Facebook India's Ajit Mohan summoned as witness before Committee, cannot claim right to remain silent: Delhi Assembly tells Supreme Court

The Delhi Legislative Assembly has told the Supreme Court that no coercive action against Facebook's India Chief, Ajit Mohan, is taken nor is intended to be taken merely if he appears before the Committee that summomed him as a witness..In the affidavit filed before the Court, the Assembly has stated that as a witness, Mohan cannot claim the right to remain silent..The affidavit filed before the Supreme Court has clarified,."No coercive action has been taken against the Petitioner No. 1 (Ajit Mohan) and none was intended if the Petitioner No. 1 merely attended and participated in the proceedings as a witness. It is also important to note that the proceedings are being conducted in most transparent manner with live broadcast and therefore there is no question of any apprehension in respect of the proceeding either by the Petitioner No. 1 or anyone else.".The Delhi government's Peace & Harmony Committee had summoned Mohan as an expert witness to ascertain concerns pertaining to the use of Facebook for disseminating hateful content during this year's Delhi Riots..After this Committee had issued summons to Mohan on two occasions allegedly stating that his non-appearance would be treated as breach of privilege, Mohan had moved the Supreme Court..When the petition was heard by the Supreme Court on September 23 - which was also the last day set out by the Committee for Mohan to appear before it - the Court had issued notice and had directed the Committee to not hold a meeting on this issue till further orders..[Breaking] Ajit Mohan was summoned as a witness, without threat of coercive action: Mukul Rohatgi, Harish Salve and Singhvi appear.The Delhi government, however, maintains that the petition is misconceived, since no summons for breach of privilege or contempt have been issued to Mohan. The Committee, at no point, has said that Mohan is in breach of privilege or is in contempt, the Delhi government's affidavit seeks to place on record..One of the contentions raised by Senior Advocate Harish Salve before the Supreme Court was that Mohan could not have been put "in the pain of punishment" by being asked to appear before the Committee and that his Article 19(1) right also included the right to remain silent and not to depose. A House may decide on subjects it is empowered to decide on but Mohan, an employee of a US-based company, cannot be compelled to depose before the Committee, Salve argued..This contention has been refuted, with the Assembly averring that Mohan has already appeared before Parliamentary Committees, not just in India but also in the US, for giving opinions and expert comments. The right to remain silent cannot be exercised selectively and Mohan may not "pick and choose" which body he wants to depose before and which to refrain from, the affidavit states. Invoking Article 19(1)(a) in this case, as such, "prima facie is not genuine or bona fide".."The Petitioner No.1’s assertion that his being called to depose will have a chilling effect on the fundamental right to freedom of speech and expression is not bonafide, misplaced and frivolous. It is reprehensible to raise such an argument especially given that the Petitioners appeared before the Standing Committee on Information Technology of Parliament on being called to give evidence exercise similar powers as the Respondent No.1.".Furthermore, it is said that Mohan is not an accused in a criminal case and as such cannot claim the right to silence, considering that a witness cannot claim this right under Article 20 of the Constitution.Article 19(1)(a) rights are not in conlict with the Rules of Procedure of the Legislative Assembly of Delhi, the affidavit clarifies..Moreover, Articles 14 and 21, which Mohan has invoked in his writ petition, cannot be invoked in a case where a person is merely summoned to give an expert deposition before a Committee, the Delhi Assembly says..During the previous hearing, