifically occupied by the
Parliament and what has been specifically omitted for the Assembly.108
139. It was submitted that the Parliamentary Standing Committee on
Information Technology was already in seisin of the aspect of
“Safeguarding citizens’ rights and preservation of misuse of social/online
news media platforms including special emphasis on women security in
the digital space”. It was in pursuance thereto that a notice was issued to
Petitioner No.1 on 20.08.2020 to provide his views and the said petitioner
duly appeared before that Committee on 02.09.2020. There was, thus, no
occasion for the Committee to go into this aspect.
140. On the aspect of the IT Act, a field occupied by the Parliament, it
was submitted that even rules have been framed thereunder including the
108 ITC Ltd. v. State of Karnataka 1985 Supp SCC 476 at paras 17, 32; Hoechst
Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 at para 51; Offshore
Holdings (P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 at para
102.
[124]
IT (Procedure and Safeguards for Blocking for Access of Information by
Public) Rules that provide an elaborate procedure for blocking of
information by an online intermediary and their criminal liability for
failing to do so. The IT Act has been formulated under Entry 31 of List I,
which covers “other forms of communication”. Thus, in that sense the
intermediaries were beyond the competence of the Assembly. Section
69A of the IT Act specifically deals with blocking of content, including
hate speech.
141. It was his submission that the legal issues involving law and order,
public order, and the corresponding responsibility of online
intermediaries to address hate speech on their platforms have already
been addressed by the Central Government. The Assembly not having
legislative competence, cannot also have the competence to examine
people and prepare a report. There was no power to give
recommendations and the summons did not even clarify that the exercise
was for making recommendations.
142. Finally, the learned Solicitor General referred to the case in N.
Ravi109 to contend that the issue in contention, i.e., the interplay of
109 Supra note 46.
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fundamental rights and parliamentary privileges, was already pending
before a 7-Judge Bench.
Recent Developments:
A. Role of Intermediaries:
143. In COVID times there have been some fast-paced developments
around the world qua the role and management of intermediaries. In
view of there being some time gap between the date of reserving the
judgment and its pronouncement, we consider it appropriate to pen down
these developments over the last four months. The UK Commons
Privileges Committee published a new report on select committee powers
on 03.05.2021, looking to strengthen the ability of select committees to
call for persons, papers, and records. The background to this is the
reluctance, or in some cases even refusal, of individuals to appear before
these committees in a number of high-profile cases. The Privileges
Committee has proposed a Parliamentary Committees (Witnesses) Bill,
which would introduce new criminal offences relating to refusal to attend
a summons or failing to provide information or documents without a
reasonable excuse110
.
110 Alexander Horne, Should Select Committees Be Able To Compel Attendance?,
Prospect Magazine (07/05/2021), accessible at:
https://www.prospectmagazine.co.uk/politics/should-select-committees-be-able-
[126]
Intermediaries and platforms have seen a hot pursuit in the US for
regulating the consequences of their business. The House Energy and
Commerce Committee of the US House of Representatives issued a
summons to Facebook CEO Mark Zuckerberg, Google CEO Sundar
Pichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which they
duly complied. The House Committee pointed out false claims about
COVID-19 vaccines and the supposed election fraud that had proliferated
on social media platforms.111 The background was the incident at the
Capitol post the US Presidential Election results being declared in 2021.
It is of significance to note the comments of the Chairman of the
Committee, Frank Pallone that, “For far too long, big tech has failed to
acknowledge the role they have played in fomenting and elevating
blatantly false information to its online audiences. Industry selfregulation has failed.”112 The Chairmen of two other sub-committees
remarked, “We must begin the work of changing incentives driving social
to-compel-attendance.
111 Lauren Feiner, Facebook, Google And Twitter CEOs Will Make Another
Appearance Before Congress In March, CNBC (18/02/2021), accessible at:
https://www.cnbc.com/2021/02/18/facebook-google-twitter-ceos-to-testify-beforecongress-in-march.html.
112 House Committee on Energy and Commerce , Press Release, , E&C
Committee Announces Hearing with Tech CEOs on the Misinformation and
Disinformation Plaguing Online Platforms, (18/02/2021), accessible at:
https://energycommerce.house.gov/newsroom/press-releases/ec-committeeannounces-hearing-with-tech-ceos-on-the-misinformation-and.
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media companies to allow and even promote misinformation and
disinformation.”113 The divergence of views between Republicans and
Democrats was also evident. While the former claimed that conservative
viewpoints are maligned on social media platforms, the latter sought
action against misinformation and hate speech with special attention to its
impact on minority communities including the LGBTQ+ community, the
Black community, Asian Americans, and Latin Americans. These
developments, to our mind, are apposite to be examined in the context of
the argument advanced on behalf of the petitioners that they do not want
to appear before the Committee on account of a divided political milieu.
144. In India, since 2020, a Joint Parliamentary Committee has been
examining the Personal Data Protection Bill, 2019 in relation to the
issues of data protection and security.114 The Committee summoned
telecom operators Jio and Airtel as well as aggregators Ola and Uber in
November, 2020. Google, PayTM, Facebook, Twitter and Amazon have
113 Ibid.
114 Ministry of Parliamentary Affairs, Press Release, Joint Committee on the
Personal Data Protection Bill, 2019 Seeks Views and Suggestions, (03/02/2020),
accessibleat: https://pib.gov.in/PressReleasePage.aspx?PRID=1601695.
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earlier deposed before this Committee115 and the report of the
parliamentary committee is stated to be in its final stages.
145. A significant development has been the notification of The
Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021 on 25.02.2021116, a day after the judgment was
reserved. These rules introduce a range of due diligence measures to be
implemented by intermediaries and lay down a code of ethics for digital
news platforms in relation to digital media. These Rules have been
assailed before different High Courts across the country including Kerala,
Karnataka, Madras, and Delhi, and are currently pending consideration.
B. Amendment to the GNCTD Act, 1991:
146. Yet another significant development in the context of the
controversy before us, in the legislative domain, has been the amendment
115 India Today Web Desk, Parliamentary Panel Summons Airtel, Jio, Uber, Ola,
Truecaller Over Data Security Concerns, India Today, aaccessible at:
https://www.indiatoday.in/india/story/parliamentary-panel-summons-airtel-jiouber-ola-truecaller-over-data-security-concerns-1736020-2020-10-28.
116 The Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021, Notification of the Ministry of Electronics & Information
Technology No. 2021 G.S.R. 139(E) (25/02/2021), accessible at:
https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_
Media_Ethics_Code_Rules-2021.pdf.
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of the GNCTD Act which came into force on 27.04.2021117. The
amendments are:
a. The term ‘Government’ referred to in any law made by the
Delhi Legislative Assembly will mean the Lieutenant Governor
(‘LG’).
b. The LG must reserve for the consideration of the President all
bills that incidentally cover any matters that fall outside the
purview of the powers conferred on the Legislative Assembly.
c. Rules made by the Delhi Legislative Assembly to regulate its
own procedure and conduct of business in the Assembly must
be consistent with the Rules of Procedure and Conduct of
Business in the Lok Sabha.
d. The Delhi Legislative Assembly will not be entitled to make
rules to (i) enable itself or its Committees to consider matters of
day-to-day administration of the NCT of Delhi, or (ii) conduct
any inquiry in relation to administrative decisions; and any such
rules made prior to this amendment will be void.
117 Ministry of Home Affairs, Press Release, , Amendments to GNCTD Act, 1991
Do not Alter Constitutional and Legal Responsibilities of Elected Government in
Respect of Transferred Subjects in State & Concurrent Lists (29/04/2021),
accessible at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1714828.
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e. Any executive action taken by the Delhi Government will be in
the name of the LG and the requirement of a prior opinion of
the LG by the Delhi Legislative Assembly before it takes any
executive action in respect of certain matters with such matters
being specified by a general or special order issued by the LG.
