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Of legislative privileges and power to summon witnesses: Facebook’s double standards

The blog is authored by,  Abhishek Iyer, Final Year B.A. LL.B. (Hons.) student at Gujarat National Law University (GNLU), Gandhinagar.

Header Image Credits: Pexels Free Photo

In a post-truth world where objective facts are fading away and polarized opinions appealing to emotions and personal belief is gaining mainstream attention, the role of social media platforms as a tool to manipulate critical human thinking is under severe scrutiny. More recently during the unfortunate communal riots and violence between February 24 to 29, 2020 [‘Delhi riots’] in different parts of Delhi which led to the death of fifty three people and caused significant damage to public and private property, Facebook’s role was sought to be examined by the Parliament of India and the Delhi Legislative Assembly. In a rude turn of events, Facebook showcased double standards when it first complied to the Parliamentary standing committee’s summons and duly deposed but went to the court challenging the summons issued by the Committee appointed by the Delhi Legislative Assembly, ironically enough when both summons were based on same set of facts. A communal and violent incident with political mudslinging soon knocked the doors of the Supreme Court of India which had to determine if Facebook’s petition for quashing of Delhi Legislative Assembly’s summons to its Indian executives is justified? To understand why the Supreme Court ultimately rejected Facebook India’s petition and directed them to depose before the Delhi Assembly, let’s take a look at the two sets of facts in the background of legislative privileges and their power to issue summons, call upon witnesses, keeping in mind the sequence of events herein to find out why Facebook’s petition was rightfully rejected. 

Parliamentary Standing Committee on Information Technology [‘Parliamentary IT Committee’] headed by Dr. Shashi Tharoor, Lok Sabha MP, has been amongst the thick of things in evaluating the role of intermediaries in shaping the social fabric of our society. In furtherance of the committee’s agenda to Safeguard citizen rights and prevent misuse of social media/news platforms, in the wake of Delhi Riots, the IT Committee sought to hear from Facebook’s executives in India on its role of allegedly fuelling the riots by not curbing hate speech. The Parliamentary IT Committee in a suo moto notice on August 20, 2020 summoned Mr. Ajit Mohan, VP and MD – Facebook India to understand Facebook’s views on promoting safer digital space for citizens and preventing misuse of its platform. The said notice was annexed with a “Points of Conduct and Etiquette for witnesses appearing before the parliamentary committee” which viz. paragraph 08 set out a list of acts, if committed, shall constitute as a breach of parliamentary privilege and contempt of the committee. In layman terms, the notice warned for consequences in terms of a breach of privilege motion if the said witness was ever in violation of the said Points of Conduct and Etiquette viz. para 8. However, without any objections to the threat of a privilege motion, Mr. Ajit Kumar duly appeared before the Parliamentary IT Committee and offered his views on the agenda.

Based on the same incident and taking note of the countless complaints and inaction on the part of Facebook and a journalistic investigation report, the Delhi Legislative Assembly’s Committee on Peace and Harmony [‘Delhi Peace Committee’] issued a separate notice summoning Mr. Ajit Mohan on 10th September 2020 calling for his appearance and testimony on oath to understand the internal functioning of Facebook and enforcement of its policies. This notice did not intimate breach of parliamentary privilege as a consequence, incase Mr. Ajit Mohan refused to appear. 

So, it is clear that the Parliamentary IT committee summons had warned for a breach of privilege motion for non-compliance and the Delhi Peace Committee summons did not intimate any such consequences despite which Facebook chose to challenge it before the Supreme Court while complying with the summons issued by the Parliamentary IT committee.

Understanding the legislative privileges:

‘Privilege’ of a legislative house is inspired from the rubric of the constitutional role of the House of Commons in the United Kingdom which so to say has court-like functions not akin to the parliament and state legislature in India which has limited legislative functions and fundamentally separates itself from the judicial system. Parliament of India and other state legislatures are empowered with special privileges and immunities by the virtue of Article 105 and 194 of the Constitution of India, 1950 [‘the Constitution’] to achieve “the distinct purpose of safeguarding the integrity of the legislative functions that they perform against obstructions that could be caused by either members or non-members. Such “powers” meant to be indicated in Article 194(3) of the Constitution are not independent but are such powers which depend upon and are necessary for the conduct of business of each House.” So ordinarily in a breach of privilege motion for contempt of its authority, the house only seeks to remove obstructions that affect the due performance of its legislative function and not expand its scope of privileges into judicial functions, similar to that of the House of Commons in the United Kingdom. 

