Ajit Mohan & Ors. vs Legislative Assembly National Capital Territory of Delhi & Ors.

Information Technology Act, 2000 – Online hate speech content on social media platforms – Role, accountability of such platforms – Plea of Facebook that it is merely a platform posting third party information and has no role in generating, controlling or modulating that information – Held: Not accepted – 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 – Further, business model of intermediaries like the petitioner being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Constitution of India – Seventh Schedule, List II, Entries 1, 2 & 18 – Committee on Peace and Harmony constituted by Delhi Legislative Assembly in the wake of Delhi riots – Validity of – Held: 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) – 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 – 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 – 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 to undertake a concerted effort albeit not to the extent as canvassed – In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on the-ground governance being in the hands of the Delhi Government. Constitution of India – Articles 194, 105 – Functions performed by an elected Parliament or Assembly not confined to only enacting laws – Role of Committees constituted by legislative bodies in the functioning and the working of the Houses Held: 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, the widest amplitude must be given to the functioning of these committees – 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 – 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.

Constitution of India – Articles 194, 105; Seventh Schedule, List II, Entries 1 and 2 – Para 4(vii) of the Terms of Reference tasked the Committee with recommending action against such persons against whom incriminating evidence is found – Held: In order to justify the legislative competence and the remit of the Committee, the respondents have practically given up this para – It does not survive for any opinion of the Committee – Further, 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. Constitution of India – Part III – Issue of privileges vis-à-vis the right of free speech, silence, and privacy – Held: Larger issue of privileges vis-à-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 v. Legislative Assembly reported as (2005) 1 SCC 603.

Dismissing the writ petition, the Court

HELD: 1. 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 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. 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 be disseminated on its platform. To that extent, a parallel may be drawn with editorial responsibility cast on other mass circulation media. The business model of 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 publisher, 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. [Paras 149151][707-B-H; 708-A-C]

2.1 The Issue of Privilege:

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. [Para 159][710-G-H; 711-A]

2.2 Wordings of Article 194(3) are unambiguous and clear, and thus do not require any 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? The answer would be in the negative. [Para 162][711-E-G]

2.3 It is not disputed that committee proceedings cannot be equated to proceedings before the court of law. 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. Once the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws are recognized, any act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege. 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 is not appreciated. 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. [Paras 165167][712-E-G; 713-A-D]

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors. (2010) 6 SCC 113: [2010] 4 SCR 1105 – distinguished.

Re. Special Reference of 1964 2 AIR 1965 SC 745: [1965] SCR 413; Justice (Retd.) Markandey Katju v. Lok Sabha & Anr. (2017) 2 SCC 384:[ 2016] 11 SCR 621 – referred to.

2.4 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. 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 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. [Para 169][713-F-G; 714-A-D]

2.5 The committees constituted by legislative bodies like the Assemblies for the States and Parliament for the Union, perform a key role in the functioning and the working of the Houses. 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. The committees are an extension of the legislature itself and do informed work. The contention of the petitioners cannot be accepted 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, 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 which may be a reflection of their sense and consequently the sense of the House, if so adopted by the House. [Paras 171, 172][714-E-H; 715-A-E]

Kalpana Mehta And Ors. vs Union of India And Ors. (2018) 7 SCC 1: [2018] 4 SCR 1 – relied on.

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 – referred to.

2.6 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. 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. [Para 174][716-C-E] Bagehot: The English Constitution, (P. Smith, 2001); J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public Administration 1, 6 (1963); Promila Suri, Growth of Committee System in Central Legislature of India 1920-1947, (1979) – referred to.