147. The object of the aforesaid as per the Statement of Objects and
Reasons of these amendments is stated to be to promote “harmonious
relations between the legislature and the executive” and to define the
responsibilities of the elected government and the LG in accordance with
the two NCT judgments118. Suffice to state that these amendments have
been assailed before the Delhi High Court and are pending consideration.
148. We say that these amendments are significant as in a way they
appear to be an offshoot of the continuous tussle between the State
Assembly and the Central Government. The present proceedings where
such difference of opinion is clearly reflected seem to also be a trigger,
possibly in an attempt to control what the Assembly and the Committee
intended. However, we are concerned with the situation prevalent at the
relevant time and the arguments advanced in that behalf. We have not
118 Supra notes 27 and 82.
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been called upon to comment on the consequences of these amendments
qua the subject matter of the present proceedings, more so when the
challenge in respect of the same is pending before the Delhi High Court.
The Opinion:
149. We must begin our opinion by noticing at the inception itself, the
vast and influential role of an intermediary like Facebook. In this
modern technological age, it would be too simplistic for the petitioners to
contend that they are merely a platform for exchange of ideas without
performing any significant role themselves – especially given their
manner of functioning and business model. Debate in the free world has
shown the concern expressed by Governments across the board and the
necessity of greater accountability by these intermediaries which have
become big business corporations with influence across borders and over
millions of people. Facebook today has influence over 1/3rd population
of this planet! In India, Facebook claims to be the most popular social
media with 270 million registered users. The width of such access cannot
be without responsibility as these platforms have become power centres
themselves, having the ability to influence vast sections of opinions.
Without undermining the role performed by Facebook in giving a voice
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to various sections of society across the world, it has to be noted that
their platform has also hosted disruptive voices replete with
misinformation. These have had a direct impact on vast areas of subject
matter which ultimately affect the governance of States. It is this role
which has been persuading independent democracies to ensure that these
mediums do not become tools of manipulative power structures. These
platforms are by no means altruistic in character but rather employ
business models that can be highly privacy intrusive and have the
potential to polarize public debates. For them to say that they can
sidestep this criticism is a fallacy as they are right in the centre of these
debates.
150. Facebook as a platform is in the nature of a mass circulation media
which raises concerns of editorial responsibility over the content
circulated through its medium. The width of the reach of published
material cannot be understated or minimized. Facebook has
acknowledged in their reply that they removed 22.5 million pieces of hate
speech content in the second quarter of 2020 itself, which shows that they
exercise a substantial degree of control over the content that is allowed to
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be disseminated on its platform. To that extent, a parallel may be drawn
with editorial responsibility cast on other mass circulation media.
151. The business modelof intermediaries like the petitioner being one
across countries, they cannot be permitted to take contradictory stands in
different jurisdictions. Thus, for example in the United States of
America, Facebook projected itself in the category of a publisher119
,
giving them protection under the ambit of the First Amendment of its
control over the material which are disseminated in their platform. This
identity has allowed it to justify moderation and removal of content.
Conspicuously in India, however, it has chosen to identify itself purely as
a social media platform, despite its similar functions and services in the
two countries. Thus, dependent on the nature of controversy, Facebook
having almost identical reach to population of different countries seeks to
modify its stand depending upon its suitability and convenience.
152. We are afraid we are not inclined to accept the simplistic approach
sought to be canvassed by Mr. Salve on the role of Facebook. Forceful as
it may be, it does not convince us. Developments around the world, as
119 Facebook’s Motion to Dismiss Pursuant to Federal Rule Of Civil Procedure
12(B)(6) and Incorporated Memorandum Of Law in Laura Loomer v. Facebook Inc.
Case No.9: 19-cv-80893-RS, accessible at https://docs.reclaimthenet.org/Loomerv-Facebook-fb-response.pdf.
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we have noted above, reflect rising concerns across borders. The concern
is whether the liberal debate which these platforms profess to encourage
has itself become a casualty. We have noticed in the beginning that
algorithms, which are sequences of instructions, have human
interventions to personalise content and influence opinions as part of the
business model. As such, their primary objective is to subserve their
business interests. It is first a business and then anything else. As per
their own acknowledgement, they would only appear before any
committee if it served their commercial and operational interests, as it did
when they appeared before the parliamentary committee. But if their
business interests are not served, they seek a right to stay away. Such a
stand is completely unacceptable to us. Facebook has the power of not
simply a hand but a fist, gloved as it may be.
153. We now turn to the incident at hand, that of an unfortunate violent
eruption. The need to go into this incident both from a legal and social
perspective cannot be belittled. The capital of the country can ill-afford
any repetition of the occurrence and thus, the role of Facebook in this
context must be looked into by the powers that be. It is in this
background that the Assembly sought to constitute a peace and harmony
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committee – whether it has the legislative competence or not is an aspect
we will deal with it under the relevant head. The Assembly being a local
legislative and governance body, it cannot be said that their concerns
were misconceived or illegitimate. It is not only their concern but their
duty to ensure that “peace and harmony” prevails. However, we may
note that the long and repeated battles between the State and the Centre
appear to have cast a shadow even over the well-meaning intent of the
Committee to assess peace and harmony as reflected in the Terms of
Reference.
154. We may record that the Central Government and the State
Government have been unable to see eye to eye on governance issues in
Delhi. This has been responsible for a spate of litigation and despite
repeated judicial counsel to work in tandem, this endeavour has not been
successful. There is little doubt that the constitution of the governance
model in Delhi is somewhat unique. This itself flows from Delhi being
the capital of the country. Delhi has had a history of having an Assembly
replaced by a model of Union Territory governance by Executive
Councilors. There were long years of tussle to have a Legislative
Assembly with commonality of objectives across the primary political
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space, but whoever was in governance found it difficult to let go. The
model that came into being, thus, had somewhat of a hybrid character,
giving an expanded role to the Central Government as compared to any
other Legislative Assembly. To that extent, there was a diminishing of
the federal structure but there appears to have been a consensus on this
aspect.
155. The aforesaid arrangement worked well for many years even with
different political dispensations in power in the Centre and the State. But
the last few years have seen an unfortunate tussle on every aspect with
the State Government seeking to exercise powers as any other Assembly
and the Central Government unwilling to let them do so. The bone of
contention has not only been the three subject matters of which the State
was denuded of its powers, i.e., Entries 1, 2 & 18 from List II; but it is
almost a daily governance tussle.
156. The political dispensation which is in power in the State has to
recognise the constitutional scheme of division of powers in Delhi which
circumscribes their ability to work only within those powers. When they
got elected, they knew what they were getting elected for – not what they
thought should be the division of powers. On the other hand, the Central
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Government is required to work in tandem, albeit with a different
political dispensation. Maturity is required from both sides and we have
to reluctantly note the absence of such maturity in this important interrelationship.
157. To work well, the Central Government and the State Government
have to walk hand in hand or at least walk side by side for better
governance. The failure to do so is really a breach of their respective
electoral mandate, the seven Lok Sabha seats are all held by the powers
that be in the Central Government but a very different result came in the
Assembly Elections. This has seen a repeat. It is a reflection of the
maturity of the electorate which has chosen to put one dispensation in
power in the Centre while seeking to choose another in the State as the
roles are divergent. The concerns are different. The two powers
unfortunately do not seek to recognise this aspect, and that is the bane of
this structure requiring collaboration and concurrence. Unfortunately, it
has become an endeavour to score points over the other. Some prior
discussion and understanding could easily solve this problem instead of
wasting large amounts of judicial time repeatedly arising from the failure
of the two dispensations to have a broader outlook. In fact, the current
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round is, in our view, arising from the petitioners seeking to take
advantage of this divergence of view and their inability to see a common
path.
158. No governance model requiring such collaboration can work if
either of the two sides take a ‘my way or the high way’ approach –which
both seem to have adopted. We have expressed our view on the contours
of the dispute and the facts have already been set out hereinabove. We
see no purpose in repeating those facts. We now turn to the four
propositions which form the basis of the writ petition (dealt with under
three heads) to record our views qua them.
