AJIT MOHAN & ORS. versus LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY OF DELHI & ORS. on 8 July 2021

AJIT MOHAN & ORS.

v.

LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORYOF DELHI & ORS.

(Writ Petition (C) No. 1088 of 2020)

JULY 08, 2021

[SANJAY KISHAN KAUL, DINESH MAHESHWARI ANDHRISHIKESH ROY, JJ.]

Constitution of India – Articles 194, 105 and 19(1)(a), (2) –Online hate speech content – Social media platforms – Accountabilityof – Parliamentary Privilege/ Privilege of Legislature – In the wakeof Delhi riots, Legislative Assembly of the National Capital Territoryof Delhi constituted a Committee on Peace and Harmony – Summonsissued to Managing Director of Facebook India, to appear beforeit – Challenge to – Impugned summons withdrawn, new summonsissued – Held: There is no dispute about the right of the Assemblyor the Committee to proceed on grounds of breach of privilege perse – Power to compel attendance by initiating privilege proceedingsis an essential power – Members and non-Members (like thepetitioners) can equally be directed to appear before the Committeeand depose on oath – Petitioners, more so with their expanded roleas an intermediary, can hardly contend that they have someexceptional privilege to abstain from appearing before a committeeduly constituted by the Assembly – However, on facts, only a summonshas been issued for appearance before the Committee – Issue ofprivileges is premature – The question of any privilege power beingexercised is yet far away – Plea raised on the exercise of privilegeis a pre-emptive strike – Complete plea of the petitioners is prematureas nothing has really happened other than them having been askedto appear before the Committee – Facebook cannot excusethemselves from appearing pursuant to the New Summons issued –Information Technology Act, 2000 – s.69A – Government ofNational Capital Territory Act, 1991.

Information Technology Act, 2000 – Online hate speechcontent on social media platforms – Role, accountability of suchplatforms – Plea of Facebook that it is merely a platform posting A

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Athird party information and has no role in generating, controlling ormodulating that information – Held: Not accepted – These platformsare by no means altruistic in character but rather employ businessmodels that can be highly privacy intrusive and have the potential topolarize public debates – Further, business model of intermediarieslike the petitioner being one across countries, they cannot be permittedBto take contradictory stands in different jurisdictions.

Constitution of India – Seventh Schedule, List II, Entries 1, 2& 18 – Committee on Peace and Harmony constituted by DelhiLegislative Assembly in the wake of Delhi riots – Validity of – Held:The Assembly is no different from any other State assembly, exceptCto the extent that certain powers in List II of the Seventh Schedulehave not been conferred (i.e., Entries 1, 2 & 18) – Assembly admittedlydoes not have any power to legislate on aspects of law and orderand police in view of Entries 1 and 2 of List II in the Seventh Scheduleinter alia being excluded – Assembly does not only perform theDfunction of legislating; there are many other aspects of governancewhich can form part of the essential functions of the LegislativeAssembly and consequently the Committee – Committee can traceits legitimacy to several Entries in List II and List III withoutencroaching upon the excluded fields of public order or police toundertake a concerted effort albeit not to the extent as canvassed –EIn the larger context, the concept of peace and harmony goes muchbeyond law and order and police, more so in view of on the-groundgovernance being in the hands of the Delhi Government.

Conclusion

Constitution of India – Articles 194, 105 – Functionsperformed by an elected Parliament or Assembly not confined toFonly enacting laws – Role of Committees constituted by legislativebodies in the functioning and the working of the Houses Held: Unlessthe committee embarks on a course completely devoid of its functionalmandate specified by the Assembly, or the Assembly itself lacksjurisdiction to deal with the subject matter, the widest amplitudeGmust be given to the functioning of these committees – Theinquisitorial role of the committee in the functioning of House is ofgreat significance, and as recognized, the investigation of acomplicated social problem prior to legislation often rests frequentlyon such legislative committees – Intelligent legislative action anddeliberation thereon rests on the power to investigate into questionsH

AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITALTERRITORY OF DELHI

of public importance and, thus, issuance of summons is key to thisinvestigative exercise.

Constitution of India – Articles 194, 105; Seventh Schedule,List II, Entries 1 and 2 – Para 4(vii) of the Terms of Referencetasked the Committee with recommending action against such personsagainst whom incriminating evidence is found – Held: In order tojustify the legislative competence and the remit of the Committee, therespondents have practically given up this para – It does not survivefor any opinion of the Committee – Further, it will not be permissiblefor the Committee to encroach upon any aspects strictly within thedomain of Entries 1 and 2 of List II of the Seventh Schedule – Assuch, any representative of the petitioners would have the right tonot answer questions directly covered by these two fields.

Constitution of India – Part III – Issue of privileges vis-à-visthe right of free speech, silence, and privacy – Held: Larger issueof privileges vis-à-vis the right of free speech, silence, and privacyin the context of Part III of the Constitution is still at large in viewof the reference to the larger Bench in N. Ravi v. Legislative Assemblyreported as (2005) 1 SCC 603.

Dismissing the writ petition, the Court

HELD: 1. In this modern technological age, it would betoo simplistic for the petitioners to contend that they are merelya platform for exchange of ideas without performing any significantrole themselves – especially given their manner of functioningand business model. Debate in the free world has shown theconcern expressed by Governments across the board and thenecessity of greater accountability by these intermediaries whichhave become big business corporations with influence acrossborders and over millions of people. Facebook today has influenceover 1/3rd population of this planet! In India, Facebook claims tobe the most popular social media with 270 million registeredusers. The width of such access cannot be without responsibilityas these platforms have become power centres themselves,having the ability to influence vast sections of opinions. Withoutundermining the role performed by Facebook in giving a voiceto various sections of society across the world, it has to be noted AB

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Athat their platform has also hosted disruptive voices replete withmisinformation. These have had a direct impact on vast areas ofsubject matter which ultimately affect the governance of States.It is this role which has been persuading independent democraciesto ensure that these mediums do not become tools of manipulativepower structures. These platforms are by no means altruistic inBcharacter but rather employ business models that can be highlyprivacy intrusive and have the potential to polarize public debates.For them to say that they can sidestep this criticism is a fallacy asthey are right in the centre of these debates. Facebook as aplatform is in the nature of a mass circulation media which raisesCconcerns of editorial responsibility over the content circulatedthrough its medium. The width of the reach of published materialcannot be understated or minimized. Facebook has acknowledgedin their reply that they removed 22.5 million pieces of hate speechcontent in the second quarter of 2020 itself, which shows thatthey exercise a substantial degree of control over the contentDthat is allowed to be disseminated on its platform. To that extent,a parallel may be drawn with editorial responsibility cast on othermass circulation media. The business model of intermediarieslike the petitioner being one across countries, they cannot bepermitted to take contradictory stands in different jurisdictions.EThus, for example in the United States of America, Facebookprojected itself in the category of a publisher, giving themprotection under the ambit of the First Amendment of its controlover the material which are disseminated in their platform. Thisidentity has allowed it to justify moderation and removal of content.Conspicuously in India, however, it has chosen to identify itselfFpurely as a social media platform, despite its similar functionsand services in the two countries. Thus, dependent on the natureof controversy, Facebook having almost identical reach topopulation of different countries seeks to modify its standdepending upon its suitability and convenience. [Paras 149-G151][707-B-H; 708-A-C]

2.1 The Issue of Privilege:

The privilege issue arises out of the plea advanced by thepetitioners that both, the First Impugned Summons dated10.09.2020 and the Second Impugned Summons dated 18.09.2020,H

were to summon Petitioner No.1 or a duly authorizedrepresentative of Petitioner No. 2 respectively with a threat of“privilege”. This argument was coupled with a plea that suchpower of privilege cannot extend to compel an individual, who isnot a member of the House, into giving evidence/opinion thatthey 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. Theseare not wordings of a statute, but that of the primary document –the Constitution. The powers, privileges and immunities of aHouse of the State Legislature as well as its committees havebeen clearly defined as those of the House and all members andcommittees thereof before the coming into force of Section 26 ofthe Constitution 44th Amendment Act, 1978. There was notimeline provided for codification of powers, privileges andimmunities of a House. The Constitution has given leeway to theLegislature to define the same from time to time, but there wasno compulsion qua the same. If the Legislature in its wisdom isof the opinion that it needs to be so done, they will do so. Is it forthis constitutional court to nudge them in that direction? Theanswer would be in the negative. [Para 162][711-E-G]

2.3 It is not disputed that committee proceedings cannotbe equated to proceedings before the court of law. No doubt thesepowers have to work in the context of the business of each House,and no House can be a knight in shining armour to correct issuesin respect of which it has no legislative power. Yet, it would be amonumental tragedy to conclude that the legislature is restrictedto the function of enacting laws. The role of the legislature issought to be diminished by such an argument. Once the widerarray of functions performed by an elected Parliament or Assembly,not confined to only enacting laws are recognized, any act infurtherance of this wider role and any obstruction to the samewill certainly give rise to an issue of parliamentary privilege. Theline of argument that no non-member could be summoned if theyhad not intruded on the functioning of the Assembly; or that thenon-participation of the petitioner would not have adverseconsequences as it did not disrupt the functioning of the AB

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ACommittee is not appreciated. The petitioners, more so with theirexpanded role as an intermediary, can hardly contend that theyhave some exceptional privilege to abstain from appearing beforea committee duly constituted by the Assembly. [Paras 165-167][712-E-G; 713-A-D]

BAmarinder Singh v. Special Committee, Punjab VidhanSabha & 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.CLok Sabha & Anr. (2017) 2 SCC 384:[ 2016] 11SCR 621 – referred to.

2.4 In the factual matrix, only a summons has been issuedfor appearance before the Committee. The question of anyprivilege power being exercised is yet far away. Even if thereDwas any breach of privilege recorded by the Committee, theCommittee would in turn have to make a recommendation to theAssembly. The Assembly then would be entitled to considerwhether 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 itis not worthwhile to do so, even if the Committee was to primaEfacie opine so. The exercise by the Assembly is further dependenton the opinion of the Privileges Committee. Thus, there arevarious tiers of scrutiny before there is culmination of the exerciseof power of privilege. None of those eventualities have at all arisenin the present case. This case is a preventive endeavour by theFpetitioner to preclude the respondents from even consideringthe aspect of privilege by seeking this Court’s intervention at apre-threshold stage, only on the premise of the absence oflegislative power. [Para 169][713-F-G; 714-A-D]

2.5 The committees constituted by legislative bodies likeGthe Assemblies for the States and Parliament for the Union,perform a key role in the functioning and the working of theHouses. These committees undertake deliberations and providerecommendations as precursors to legislative activities, and theeffective working of committees is a prelude to the core workingof the Assemblies. The committees are an extension of theH

legislature itself and do informed work. The contention of thepetitioners cannot be accepted to create an artificial divisionbetween Assembly’s core/essential and non-essential functions,with any restrictive clauses being placed on the deliberations ofthe committees. Such water-tight compartmentalisation is notadvisable. Unless the committee embarks on a course completelydevoid of its functional mandate specified by the Assembly, orthe Assembly itself lacks jurisdiction to deal with the subjectmatter, the widest amplitude must be given to the functioning ofthese committees. It is the parliamentary committee system thathas been recognised as a creative way of parliaments to performtheir basic functions. The same principle would apply, even if it isto some extent beyond their legislative domain. This is becausethey will not be able to make any valid legislativerecommendations in the absence of competence over the subjectmatter. However, they may debate aspects which may be areflection 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 duringthe 1995 Conference on the Role of Committees inMalawi’s Legislature as noted in Kalpana Mehta at note20 – referred to.

2.6 The inquisitorial role of the committee in the functioningof House is of great significance, and as recognized, theinvestigation of a complicated social problem prior to legislationoften rests frequently on such legislative committees. This taskinvolves the examination of witnesses and is helpful in dealingwith matters of special and technical nature, wisened by insightinto affairs of the workings of different aspects and the viewsexpressed by different stakeholders. It can hardly be said that inthe context of what has been debated, the petitioners have norole to play or are “outsiders”. Intelligent legislative action anddeliberation thereon rests on the power to investigate intoquestions of public importance and, thus, issuance of summonsis key to this investigative exercise. [Para 174][716-C-E]

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618SUPREME COURT REPORTS

ABagehot: The English Constitution, (P. Smith, 2001);J.R. Mallory, The Uses of Legislative Committees, 6Canadian Public Administration 1, 6 (1963); PromilaSuri, Growth of Committee System in Central Legislatureof India 1920-1947, (1979) – referred to.

B2.7 The endeavour of the petitioners to sidestep theirappearance before the Committee on a perceived notion of notbeing an official representative - is not acceptable– whether theexercise is for a legislative enactment, or for other purposesconnected with its legislative domain. The Committee is yet tostart its work qua the assistance to be rendered by the petitioners.CThe petitioners cannot themselves frame and presume possiblequestions that they might face before the Committee, and thenseek to encompass it under the argument of legislativeincompetence. The work of The Committee could encompassseveral fields where organisations and individuals are expected

Dto cooperate. The scheme of privilege has to be seen in thecontext of provisions of Article 239AA of the Constitution, aswell as the GNCTD Act. They are not divorced from each other.Thus, Clauses 7(a) and 7(b) of Article 239AA were rightly referredto contend that the GNCTD Act was not deemed to be anamendment to the Constitution for the purposes of Article 368,Enotwithstanding that it may contain any provision which amendsor has the effect of amending the Constitution. Rights andprivileges are the same as any other House and, thus, the callinginto question of the proceedings of a sub-committee amounts tocalling into question the proceedings of the Assembly. At theFcost of repetition, it is said that there has been no exercise ofprivilege power. However, the Court has been called upon todeliberate, if one may say, to some extent unnecessarily overthis issue on account of insistence of the petitioners to advancethis argument prematurely. It is not known whether onparticipation of the petitioners any question of privilege wouldGarise, whether the Committee would make a reference to theAssembly, whether the Assembly would consider it to be referredto the Privileges Committee, what would be the opinion of thePrivileges Committee and finally whether the Assembly itself H

would embark on a path of a breach of privilege by the petitioners.This is a completely speculative exercise. The Assembly is nodifferent from any other State assembly, except to the extent thatcertain powers in List II of the Seventh Schedule have not beenconferred (i.e., Entries 1, 2 & 18). As a principle of law, all entriesare required to be read widely. Neither the included Entries northe excluded Entries have to be read restrictively. The stage forany possible judicial intervention has not arisen in the presentcase. [Paras 175-179][716-F-G; 717-A-G]

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

2.8 There is actually no serious dispute about the per secompetence of the Committee to discuss matters outside thelegislative domain of the Assembly but it was with a caveat that itcould not give rise to exercise of power of breach of privilegeand the right to summon a non-member. That being the position,any plea raised on the exercise of privilege is a pre-emptive strikein the absence of underlying facts. Where that situation arises inthe given factual context, the petitioners could have and wouldbe entitled to assail the same, but this Court will not indulge inan advance ruling on this aspect. [Para 183][719-A-C]

3.1 Privileges & Fundamental Rights:

In view of the original notice being withdrawn, Facebook’splea of not having the option of choosing whom to send standswhittled away. Further, the aspect of privilege and the rights whichflow from it have been discussed at some length. Though suchproceedings are not taking place in Court, where depositionsalso take place, privileges of an elected body of the LegislativeAssembly and consequently of its committees must be given fullplay. [Paras 185, 187][719-F; 720-B]

3.2 No coercive action has been taken against thepetitioner, and none was intended if the authorised representativeof the petitioners simply participated in the proceedings as awitness. Emphasis was also laid on the transparency of theseproceedings in view of them being broadcasted live. The A

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Asummons having been lawfully issued by an empoweredcommittee (subject, of course to the legislative competencediscussed hereinafter), the same must be answered. Theproceedings are not criminal or judicial in nature as there is noaccused before the Committee. Naturally, the Rules framed bythe House under Section 33 of the GNCTD Act (which in turnBdraws strength from Article 239AA(7) of the Constitution) wouldbe followed. Protection of proceedings before the Assembly orthe Committee under Article 194 would include deposition ofmembers or non-members. The option to not answer a questionbefore the Committee cannot seriously be disputed qua certainCaspects if so pleaded for good reasons, an aspect which would beexamined by the Committee as per Rules. The complete plea ofthe petitioners is premature as nothing has really happened otherthan them having been asked to appear before the Committee.[Paras 189, 190][720-D-G]

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

4.1 Legislative Competence:

It is undisputed that the Assembly is different from theEother State Assemblies to the extent that certain subject mattersof List II have been specifically excluded and conferred on theCentral Government. It is, thus, nobody’s case that aspectscovered by Entries 1, 2 & 18 in List II can be dealt with by theAssembly and consequently, the Committee. While there is noFdispute about the principle of reading the Entries as widely aspossible, that proposition is in the context of challenging a lawfor lack of legislative competence. Here the Court is concernedwith the interplay of Entries. The issue would be whether theCentral Government has the legislative competence or theAssembly. The widest amplitude has to be given even to the threeGEntries of which the legislative competence has been denudedfrom the Assembly and conferred on the Parliament. Facebookis an intermediary was submitted to be apparent from Section2(1)(w) of the I.T. Act. The role of the intermediaries is coveredby this enactment including the right of the Central GovernmentHto 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 theAssembly) was argued to be quite clear, i.e., to encroach on thevery domain which was prohibited. This was stated to be apparentfrom the Terms of Reference. The Terms of Reference containedin paragraph 4 (i) (to consider the complaints from the membersof the public, social organisations, journalists, etc. on the situationprevailing in a particular area/areas which have the potential todisturb communal peace and harmony or where communal riotshave occurred) have to be read in context of para 4(vii) whichtasks the Committee with recommending action against suchpersons against whom incriminating evidence is found. Therespondents could not get away by simply saying that the powerof recommending action against such persons against whomincriminating evidence is found is not capable of being enforcedin view of the lack of legislative competence. These are theaspects which were sought to be given teeth by threateningprivilege 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 thecore function of legislation cannot be accepted. This wouldbe unreasonably restricting the role of an elected body.[Para 200][723-A-B]

4.4 The emphasis was that all that transpired was asubterfuge as the real intent of the Committee was to look intoissues that were beyond their scope, while expanding their powerson account of a political conflict between the Central and StateGovernments over the issue of the riots in question. This wasstated to be quite apparent from the nature of depositionsrecorded before the Committee and the statements made in thepress conference by the Chairman of the Committee. There islittle doubt over the proposition that the division of powersbetween the Centre and the State Assemblies must be mutuallyrespected. The concept of a wide reading of Entries cannot be A

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Aallowed to encroach upon a subject matter where there is a specificentry 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 saidto include what has been excluded from the powers of List II,Bi.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating toinquiries would again not permit the Assembly or the Committeeto 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 alsocannot be seriously disputed. That the Assembly cannot deal withCthe issue of law and order and police is also quite clear. Thus, themoot points would be (a) what is the scope of inquiry of theCommittee; (b) whether it could be said that there is any aspectof the inquiry which falls within the legislative domain of theAssembly; and (c) whether the attendance of the petitioners couldDbe compelled legitimately. [Para 204][723-G-H; 724-A-C]

4.6 The in-principle submission drawing strength fromjudicial precedents in the US, that the power to investigate isinherent in the power to make laws by the legislative body is notdisagreed with. But while recognising this, the issue in the presentEcase is whether the Assembly can at all legislate on the matter.The investigative function of committees carries with it thepossibility of researchers ending up in some “blind alleys”. Thiswould have to presuppose that there is an alley. Thus, while theright of the Committee is respected to the extent that there existsan obligation on the petitioners to respond to the summons, theFproceedings cannot be permitted to go on in a manner thatencroaches upon the prohibited entries. [Para 206][724-E-G;725-A]

4.7 The police cannot be the sole custodian of peace andharmony and that the expression itself has various connotations.GDespite the State Government being denuded of certain powers,it has to be noted that governance has many manifestations, andfunctions of the Government can be realised in different ways.This is especially true in the present case where the situationwas admittedly created through an intrinsically law and orderHissue. The moot point is whether the expression “peace and harmony” can be read in as expanded a manner as sought to bedone by relying on a number of Entries in List II and List III.Peace and harmony, whether in the National Capital or in a Statecontext, is of great importance. But it would be too much to permitthe argument that peace and harmony would impact practicallyeverything and thus, gives power under different entries acrossthe three lists. It is however, recognised that the inquisitorialand recommendatory powers can be utilised under the principleof better governance. [Paras 207, 208][725-B-D]

4.8 While keeping in mind Article 212 which restrains courtsfrom inquiring into the proceedings of a legislature, a narrow scopeof judicial review has always been appreciated and understood.The Committee can trace its legitimacy to several Entries in ListII and List III without encroaching upon the excluded fields ofpublic order or police to undertake a concerted effort albeit notto the extent as canvassed. Facebook cannot excuse themselvesfrom appearing pursuant to the New Summons issued to them on03.02.2021. Areas which are not otherwise available to thelegislature for its legislative exercise may, however, belegitimately available to a committee for its deliberations. This isso in the context of a broad area of governmental functions.Ultimately, it is the State Government and the State Assemblywhich has to deal with the ground reality even in the dual powerstructure in Delhi. It cannot be said that informed deliberationinter alia on the best measures through which online mass hateand violence in their geographical jurisdiction can be addressedwould not be within the Committee’s area of competence as itwould 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 29thFebruary, 2020 in various parts of Delhi, led to the death of 53persons, caused significant damage to public and private property,disruptions to schools, transport, water supply, medical and othercivic amenities. The complexity of communal tensions and theirwide-ranging ramifications is a matter affecting citizens of Delhiand it cannot be said that the Government of NCT of Delhi cannot AB

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Alook into the causal factors in order to formulate appropriateremedial measures. Appropriate recommendations made by theState Government in this regard could be of significance in thecollaborative effort between the Centre and the State to deal withgovernance issues. It is in that context that this Court hadrecognised that certain local interests are best addressed by theBelected representatives of the concerned State. Because of thepervasive impact of the riots, the Committee could legitimatelyattend to such grievances encompassing varied elements of publiclife. Thus, it would be entitled to receive information anddeliberate on the same to examine their bearing on peace andCharmony without transgressing into any fields reserved for theUnion Government in the Seventh Schedule. [Paras 211, 212][726-C-E, G; 727-A]

Delhi Minorities Commission, Government of NCT ofDelhi, Report of the DMC Fact-Finding Committee onDNorth-East Delhi Riots of February, 2020 – referredto.

4.10 Now turning to the Terms of Reference. In the largercontext of what the Committee is supposed to do, reliance wasplaced on paragraph 4(i), i.e., to consider the factors and situationsEwhich have the potential to disturb communal harmony in theNational Capital Territory of Delhi and suggest measures toeliminate such factors and deal with such situations with the objectof establishing harmony among different religious or linguisticcommunities or social groups. This is not purely a law and orderor policing aspect and has several connotations. It was notFnecessary at that stage for the Terms of Reference to spell outas to what aspects it would legislate upon (having legislativecompetence) and on what aspects it would like to consider makingrecommendations. That would have been a pre-hearing of theissue. The object of para 4(i) of the Terms of Reference was toGconsider petitions, complaints or reports from the members ofthe public, social organisations and journalists on the matter inissue where communal riots have occurred. Once again this wasintrinsically linked to the larger issue. However, the realtroublesome aspect is para 4(vii). Clearly it is not within the remit H

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of the Assembly to recommend action against such persons againstwhom incriminating evidence is found or prima facie case is madeout for incitement of violence. This is an aspect purely governedby policing. It is the function of the police to locate the wrongdoer by investigation and charge them before a competent courtand this is what has really given a handle to the petitioners toapproach this Court. In order to justify the legislative competenceand the remit of the Committee, the respondents have practicallygiven up this para 4(vii) and the same is recorded and it is madeclear 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 Summonsdated 03.02.2021, which consciously specified the diluted area ofinquiry, conscious of the aforesaid limitation and rightly so. Whatit takes care of is that it is not addressed to Petitioner No.1 directlybut instead it calls for the views of an authorised representativeof Petitioner No. 2, Facebook India. It has rightly used theexpression “requested” and also used the expression “could”in the context of initiation of proceedings for breach of privilegeand has categorically withdrawn the previous notices andsummons. The result of the aforesaid is that fallacies in the noticesstand removed. The statements made by the Chairman of theCommittee during the press conference cannot be diluted orbrushed aside. The said statements and conclusions arecompletely outside the remit of the Committee and should nothave been made. That it may give rise to apprehension in theminds of the petitioners can also not be doubted. It was soughtto be conveyed that in view of the “incriminating material”, therepresentatives of Facebook would be called upon to satisfyprinciples of natural justice before conviction. The prima facieview expressed is that Facebook is a co-accused and hence,investigations regarding their role during the Delhi riots shouldbe carried out and after such investigation, a supplementarychargesheet should be filed. it is as if the Committee wasconvinced that Facebook must be prosecuted, and as if theCommittee itself was the prosecutor with a right to direct thefiling of a supplementary chargesheet. It was meeting as a formality AB

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Ato give a right of hearing before doing so, i.e. “before taking anyaction.” Such statements are hardly conducive to fair proceedingsbefore the Committee and should have been desisted from. Thisis especially so as that was not even the legislative mandate, andthe Assembly or the Committee had no power to do any of thesethings. In view of the aforesaid, thus, while giving the widestBamplitude in respect of inquiry by a legislative committee, certainfetters are put in the given factual scenario otherwise tomorrowthe proceedings itself can be claimed to be vitiated. [Paras 217-219, 221-224][728-B-F; 729-B-F]

4.12 The importance of Committees cannot be overCemphasised. Committees seek to perform the function of holdingthe Government accountable to implement its policies, and itsduties under legislation and the performance of governmentalagencies can be the subject matter of reports formulated by theseCommittees. However, in the context of the present case, on aDparticular subject matter there is no legislative mandate to enacta legislation even if, in a broader sense, an inquiry is made. Thus,the aspect of holding the State Government accountable is notreally envisaged as per the Terms of Reference. Rather, it seemsas if the Committee seeks to hold certain private playersresponsible for a law and order scenario, which is within theEdomain of the Central Government. Therefore, the generalprinciples applicable to Committees would apply with a littledifference in the given scenario. the wide jurisdictions of the HighCourt under Article 226 or of this Court under Article 32 of theConstitution should not normally be exercised in a mannerFoblivious to the enormous work carried out by the ParliamentaryCommittees “in the field”. An Assembly, more so in the natureof Delhi Assembly with its own peculiarities (i.e., the exclusionof certain powers), even if given the widest amplitude and powerswhich a Committee should have; cannot step on the toes or rathershoes of an entity having exclusive jurisdiction by reason of ListGI. The Committee cannot have a misconception that it is somekind of a prosecuting agency which can embark on the path ofholding people guilty and direct the filing of supplementarychargesheet against them. This aspect has to be kept in mind by H

the Committee so as to not vitiate future proceedings and giverise to another challenge. In any eventuality, as speculative as itmay be, if the Committee seeks to traverse the path relating tothe excluded Entries, i.e. law and order and police, anyrepresentative of Facebook who would appear before theCommittee would be well within their right to refuse to answerthe query and such an approach cannot be taken amiss withpossibility of inviting privilege proceedings. It is a delicate balanceto follow and the Court does not seek to give an excuse to therepresentative of the petitioners to not answer questions andfrustrate the proceedings before the Committee qua thepetitioners. However, at the same time, this very limitedprotection is given were the Committee to embark on theseprohibited 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 orthe Committee to proceed on grounds of breach of privilege perse.

