Thread by @barandbench

Supreme Court to continue hearing petition filed by @Facebook India chief Ajit Mohan challenging the summons issued to him by Delhi Assembly's Committee in relation to #DelhiRiots2020. Arguments are likely to conclude today
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Solicitor-General Tushar Mehta: Adjudication here is of a constitutional question on whether Delhi Assembly will have legislative competence to summon someone for a probe in a subject which is under a different list.

SG Mehta: Essentially the question boils to whether the Delhi assembly examining the social media company can be done at all.

Justice Kaul:Salve argued he can choose to appear somewhere and he can choose not to appear somewhere. It was his business decision to appear before you

Justice Kaul: union of India has chosen not to put anything on affidavit and has maintained it as a inter turf battle

SG: there is no factual adjudication called for in this case. The question is can the Delhi Assembkh have the legislative competence to summon this person

SG: Question is not how to tackle @Facebook.

SG: What is being done by the Parliament can be a question

Justice Kaul: Mr Salve argued on a higher plain that he is an outsider and he can choose where to appear and where not to appear. They say it was a business decision to appear before you.

SG Tushar Mehta: I can file an affidavit tomorrow

Justice SK Kaul: We don't want to compel you. These are questions which is troubling us. Is it your stand that Delhi Assembly minus two entries and other assemblies cannot summon @Facebook or some like that?

SG: Delhi Assembly is a sui generis case

Justice Kaul: That is not an answer

Justice Kaul: Govt of India thought of putting a synopsis and not an affidavit. But the question is is it your stand that only Parliament and parliamentary committees can alone summon @Facebook and no one else.

SG: give me time for two years and submit an affidavit on record

Justice Dinesh Maheshwari: Delhi Assembly is without power on three entries. Is it your stand that Delhi Assembly cannot do anything on peace and harmony?

Justice Kaul: Parliament states police should not go with the state because of the peculiar character of the capital

Justice Kaul: There was a rationale to keep land, law and order and police with state. But apart from this it is an assembly. So is it your (Centre) stand that it does not have power to summon at all? Why do you construe peace and harmony to mean a law and order committee only?

Solicitor-General Tushar Mehta has sought TWO DAYS time to submit an affidavit. (there is a typing error in earlier tweet)

Justice Kaul: We are trying to understand what would be the answer of the government to these questions of ours will be

Senior Adv Harish Salve: The case has lasted 20.5 hours.

SG Mehta: For what purpose is @DrAMSinghvi and Mr Salve is measuring hearing by clock

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SG: can the case be adjourned till tomorrow. So I can also place our answer to the questions posed by you

Justice Kaul: There is a personal detention matter before us and it is tomorrow. @DrAMSinghvi is troubling me in another matter also. So that's why it is difficult

Matter to resume at 2 PM.

Justice Kaul: We are conscious we are the final court and whatever we say will have wider ramifications. So we will take into account all submissions.

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Solicitor-General Tushar Mehta: not opposing Dr Abhishek Singhvi and I am not supporting Senior Adv Harish Salve. My first proposition is after legislature decides something, scope of judicial review may not arise.

SG Mehta: 7 judge bench of this Court had laid down the law that if something is patently illegal or when Parliament or assembly travels outside the house and there is a violation of fundamental rights then jurisdiction of the court may arise.

SG: please look at the three lists. Entry in List 2 or 3 may be there of General nature but if a specific entry is there in List 1 , it's the entry in Union list which will prevail. There is the pith and substance test. This case has arisen before too.

SG: There is a parliamentary standing committee on Information Technology looking into this. I am not supporting @Facebook or @Twitter . It's an global, uncontrollable problem. We cannot have 28 assemblies decide what to do and what not to do.

Justice Kaul: If something is being looked into by the assembly and person from IT field is summoned then can it be said that they are entering upon Union's jurisdiction.

SG: I agree with @DrAMSinghvi that committees are very important. Now it is even more important that they stay within the Constitutionally permissible limits.

SG Mehta: I am treating it as a Sui Generis Delhi centric problem. @Facebook and @Twitter has the power to destabilize the society. This is a worldwide problem.
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SG: If there is a problem with Facebook then answer is not giving power to state assembly to summon them. It only needs a national response from the Parliament and it cannot have 28 assemblies taking a call on this.

SG: Legislative Privilege is the function of Legislative power. Kalpana Mehta judgment states that committees have constitutional functions. They cannot become a gossip workshop.. it's like okay we don't have power but let us summon people and discuss
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SG: Parliamentary privilege is defined is the sum total of rights enjoyed by the members of the house which they enjoy individually.

SG Mehta: Though are legislature has plenary power it has to operate within the constitutionally permissible limits. It has to be seen how would the courts exercise on jurisdiction when there is something is being decided which has happened inside inside assembly

SG Mehta: The question is what can be done to @Facebook and by whom. Please look at the statement of objects and reasons of IT Act which excludes any kind of interference by assembly. I am not saying @Facebook does not have a potential to create issues.

SG: Facebook is an intermediary. Here the content is sent to thousands. If intermediary plays any role it impacts peace, public harmony and security. Recommendations can be made by NGO, people etc. The recommendations by the committee had to be within permissible limits.

SG Mehta: This is a subject matter of the legislative field of the Parliament..there is a problem with all intermediaries and Facebook is just a more popular intermediary compared to others.

@Facebook

SG Mehta: There is a provision for prosecution even in the IT Act. But question is can there be a simultaneous excercise be carried out when there is no legislative competence.

Senior Adv Dhavan: There are powers delegated to the Union territory

SG Mehta: please don't vitiate the atmosphere

Senior Adv Dhavan: I am addressing the court. Sorry

SG: you should be sorry. You are interjecting

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SG: power of the committee is co terminus with the power of the assembly to co legislate. The committee can examine only if they have legislative competence do so

SC: there is a difference between competence of the legislature and holding a discussion

SG: they are not discussing. They are a body under the rules.

SC: It will not be the subject of assembly to legislate on subjects outside their list. But they cannot discuss also.?

SG: Can Delhi Assembly compel someone to give evidence?

Justice Hrishikesh Roy: Suppose Peace and Harmony Committee say they are not carrying a legislative excercise then your argument will fall ? If Facebook is not an intermediary then?

SG Mehta: Parliament comes our with an atomic policy which may have impact on public health. Now 28 assemblies cannot then discuss about atomic policy and its impact

Justice Kaul: Delhi Assembly has remit over many many fields. You can't say don't bother about peace and harmony

Justice Kaul: If it's about peace and harmony it will have impact on education.

SG: Please don't misunderstand me

SG Mehta elaborates on public order and what it entails

SG: Balkrishnan committee had suggested the exclusion of the entries from Delhi assembly purview so that there is no confusion or overlap of jurisdiction in regard to focal point of control or coordination

SG Mehta: I am giving an extreme example but your lordship is laying down the law. Just imagine if all the 28 assemblies contemplate issues regarding defence of the nation. Can they summon witnesses for the purpose of discussion. This would be a colouration exercise of power

SG: Forget Delhi, states like Arunachal and Punjab had police under the state list. But then can they summon people to depose on oath?

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Justice Kaul: You have to wrap up today. Otherwise this case will never end.

SG: The mere question here is of competence.

SC: we have heard you fully

SG: I will complete

SG Mehta: When there is a general entry in List 2 and a specific entry about the same in List 1 then the list 1 takes precedence. .
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Justice Kaul: We have heard learned Solicitor-General. Senior Advocates Harish Salve, and Arvind Datar are remaining.

Matter adjourned to next Wednesday
Feb 24

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