Argument Analysis: Facebook's MD, Ajit Mohan's Challenge To Issuance Of Delhi Assembly Summons In Supreme Court

  • Shruti Kakkar
  • 02:02 AM, 04 Feb 2021

Supreme Court continued hearing arguments in M.D. & Vice President of Facebook India, Ajit Mohan's plea challenging the summons issued by the Delhi Assembly.

Hearing in Ajit Mohan v. Legislative Assembly, NCT of Delhi before of 3- Judge Bench of the Supreme Court, comprising Justice S.K Kaul, Dinesh Maheshwari & Hrishikesh Roy commenced on a light note with Hon’ble Justice S.K Kaul saying that, “In Judicial Academies I in my lecture normally tell them that in our school days we used to have a book on grammar and literature and there is always a very nice caption which used to exist on precis writing there, and I think all of us must keep that in mind. It equally applies to all of us.

Dr Singhvi began his submissions stating that in these seven and a half eight hours all the three persons included have travelled to areas are not at all necessary for the decision in this case. He further substantiated this point by submitting that petitioners gave the Bench much learning on the privilege without any actual notice of privilege much fewer proceedings of privilege.

If the petition is accepted it would render the very functioning of the committee system of legislature highly circumscribed and truncated. This applies to not Parliament alone but to other Legislative Assemblies, twenty-five in number, all over India. Very quaintly all these very large issues arise in premature abstract proceedings with virtually no cause of action except the summons. No coercive steps are taken, attendance not done, questions not asked, answers not seen, your Lordships are being asked to give an advance ruling or advisory opinion etc.
- Singhvi submitted.

He further argued about jurisprudential Rulings' applicability submitted by petitioners applied only to Delhi Assembly and not to Parliament.

He stated that the petitioner company has appeared more than once copiously and deposed in front of a Parliamentary committee which stands in law on identical terms.

Dr Singhvi further contended that there are 3 direct entries 1, 2 and 18 of list 2 based on which the Bench can make an advanced interpretation that the Govt of NCT, Delhi is without competence.

At this juncture, SK Kaul, J observed orally, "Some arguments may have gone far and wide, but some part of your problem emanates from how the notice has been issued. The problem is, to some extent, to your creation.

"Even if at a narrower compass we are looking to see if a particular entry covers or not. Some areas fall within the state domain, areas that fall within the centre's domain. They are the subject matter of part 1 list, part 2 list and part 3 list. If exercise does not come within the ambit of the entry that governs that particular state assembly's powers, then you cannot call, this is the first issue that comes to my mind. The second issue is if you are holding an enquiry can you compel a person before the court, this is the second aspect that comes to my mind. Thirdly a sequel to that is can that person say you may be wanting, and I don't want to participate in it. The argument that why it cannot be premature is that they've approached is don't compel me to come, you do so what you want, but I don't want to participate. This is not something I would want to comment upon. Now whether he can say this or not is the argument point."

The first significant submission advanced by Dr Singhvi was that the Bench was not made aware of the questions posed. Neither of the answers was given and was also not informed that the petitioner was asked to attend the privilege committee and day after the petitioner may be jailed. He further stated that the Bench was not made aware of the actual situation of Article 21 arising in facts.

At the outset Justice SK Kaul  said that, “It arises because of the notice. Therefore I am saying if the notice had been withdrawn and possibly if you had taken our advice earlier and sent something after advice, the problem could have been largely solved”.

Hrishikesh Roy, J: There is a fact of breach of privilege  in your second notice and this is what triggered the arguments in the direction it has taken. You said it in the very beginning that I have sub issues and I may send another notice but that is what the hint of privilege breach in your second notice has triggered all the arguments.

Justice SK Kaul: I think Dr Singhvi, the only caveat that I have is that your client should have withdrawn these notices if they felt that it didn't contain what it should have contained and wanted to include and sent a notice that they wanted to send moving to the court to seek permission. Therefore, your client even till today has not expressed its intention of withdrawing these notices. They need to state that they are withdrawing this notice and sending an unequivocal notice. If this does not happen, we will have no other option to go into areas but if you send a fresh notice we will hold it over and say that we don't want to lose all the time spent on hearing the matter.

At this outset, Senior Advocate Rajeev Dhavan appearing for Respondent No 4 [Delhi Assembly] said,That kind of notice is a familiar notice for the Parliament and all state assemblies. That you follow summons or if the privilege committee looks into it. When Parliament sent a notice, the etiquette to follow was also laid down. The committee has followed the same format of notice. The footnote of the first notice was so damaging that it goes into the heart of the issue.”

“My client will not go. We cannot get this deferred by saying a new notice will be issued”, Senior Advocate Harish Salve said.

Dr. Singhvi responded to a question asked by Justice Kaul indicating that Mr. Salve had submitted that the Assembly cannot compel Mr. Mohan to give evidence on oath and that the Assembly did not send notice to Facebook for sending "any other alternative competent person" accustomed with the facts of the case.

To this, Dr. Singhvi replied "I have never said that apart from Mr. Ajit Mohan anyone else cannot be recognized before us."

At the outset, Justice Kaul asked Dr Singhvi to articulate his submission in one line to which Dr Singhvi said that, “ My submission is that any senior, competent responsible officer must come in summons so that my powers remain intact but I have not certainly fixed the notice to one person only”

In his second primary submission, Dr Singhvi contended that the Bench has heard submissions categorically premised and camouflaged on a very remarkable and wrongful absence of mutual respect in a difference between organs be it judicial or legislative organ Etc.

He further relied on the judgement passed by the Hon’ble Supreme Court in Shreya Singhal v Union of India (Writ Petition (Criminal) No.167 Of 2012) stated that the nature of the argument that the petitioner being an intermediary is not guilty and questioning on he being called is the worst barrage of advance ruling, lack of cause of action and in a legislative summons the prior interpretation of Information Technology Act, 2000.

Coming to the Third submission, Dr Singhvi contended that committee proceedings are house proceedings and the Bench does not normally look into or second guess or police house proceedings therefore by implication also in committee proceedings. Further stated that the whole idea behind this is reciprocal respect and also said that the petitioner has neither challenged the Constitution of the Peace and Harmony Committee nor its terms of reference.

Thereafter Dr Singhvi argued that it is an undisputed position in Indian Law that all committees of Legislature have power to summon and enforce compulsory attendance of persons including private persons and corporations as a witness and ensure their attendance through compulsory process.

Dr Singhvi elaborated Article 239 AA of the Constitution of India,1950 and relied on a bunch of Judgements including Government of NCT of Delhi v. Union of India.

Due to some problem in internet connectivity at Justice SK Kaul’s residence, Dr Singhvi could not conclude his arguments.

This matter will now be heard on February 4 after miscellaneous matters.

Read Arguments Advanced by Senior Advocate Harish Salve for Mohan on February 2, 2021 on the Right To Remain Silent