II. The power to compel attendance by initiating privilegeproceedings is an essential power.

III. Members and non-Members (like the petitioners) canequally be directed to appear before the Committee and deposeon oath.

IV. In the given facts of the case, the issue of privileges ispremature. Having said that, the insertion of para 4(vii) of theTerms of Reference taken along with the press conference ofthe Chairman of the Committee could legitimately give rise toapprehensions in the mind of the petitioners on account of whicha caveat has been made.

V. Canvassing a clash between privilege powers and certainfundamental rights is also preemptory in the present case.

VI. In any case, the larger issue of privileges vis-a-vis theright of free speech, silence, and privacy in the context of PartIII of the Constitution is still at large in view of the reference tothe larger Bench in N. Ravi.

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VII. The Assembly admittedly does not have any power tolegislate on aspects of law and order and police in view of Entries1 and 2 of List II in the Seventh Schedule inter alia being excluded.Further, regulation of intermediaries is also subject mattercovered by the I.T. Act.

BVIII. The Assembly does not only perform the function oflegislating; there are many other aspects of governance whichcan form part of the essential functions of the Legislative Assemblyand consequently the Committee. In the larger context, theconcept of peace and harmony goes much beyond law and orderand police, more so in view of on- the-ground governance beingCin the hands of the Delhi Government.

IX. Para 4(vii) of the Terms of Reference does not survivefor any opinion of the Committee. It will not be permissible forthe Committee to encroach upon any aspects strictly within thedomain of Entries 1 and 2 of List II of the Seventh Schedule. AsDsuch, any representative of the petitioners would have the rightto 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 SCC608 : [1978] 2 SCR 1 – relied on.

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Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr.(1975) 2 SCC 159 : [1978] 2 SCR 405; State (NCT ofDelhi) v. Union of India and Anr. (2018) 8 SCC 501 :[2018] 7 SCR 1; State of Madhya Pradesh v. NandlalJaiswal (1986) 4 SCC 566 : [1987] 1 SCR 1; K. NagrajFv. 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. SCR105; Bengal Immunity Co. Ltd. v. State of Bihar andOrs. (1955) 2 SCR 603; Selvi and Ors. v. State ofGKarnataka (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. Unionof India & Ors. (1978) 4 SCC 224 : [1979] 1SCR 1009; Maneka Gandhi v. Union of India (1978) 1

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SCC 248 : [1978] 2 SCR 621; R.C. Cooper v. Union ofIndia (1970) 2 SCC 298 : [1971] 1 SCR 512; BennettColeman & 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] 3SCR 662; Chiranjit Lal Chowdhury v. Union of India[1950] SCR 869; Petronet LNG Ltd. v. Indian PetronetGroup and Anr. (2009) 158 DLT 759;K.Lakshminarayan v. Union of India & Anr. (2020) 14SCC 664 : [2018] 14 SCR 689; Govt. of NCT of Delhiv. Union of India 2020 12 SCC 259 : [2019] 3 SCR 28;Kerala State Electricity Board v. The Indian AluminiumCo. Ltd. (1976) 1 SCC 466 : [1976] 1 SCR 552;Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1SCC 109 : [1989] 1 Suppl. SCR 623; Jilubhai Nanbhaiv. State of Gujarat (1995) Supp. 1 SCC 596 : [1994] 1Suppl. SCR 807; Ujagar Prints (II) v. Union of India(1989) 3 SCC 488 : [1988] 3 Suppl. SCR 770; SriramKrishna 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 1957SC 297 : [1957] SCR 399; Kartar Singh v. State ofPunjab (1994) 3 SCC 569 : [1994] 2 SCR 375; ZameerAhmed Latifur Rehman Sheikh v. State of Maharashtra& Ors. (2010) 5 SCC 246 : [2010] 4 SCR 1042; ITCLtd. v. State of Karnataka 1985 Supp SCC 47 : [1985]Suppl. SCR 145; Hoechst Pharmaceuticals Ltd. v. Stateof Bihar (1983) 4 SCC 45 : [1983] 3 SCR 130; OffshoreHoldings (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 ofEmergency Powers- Comparative Common LawPerspectives (Springer, 2020); Facebook, PressRelease, Facebook reports 1st Quarter 2021 Results,(2021);UNESCO, Concept Note, Media forDemocracy, Journalism and Elections in times ofMisinformation,(2019); Oxford Dictionary Word of theYear 2016; K. Gessen, Introduction, 26, in All Art IsPropaganda: Critical Essays (G. Orwell et. al., 2008); A

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ADigital, Culture, Media and Sport Committee, U.K.House of Commons, Disinformation and ‘fake news’:Final Report, 20-44 (18/02/2019); Facebook admits itwas used to ‘incite offline violence’ in Myanmar, BBC(06/11/2018); Joshua Brustein, Facebook Apologizesfor Role in Sri Lankan Violence, Bloomberg (13/05/B2020); News Media and Digital Platforms MandatoryBargaining Code Bill, 2020 formulated by Australia;Alex Barker, Jamie Smyth et al., Facebook bansAustralian news as impact of media law is felt globally,Financial Times (18/02/2021); European Parliament,CSocial media and democracy: we need laws, notplatform guidelines (10/02/2021); Erskine May’sTreatise on the law, privileges, proceedings, andusage of Parliament, (Sir David Natzler, 25th Edition,2019) – referred to.

DWatkins v. United States 354 US 178 (1957); Barenblattv. United States 360 US 109 (1959); Eastland v. UnitedStates Servicemen’s Fund 421 US 491 (1975); HowardJarvis Taxpayers Association v. Padilla 62 Cali 486(2016) ; Wilkinson v. United States 365 US 399 (1961);Braden v. United States 365 US 431 (1961) – referredEto.

Case Law Reference

[1989] 2 Suppl. SCR 105referred toPara 66A[1955] 2 SCR 603referred toPara 66[2010] 5 SCR 381referred toPara 69[2017] 10 SCR 569referred toPara 69[1979] 1 SCR 1009referred toPara 69B[1978] 2 SCR 621 referred toPara 70[1971] 1 SCR 512 referred toPara 70(2005) 1 SCC 603referred toPara 71C[1973] 2 SCR 757referred toPara 76[1981] 3 SCR 662 referred toPara 76[1950] SCR 869referred toPara 78(2009) 158 DLT 759referred toPara 78D[2015] 5 SCR 963relied onPara 89[2018] 14 SCR 689 referred toPara 93[2019] 3 SCR 28referred toPara 106[1976] 1 SCR 552 referred toPara 112E[1989] 1 Suppl. SCR 623 referred toPara 122[1994] 1 Suppl. SCR 807 referred toPara 124[1988] 3 Suppl. SCR 770 referred toPara 125[1959] SCR 279referred toPara 126F[1955] 2 SCR 225referred toPara 127[1957] SCR 399 referred toPara 135[1994] 2 SCR 375 referred toPara 135[2010] 4 SCR 1042 referred toPara 135G[1985] Suppl. SCR 145referred toPara 138[1983] 3 SCR 130referred toPara 138[2011] 1 SCR 453 referred toPara 138

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632SUPREME COURT REPORTS

[2021] 14 S.C.R.

ACIVIL ORIGINAL JURISDICTION: Writ Petition No. 1088 of2020.

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]Tushar Mehta, SG, Harish N. Salve, Arvind Datar, Dr. AbhishekManu Singhvi, Prashanto Sen, Dr. Rajeev Dhavan, Sr. Advs., VivekBReddy, Raghav Seth, Shravya Reddy, Ms. Chetna Rai, Mayank Pandey,Aditya Jalan, Manoj Reddy, Ms. Durga Priya Manda, Ms. Vanya Chhabra,Bharat Makkar, Vijayendra Pratap Singh, Abhijnan Jha, Ms. Preeti Kolluri,Rahul Unnikrishnan, Mayank Pandey, Shadan Farasat, Amit Bhandari,Talha Abdul Rahman, Prashant Manchanda, Shourya Dasgupta, BharatCGupta, Ms. R. Radha, Ms. Aditi Sharma, Miss Ravleen Chhabra, M.Shaz Khan, Udit Atul Kokanthankar, Ms. Aishwarya Devi, Kanu Agrawal,Rajat Nair, Saurabh Mishra, Ms. Vanshaja Shukla, B.V. Balram Das,Gurmeet Singh Makker, G. Ramakrishna Prasad, Suyodhan Byrapaneni,Ms. Filza Moonis, Chirag M. Shroff, Ms. Abhilasha Bharti, SushantDogra, Advs. for the appearing parties.DThe Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

Prolegomenon[1]:

SANJAY KISHAN KAUL, J.

Prolegomenon[1]:

1. The technological age has produced digital platforms – not likeEthe railway platforms where trains were regulated on arrival anddeparture. These digital platforms can be imminently uncontrollable attimes and carry their own challenges. One form of digital platforms arethe intermediaries that claim to be providing a platform for exchange ofideas without any contribution of their own. It is their say that they areFnot responsible for all that transpires on their platform; though oncomplaints being made, they do remove offensive content based on theirinternal guidelines. The power and potentiality of these intermediaries isvast, running across borders. These are multinational corporations withlarge wealth and influence at their command. By the very reason of theplatform they provide, their influence extends over populations acrossGborders. Facebook is one such corporation.2. A testament to the wide-ranging services which Facebookoffers is the fact that it has about 2.85 billion monthly active users as 1 “Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers – ComparativeHCommon Law Perspectives (Springer, 2020).

of March, 2021.[2] This is over 1/3[rd] of the total population of this planet.In the national context, Facebook is the most popular social media platformin India with about 270 million registered users. Such vast powers mustnecessarily come with responsibility. Entities like Facebook have to remainaccountable to those who entrust them with such power. While Facebookhas played a crucial role in enabling free speech by providing a voice tothe voiceless and a means to escape state censorship, we cannot losesight of the fact that it has simultaneously become a platform for disruptivemessages, voices, and ideologies. The successful functioning of a liberaldemocracy can only be ensured when citizens are able to make informeddecisions. Such decisions have to be made keeping in mind a plurality ofperspectives and ideas. The information explosion in the digital age iscapable of creating new challenges that are insidiously modulating thedebate on issues where opinions can be vastly divided. Thus, while socialmedia, on the one hand, is enhancing equal and open dialogue betweencitizens and policy makers; on the other hand, it has become a tool in thehands of various interest groups who have recognised its disruptivepotential. This results in a paradoxical outcome where extremist viewsare peddled into the mainstream, thereby spreading misinformation.Established independent democracies are seeing the effect of such ripplesacross the globe and are concerned. Election and voting processes, thevery foundation of a democratic government, stand threatened by socialmedia manipulation. This has given rise to significant debates about theincreasing concentration of power in platforms like Facebook, more soas they are said to employ business models that are privacy-intrusiveand attention soliciting.[3] The effect on a stable society can be cataclysmicwith citizens being ‘polarized and parlayzed’ by such “debates”, dividingthe society vertically. Less informed individuals might have a tendencyto not verify information sourced from friends, or to treat informationreceived 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 2 Facebook, Press Release, Facebook reports 1st Quarter 2021 Results, (2021) accessibleat https://www.prnewswire.com/news-releases/facebook-reports-first-quarter-2021-results-301279518.html.

3 UNESCO, Concept Note, Media for Democracy, Journalism and Elections in times ofMisinformation, (2019) accessible at: https://en.unesco.org/sites/default/files/wpfd2019_concept_note_en.pdf.

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Aless influential in shaping public opinion than appeals to emotionand personal belief.”[4] This expression has a period relevance when itcame to be recognised contextually with divided debates about the 2016US Presidential Elections and Brexit – two important events with effectsbeyond their territorial limits. The obfuscation of facts, abandonment ofevidentiary standards in reasoning, and outright lying in the public sphereBleft many aghast. A lot of blame was sought to be placed at the door ofsocial media, it being a source of this evolving contemporary phenomenonwhere objective truth is becoming a commodity with diminishing value.George Orwell, in his 1943 essay titled “Looking Back on the SpanishWar” had expressed “…the very concept of objective truth is fadingCout of the world. After all, the chances are that those lies, or at anyrate similar lies will pass into history”[5] – the words have proved to beprophetic.

4. In the conspectus of the aforesaid, it is difficult to accept thesimplistic approach adopted by Facebook - that it is merely a platformDposting third party information and has no role in generating, controllingor modulating that information. The endeavour to hide behind suchsimplistic models have been found to be unacceptable by the UKParliament. The House of Commons Digital, Culture, Media and SportSelect Committee in its 2018 Report had opined that this would amountto shirking of their responsibilities with respect to content regulation onEtheir site.[6]

5. Serious questions have been raised about whether there is afaulty architecture of such intermediary platforms and whether the kindof free, liberal debate which they sought to encourage has itself becomea casualty, defeating the very objective of providing that platform. It isFtoo late in the day for companies like Facebook to deny that they usealgorithms (which are sequences of instructions) with some humanintervention to personalise content and news to target users. Thealgorithms select the content based on several factors including social G4 Oxford Dictionary Word of the Year2016, 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. Orwellet. al., 2008).

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.H

connections, location, and past online activity of the user. These algorithmsare often far from objective with biases capable of getting replicatedand reinforced. The role played by Facebook is, thus, more active andnot as innocuous as is often presented when dealing with third partycontent.

6. In fact, in the proceedings before us, it is their contention thatthere are times when they are at the receiving end of both groups allegingbias towards the other but then this is a sequitur to their ability to decidewhich content to amplify, suggest, and elevate. Internationally, Facebookhas had to recognise its role in failing to prevent division and incitementof offline violence in the context of the stated ethnic cleansing in Myanmarwhere a crescendo of misinformation and posts, somehow missed byFacebook employees, helped fuel the violence.[7] The platform similarlyapologised for its lack of serious response to evident signs of abuse ofthe platform in Sri Lanka, which again is stated to have stoked widespreadviolence in 2018 in the country and had to acknowledge its need to beregulated though the exact method is still unclear and a prerogative oflaw making authority.

7. There have been endeavours in light of the aforesaid bycountries like Australia, US, the UK, and the EU for ways to regulateplatforms such as Facebook in an efficient manner but their efforts arestill at a nascent stage as studies are undertaken to understand thedynamism of the platform and its disruptive potential. A recent examplehas been Australia’s effort to formulate a legislation that would requireFacebook to pay publishers for using their news stories. The law wasseen as a tool to regulate the platform’s unchecked influence overpolitical discourse, society, and democracy. In response, Facebookblocked all news on its platform across the country with the result thatthere was some relaxation but ultimately a via media was found. TheUS has also seen heated debates arising from the 2016 Presidentialelections with allegations of supposed interference by Russia allegedlyfacilitated by platforms like Facebook. Last year, the EU formulated 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.

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Alegislative proposals namely the Digital Services Act and Digital MarketsAct, setting out rules for platforms to follow.[8]

8. We have penned down a detailed introduction to appreciate thegravity of what was debated before us in the context of Facebook’shands off approach, who have urged that they cannot be compelled toBparticipate in proceedings of Sub Committees formed by the Parliamentor the Legislative Assemblies. The immense power that platforms likeFacebook wield has stirred a debate not only in our country but acrossthe world. The endeavour has been to draw a line between tackling hatespeech and fake news on the one hand and suppressing legitimate speechwhich may make those in power uncomfortable, on the other. This delicateCbalance has thus far only been maintained by the intermediaries by beingvalue-neutral. The significance of this is all the more in a democracywhich itself rests on certain core values. This unprecedented degree ofinfluence necessitates safeguards and caution in consonance withdemocratic values. Platforms and intermediaries must subserve theDprincipal objective as a valuable tool for public good upholding democraticvalues.

9. The sheer population of our country makes it an importantdestination for Facebook. We are possibly more diverse than the wholeof Europe in local culture, food, clothing, language, religion, traditionsEand yet have a history of what has now commonly been called ‘unity indiversity’. This cannot be disrupted at any cost or under any professedfreedom by a giant like Facebook claiming ignorance or lack of anypivotal role.

The factual context:

F10. Delhi, the capital of our country, witnessed an unfortunateeruption of violence between 24[th] and 29[th] February, 2020 with communalriots in different parts of North-East Delhi. This caused loss of life andproperty and disrupted the working of civic services in Delhi. It need not G8 News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 wasformulated by Australia; See Alex Barker, Jamie Smyth et al., Facebook bans Australiannews as impact of media law is felt globally, Financial Times (18/02/2021), accessibleat: https://www.ft.com/content/cec5d055-c2d1-4d5f-a392-a6343beb0b01. See alsoEuropean 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/ social-media-and-democracy-we-need-laws-not-platform-Hguidelines.

be stated that like any other incident of this nature, it also took a politicalcolour. This produced a divide in the society with people across politicalaffiliations blaming each other.

11. In the wake of these riots, the Legislative Assembly of theNational Capital Territory of Delhi (“the Assembly”) resolved toconstitute a Committee on Peace and Harmony (“the Committee”)under the chairmanship of Mr. Raghav Chadha, Member, LegislativeAssembly on 02.03.2020, to inter alia “consider the factors andsituations which have the potential to disturb communal harmonyin the National Capital Territory of Delhi and suggest measures toeliminate such factors and deal with such situations so as to establishharmony among different religious or linguistic communities or socialgroups.” It is the say of the Assembly and the Committee, that it is theirobjective to detect what happened and formulate recommendations toensure it does not happen again. It is appropriate to extract the Terms ofReference of the Committee dated 12.03.2020 as issued by the AssemblySecretariat as under:

“LEGISLATIVE ASSEMBLY SECRETARIATNATIONAL CAPITAL TERRITORY OF DELHIBULLETIN PART-II

(General information relating to legislative and other matters)

Thursday 12[th] March, 2020/ 22, Phalgun, 1941 (Shaka)

No.: 11Subject: Terms of Reference of the Committee on Peaceand Harmony.

Hon’ble Members are hereby informed that Hon’bleSpeaker has approved the following Terms of Reference for theCommittee on Peace and Harmony constituted on 02.03.2020:

1. There shall be a Committee on Peace and Harmony inter-aliato consider the factors and situations which have the potential todisturb communal harmony in the National Capital Territory ofDelhi and suggest measures to eliminate such factors and dealwith such situations so as to establish harmony among differentreligious or linguistic communities or social groups.

2. The Committee shall consist of nine members who shall benominated by the Speaker.

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A3. 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 membersof the public, social organizations, journalists etc. on the situationsprevailing in a particular area/areas which have the potential toBdisturb communal peace and harmony or where communal riotshave occurred and to examine in detail and identify the factorsresponsible for it.

(ii) to recommend suitable measures to defuse the situation andrestore harmony among religious communities, linguisticCcommunities or social groups.

(iii) to recognise, reward and felicitate individuals who played arole in the protection of fellow citizens during acts of communalviolence, or undertook any activity that led to the restoration ofpeace in the state.D

(iv) to recognize, reward and felicitate individuals whoseinformation resulted in the registration of First Information Reports(FIRs) in relation to the crimes committed during the communalriots.

E(v) to undertake scientific study of the religious, linguistic andsocial composition of the population of NCR Delhi, with a view toidentifying and strengthening the factors which unite the peopledespite the diversity in terms of their social, religious, economicand cultural tradition.

F(vi) to recommend measures to be undertaken by the governmenttowards establishing communal harmony and peace in the state.

(vii) to recommend action against such persons against whomincriminating evidence is found or prima facie case is made outfor incitement to violence.

(viii) to examine such other matters, broadly in conformity withthe objectives of the Committee, as may seem fit to the Committeeor are specifically referred to it by the House or the Speaker.

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(ix) The Committee shall submit its report to the House. If theHouse is not in session the Committee may submit the report toHthe Speaker who may forward the same to the Govt. for necessary

action thereon. The Secretary shall lay the report on the Table ofthe House on the first day of the next session.

(x) As soon as maybe after the submission of the report to theHouse by the Committee, the Govt. shall take appropriate actionin the matter dealt with in the report and a complete statement onthe action taken by all the authorities thereon shall be laid in theHouse within two weeks after the report is presented in the House.

(xi) In considering/examining the complaints/reports etc., theCommittee may engage the services of experts.

(xii) The Speaker shall reconstitute the Committee on the expiryof its term.

(xiii) Except in respect of matters provided in these rules, othermatters in connection with the Committee shall be dealt with underthe general rules relating to the Committees.

(xiv) The Speaker may issue such directions as he may considernecessary for regulating the procedure in connection with allmatters involving the consideration of any question that may bebrought up before the Committee.

(xv) The Committee shall have all the powers, privileges andimmunities as are available to the Committees of the LegislativeAssembly 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 variousofficials from different walks of life. It is the say of the Committee thatthousands of complaints were received which inter alia suggested thatFacebook had been used as a platform for fomenting hate andjeopardising communal harmony. This was further fuelled by an articlepublished in the Wall Street Journal on 14.8.2020 titled “Facebook’sHate-Speech Rules Collide with Indian Politics” (“the Article”)suggesting that there was a broad pattern of favouritism towards theruling party and Hindu hardliners. The Article also made seriousallegations of lapses on the part of Facebook India in addressing hatespeech content.

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A13. The aforesaid resulted in two important developments. Thefirst was that on 20.08.2020 the Parliamentary Standing Committee onInformation Technology (“Parliamentary Committee”) issued a noticerequesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President andManaging Director of Petitioner No. 2 Facebook India Online ServicesPrivate Limited, to appear before the Parliamentary Committee onB02.09.2020. The notice stated that the Committee was seeking FacebookIndia’s views inter alia on the subject of “safeguarding citizens’ rightsand prevention of misuse of social/online news media platformsincluding special emphasis on women security in the digital space.”The letter reads as under:

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“MOST IMMEDIATE

LOK SABHA SECRETARIAT

(STANDING COMMITTEE ON INFORMATIONTECHNOLOGY BRANCH)

DFAX: 23010756

PARLIAMENT HOUSE

ANNEXE

NEW DELHI-11000120[th] August, 2020

No.18/1(iv)/IT/2020

EFrom

Y.M. KandpalDirector

To

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Shri Ajit MohanVice President & MD,Facebook India Online Services Pvt. Ltd.,7[th] Floor, Parsvnath Capital Towers,Bhai Veer Singh Marg, Gole Market,New Delhi-110001.

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Subject: Examination of the subject ‘Safeguarding citizens’ rightsand prevention of misuse of social/online news media platformsincluding special emphasis on women security in the digital space’

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Sir,

I am directed to state that the Standing Committee onInformation Technology are examining the subject ‘Safeguardingcitizens’ rights and prevention of misuse of social/online newsmedia platforms including special emphasis on women security inthe digital space’.

2. Keeping in view the importance of the subject and its widerimplications in the present context, the Committee have decidedto hear the views of representatives of Facebook India on theabove subject at their sitting scheduled to be held on Wednesday,2[nd] September, 2020 from 1600 hrs. onwards in Main CommitteeRoom, Parliament House Annexe, New Delhi.

3. It is, therefore, requested that senior most representatives ofFacebook India may make it convenient to appear before theCommittee on the said date, time and venue. The names/designations of the representatives from Facebook India who willappear before the Committee may be intimated to this Secretariatby 27[th] August, 2020 or before positively. In view of the COVID-19 pandemic, you are requested to restrict the number ofrepresentatives who will attend the scheduled sitting on 2[nd]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 [REDACTED].

5. Entry passes to the venue of the sitting may be collected fromthe IT Committee Branch in advance.

6. A copy of the points of Conduct and Etiquette to be observedby non-official witnesses appearing before the Committee isenclosed at Annexure-I for your guidance.

Yours faithfully,Sd/-

DirectorTel No.23034388/[REDACTED]”

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A14. Along with the aforesaid letter was annexed as Annexure-Ithe Points of Conduct and Etiquette for the guidance of witnessesappearing before the Parliamentary Committees or their sub-committees,which inter alia in para 8, set out as to what would constitute breach ofprivilege and contempt of the Parliamentary Committee. The saidAnnexure reads as under:B

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“ANNEXURE-I

POINTS OF CONDUCT AND ETIQUETTE FOR THEGUIDANCE OF WITNESSES APPEARING BEFORE THEPARLIAMENTARY COMMITTEES OR THEIR SUB-COMMITTEES.C

The witnesses should note the following points whileappearing before Parliamentary Committee:

1. Due respects to the Chairman and the Committee/Sub-Committee should be shown by the witness by bowing whileDtaking his seat.

2. The witness should take the seat earmarked for him oppositeto the seat of the Chairman.

3. The witness should take the oath, or make affirmation, if soasked by the Chairman. The oath or affirmation will beEadministered by the Secretary. The witness will take theoath or make affirmation standing in his seat and bow tothe Chair just before taking the oath or making theaffirmation and immediately afterwards.

4. The witness should answer specific questions put to himFeither by the Chairman, or by a Member of the Committeeor by any other person authorized by the Chairman. Thewitness may be asked to place before the Committee anyother points that have not been covered and which a witnessthinks are essential to be placed before the Committee.

G5.All submissions to the Chair and the Committee should becouched in courteous and polite language.

6. When the evidence is completed, and the witness is askedto withdraw, he should, while leaving, bow to the Chair.

7. The witness should not smoke or chew when he is seatedHbefore the Committee.

8. Subject to the provisions of Rule 270 of the Rules ofAProcedure and Conduct of Business in the Lok Sabha, thewitness should note that following acts shall constitutebreaches of privilege and contempt of Committee:- (a)Refusal to answer questions.

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(b) Prevarication or willfully giving false evidence orsuppressing the truth or misleading the Committee.

(c) Trifling with the Committee; returning insultinganswers.

(d) Destroying or damaging a material document relativeCto the enquiry.

9. The witness should not bring cellular phones inside theParliament House Complex.

xxxxx”

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15. Mr. Ajit Mohan, Petitioner No. 1, duly appeared before theParliamentary Committee and offered his views.

