Facebook India and its vice president and managing director, Ajit Mohan moved the Supreme Court on Tuesday challenging the September 10 and September 18 notices issued by the Delhi Legislative Assembly’s Peace and Harmony Committee which sought Mohan’s presence before the panel which is probing the Delhi riots of February 2020 and the role of the social media giant in failing to curb hate speech in connection with the riots.
The petition stated that the subject matter under investigation by the Delhi assembly falls within the exclusive domain of the Union government and a state legislative assembly cannot compel witnesses to appear and provide evidence on such subjects.
“The Committee seeks to compel petitioner No. 1 (Ajit Mohan) to provide testimony on subjects within the exclusive domain of the Union of India. Specifically, the Committee is seeking to make a “determination of the veracity of allegations levelled against Facebook” in the Delhi riots, which intrudes into subjects exclusively allocated to the Union of India,” the petition said.
Regulation of intermediaries like Facebook falls within the Union list of the Constitution under the Entry “Communication” (Entry 31) in the said list. The Parliament, in exercise of that power enacted the Information Technology Act, 2000 to regulate intermediaries. Therefore, any assessment of the veracity of allegations against Facebook as an intermediary is exclusively a Union subject, it was submitted.
Besides, it was contended that the summons violates the right of the petitioner to remain silent and right to privacy which are fundamental rights under Articles 19 and 21 of the Constitution.
“By targeting Facebook – a platform that allows users to express themselves – the summons create a chilling effect on the free speech rights of users of the Facebook service,” the plea added.
The case will be heard by a 3-judge bench headed by Justice Sanjay Kishan Kaul on Wednesday.
Mohan was first summoned by the committee for its meeting of September 15 in connection with the complaints alleging deliberate omissions and inaction by the social media company in removing hateful content and posts. The committee had earlier said that in its meeting of August 31, it had prima facie found Facebook India was allegedly complicit in aggravating the communal violence in north-east Delhi in February that left at least 53 people dead and over 400 injured.
A notice was issued to Facebook officials on September 10 based on that finding asking them to appear before the panel on September 15 but Facebook officials had failed to appear for that meeting after which a second notice was issued on September 18.
In its summons issued on September 18, the committee had said that it is empowered to make suggestions to the central government and it is in line with co-operative federalism which “encompasses a large number of areas including making recommendations to the union government when the same is required.”
The committee is investigating the matter based on several complaints received from the public after an article was published in the Wall Street Journal (WSJ) on August 14.
The WSJ report titled ‘Facebook hate speech rules collide with Indian politics’ had alluded to the role allegedly played by top Facebook officials, particularly its public policy head Ankhi Das, by citing business imperatives to refrain from applying hate-speech rules to at least 4 individuals and groups linked to the ruling Bharatiya Janata Party (BJP), though the groups and individuals had been internally flagged for promoting or participating in violence.
Meanwhile, Facebook had written a letter to the Delhi assembly’s panel on September 13 stating that the matter was already under consideration by a parliamentary committee and the subject matter relating to content regulation is outside the scope of state assembly.
This stance was reiterated by Facebook and Mohan before the top court with the petition stating that a state legislative assembly cannot compel non-members to appear before it for an investigation into a subject matter which is beyond its jurisdiction.
“The Constitution of India, in conferring powers upon Parliament and State Legislatures endows them with the power to hold a non-member in breach of privileges, but only if that non-member has impeded or obstructed the body’s legislative functions. The Committee’s powers do not extend to compelling non- members to appear when the non-member has not impeded or obstructed legislative functioning,” the plea said.