On the Issue of Privilege:
159. The privilege issue arises out of the plea advanced by the
petitioners that both, the First Impugned Summons dated 10.09.2020 and
the Second Impugned Summons dated 18.09.2020, were to summon
Petitioner No.1 or a duly authorized representative of Petitioner No. 2
respectively with a threat of “privilege”. This argument was coupled
with a plea that such power of privilege cannot extend to compel an
individual, who is not a member of the House, into giving
evidence/opinion that they are not inclined to state.
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160. We may note the elaborate arguments addressed by Mr. Salve,
based on a premise that privilege power is really a special right enjoyed
as a shield in order to facilitate the working of the Assembly. It is not a
sword for assertion of power. It was argued that the constitutional
schemes of the UK and of India, a republic, are different and thus, the
privilege powers in the latter must be strictly confined to legislative
functions. Only if the integrity of the legislative functions is impaired,
either by a member or by non-members, would the occasion arise for
exercise of such power.
161. In fact, Mr. Salve sought to contend that it is time that exercise of
privilege power is codified, and to that extent an intent was expressed by
the Constitution makers in sub-clause (3) of Article 194. The relevant
portion states that such privileges “shall be such as may from time to time
be defined by the Legislature by law.”, and thus, the submission was that
this clause operated for a period “until (privilege powers were) so
defined.” Mr. Salve sought to persuade us to either lay down the guiding
principles or at least nudge the Parliament/Legislature to do so. We have
already noticed that this is an aspect seriously disputed by all the counsel
for the respondents.
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162. We may notice in the aforesaid context that the wordings of Article
194(3) are unambiguous and clear, and thus do not require us to give our
own twist or interpretation to them. These are not wordings of a statute,
but that of the primary document – the Constitution. The powers,
privileges and immunities of a House of the State Legislature as well as
its committees have been clearly defined as those of the House and all
members and committees thereof before the coming into force of Section
26 of the Constitution 44th Amendment Act, 1978. There was no timeline
provided for codification of powers, privileges and immunities of a
House. The Constitution has given leeway to the Legislature to define
the same from time to time, but there was no compulsion qua the same.
If the Legislature in its wisdom is of the opinion that it needs to be so
done, they will do so. Is it for this constitutional court to nudge them in
that direction? Our answer would be in the negative.
163. We say so as this is itself a debatable issue. There is a divergence
of views even amongst constitutional experts whether full play must be
given to the powers, privileges, and immunities of legislative bodies, as
originally defined in the Constitution, or is it to be restricted. Such
opinion would have to be debated before the Parliament/Legislature of
[141]
the State to come to a conclusion, one way or the other. It is not even a
subject matter where it could be said that any one opinion must prevail,
or a nudge must be given by this Court, or a recommendation must be
made for consideration by the legislative body. That Scotland and Wales
have considered it appropriate to have their own enactments in this
context, is a deliberate legislative exercise by those bodies. There is no
uniformity across the world in this regard.
164. The notion of individual constitutional rights and the right to
privacy is sought to be expanded by the petitioners to encompass the
right of refusal even to appear in pursuance of the summons. The debates
across democratic policy including some of the developments recorded
by us, would show that there is a turn towards recognising the importance
of an element of compulsion (if so required) for deposition/opinions
relating to the present subject matter. This is more so in the context of
monolithic business models having vast financial and technical powers at
their disposal. As a constitutional court, we are not inclined to step into
it.
[142]
165. It is not disputed that committee proceedings cannot be equated to
proceedings before the court of law.120 No doubt these powers have to
work in the context of the business of each House, and no House can be a
knight in shining armour to correct issues in respect of which it has no
legislative power. Yet, it would be a monumental tragedy to conclude
that the legislature is restricted to the function of enacting laws. The role
of the legislature is sought to be diminished by such an argument. The
legislature debates many aspects, and at times records a sense of the
House. This is not unusual or without precedent. The judgment in
Amarinder Singh121 is of little assistance to the petitioner as that was a
case of an executive act of exemption of land, and in no way obstructed
or threatened the integrity of the legislative proceedings. The facts of
each case are important and propositions of law must apply in the context
of the facts.
166. Once we recognize the wider array of functions performed by an
elected Parliament or Assembly, not confined to only enacting laws, any
120 Lord Denning’s observations as noted in State of Karnataka v. Union of India
on note 9.
121 Supra note 11.
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act in furtherance of this wider role and any obstruction to the same will
certainly give rise to an issue of parliamentary privilege.122
167. There is little quibble with the proposition recognized in the
Special Reference No.1/1964123 that there is a distinction between
exercise of legislative privileges and ordinary legislative functions. A
similar line of reasoning has been expressed in Justice (Retd.)
Markandey Katju v. Lok Sabha and Anr., when the hackles of the
Parliamentarians were raised on account of some utterances by Justice
(Retd.) Markandey Katju.124 We, however, fail to appreciate the line of
argument that no non-member could be summoned if they had not
intruded on the functioning of the Assembly; or that the non-participation
of the petitioner would not have adverse consequences as it did not
disrupt the functioning of the Committee. 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.
168. We really do not have any quibble with the propositions advanced
by Mr. Salve that there can be judicial scrutiny of an endeavour to
122 Supra note 24.
123 Supra note 12.
124 Supra note 13.
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exercise the power of privilege, which inherently suffers from lack of
jurisdiction, if illegal or unconstitutional.125 The issue, however, is
whether the situation has at all arisen meriting scrutiny by this Courtwhich in turn has to be preceded by initiation of the privilege
proceedings, an aspect emphasised by learned counsel for the Assembly
as well as the Committee.
169. In the factual matrix, only a summons has been issued for
appearance before the Committee. The question of any privilege power
being exercised is yet far away. It has been rightly pointed out by the
learned counsels for the respondents, that even if there was any breach of
privilege recorded by the Committee, the Committee would in turn have
to make a recommendation to the Assembly. The Assembly then would
be entitled to consider whether it is a fit case to exercise the power of
breach of privilege. In many cases, it may well be that the Assembly
considers that it is not worthwhile to do so, even if the Committee was to
prima facie opine so. The exercise by the Assembly is further dependent
on the opinion of the Privileges Committee. Thus, there are various tiers
of scrutiny before there is culmination of the exercise of power of
125 Supra notes 12, 15 and 20.
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privilege. None of those eventualities have at all arisen in the present
case. This case is a preventive endeavour by the petitioner to preclude
the respondents from even considering the aspect of privilege by seeking
this Court’s intervention at a pre-threshold stage, only on the premise of
the absence of legislative power. We will, of course, consider the aspect
of absence of legislative power as the last aspect on the questions framed
- but we cannot accept the fetters Mr. Salve seeks to place on the
Assembly and the Committee at the threshold. We may notice the
arguments of the respondents that recording of the consequences of
breach of privilege in a notice to appear is apparently something which is
done in a routine manner in such notices. This is possibly to make the
noticee conscious of the consequences. That would not mean that an
action for privilege has been triggered off at the outset.
170. We would like to turn to the aspect of the importance of the
working of committees; as, if there is no power to compel attendance, we
have little doubt that the working of these committees would be badly
impaired.
171. The committees constituted by legislative bodies like the
Assemblies for the States and Parliament for the Union, perform a key
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role in the functioning and the working of the Houses. In fact, it is often
said that the real work is done in these committees - away from the din of
the Parliament. These committees witness more vociferous reflection of
the divergent view, slightly away from public gaze. It is said that there is
a more reasonable and applied discussion in these committees. This is an
aspect recognized all over the world qua the functioning of such
committees. These committees are bodies which have the capability to
undertake wide-scale consultative processes, engage in dialogue, and
build consensus through intelligent deliberations. In fact, such an
exercise is intrinsic to the legislative process where public policies would
require detailed studies and concentration. These committees undertake
deliberations and provide recommendations as precursors to legislative
activities, and the effective working of committees is a prelude to the
core working of the Assemblies.