16. The second development took place on 31.08.2020 when theChairman of the Committee held a press conference (“the pressconference”) wherein he summarised the complaints received in thehearings conducted between 25.08.2020 and 31.08.2020. In this process,he stated that it prima facie appeared that Facebook had colluded withvested interests during the Delhi riots in February, 2020. Comments werealso made by the Chairman to the effect that Facebook ought to betreated as a co-accused and an independent investigation should becarried out into its role in the riots. It was stated that if the investigationuncovered strong evidence against Facebook, a supplementarychargesheet should be filed in this regard (we may note here itself thatthe stand taken during the course of arguments was that these were notthe Chairman’s own views but were merely the views expressed by theCommittee). Since Facebook had not been heard, it was observed in thepress conference that before any action is taken in writing, Facebookshould be given a chance to appear before the Committee. Consequently,notice for appearance was issued on 10.09.2020 (“First ImpugnedSummons”) by the Assembly to Mr. Ajit Mohan in the capacity of VicePresident and Managing Director of Facebook India. The First ImpugnedSummons highlighted the factum of numerous complaints alleging E

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Aintentional omission and deliberate inaction on the part of Facebook intackling hate speech online. The Article was also referred to and Mr.Ajit Mohan was called upon to deliver insights to the Committee withrespect to Facebook India’s internal functioning and enforcement ofpolicies in view of the special knowledge that he possessed. It was clearlystated that he was being called as a witness for testifying on oath beforeBthe Committee on 15.09.2020. Significantly, no consequences in the formof breach of parliamentary privilege were intimated in case Mr. AjitMohan refused to appear. The same reads as under:

“LEGISLATIVE ASSEMBLY

NATIONAL CAPITAL TERRITORY OF DELHIC

OLD SECRETARIAT, DELHI 110054.

Notice/Summon for Appearance

No.24/3/P&H/2020/LAS-VII/Leg./33

Date: 10.09.2020

To,D

Mr. Ajit Mohan,

Vice President & Managing Director,India-Facebook, Address:-1Address:-2EFacebook India Online Services Pvt. Ltd. One BKCLevel-17, DLF Horizon Building,Bandra Kurla ComplexTwo Horizon Centre, Golf Course Road, Bandra (E)DLF Phase 5, Sector 43,Mumbai, India-400051Gurugram, Haryana 122022

F

Subject: Notice for Appearance before the Delhi LegislativeAssembly’s Committee on Peace and Harmony, NCT ofDelhi.

The Delhi Legislative Assembly’s committee on ‘Peace andHarmony’, headed by Hon’ble Member of Legislative AssemblyGof NCT of Delhi, Mr. Raghav Chadha, as its Chairman along withother Hon’ble Members of the Legislative Assembly, assistingand facilitating the state’s endeavour to maintain and promote anirenic atmosphere in the city as well as establishing a conducivemilieu of concordance, peace and pacification amongst differentHcommunities residing in NCT of Delhi.

Pertinently, the committee has received numerous complaintsalleging inter alia intentional omission and deliberate inaction onthe part of social media platform-Facebook to apply hate speechrules and Polices which has allegedly led to serious repercussionsand disruption of peace and harmony across the NCT of Delhi. Afew complainants have also drawn considerable strength fromthe news report published by The Wall Street Journal on14.08.2020, titled as ‘Facebook’s Hate-Speech Rules Collide WithIndian Politics’. The committee had promptly taken cognizanceof serious allegations set out in the vetted complaints and havebegun the proceedings in this regard, pursuant to which numerouswitnesses have been examined.

Significantly, in the wake of serious allegations leveled againstFacebook India unit which you have been spearheading since 2019,you, the addressee, as the Vice-President and Managing Directorof Facebook India and as a representative of the same, are bestsuited to deliver insights to the committee with respect to FacebookIndia’s internal functioning and enforcement of policies, and thus,your special knowledge in this regard would be imperative for thecommittee 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 awitness for testifying on oath and for rendering your assistanceby providing the relevant information and explanations in order tosmoothly expedite the determination of the veracity of allegationsleveled against Facebook in the complaints and depositions madebefore the committee. In pursuance thereof, we hereby summonyou, the addressee, to appear before the committee on 15[th]September, 2020 at 12 Noon at MLA Lounge-1, Delhi VidhanSabha, for the purpose of recording your deposition on oath andparticipating in the proceedings carried out by the committee.

(Deputy Secretary)The Committee on Peace and Harmony NCT of DelhiPH-011-23890384Email ID [REDACTED]”

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A17. One Mr. Vikram Langeh, Director of Trust and Safety,Facebook sent a reply dated 13.09.2020 emphasising that Facebook’sinternal policies seek to protect user safety and security and alsoemphasised the different mechanisms it employs to tackle hate speechcontent. The factum of Facebook having given testimony before theParliamentary Committee was also set out. A plea was raised that theBrole of regulation of intermediaries like Facebook squarely fell within theexclusive authority of Union of India; in exercise of which the Parliamenthad enacted the Information Technology Act, 2000 (“the IT Act”).Not only that, the subject of law and order in the NCT of Delhi wasstated to fall within the exclusive domain of the Union of India. On theseCpleas the First Impugned Summons was objected to and requested to berecalled. The reply reads as under:

“FACEBOOK

September 13, 2020

DTo,

The Hon’ble Chairman,

“FACEBOOK

September 13, 2020

DTo,

The Hon’ble Chairman,

The Committee on Peace and Harmony,Delhi Legislative Assembly, NCT of Delhi.

Subject: Response to Notice for Appearance before the DelhiELegislative Assembly’s Committee on Peace and Harmony, NCTof Delhi dated September 10, 2020

Hon’ble Chairman,

Facebook India Online Services Private Limited is in receipt ofFthe notice dated September 10, 2020 (“Notice”) issued by theDelhi Legislative Assembly’s Committee on Peace and Harmony(“Committee”).

Facebook, Inc. (“Facebook”) operates and manages the Facebookplatform, and provides the Facebook service to users in India.Facebook shares the Committee’s concerns regarding theGdissemination of hate speech online and has implemented robustmeasures to curb its spread on Facebook’s platforms. Facebookbans individuals and groups that proclaim a hateful and violentmission from having a presence on its platforms. Facebook seeksto apply its comprehensive standards uniformly and has identifiedHa range of such individual and groups across the globe.

Facebook has also built some of the most advanced systems inthe world to protect its users’ safety and security, investing billionsof dollars in technology and hiring tens of thousands of people towork on safety and security. Based on these efforts, we removed22.5 million pieces of hate speech content in the second quarterof 2020 (up from just 1.6 million pieces of hate speech removed inthe last quarter of 2017), nearly 95 percent of which we removedbefore it was reported to us. Facebook is committed to beingmore transparent about how it combats hate speech and routinelypublishes a Transparency Report, which provides details aboutsteps taken by Facebook to prevent and action content that violatesits policies.

In view of the importance of this subject, the Parliament’s StandingCommittee on Information Technology (“Parliamentary StandingCommittee”) is examining the issues raised in your Notice as apart of its inquiry into “Safeguarding citizens’ rights”. We gavetestimony before the Parliamentary Standing Committee. We areenclosing the notice received from the Parliamentary StandingCommittee for your reference. (Annexure A)

As you are well aware, the regulation of intermediaries likeFacebook falls within the exclusive authority of the Union of Indiaand 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 CapitalTerritory of Delhi also falls within the exclusive domain of theUnion of India.

Given that the issues raised by the Notice involve subject matterwithin the exclusive domain of the Union of India, and that thematters are under active consideration by Parliament, werespectfully object to the Notice and request that you recall it.

Facebook responds to the Notice without prejudice to, andexpressly reserving, any and all of its rights.

Sincerely,For Facebook

Vikram LangehDirector,Trust & Safety, Facebook.”

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A18. The aforesaid was not acceptable to the Committee, whichformulated a reply to Facebook’s response on 18.09.2020, this timeaddressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The threeannexures enclosed with the reply were: (a) Terms of Reference of theCommittee (“Terms of Reference”); (b) Sections 18 and 37 of theGovernment of National Capital Territory Act, 1991 (“GNCTD Act”);Band (c) fresh summons issued to Mr. Ajit Mohan (“Second ImpugnedSummons”) under Rule 172 of the Rules of Procedure and Conduct ofBusiness in the Legislative Assembly of NCT of Delhi (“the Rules”).

19. The Committee’s reply alluded to its Terms of Reference toemphasise that it was in furtherance of the objective of good governanceCand to carry out responsibilities of the State under the Constitution. Thepurpose, it was stated, was to invite the public to join this exploratoryprocess, the remit of which included making suggestions to the UnionGovernment beyond using the mechanisms of the Inter-State Council.This was stated to be in line with the principles of cooperative federalism,Dwhich encompassed a large number of areas. It is at this stage that aperceived element of threat was held out to Mr. Ajit Mohan stating thathis refusal to appear was inconsistent with the law of privileges of alegislature (which extends to the Committee and its members). He wasasked to appear before the Committee on 23.09.2020 in the “spirit ofdemocratic participation and constitutional mandates.” Importantly, it wasEclearly stated that non-compliance would be treated as breach of privilegeof the Committee and necessary action would be taken.

20. It is the aforesaid Second Impugned Summons which triggeredthe filing of the present proceedings under Article 32 of the Constitutionof India by Mr. Ajit Mohan as the first petitioner, in his capacity as theFVice President and Managing Director of Facebook India Online ServicesPrivate Limited, which is the 2[nd] petitioner. The third petitioner is theparent company, Facebook Inc., US. The array of respondents includethe Assembly as the first Respondent while Respondent Nos. 2 to 4 arethe Union of India, represented through different Ministries, being MinistryGof Law and Justice, Ministry of Home Affairs and Ministry of Electronicsand Information Technology. Respondent Nos. 5 & 6 are the Lok Sabhaand the Rajya Sabha respectively. Delhi Police was impleaded as the 7[th]respondent. We may note that in the course of the proceedings theCommittee sought to be impleaded as a party and in terms of the consentorder dated 20.01.2021 the said entity was permitted to intervene. TheHprayers made in the writ petition are as under:

“a. Issue a writ/order or direction in the nature of Mandamussetting aside the Impugned Summonses dated September 10,2020 and September 18, 2020;

b. Issue a writ/order or direction in the nature of Prohibitionrestraining Respondent No.1 from taking any coercive actionagainst Petitioners in furtherance of the ImpugnedSummonses;

c. Issue or pass any writ, direction or order, which this Hon’bleCourt may deem fit and proper under the facts andcircumstances 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 forRespondent No.1, on instructions, stated that the meeting scheduled forthe said date had already been deferred and no further meeting wouldbe fixed qua the petitioners till the next date of hearing. Further, on theCourt’s query regarding the role of Respondent Nos. 5 and 6 (the LokSabha and the Rajya Sabha respectively), Mr. Harish Salve, learnedSenior Advocate appearing for Petitioner Nos. 1 and 2 submitted that theonly purpose of serving them was that although no relief was claimed,there was a perception that there may be some interplay of powers betweenthe Delhi Secretariat and the Secretariat of the Central Government.

22. The aforesaid interim arrangement continued as pleadingswere completed. The matter was set down for hearing with rule nisibeing issued on 21.01.2021. The issue was debated before us onnumerous dates thereafter and the hearing concluded on 24.02.2021. Werecorded that the counsels had argued over a period of 26 hours, leavingthe task to us to pen down the judgment - which we seek to perform now.

23. At this stage, we must note a significant development thatarose during the course of the proceedings, possibly emanating fromcertain questions posed by the Court qua the press conference, thesummonses issued to Petitioner No.1, and on account of certain submissionsadvanced by learned counsel for the Petitioners. An affidavit was placedbefore us (as recorded in the proceedings of 04.02.2021) in terms whereofthe two impugned summonses issued to Petitioner No.1 dated 10.09.2020and 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:

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“LEGISLATIVE ASSEMBLYNATIONAL CAPITAL TERRITORY OF DELHIOLD SECRETARIAT, DELHI 1100 54Committee on Peace and HarmonyNo.24/3/P&H/2020/LAS-VII/Leg./1305Date: 03.02.2021

Notice/Summon for Appearance

To,

Facebook India Online Services Pvt Limited Address 1One BKC, Bandra Kurla ComplexBandra (E)Mumbai, India-400051

Address 2Level-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 ofProcedure and Conduct of Business in the Legislative Assemblyof NCT of Delhi.

1. In supersession of earlier notice(s)/summons dated 10.09.2020and 18.09.2020, the present notice for appearance is being issued.

2. I am directed to state that the National Capital Territory ofDelhi had witnessed unprecedented communal disharmony andviolence in February 2020. The Hon’ble Speaker of the LegislativeAssembly of NCT of Delhi has constituted a Committee on Peaceon (sic.) Harmony under the Chairmanship of Sh. Raghav Chadhaalong with other Hon’ble Members of the Legislative Assemblyto recommend suitable measures to defuse the situation and restoreharmony among religious communities, linguistic communities orsocial groups. The Committee aims to recommend preventive andremedial measures concerning issues of governance, socialcohesion, unity, brotherhood and peace. The Committee furtheraims to recommend measures to strengthen overall social and

economic development in the context of establishing communalharmony and peace in society in the NCT of Delhi.

3. Keeping in view the importance of the above subject and itsimplication on persons in the NCT of Delhi, various personsincluding journalists, former bureaucrats and community leadershave appeared before the Committee to offer their evidence andsuggestions. The Committee has observed and is of the opinionthat social media has a very important role in curbing the spreadof false, provocative and malicious messages which can fan theviolence and disharmony.

4. Since, Facebook has lakhs of users in the NCT of Delhi, in theabove-stated context, the Committee has decided to hear the viewsof representative(s) of Facebook India on the above subject attheir sitting scheduled to be held on 25thFebruary, 2021 from 11AMonwards in MLA Lounge-1, Assembly Complex, OldSecretariat, Delhi-110054as per the Rules of Procedure andConduct 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 mayappear before the Committee on the said date, time and venue asa witness. The names/designations of the representatives fromFacebook India who will appear before the Committee may beintimated to this Secretariat by 24[th] February, 2021 or beforepositively. Because of the COVID-19 pandemic, you are requestedto restrict the number of representatives to a minimum.

6. Please note that failure to send a representative as summonedabove, could in terms of the Rules of Procedure and Conduct ofBusiness in the Legislative Assembly of NCT of Delhi lead toinitiation of proceedings for breach of privilege/contempt of theAssembly.

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 SecretaryPH-011-23890384E-mail ID: [REDACTED] ”

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ADr. Singhvi submitted that since the legal position was beingdebated in the larger context, the New Summons would not make adifference, except that the specific challenge to the earlier summonseswould not stand as they stood withdrawn and had been substituted withthe New Summons. It was Mr. Salve’s view, that this would not reallybe a redeeming feature and the matter still had to be debated.B

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24. Notably, a discordant note did arise in the stands canvassedon behalf of the Assembly by Dr. Singhvi and on behalf of the Committeeby Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earliersummons were as good in law as the New Summons and, thus, it madeno difference. Obviously, Dr. Singhvi thought otherwise, as there wouldChave been no occasion to withdraw the earlier summons and issue afresh summons. We say so as this is one aspect emphasised in the courseof arguments in rejoinder by Mr. Salve.

25. One aspect to be noticed is that the New Summons dated03.02.2021 has been issued by the Deputy Secretary of the Committee.DThus, on the one hand, the Committee deemed it appropriate to withdrawthe earlier summons and issue a fresh one (apparently wiser after somearguments from Mr. Salve and possibly some remarks of the Court)while on the other hand as an intervening entity, peculiarly, the stand ofDr. Dhavan was that this was not required to be done! On this, we sayEno more.

The Submissions

26. In his opening arguments Mr. Salve punched hard on the issuethat niceties aside, one has to consider the true intent with which thesummons was issued. In short, it was his say that the objective was toFfile a supplementary chargesheet and rope in Facebook. To substantiatethis contention, he refers to three factors, i.e. (a) Para 4 (vii) read with4 (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 politicallyGpolarised issue and Mr. Salve contended that the Petitioner had no intentto become part of such a debate. The parent company (Facebook Inc.)being an intermediary based in the US, could hardly be expected to beroped into this political battle which formed the basis of the summonsesthat have been issued. It was emphasised that the Committee’s actionsamounted to a clear and present danger of coercive action, which wasH

in violation of Petitioner No. 1’s fundamental rights. In the process ofreading his note of arguments, which were more detailed with differentnuances, broadly four issues were sketched out:

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•Does a House have a privilege to summon a person to giveevidence who is not directly or indirectly part of theexecutive?

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•Do powers of privilege extend to summoning an individualand compelling them to give evidence on matters of fact orseek their opinion on any subject matter?

•If there does indeed exist a privilege, how is the same to bereconciled with an individual’s right to privacy and freeCspeech?

•Is the House constrained by the subject matter whichconstitutes a part of the business of the House relating toits legislative functions?

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In light of these four issues canvassed by Mr. Salve, we proposeto set out the detailed arguments and thereafter proceed with our analysisunder three broad heads – (a) the privileges issue, (b) privilege, right toprivacy and free speech and (c) legislative competence.

Privilege Issue

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28. Mr. Salve took us through the history of the notion of privilege,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 ashield in order to enable it to work without fear or interference. It owesits origination in the United Kingdom under the rubric of the constitutionalrole of the House of Commons (functioning as a court). This role,however, has to be appropriately adapted to the Indian Constitution wherethere is a sharp separation of powers. A distinction was, thus, sought tobe drawn that while privileges have arisen by virtue of House ofCommons 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 privilegesare strictly restricted to legislative functions. Privileges serve the distinctpurpose of safeguarding the integrity of the legislative functions againstobstructions which could be caused by either members or non-members.Learned counsel sought to refer to certain judicial pronouncements inthis behalf.

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A(i) In State of Karnataka v. Union of India[9] the proceedingsrelated to a Commission of Inquiry appointed by the Central Governmentunder the Commission of Inquiry Act, 1952 against the then Chief Ministerof Karnataka. The challenge was laid by the State Government whichwas repelled by a majority judgment of six Judges with one dissentingJudge.B

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The most significant aspect emphasised was that the “powers”meant to be indicated in Article 194(3) are not independent but are suchpowers which depend upon and are necessary for the conduct of businessof each House. Thus, they could not be expanded into those of the Houseof Commons in England for all purposes. The Constitution is sovereignCor supreme and thus, the Parliament as well as each legislature of theState in India enjoys only such legislative powers as the Constitutionconfers upon it. A distinction was made in the role performed by theParliament and Legislative Assembly while exercising its legislative poweras against a court of justice. In taking up proceedings which are quasiDjudicial in cases of contempt of its authority and motions concerning its “privileges” and “immunities”, the House only seeks removal ofobstructions to the due performance of its legislative functions. However,if the question of jurisdiction arises as to whether a matter falls here ornot, it has to be decided by the ordinary courts in appropriateproceedings.[10]E

(ii) The next judgment relied upon is Amarinder Singh v. SpecialCommittee, Punjab Vidhan Sabha & Ors.[11] In this case, Shri AmarinderSingh, then a Member of the Punjab Vidhan Sabha was expelled for theremaining part of the 13[th] Vidhan Sabha on allegations of criminalmisconduct relating back to his tenure as the Chief Minister of PunjabFduring the 12[th] term of the Vidhan Sabha qua alleged responsibility forimproper exemption of a vacant plot of land licensed to a private party.On a challenge being laid, the Supreme Court opined in favour of ShriAmarinder Singh holding that the proper course of action for the StateGovernment should have been to move the criminal law machinery withGthe filing of a complaint followed by investigation as contemplated underthe Code of Criminal Procedure and thus, the Punjab Vidhan Sabha hadexceeded its powers by expelling the appellant on the ground of breach H

9 (1977) 4 SCC 608.

10 Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (1975) 2 SCC 159.

11 (2010) 6 SCC 113.

of privilege when there existed none. The alleged improper exemptionof land was only an executive act and it did not distort, obstruct, orthreaten the integrity of legislative proceedings in any manner observedthe Constitution Bench of five Judges. In coming to the conclusion, thescope of the powers, privileges and immunities available under Articles105(3) and 194(3) have been discussed in paras 33 to 37. It was noticedthat they were not codified by way of statute till date and, thus, theSupreme Court held that it could consider the principles and precedentsrelatable to the British House of Commons. This Court had adopted asimilar approach towards the concept of legislative privileges to interpretArticle 194(3) in Re. Special Reference 1 of 1964.[12] An aspectemphasised was that there was a distinction between exercise oflegislative privileges and ordinary legislative functions. In that context itwas observed as under:

“45. In U.P. Assembly case (supra.), this Court had also drawn adistinction between the exercise of legislative privileges and thatof ordinary legislative functions in the following manner:

“70. ….There is a distinction between privilege and function,though it is not always apparent. On the whole, however, it ismore convenient to reserve the term `privilege’ to certainfundamental rights of each House which are generally acceptedas necessary for the exercise of its constitutional functions. Thedistinctive mark of a privilege is its ancillary character. Theprivileges of Parliament are rights which are ‘absolutely necessaryfor the due execution of its powers.’ They are enjoyed by individualMembers, because the House cannot perform its functions withoutunimpeded use of the services of its Members; and by each Housefor the protection of its Members and the vindication of its ownauthority 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 tomake a statement that Mahatma Gandhi was a British agent causing harmto India and that Netaji Subhash Chandra Bose was an agent of Japanesefascism. This naturally invoked the hackles of the Parliamentarians and a 12 AIR 1965 SC 745.13 (2017) 2 SCC 384.

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Adiscussion took place in the Rajya Sabha. A resolution was passedunanimously with the Lok Sabha doing the same on the next dayunequivocally condemning the remarks of Justice (Retd.) Katju. Lettersand e-mails were written questioning this methodology as he was notgiven an opportunity of hearing in compliance with the principles of naturaljustice. Since it provoked no response, these resolutions were sought toBbe assailed by Justice (Retd.) Katju in judicial proceedings before thisCourt. Since no aspect of privilege was invoked and it was an expressionof the views of the Parliament falling within the domain of freedom ofspeech in Parliament, the petition was rejected. It is in that context thata distinction was made between the exercise of contempt or breach ofCprivilege where action was sought to be initiated against a citizen,-whethera member or a non-member. The law has developed that the action ofsuch citizen must have interfered with fundamental functioning of theHouse so as to enable the House to initiate any proceedings against thecitizen. The earlier judgments inter alia in the case of MSM Sharma v.Dr. Shree Sri Krishna Sinha[14], Raja Ram Pal[15], Special ReferenceDNo. 1 of 1964 [16] and Amarinder Singh[17] were discussed to concludethat Chapter 20 of the Lok Sabha Rules entitled privileges and Rules222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to203 of the Rajya Sabha Rules deal with issues concerning privileges.Thus, an inquiry would be along the lines submitted by the petitioner onlyEif such a privilege action was proposed to be taken which was not so inthat case.

In the conspectus of the aforesaid legal principles, it was urgedthat the petitioners in the instant case being non-members could only besummoned if they had intruded upon any functions of the Assembly.FTheir non-appearance or unwillingness to participate in the debate inwhich they were compelled to participate did not in any manner disruptthe functioning of the Committee so as to face the consequences of breachof privilege. The Committee could always make its recommendationsbut the petitioners do not want to be part of it. There were no legislativefunctions to be performed and thus, the contention was that this was aGcase of expanding unbridled privileges in the garb of an amorphous set 14 AIR 1960 SC 1186.15 (2007) 3 SCC 184.16 Supra note 12.H17 Supra note 11.

of rules to make an exception to the rule of law. As such, it was arguedthat the Terms of Reference had to be given a restrictive meaning.

29. Next, Mr. Salve sought to deal with the issue of judicial scrutinyof proceedings of the Assembly by seeking to canvas that there is noabsolute bar on Courts to look into the validity of the proceedings of theAssembly. In the context of Article 212 of the Constitution read withrelevant sections of the GNCTD Act, if proceedings adopted by theAssembly suffer from lack of jurisdiction or are illegal or unconstitutional,a challenge can be made before the competent court. Learned seniorcounsel relied upon judicial pronouncements in Special Reference No.1of 1964[18], 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 1964[21] the dispute arose out ofa conflict between the legislature and the judiciary, if one may say so, as aconsequence of the power exercised by the U.P. Assembly in sentencingone Keshav Singh to be detained in a civil prison for a period of 7 days andthe judiciary (Allahabad High Court) enlarging him on bail thereafter. Thiswas taken as an affront by the legislature, which passed a resolution againstthe two concerned judges to be brought in custody before the House. AFull Bench of 28 judges consisting of the strength of the Court thereafterassembled to deal with the petitions filed by the two judges against thisresolution. The bench restrained the Speaker from issuing a warrant againstthe judges and the Marshal of the House from executing the warrant. Inorder to resolve this confrontation, the President of India decided to exercisethe power to make a reference to this Court under Art. 143(1) of theConstitution. The reference was on the important question of the exerciseof powers, privileges and immunities of the State legislature vis-à-vis thepower of the High Court and the Judges to discharge their duties. Sufficeto say that the opinion rendered by the Court in the reference was that thepowers conferred on the High Court under Article 226 of the Constitutionand the authority of the Supreme Court under Article 32 of the Constitutionare not subject to any restrictions. It could not be said that a citizen cannotmove the High Court or the Supreme Court to invoke its jurisdiction, evenin cases where fundamental rights have been violated. Once the judiciary

20 (2018) 7 SCC 1.

21 Supra note 12.

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Awas authorized to consider the validity of the actions of the legislature, itwas opined that the judiciary cannot be prevented from scrutinizing thevalidity of the actions of the legislatures trespassing on the fundamentalrights conferred on the citizens.

31. In Raja Ram Pal[22] a private channel’s telecast based on aBsting operation in the “cash for query case” where 10 Members ofParliament accepted money through middlemen to raise certain questionsin the House resulted in an inquiry and subsequent expulsion of thesemembers from the House. The members challenged the said expulsion.The three questions framed by the Supreme Court were all answered inthe affirmative – (i) that the Supreme Court within our constitutionalCscheme has the jurisdiction to decide the content and scope of powers,privileges and immunities of the legislature and its members; (ii) thepower and privileges of the legislature in India, in particular reference toArticle 105 of the Constitution, includes the power of expulsion of itsmembers; and (iii) in case of expulsion, the Supreme Court had jurisdictionDto interfere to exercise such power and privileges. While rejecting theplea on expulsion, the Court expounded on the scope of such judicialreview. Significantly, it was opined that though there would be apresumption that the Parliament would always perform its functions andexercise its powers within a reasonable manner, there could be no scopefor a general rule that the exercise of power by the legislature was notEamenable to judicial review. This would neither be in the letter nor thespirit of the Constitution. The touchstone, however, would not be that ofan ordinary administrative action but the legislature could not be said tohave the licence even to commit a jurisdictional error.

