The Supreme Court on Wednesday ordered the Delhi Assembly panel to not take any coercive action against Facebook’s India head Ajit Mohan till October 15, PTI reported. Mohan was scheduled to appear before the panel today regarding allegations that the social media giant did not properly apply hate speech rules and policies, contributing to the communal violence that hit the city in February.
A bench comprising Justices SK Kaul, Aniruddha Bose and Krishna Murari issued the notice to the Delhi assembly secretary, the ministries of law and justice, home affairs, electronics and IT, the Lok Sabha and Rajya Sabha, represented by the secretary general, and the Delhi Police. They have been asked to respond to the petition filed by Mohan, who has challenged the jurisdiction of the Delhi Assembly to summon him.
The Peace and Harmony Committee deferred its meeting after the Supreme Court order. Mohan’s plea before the court said that the Delhi Assembly panel has no right to take action against him as there is no law that empowers a state legislature to take coercive action against any person, unless it obstructs or impedes its legislative functions. The plea added that the matter falls within the exclusive domain of the Union of India, or the central government.
During the hearing on Wednesday, Mohan’s lawyer Harish Salve argued that under Article 19(1)(a) of the Indian Constitution, the right to free speech includes the right not to speak. “If I do not want to appear and I do not give my comments on the issue...I am working for an American company,” Salve said. “The issue has political overtones. Forcing me to appear before the house panel with a threat of penalty is a violation of my fundamental right to free speech.”
Salve added that his client cannot be forced to bear penalties for not appearing before the Assembly panel. “Issues relating to communal riots are not within the powers of the Delhi Legislative Assembly,” he said. “Police and public order are not under the powers of Delhi Assembly. The committee has no authority of law to deal with these issues.”
Advocate Mukul Rohatgi, arguing for Facebook, said Mohan is the company’s employee and the threat of proceedings against him for not appearing before the panel is unconstitutional.
Rohatgi said that the Delhi Assembly panel had already concluded that Facebook has colluded to bring about the violence in Delhi. “Who are they to say that?” he asked, adding that the Delhi Assembly has no jurisdiction to summon Mohan.
In response, advocate Abhishek Manu Singhvi, appearing for the Assembly panel, said the defence was under the mistaken impression that coercive action will be taken against Mohan. He also said that Article 19 cannot apply to Mohan since he is not an Indian citizen.
“I am speaking for the committee and the chairman. Three things be recorded,” Singhvi said. “He is called as a witness. No coercive action is intended. Facebook is not called as an accused. This is to find out whether Facebook was misused. We are not saying Facebook was misused.”
Justice SK Kaul said the notice the panel issued has a different tenor from the one being expressed by Singhvi. The lawyer said he will make rectifications to the notice in two days. He said the meeting can be deferred until the rectified notice is issued. However, Singhvi insisted that the Assembly panel has the jurisdiction to deal with the matter. He added that the court cannot order an interim stay on the proceedings.
Justice Kaul said that the case cannot be decided finally on Wednesday since “we are at the notice stage”. The court asked the parties to the case to file counter affidavits within a week. It said rejoinders must be filed within three days.
The heart of the matter
On September 15, the panel had warned the social media platform that not appearing before it was not only in “contempt” of the Assembly but also an “insult” to the two crore people of Delhi.
A lawyer representing Facebook had told the panel that the matter was under consideration of Parliament and was therefore “untenable”. The Parliamentary Standing Committee on Information Technology chaired by Congress leader Shashi Tharoor met Facebook executives on September 2 to discuss content regulation, after questioning them for not taking down inflammatory content posted by Bharatiya Janata Party leaders.
The nine-member Delhi Assembly panel, mostly comprising AAP legislators along with one from the BJP, said they are well within their rights to summon the executives to answer serious charges levelled against them.
Facebook has repeatedly denied the allegations. “We prohibit hate speech and content that incites violence and we enforce these policies globally without regard to anyone’s political position or party affiliation,” a Facebook spokesperson had claimed. “While we know there is more to do, we are making progress on enforcement and conduct regular audits of our process to ensure fairness and accuracy.”
The company is facing intense political scrutiny in India, after the August 14 report that Facebook’s India policy head Ankhi Das had opposed removing incendiary posts by BJP leaders. A memo by a data scientist who was fired from Facebook Inc had also revealed that the social media company ignored or has been slow to deal with fake accounts that have affected elections around the world.