172. The committees are an extension of the legislature itself and do
informed work. Their significance has been exhaustively dealt with in
Kalpana Mehta126 which we have extracted hereinabove. US
Representative James Shannon’s words were noted with approval in the
126 Supra note 20.
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judgment, recognising that “around the world there is a trend to move
toward reliance on committees to conduct the work of parliament, and
the greatest reason for this trend is a concern for efficiency.”
127 It is not
possible for us to accept the contention of the petitioners to create an
artificial division between Assembly’s core/essential and non-essential
functions, with any restrictive clauses being placed on the deliberations
of the committees. Such water-tight compartmentalisation is not
advisable. Unless the committee embarks on a course completely devoid
of its functional mandate specified by the Assembly, or the Assembly
itself lacks jurisdiction to deal with the subject matter, we are of the view
that the widest amplitude must be given to the functioning of these
committees. It is the parliamentary committee system that has been
recognised as a creative way of parliaments to perform their basic
functions. The same principle would apply, even if it is to some extent
beyond their legislative domain. This is because they will not be able to
make any valid legislative recommendations in the absence of
competence over the subject matter. However, they may debate aspects
127 Comment of US Representative James Shannon during the 1995 Conference
on the Role of Committees in Malawi’s Legislature as noted in Kalpana Mehta at
note 20.
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which may be a reflection of their sense and consequently the sense of
the House, if so adopted by the House.
173. Walter Bagehot in his seminal work “The English Constitution”128
elucidated five significant functions of the House - elective, expressive,
teaching, informing and finally, the legislative. The legislative function
itself is a broad umbrella under which multiple responsibilities and tasks
are carried out in synchronization. The legislature is a “democratic
nucleus”, whereby such title entails the law-making process itself as
being multi-functional; involving receipt of informed opinions and
balancing interests of various stakeholders.129 Committees actually are
in the nature of specialised forums as Mallory states:
“The flow of public business is now so great, and its nature so
complicated, that it can only be handled by bodies with the technical
competence and the rational organization to master it. As Dr. Bernard
Crick has pointed out:
The novels of C. P. Snow, Professor Parkinson’s Law and K. C.
Wheare’s Government by Committee are all, in different ways,
testimonies to the truth that the most important work of central
government is conducted not by civil servants or M.P.’s working as
individuals, but by committees (Bernard Crick, Reform of the
Commons. Fabian Tract No.319 (London, 1959), p.13).”
128 Bagehot: The English Constitution, (P. Smith, 2001)..
129 J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public
Administration 1, 6 (1963).
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174. The inquisitorial role of the committee in the functioning of House
is of great significance, and as recognized, the investigation of a
complicated social problem prior to legislation often rests frequently on
such legislative committees.130 This task involves the examination of
witnesses and is helpful in dealing with matters of special and technical
nature, wisened by insight into affairs of the workings of different aspects
and the views expressed by different stakeholders. It can hardly be said
that in the context of what has been debated, the petitioners have no role
to play or are “outsiders”. Intelligent legislative action and deliberation
thereon rests on the power to investigate into questions of public
importance and, thus, issuance of summons is key to this investigative
exercise - a role clearly recognised in Kalpana Mehta131
.
175. We have no hesitation in stating that the endeavour of the
petitioners to sidestep their appearance before the Committee on a
perceived notion of not being an official representative - is not acceptable
to us – whether the exercise is for a legislative enactment, or for other
130 Promila Suri, Growth of Committee System in Central Legislature of India
1920-1947, (1979).
131 Supra note 20.
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purposes connected with its legislative domain. After all, “To be a valid
legislative inquiry there need be no predictable end result.”132
176. The Committee is yet to start its work qua the assistance to be
rendered by the petitioners. The petitioners cannot themselves frame and
presume possible questions that they might face before the Committee,
and then seek to encompass it under the argument of legislative
incompetence. The work of The Committee could encompass several
fields where organisations and individuals are expected to cooperate.
177. We are also not impressed by the argument that the privilege
powers of the Assembly are not constitutional in character but flow only
from the GNCTD Act. The scheme of privilege has to be seen in the
context of provisions of Article 239AA of the Constitution, as well as the
GNCTD Act. They are not divorced from each other. Dr. Singhvi, thus,
rightly referred to clauses 7(a) and 7(b) of Article 239AA to contend that
the GNCTD Act was not deemed to be an amendment to the Constitution
for the purposes of Article 368, notwithstanding that it may contain any
provision which amends or has the effect of amending the Constitution.
Rights and privileges are the same as any other House and, thus, the
132 Supra note 79.
[151]
calling into question of the proceedings of a sub-committee amounts to
calling into question the proceedings of the Assembly. At the cost of
repetition, we say that there has been no exercise of privilege power.
However, we have been called upon to deliberate, if one may say, to
some extent unnecessarily over this issue on account of insistence of the
petitioners to advance this argument prematurely. We do not know
whether on participation of the petitioners any question of privilege
would arise, whether the Committee would make a reference to the
Assembly, whether the Assembly would consider it to be referred to the
Privileges Committee, what would be the opinion of the Privileges
Committee and finally whether the Assembly itself would embark on a
path of a breach of privilege by the petitioners. This is a completely
speculative exercise.
178. The Assembly is no different from any other State assembly,
except to the extent that certain powers in List II of the Seventh Schedule
have not been conferred (i.e., Entries 1, 2 & 18). As a principle of law,
we are required to read all entries widely. Neither the included Entries
nor the excluded Entries have to be read restrictively. That is the
principle we will have to keep in mind.
[152]
179. Dr. Singhvi rightly pointed out that there is no judicial precedent
shown before us where judicial review has been successfully exercised at
such a threshold stage. Thus, judicial precedents would have to be read in
their factual matrix. The stage for any possible judicial intervention has
not arisen in the present case. In fact, such a threshold intervention was
sought and repelled by the Full Bench of the Madras High Court in C.
Subramaniam133
.
180. We have little doubt that a “Peace and Harmony” Committee may
have a much wider amplitude than what is excluded in Entries 1, 2 & 18
of List II. As to the issue of the extent of legislative power, we will deal
with it in the third part of our conclusion.
181. We have already noted with some disquiet the divergence of views
taken by Dr. Dhavan and Dr. Singhvi on the issue of the earlier notice
being withdrawn, and a subsequent notice being sent. Dr. Dhavan
expressed that this was really of not much significance. We are of the
view that the Committee is a creation of the Assembly. The notice was
withdrawn by the respondents themselves. In the wisdom of the
Committee, they sent a fresh notice- that the same was possibly not under
133 Supra note 30.
[153]
the advice of Dr. Dhavan or may have been on the advice of Dr. Singhvi
is of little relevance to us. Such conflict of submissions was best avoided
and unnecessarily gave rise to another set of arguments on behalf of the
petitioners to read some intent into the same. Dr. Dhavan was, however,
right in seeking to repel the challenge as based on anticipatory nature of
proceedings – being presumptive and preemptive.
182. The aspect of Dr. Dhavan’s submission that the Committee’s threat
to recommend criminal action was “toothless” and the Committee
Chairman’s statements during the press conference in this regard are both
best dealt with under the third aspect. Suffice to say at this stage that, in
our view, greater care would be required while framing the Terms of
Reference so as to not include something which would be termed by the
counsel as “otiose” before this constitutional court. The utterances of the
Chairman of the Committee, which would give rise to petitioner’s
apprehensions are best avoided. We are noticing these aspects because
these two factors can be the only reasons for the petitioners to have
approached this Court at this stage. In our view, there would have been
nothing to argue but for these two aspects – the first effectively
withdrawn during the course of argument, and the second sought to be
[154]
explained away as views of the people who deposed before the
Committee. We find it very difficult to accept both these aspects, and we
can safely say that these gave the petitioners an ostensible cause for
approaching this Court. This is an issue we cannot ignore - but for these
aspects, we would have possibly burdened the petitioners with exemplary
costs to have approached the court at this stage. A number of past
illustrations have been rightly given by Dr. Dhavan to illustrate notices
issued to non-members which we have already recorded in para 58 and
there is no need to repeat them.