32. In Kalpana Mehta and Ors.[23 ]a vaccination drive conductedFby NGOs without the vaccine going through all the pre-requisite trialscaused loss of life, resulting in a parliamentary standing committee beingconstituted to inquire into the matter. The report of the standing committeewas sought to be relied on in a Public Interest Litigation dealing with theissue. The question which arose was whether such a report of a standingGcommittee could be relied upon in the judicial review. The relevantobservations for our purposes are the summary of conclusions whichdeal with the judicial review of such legislative action. It was opined thatconstitutional courts are not prevented from scrutinising the validity of 22 Supra note 15.H23 Supra note 20.

the actions of the legislature trespassing on the fundamental rightsconferred on the citizens. There could, thus, be no immunity toparliamentary proceedings under Article 105(3) of the Constitution thoughit was subject to the restriction contained in other constitutional provisionssuch as Article 122 or Article 212. The prohibition on the jurisdiction ofthe Court was restricted to the ground of irregularity of procedure but ifthe proceedings are tainted on account of substantive or gross illegalityor unconstitutionality, there would be no protection against judicial scrutiny.

33. Finally, on the issue of privileges, Mr. Salve referred to theprevalent position in some other countries regarding the exercise ofprivilege powers. It was contended that such privilege powers could notbe used to compel speech, more so when the organisation in question isan American corporation. We may notice at this stage itself that wereally do not appreciate the second limb of this submission. When thesecorporations are working within the territory of our country and aresubject to the jurisdiction of this Court, then what kind of special privilegewould they have by reason of being an American corporation or acorporation incorporated in any other country! Now turning to the twoenactments sought to be referred to by learned senior counsel – the firstone is the Scotland Act, 1998, more specifically Section 23 and theGovernment of Wales Act, 2006, more specifically Section 37. Wereproduce 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 ScottishExecutive 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—

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(b) to produce for the purposes of the Assembly (or a committeeof 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 WelshMinisters of any of their functions.

B[…]”

34. In the context of the aforesaid provisions, emphasis was laidon 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 theCministers. This in turn was sought to be linked with the argument thatwhat the Committee was seeking to perform was not a core function ofthe Assembly and thus, cannot be said to be their function. Further, ifonly 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 andDnot a matter of opinion.

35. Learned senior counsel also assailed the intent of the NewSummons as only a subterfuge. Compelling experts to give an opinion ina 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 wasEstated, reeked of constitutional arrogance. In fact, what senior counselsought to stress was that his submission was not challenging the exerciseof privilege power but the very existence of the same. In this behalf itwas stressed that the Assembly (the Committee being only a smallergroup constituted) would have to reconcile with where their powers toFsummon originate from. Entry 39 of List II (Powers, privileges andimmunities of the Legislative Assemblies) could not be a source of powerof the Assembly and the scenario was rather of a statutory source ofpower emanating from Section 18 of the GNCTD Act, which was enactedin pursuance of Article 239AA (3)(a) and (3)(b) of the Constitution.Thus, a distinction was sought to be made between a power directlyGemanating from the Constitution and one flowing from a statutoryprovision. In the given facts, this was a case of the latter, which, it wasurged would necessarily have to be tested on the touchstone of Part IIIof the Constitution. The relevant provisions are extracted hereinunder toappreciate the controversy:H

“Article 239AA (3)(a) and (3)(b)

239AA. Special provisions with respect to Delhi.—

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(3) (a) Subject to the provisions of this Constitution, the LegislativeAssembly shall have power to make laws for the whole or anypart of the National Capital Territory with respect to any of thematters enumerated in the State List or in the Concurrent List inso far as any such matter is applicable to Union territories exceptmatters with respect to Entries 1, 2 and 18 of the State List andEntries 64, 65 and 66 of that List in so far as they relate to the saidEntries 1, 2 and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers ofParliament under this Constitution to make laws with respect toany matter for a Union territory or any part thereof.”

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“Section 18 of the GNCTD Act

18. Powers, privileges, etc., of members.—(1) Subject to theprovisions of this Act and to the rules and standing orders regulatingthe procedure of the Legislative Assembly, there shall be freedomof speech in the Legislative Assembly.

(2) No member of the Legislative Assembly shall be liable to anyproceedings in any court in respect of anything said or any votegiven by him in the Assembly or any committee thereof and noperson shall be so liable in respect of the publication by or underthe authority of such Assembly of any report, paper, votes orproceedings.

(3) In other respects, the powers, privileges and immunities of theLegislative Assembly and of the members and the committeesthereof shall be such as are for the time being enjoyed by theHouse of the People and its members and committees.

(4) The provisions of sub-sections (1), (2) and (3) shall apply inrelation to persons who by virtue of this Act have the right tospeak in, and otherwise to take part in the proceedings of, theLegislative Assembly or any committee thereof as they apply inrelation to members of that Assembly.”

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A36. We may clarify at this stage that since the submissions weredrawn in the context of certain questions raised, this latter submissionreally arises in the context of privilege powers vis-à-vis the constitutionalprovisions under Part III of the Constitution which are to be consideredunder a separate section.B37. It appears that the petitioners wanted to avail of the benefit ofanother senior counsel, possibly to further buttress their submissions andthus, Mr. Arvind Datar, learned senior counsel sought to address us next,on behalf of Petitioner No. 3, Facebook Inc.

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38. Mr. Datar, in an endeavour to trace out the constitutional history,Creferred to the origin of powers and privileges by inviting our attention toSection 71 of the Government of India Act, 1935. It was stressed thatthe provincial legislatures had no powers but only privileges; they did nothave powers to punish people under that Act. Next, in the context ofErskine May’s seminal commentary on Parliamentary Practices, it waspointed out that Chapter XI deals with powers and Chapter XII dealsDwith privileges and immunities which are used interchangeably.[24] Power,however, remains, distinct. The primary power given to the House wasto make laws or legislative powers. It is these powers from the Act of1935, which are stated to have been adopted under Article 194(3) of theIndian Constitution, which applies to the State Government and everyEState Assembly.

39. Learned senior counsel submitted that Delhi is different as itis on a special footing being categorised as a Union Territory in Article239AA of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datarstressed that the powers and privileges conferred on the Delhi AssemblyFare not derived from the Constitution but by reason of statutoryenactments, i.e., Section 18 of the GNCTD Act. The privilege and powersof the Assembly are, thus, undoubtedly to be tested against Part III ofthe Constitution. These being statutory in nature, the aspect ofconstitutional balancing of powers with fundamental rights, as arose inIn Special Reference No.1 of 1964[25] and MSM Sharma[26] does notGarise in the present case. The privilege here is a “derivative” from anAct of Parliament and not from any Constitutional provision.

24 Erskine May’s Treatise on the law, privileges, proceedings, and usage of Parliament,(Sir David Natzler, 25th Edition, 2019).25 Supra note 12.H26 Supra note 14.

40. We now turn to the submissions of the respondents on thisissue, which were as vehemently argued. Dr. Singhvi, learned seniorcounsel seeking to address submissions on behalf of the Assembly,sketched out the contours of his submissions as under:

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(i) The occasion to argue privilege has not even arisen andwas premature as there was no actual notice of privilege.There was, thus, no factual matrix before the Court toanalyse the exercise of the power and what was beingsought by the petitioners qua the aspect of privilege amountedto seeking an advance ruling on the issue.

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(ii) Were the arguments of the petitioners to be accepted, itwould have wide ramifications on the working of thecommittees across the nation both at the State as well asthe Parliamentary levels. The argument of the petitioners,it was urged, had the propensity to destroy the system ofcommittees which had been found historically to do yeomanwork, possibly away from the more aggressive stances inthe Parliament.

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(iii) The petitioners could not be conferred with the privilege toappear before the kind of committees they want to appearbefore. The petitioners admittedly had appeared on morethan one occasion of a similar nature without any qualms.E

(iv) In the similar vein, the reference to the IT Act waspremature as the Assembly was not debating any legislationof the issue but only discussing a particular aspect.

(v) Arguments of the petitioners were premised on lack ofmutual respect and difference between the organs of ourdemocracy.

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(vi) Committee proceedings are House proceedings and theSupreme Court would normally never interfere with Houseproceedings and therefore also not with committeeproceedings.

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41. The obvious political divergence between Central Governmentand the State Government came out quite openly during the argumentswhere Dr. Singhvi sought to put forth the argument that the bold stand ofthe petitioners stood on a support base from the Central Government.

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AThe appearance before the Parliamentary Committee was sought to bejustified by the petitioners as being based on commercial and operationalreasons and not in view of any compulsion (an aspect disputed by learnedSolicitor General on behalf of the Central Government). The petitioners,it was argued, were actually canvassing a case on absence of anycommercial and operational consequences/compulsions rather than lackBof jurisdiction. It was, however, fairly assured and rightly so, that theAssembly and the Committee were not oblivious to the constitutionalexclusion of entries 1, 2 and 18 of List II and the respondent wouldnever contend to encroach upon this constitutional demarcation. Oneaspect which Dr. Singhvi sought to emphasise, in our view not veryCconvincingly, was that the issue of the press conference was anafterthought, raised by the petitioners to create prejudice. We say so asthe 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 whatthe Chairman of the Committee mentioned in the press conference wereviews of the persons who had deposed and not his own view per se. ToDsay the least, we find this submission very difficult to accept and we willdeal with it at the relevant stage.

42. The other aspect which Dr. Singhvi pointed out was thewithdrawal of the Second Impugned Summons and the New Summonsbeing issued, which no longer compelled Petitioner No.1 to appear beforeEthe Committee. However, this aspect has been labeled as a “subterfuge”by Mr. Salve, on account of the divergent views taken on the aspect ofwithdrawal by Dr. Singhvi and Dr. Dhavan– and surprisingly so.Consequently Dr. Singhvi will have to bear the burden of the cross forthe same.F

43. On the specific plea of privilege Dr. Singhvi commenced byseeking to establish that all committees of legislatures have the power tosummon and compel attendance. Any power, without subsidiary powersto ensure implementation, it was urged, was akin to having no power atall. The power to compel attendance by initiating privilege proceedingsGis therefore, an essential power. The argument was further supplementedwith the contention that the power of privileges was amorphous incommon law and the Parliament has consciously not codified this areaof law so that they can cater to unimagined situations in the future.

44. Dr. Singhvi, in fact, cautioned that this Court should not embarkHon the path suggested by Mr. Salve, who had argued that it was time that these privileges were codified. Dr. Singhvi urged this Court to noteven opine on the necessity of codifying such privileges and that thesame should be left to the Parliament, if they so desire without anynudge by this Court.

45. Dr. Singhvi sought to erase the distinction between the exerciseof privilege powers under the Constitution and under the GNCTD Actby putting them on the same pedestal, urging that the two together providefor the scheme of operation. Learned senior counsel referred to provisions(7)(a) & (b) of Article 239AA in the context that the GNCTD Act wasnot to be deemed to be an amendment to the Constitution for purposesof Article 368 of the Constitution notwithstanding that it may contain anyprovision which amends or has the effect of amending the Constitution.The Assembly was, thus, submitted to be a privileged body with membersenjoying freedom of speech in the House as well as freedom to vote andhad all the privileges (under Section 18 of the GNCTD Act) as areenjoyed by Members of Parliament. It was thus urged that calling intoquestion the proceedings of the Committee amounted to calling intoquestion the proceedings of the Assembly in a court of law for which thepowers were not vested. The regulation of the procedure of conduct ofbusiness was not subject to jurisdiction of the courts. In order to establishparity of the privilege powers, Dr. Singhvi drew the attention of theCourt to Article 105 of the Constitution, Section 18 of the GNCTD Actcoupled with Rule 172 of the Rules.

46. On this aspect, parity was sought to be drawn by relying onParliamentary privileges in Entry 74 of List I and that of the LegislativeAssembly 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 theAssembly are the same under entry 39 of List II as any other Assemblyin the context of Article 239AA of the Constitution. To further amplifythis aspect, learned counsel sought to draw strength from the observationsof this Court in State (NCT of Delhi) v. Union of India and Anr.[27]which comprehensively dealt with the segregation of powers betweenthe State and the Central Government in view of an ongoing conflict onvarious issues in this behalf. It was opined by this Court that all entries inList II will have full play except three specific entries which wereexcluded, i.e. entries 1, 2 & 18.

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A47. In view of Article 239AA(3)(a) the power to summon andcompel attendance was stated to be akin to that of any other legislativeassembly. Testimonies before committees were stated to be mostly underoath and the rationale for the same was that the process was solemn innature and that it would improve the quality of debate. There was statedto be no competing entry in List I and the question of repugnancy wouldBonly arise in terms of any entry in List III where there are central statutesin a given scenario. The committees of legislatures all over the country(including Delhi), thus, possess the power to compel attendance ofwitnesses as a part of their constitutionally recognized powers andprivileges and there could be no distinction based on the kind of committeeCor the type of person who is summoned in exercise of these powers.

48. We may note another submission of Dr. Singhvi where hecautioned the court against ruling in a manner wished for by the petitionerson account of its wider ramifications especially in the context ofobservations made in Kalpana Mehta And Ors.[28 ]on the importance ofDcommittees. Any hampering of the working of the committee wouldhamper the working of the Assembly as passing laws is not the onlyfunction of the Assembly. Thus, the practice of passing resolutions byAssemblies on the sense of the house would be disrupted. On thesignificance of the working of these committees, it is not necessary togo into depth as the issue has been well considered in Kalpana MehtaEAnd Ors.[29] We, thus, consider it appropriate to only extract some of therelevant 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 tosay that Congress in session is Congress on public exhibition, whilstFCongress in its Committee rooms is Congress at work.” This isbecause most of the work of Congress was referred to committeesfor detailed review to inform debate on the floor of the House.”

….….….….….….“70. The importance of Committees in today’s democracy hasGfurther been detailed thus:

“Committees may not be of much service in the more spectacularaspect of these democratic institutions, and they might not be of 28 Supra note 20.H29 Supra note 20.

much use in shaping fundamental policy, or laying down basicprinciples of government. But they are absolutely indispensablefor the detailed work of supervision and control of theadministration. Not infrequently, do they carry out great pieces ofconstructive legislation of public economy. Investigation of acomplicated social problem, prior to legislation, maybe and isfrequently carried out by such legislative committees, the value ofwhose service cannot be exaggerated. They are useful forobtaining expert advice when the problem is a technical oneinvolving several branches within an organization, or when expertsare required to advise upon a highly technical problem definablewithin narrow limits. The provision of advice based on an inquiryinvolving the examination of witnesses is also a task suitable for acommittee. The employment of small committees, chosen fromthe members of the House, for dealing with some of the items ofthe business of the House is not only convenience but is also inaccordance with the established convention of Parliament. Thisprocedure is particularly helpful in dealing with matters which,because of their special or technical nature, are better consideredin detail by a committee of House. Besides expediting legislativebusiness, committees serve other useful services. Service on thesecommittees keeps the members adequately supplied withinformation, deepens their insight into affairs and steady theirjudgment, providing invaluable training to aspirants to office, andthe general level of knowledge and ability in the legislature rises.Committees properly attuned to the spirit and forms parliamentarygovernment can serve the country well as the eyes and ears andto some extent the brain of the legislature, the more so since thefunctions and fields of interest of the government increase day byday.”

49. Dr. Singhvi concluded by emphasising that not a single judicialprecedent had been cited from our country or outside where the Courthad intervened at the stage of summoning of a witness by the legislature(sub-committee). Reliance was placed on the judgment of the MadrasHigh Court in C. Subramaniam v. The Speaker, Madras LegislativeAssembly.[30 ]In this case, on a speech being made by a former Memberof the Madras Assembly a show-cause notice was issued by the Speaker ABC

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Aof the Assembly as to why his conduct should not be treated as a breachof privilege. The endeavour to assail the notice was rejected by the FullBench of the High Court, on the short ground that it was premature atthat stage as no action had been taken. It was held to be akin to a writ ofprohibition restraining the Speaker of the Legislative Assembly fromproceeding further, which was virtually on the ground of absence of anBab initio jurisdiction. It was further opined that the power vested underArticle 194(3) of the Constitution empowered the Speaker with the rightto call upon a third party like the writ petitioner to show cause against analleged breach of privilege by way of contempt. In the facts of the presentcase, it was urged, even a show cause notice had not been issued as theCPetitioner had only been called upon to depose. Thus, there was noteven an initiation of any privilege proceedings.

50. We now turn to the arguments of Dr. Rajeev Dhavan on behalfof the Committee which sought to intervene in the present proceedings.We may note at the threshold that the Committee is really a creation ofDthe Assembly, but it appears that like the petitioners, the respondentswanted assistance of more than one counsel in the belief that it wouldfurther advance their case. In the process, as noticed above, somecontradiction of stand came into being regarding the implication of theissuance of the New Summons and withdrawal of the old one.

E51. Dr. Dhavan laid great emphasis on the main functions of theCommittee as enunciated, taking a cue from its very description as a“Peace and Harmony Committee.” The main functions, thus, were toconsider viewpoints across society about prevalence of such a situationwhich had the potential to disturb communal peace and harmony or wherecommunal riots had occurred and to examine in detail and identify theFfactors responsible for it. This was coupled with the mandate to undertakescientific study on religious, linguistic, and social compositions of thepopulation of Delhi NCR, with a view to identify and strengthen thefactors which unite people despite their diversity. The Committee alsosought to recommend measures to be undertaken by the governmentGtowards establishing communal harmony and peace in the State. Wemay note with some trepidation Dr. Dhavan’s submissions while seekingintervention that even if a writ was issued to the Assembly it could notbe deemed to have been issued to the Committee because the Committeewas an autonomous body which would eventually report to the Assemblyand thus, enjoys a separate legal existence. Suffice for us to say at thisH

stage that if the Committee is the creation of the Assembly and seeks toderive its powers and strength from the Assembly, it is surprising to notea submission that the -Committee would not be bound by a direction ofthis Court if it was not specifically made a party. Be that as it may, wedid permit the Committee to intervene and to that extent there was noobjection from Mr. Salve.

52. The initial rebuttal to the challenge is based on the anticipatorynature of the proceedings, being presumptive and pre-emptive. Thereare several stages of scrutiny before a breach of privilege notice is evenissued; much less any conviction arising from such a breach of privilege.

53. It was further contended that no factual basis had been laidfor the concerns regarding the First and Second Impugned Summonsand the press conference. Fundamental rights could not be said to beviolated by a mere issuance of summons. There was stated to be lack ofspecificity of any claim of mala fides which could not be general incharacter but must be specifically pleaded and proved by all materialparticulars in relation to the persons concerned.[31] This was an aspectabsent in the present case. Dr. Dhavan categorised the writ petition as aSLAPP (Strategic Lawsuit Against Public Participation), engineered tosilence the Committee and interfere with the democratic process.

54. Dr. Dhavan clarified the statements made by Mr. RaghavChadha during the press conference on 31.08.2020 to contend that itwas merely a summary of the complaints received by the Committee.They were stated not to represent the Chairman’s views, the Committee’sconclusions or the scope of the Committee’s functions. The Committeehad not suo moto decided that the petitioners were responsible for causingdisharmony. It had received complaints from several different people,who specifically attributed the disharmony caused by the riots in Delhito Facebook. The statements made in the press conference were, thus,not made in bad faith and were simply repetitions of the depositionsmade to the effect that Facebook may have had a role in the riots.

55. The contention on the Committee’s Terms of Referencerecommending criminal action was stated to be “toothless.” Thus, in asense what was conceded was that the said part of the Committee’sTerms of Reference (i.e. in paragraph 4(vii)) was “otiose.” The 31 State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566; K. Nagraj v. State ofAndhra Pradesh (1985) 1 SCC 523.

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ACommittee could, at best, make recommendations. Whether criminalaction was, in fact, initiated was entirely the remit of the police or thejudiciary and in that context no real threat was made to the petitionerseither by the Terms of Reference or by the impromptu statements madeby the Chairman in the press conference.

B56. The aforesaid submissions, in our view, may have mollifiedthe petitioners though apparently not Mr. Salve. As per his submissions,all the aspects would have to be read together to come to a conclusionwhether the petitioners had a real concern to approach the Court or not.We say so in the context of the Terms of Reference which includedrecommending criminal action, the utterances of Mr. Raghav Chadha inCthe press conference (undoubtedly in the background of the depositionsbefore the Committee) and the limitation on the legislative domain bycarving 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 syncDwith what Dr. Singhvi had argued, i.e., in view of the judicial observations,these committees are the eyes and ears of the Parliament, essential forthe democratic polity. The functions performed by the committees arepart of the core legislative functions of State Assemblies, which mayinclude (a) supervising administration, (b) taking evidence on legislation,Eand (c) dealing with a crisis or governance generally. In that context, Dr.Dhavan pointed out that the petitioners had not challenged the constitutionof the Committee itself or its Terms of Reference. The petitioners hadalso not challenged the summons issued by the Parliament despiteParliament’s threat to initiate breach of privilege proceedings in casethey refused to appear. As such, Facebook could not be said to have anyFissues while appearing before the Parliamentary Committee. The roleof intermediaries in governance was relevant and the testimony of thepetitioners was important in that context. The refusal was sought to belabeled down as one relating to “political reasons.”

58. Dr. Dhavan then turned to the aspect of the distinction drawnGby Dr. Singhvi between members and non-members in the context ofthe legislature’s power to summon witnesses or initiate breach of privilegeproceedings. He canvassed that no rule existed as per which non-members have the power to refuse a summons issued by a legislativecommittee. The core function of the legislature is democracy and notHjust to legislate, an aspect we agree with. Thus, it was the obligation of

every person to cooperate with the legislature and appear when requestedto assist in the realisation of this core function. There were several waysin which the legislature may seek democratic participation, one examplewas appearance before committees.

59. In support of the aforesaid plea, Dr. Dhavan illustrated theproposition by giving instances of notices issued to non-members whichalso form a subject matter of a treatise by Dr. Dhavan “Only the GoodNews: On the Law of the Press in India” published in 1987.

“-Thaniram (1975), (1975) XX P.D. (No.2) 49 (KeralaLegislative Assembly) – Reprimand to person whoquestioned the partiality of Speaker.

-Satyayug (1977), (1977) XXII P.D. (No.1) 18 (West Bengal)– The West Bengal Legislature was maligned and thefeature 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 bythe Legislature for accusations of harassing educationalinstitutions.

-Nagrik (1978), (1981) XXVI P.D. (No.1) 19 (Tripura) – Aneditor, who criticized the alleged leak of a budget by theChief 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 proceedingsagainst a speaker for allowing discussion on sub judicematters caused the Committee to recommend imprisonmentof a person.”

60. On the constitutional status of the Assembly, Dr. Dhavan soughtto make a distinction between all Union Territories on the one hand, andDelhi and Puducherry on the other. A second distinction was madebetween the Delhi and the Puducherry Legislative Assemblies. Thesignificant distinction was stated to be that while the PuducherryLegislative Assembly was empowered by Article 239A, the DelhiLegislative Assembly was created through an exercise of constituentpower by the 69[th] Amendment Act, 1991. Thus, while Article 239AAexcluded police power and public order from the scope of the Assembly’scompetence, that did not detract from it being a full-fledged working A

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ALegislative Assembly similar to the Parliament. This aspect was statedto be reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’sview, the powers of privilege of the Assembly could be traced to Article239AA(2) & (7) of the Constitution, Section 18(3) of the GNCTD Actand Rules 160 and 172(4) of the Rules. Dr. Dhavan drew strength fromArticle 212(1) to canvas that the Constitution grants internal autonomyBto each House of the State legislature and the validity of any proceedingscannot be questioned on an allegation of “irregularity of procedure.”[32]There were conceded to be limitations to Article 212(1) of the Constitutionand this Court had held that interference with the internal functioning ofthe State Legislative Assemblies can only be limited to cases of “grossCillegality and unconstitutionality.”[33] No such illegality having occurred inthis case and only a summons being issued, no proceedings for breachof privilege had been initiated and no question had been asked. As suchthere was no occasion whatsoever to call for interference by this Court.

61. Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasisedDon the sui generis nature of parliamentary powers and privileges andvehemently opposed the suggestion that these privileges needed to becodified. The powers and privileges of the legislature do not require alaw and learned senior counsel sought to repel the argument of Mr.Salve that the amorphous nature of privileges offends the law and dueprocess. It would not amount to claiming privilege as they want, as theESupreme Court has recognized a “Lakshman Rekha” to confine theextent and exercise of their powers.[34] There could be many other legalconcepts that are similarly amorphous or in HLA Hart’s language “opentextured.” This would not amount to ipso facto undermining the credibilityof these concepts or reducing the importance of the meaning given toFthem by the Supreme Court. Thus, at this stage, the only question waswhether a simpliciter issuance of summons from a sub-committee wasconstitutionally 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 supportedGlearned counsel for the respondents on the power of the Parliament andAssemblies per se to summon but that would be subject to judicial review.However, his next submission was in sync with the submission of the

33 Supra notes 12 and 15.H34 Supra note 12.

petitioners that the Assembly lacks legislative competence to deal withthe subject matter in question. That being his submission, it was felt thata complete argument on privilege was not required to be considered. Insubstance, his contention was that the summonses could not have beenissued because of lack of legislative competence but if the Assemblyhad the legislative competence, then the principles as enunciated bylearned counsel for the respondents were the correct principles.

Privileges, Free Speech and Privacy

63. We have dealt with the aspect of rival contentions arisingfrom the privilege of the House to summon a person, to compel them togive evidence on matters of fact, and seek their opinion – which are thefirst two questions framed by Mr. Salve under the head of privileges asaforesaid. Having done so, we proceed to the third question dealing withthe interesting aspect of privileges vis-à-vis an individual’s right to privacyand free speech.

64. We may at the threshold note that Mr. Salve had to deal withthe aspect raised by the respondents on the petition being premature –both in the context of privilege per se and in the interaction betweenprivileges and fundamental rights.

65. Mr. Salve strongly refuted the plea of the petition beingpremature on the basis of the summonses issued by the Committee whereit was threatened that “necessary action” would be taken against thepetitioners for breach of privilege if they do not appear. He submittedthat even a threatened breach of fundamental rights is sufficient toinvoke jurisdiction of this Court under Article 32 of the Constitution.[35]Further elucidating on this aspect, Mr. Salve submitted that access tojustice is a human right available where there is even a threat to personalliberties.[36] In that context, he stated that the Second Impugned Summonsleft no room for doubt that Respondent No. 2 was determined that thefailure to appear would constitute a breach of privilege for which “necessaryaction” will be taken, which included the risk of arrest and imprisonment.This argument arose from the plea of Mr. Salve that the petitioner had aright to not appear and in the alternative a right to remain silent if he soappears.

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.

