Thread by @barandbench

Supreme Court to continue hearing today in plea by @Facebook India Head Ajit Mohan challenging Delhi government's Peace & Committee's summons to him in relation to the #DelhiRiots2020.

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In the last hearing, the Centre argued through Solicitor General Tushar Mehta that the Peace and Harmony Committee cannot summon Facebook as it would be entering a domain occupied by the Parliament.

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Hearing commences

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#Facebook
#DelhiRiots2020

Sr. Adv Rajeev Dhavan begins. Says there is an important UK judgement he wishes to submit.

There was an inquiry that was done: Dhavan

Senior Adv Harish Salve interjects

Dhavan says he will only take a minute.

One of the parliament's primary functions is to ensure public accountability....: Dhavan reads.

The core function is accountability. That's all I wanted to say, I apologize to Mr Salve: Dhavan adds

I am happy my friend has cited this case, it was my bucket list of cases: Salve

Court: The argument is that you cannot be an unaccountable platform... for you to address

Salve says he will address.

Salve: The new notice makes it worse... I will tell your Lordship why this corporation does not want to attend.

Salve says he will place on record a letter from UOI to FB

Salve: There is facially apparent, a huge political divide...

Court Do you want to carry on business in India Mr Salve?... You are a platform for debate, debate will occur..

Salve: I am sorry milords, I do not want to participate in this debate, that's my right...I have a constitutional right to say I will not comment

Court: That situation will arise, Mr Salve, when...

Salve: Let us not mix the stage with the power...

Salve: If I accede to that jurisdiction, I will not be able to say no

Court: Are you saying every question will have to be answered?

Salve: Yes

Salve says he does not want to come running to court later seeking protection from arrest if he accedes to notice

Argues that Terms of Reference has not changed in revised notice. He adds that Dhavan has candidly submitted that he did not agree with withdrawing original notice

There is subterfuge by high public functionaries.. the revised notice is nothing but an attempt to get away from ... He (Dhavan) said 'nothing has changed - the first, second, third notice is good -I will ask whatever I want to ask' : Salve

Salve: I am on the existence of power, not the exercise

Sometimes it is necessary for the constitutional court to lay down the contours, Salve adds

Salve argues that even courts can only compel witnesses to given evidence, not their views.

Salve: The compulsion of experts (to give views) in a democracy is abhorrent.. what are they arguing?

Salve on how witnesses are summoned only to give evidence.

Salve: Your lordship will never compel expression of views..see the headiness today of this committee. This reeks of arrogance, that 'I have a right to compel experts (to give views)'"

Salve reads a parliamentary question on whether Government intends to investigation bias on online platform and the answer thereto that Government had taken note of a report by the Wall Street Journal etc.

Dhavan takes exception to mention of article he authored

Dhavan: It was an article I wrote when I was 32 years, I am 79 now

Court: No. 1, It is a compliment that you do not look 79. No. 2, I don't think you are a person who...so I assume what you thought at 32 will apply at 79

Dhavan adds that judgements have changed and argues against placing reliance on the article.

Dhavan: I think it is unfair.

Salve assures he doesn't propose to place reliance on the article.

Dhavan: Better

Salve: It is a matter of public knowledge that there is a divide on what took place in the capital city, who is responsible (Delhi Riots)... Both sides are saying we took sides... This is a political battle

Dhavan seeks to clarify: We simply said questions were asked about you and please come and help us in this process.

Salve: This committee starts, the Parliamentary committee starts - both of them are looking at the same thing.

#Facebook
#DelhiRiots
#SupremeCourt

Salve: What is important is the Terms of Reference are unamended.

#Facebook
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Salve: Its a very sad situation. The assembly has spoken to the Court with two voices. As a constitutional court, please do no trivialise the issue, with all humility.. please do not miss the significance of that.

Salve: These are not two laypersons in a commercial dispute... They cannot speak in two voices and they have spoken in two voices. (Assembly says) 'I have withdrawn this notice but have done so under your Lordships' compulsion.. The Delhi Assembly is speaking in two voices.

Salve: It is not about @Facebook. Today their face off is not with Facebook, it iswith the Union of India. (Assembly is saying) 'We are going to rub your noses... we are going to file FIR against all your lot.'

Salve: Please do not miss that your lordships have heard contradictory submissions by one party. Assembly has told their original notice was correct.

Court has to reject the revised notice when the assembly says the "original notice is justified", Salve contends

Dhavan: Is "constitutionally" correct

Salve takes exception to interruption: He disturbs my sentence

Salve: I thought I was giving Mr Dhavan more credit when I said he says the notice is justified. He says it was only constitutional, is he saying it is not justified? Justified means lawful

Salve: If both (Delhi Assembly and Parliament) are summoning and I cannot appear before both, it is my choice to attend one and not the other.