183. We may record, at the end, that there is actually no serious dispute
about the per se competence of the Committee to discuss matters outside
the legislative domain of the Assembly but it was with a caveat that it
could not give rise to exercise of power of breach of privilege and the
right to summon a non-member. That being the position, we have
already noticed that any plea raised on the exercise of privilege is a preemptive strike in the absence of underlying facts. Where that situation
arises in the given factual context, the petitioners could have and would
be entitled to assail the same, but this Court will not indulge in an
advance ruling on this aspect. We have already clarified that we are not
[155]
inclined to accept the distinction between a member and non-member in
the aforesaid context; and the power of the Assembly to summon in the
format it sought to do is beyond exception and in accordance with law.
So much for the aspect of privilege.
On Privileges & Fundamental Rights
184. Mr. Salve sought to pit the expanded right of free speech and
privacy against privilege, emphasising that the petitioner had a right to
remain silent. In the context of the plea of the petition being premature
(which we have found against the petitioners as aforesaid), his
submission was that the mere threat of “necessary action” i.e., the
possibility of a breach of privilege, was enough to infringe both the right
to free speech and privacy. Thus, “the threatened invasion of the right”
could be “removed by restraining the potential violator”.134
185. The more restricted plea advanced by Mr. Salve was that even if
the right of privilege is recognised, it must be narrowly construed so as to
give maximum play to the fundamental rights to privacy and free speech,
which includes the right to remain silent. We may note that in view of
the original notice being withdrawn, Facebook’s plea of not having the
134 Supra note 38.
[156]
option of choosing whom to send stands whittled away. The interesting
part is that Petitioner No.1 did appear before the Parliament.
186. We find it rather difficult to countenance the plea that the judgment
of this Court in MSM Sharma135 stands whittled down by subsequent
judicial pronouncements or that powers, privileges and immunities under
Articles 105(3) and 194(3) of the Constitution must give way to the more
fundamental right of free speech under Article 19(1)(a) of the
Constitution in view of the reference pending before the larger Bench in
N. Ravi136
.
187. We have discussed at some length the aspect of privilege and the
rights which flow from it. Though such proceedings are not taking place
in Court, where depositions also take place, privileges of an elected body
of the Legislative Assembly and consequently of its committees must be
given full play.
188. We would also not like to delve on this issue in more depth as we
are conscious of the fact that the perceived conflict between MSM
135 Supra note 14.
136 Supra note 46.
[157]
Sharma137 and Special Reference No.1 of 1964138 is pending
consideration before a larger Bench in N. Ravi139. Suffice for us to add
that this reference has been pending since 2005. It may be stated that this
reference needs to be given some priority to settle the legal principles
involved, especially in the context of the expanding conflict on such
subject matters.
189. Be that as it may, we also agree with what Dr. Singhvi contended
-that this is another aspect which is premature. No coercive action has
been taken against the petitioner, and none was intended if the authorised
representative of the petitioners simply participated in the proceedings as
a witness. Emphasis was also laid on the transparency of these
proceedings in view of them being broadcasted live. The summons
having been lawfully issued by an empowered committee (subject, of
course to the legislative competence discussed hereinafter), the same
must be answered. The proceedings are not criminal or judicial in nature
as there is no accused before the Committee. Naturally, the Rules framed
by the House under Section 33 of the GNCTD Act (which in turn draws
137 Supra note 14.
138 Supra note 12.
139 Supra note 46.
[158]
strength from Article 239AA(7) of the Constitution) would be followed.
Protection of proceedings before the Assembly or the Committee under
Article 194 would include deposition of members or non-members.
190. We may add here that the option to not answer a question before
the Committee cannot seriously be disputed qua certain aspects if so
pleaded for good reasons, an aspect which would be examined by the
Committee as per Rules.
191. We would not like to say anything more on this subject in view of
the reference pending in N. Ravi,140 and the fact that the complete plea of
the petitioners is premature as nothing has really happened other than
them having been asked to appear before the Committee.
On Legislative Competence:
192. Is the Assembly embarking on a path which is blocked for them?
This is the core question of legislative competence of the Assembly in the
context of its powers and privileges not being akin to other State
Assemblies. The endeavour of Mr. Salve was to persuade us that once the
Assembly lacks competence, the petitioners have a right to stay away, as
140 Supra note 46.
[159]
all proceedings before the Committee would be devoid of any
constitutional mandate.
193. It is undisputed that the Assembly is different from the other State
Assemblies to the extent that certain subject matters of List II have been
specifically excluded and conferred on the Central Government. It is,
thus, nobody’s case that aspects covered by Entries 1, 2 & 18 in List II
can be dealt with by the Assembly and consequently, the Committee. In
fact, the submission of Mr. Salve can be summarised as advancing a plea
that the Assembly and the Committee cannot be permitted to do
indirectly what they cannot do directly.
194. While there is no dispute about the principle of reading the Entries
as widely as possible, that proposition is in the context of challenging a
law for lack of legislative competence. Here we are concerned with the
interplay of Entries. The issue would be whether the Central
Government has the legislative competence or the Assembly. The widest
amplitude has to be given even to the three Entries of which the
legislative competence has been denuded from the Assembly and
conferred on the Parliament.
[160]
195. It is in the aforesaid context that it was emphasised that apart from
the aforesaid three Entries, what is also to be appreciated is that the
business of Facebook is directly covered under a Parliamentary
enactment, i.e., the I.T. Act. In this respect, petitioners have willingly
cooperated with proceedings before the Parliamentary Committee in the
past.
196. That Facebook is an intermediary was submitted to be apparent
from Section 2(1)(w) of the I.T. Act. The role of the intermediaries is
covered by this enactment including the right of the Central Government
to issue directions to block public access to any information under
Section 69A of the I.T. Act and this is no more res integra in view of the
judgment in Shreya Singhal141 where a procedure for the same has been
laid down.
197. The intent of the Committee (and for that matter the Assembly)
was argued by Mr. Salve to be quite clear, i.e., to encroach on the very
domain which was prohibited. This was stated to be apparent from the
Terms of Reference. The Terms of Reference contained in paragraph 4 (i)
(to consider the complaints from the members of the public, social
141 Supra note 66.
[161]
organisations, journalists, etc. on the situation prevailing in a particular
area/areas which have the potential to disturb communal peace and
harmony or where communal riots have occurred) have to be read in
context of para 4(vii) which tasks the Committee with recommending
action against such persons against whom incriminating evidence is
found. The respondents could not get away by simply saying that the
power of recommending action against such persons against whom
incriminating evidence is found is not capable of being enforced in view
of the lack of legislative competence. These are the aspects which were
sought to be given teeth by threatening privilege in the last paragraph of
the Terms of Reference.
198. Mr. Salve also sought to rely on the reply of the respondents to
justify that these were not mere apprehensions. We have set out these
aspects as reflected in para 90.
199. It could not be seriously disputed before us that collaborative
federalism was an integral part of the working of the Indian Constitution
as emphasised by the Court. However, it was simultaneously accepted
that such functioning had to be within respective spheres of legislative
[162]
competence. Were the Assembly to encroach upon matters covered by
List I (and similarly, if the Central Government were to encroach upon
the powers of the Assembly in List II), it would lead to a chaotic situation
and a breakdown of the division of powers inter se the Centre and the
State.
200. We are, however, not impressed with the argument of Mr. Salve
that the petitioners cannot be drawn into what is perceived to be a
political divide. Facebook is a platform where such political differences
are reflected. They cannot wash their hands off the issue as this is their
very business. As noticed earlier, their role is not as innocuous as they are
seeking to contend.
201. Similarly, we cannot accept the plea that an Assembly must
confine itself to the core function of legislation. This would be
unreasonably restricting the role of an elected body.