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A66. In view of the aforesaid fact and the plea that the summonsitself was without jurisdiction, it was submitted that the threat of coerciveaction is itself without jurisdiction and a person need not wait for injuryto occur before seeking the Court’s protection.[37] Mr. Salve emphasisedthe importance of the observations made in S.M.D. Kiran Pasha v.Government of A.P. and Ors., where the Court recognized that “if aBthreatened invasion of a right is removed by restraining the potentialviolator from taking any steps towards violation, the rights remainprotected and the compulsion against its violation is enforced.”[38]Mr. Salve further relied on Bengal Immunity Co. Ltd. v. State of Biharand Ors., wherein the Court observed “It is, therefore, not reasonableCto expect the person served with such an order or notice to ignore iton the ground that it is illegal, for he can only do so at his own riskand peril.”[39] The certainty of a legal proposition qua the right of a personwas, thus, emphasised by this Court observing “a person placed in sucha situation has the right to be told definitely by the proper legalauthority exactly where he stands and what he may or may not do.”[40]D

67. The plea raised by Mr. Salve is on the premise that even if aright of privilege validly accrued, the same would have to be narrowlyconstrued and reconciled with the petitioner’s right under Part III of theConstitution . The First and Second Impugned Summons addressed toPetitioner No.1 explicitly stated that it was so addressed to him as theEone “spearheading Facebook”, and thus, no option was left to Facebookto decide who would appear before the Committee. Of course, with therecall of the Second Impugned Summons and the issuance of the NewSummons; this aspect urged before the recall of the first notice wouldnot really survive.F

68. Learned counsel, once again, took us to Article 194(3) of theConstitution to contend that it provided that privilege powers would, fromtime to time, be defined. The submission was that the Constitution makershad envisaged a clear ambit to be defined for privilege powers, whichhas unfortunately never happened. That is why, the plea has been madeGto the effect that either this Court defines the privilege power or direct/request the legislature to at least consider the issue of defining these 37 Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412.38 (1990) 1 SCC 328, at para 14.

39 (1955) 2 SCR 603 at para 7.

H40 Ibid.

privilege powers on the pari materia basis as in Scotland and Wales. Inthe context of the language of Article 194(3), it was submitted that onlysuch privileges are available to legislatures that can be exercised withoutimpinging on fundamental rights.

69. In the conspectus of this general proposition, it was urged thatthe summons issued to the petitioner violated his right to remain silentwhich was not limited to Article 20 (which was inapplicable by virtue ofthese not being criminal proceedings); but also implicit in his rights underArticle 19(1)(a) and Article 21 of the Constitution. The right of personalautonomy has been held by this Court to include aspects of the choicebetween speaking and remaining silent.[41]

70. The summons per se, as per the submissions, were violativeof the petitioner’s right against arbitrary State action under Articles 14,19, and 21 of the Constitution. Learned counsel was conscious of thejudgment of this Court in MSM Sharma[42] and the view expressed thereinabout powers, privileges, and immunities available in terms of Articles105(3) and 194(3) of the Constitution. The Court had taken the viewthat such powers, privileges, and immunities stood in the same positionas Part III of the Constitution and that the fundamental right to freespeech and expression under Article 19(1)(a) must yield to Article 194.Mr. Salve sought to distinguish this proposition in view of subsequentjudicial developments. The principle propounded was submitted to havebeen eroded by subsequent constitutional developments as per whichthe right to free speech under Article 19 was to be seen as part of atrilogy of rights along with Articles 14 and 21, and the rights no longerexisted in silos. It was thus, his contention, that the fundamentalproposition that privileges can override Article 19 but not Article 21 stoodoverruled in view of the judicial pronouncements in Maneka Gandhi v.Union of India[43] and R.C. Cooper v. Union of India[44]. It would berelevant to reproduce para 6 of Maneka Gandhi[45] as it traces theconstitutional development in this regard through various judicialpronouncements as under:

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 14.43 (1978) 1 SCC 248.44 (1970) 2 SCC 298.45 Supra note 43.

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A“6. We may at this stage consider the interrelation betweenArticle 21 on the one hand and Articles 14 and 19 on theother. We have already pointed out that the view taken by themajority in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR88 : 51 Cri LJ 1383] was that so long as a law of preventivedetention satisfies the requirements of Article 22, it would beBwithin the terms of Article 21 and it would not be required tomeet the challenge of Article 19. This view proceeded on theassumption that “certain articles in the Constitution exclusivelydeal with specific matters” and where the requirements of anarticle dealing with the particular matter in question areCsatisfied and there is no infringement of the fundamental rightguaranteed by that article, no recourse can be had to afundamental right conferred by another article. This doctrineof 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 thenDwas, dissenting. The majority Judges held that though a lawof preventive detention may pass the test of Article 22, it hasyet to satisfy the requirements of other fundamental rightssuch as Article 19…”

71. We may note in the end an aspect which was raised in theEwrit petition, but not really contended on behalf of the petitioners: a similarquestion related to the interplay between the State Legislature’s privilegepowers under Article 194(3) and a non-member’s fundamental rightswas pending before a 7-Judge Bench of the Supreme Court in N. Raviv. Legislative Assembly[46] on account of a perceived conflict betweenFMSM Sharma[47] and Special Reference No.1 of 1964[48]. Dr. Singhvimentioned this issue only to distinguish and state that N. Ravi[49] was acase that related to the conviction of a non-member which is not so inthe facts of the present case.

72. Dr. Singhvi, on behalf of Respondent No.1, once again, at theGthreshold submitted that akin to the privileges issue, this issue is alsopremature as no coercive action has been taken against the petitioner 46 (2005) 1 SCC 603.47 Supra note 14.48 Supra note 12.H49 Supra note 46.

and none was intended if the authorised representative fairly attendedand participated in the proceedings as a witness. The transparency ofthe proceedings was sought to be emphasised as there was a livebroadcast and therefore there could be no question of any apprehensionin respect of the proceedings.

73. Learned counsel also sought to assail the maintainability ofthe writ petition because Petitioner Nos. 2 & 3 are not citizens of Indiaand no shareholder had been impleaded as a petitioner. But then onemust note that the initial summons was sent to Petitioner No.1, who is acitizen of India, albeit holding an office in Petitioner No.2 organisation.Subsequently, the summons issued to him was withdrawn and re-wordedsummons was issued. However, the parties had agreed to proceed onthe basis of existing pleadings and questions raised. We are thus, notinclined at the threshold itself to look into this contention with anyseriousness.

74. Insofar as the submission about the summons issued toPetitioner No.1 is concerned (even though summons was withdrawn), itwas urged that a witness could not claim his right to remain silent or tobe let alone in response to a summon to depose before a lawful committeeof an empowered legislature. Such a right was not a fundamental rightunder Article 20 of the Constitution unless a person is an accused; aswas the case in Selvi[50] which involved rights of an accused in context ofnarco analysis and other tests. Petitioner No.1, and for that matter anyonewho deposes, is not an accused. There is no conflict between Article19(1)(a) of the Constitution and Rule 174 of the Rules. The right toremain silent is relevant only in criminal investigations. The proceedingsbefore the Committee are not criminal or judicial proceedings. There isno accused before the Committee. All persons who appear before it arewitnesses and subject to examination by the members as per the Rulesof the House. These Rules have been made in exercise of the powersconferred under Section 33 of the GNCTD Act, which in turn draws itsstrength from Article 239AA(7) of the Constitution. Thus, it was submittedthat the mere summons to give expert deposition before the Committeeon the issues falling within the remit of the Committee cannot be said tobe a violation of any fundamental rights so as to invoke Article 32 of theConstitution. We may note at this stage that the third issue we will deal A

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Awith is the perceived remit of the Committee and whether the remit hasthe sanction of the Constitution in the context of division of subject matterunder the three Lists of the 7[th] Schedule.

75. The distinction between members and non-members carvedout by Mr. Salve was sought to be brushed aside by Dr. Singhvi byBsubmitting that there was no such distinction as Article 105(4) uses theexpression “in relation to persons”. The apprehension about self-incrimination was also urged to be misconceived in view of the constitutionalprotection envisaged under Article 105(2) of the Constitution.

76. Dr. Singhvi then engaged with the arguments of the petitionersCregarding encroachment of fundamental rights, the submissions originallyaddressed by both parties being in the context of Petitioner No.1. In thisregard, it was submitted that not even a prima facie case was establishedfor the breach of any fundamental right. Petitioner No.1 had not beensummoned to speak as a private individual but to speak on behalf ofPetitioner No.2. Only a shareholder could have asserted the right onDbehalf of Petitioner Nos. 2 & 3, as they were corporate entities, becauseindividuals’ rights are not to be subsumed in the company.[51]

77. We may note that surprisingly, Dr. Singhvi sought to urge thatPetitioner No.1 has not been summoned to speak as a private individualbut to speak for Petitioner No.2. We are saying this is surprising becauseEthe New Summons also permits any suitable officer to speak on behalfof Petitioner No. 2 and if a shareholder can urge a right under Article 32of the Constitution, we fail to appreciate why an officer of a corporationto the extent he has been asked to speak cannot urge this aspect. TheFirst and Second Impugned Summons were specifically addressed toFPetitioner No.1 and only during the course of arguments, facing certaindifficulties (which somehow Dr. Dhavan did not consider relevant) theinitial summons was withdrawn and a new summons issued.

78. The more relevant submission is that in the context of Article21, at this stage, only a summons to appear was issued and there was noGquestion of restriction of personal liberty. The proceedings were not forbreach of privilege. No coercive action was taken or was intended ifPetitioner No.1 (or any other officer) merely appeared and assisted theCommittee as a witness. On the issue of right to privacy under Article 51 Supra note 44; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788; DivisionalHForest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238.

21, it was urged that Article 21 itself would have to be read as confinedto a person while a corporation has no personhood.[52]

79. The argument of Mr. Salve, based on the trilogy of rightsunder Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out ofcontext in the present case as the Constitution sets clear parameters forthe applicability of certain fundamental rights. Article 19 is still availableonly to citizens. Article 21 is available only to humans who are capableof having personhood and Article 19(1)(a) continues to be unavailablewhen legislative privilege is invoked especially if the legislatures are tofunction effectively. In that context it was urged that the ratio of thedecisions in MSM Sharma[53] and In Special Reference 1 of 1964[54]still hold good. On the right to remain silent, it was urged that this wasnot a right protected under Article 19(1)(a) of the Constitution as it wasnot a general right; and if at all this right had to be pleaded, it was to bebefore the legislature which had summoned Petitioner No. 1, and notbefore the Supreme Court. If silence is to be pleaded for a good reasonin response to a specific question, that request should be dealt with bythe Committee as per applicable rules. Reliance in the petition on thepending reference in N. Ravi[55] would be of no avail to the petitioners asthere has been no punishment for any breach so far, making the presentcase distinguishable.

80. Dr. Dhavan while advancing his case on behalf of theCommittee sought to lift the corporate veil between Petitioner Nos. 1 &2, as the true petitioner is Facebook and not Ajit Mohan. The purpose ofthe summons was to seek Facebook’s assistance regarding its role as asocial media platform/intermediary in a situation like the Delhi riot, wherepersons had deposed before the Committee and pointed out theaggravation which had taken place because of platforms like Facebook.The summons had been issued to Facebook’s senior representative whocould be of assistance and the summon itself had made it clear that thisnotice was issued to Facebook India, not to a specific individual: inasmuchas the notice was issued to Petitioner No.1 in his capacity as arepresentative of Facebook. Thus, it was contended that neither Article 52 Chiranjit Lal Chowdhury v. Union of India 1950 SCR 869; Petronet LNG Ltd. v.Indian Petronet Group and Anr. (2009) 158 DLT 759.

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A32 nor Article 19(1)(a) of the Constitution were available to the petitionersas these rights do not extend to corporations. This was stated to be ofsignificance as the petitioner had claimed the right against compelledspeech under Article 19(1)(a) of the Constitution. As far as corporationsare concerned, there are no personal liberties for corporations thoughthey have certain responsibilities.[56]B

81. Learned counsel took us through Article 194(3) to emphasisethat it has two parts. The first part deals with privileges being enactedstatutorily, 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 ofpre-1979 cases authoritatively discussed which fundamental rights areCattracted in relation to a breach of privilege.[57 ]MSM Sharma[58] declaredthat the relevant portion of the Ganupati Keshavan Reddy[59] was obiterand therefore not binding. Thus, it was submitted that the correct legalposition regarding privileges and fundamental rights was laid down inMSM Sharma[60 ]and Special Reference No. 1 of 1964[61]; i.e., ArticleD19 of the Constitution does not apply to exercise of privileges underArticle 194(3). The relevant portion of the judgment in MSM Sharma[62]as part of para 27 is extracted as under:

“27. .…Article 19(1)(a) and Art. 194(3) have to be reconciledand the only way of reconciling the same is to read Art.E19(1)(a) as subject to the latter part of Art. 194(3), just asArt. 31 has been read as subject to Art. 265 in the cases ofRamjilal v. Income-tax Officer, Mohindargarh (1) andLaxmanappa Hanumantappa v. Union of India (2), where thisCourt has held that Art. 31(1) has to be read as referring todeprivation of property otherwise than by way of taxation. InFthe light of the foregoing discussion, the observations in theMadhya Bharat case (3) relied on by the petitioner, cannot,with respect, be supported as correct. Our decision in 56 Supra notes 44 and 51.G57 Ganupati Keshavan Reddy v. Nafisul Hasan AIR 1954 SC 636 (“the Blitz case”);Supra note 14 (“the Searchlight case”); Supra note 12 (“the Legislative Assemblycase”).

61 Supra note 12.H62 Supra note 14.

AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITALTERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Gunupati Keshavram Reddy v. Nafisul Hasan (4), also reliedon by learned advocate for the petitioner, proceeded entirelyon a concession of counsel and -cannot be regarded as aconsidered opinion on the subject. In our judgment theprinciple of harmonious construction must be adopted andso construed, the provisions of Art. 19(1)(a), which aregeneral, 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 disputedMr. Salve’s case that Articles 14, 19, & 21 of the Constitution wereintegrated by R. C. Cooper[63] and Maneka Gandhi[64] into one singleright. He submitted that the effect of these cases was only to createIndia’s due process as far as constitutional limitations are concerned.Each of these rights have their own independent existence andcorrespondingly their own independent limitations. The golden triangledoes not invalidate the cases ruling that Article 194(3) of the Constitution,though subject to Article 21, was not subject to Article 19 of theConstitution. The argument of Mr. Salve was, thus, pleaded to beoverstated and contradictory.

83. In the end it was contended that no fundamental right wasviolated by issuance of summons to the petitioner.

84. Suffice to say that so far as learned Solicitor General isconcerned no specific arguments were addressed in this behalf exceptthat he drew attention of this Court to N. Ravi[65].

Legislative Competence

85. Elaborate submissions were addressed on the first three aspectsby Mr. Salve even though one of the primary issues was whether it wasmore speculative in character and premature, as at this stage of theassailed proceedings only summons had been issued to the petitioners.The bedrock of Mr. Salve’s submissions was based on the alleged lackof legislative competence of the Assembly and consequently of theCommittee to look into the subject matter qua which the notice had beenissued to the petitioners. The submission, thus, was that in the absence

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Aof any such legislative competence, the petitioners were entitled toapproach the Court at this stage itself rather than being compelled towait for further progress in the proceedings.

86. There were three limbs of this submission. The first limb wasin respect of the statutory enactments, i.e., the IT Act, enacted by theBParliament under List I, governs and regulates Facebook. This could notbe an aspect with which the State Government was concerned. In fact,this was stated to be the reason why the petitioners had willinglycooperated and appeared before the Parliamentary Committee in thepast. The second limb was based on the subject matter which theCommittee wanted to go into, even though it had been specifically denudedCof the power as those subject matters fall within the jurisdiction of theCentral Government under Entry 31 (Communications) and under Article239AA(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 issuesand is based on the unique status of Delhi. He argued that the constitutionalDscheme specifically took away certain subject matters which wouldnormally fall in List II and would ordinarily be dealt with by a StateAssembly. However, in Delhi’s case, these powers were conferred onthe Central Government.

87. He then took us through the provisions of the IT Act to contendEthat it is undisputed that Facebook was an intermediary within thedefinition of the IT Act. Section 2(1)(w) of the IT Act definesintermediaries as under:

“2(1). In this Act, unless the context requires otherwise, Fxxxxxxxxxxxxxxxxxxxx

[(w) “intermediary”, with respect to any particular electronicrecords, means any person who on behalf of another personreceives, stores or transmits that record or provides any servicewith respect to that record and includes telecom service providers,Gnetwork service providers, internet service providers, web-hostingservice 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 regardsthe role of intermediaries during such law and order problems, Mr. Salvecontended that this aspect was covered by the power to issue directionsH

to block public access to any information and was thus, squarely coveredby Section 69A of the IT Act.

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89. The aforesaid provision and its role was not a grey area inview of the judicial pronouncement of this Court in Shreya Singhal v.Union of India.[66] Thus, a well-developed procedure to deal with suchissues was already in place and consequently, the matter was an occupiedfield by the Central Government.

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90. Another issue raised by Mr. Salve was that the legislativedomains of “public order” and “police” both stood explicitly outside thecompetence of the Assembly. It was contended that recommendationsin matters which fall within List I or which do not fall within List IIcannot be said to be legislative functions. It was stressed that the purposefor which the summons was issued, and the issue sought to be addressedby the Committee were aspects of public order and therefore they werenot primary functions of the Assembly.

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91. The utterances in the press conference were pointed out tocontend that it was amply clear that the purpose behind its exercise wasto file a supplementary chargesheet which was alien to the powers ofthe Assembly.

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92. The endeavour of Respondent No.1 had been confirmed inthe reply filed by the respondents to compel Petitioner No.1 to testify asan expert witness as part of its decision “to delve into the matter ofconcern raised in the complaints (about Facebook)”. The complaints,in turn, dealt with content allegedly posted on Facebook and how theycontributed to the Delhi riots. By respondents’ own pleadings, theendeavour of compelling Petitioner No.1 to appear before it was infurtherance of the following:

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a.Examine testimonies relating to Facebook’s alleged role inthe Delhi riots; b.Examine instances of inaction/inability on the part of socialmedia platform (Facebook) to enforce its policies againstGhateful content;

c.Seek views of Petitioner No.1 as a representative ofFacebook to understand Facebook India’s internal policiesand their implementation.

Ad.Ascertain (Petitioners’) views on the question whether thesaid company’s platform has contributed to the Delhi riotsand also how these platforms could be used to strengthenunity among the citizens of Delhi in the future.

93. Conscious of the line sought to be adopted by the respondentsBby referring to “Cooperative Federalism”, Mr. Salve contended that thesame was misconceived as it arose in a factual matrix where the Unionand the State exercise overlapping powers. The exercise of power bythe Assembly in question had no connection with any such area of overlap.He argued that cooperative federalism cannot be converted into anindependent head of power in addition to the powers conferred by theCstatute. In this regard reference was made to two judicial pronouncementsin K. Lakshminarayan v. Union of India & Anr.[67] and State (NCT ofDelhi) v. Union of India[68].

94. In order to appreciate what is meant by “cooperativefederalism” in the context of what appears to be a continuous judicialDbattle between the Central Government and the State Government hasbeen enunciated in State (NCT of Delhi) (2018), where the Courtencouraged walking hand-in-hand even if there are different politicaldispensations in power. We do believe and may note at this stage thatsuch hope has been repeatedly belied! The enunciation of the principleEis set out in para 119 as under:[69]

“119. Thus, the idea behind the concept of collaborative federalismis negotiation and coordination so as to iron out the differenceswhich may arise between the Union and the State Governmentsin their respective pursuits of development. The Union GovernmentFand the State Governments should endeavour to address thecommon problems with the intention to arrive at a solution byshowing statesmanship, combined action and sincere cooperation.In collaborative federalism, the Union and the State Governmentsshould express their readiness to achieve the common objectiveand work together for achieving it. In a functional Constitution,Gthe authorities should exhibit sincere concern to avoid any conflict.This concept has to be borne in mind when both intend to rely on 67 (2020) 14 SCC 664.

H69 Supra note 27 at para 119.

AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITALTERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

the constitutional provision as the source of authority. We areabsolutely unequivocal that both the Centre and the States mustwork within their spheres and not think of any encroachment. Butin the context of exercise of authority within their spheres, thereshould be perception of mature statesmanship so that theconstitutionally bestowed responsibilities are shared by them. Suchan approach requires continuous and seamless interaction betweenthe Union and the State Governments. We may hasten to add thatthis idea of collaborative federalism would be more clear whenwe understand the very essence of the special status of NCT ofDelhi and the power conferred on the Chief Minister and theCouncil of Ministers on the one hand and the Lieutenant Governoron the other by the Constitution.”

95. Thus, Mr. Salve contended that while the Court has touchedon the concept of collaborative federalism, it has also simultaneouslyobserved in “absolutely unequivocal” terms that both the Centre and theState 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 anencroachment by relying on the larger principle of cooperative federalism.

96. An important aspect has, once again, been emphasized in K.Lakshminarayan[70], that the Assembly can seek to exercise power asconferred under the GNCTD Act, promulgated by the Parliamentexercising its residuary powers under Entry 74 of List I. In that contextit was emphasised that there is a difference between Articles 239A and239AA of the Constitution. The former is with respect to the UnionTerritory of Puducherry, which simply provided purely enabling provisionswhile the latter contained extensive provisions among which sub-clause(7) empowered the Parliament to legislate and give effect to all theprovisions. Mr. Salve assailed the endeavour of the Assembly to “clutchat a jurisdiction that is not available”.

97. In response to the Court’s queries arising from the earliersummons being superseded by the New Summons, the respondents’contention that the aspect of privilege had not arisen, and whether thepetitioners could claim to be an unaccountable platform; Mr. Salvecontended that the petitioners were ready to comply with any Indian lawand had been doing so. What they were not desirous of doing was to be A

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Adrawn into an aspect of political divide. To emphasise this point he referredto a letter dated 01.09.2020 by the Union Communication Minister alleginginter alia that Facebook India was leading a concerted effort to shrinkthe 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 thatthere was a pro-Government or a pro-right bias of Facebook while theBCentral Government claimed the opposite – the common factor beingthat both positions were for their respective political reasons by allegingbias against the petitioners albeit from different sides. Mr. Salve’scontention was that an Assembly must limit itself to its core function oflegislation. Even if it were to summon a witness, this must be in relationCto matters that were within its ambit as demarcated by the Court in thejudgment of State (NCT of Delhi) v. Union of India[71]. This judgmentmade it clear that in reference to the Code of Criminal Procedure,1973, the powers in relation to the Entry of public order were conferredon the Parliament and consequently denuded from the powers of the DAssembly. In that context, even if the widest amplitude was given tothe Entries, that was with the objective of not restricting the legislativecompetence of the Parliament or the Assembly in a field which they inprinciple were competent to legislate. In the present case, one wasconcerned with the powers of the Central Government vis-à-vis theState Government and therefore the principle of widest meaning ofEentries could not result in overlapping powers as that can hardly beconducive to administrative exigencies. That it was so was obviousfrom the submission of the learned Solicitor General who contendedthat the doctrine of pith and substance would have to be applied to thereading of the entries while dealing with them to demarcate theF‘Lakshman Rekha’ for the Parliament and the State Assemblies. Inthe context of the controversy, it was urged, that allowing such widereading 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;Gwhich was a telltale sign that the New Summons was only subterfuge toget 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.

H71 Supra note 27 and Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259.

99. Mr. Datar, learned senior counsel for Petitioner No.3, onceagain, supporting the stand of Mr. Salve sought to urge that any powersor privileges were in turn circumscribed by the legislative competenceof the Assembly. Thus, any powers or privileges have to be exercisedwithin the assigned legislative fields. He sought to draw strength fromMay’s Commentary as also the Commentary of Kaul and Shakdher inthis context where it was observed in the former “Disobedience to theorder of a committee made within its authority is a contemptof theHouse.” (emphasis supplied).[72] In the latter it was observed“Disobedience to the orders of a Committee of the House is treatedas a contempt of the Houseitself, provided the order disobeyed is’within the scope of the Committees authority…” (emphasis supplied).[73]Learned counsel thereafter turned to the judicial precedents in thisregard.[74]

100. He submitted that the powers and privileges are controlledby the basic concepts of the written Constitution which could be exercisedwithin the legislative fields allotted to their jurisdiction by the three listsunder the 7[th] Schedule; and the legislatures were not competent to travelbeyond the lists.[75]

101. It was, thus, contended that if a primary legislation can bestruck down for being outside the legislative domain, then a committeecannot be formed to deal with such matters. Thus, it was argued that therespondents could not say that they had the power to go into a rovingand fishing inquiry before the Committee relating to all perceived fieldsbased on a belief that the State Assembly deals with the core functionsin Delhi. Its legislative competence by various entries should not be readin 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 UnitedStates to analyse the similar federal structure of governance in bothIndia and USA. The cases dealt with enquires by the Congress.

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 notes9 and 15.

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A103. In Watkins v. United States[76] it was observed that “noenquiry is an end in itself, it must be related to a legitimate task ofCongress.” Thus, academic enquiries cannot be undertaken – it is onlywhat is within the powers of the Congress that can be enquired into.“Broad is the power of inquiry, but not unlimited.”[77] Such power ofenquiry of the Congress is limited to its “legitimate tasks”, which wouldBimply legislative competence in the present case.

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104. We may note at this stage that a plea was advanced by Dr.Dhavan that this judgment stood overruled in Barenblatt v. UnitedStates[78] and Eastland v. United States Servicemen’s Fund[79]. Mr. DatarCclarified that the aspect he was seeking to rely upon the judgment forwas not only not overruled, but there was confirmation on the limits onthe power of inquiry of the Congress as laid down in Watkins[80].

105. He next referred to the judgment in Howard JarvisTaxpayers Association v. Padilla[81] for the observation that theDlegislature may not use its powers to “defeat or materially impair” theexercise of its fellow branches’ constitutional functions, nor “intrudeupon a core zone” of another branch’s authority. The investigativepowers may not be used to trench upon matters falling outside thelegislative purview and the investigative power permits inquiry only intothose subjects in reference to which the legislature has power to act.

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106. In the context of the requirement of reading of entries widely,Mr. Datar contended that the power to legislate conferred by Article239AA(3)(a) was in respect of matters in List II except Entries 1, 2 &18. 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 powerFon the Parliament. It could not be said that entries conferring power onthe State Assembly were to be read widely while at the same time arestrictive meaning was to be given to entries under which powers havebeen specifically excluded. The phraseology “with respect to” entailsthat the entries encompass anything with a nexus to public order and/or G

76 354 US 178 (1957) at pg. 187.77 Ibid.78 360 US 109 (1959) at pg. 111-112.79 421 US 491 (1975) at pg. 504.80 Supra note 76.H81 62 Cali 486 (2016) at pg. 499.

the police. The powers with respect to such activities, thus, squarely liewith the Parliament. Once again, a judicial view already taken was clearand explicit, i.e., that the Assembly did not have any power – legislativeor executive, over the police and its functions.[82] Thus, exempted entrieswould have to be read in substance and not hyper-technically, and Article239AA would have to be read contextually as also widely to include allancillary and subsidiary matters. This in turn denuded the Assembly andthe Committee of the powers to legislate or enquire into that aspect. Assuch, what has been specifically denied to the Assembly could not beachieved through Committees under the garb of “peace and harmony.”The Assembly had no jurisdiction to address violence and communalriots, if Entries 1 & 2 of List II are interpreted as submitted. In the endthere could be no power even to investigate these matters.

