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The Supreme Court continued hearing arguments in M.D. & Vice President of Facebook India, Ajit Mohan's plea challenging the Delhi Assembly's summons.
The matter today was listed for final hearing. When SGI Tushar Mehta started making his submissions on behalf of Union of India, Justice Hrishikesh Roy asked SGI if the Union of India should not have filed counter affidavits since it was represented by two or three parties and such a situation was about democratic functioning. Agreeing to Justice Roy, Justice SK Kaul further said that this matter pertained to questions of rights and there could be any medium be it facebook or twitter. He further said that the Union of India chose not to put anything on affidavit and only confined itself to an intra-tuff battle.
Answering to Justice SK Kaul, SGI said that the question here was whether Delhi Legislative Assembly and the Peace and Harmony Committee constituted by the Delhi Legislative Assembly had the legislative competence to examine any social media by summoning persons and compelling them to give evidence on oath.
The first major submission made by the SGI was that the Peace and Harmony Committee intervened on the matters related to Entries 1 and 2 of List II of the Seventh Schedule, i.e. “public order” and “police” respectively which fall within the exclusive jurisdiction of Union of India. In this context, he stated that issuance of summons dated 10.09.2020 and 18.09.2020 fell outside the scope of powers conferred upon the State Legislative Assembly as per the Scheme of the Constitution related to the State of Delhi. “The summons dated 10.09.2020 and 18.09.2020 issued by the State Committee also seek the testimony of the present Petitioner No. 1 on matters related to “communication”. It must be noted that “communication” as a subject-matter falls within the exclusive jurisdiction of the Union of India to legislate upon”, SGI submitted. He relied on the provisions under Article 212 to submit that the constitutional comity and separation of powers limited the scope of interference in legislative affairs by the constitutional courts. Still, in the present matter, the facts were on a different footing altogether.
Secondly, SGI submitted that the summons dated 10.09.2020 and 18.09.2020 issued by the Peace and Harmony Committee were ultra vires the Constitution of India. While contending that the Assembly of the NCT of Delhi was incompetent to regulate on the matters falling within the purview of “public order” and “police”, he relied on Article 239 AA(3)(a) of the Constitution of India which stated that the Assembly of the NCT of Delhi did not have the power to legislate upon the matters enumerated in entries 1 and 2 of the State List.
The third major contention of SGI was that the Peace and Harmony Committee was incompetent to issue the summons. In this context, SGI made the following submissions:
At this juncture, SGI placed reliance on Pandit M.S.M. Sharma v. Sri Krishna Sinha, 1959 Supp (1) SCR 806 : AIR 1959 SC 395 to submit that privilege was relatable to the “functions” that the Assembly discharged. In absence of competence, there could not be any corollary function. He further relied on In re, (1965) 1 SCR 413 also known as Legislative Privileges case in which it was observed that, “If the legislatures steps beyond the legislative fields assigned to them, or acts within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles that deal with the said fundamental rights, their legislative actions are liable to be struck down by courts in India.”
SGI: The question therefore has to be – If a Legislature, by virtue of undeniable constitutional provisions, cannot conduct any “legislative functions” in a particular field, can the said Legislature exercise any power of privilege concerning the said legislative domain? The answer necessarily has to be in the negative.
Fourthly, SGI Tushar Mehta contended that Respondent No 1’s claim that the legislative power to take impugned actions could be derived from Entries in the List II in Schedule VII – as apart from the unavailable Entries to Delhi Assembly - Entry 1 [law and order] and 2 [Police] and apart from Entry 31 [Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication] in List I were meritless. In this context, he submitted that,
“It is amply clear that the actions, in pith and substance, directly relate to the above quoted entries in Schedule VII over which the Parliament has the sole unilateral jurisdiction”. Reliance was placed on the Supreme Court’s judgement of M.P.V. Sundararamier & Co. v. State of A.P., 1958 SCR 1422, Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.
SGI further contended that in terms of power under Schedule VII, Delhi Assembly was a sui generis case because of Article 239 AA. He also argued that Respondent No 1’s assertion to the effect that any ruling would impact all the Legislatures in the country was ex facie erroneous.
Reference was made to the case of State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 to answer the question posed by Justice Dinesh Maheshwari which was that entry 2 of list 3 included the Code of Criminal Procedure,1973 and the Code under Chapter VIII dealt with Peace and Good Behaviour. He further asked SGI if his stand was that the Delhi Assembly could not do anything minus the three Police, Public Order and Land entries.
The next major submission by the SGI was that the Delhi Peace and Harmony Committee on 25th September 2020 issued summons dated 10.09.2020 and 18.09.2020 upon the Petitioner No 1 compelling him to appear before the Committee. The matter was already sub judice before the Parliamentary Standing Committee on Information and Technology that issued notice to the Petitioner No 1 to appear before the Parliamentary Committee to provide his views on the subject of “Safeguarding citizens’ rights and preservation of misuse of social/ online news media platforms including special emphasis on women security in the digital space” . In pursuance of the notice, the petitioner No 1 appeared before the Parliamentary Committee on 02.09.2020, SGI further submitted. Thus the summons issued by the Delhi Peace and Harmony Committee stand vitiated.
At this juncture, Justice Dinesh Maheshwari asked SGI: You have indicated that the same matter is sub judice before the Parliamentary Standing Committee on Information and Technology. Is that on record?
SGI: The same is not on record to. I would place them.
The hearing for February 17, 2021, concluded with SGI’s submission with he contending the Delhi Assembly had no legislative competence on the subject area covered by the Peace and Harmony Committee and that the entire exercise that resulted in impacting the rights of the petitioners was invalid and void ab initio. He further argued that As per Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123 and Mahendra Lal Jaini v. State of U.P AIR 1963 SC 1019, if the Legislature enacted a statute that lacked competence, then such statute remained still born, void, ineffectual and nugatory without having any legal force and effect in view of the provisions of Article 13(2) of the Constitution. Therefore, any step taken by the Legislature that affected the rights of citizens, over a subject that lacked legislative competence, then it would be as if it had never been in existence. “No privilege can be claimed over the same and as it confers no right and imposes no duties”, SGI Tushar Mehta submitted.
The matter is now listed for February 24 , 2021 for submissions by Mr Salve and Mr Datar.
Read Arguments advanced on February 9, 2021
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