202. Mr. Salve’s emphasis was that all that transpired was a subterfuge
as the real intent of the Committee was to look into issues that were
beyond their scope, while expanding their powers on account of a
political conflict between the Central and State Governments over the
[163]
issue of the riots in question. This was stated to be quite apparent from
the nature of depositions recorded before the Committee and the
statements made in the press conference by the Chairman of the
Committee.
203. As already stated, we have little doubt over the proposition that the
division of powers between the Centre and the State Assemblies must be
mutually respected. The concept of a wide reading of Entries cannot be
allowed to encroach upon a subject matter where there is a specific entry
conferring power on the other body. It is this very principle which was in
the minds of the Constitution makers, considering the wide diversity and
the federal nature of the country. Thus, whether it is the argument of Mr.
Salve or Mr. Datar in this context, we find them unexceptionable. The
illustrations given by Mr. Datar for exercise of such powers and their
judicial scrutiny in the US also support the proposition, i.e., that an
inquiry could not be an end in itself and has to be related to a legitimate
task of the Congress (legislative body).142 There could not be exercise of
power which may “defeat or materially impair” the exercise of its fellow
142 Supra note 76.
[164]
branches’ constitutional functions, nor “intrude upon a core zone” of
another branch’s authority”.143
204. We are also of the view that the recourse to Entries 1 & 2 of List
III cannot be said to include what has been excluded from the powers of
List II, i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating to
inquiries would again not permit the Assembly or the Committee to
inquire into the aspects of public order or police functions. That a law
and order situation arose is not disputed by anyone, and that this law and
order issue related to communal riots also cannot be seriously disputed.
That the Assembly cannot deal with the issue of law and order and police
is also quite clear. Thus, the moot points would be (a) what is the scope
of inquiry of the Committee; (b) whether it could be said that there is any
aspect of the inquiry which falls within the legislative domain of the
Assembly; and (c) whether the attendance of the petitioners could be
compelled legitimately.
205. We may say that both Dr. Singhvi and Dr. Dhavan were quite
conscious of the limitations which inherently exist on the powers of the
Assembly. It is in that context that their argument was premised on a
143 Supra note 81.
[165]
broader understanding of the expression “peace and harmony”, as
opposed to it being restricted to law and order. However, the difficulty
that they face relates to the part of the Terms of Reference that was
clearly outside the purview of the powers vested with the Assembly. This
problem was compounded by what transpired in the press conference
held by the Chairman of the Committee. Speaking on behalf of the
members of the Committee, the Chairman made certain statements that
assume greater significance by virtue of being in the public domain.
206. We also do not disagree with the in-principle submission of Dr.
Dhavan, drawing strength from judicial precedents in the US, that the
power to investigate is inherent in the power to make laws by the
legislative body.144 But while recognising this, the issue in the present
case is whether the Assembly can at all legislate on the matter. The
investigative function of committees carries with it the possibility of
researchers ending up in some “blind alleys”.145 This would have to
presuppose that there is an alley. Thus, while we respect the right of the
Committee to the extent that there exists an obligation on the petitioners
to respond to the summons, we cannot permit the proceedings to go on in
144 Supra notes 76, 78, 79.
145 Supra note 79.
[166]
a manner that encroaches upon the prohibited entries. We hasten to add
that we are not seeking to control how the Committee proceeds. In fact,
the Committee is yet to proceed. But certain provisions of the Terms of
Reference coupled with the press conference is what has persuaded us to
say something more than simply leaving it to the wisdom of the
Committee to proceed in the manner they deem fit.
207. Once again, we do appreciate the contention of Dr. Dhavan that the
police cannot be the sole custodian of peace and harmony and that the
expression itself has various connotations. Despite the State
Government being denuded of certain powers, it has to be noted that
governance has many manifestations, and functions of the Government
can be realised in different ways. This is especially true in the present
case where the situation was admittedly created through an intrinsically
law and order issue.
208. The moot point is whether the expression “peace and harmony”
can be read in as expanded a manner as Dr. Dhavan seeks to do by
relying a on a number of Entries in List II and List III. We have no doubt
that peace and harmony, whether in the National Capital or in a State
[167]
context, is of great importance. But it would be too much to permit the
argument that peace and harmony would impact practically everything
and thus, gives power under different entries across the three lists. We,
do, however, recognise that the inquisitorial and recommendatory powers
can be utilised under the principle of better governance.
209. In the aforesaid conspectus, while keeping in mind Article 212
which restrains courts from inquiring into the proceedings of a
legislature, we must also note that a narrow scope of judicial review has
always been appreciated and understood. We are confronted with a
situation where the two legislative bodies are not on the same page as to
what transpired and there is in a sense, a tug of war on the issue as to who
would look into what happened and what ought not to have happened. It
is in this context that the learned Solicitor General emphasised the
doctrine of pith and substance to locate the power within the entries
which have been taken out of List II and thus, seeks to block the inquiry
by the Committee on aspects which are already covered under the three
excluded entries or under the I.T. Act.
[168]
210. The divergent contentions lead us to conclude that the Committee
can trace its legitimacy to several Entries in List II and List III without
encroaching upon the excluded fields of public order or police
toundertake a concerted effort albeit not to the extent as canvassed by Dr.
Dhavan. Facebook cannot excuse themselves from appearing pursuant to
the New Summons issued to them on 03.02.2021. Areas which are not
otherwise available to the legislature for its legislative exercise may,
however, be legitimately available to a committee for its deliberations.
This is so in the context of a broad area of governmental functions.
Ultimately, it is the State Government and the State Assembly which has
to deal with the ground reality even in the dual power structure in Delhi.
If we may say so, it is only the factum of Delhi being the capital and the
sensitivities arising therefrom in respect of public order or police which
has possibly persuaded these powers to be retained by the Central
Government. We cannot say that informed deliberation inter alia on the
best measures through which online mass hate and violence in their
geographical jurisdiction can be addressed would not be within the
Committee’s area of competence as it would undermine the very purpose
of a vital democratic polity.
[169]
211. The unfortunate communal riots between 24th and 29th February,
2020 in various parts of Delhi, led to the death of 53 persons, caused
significant damage to public and private property, disruptions to schools,
transport, water supply, medical and other civic amenities.146 The
complexity of communal tensions and their wide-ranging ramifications is
a matter affecting citizens of Delhi and it cannot be said that the
Government of NCT of Delhi cannot look into the causal factors in order
to formulate appropriate remedial measures. Appropriate
recommendations made by the State Government in this regard could be
of significance in the collaborative effort between the Centre and the
State to deal with governance issues. It is in that context that this Court
had recognised that certain local interests are best addressed by the
elected representatives of the concerned State:
“130. Sawer’s “federal principles” reiterate this concept of
federal balance when he states:
“Power of the centre is limited, in theory at least, to those
matters which concern the nation as a whole. The regions are
intended to be as free as possible to pursue their own local
interest.”147
146 Delhi Minorities Commission, Government of NCT of Delhi, Report of the
DMC Fact-Finding Committee on North-East Delhi Riots of February, 2020,
:accessible at: https://archive.org/details/dmc-delhi-riot-fact-report-2020.
147 Supra note 27.
[170]
212. We are of the view that because of the pervasive impact of the
riots, the Committee could legitimately attend to such grievances
encompassing varied elements of public life. Thus, it would be entitled
to receive information and deliberate on the same to examine their
bearing on peace and harmony without transgressing into any fields
reserved for the Union Government in the Seventh Schedule.
213. Let us now turn to the Terms of Reference. In the larger context of
what the Committee is supposed to do, reliance was placed on paragraph
4(i), i.e., to consider the factors and situations which have the potential to
disturb communal harmony in the National Capital Territory of Delhi and
suggest measures to eliminate such factors and deal with such situations
with the object of establishing harmony among different religious or
linguistic communities or social groups. This is not purely a law and
order or policing aspect and has several connotations. It was not
necessary at that stage for the Terms of Reference to spell out as to what
aspects it would legislate upon (having legislative competence) and on
what aspects it would like to consider making recommendations. That
would have been a pre-hearing of the issue.