107. The Committee, it was argued, was a creation of the Assemblyand could not have a larger jurisdiction than the Assembly itself. TheBulletin issued on 02.03.2020 suggested that the Committee was formedto deal with matters falling in Entries 1 & 2 of List II while stating this tobe “in view of the recent communal riots and violence….”. This madeit amply clear that the Committee was meant to deal with the violenceand disturbance caused to public order during the riots. The expression“public order” has to be interpreted broadly and would encompasscommunal peace and harmony. The summons issued by the Committeerelated to the law and order situation of Delhi for which the Assemblyhad no power to investigate or formulate law. If there was no competencewith regard to such matters, the summons in that context would be withoutjurisdiction and, thus, void ab initio.

108. Since cooperative federalism was propagated as the basis tojustify the constitutionality of the actions of the respondents, it wassubmitted that the same would not amount to a license to place relianceon Entries 1 & 2 of List III to sidestep the explicit exclusion in Article239AA(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 PenalCode at the commencement of this Constitution but excludingoffences against laws with respect to any of the matters specified AB

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Ain List I or List II and excluding the use of naval, military or airforces or any other armed forces of the Union in aid of the civilpower.

2. Criminal procedure, including all matters included in the Codeof Criminal Procedure at the commencement of this Constitution.”B

109. The matters relating to criminal law would not include powerto legislate on issues pertaining to public order and communal peace andharmony as the same is traceable to “public order”, if the latter is to beinterpreted broadly.

110. Mr. Datar further argued that Entry 45 of List III, whichCrelates to inquiries, cannot enable the Assembly to inquire into publicorder, police functions or communications. The power of inquiry has tobe directly related to the legitimate subjects over which the Assemblyhas powers to legislate. To buttress his argument on the concept ofcollaborative federalism, Mr. Datar relied upon the observations of thisDCourt in State (NCT of Delhi) v. Union of India[83 ]which held that“both the Centre and the States must work within their spheres andnot think of any encroachment.”

111. Mr. Datar argued that obviously the Central Governmentand the State Government had different perceptions as to what transpiredEin Delhi and it can hardly be disputed that it was a law and order issuearising from communal riots. This was not an aspect that either theAssembly or any of its committees could deal with. If the Assemblycannot legislate on a subject, it cannot explore the same under an executiveinvestigation. The mere reluctance to participate could not be threatenedFwith a breach of privilege and the subject matter being dealt with by theCommittee was outside the purview and power of the Assembly.

112. Mr. Datar emphasised that the role of Facebook was of anintermediary and, thus, the relevant regulatory mechanism was underthe IT Act. He went as far as to contend that there was no jurisdiction toGexamine Facebook, as its operations were covered by Entry 31, List I,under “other forms of communication”. Since the Parliament hasoverriding power to legislate with respect to entries in List I under Article246(1) of the Constitution, the Assembly could not intervene in mattersrelating to intermediaries/other forms of communication. In addition, it

was urged that this special entry of “communication” overrides thegeneral entries of “inquiries” and “criminal law” (List III), which theDelhi Assembly had attempted to rely on.[84]

113. Learned counsel next turned to Section 79 of the IT Actwhich deals with exemption from liability of intermediaries in certaincases.

114. Mr. Datar finally urged that an intermediary like Facebookhas no control over the content hosted on it and is in fact, prohibitedfrom knowing the substance of the content on their platform or exercisingany control over the same except as prescribed by law. It was, thus,submitted that an intermediary cannot be held liable for any third partydata/information made available/hosted by them. Facebook was simplya platform where messages are transferred from one person to the other.Whatsapp, Signal, Telegram are even end-to-end encrypted. These areintermediaries who are not liable for third party information hosted onthem. The only obligation which Section 79 of the IT Act imposes is thatof due diligence on the part of intermediaries as Facebook did not initiatethe transmissions, nor controlled the same. Hence, they cannot be heldliable and any action taken against intermediary has to be in the mannerprescribed by the Act.[85] It was stated that the New Summons did notchange the position in any way as the content of the inquiry was thesame.

115. Dr. Singhvi, seeking to rebut the arguments canvassed onbehalf of the petitioners sought to emphasise that it is not appropriate toequate the expression “peace and harmony” with “law and order” asthe former was a much broader term. In any case, Legislative Assemblieshave wide inquisitorial powers,[86] i.e. areas which are otherwise notavailable to a legislature for legislative interference are still available toa committee of the legislature. The relevant para from Kalpana Mehtareads as under:

“335. Various committees of both Rajya Sabha and Lok Sabhaare entrusted with enormous duties and responsibilities in referenceto the functions of the Parliament. Maitland in ‘ConstitutionalHistory of England’ while referring to the committees of the 84 Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC 466.

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AHouses of British Parliament noticed the functions of thecommittees in the following words:

“...Then again by means of committees the Houses now exercisewhat we may call an inquisitorial power. If anything is going wrongin public affairs a committee may be appointed to investigate theBmatter; witnesses can be summoned to give evidence on oath,and if they will not testify they can be committed for contempt.All manner of subjects concerning the public have of late beeninvestigated by parliamentary commissions; thus information isobtained which may be used as a basis for legislation or for therecommendation of administrative reforms.”

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(emphasis supplied)

116. This was stated to be in furtherance of the legislativecompetence of an Assembly and in exercise of the Committee’sinquisitorial powers to make the best possible recommendations.

D117. Dr. Singhvi contended that selective extracts of the pressconference cannot be the basis for giving a different meaning to theproceedings than the Terms of Reference. He sought to clarify that thescope of the Committee was purely recommendatory, including makingpositive recommendations to ensure peace and harmony in the NCT ofEDelhi in the future which relates to various heads of competence of theAssembly in List II and List III of the 7[th] Schedule. No federal unit canfunction in the absence of peace and harmony amongst various groupsof people who reside, live and work in that federal unit. Thus, the domainof peace and harmony in the NCT of Delhi is something very broad andinherent to the legislature of the federal unit and encompasses within itFmany areas of competence of the Assembly both in List II and List III.It 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 andimmunities of Legislative Assembly” to emphasise that enforcement ofGattendance of persons for giving evidence or producing documents beforecommittees of the Legislature of the State was an intrinsic part of itsfunctions. This coupled with Entry 45 of List III dealing with Inquiriesand Statistics for the purposes of any of the matters specified in List IIor List III would completely cover the aspects sought to be gone into bythe Committee.H

118. Dr. Singhvi, in support of the manner in which such committeescan function and their remit, referred to three judicial pronouncementsfrom the United States: (i) Eastland v. The United States Servicemen’sFund[87], (ii) Watkins v. United States[88] and (iii) Barenblatt v. UnitedStates[89]. The common thread which permeates these judgments is thatthe power to investigate is inherent in the power to make law as alegislative body cannot legislate wisely or effectively in the absence ofinformation with respect to the conditions that the legislation is intendedto affect or change. In that context, the issuance of subpoenas could beexercised by a committee acting on behalf of the House. It was thussaid: “To conclude that the power of inquiry is other than an integralpart of the legislative process would be a miserly reading of theSpeech or Debate Clause is derogation of the integrity of thelegislature.”[90]

119. Such an inquiry was not in turn circumscribed by what theend result would be: “Nor is the legitimacy of a congressional inquiryto be defined by what it produces.”[91] Such investigative function wasakin to any research with the possibility of researchers ending up insome “blind alleys” and into non-productive enterprises, as “to be avalid legislative inquiry there need be no predictable end result.”[92]

120. On the duty of a citizen to cooperate with US Congress in aneffort to obtain the facts, it was held to be an “unremitting obligationto respond to subpoenas, to respect the dignity of the Congress andits committees and to testify full with respect to matters within theprovince of proper investigation.”[93]

121. On an aspect of teaching which is pursued in educationalinstitutions, it was observed that inquiries cannot be made into aconstitutional protection against the freedom to teach. But this wouldnot preclude the Congress from interrogating a witness merely becausehe is a teacher. Thus, “an educational institution is not a constitutionalsanctuary from inquiry into matters that may otherwise be within

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Athe constitutional legislative domain merely for the reason thatinquiry is made of someone within its walls.”[94]

122. Dr. Singhvi submitted that it was inappropriate for thepetitioners to link the competence to discuss the subject matter with thepowers to exercise privilege. The Terms of Reference that define theBscope and competence not having been challenged, it was submittedthat it was not appropriate for the petitioners to invite a view of thisCourt on the competence of the Committee. The argument about excludedEntries was labeled as a “smokescreen”. In the context of the claim ofexclusion arising from Entries it was submitted that any such exclusionwould have to be narrowly construed.[95]C

123. Dr. Dhavan adopted the same line of argument as Dr. Singhvi,referring to the same judicial pronouncements. He submitted that theholding in Watkins[96] was based on Chief Justice Warren’s exclamatoryresentment of McCarthyism in the 1950s and has since been criticizedas unnecessarily limiting the powers of Congress. On the same linesDwere the subsequent judgments of the Supreme Court which settledmajor issues of congressional authorisation and relevance of the firstamendment.[97] The view taken thereafter by the US Supreme Courtreinforces powers of the Committee rather than undermines them.[98]The essence of American Law, he contended, is that when you areEsummoned, you must appear but can plead the fifth amendment in notanswering questions.

124. Dr. Dhavan proceeded with his arguments on a larger canvasthat the Delhi Government was empowered to cover every aspect of itsgovernance, and peace and harmony could not be equated solely withFpolice functions and public order. The argument can be said to be onfour different planes: (i) harmonious interpretation of entries; (ii) theragbag approach; (iii) wide scope of inquiries under Entry 45 of List III;and (iv) executive power must be interpreted widely. The emphasis ofDr. Dhavan’s argument was that communal harmony is an importantpart of Delhi’s governance that goes beyond the limited remit of policeG

95 Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109.

96 Supra note 76.

97 Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US 431(1961).H98 Supra note 79.

functions and public order. The incident of February, 2020 in Delhi wasstated to prove that in addition to affecting public order, communaldisharmony has a harmful effect on trade and commerce, transportation,education and governance generally. Considering the implication of thesedomains, it was contended that it would be deeply harmful if the policewere the sole custodians of peace and harmony. The initial course ofaction requires people to be educated and that governing authorities liaisewith them in order to calm tensions. To agree to the submissions of thepetitioners would be to permit the argument that there was none in theDelhi Government who could address the issue of peace and harmony.On a larger canvas, the message that would permeate to non-memberswould be that they could get away by not appearing before the LegislativeAssemblies, as the latter had no power to compel their appearance. Itwas submitted that this would make the entire system of Committeeproceedings farcical. The need for harmonious construction requiredthat legislative entries must be given the widest amplitude and, thus, hesubmitted that it was the duty of the Court to reconcile entries that mayappear to overlap or may be in direct conflict.[99]

125. Dr. Dhavan sought to introduce the concept of ragbaglegislation, submitting that this was an expression used by the IndianSupreme Court in income tax jurisprudence.[100] The ragbag approachsuggested that legislative and executive powers need not be traced toonly one entry, but may instead be traced to multiple entries in the relevantlist in the 7[th] Schedule. Thus, this perspective of multiple entries mayempower the Committee to consider peace and harmony – some thatwere directly applicable like education, and others that applied indirectlylike trade and commerce. Peace and harmony was a concept muchbeyond public order and police, and illustrations of the same were givenfrom List II and List III. The relevant portions of List II and List III asgiven in the 7[th] Schedule read as under:

“List II—State List

5. Local government, that is to say, the constitution and powers ofmunicipal corporations, improvement trusts, districts boards, miningsettlement authorities and other local authorities for the purposeof local self-government or village administration.

99 Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596.

100 Ujagar Prints (II) v. Union of India (1989) 3 SCC 488.

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A6. 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 orBfinanced by the State; ancient and historical monuments andrecords other than those [declared by or under law made byParliament] to be of national importance.

13. Communications, that is to say, roads, bridges, ferries, andother means of communication not specified in List I; municipaltramways; ropeways; inland waterways and traffic thereon subjectCto the provisions of List I and List III with regard to suchwaterways; vehicles other than mechanically propelled vehicles.

17. Water, that is to say, water supplies, irrigation and canals,drainage and embankments, water storage and water powersubject to the provisions of entry 56 of List I.

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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] ofList I.

E26. Trade and commerce within the State subject to the provisionsof entry 33 of List III.

27. Production, supply and distribution of goods subject to theprovisions of entry 33 of List III.

28. Markets and fairs.

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32. Incorporation, regulation and winding up of corporations, otherthan those specified in List I, and universities; unincorporatedtrading, literary, scientific, religious and other societies andassociations; co-operative societies.

35. Works, lands and buildings vested in or in the possession ofGthe State.

37. Elections to the Legislature of the State subject to the provisionsof any law made by Parliament.

39. Powers, privileges and immunities of the Legislative AssemblyHand of the members and the committees thereof, and, if there is a

Legislative Council, of that Council and of the members and thecommittees thereof; enforcement of attendance of persons forgiving evidence or producing documents before committees ofthe 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 PenalCode at the commencement of this Constitution but excludingoffences against laws with respect to any of the matters specifiedin List I or List II and excluding the use of naval, military or airforces or any other armed forces of the Union in aid of the civilpower.

3. Preventive detention for reasons connected with the securityof a State, the maintenance of public order, or the maintenance ofsupplies and services essential to the community; persons subjectedto such detention.

8. Actionable wrongs.

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 receptionor treatment of lunatics and mental deficients.

20. Economic and social planning.

23. Social security and social insurance; employment andunemployment.

25. Education, including technical education, medical educationand universities, subject to the provisions of entries 63, 64, 65 and66 of List I; vocational and technical training of labour.

28. Charities and charitable institutions, charitable and religiousendowments and religious institutions.

33. Trade and commerce in, and the production, supply anddistribution of,—

(a) the products of any industry where the control of such industryby the Union is declared by Parliament by law to be expedient in A

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Athe public interest, and imported goods of the same kind as suchproducts; (b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oilcakes and other concentrates; B(d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.

38. Electricity.

39. Newspapers, books and printing presses.C40. Archaeological sites and remains other than those [declaredby or under law made by Parliament] to be of national importance.

45. Inquiries and statistics for the purposes of any of the mattersspecified in List II or List III.”

D126. Dr. Dhavan further submitted that the constitutional obligationto take preventive action to ensure non-discrimination provided for theGovernment’s duty to examine and recommend action in respect of peaceand harmony as also to protect religion, cultural rights and dignity ofindividuals as envisaged in various constitutional provisions, i.e., Articles14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These provisionsEare really an amalgam of fundamental rights and directive principles ofstate policy. Considerable emphasis was placed by Dr. Dhavan on Entry45 in List III, which is a self-standing entry that has been given thewidest amplitude by this Court.[101] This entry deals with the executivepower to make committees of inquiry. In that context it has been observedFthat these inquiries would encompass any matter enumerated in any ofthe Lists and would not be confined to those matters as mere heads oflegislative topics – extending the inquiries into collateral matters. Furtherreferring to Entry 39 of List II, Dr. Dhavan urged that this entry waswide enough from a bare reading to include the power to summon non-members having used the expression of “enforcement of attendance ofGpersons”.

127. The thread which permeated Dr. Dhavan’s arguments wasthat the task of governance is much wider than merely drafting legislationand executing it. Executive power would collapse if it were to be reduced H101 Sriram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 at pgs. 289, 291.

to simply executing the laws enacted by the Legislature and, thus, theSupreme Court had explained that executive power without law had tobe 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 legislativedomain being occupied by the IT Act. It was Dr. Dhavan’s submissionthat the IT Act was an example of “cooperative federalism” as the Actempowered both the State and the Centre in terms of the definition of“appropriate government” in Section 2(e). Thus, provisions such asSection 6 and 69 of the IT Act could refer to either the Centre or theState and the legislative domain could not be said to be exclusivelyoccupied by the Centre. This is more so in the context of a mere summonsthat required the petitioner’s appearance without reaching the stage atwhich punitive action may be considered. The Committee was submittednot to be engaged in any inquisitorial exercise but was only limited to aidin the spirit of cooperative federalism.

129. Cooperative federalism was contended not to be a source ofpower but rather a part of the principles that underlie the Constitution. Itwas a method of communication that makes federalism more effectiverequiring both Centre and State to work together to address commonproblems. Thus, the State could not exist without collaborative orcooperative federalism.[103] This was stated to be of even greatersignificance in light of the tug of war between the Centre and the Statein respect of the unique position of the Delhi Legislative Assembly. Assuch, peace and harmony issues ought to be resolved by a coordinatedeffort. He did, of course, concede that the history of two governmentswas testament to a tussle which was closer to being competitive ratherthan collaborative.

130. Dr. Dhavan, thus, concluded his arguments by submitting onthis aspect that:

(a) it was not his contention that conventions and broadconcepts are sources of power;

(b) underlying principles, however, are fundamental to bothinterpretation of the Constitution and powers exercisedthrough the Government or their legislatures; 102 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.

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A(c)a recommendatory committee has a duty to inform theCentral Government of the problems it encounters so thatorgans of Government can act in furtherance of this principleof cooperative pragmatic federalism; (d)the Committee by itself did not claim the power to punishBthe breach though it does possess the power to summonwithout penal consequences. It could at best make arecommendation which would have to be examined by theHouse through the process of a privileges committee. Thiswas a routine part of every summon, only indicative of thepower of the Parliament/Assembly.C

131. Mr.Tushar Mehta, learned Solicitor General sought to advancesubmissions substantially on this aspect as there was a conflict in thestands taken by the State and the Central Government on this issue. Asnoticed earlier – while on the one hand he was with the State Governmenton the issue of the right to summon per se, a difference arose on accountDof his argument that in the given factual situation, the power to summonvested solely with the Central Government. Mr. Mehta referred to Article212 of the Constitution, which reads as under:

“212. Courts not to inquire into proceedings of theLegislature. –E(1) The validity of any proceedings in the Legislature of a Stateshall not be called in question on the ground of any allegedirregularity of procedure.

(2) No officer or member of the Legislature of a State in whomFpowers are vested by or under this Constitution for regulatingprocedure or the conduct of business, or for maintaining order, inthe Legislature shall be subject to the jurisdiction of any court inrespect of the exercise by him of those powers.”

132. It was his submission that proper effect should be given tothe above provision and the Court did not really have the power to dealGwith the functioning/internal administration of the Parliament/Assembliesand the committees thereof. There was, however, a narrow scope ofjudicial review permitted in the present case as the person involved wasnot a member of the House. The enquiry being ultra vires the powersconferred on the Assembly, he contended that the subjects specificallyHexcluded by the Constitution could not be surreptitiously brought within

the purview of the Assembly by categorising the issue as “peace andharmony.” It was intrinsically a law and order issue, which was an occupiedfield and also an excluded field so far as the Assembly was concerned.

133. While accepting that privilege was necessarily connectedwith legislative power, the same (if the aspect so arose) would have tobe considered in the context of legislative competence. The plenarypowers of the legislature were circumscribed by the written Constitutionwhich set out the legislative fields allotted to each of their jurisdictionsby the three Lists in the 7[th] Schedule putting an embargo on theLegislatures to travel beyond the entries in their respective lists.[104]

134. Learned Solicitor General sought to emphasise on the uniquecase of Delhi with reference to its excluded entries. It was not at parwith any other State Assembly. Delhi was the national capital and thus,the law makers had consciously made a provision keeping this largerpicture in mind and reserving to the Parliament three entries which wouldotherwise be available in List II to the State Assemblies. In the absenceof legislative competence, it would be a colourable exercise of power toengage in the subject matter. The formation of a “peace and harmony”committee was stated to be one such colourable exercise of power. Thisbecame apparent from the summons issued which explicitly providedthat, in effect, the Committee was dealing with law and order and thepolice. The battle between the Centre and the State qua Delhi whichgave rise to the previous judicial pronouncements, clarified which of thetwo had powers qua specific excluded entries. It would be a betrayal ofthe mandate of these judgments which had upheld the rationale behindexclusion of entries drawing from the unique position of Delhi.[105]

135. The pith and substance argument was sought to be advancedto contend that reliance on entries in List II and List III was not justifiedif the matter directedly related to excluded entries.[106]

136. Learned Solicitor General, while accepting the propositionthat entries have to be read widely, submitted that where there is aspecific entry dealing with a particular subject, that specific entry would

105 Supra notes 27 and 82.

106 A.S. Krishna v. State of Madras AIR 1957 SC 297 at para 8; Kartar Singh v. Stateof Punjab (1994) 3 SCC 569 at para 60; Zameer Ahmed Latifur Rehman Sheikh v. Stateof Maharashtra & Ors. (2010) 5 SCC 246 at para 40.

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Aprevail to the exclusion of the general entry.[107] The entries relied uponby the respondents were general in nature, while the entries of “law andorder” and “police” were specific and thus, must prevail. The subsequentexecutive action was also not permissible for the Assembly as the CentralGovernment had sole jurisdiction even over executive matters relatableto those entries in view of Article 73 of the Constitution. The executiveBpowers were mandated to be co-terminus with legislative competenceand the legislature could not be allowed to intervene through the indirectmethod of committees and its privilege, thereby overreaching theConstitution.

137. The principle of cooperative and collaborative federalismCwas not disputed but then it was urged that the summons did not say thatthe 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 couldnot be permitted to call the Chief of Defence Staff (CDS). In fact, itDwas submitted that cooperative/collaborative federalism required theAssembly to function within the confines of the powers conferred on itand not commit an overreach – to read it otherwise would be combativeor competitive federalism.

138. On the doctrine of occupied field, it was urged that theEsubjects which the Committee sought to go into were already occupiedby the Parliament. Facebook was an intermediary, and in that regardwould be covered under “communication”, which is Entry 31 of List I. Infact, all three fields of intermediaries, law and order or police were occupiedby the Parliament. There was no perceived conflict of entries and thespecific omission of Entries 1 & 2 of List II and the presence of Entry 31Fof List I, clearly indicated which fields were specifically occupied by theParliament and what has been specifically omitted for the Assembly.[108]

139. It was submitted that the Parliamentary Standing Committeeon Information Technology was already in seisin of the aspect of“Safeguarding citizens’ rights and preservation of misuse of social/Gonline news media platforms including special emphasis on women

108 ITC Ltd. v. State of Karnataka 1985 Supp SCC 476 at paras 17, 32; HoechstPharmaceuticals 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.H109 Supra note 46.

security in the digital space”. It was in pursuance thereto that a noticewas issued to Petitioner No.1 on 20.08.2020 to provide his views andthe 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 includingthe IT (Procedure and Safeguards for Blocking for Access of Informationby Public) Rules that provide an elaborate procedure for blocking ofinformation by an online intermediary and their criminal liability for failingto do so. The IT Act has been formulated under Entry 31 of List I, whichcovers “other forms of communication”. Thus, in that sense theintermediaries were beyond the competence of the Assembly. Section69A of the IT Act specifically deals with blocking of content, includinghate speech.

141. It was his submission that the legal issues involving law andorder, public order, and the corresponding responsibility of onlineintermediaries to address hate speech on their platforms have alreadybeen addressed by the Central Government. The Assembly not havinglegislative competence, cannot also have the competence to examinepeople and prepare a report. There was no power to giverecommendations and the summons did not even clarify that the exercisewas for making recommendations.

142. Finally, the learned Solicitor General referred to the case inN. Ravi[109] to contend that the issue in contention, i.e., the interplay offundamental rights and parliamentary privileges, was already pendingbefore a 7-Judge Bench.

Recent Developments:

A. Role of Intermediaries:

143. In COVID times there have been some fast-paceddevelopments around the world qua the role and management ofintermediaries. In view of there being some time gap between the dateof reserving the judgment and its pronouncement, we consider itappropriate to pen down these developments over the last four months.The UK Commons Privileges Committee published a new report onselect committee powers on 03.05.2021, looking to strengthen the abilityof select committees to call for persons, papers, and records. Thebackground to this is the reluctance, or in some cases even refusal, of A

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Aindividuals to appear before these committees in a number of high-profilecases. The Privileges Committee has proposed a ParliamentaryCommittees (Witnesses) Bill, which would introduce new criminaloffences relating to refusal to attend a summons or failing to provideinformation or documents without a reasonable excuse[110].

BIntermediaries and platforms have seen a hot pursuit in the USfor regulating the consequences of their business. The House Energyand Commerce Committee of the US House of Representatives issueda summons to Facebook CEO Mark Zuckerberg, Google CEO SundarPichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which theyduly complied. The House Committee pointed out false claims aboutCCOVID-19 vaccines and the supposed election fraud that had proliferatedon social media platforms.[111] The background was the incident at theCapitol post the US Presidential Election results being declared in 2021.It is of significance to note the comments of the Chairman of theCommittee, Frank Pallone that, “For far too long, big tech has failedDto acknowledge the role they have played in fomenting and elevatingblatantly false information to its online audiences. Industry self-regulation has failed.”[112] The Chairmen of two other sub-committeesremarked, “We must begin the work of changing incentives drivingsocial media companies to allow and even promote misinformationand disinformation.”[113] The divergence of views between RepublicansEand Democrats was also evident. While the former claimed thatconservative viewpoints are maligned on social media platforms, thelatter sought action against misinformation and hate speech with specialattention to its impact on minority communities including the LGBTQ+community, the Black community, Asian Americans, and Latin Americans.FThese developments, to our mind, are apposite to be examined in the 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-to-compel-attendance.111 Lauren Feiner, Facebook, Google And Twitter CEOs Will Make Another AppearanceBefore Congress In March, CNBC (18/02/2021),accessible at: https://www.cnbc.com/G2021/02/18/facebook-google-twitter-ceos-to-testify-before-congress-in-march.html.112 House Committee on Energy and Commerce , Press Release, , E&C CommitteeAnnounces Hearing with Tech CEOs on the Misinformation and Disinformation PlaguingOnline Platforms, (18/02/2021), accessible at: https://energycommerce.house.gov/newsroom/press-releases/ec-committee-announces-hearing-with-tech-ceos-on-the-misinformation-and.H113 Ibid.

context of the argument advanced on behalf of the petitioners that theydo not want to appear before the Committee on account of a dividedpolitical milieu.

144. In India, since 2020, a Joint Parliamentary Committee hasbeen examining the Personal Data Protection Bill, 2019 in relation to theissues of data protection and security.[114] The Committee summonedtelecom operators Jio and Airtel as well as aggregators Ola and Uber inNovember, 2020. Google, PayTM, Facebook, Twitter and Amazon haveearlier deposed before this Committee[115] and the report of theparliamentary committee is stated to be in its final stages.