SG Mehta says he disagrees on this count: If the assembly has the jurisdiction, Facebook cannot say no

SG Mehta: If Assembly is taking up some issue within their legislative competence, then they must respect the Assembly as well

The court notes that Dr Singhvi, Dr Dhavan and SG Mehta's arguments are aligned on the question of whether FB must participate once jurisdiction is found for Parliament/ Assembly to summon.

SG Mehta only differs on whether Assembly has the jurisdiction, Court notes.

Salve: Why did I say "core functions"? Core functions have two functions... My submission is that you cannot summon third parties...

Salve: My first issue is that the Constitutional rights of speech and silence against summoning powers, particularly, for views and expert opinions

Assuming you have the power to summon third parties, should it not be limited to what are your "core functions"

Salve: I nuance what are the SG's submissions. SG's submission is the entire inquiry is ultra vires the Delhi Assembly... based on 2 legal paradigms - that entries do not give you this power, and second that this is an occupied field.

Salve notes submission that Union has the power over Public order and Information Technology

The issue of the Union Parliament, whether I appear or don't is one issue. I have a constitutionally protected right of speech and silence... : Salve

Salve: You as a public body may discuss anything you like.

But merely because as an elected body of representatives, you feel it necessary to discuss such an issue - it does not become your core function, you do not acquire those powers

Salve argues that this is a rehash of the Delhi Police case where Delhi Govt started registered FIRs against Union ministers saying offence occurred in Delhi.

Salve: Your power to discuss to something or your larger canvas - the house of elected people - this expanded notion of privilege has been frowned up by different courts.

*frowned upon

Salve urges Court to decide on the Constitutionality of the notice since the Delhi Assembly has said it is constitutional.

Salve: Assembly can't say the notice is constitutionally valid

Salve makes submissions on legal consequences of summons

Salve adds: I have to take that call, that they will say something about me in their report. I may choose not to go.

Salve: I may not give my reasons, because I don't want say unnecessary things. I very politely decline. That is also my right.

Court breaks for lunch. Hearing to continue at 2 pm

#Facebook
#DelhiRiots
#DelhiAssemblyNotice
#SupremeCourt

Bench re-assembles. Hearing resumes.

Salve seeks to submit the Standing committee's Information Technology paper (as sought by Court). Court asks him to send it via email.

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#DelhiRiots
#DelhiAssemblyNotice
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Adv G Ramakrishna Prasad makes submissions on rules of the standing committee. He reads out the functions of the standing committee

#DelhiAssemblyNotice
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Salve: While your Lordships have this paper at hand, may I show one or things?

Court: Yes

Salve: There is a heading called...

Court: Mr Salve, haven't received it yet...During the course of submissions, we may come to it.

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Salve : Recapitulating the issues, have already made submissions on the summoning of witnesses, experts and expression of views...I already made submissions on how the Assembly has spoken in two voices...

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Salve: I have a right not to go if I have understood my right to silence correctly.... I do not want to be in the middle of a divide.

#DelhiAssemblyNotice
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Salve: Something comes that the notice has been altered in its form. If they are serious about the revised notice...

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#Facebook

Salve: If you say all notices are constitutionally valid, there is a radical shift...The radical shift is this. The original notice was address to Mr Ajit Mohan personally.

#DelhiAssemblyNotice
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#Facebook

Salve: It says 'You the addressee" - why does it say that? Because it says 'in the wake of allegations levelled against FB, you the addressee are best suited to answer... your special knowledge in this regard would be imperative for this committee

#DelhiAssemblyNotice
#Facebook

Salve further reads that the original notice says "you as a witness" is being summoned "for testifying on oath"

Salve: This is to expedite the determination of the veracity of allegations against Facebook in the complaints.

#DelhiAssemblyNotice
#Facebook

Salve: Now we are told put the issue of privilege to one side, that notice is still in play as far as substance is concerned.

#DelhiAssemblyNotice
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Salve: That is why the duality of submissions is very important. "testify on allegations made on oath by you" (the notice says)

#DelhiAssemblyNotice
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#SupremeCourt
#DelhiRiots

Salve goes on to refer to Feb 3 affidavit

Dhavan: Before Mr Salve proceeds, he had made a distinction between "justification" and "constitutionality"

Salve: No, I am not on this milord, please... This is not fair. Please my lord, may I complete?

Court: Let him complete.

Salve continues

Salve: This issue is still in play. The terms of reference...

Court: (Assembly has said) previous notices are withdrawn

Salve: There is a lot of doublespeak going on in the Assembly, let me expose that.

#Facebook
#DelhiAssemblyNotice

Salve: Look at the speech of your chairman... they want to go into allegations that Facebook is supporting Right-wing people and inciting violence...