[171]
214. If we turn to para 4(i) of the Terms of Reference, the object was to
consider petitions, complaints or reports from the members of the public,
social organisationsand journalists on the matter in issue where
communal riots have occurred. Once again this was intrinsically linked
to the larger issue. However, the real troublesome aspect is para 4(vii),
which we reproduce, once again, to appreciate the context:
“(vii) to recommend action against such persons against whom
incriminating evidence is found or prima facie case is made out for
incitement to violence”
215. Clearly it is not within the remit of the Assembly to recommend
action against such persons against whom incriminating evidence is
found or prima facie case is made out for incitement of violence. This is
an aspect purely governed by policing. It is the function of the police to
locate the wrong doer by investigation and charge them before a
competent court and this is what has really given a handle to the
petitioners to approach this Court.
216. We have noticed the submissions of Dr. Singhvi and Dr. Dhavan,
which really amount to saying that this paragraph is insignificant as no
action can be taken. If that be so, then in that sense, this paragraph does
[172]
not stand even though the petitioners may not have directly assailed it. In
order to justify the legislative competence and the remit of the
Committee, the respondents have practically given up this para 4(vii) and
we record the same and make it clear that this cannot be part of the remit
of the Committee.
217. We may say that wiser advice prevailed in issuing the New
Summons dated 03.02.2021, which consciously specified the diluted area
of inquiry, conscious of the aforesaid limitation and if we may say,
rightly so. What it takes care of is that it is not addressed to Petitioner
No.1 directly but instead it calls for the views of an authorised
representative of Petitioner No. 2, Facebook India. It has rightly used the
expression “requested” and also used the expression “could” in the
context of initiation of proceedings for breach of privilege and has
categorically withdrawn the previous notices and summons. On the
lighter side, possibly Dr. Singhvi’s advice was adhered to.
218. The result of the aforesaid is that fallacies in the notices stand
removed.
[173]
219. We have already noticed that the statements made by the Chairman
of the Committee during the press conference cannot be diluted or
brushed aside in a manner as learned counsel for the respondents seek to
do. No doubt some part of the press conference refers to the complaints
received and statements made by persons deposing before the
Committee. But, at the same time, it was stated by the Chairman that the
material placed before the Committee had resulted in a “preliminary
conclusion”. Thereafter it was stated that “prima facie it seems that
Facebook has colluded with vested interests during Delhi riots”. It does
not rest at this and he further states:
“Facebook should be treated as a co-accused and investigated as a
co-accused in Delhi riots investigation.” and “As the issue of Delhi riots
is still going in the court, a supplementary chargesheet should be filled
(sic) considering Facebook as a co-accused.”
The aforesaid statements and conclusions are completely outside the
remit of the Committee and should not have been made. That it may give
rise to apprehension in the minds of the petitioners can also not be
doubted.
[174]
220. The further utterances also show that the findings have already
given out of the proceedings including 3-4 significant important aspects
including posting by Facebook of incriminating material on the platform
in spite of continuous request to remove the same and that Facebook
colluded with such web news channels, which has a sole agenda to
confuse content and disturb social harmony. The Chairman also states
that material has come before them which shows that wherever there is
content of harmonious nature, Facebook removes that content while
disharmonious content is promoted. A reference has also been made to
the race clashes in the US.
221. Towards the end it is also sought to be conveyed that in view of
the “incriminating material”, the representatives of Facebook would be
called upon to satisfy principles of natural justice before conviction. The
prima facie view expressed is that Facebook is a co-accused and hence
investigations regarding their role during the Delhi riots should be carried
out and after such investigation, a supplementary chargesheet should be
filed.
[175]
222. If it may be said, it is as if the Committee was convinced that
Facebook must be prosecuted, and as if the Committee itself was the
prosecutor with a right to direct the filing of a supplementary
chargesheet. It was meeting as a formality to give a right of hearing
before doing so, i.e. “before taking any action.” What more is to be said!
223. We can only say that such statements are hardly conducive to fair
proceedings before the Committee and should have been desisted from.
This is especially so as that was not even the legislative mandate, and the
Assembly or the Committee had no power to do any of these things.
224. In view of the aforesaid, thus, while giving the widest amplitude in
respect of inquiry by a legislative committee, we are constrained to put
certain fetters in the given factual scenario otherwise tomorrow the
proceedings itself can be claimed to be vitiated.
225. The importance of Committees cannot be over emphasised. The
Kalpana Mehta148 case discusses this issue in some depth. Committees
seek to perform the function of holding the Government accountable to
implement its policies, and its duties under legislation and the
performance of governmental agencies can be the subject matter of
148 Supra note 20.
[176]
reports formulated by these Committees. However, in the context of the
present case, we are dealing with a scenario where on a particular subject
matter there is no legislative mandate to enact a legislation even if, in a
broader sense, an inquiry is made. Thus, the aspect of holding the State
Government accountable is not really envisaged as per the Terms of
Reference. Rather, it seems as if the Committee seeks to hold certain
private players responsible for a law and order scenario, which is within
the domain of the Central Government. Therefore, the general principles
applicable to Committees would apply with a little difference in the given
scenario.
226. We are conscious of the rationale emphasised that the wide
jurisdictions of the High Court under Article 226 or of this Court under
Article 32 of the Constitution should not normally be exercised in a
manner oblivious to the enormous work carried out by the Parliamentary
Committees “in the field”. An Assembly, more so in the nature of Delhi
Assembly with its own peculiarities (i.e., the exclusion of certain
powers), even if given the widest amplitude and powers which a
Committee should have; cannot step on the toes or rather shoes of an
entity having exclusive jurisdiction by reason of List I.
[177]
227. We cannot lose sight of the repeated brushes which have occurred
between the current dispensation in the Central Government and the State
Government and the Courts being called upon to define the contours of
their powers. Sagacious advice to act in concert appears to have fallen on
deaf ears. We are, faced with a scenario which is a little different from
the normal and, thus, much as we would not like to, some fetters have to
be placed qua the exercise sought to be undertaken by the Committee in
question. One set of fetters is not required because it has already been
conceded that para 4(vii) of the Terms of Reference is otiose and that
there will be no endeavour to prosecute. However, another set of fetters
become necessary because of the history recorded aforesaid and the
significance of the press conference given by the Chairman of the
Committee. The subject matter went much further than it ought to have
and as a result, we have analysed the press conference in detail to repel
the contention on behalf of the respondents that this aspect should not be
taken seriously or is more preemptory in nature. We are clearly of the
view that it is not so. The Committee cannot have a misconception that it
is some kind of a prosecuting agency which can embark on the path of
holding people guilty and direct the filing of supplementary chargesheet
[178]
against them. We, thus, opine that this aspect has to be kept in mind by
the Committee so as to not vitiate future proceedings and give rise to
another challenge. We are of the view that in any eventuality, as
speculative as it may be, if the Committee seeks to traverse the path
relating to the excluded Entries, i.e. law and order and police, any
representative of Facebook who would appear before the Committee
would be well within their right to refuse to answer the query and such an
approach cannot be taken amiss with possibility of inviting privilege
proceedings. It is a delicate balance to follow and we do not seek to give
an excuse to the representative of the petitioners to not answer questions
and frustrate the proceedings before the Committee qua the petitioners.
However, at the same time, we give this very limited protection were the
Committee to embark on these prohibited areas. We are quite confident
that such an eventuality will not arise, given the important role that the
Committee is performing and that it will accept the sagacious advice. So
much and not further.
Conclusion:
228. We have penned down our views on the issues raised by the
petitioners, but in view of the elaborate arguments and length of the
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judgment, we consider it appropriate to summarise the ratio/directions in
the following terms:
I. There is no dispute about the right of the Assembly or the
Committee to proceed on grounds of breach of privilege per se.
II. The power to compel attendance by initiating privilege
proceedings is an essential power.
III. Members and non-Members (like the petitioners) can equally
be directed to appear before the Committee and depose on oath.