2.7 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– whether the exercise is for a legislative enactment, or for other purposes connected with its legislative domain. 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. 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. Thus, Clauses 7(a) and 7(b) of Article 239AA were rightly referred 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 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, it is said that there has been no exercise of privilege power. However, the Court has 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. It is not known 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. 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, all entries are required to be read widely. Neither the included Entries nor the excluded Entries have to be read restrictively. The stage for any possible judicial intervention has not arisen in the present case. [Paras 175-179][716-F-G; 717-A-G]

C. Subramaniam v. The Speaker, Madras Legislative Assembly AIR 1969 Mad 10 – approved.

2.8 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, any plea raised on the exercise of privilege is a pre-emptive 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. [Para 183][719-A-C]

3.1 Privileges & Fundamental Rights:

In view of the original notice being withdrawn, Facebook’s plea of not having the option of choosing whom to send stands whittled away. Further, the aspect of privilege and the rights which flow from it have been discussed at some length. 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. [Paras 185, 187][719-F; 720-B]

3.2 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 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. 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. The complete plea of the petitioners is premature as nothing has really happened other than them having been asked to appear before the Committee. [Paras 189, 190][720-D-G]

MSM Sharma v. Dr. Shree Sri Krishna Sinha AIR 1960 SC 1186: [1961] SCR 96; N. Ravi v. Legislative Assembly (2005) 1 SCC 603 – referred to.

4.1 Legislative Competence:

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. 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 the Court is 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. 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. [Paras 193, 194 and 196][721-D-F; 722-A-B]

Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963 – relied on.

4.2 The intent of the Committee (and for that matter the Assembly) was argued 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 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. [Para 197][722-C-E]

4.3 The plea that an Assembly must confine itself to the core function of legislation cannot be accepted. This would be unreasonably restricting the role of an elected body. [Para 200][723-A-B]

4.4 The 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 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. There is 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. [Paras 202, 203] [723-C-G]

4.5 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. [Para 204][723-G-H; 724-A-C]

4.6 The in-principle submission 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 is not disagreed with. 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”. This would have to presuppose that there is an alley. Thus, while the right of the Committee is respected to the extent that there exists an obligation on the petitioners to respond to the summons, the proceedings cannot be permitted to go on in a manner that encroaches upon the prohibited entries. [Para 206][724-E-G; 725-A]

4.7 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. The moot point is whether the expression “peace and harmony” can be read in as expanded a manner as sought to be done by relying on a number of Entries in List II and List III. Peace and harmony, whether in the National Capital or in a State 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. It is however, recognised that the inquisitorial and recommendatory powers can be utilised under the principle of better governance. [Paras 207, 208][725-B-D]

4.8 While keeping in mind Article 212 which restrains courts from inquiring into the proceedings of a legislature, a narrow scope of judicial review has always been appreciated and understood. 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 to undertake a concerted effort albeit not to the extent as canvassed. 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. It cannot be said 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. [Paras 209, 210][725-E-H; 726-A-C]

4.9 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. 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. 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. [Paras 211, 212] [726-C-E, G; 727-A]

Delhi Minorities Commission, Government of NCT of Delhi, Report of the DMC Fact-Finding Committee on North-East Delhi Riots of February, 2020 – referred to.

4.10 Now turning 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. The object of para 4(i) of the Terms of Reference was to consider petitions, complaints or reports from the members of the public, social organisations and 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). 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. In order to justify the legislative competence and the remit of the Committee, the respondents have practically given up this para 4(vii) and the same is recorded and it is made clear that this cannot be part of the remit of the Committee. [Paras 213-216][727-B-D; 727-F-H; 728-A]

4.11 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 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. The result of the aforesaid is that fallacies in the notices stand removed. The statements made by the Chairman of the Committee during the press conference cannot be diluted or brushed aside. The said 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. It was 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. 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.” 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. In view of the aforesaid, thus, while giving the widest amplitude in respect of inquiry by a legislative committee, certain fetters are put in the given factual scenario otherwise tomorrow the proceedings itself can be claimed to be vitiated. [Paras 217219, 221-224][728-B-F; 729-B-F]

4.12 The importance of Committees cannot be over emphasised. 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 reports formulated by these Committees. However, in the context of the present case, 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. 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. 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 against them. This aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge. 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 the Court does 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, this very limited protection is given were the Committee to embark on these prohibited areas. [Paras 225-227][729-G; 730-A-H; 731-A-C]

5. The ratio/directions:

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.