#Facebook
#DelhiAssemblyNotice

Salve: My learned friend has skillfully bundled together many things. if they want to give me an opportunity, then it should be up to me whether to avail the opportunity.

#Facebook
#DelhiAssemblyNotice

Salve on the issues he is addressing: Do you have the power to compel me? That is a constitutional issue

#Facebook
#DelhiAssemblyNotice

Salve: You may have the power to summon. But you say I am not summoning, I am giving you an opportunity.

Salve adds that if it is an "opportunity" given in fairness, then it is permissible not to attend and run whatever risks that may ensue.

#Facebook
#DelhiAssemblyNotice

On the other hand, Salve contends: If I don't show up pursuant to a "summons" (if they have the power to issue summons), I may have committed a wrong.

#Facebook
#DelhiAssemblyNotice
#SupremeCourt
#DelhiRiots

The line of inquiry in the original notice still remains, therefore the apprehensions remain, Salve argues.

#Facebook
#DelhiAssemblyNotice
#SupremeCourt
#DelhiRiots

Salve: What is the power of summoning? ... The power of summoning, where does it come from? I want to first get entry 39 out of the way.

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#DelhiAssemblyNotice
#SupremeCourt
#DelhiRiots

Salve: Reliance was placed by Singhvi on entry 39. I submit that entry 39 has no role to play in the context of the Delhi Assembly. Let me make that point good.

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#SupremeCourt
#DelhiRiots

Salve refers to NCT Delhi Act.

Salve: All Constitutional provisions... have been replicated. Entry 39 is of no use.

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Salve refers to Sections 5 and 6 of NCT Delhi Act.

Salve observes that all are statutory provisions, the office of Speaker and deputy speaker are statutory.

Salve continues reading.

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Salve: Power to make rules of procedure comes out of Section 33 (of NCT Delhi Act), not out of the Constitution.

He goes on to refer to Section 44.

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Salve: Entry 39 has no role to play. In fact I don't know how this was even read.. this (Delhi Assembly) is not a "legislative assembly".

"Legislative Assembly" (referred to in the Constitution) is that of the States, Salve adds.

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Salve: Much as they may want to be a constitutional power, they are not. And I think it is about time the (Delhi) assembly reconciled to this.

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Court asks if there is express provision, observes that Salve is making the argument by implication.

Salve: The powers, immunities are created by parliament, not the legislative assembly.

Salve: The purpose of 39 is Article 194 (Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof).

Salve: There are so many strange submissions made on legislative competence. I shall deal with them one by one.

Salve: Parliament has made a law relating to privileges and parliament has not said (it will be in effect) "till such time that they make a law."

#DelhiAssemblyNotice
#Facebook

Salve: Mr Dhavan said that I am asking for something dangerous. I yield. I was asking that there must be a codification. It is unfortunate that the framers of the Constitution had something dangerous in mind.

He refers to Article 105 (3), says framers also wanted codification.

Framers wanted codification so that if something is excessive, it can be tested, Salve says. He adds that even if Parliament accepted Assembly's approach and made a law, Assembly would still not be able to make a law under entry 39.

Entry 39 is not available to this body: Salve

Salve reads out a judgment where he says an attempt was made by Delhi govt to "sneak their way" into invoking the subject of "public order" for certain actions and "the Court said no."

Salve is reading the Supreme Court case (Govt NCT of Delhi v Union of India) available here:

main.sci.gov.in/supremecourt/2…

Salve reads Article 246

Salve: Where there is an overlap, parliament prevails. This is called the dynamic of "notwithstanding anything" and "subject to."

Salve: My specific challenge is to the committee inquiry into information technology...

Court: Their argument was that if there was something that impacted peace and harmony... It was a peace and harmony committee, not a law and order committee...

Court says assembly submitted that it affected schools students, not that assembly is only on IT

Salve says he wants to test the contention

Salve: Students cannot be expected to study if India is in state of war. Does that give you the power over defence?

#DelhiAssemblyNotice

Salve cites more eg.s: If students should be given subsidised air travel, (can it be said), airways comes within our jurisdiction? You should allow free laptops for students so interstate commerce, customs duty comes under us?...students borrow loans, so banking comes within us?

Salve: This is not how the Constitution is construed. You (assembly) must stay within your power.

#DelhiAssemblyNotice

Salve adds he is not saying the Peace and Harmony committee is illegal: BUT don't give it the cloak of a standing committee doing a core duty of the house.

#DelhiAssemblyNotice
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#DelhiRiots

Salve adds that when called by the Peace and Harmony Committee -: I am entitled to read terms or reference and say 'I exercise my right of silence, I don't want to exercise my views...