145. A significant development has been the notification of TheInformation Technology (Intermediary Guidelines and Digital MediaEthics Code) Rules, 2021 on 25.02.2021[116], a day after the judgmentwas reserved. These rules introduce a range of due diligence measuresto be implemented by intermediaries and lay down a code of ethics fordigital news platforms in relation to digital media. These Rules havebeen assailed before different High Courts across the country includingKerala, Karnataka, Madras, and Delhi, and are currently pendingconsideration.

B. Amendment to the GNCTD Act, 1991:

B. Amendment to the GNCTD Act, 1991:

146. Yet another significant development in the context of thecontroversy before us, in the legislative domain, has been the amendmentof the GNCTD Act which came into force on 27.04.2021[117]. Theamendments are:

114 Ministry of Parliamentary Affairs, Press Release, Joint Committee on the PersonalData Protection Bill, 2019 Seeks Views and Suggestions, (03/02/2020), accessibleat:https://pib.gov.in/PressReleasePage.aspx?PRID=1601695.

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-jio-uber-ola-truecaller-over-data-security-concerns-1736020-2020-10-28.

116 The Information Technology (Intermediary Guidelines and Digital Media EthicsCode) Rules, 2021, Notification of the Ministry of Electronics & Information TechnologyNo. 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.

117 Ministry of Home Affairs,Press Release, , Amendments to GNCTD Act, 1991 Do notAlter Constitutional and Legal Responsibilities of Elected Government in Respect ofTransferred Subjects in State & Concurrent Lists (29/04/2021), accessible at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1714828.

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Aa.The term ‘Government’ referred to in any law made by theDelhi Legislative Assembly will mean the LieutenantGovernor (‘LG’).

b.The LG must reserve for the consideration of the Presidentall bills that incidentally cover any matters that fall outsideBthe purview of the powers conferred on the LegislativeAssembly.

c.Rules made by the Delhi Legislative Assembly to regulateits own procedure and conduct of business in the Assemblymust be consistent with the Rules of Procedure and ConductCof Business in the Lok Sabha.

d.The Delhi Legislative Assembly will not be entitled to makerules to (i) enable itself or its Committees to consider mattersof day-to-day administration of the NCT of Delhi, or (ii)conduct any inquiry in relation to administrative decisions;Dand any such rules made prior to this amendment will bevoid.

e.Any executive action taken by the Delhi Government willbe in the name of the LG and the requirement of a prioropinion of the LG by the Delhi Legislative Assembly beforeEit takes any executive action in respect of certain matterswith such matters being specified by a general or specialorder issued by the LG.

147. The object of the aforesaid as per the Statement of Objectsand Reasons of these amendments is stated to be to promote “harmoniousFrelations between the legislature and the executive” and to define theresponsibilities of the elected government and the LG in accordancewith the two NCT judgments[118]. Suffice to state that these amendmentshave been assailed before the Delhi High Court and are pendingconsideration.

148. We say that these amendments are significant as in a wayGthey appear to be an offshoot of the continuous tussle between the StateAssembly and the Central Government. The present proceedings wheresuch 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 therelevant time and the arguments advanced in that behalf. We have notbeen called upon to comment on the consequences of these amendmentsqua the subject matter of the present proceedings, more so when thechallenge 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 thismodern technological age, it would be too simplistic for the petitioners tocontend that they are merely a platform for exchange of ideas withoutperforming any significant role themselves – especially given their mannerof functioning and business model. Debate in the free world has shownthe concern expressed by Governments across the board and thenecessity of greater accountability by these intermediaries which havebecome big business corporations with influence across borders andover millions of people. Facebook today has influence over 1/3[rd] populationof this planet! In India, Facebook claims to be the most popular socialmedia with 270 million registered users. The width of such access cannotbe without responsibility as these platforms have become power centresthemselves, having the ability to influence vast sections of opinions.Without undermining the role performed by Facebook in giving a voiceto various sections of society across the world, it has to be noted thattheir platform has also hosted disruptive voices replete withmisinformation. These have had a direct impact on vast areas of subjectmatter which ultimately affect the governance of States. It is this rolewhich has been persuading independent democracies to ensure that thesemediums do not become tools of manipulative power structures. Theseplatforms are by no means altruistic in character but rather employbusiness models that can be highly privacy intrusive and have the potentialto polarize public debates. For them to say that they can sidestep thiscriticism 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 circulationmedia which raises concerns of editorial responsibility over the contentcirculated through its medium. The width of the reach of published materialcannot be understated or minimized. Facebook has acknowledged intheir reply that they removed 22.5 million pieces of hate speech contentin the second quarter of 2020 itself, which shows that they exercise asubstantial degree of control over the content that is allowed to be A

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Adisseminated on its platform. To that extent, a parallel may be drawnwith editorial responsibility cast on other mass circulation media.

151. The business modelof intermediaries like the petitioner beingone across countries, they cannot be permitted to take contradictorystands in different jurisdictions. Thus, for example in the United StatesBof America, Facebook projected itself in the category of a publisher[119],giving them protection under the ambit of the First Amendment of itscontrol over the material which are disseminated in their platform. Thisidentity has allowed it to justify moderation and removal of content.Conspicuously in India, however, it has chosen to identify itself purely asa social media platform, despite its similar functions and services in theCtwo countries. Thus, dependent on the nature of controversy, Facebookhaving almost identical reach to population of different countries seeksto modify its stand depending upon its suitability and convenience.

152. We are afraid we are not inclined to accept the simplisticapproach sought to be canvassed by Mr. Salve on the role of Facebook.DForceful as it may be, it does not convince us. Developments around theworld, as we have noted above, reflect rising concerns across borders.The concern is whether the liberal debate which these platforms professto encourage has itself become a casualty. We have noticed in thebeginning that algorithms, which are sequences of instructions, haveEhuman interventions to personalise content and influence opinions aspart of the business model. As such, their primary objective is to subservetheir business interests. It is first a business and then anything else. Asper their own acknowledgement, they would only appear before anycommittee if it served their commercial and operational interests, as itdid when they appeared before the parliamentary committee. But if theirFbusiness interests are not served, they seek a right to stay away. Such astand is completely unacceptable to us. Facebook has the power of notsimply a hand but a fist, gloved as it may be.

153. We now turn to the incident at hand, that of an unfortunateviolent eruption. The need to go into this incident both from a legal andGsocial perspective cannot be belittled. The capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in 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/Loomer-v-Facebook-fb-Hresponse.pdf.

this context must be looked into by the powers that be. It is in thisbackground that the Assembly sought to constitute a peace and harmonycommittee – whether it has the legislative competence or not is an aspectwe will deal with it under the relevant head. The Assembly being a locallegislative and governance body, it cannot be said that their concernswere misconceived or illegitimate. It is not only their concern but theirduty to ensure that “peace and harmony” prevails. However, we maynote that the long and repeated battles between the State and the Centreappear to have cast a shadow even over the well-meaning intent of theCommittee to assess peace and harmony as reflected in the Terms ofReference.

154. We may record that the Central Government and the StateGovernment have been unable to see eye to eye on governance issuesin Delhi. This has been responsible for a spate of litigation and despiterepeated judicial counsel to work in tandem, this endeavour has not beensuccessful. There is little doubt that the constitution of the governancemodel in Delhi is somewhat unique. This itself flows from Delhi beingthe capital of the country. Delhi has had a history of having an Assemblyreplaced by a model of Union Territory governance by ExecutiveCouncilors. There were long years of tussle to have a LegislativeAssembly with commonality of objectives across the primary politicalspace, but whoever was in governance found it difficult to let go. Themodel that came into being, thus, had somewhat of a hybrid character,giving an expanded role to the Central Government as compared to anyother Legislative Assembly. To that extent, there was a diminishing ofthe federal structure but there appears to have been a consensus on thisaspect.

155. The aforesaid arrangement worked well for many years evenwith different political dispensations in power in the Centre and the State.But the last few years have seen an unfortunate tussle on every aspectwith the State Government seeking to exercise powers as any otherAssembly and the Central Government unwilling to let them do so. Thebone of contention has not only been the three subject matters of whichthe 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 hasto recognise the constitutional scheme of division of powers in Delhiwhich circumscribes their ability to work only within those powers. When A

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Athey got elected, they knew what they were getting elected for – notwhat they thought should be the division of powers. On the other hand,the Central Government is required to work in tandem, albeit with adifferent political dispensation. Maturity is required from both sides andwe have to reluctantly note the absence of such maturity in this importantinter-relationship.B

157. To work well, the Central Government and the StateGovernment have to walk hand in hand or at least walk side by side forbetter governance. The failure to do so is really a breach of theirrespective electoral mandate, the seven Lok Sabha seats are all held bythe powers that be in the Central Government but a very different resultCcame in the Assembly Elections. This has seen a repeat. It is a reflectionof the maturity of the electorate which has chosen to put one dispensationin power in the Centre while seeking to choose another in the State asthe roles are divergent. The concerns are different. The two powersunfortunately do not seek to recognise this aspect, and that is the baneDof this structure requiring collaboration and concurrence. Unfortunately, it has become an endeavour to score points over the other. Some priordiscussion and understanding could easily solve this problem instead ofwasting large amounts of judicial time repeatedly arising from the failureof the two dispensations to have a broader outlook. In fact, the currentround is, in our view, arising from the petitioners seeking to takeEadvantage of this divergence of view and their inability to see a commonpath.

158. No governance model requiring such collaboration can workif 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 theFcontours of the dispute and the facts have already been set outhereinabove. We see no purpose in repeating those facts. We now turnto the four propositions which form the basis of the writ petition (dealtwith under three heads) to record our views qua them.

On the Issue of Privilege:G

159. The privilege issue arises out of the plea advanced by thepetitioners that both, the First Impugned Summons dated 10.09.2020and the Second Impugned Summons dated 18.09.2020, were to summonPetitioner No.1 or a duly authorized representative of Petitioner No. 2respectively with a threat of “privilege”. This argument was coupledHwith a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinionthat they are not inclined to state.

160. We may note the elaborate arguments addressed by Mr.Salve, based on a premise that privilege power is really a special rightenjoyed as a shield in order to facilitate the working of the Assembly. Itis not a sword for assertion of power. It was argued that the constitutionalschemes of the UK and of India, a republic, are different and thus, theprivilege powers in the latter must be strictly confined to legislativefunctions. Only if the integrity of the legislative functions is impaired,either by a member or by non-members, would the occasion arise forexercise of such power.

161. In fact, Mr. Salve sought to contend that it is time that exerciseof privilege power is codified, and to that extent an intent was expressedby the Constitution makers in sub-clause (3) of Article 194. The relevantportion states that such privileges “shall be such as may from time totime be defined by the Legislature by law.”, and thus, the submissionwas that this clause operated for a period “until (privilege powers were)so defined.” Mr. Salve sought to persuade us to either lay down theguiding principles or at least nudge the Parliament/Legislature to do so.We have already noticed that this is an aspect seriously disputed by allthe counsel for the respondents.

162. We may notice in the aforesaid context that the wordings ofArticle 194(3) are unambiguous and clear, and thus do not require us togive our own twist or interpretation to them. These are not wordings ofa statute, but that of the primary document – the Constitution. The powers,privileges and immunities of a House of the State Legislature as well asits committees have been clearly defined as those of the House and allmembers and committees thereof before the coming into force of Section26 of the Constitution 44[th] Amendment Act, 1978. There was no timelineprovided for codification of powers, privileges and immunities of a House.The Constitution has given leeway to the Legislature to define the samefrom time to time, but there was no compulsion qua the same. If theLegislature 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 thatdirection? Our answer would be in the negative.

163. We say so as this is itself a debatable issue. There is adivergence of views even amongst constitutional experts whether fullplay must be given to the powers, privileges, and immunities of legislative AB

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Abodies, as originally defined in the Constitution, or is it to be restricted.Such opinion would have to be debated before the Parliament/Legislatureof the State to come to a conclusion, one way or the other. It is not evena 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 bemade for consideration by the legislative body. That Scotland and WalesBhave considered it appropriate to have their own enactments in thiscontext, is a deliberate legislative exercise by those bodies. There is nouniformity across the world in this regard.

164. The notion of individual constitutional rights and the right toprivacy is sought to be expanded by the petitioners to encompass theCright of refusal even to appear in pursuance of the summons. The debatesacross democratic policy including some of the developments recordedby us, would show that there is a turn towards recognising the importanceof an element of compulsion (if so required) for deposition/opinions relatingto the present subject matter. This is more so in the context of monolithicDbusiness models having vast financial and technical powers at theirdisposal. As a constitutional court, we are not inclined to step into it.

165. It is not disputed that committee proceedings cannot beequated to proceedings before the court of law.[120] No doubt these powershave to work in the context of the business of each House, and noEHouse can be a knight in shining armour to correct issues in respect ofwhich it has no legislative power. Yet, it would be a monumental tragedyto conclude that the legislature is restricted to the function of enactinglaws. The role of the legislature is sought to be diminished by such anargument. The legislature debates many aspects, and at times records asense of the House. This is not unusual or without precedent. TheFjudgment in Amarinder Singh[121] is of little assistance to the petitioneras that was a case of an executive act of exemption of land, and in noway obstructed or threatened the integrity of the legislative proceedings.The facts of each case are important and propositions of law must applyin the context of the facts.G166. Once we recognize the wider array of functions performedby an elected Parliament or Assembly, not confined to only enacting 120 Lord Denning’s observations as noted in State of Karnataka v. Union of India onnote 9.H121 Supra note 11.

laws, any act in furtherance of this wider role and any obstruction to thesame will certainly give rise to an issue of parliamentary privilege.[122]

167. There is little quibble with the proposition recognized in theSpecial Reference No.1/1964[123] that there is a distinction betweenexercise of legislative privileges and ordinary legislative functions. Asimilar line of reasoning has been expressed in Justice (Retd.)Markandey Katju v. Lok Sabha and Anr., when the hackles of theParliamentarians were raised on account of some utterances by Justice(Retd.) Markandey Katju.[124] We, however, fail to appreciate the line ofargument that no non-member could be summoned if they had not intrudedon the functioning of the Assembly; or that the non-participation of thepetitioner would not have adverse consequences as it did not disrupt thefunctioning of the Committee. The petitioners, more so with their expandedrole as an intermediary, can hardly contend that they have some exceptionalprivilege to abstain from appearing before a committee duly constitutedby the Assembly.

168. We really do not have any quibble with the propositionsadvanced by Mr. Salve that there can be judicial scrutiny of an endeavourto exercise the power of privilege, which inherently suffers from lack ofjurisdiction, if illegal or unconstitutional.[125] The issue, however, is whetherthe situation has at all arisen meriting scrutiny by this Court- which inturn has to be preceded by initiation of the privilege proceedings, anaspect emphasised by learned counsel for the Assembly as well as theCommittee.

169. In the factual matrix, only a summons has been issued forappearance before the Committee. The question of any privilege powerbeing exercised is yet far away. It has been rightly pointed out by thelearned counsels for the respondents, that even if there was any breachof privilege recorded by the Committee, the Committee would in turnhave to make a recommendation to the Assembly. The Assembly thenwould be entitled to consider whether it is a fit case to exercise thepower of breach of privilege. In many cases, it may well be that theAssembly considers that it is not worthwhile to do so, even if the

125 Supra notes 12, 15 and 20.

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ACommittee was to prima facie opine so. The exercise by the Assemblyis further dependent on the opinion of the Privileges Committee. Thus,there are various tiers of scrutiny before there is culmination of theexercise of power of privilege. None of those eventualities have at allarisen in the present case. This case is a preventive endeavour by thepetitioner to preclude the respondents from even considering the aspectBof privilege by seeking this Court’s intervention at a pre-threshold stage,only on the premise of the absence of legislative power. We will, ofcourse, consider the aspect of absence of legislative power as the lastaspect on the questions framed - but we cannot accept the fetters Mr.Salve seeks to place on the Assembly and the Committee at theCthreshold. We may notice the arguments of the respondents thatrecording of the consequences of breach of privilege in a notice toappear is apparently something which is done in a routine manner insuch notices. This is possibly to make the noticee conscious of theconsequences. That would not mean that an action for privilege hasbeen triggered off at the outset.D170. We would like to turn to the aspect of the importance of theworking of committees; as, if there is no power to compel attendance,we have little doubt that the working of these committees would bebadly impaired.

E171. The committees constituted by legislative bodies like theAssemblies for the States and Parliament for the Union, perform a keyrole in the functioning and the working of the Houses. In fact, it is oftensaid that the real work is done in these committees - away from the dinof the Parliament. These committees witness more vociferous reflectionof the divergent view, slightly away from public gaze. It is said that thereFis a more reasonable and applied discussion in these committees. This isan aspect recognized all over the world qua the functioning of suchcommittees. These committees are bodies which have the capability toundertake wide-scale consultative processes, engage in dialogue, andbuild consensus through intelligent deliberations. In fact, such an exerciseGis intrinsic to the legislative process where public policies would requiredetailed studies and concentration. These committees undertakedeliberations and provide recommendations as precursors to legislativeactivities, and the effective working of committees is a prelude to thecore working of the Assemblies.

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172. The committees are an extension of the legislature itself anddo informed work. Their significance has been exhaustively dealt within Kalpana Mehta[126] which we have extracted hereinabove. USRepresentative James Shannon’s words were noted with approval inthe judgment, recognising that “around the world there is a trend tomove toward reliance on committees to conduct the work ofparliament, and the greatest reason for this trend is a concern forefficiency.”[127] It is not possible for us to accept the contention of thepetitioners to create an artificial division between Assembly’s core/essential and non-essential functions, with any restrictive clauses beingplaced on the deliberations of the committees. Such water-tightcompartmentalisation is not advisable. Unless the committee embarkson a course completely devoid of its functional mandate specified by theAssembly, or the Assembly itself lacks jurisdiction to deal with the subjectmatter, we are of the view that the widest amplitude must be given tothe functioning of these committees. It is the parliamentary committeesystem that has been recognised as a creative way of parliaments toperform their basic functions. The same principle would apply, even if itis to some extent beyond their legislative domain. This is because theywill not be able to make any valid legislative recommendations in theabsence of competence over the subject matter. However, they maydebate aspects which may be a reflection of their sense and consequentlythe sense of the House, if so adopted by the House.

173. Walter Bagehot in his seminal work “The EnglishConstitution”[128] elucidated five significant functions of the House -elective, expressive, teaching, informing and finally, the legislative. Thelegislative function itself is a broad umbrella under which multipleresponsibilities and tasks are carried out in synchronization. The legislatureis a “democratic nucleus”, whereby such title entails the law-makingprocess itself as being multi-functional; involving receipt of informedopinions and balancing interests of various stakeholders.[129] Committeesactually are in the nature of specialised forums as Mallory states:

127 Comment of US Representative James Shannon during the 1995 Conference on theRole of Committees in Malawi’s Legislature as noted in Kalpana Mehta at note 20.

128 Bagehot: The English Constitution, (P. Smith, 2001)..

129 J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public Administration1, 6 (1963).

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“The flow of public business is now so great, and its natureso complicated, that it can only be handled by bodies withthe technical competence and the rational organization tomaster it. As Dr. Bernard Crick has pointed out:

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The novels of C. P. Snow, Professor Parkinson’s Law and K.C. Wheare’s Government by Committee are all, in differentways, testimonies to the truth that the most important work ofcentral government is conducted not by civil servants or M.P.’sworking as individuals, but by committees (Bernard Crick,Reform of the Commons. Fabian Tract No.319 (London,1959), p.13).”

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174. The inquisitorial role of the committee in the functioning ofHouse is of great significance, and as recognized, the investigation of acomplicated social problem prior to legislation often rests frequently onsuch legislative committees.[130] This task involves the examination ofwitnesses and is helpful in dealing with matters of special and technicalDnature, wisened by insight into affairs of the workings of different aspectsand the views expressed by different stakeholders. It can hardly be saidthat in the context of what has been debated, the petitioners have no roleto play or are “outsiders”. Intelligent legislative action and deliberationthereon rests on the power to investigate into questions of publicEimportance and, thus, issuance of summons is key to this investigativeexercise - a role clearly recognised in Kalpana Mehta[131].

175. We have no hesitation in stating that the endeavour of thepetitioners to sidestep their appearance before the Committee on aperceived notion of not being an official representative - is not acceptableFto us – whether the exercise is for a legislative enactment, or for otherpurposes connected with its legislative domain. After all, “To be a validlegislative inquiry there need be no predictable end result.”[132]

176. The Committee is yet to start its work qua the assistance to berendered by the petitioners. The petitioners cannot themselves frame andGpresume possible questions that they might face before the Committee,and then seek to encompass it under the argument of legislative 130 Promila Suri, Growth of Committee System in Central Legislature of India 1920-1947, (1979).131 Supra note 20.H132 Supra note 79.

incompetence. The work of The Committee could encompass severalfields where organisations and individuals are expected to cooperate.

177. We are also not impressed by the argument that the privilegepowers of the Assembly are not constitutional in character but flow onlyfrom the GNCTD Act. The scheme of privilege has to be seen in thecontext of provisions of Article 239AA of the Constitution, as well as theGNCTD Act. They are not divorced from each other. Dr. Singhvi, thus,rightly referred to clauses 7(a) and 7(b) of Article 239AA to contendthat the GNCTD Act was not deemed to be an amendment to theConstitution for the purposes of Article 368, notwithstanding that it maycontain any provision which amends or has the effect of amending theConstitution. Rights and privileges are the same as any other Houseand, thus, the calling into question of the proceedings of a sub-committeeamounts to calling into question the proceedings of the Assembly. At thecost of repetition, we say that there has been no exercise of privilegepower. However, we have been called upon to deliberate, if one maysay, to some extent unnecessarily over this issue on account of insistenceof the petitioners to advance this argument prematurely. We do not knowwhether on participation of the petitioners any question of privilege wouldarise, whether the Committee would make a reference to the Assembly,whether the Assembly would consider it to be referred to the PrivilegesCommittee, what would be the opinion of the Privileges Committee andfinally whether the Assembly itself would embark on a path of a breachof 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 Schedulehave 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 Entriesnor the excluded Entries have to be read restrictively. That is the principlewe will have to keep in mind.

179. Dr. Singhvi rightly pointed out that there is no judicialprecedent shown before us where judicial review has been successfullyexercised at such a threshold stage. Thus, judicial precedents wouldhave to be read in their factual matrix. The stage for any possible judicialintervention has not arisen in the present case. In fact, such a thresholdintervention was sought and repelled by the Full Bench of the MadrasHigh Court in C. Subramaniam[133].

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A180. We have little doubt that a “Peace and Harmony” Committeemay 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 willdeal with it in the third part of our conclusion.

181. We have already noted with some disquiet the divergence ofBviews taken by Dr. Dhavan and Dr. Singhvi on the issue of the earliernotice being withdrawn, and a subsequent notice being sent. Dr. Dhavanexpressed that this was really of not much significance. We are of theview that the Committee is a creation of the Assembly. The notice waswithdrawn by the respondents themselves. In the wisdom of theCommittee, they sent a fresh notice- that the same was possibly notCunder 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 bestavoided and unnecessarily gave rise to another set of arguments onbehalf of the petitioners to read some intent into the same. Dr. Dhavanwas, however, right in seeking to repel the challenge as based onDanticipatory nature of proceedings – being presumptive and preemptive.

182. The aspect of Dr. Dhavan’s submission that the Committee’sthreat to recommend criminal action was “toothless” and the CommitteeChairman’s statements during the press conference in this regard areboth best dealt with under the third aspect. Suffice to say at this stageEthat, in our view, greater care would be required while framing the Termsof Reference so as to not include something which would be termed bythe counsel as “otiose” before this constitutional court. The utterancesof the Chairman of the Committee, which would give rise to petitioner’sapprehensions are best avoided. We are noticing these aspects becausethese two factors can be the only reasons for the petitioners to haveFapproached this Court at this stage. In our view, there would have beennothing to argue but for these two aspects – the first effectivelywithdrawn during the course of argument, and the second sought to beexplained away as views of the people who deposed before theCommittee. We find it very difficult to accept both these aspects, andGwe can safely say that these gave the petitioners an ostensible cause forapproaching this Court. This is an issue we cannot ignore - but for theseaspects, we would have possibly burdened the petitioners with exemplarycosts to have approached the court at this stage. A number of pastillustrations have been rightly given by Dr. Dhavan to illustrate noticesissued to non-members which we have already recorded in para 58 andHthere is no need to repeat them.

183. We may record, at the end, that there is actually no seriousdispute about the per se competence of the Committee to discuss mattersoutside the legislative domain of the Assembly but it was with a caveatthat it could not give rise to exercise of power of breach of privilege andthe right to summon a non-member. That being the position, we havealready noticed that any plea raised on the exercise of privilege is a pre-emptive strike in the absence of underlying facts. Where that situationarises in the given factual context, the petitioners could have and wouldbe entitled to assail the same, but this Court will not indulge in an advanceruling on this aspect. We have already clarified that we are not inclinedto accept the distinction between a member and non-member in theaforesaid context; and the power of the Assembly to summon in theformat 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 speechand privacy against privilege, emphasising that the petitioner had a rightto remain silent. In the context of the plea of the petition being premature(which we have found against the petitioners as aforesaid), his submissionwas that the mere threat of “necessary action” i.e., the possibility of abreach of privilege, was enough to infringe both the right to free speechand privacy. Thus, “the threatened invasion of the right” could be “removedby restraining the potential violator”.[134]

185. The more restricted plea advanced by Mr. Salve was thateven if the right of privilege is recognised, it must be narrowly construedso as to give maximum play to the fundamental rights to privacy andfree speech, which includes the right to remain silent. We may note thatin view of the original notice being withdrawn, Facebook’s plea of nothaving the option of choosing whom to send stands whittled away. Theinteresting part is that Petitioner No.1 did appear before the Parliament.

186. We find it rather difficult to countenance the plea that thejudgment of this Court in MSM Sharma[135] stands whittled down bysubsequent judicial pronouncements or that powers, privileges andimmunities under Articles 105(3) and 194(3) of the Constitution mustgive way to the more fundamental right of free speech under Article 134 Supra note 38.135 Supra note 14.

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A19(1)(a) of the Constitution in view of the reference pending before thelarger Bench in N. Ravi[136].

187. We have discussed at some length the aspect of privilegeand the rights which flow from it. Though such proceedings are nottaking place in Court, where depositions also take place, privileges of anBelected body of the Legislative Assembly and consequently of itscommittees must be given full play.

188. We would also not like to delve on this issue in more depth aswe are conscious of the fact that the perceived conflict between MSMSharma[137] and Special Reference No.1 of 1964[138] is pendingCconsideration before a larger Bench in N. Ravi[139]. Suffice for us to addthat this reference has been pending since 2005. It may be stated thatthis reference needs to be given some priority to settle the legal principlesinvolved, especially in the context of the expanding conflict on such subjectmatters.

