Argument Analysis: Supreme Court Reserves Judgment In Ajit Mohan's Plea Challenging Issuance Of Delhi Assembly Summons

  • Shruti Kakkar
  • 08:56 PM, 24 Feb 2021

The Supreme Court on Wednesday reserved Judgment in M.D. & Vice President of Facebook India, Ajit Mohan's plea challenging the Delhi Assembly's summons after rounds of hearing(s) that lasted almost 26 hours.

The matter was today listed for final submissions of Sr Adv Harish Salve. Before making the submissions, Justice SK Kaul asked Sr Adv Harish Salve,

As per the modified notice you are being called upon, as you may say as a witness or expert as a platform which is rendering services. The argument has been that Parliamentary privilege was to be utilised, the Court is not devoid of the power to take interaction then. You are seeking some kind of preventive order anticipating something will go wrong. There were some things that gave apprehensions in your client's mind. Are we really required to go into privilege when the issue of privilege has not arisen ? There is no privilege notice. Privilege has to go through various stages before it is taken”.

He further said, “Second issue is the concept of core function of Parliament lists etc. Can the list be read so restrictively? In matters of police, public order and land the power has been excluded. Can we say that the Delhi Assembly’s Peace and Harmony Committee is denuded of the right to even find the matters on which it has powers on rule of law cannot be explored because it somehow may touch on law & order & police?”

Answering to Justice Kaul’s question,

Salve: We have a legal principle on this. Incidental encroachment.

Justice Kaul: The argument is that you cannot be an unaccountable platform.

Salve’s in his opening statement submitted that issuance of the new notice made the entire matter worse as the terms of reference issued in the previous notice remained unamended. In this context, he placed reliance upon the letter made by the IT Minister,Union Ministry to Mr Mark Zuckerberg making allegations of bias against the government. Salve further contended that there was a huge political divide, and the petitioner did not want to make any opinion on this divide. He further submitted that the petitioner would comply with all the Indian Laws but if the petitioner was asked to give his opinion on a political divide, then the petitioner had the Constitutional right to not comment.

If the petitioner accepts the jurisdiction of the Committee, then the petitioner would not have the right to remain silent. Dr Singhvi and Dr Dhawan are only postponing the evil day.”, Salve further submitted.

His first major submission was that the Peace and Harmony Committee did not have the power to summon third parties. In respect to this submission, he further contended even if the Committee had the power to summon third parties, then the Committee could only summon and hold discussion with respect to the core functions. Salve further contended that the original notice was addressed to Mr Ajit Mohan personally and the summons compelled the address to testify on oath which was inconsistent with the existence of the powers of the Committee.

Salve’s second submission was the power entry 39, List II that dealt with “Peace and Harmony” was of no relevance to the Committee because of Article 239AA(2B). To substantiate this argument, Salve referred to The Government of National Capital Territory of Delhi Act,1991 to submit that all the constitutional provisions applicable to the Assembly were replicated in the statute and even the power of privilege. He also referred to Section 5 (Duration of Legislative Assembly), 6 (Sessions of Legislative Assembly, prorogation and dissolution) , 7 (Speaker and Deputy Speaker of Legislative Assembly) , 11 (Rights of Ministers as respects Legislative Assembly) , 18 (Powers, privileges, etc., of members) , 22 (Special provisions as to financial Bills) , 23 (Procedure as to lapsing of Bills), 24 (Assent to Bills) , 25 (Bills reserved for consideration) , 27 (Annual financial statement) of The Government of National Capital Territory of Delhi Act,1991 to further substantiate his argument. While referring to section 18(3) of the The Government of National Capital Territory of Delhi Act,1991 Salve further contended that the power, privileges were creatures of Parliamentary law under Article 239 AA (2B) of the Constitution of India,1950. Reliance was also placed on Article 170, 171, 174, 175, 176, 178 to submit that the Assembly had none of these powers and all of the powers asserted by the Committee were statutory.

The third major submission made by Salve was that the route of Code of Criminal Procedure,1973 to climb into public order was not available. In this regard he referred to relevant paragraphs of the Supreme Court judgement of Govt. of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193.

With respect to the submission on incidental encroachment, Salve placed reliance on Article 246 of the Constitution of India,1950 to submit that if the Parliament makes law on a subject that encroaches on any subject mentioned in List 2, then the law of Parliament will prevail.

Enquiries entry in entry 45 of List 3 of VIIth Schedule in the Constitution of India,1950 is not applicable”, Salve submitted.

Salve in his last major submission contended that the definition of Appropriate Government under section 2 of the Information Technology Act,2000 meant “As respects any matter,- (i) enumerated in List II of the Seventh Schedule to the Constitution; (ii) relating to any State law enacted under List III of the Seventh Schedule to the Constitution, the State Government and in any other case, the Central Government” which proves delegation of powers by the Union Government.

Please do not permit this kind of expansion of powers through the backdoor and please protect citizen’s rights. Right to speech and silence is of great virtue in today’s world. That is my final submission.”, Salve submitted while concluding his arguments.

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