#DelhiAssemblyNotice
#Facebook
#SupremeCourt
#DelhiRiots

Salve: If this is the nature of the committee, that defines your committee. And if this defines the nature of the committee you are not of the house.

#DelhiAssemblyNotice
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Kalpana Mehta case involved a completely different controversy, Salve says

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Salve adds that there are parts in the Kalpana Mehta case which has said that power of privileges is subject to Parliament.

#DelhiAssemblyNotice
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Salve reads a UK judgment

Salve: Look at the principle of law. When an inquiry is constituted, that is not parliamentary function, that is not privilege..

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Salve:... but once parliament has sent for the report, it becomes part of privilege, because it becomes part of the core government function of investigating and exposing wrongdoing on the part of the executive

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Salve: Who has this power in our case? Whether the social media is not being properly run or Delhi police is not properly investigating offences - for both, it is the union and the union alone

#DelhiAssemblyNotice
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Salve: I am once again respectfully reiterating, the judgements on incidental encroachment (of jurisdiction).

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Salve: f this power rests with the union the umbrella is wide... if the construction of Article 246... and Delhi police case carve out that Entry 1 and 2 have to be read widely, the essential legislation function of "holding the executive to account" is that of the parliament

Salve: If I am right, we cannot have two bodies holding this core function.

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Salve refers to the delegation of powers under the IT Act to the State government.

Salve: Who has given you the rule-making power? Union law

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Dhavan: I am sorry to interrupt. The argument that we made was on the blocking power. Substantive power has been given. It is a sharing of power.

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Salve: "Sharing power" is what they say as a matter of philosophical underpinnings. As a matter of law, it is "delegation of power."

In an article you can say "sharing of power. In a legal submission to a court of law, it is "delegation of power."

#DelhiAssemblyNotice

Salve: Politically you may say it is "sharing of power." But legally, it is a power conferred by a central statute.. this does not expand your legislative competence.

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Salve contends that his submissions are on core functions and legislative competence.

He argues that the other side cannot run away from the problem and say don't test it on extreme examples.

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Salve: We have come a long distance in the right of speech and silence. ... There is a world of difference between receiving evidence and receiving views and opinions.

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Salve: When you call someone to give evidence you are finding out what happened... views of a person are not evidence.

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Salve: The law of evidence prohibits giving views as evidence except for expert evidence...And experts are not asked to give views on facts.. he is asked to give views on a state of affairs of his expertise.

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Salve: If they call and ask 'I want to ask you want you did on the night of ... I want to see your emails to your boss, what Zuckerberg replied, who replied, what was your view, did you tell them your views, that 'it doesn't matter...'

Salve: If you ask for your views on social media, that is not evidence.

#Facebook
#DelhiAssemblyNotice

Salve: I choose to keep quiet. If you want to keep me in this debate that social media is controlled by the west, supporting the government - I don't want to answer. I work for an American company, I don't want to answer. This is today a polarizing issue.

#Facebook

Salve refers to how RS Prasad had written that FB saying that they are biased against the right-wing on one side while Raghav Chadda said WSJ says you are favouring the government.

Salve: #Facebook is doing something right because it seems I have annoyed both sides equally.

Salve: If you ask me what is the effect of @Facebook in India - I don't want to answer that. Constitution gives me that protection.

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#DelhiAssemblyNotice

Salve: They have called some responsible officer, the officer has to be India. The changed notice doesn't alter... it makes it worse.

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Salve: I don't want to talk about peace and harmony in India, I may have a completely different view. Today it is @Facebook, tomorrow it may be somebody else

#Facebook
#DelhiAssemblyNotice

Salve: Please do not permit this kind of expansion of powers throught the backdoor and please protect citizens' rights.

#Facebook
#DelhiAssemblyNotice

Salve: The right to silence is a very valuable right in today's day and age... please protect this right and leave it to me to decide whether or not I want to go. Lay down that this summons is an invitation and no more.

Salve concludes

#Facebook
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AM Singhvi starts to say something.

Court: No, no, no. All good things must come to an end.

#CourtroomExchange
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@DrAMSinghvi informs that he has sent a one-page note.

Court: We will read it

Court adds: If it is going to be continuous notes - notes and arguments - it is not fair to the court

Salve adds that he will also send something: No submissions, only a list of authorities.

#Breaking: Supreme Court reserves orders in petition challenging Delhi Assembly's Peace and Harmony Committee summons to @Facebook India representative in relation to #DelhiRiots.

#DelhiAssemblyNotice
#Facebook
#SupremeCourt

Dhavan: We thank your lordships for a patient hearing, no further submissions

Other counsel chime in: Deeply obliged.

Hearing over.

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#Facebook
#SupremeCourt

[Delhi Assembly-Facebook row] Right to silence valuable, protect it: Harish Salve urges Supreme Court as it reserves orders

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