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 on- the-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. [Para 228][731-D-H; 732-A-E]

State of Karnataka v. Union of India (1977) 4 SCC

608 : [1978] 2 SCR 1 – relied on.

Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr. (1975) 2 SCC 159 : [1978] 2 SCR 405; State (NCT of Delhi) v. Union of India and Anr. (2018) 8 SCC 501 : [2018] 7 SCR 1; State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566 : [1987] 1 SCR 1; K. Nagraj v. State of Andhra Pradesh (1985) 1 SCC 523 : [1985]

2 SCR 579; S.M.D. Kiran Pasha v. Government of A.P. and Ors., (1990) 1 SCC 328 : [1989] 2 Suppl. SCR 105; Bengal Immunity Co. Ltd. v. State of Bihar and Ors. (1955) 2 SCR 603; Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381; K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017)

10 SCC 1 : [2017] 10 SCR 569; Excel Wear v. Union of India & Ors. (1978) 4 SCC 224 : [1979] 1

SCR 1009; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; R.C. Cooper v. Union of India (1970) 2 SCC 298 : [1971] 1 SCR 512; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788 : [1973] 2 SCR 757; Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238 : [1981] 3 SCR 662; Chiranjit Lal Chowdhury v. Union of India [1950] SCR 869; Petronet LNG Ltd. v. Indian Petronet Group and Anr. (2009) 158 DLT 759; K.

Lakshminarayan v. Union of India & Anr. (2020) 14 SCC 664 : [2018] 14 SCR 689; Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259 : [2019] 3 SCR 28; Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC 466 : [1976] 1 SCR 552; Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109 : [1989] 1 Suppl. SCR 623; Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596 : [1994] 1 Suppl. SCR 807; Ujagar Prints (II) v. Union of India (1989) 3 SCC 488 : [1988] 3 Suppl. SCR 770; Sriram Krishna Dalmia v. Justice Tendolkar [1959] SCR 279; Rai Sahib Ram Jawaya Kapur v. State of Punjab [1955]

2 SCR 225; A.S. Krishna v. State of Madras AIR 1957 SC 297 : [1957] SCR 399; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC 246 : [2010] 4 SCR 1042; ITC Ltd. v. State of Karnataka 1985 Supp SCC 47 : [1985] Suppl. SCR 145; Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 : [1983] 3 SCR 130; Offshore Holdings (P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 : [2011] 1 SCR 453 – referred to.

“Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers- Comparative Common Law

Perspectives (Springer, 2020); Facebook, Press Release, Facebook reports 1st Quarter 2021 Results, (2021); UNESCO, Concept Note, Media for

Democracy, Journalism and Elections in times of Misinformation,(2019); Oxford Dictionary Word of the Year 2016; K. Gessen, Introduction, 26, in All Art Is Propaganda: Critical Essays (G. Orwell et. al., 2008); Digital, Culture, Media and Sport Committee, U.K. House of Commons, Disinformation and ‘fake news’: Final Report, 20-44 (18/02/2019); Facebook admits it was used to ‘incite offline violence’ in Myanmar, BBC (06/11/2018); Joshua Brustein, Facebook Apologizes for Role in Sri Lankan Violence, Bloomberg (13/05/2020); News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 formulated by Australia; Alex Barker, Jamie Smyth et al., Facebook bans Australian news as impact of media law is felt globally, Financial Times (18/02/2021); European Parliament, Social media and democracy: we need laws, not platform guidelines (10/02/2021); Erskine May’s Treatise on the law, privileges, proceedings, and usage of Parliament, (Sir David Natzler, 25th Edition, 2019) – referred to.

Watkins v. United States 354 US 178 (1957); Barenblatt v. United States 360 US 109 (1959); Eastland v. United States Servicemen’s Fund 421 US 491 (1975); Howard Jarvis Taxpayers Association v. Padilla 62 Cali 486 (2016) ; Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US 431 (1961) – referred to.