IV. In the given facts of the case, the issue of privileges is
premature. Having said that, the insertion of para 4(vii) of the Terms
of Reference taken along with the press conference of the Chairman
of the Committee could legitimately give rise to apprehensions in the
mind of the petitioners on account of which a caveat has been made.
V. Canvassing a clash between privilege powers and certain
fundamental rights is also preemptory in the present case.
VI. In any case, the larger issue of privileges vis-a-vis the right of
free speech, silence, and privacy in the context of Part III of the
Constitution is still at large in view of the reference to the larger
Bench in N. Ravi.149
149 Supra note 46.
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VII. The Assembly admittedly does not have any power to legislate
on aspects of law and order and police in view of Entries 1 and 2 of
List II in the Seventh Schedule inter alia being excluded. Further,
regulation of intermediaries is also subject matter covered by the I.T.
Act.
VIII. The Assembly does not only perform the function of legislating;
there are many other aspects of governance which can form part of the
essential functions of the Legislative Assembly and consequently the
Committee. In the larger context, the concept of peace and harmony
goes much beyond law and order and police, more so in view of onthe-ground governance being in the hands of the Delhi Government.
IX. Para 4(vii) of the Terms of Reference does not survive for any
opinion of the Committee. It will not be permissible for the
Committee to encroach upon any aspects strictly within the domain of
Entries 1 and 2 of List II of the Seventh Schedule. As such, any
representative of the petitioners would have the right to not answer
questions directly covered by these two fields.
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229. That brings us to the end of this saga. The writ petition is
accordingly dismissed, subject to terms aforesaid.
...……………………………J.
[Sanjay Kishan Kaul]
...……………………………J.
[Dinesh Maheshwari]
...……………………………J.
[Hrishikesh Roy]
New Delhi.
July 08, 2021.
Postscript:
1. COVID times have been difficult for everyone. The Judiciary and
the Bar are no exception. It has been a contributing factor in there being a
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period of four months between reserving the judgment and pronouncement
of the order, but that is not the only reason.
2. We have noticed the presumptive nature of grievances and the
invitation to the court to opine on the same with undoubtedly a handle being
provided by the respondents. The saga of the hearing lasted 26 hours –
which is a lot of judicial time. Daily time period was recorded. Apart from
pleadings, there were written synopses, additional written synopses,
rejoinders and replies filed liberally by both parties. The convenience
compilations themselves were very voluminous, in contradiction to their
very purpose. Our concern is if this is how the proceedings will go on in the
future, it will be very difficult to deal with the post COVID period, which is
likely to see a surge in the number of cases pending adjudication.
3. What is the way forward? We do believe that there needs to be
clarity in the thought process on what is to be addressed before the Court.
Counsels must be clear on the contours of their submissions from the very
inception of the arguments. This should be submitted as a brief synopsis by
both sides and then strictly adhered to. Much as the legal fraternity would
not want, restriction of time period for oral submissions is an aspect which
must be brought into force. We really doubt whether any judicial forum
anywhere in the world would allow such time periods to be taken for oral
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submissions and these be further supplemented by written synopsis
thereafter. Instead of restricting oral arguments it has become a competing
arena of who gets to argue for the longest time.
4. We have looked into this aspect to see if there are any international
best practices and would like to refer to some of them without a very
expansive discussion.
5. Article 6 of the European Convention on Human Rights, while
recognising the right of fair trial and public hearing, qualifies it inter alia to
be completed “within a reasonable time”.150 This is intrinsically linked to
administering justice without delays. Delay in judicial proceedings has
been the bane of our country and there cannot be a refusal to part ways from
old practices especially when they have outlived their purpose. It is the
litigants who bear the costs of our complex and prolonged adjudicatory
process. We are conscious of the equal responsibility of this side of the
bench – it is the need of the hour to write clear and short judgments which
the litigant can understand. The Wren & Martin principles of precis writing
must be adopted. But then how is this to be achieved if the submissions
itself go on for hours on end with vast amounts of material being placed
before the Court; with the expectation that each aspect would be dealt with
in detail failing which review applications will be filed (not that they are not
150 Article 6, European Convention on Human Rights, 1953.
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filed otherwise!) We are weighed down by judicial precedent. Often a
reference is made to the judgment of the Privy Council or the earlier years
of the Supreme Court, which saw short and crisp judgments but then, the
volume of precedents we face today was not present then. In a
technological age like ours, all that is required is to instruct the junior
counsel to take out all judgments on a particular point of view and submit it
to the court in a nice spiral binding. On every aspect there may be multiple
judgments. In our view if the proposition of law is not doubted by the
Court, it does not need a precedent unless asked for. If a question is raised
about a legal proposition, the judgment must be relatable to that proposition
– and not multiple judgments. The other scenario is if the facts of the cited
judgments are so apposite to the facts of the case that it could act as a
guiding principle. In R. v. Erskine; R. v. Williams151 a well-known
aphorism of Viscount Falkland in 1641 was noticed “if it is not necessary to
refer to a previous decision of the court, it is necessary not to refer to it.
Similarly, if it is not necessary to include a previous decision in the bundle
of authorities, it is necessary to exclude it. That approach will be rigidly
enforced.” This forms the basis of the criminal practice directions in the UK
which apply to all criminal matters before the Court of Appeals, Crown
151 [2009] EWCA Crim 1425, [2010] 1 WLR 183.
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Court, and the Magistrate’s Court. Criminal practice directions (vii) clarifies
that if a judgment does not refer to a cited case, it is not that the court has
not referred to it but rather, that the court was not assisted by it. We adopt
the same as we can say no better.
6. The contribution to the development of law can be nurtured by
comprehensible precedent. There may be times when the complexity of
matters gives rise to complex opinions. But we find that judgments are
becoming more complex and verbose only on account of large number of
precedents cited and the necessity to deal with them and not merely refer to
them as is done in other countries.
7. We have for long discussed case management but seldom is it
followed in its true letter and spirit. This may possibly be because of the
large volumes of cases but then this is all the more reason for better
management.
8. The US Supreme Court is more restrictive in its time frame – not that
UK Courts are far behind. The norms and the traditions take care of the
requirement of restrictive time frames to address submissions; which are
preceded by the contours of arguments given in the written synopsis and the
material sought to be relied upon. We do not doubt that lawyers think on
their feet but then given the current milieu, there has to be clarity before the
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lawyers get on their feet keeping a little leeway in mind for something
which may evolve during the arguments.
9. The Supreme Court of India as on 01.05.2021 had 67,898 pending
matters.152 The time spent on routine matters leaves little time to settle legal
principles pending before larger Benches that may have an impact down the
line on the judicial system. We have a straight example of this with a
reference to a larger Bench pending in N. Ravi153
.
10. Another matter of concern is prolonged interim proceedings. In
criminal matters, even bail matters are being argued for hours together and
at multiple levels. The position is no different in civil proceedings where
considerable time is spent at interim stage when the objective should be
only to safeguard the rights of the parties by a short order, and spend the
time on the substantive proceedings instead which could bring an end to the
lis rather than on the interim arrangement. In fact, interim orders in civil
proceedings are of no precedential value. This is the reason it is said that
we have become courts of interim proceedings where final proceedings
conclude after ages- only for another round to start in civil proceedings of
execution.
152Statistics, Monthly Pending Cases, Types of matters pending in Supreme
Court of India as on 01.05.2021, Supreme Court India, accessible at:
https://main.sci.gov.in/statistics.
153 Supra note 46.
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11. The purpose of our post script is only to start a discussion among the
legal fraternity by bringing to notice the importance of succinctly framed
written synopsis in advance, and the same being adhered to in course of oral
arguments to be addressed over a limited time period and more crisp, clear
and precise judgments so that the common man can understand what is the
law being laid down. After all, it is for ‘the common man’ that the judicial
system exists.
...……………………………J.
[Sanjay Kishan Kaul]
...……………………………J.
[Dinesh Maheshwari]
...……………………………J.
[Hrishikesh Roy]
New Delhi.
July 08, 2021.
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