The privileges or immunities granted to the legislative house is not codified to ensure that the power of privileges being nebulous in nature, having no definite limits can cater to unimagined situations that may arise in future. Therefore it is important to emphasise that a breach of privilege motion is a consequence for any actions of a member or non-member that tends to distort, obstruct, or threaten the integrity of legislative proceedings, this has been reiterated by a 5-judge bench of the Supreme Court of India.

Power to summon and call for witnesses: of Parliament & the Delhi Assembly

A simple perusal of Rule 269, 270 and, 273 of the Rules of Procedure and Conduct of Business in Lok Sabha, 2014 makes it abundantly clear that a parliamentary committee shall have power to send for persons, papers and records if such evidence of a person is relevant for purposes of the committee. Rule 273 further allows the committee to decide on the procedure of summoning and examination of a witness. Thus, the IT Committee herein, in furtherance of its agenda to ‘Safeguard citizen rights and prevent misuse of social media/news platforms’ can very well within the framework of Lok Sabha rules, seek to summon Facebook India executive and examine witnesses that are relevant for its discussion.

The Delhi Assembly under Section 18 of the Government of National Capital Territory of Delhi Act, 1991 [‘GNCTD Act’] enjoys both freedom of speech, to vote and, all the privileges as enjoyed by the Members of Parliament. Therefore it can be said that the Parliamentary privileges in Entry 74 of List I and that of the Legislative Assembly in Entry 39 of List II of the Constitution are stated to be pari materia. So the Delhi Assembly’s powers in context of Article 239AA of the Constitution are same like any other State Assembly’s powers in Entry 39 of List II of the Constitution. Thus, Article 239AA(3)(a) of the Constitution which is akin to other state legislative assemblies in India, committees appointed by the Delhi Assembly has the power to compel attendance of witnesses as a part of their constitutionally recognized powers and privileges.

Facebook got it all wrong:

It is an admitted fact that Facebook’s involvement in the Delhi Riots by the virtue of being a social media intermediary did not hinder or hamper the legislative functioning of the parliament or the Delhi Assembly because of which no breach of privilege motion can be instituted. But, both Parliament and Delhi Assembly do have powers outside its ordinary legislative functioning to call upon witnesses, including non-members and summon them for a dialogue, as done in the present case. In its notice dated September 10, 2020, Delhi Peace Committee never warned for a breach of privilege motion but only requested for deposition of the witness to understand Facebook’s role in the Delhi Riots. Hence, Mr. Ajit Mohan’s petition [ petitioner’] requesting to quash the Delhi Peace Committee summons while obliging to the summons of the Parliamentary IT Committee for same set of facts is a classic example of political double standard.

As stated earlier, Delhi Peace Committee acted within its powers under Article 239AA(3)(a) read with Entry 39 of List II of the Constitution. It is also clear that the purpose of such summons to be issued was in the larger goal of facilitating an informed discussion with the stakeholders to understand how better policies can be shaped to safeguard public interest. There are no two ways to the fact that this Committee is not a prosecuting agency and must not embark on the path of holding people guilty or even conveying directions to file supplementary charge sheet against the petitioner summoned. The whole and sole purpose was to ensure better administration and public welfare.

To conclude, it is clear that the petitioner’s attempt to quash the summons by approaching the Supreme Court of India was a brutal attempt in vain to silence the Delhi Peace Committee for the following reasons:

  • that there was no threat of a breach of privilege motion being instituted for non-compliance, as in the notice served by the Delhi Peace Committee; 
  • that the notice of summons merely solicited the petitioner’s support to depose for a meaningful dialogue in the background of the Delhi Riots; 
  • that assembly and the committees therein have a broader mandate to supervise and investigate social problems and also control the administration over and above the primary function of enacting laws; lastly
  • that it is also a settled proposition of law that court will never intervene at the stage of summoning of a witness by the sub-committees of the legislature.

Supreme Court of India viz. its judgment dated July 08, 2021 did rightly dismiss the petition while reiterating that issue of privilege of Delhi Assembly in the Delhi Peace Committee’s notice was premature but the power to compel attendance by initiating privilege proceedings is an essential power of the assembly wherein both members or non-members can be directed to depose before the committee. This is a welcome judgment for it takes care of public policy by upholding the sanctity of state legislatures and its power to summon non-members, particularly in situations wherein large corporates, for reasons best known to them, adopt double standards and give a political colour to matters of public importance.

Views expressed are personal.

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