189. Be that as it may, we also agree with what Dr. SinghviDcontended -that this is another aspect which is premature. No coerciveaction has been taken against the petitioner, and none was intended ifthe authorised representative of the petitioners simply participated in theproceedings as a witness. Emphasis was also laid on the transparencyof these proceedings in view of them being broadcasted live. TheEsummons 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 judicialin nature as there is no accused before the Committee. Naturally, theRules framed by the House under Section 33 of the GNCTD Act (whichin turn draws strength from Article 239AA(7) of the Constitution) wouldFbe followed. Protection of proceedings before the Assembly or theCommittee under Article 194 would include deposition of members ornon-members.

190. We may add here that the option to not answer a questionbefore the Committee cannot seriously be disputed qua certain aspectsGif so pleaded for good reasons, an aspect which would be examined bythe Committee as per Rules.

136 Supra note 46.137 Supra note 14.138 Supra note 12.H139 Supra note 46.

191. We would not like to say anything more on this subject inview of the reference pending in N. Ravi,[140] and the fact that the completeplea of the petitioners is premature as nothing has really happened otherthan them having been asked to appear before the Committee.

On Legislative Competence:

192. Is the Assembly embarking on a path which is blocked forthem? This is the core question of legislative competence of the Assemblyin the context of its powers and privileges not being akin to other StateAssemblies. The endeavour of Mr. Salve was to persuade us that oncethe Assembly lacks competence, the petitioners have a right to stayaway, as all proceedings before the Committee would be devoid of anyconstitutional mandate.

193. It is undisputed that the Assembly is different from the otherState Assemblies to the extent that certain subject matters of List IIhave been specifically excluded and conferred on the CentralGovernment. It is, thus, nobody’s case that aspects covered by Entries1, 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 summarisedas advancing a plea that the Assembly and the Committee cannot bepermitted to do indirectly what they cannot do directly.

194. While there is no dispute about the principle of reading theEntries as widely as possible, that proposition is in the context ofchallenging a law for lack of legislative competence. Here we areconcerned with the interplay of Entries. The issue would be whether theCentral Government has the legislative competence or the Assembly.The widest amplitude has to be given even to the three Entries of whichthe legislative competence has been denuded from the Assembly andconferred on the Parliament.

195. It is in the aforesaid context that it was emphasised thatapart from the aforesaid three Entries, what is also to be appreciated isthat the business of Facebook is directly covered under a Parliamentaryenactment, i.e., the I.T. Act. In this respect, petitioners have willinglycooperated with proceedings before the Parliamentary Committee inthe past.

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A196. That Facebook is an intermediary was submitted to beapparent from Section 2(1)(w) of the I.T. Act. The role of theintermediaries is covered by this enactment including the right of theCentral Government to issue directions to block public access to anyinformation under Section 69A of the I.T. Act and this is no more resintegra in view of the judgment in Shreya Singhal[141] where a procedureBfor the same has been laid down.

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197. The intent of the Committee (and for that matter theAssembly) was argued by Mr. Salve to be quite clear, i.e., to encroachon the very domain which was prohibited. This was stated to be apparentfrom the Terms of Reference. The Terms of Reference contained inCparagraph 4 (i) (to consider the complaints from the members of thepublic, social organisations, journalists, etc. on the situation prevailing ina particular area/areas which have the potential to disturb communalpeace and harmony or where communal riots have occurred) have to beread in context of para 4(vii) which tasks the Committee withDrecommending action against such persons against whom incriminatingevidence is found. The respondents could not get away by simply sayingthat the power of recommending action against such persons againstwhom incriminating evidence is found is not capable of being enforcedin view of the lack of legislative competence. These are the aspectsEwhich were sought to be given teeth by threatening privilege in the lastparagraph of the Terms of Reference.

198. Mr. Salve also sought to rely on the reply of the respondentsto justify that these were not mere apprehensions. We have set outthese aspects as reflected in para 90.F

199. It could not be seriously disputed before us that collaborativefederalism was an integral part of the working of the Indian Constitutionas emphasised by the Court. However, it was simultaneously acceptedthat such functioning had to be within respective spheres of legislativecompetence. Were the Assembly to encroach upon matters covered byGList I (and similarly, if the Central Government were to encroach uponthe powers of the Assembly in List II), it would lead to a chaotic situationand a breakdown of the division of powers inter se the Centre and theState.

200. We are, however, not impressed with the argument of Mr.Salve that the petitioners cannot be drawn into what is perceived to be apolitical divide. Facebook is a platform where such political differencesare reflected. They cannot wash their hands off the issue as this is theirvery business. As noticed earlier, their role is not as innocuous as theyare seeking to contend.

201. Similarly, we cannot accept the plea that an Assembly mustconfine itself to the core function of legislation. This would beunreasonably restricting the role of an elected body.

202. Mr. Salve’s emphasis was that all that transpired was asubterfuge as the real intent of the Committee was to look into issuesthat were beyond their scope, while expanding their powers on accountof a political conflict between the Central and State Governments overthe issue of the riots in question. This was stated to be quite apparentfrom the nature of depositions recorded before the Committee and thestatements made in the press conference by the Chairman of theCommittee.

203. As already stated, we have little doubt over the propositionthat the division of powers between the Centre and the State Assembliesmust be mutually respected. The concept of a wide reading of Entriescannot be allowed to encroach upon a subject matter where there is aspecific entry conferring power on the other body. It is this very principlewhich was in the minds of the Constitution makers, considering the widediversity and the federal nature of the country. Thus, whether it is theargument of Mr. Salve or Mr. Datar in this context, we find themunexceptionable. The illustrations given by Mr. Datar for exercise ofsuch powers and their judicial scrutiny in the US also support theproposition, i.e., that an inquiry could not be an end in itself and has to berelated to a legitimate task of the Congress (legislative body).[142] Therecould not be exercise of power which may “defeat or materially impair”the exercise of its fellow branches’ constitutional functions, nor “intrudeupon a core zone” of another branch’s authority”.[143]

204. We are also of the view that the recourse to Entries 1 & 2 ofList III cannot be said to include what has been excluded from the powers 142 Supra note 76.143 Supra note 81.

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Aof List II, i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating toinquiries would again not permit the Assembly or the Committee to inquireinto the aspects of public order or police functions. That a law and ordersituation arose is not disputed by anyone, and that this law and orderissue related to communal riots also cannot be seriously disputed. Thatthe Assembly cannot deal with the issue of law and order and police isBalso quite clear. Thus, the moot points would be (a) what is the scope ofinquiry of the Committee; (b) whether it could be said that there is anyaspect of the inquiry which falls within the legislative domain of theAssembly; and (c) whether the attendance of the petitioners could becompelled legitimately.C

205. We may say that both Dr. Singhvi and Dr. Dhavan werequite conscious of the limitations which inherently exist on the powers ofthe Assembly. It is in that context that their argument was premised ona broader understanding of the expression “peace and harmony”, asopposed to it being restricted to law and order. However, the difficultyDthat they face relates to the part of the Terms of Reference that wasclearly outside the purview of the powers vested with the Assembly.This problem was compounded by what transpired in the pressconference held by the Chairman of the Committee. Speaking on behalfof the members of the Committee, the Chairman made certain statementsthat assume greater significance by virtue of being in the public domain.E

206. We also do not disagree with the in-principle submission ofDr. Dhavan, drawing strength from judicial precedents in the US, thatthe power to investigate is inherent in the power to make laws by thelegislative body.[144] But while recognising this, the issue in the presentcase is whether the Assembly can at all legislate on the matter. TheFinvestigative function of committees carries with it the possibility ofresearchers ending up in some “blind alleys”.[145] This would have topresuppose that there is an alley. Thus, while we respect the right of theCommittee to the extent that there exists an obligation on the petitionersto respond to the summons, we cannot permit the proceedings to go onGin a manner that encroaches upon the prohibited entries. We hasten toadd that we are not seeking to control how the Committee proceeds. Infact, the Committee is yet to proceed. But certain provisions of the Termsof Reference coupled with the press conference is what has persuaded 144 Supra notes 76, 78, 79.H145 Supra note 79.

us to say something more than simply leaving it to the wisdom of theCommittee to proceed in the manner they deem fit.

207. Once again, we do appreciate the contention of Dr. Dhavanthat the police cannot be the sole custodian of peace and harmony andthat the expression itself has various connotations. Despite the StateGovernment being denuded of certain powers, it has to be noted thatgovernance has many manifestations, and functions of the Governmentcan be realised in different ways. This is especially true in the presentcase where the situation was admittedly created through an intrinsicallylaw and order issue.

208. The moot point is whether the expression “peace andharmony” can be read in as expanded a manner as Dr. Dhavan seeks todo by relying a on a number of Entries in List II and List III. We have nodoubt that peace and harmony, whether in the National Capital or in aState context, is of great importance. But it would be too much to permitthe argument that peace and harmony would impact practically everythingand thus, gives power under different entries across the three lists. We,do, however, recognise that the inquisitorial and recommendatory powerscan be utilised under the principle of better governance.

209. In the aforesaid conspectus, while keeping in mind Article212 which restrains courts from inquiring into the proceedings of alegislature, we must also note that a narrow scope of judicial review hasalways been appreciated and understood. We are confronted with asituation where the two legislative bodies are not on the same page as towhat transpired and there is in a sense, a tug of war on the issue as towho would look into what happened and what ought not to have happened.It is in this context that the learned Solicitor General emphasised thedoctrine of pith and substance to locate the power within the entrieswhich have been taken out of List II and thus, seeks to block the inquiryby the Committee on aspects which are already covered under the threeexcluded entries or under the I.T. Act.

210. The divergent contentions lead us to conclude that theCommittee can trace its legitimacy to several Entries in List II and ListIII without encroaching upon the excluded fields of public order or policetoundertake a concerted effort albeit not to the extent as canvassed byDr. Dhavan. Facebook cannot excuse themselves from appearingpursuant to the New Summons issued to them on 03.02.2021. Areaswhich are not otherwise available to the legislature for its legislative AB

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Aexercise may, however, be legitimately available to a committee for itsdeliberations. This is so in the context of a broad area of governmentalfunctions. Ultimately, it is the State Government and the State Assemblywhich has to deal with the ground reality even in the dual power structurein Delhi. If we may say so, it is only the factum of Delhi being the capitaland the sensitivities arising therefrom in respect of public order or policeBwhich has possibly persuaded these powers to be retained by the CentralGovernment. We cannot say that informed deliberation inter alia on thebest measures through which online mass hate and violence in theirgeographical jurisdiction can be addressed would not be within theCommittee’s area of competence as it would undermine the very purposeCof a vital democratic polity.

211. The unfortunate communal riots between 24[th] and 29[th]February, 2020 in various parts of Delhi, led to the death of 53 persons,caused significant damage to public and private property, disruptions toschools, transport, water supply, medical and other civic amenities.[146]DThe complexity of communal tensions and their wide-ranging ramificationsis a matter affecting citizens of Delhi and it cannot be said that theGovernment of NCT of Delhi cannot look into the causal factors inorder to formulate appropriate remedial measures. Appropriaterecommendations made by the State Government in this regard could beof significance in the collaborative effort between the Centre and theEState to deal with governance issues. It is in that context that this Courthad recognised that certain local interests are best addressed by theelected representatives of the concerned State:

“130. Sawer’s “federal principles” reiterate this concept of federalbalance when he states:F

“Power of the centre is limited, in theory at least, to those matterswhich concern the nation as a whole. The regions are intended tobe as free as possible to pursue their own local interest.”[147]

212. We are of the view that because of the pervasive impact ofGthe riots, the Committee could legitimately attend to such grievancesencompassing varied elements of public life. Thus, it would be entitled to 146 Delhi Minorities Commission, Government of NCT of Delhi, Report of the DMCFact-Finding Committee on North-East Delhi Riots of February, 2020 :accessibleat:https://archive.org/details/dmc-delhi-riot-fact-report-2020.H147 Supra note 27.

receive information and deliberate on the same to examine their bearingon peace and harmony without transgressing into any fields reserved forthe Union Government in the Seventh Schedule.

213. Let us now turn to the Terms of Reference. In the largercontext of what the Committee is supposed to do, reliance was placedon paragraph 4(i), i.e., to consider the factors and situations which havethe potential to disturb communal harmony in the National Capital Territoryof Delhi and suggest measures to eliminate such factors and deal withsuch situations with the object of establishing harmony among differentreligious or linguistic communities or social groups. This is not purely alaw and order or policing aspect and has several connotations. It wasnot necessary at that stage for the Terms of Reference to spell out as towhat 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.

214. If we turn to para 4(i) of the Terms of Reference, the objectwas to consider petitions, complaints or reports from the members ofthe public, social organisationsand journalists on the matter in issue wherecommunal riots have occurred. Once again this was intrinsically linkedto 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 whomincriminating evidence is found or prima faciecase is made outfor incitement to violence”

215. Clearly it is not within the remit of the Assembly to recommendaction against such persons against whom incriminating evidence is foundor prima facie case is made out for incitement of violence. This is anaspect purely governed by policing. It is the function of the police tolocate the wrong doer by investigation and charge them before acompetent court and this is what has really given a handle to the petitionersto approach this Court.

216. We have noticed the submissions of Dr. Singhvi and Dr.Dhavan, which really amount to saying that this paragraph is insignificantas no action can be taken. If that be so, then in that sense, this paragraphdoes not stand even though the petitioners may not have directly assailedit. In order to justify the legislative competence and the remit of theCommittee, the respondents have practically given up this para 4(vii)

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Aand we record the same and make it clear that this cannot be part of theremit of the Committee.

217. We may say that wiser advice prevailed in issuing the NewSummons dated 03.02.2021, which consciously specified the diluted areaof inquiry, conscious of the aforesaid limitation and if we may say, rightlyBso. What it takes care of is that it is not addressed to Petitioner No.1directly but instead it calls for the views of an authorised representativeof Petitioner No. 2, Facebook India. It has rightly used the expression“requested” and also used the expression “could” in the context of initiationof proceedings for breach of privilege and has categorically withdrawnthe previous notices and summons. On the lighter side, possibly Dr.CSinghvi’s advice was adhered to.218. The result of the aforesaid is that fallacies in the noticesstand removed.

219. We have already noticed that the statements made by theDChairman of the Committee during the press conference cannot be dilutedor brushed aside in a manner as learned counsel for the respondentsseek to do. No doubt some part of the press conference refers to thecomplaints received and statements made by persons deposing beforethe Committee. But, at the same time, it was stated by the Chairmanthat the material placed before the Committee had resulted in aE“preliminary conclusion”. Thereafter it was stated that “prima facie itseems that Facebook has colluded with vested interests during Delhiriots”. It does not rest at this and he further states:

“Facebook should be treated as a co-accused and investigatedFas a co-accused in Delhi riots investigation.” and “As the issue ofDelhi riots is still going in the court, a supplementary chargesheetshould be filled (sic) considering Facebook as a co-accused.”

The aforesaid statements and conclusions are completely outsidethe remit of the Committee and should not have been made. That it mayGgive rise to apprehension in the minds of the petitioners can also not bedoubted.

220. The further utterances also show that the findings havealready given out of the proceedings including 3-4 significant importantaspects including posting by Facebook of incriminating material on theplatform in spite of continuous request to remove the same and thatH

Facebook colluded with such web news channels, which has a soleagenda to confuse content and disturb social harmony. The Chairmanalso states that material has come before them which shows thatwherever there is content of harmonious nature, Facebook removes thatcontent while disharmonious content is promoted. A reference has alsobeen made to the race clashes in the US.

221. Towards the end it is also sought to be conveyed that in viewof the “incriminating material”, the representatives of Facebook wouldbe called upon to satisfy principles of natural justice before conviction.The prima facie view expressed is that Facebook is a co-accused andhence investigations regarding their role during the Delhi riots should becarried out and after such investigation, a supplementary chargesheetshould be filed.

222. If it may be said, it is as if the Committee was convinced thatFacebook must be prosecuted, and as if the Committee itself was theprosecutor 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 conduciveto fair proceedings before the Committee and should have been desistedfrom. 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 thesethings.

224. In view of the aforesaid, thus, while giving the widestamplitude in respect of inquiry by a legislative committee, we areconstrained to put certain fetters in the given factual scenario otherwisetomorrow the proceedings itself can be claimed to be vitiated.

225. The importance of Committees cannot be over emphasised.The Kalpana Mehta[148 ]case discusses this issue in some depth.Committees seek to perform the function of holding the Governmentaccountable to implement its policies, and its duties under legislation andthe performance of governmental agencies can be the subject matter ofreports formulated by these Committees. However, in the context of thepresent case, we are dealing with a scenario where on a particular subjectmatter there is no legislative mandate to enact a legislation even if, in a A

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Abroader sense, an inquiry is made. Thus, the aspect of holding the StateGovernment accountable is not really envisaged as per the Terms ofReference. Rather, it seems as if the Committee seeks to hold certainprivate players responsible for a law and order scenario, which is withinthe domain of the Central Government. Therefore, the general principlesapplicable to Committees would apply with a little difference in the givenBscenario.

226. We are conscious of the rationale emphasised that the widejurisdictions of the High Court under Article 226 or of this Court underArticle 32 of the Constitution should not normally be exercised in a mannerCoblivious to the enormous work carried out by the ParliamentaryCommittees “in the field”. An Assembly, more so in the nature of DelhiAssembly with its own peculiarities (i.e., the exclusion of certain powers),even if given the widest amplitude and powers which a Committee shouldhave; cannot step on the toes or rather shoes of an entity having exclusivejurisdiction by reason of List I.D

227. We cannot lose sight of the repeated brushes which haveoccurred between the current dispensation in the Central Governmentand the State Government and the Courts being called upon to definethe contours of their powers. Sagacious advice to act in concert appearsto have fallen on deaf ears. We are, faced with a scenario which is aElittle 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 undertakenby the Committee in question. One set of fetters is not required becauseit has already been conceded that para 4(vii) of the Terms of Referenceis otiose and that there will be no endeavour to prosecute. However,Fanother set of fetters become necessary because of the historyrecorded aforesaid and the significance of the press conference givenby the Chairman of the Committee. The subject matter went muchfurther than it ought to have and as a result, we have analysed thepress conference in detail to repel the contention on behalf of therespondents that this aspect should not be taken seriously or is moreGpreemptory in nature. We are clearly of the view that it is not so. TheCommittee cannot have a misconception that it is some kind of aprosecuting agency which can embark on the path of holding peopleguilty and direct the filing of supplementary chargesheet against them.We, thus, opine that this aspect has to be kept in mind by the Committeeso as to not vitiate future proceedings and give rise to another challenge.H

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 excludedEntries, i.e. law and order and police, any representative of Facebookwho would appear before the Committee would be well within theirright to refuse to answer the query and such an approach cannot betaken amiss with possibility of inviting privilege proceedings. It is adelicate balance to follow and we do not seek to give an excuse to therepresentative of the petitioners to not answer questions and frustratethe proceedings before the Committee qua the petitioners. However,at the same time, we give this very limited protection were theCommittee to embark on these prohibited areas. We are quite confidentthat such an eventuality will not arise, given the important role that theCommittee 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 thepetitioners, but in view of the elaborate arguments and length of thejudgment, we consider it appropriate to summarise the ratio/directions inthe following terms:

I.There is no dispute about the right of the Assembly or theCommittee to proceed on grounds of breach of privilegeper se.

II.The power to compel attendance by initiating privilegeproceedings is an essential power.

III.Members and non-Members (like the petitioners) can equallybe directed to appear before the Committee and depose onoath.

IV.In the given facts of the case, the issue of privileges ispremature. Having said that, the insertion of para 4(vii) ofthe Terms of Reference taken along with the pressconference of the Chairman of the Committee couldlegitimately give rise to apprehensions in the mind of thepetitioners on account of which a caveat has been made.

V.Canvassing a clash between privilege powers and certainfundamental rights is also preemptory in the present case.

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AVI.In any case, the larger issue of privileges vis-a-vis the rightof free speech, silence, and privacy in the context of PartIII of the Constitution is still at large in view of the referenceto the larger Bench in N. Ravi.[149]

VII.The Assembly admittedly does not have any power toBlegislate on aspects of law and order and police in view ofEntries 1 and 2 of List II in the Seventh Schedule inter aliabeing excluded. Further, regulation of intermediaries is alsosubject matter covered by the I.T. Act.

VIII. The Assembly does not only perform the function ofClegislating; there are many other aspects of governancewhich can form part of the essential functions of theLegislative Assembly and consequently the Committee. Inthe larger context, the concept of peace and harmony goesmuch beyond law and order and police, more so in view ofon-the-ground governance being in the hands of the DelhiDGovernment.

IX.Para 4(vii) of the Terms of Reference does not survive forany opinion of the Committee. It will not be permissible forthe Committee to encroach upon any aspects strictly withinthe domain of Entries 1 and 2 of List II of the SeventhESchedule. As such, any representative of the petitionerswould have the right to not answer questions directly coveredby these two fields.

229. That brings us to the end of this saga. The writ petition isaccordingly dismissed, subject to terms aforesaid.F

Postscript:

1. COVID times have been difficult for everyone. The Judiciaryand the Bar are no exception. It has been a contributing factor in therebeing a period of four months between reserving the judgment andpronouncement of the order, but that is not the only reason.G

2. We have noticed the presumptive nature of grievances and theinvitation to the court to opine on the same with undoubtedly a handlebeing provided by the respondents. The saga of the hearing lasted 26hours – which is a lot of judicial time. Daily time period was recorded.

Apart from pleadings, there were written synopses, additional writtensynopses, rejoinders and replies filed liberally by both parties. Theconvenience compilations themselves were very voluminous, incontradiction to their very purpose. Our concern is if this is how theproceedings will go on in the future, it will be very difficult to deal withthe post COVID period, which is likely to see a surge in the number ofcases pending adjudication.

3. What is the way forward? We do believe that there needs to beclarity in the thought process on what is to be addressed before theCourt. Counsels must be clear on the contours of their submissions fromthe very inception of the arguments. This should be submitted as a briefsynopsis by both sides and then strictly adhered to. Much as the legalfraternity would not want, restriction of time period for oral submissionsis an aspect which must be brought into force. We really doubt whetherany judicial forum anywhere in the world would allow such time periodsto be taken for oral submissions and these be further supplemented bywritten synopsis thereafter. Instead of restricting oral arguments it hasbecome a competing arena of who gets to argue for the longest time.

4. We have looked into this aspect to see if there are anyinternational best practices and would like to refer to some of themwithout a very expansive discussion.

5. Article 6 of the European Convention on Human Rights, whilerecognising the right of fair trial and public hearing, qualifies it inter aliato be completed “within a reasonable time”.[150] This is intrinsically linkedto administering justice without delays. Delay in judicial proceedings hasbeen the bane of our country and there cannot be a refusal to part waysfrom old practices especially when they have outlived their purpose. It isthe litigants who bear the costs of our complex and prolonged adjudicatoryprocess. We are conscious of the equal responsibility of this side of thebench – it is the need of the hour to write clear and short judgmentswhich the litigant can understand. The Wren & Martin principles ofprecis writing must be adopted. But then how is this to be achieved if thesubmissions itself go on for hours on end with vast amounts of materialbeing placed before the Court; with the expectation that each aspectwould be dealt with in detail failing which review applications will befiled (not that they are not filed otherwise!) We are weighed down by AB

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Ajudicial precedent. Often a reference is made to the judgment of thePrivy Council or the earlier years of the Supreme Court, which sawshort and crisp judgments but then, the volume of precedents we facetoday was not present then. In a technological age like ours, all that isrequired is to instruct the junior counsel to take out all judgments on aparticular point of view and submit it to the court in a nice spiral binding.BOn every aspect there may be multiple judgments. In our view if theproposition of law is not doubted by the Court, it does not need a precedentunless asked for. If a question is raised about a legal proposition, thejudgment must be relatable to that proposition – and not multiple judgments.The other scenario is if the facts of the cited judgments are so appositeCto the facts of the case that it could act as a guiding principle. In R. v.Erskine; R. v. Williams[151] a well-known aphorism of Viscount Falklandin 1641 was noticed “if it is not necessary to refer to a previousdecision of the court, it is necessary not to refer to it. Similarly, if itis not necessary to include a previous decision in the bundle ofauthorities, it is necessary to exclude it. That approach will be rigidlyDenforced.” This forms the basis of the criminal practice directions inthe UK which apply to all criminal matters before the Court of Appeals,Crown Court, and the Magistrate’s Court. Criminal practice directions(vii) clarifies that if a judgment does not refer to a cited case, it is notthat the court has not referred to it but rather, that the court was notEassisted by it. We adopt the same as we can say no better.

6. The contribution to the development of law can be nurtured bycomprehensible precedent. There may be times when the complexity ofmatters gives rise to complex opinions. But we find that judgments arebecoming more complex and verbose only on account of large numberFof precedents cited and the necessity to deal with them and not merelyrefer to them as is done in other countries.

7. We have for long discussed case management but seldom is itfollowed in its true letter and spirit. This may possibly be because of thelarge volumes of cases but then this is all the more reason for betterGmanagement.

8. The US Supreme Court is more restrictive in its time frame –not that UK Courts are far behind. The norms and the traditions takecare of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the writtensynopsis and the material sought to be relied upon. We do not doubt thatlawyers think on their feet but then given the current milieu, there has tobe clarity before the lawyers get on their feet keeping a little leeway inmind for something which may evolve during the arguments.

9. The Supreme Court of India as on 01.05.2021 had 67,898pending matters.[152] The time spent on routine matters leaves little timeto settle legal principles pending before larger Benches that may havean impact down the line on the judicial system. We have a straight exampleof this with a reference to a larger Bench pending in N. Ravi[153].

10. Another matter of concern is prolonged interim proceedings.In criminal matters, even bail matters are being argued for hours togetherand at multiple levels. The position is no different in civil proceedingswhere considerable time is spent at interim stage when the objectiveshould be only to safeguard the rights of the parties by a short order, andspend the time on the substantive proceedings instead which could bringan end to the lis rather than on the interim arrangement. In fact, interimorders in civil proceedings are of no precedential value. This is the reasonit is said that we have become courts of interim proceedings where finalproceedings conclude after ages- only for another round to start in civilproceedings of execution.

11. The purpose of our post script is only to start a discussionamong the legal fraternity by bringing to notice the importance ofsuccinctly framed written synopsis in advance, and the same beingadhered to in course of oral arguments to be addressed over a limitedtime period and more crisp, clear and precise judgments so that thecommon man can understand what is the law being laid down. After all,it is for ‘the common man’ that the judicial system exists.

Divya Pandey

Writ Petition dismissed.

152 Statistics, Monthly Pending Cases, Types of matters pending in Supreme Court ofIndia as on 01.05.2021, Supreme Court India, accessible at: https://main.sci.gov.in/statistics.

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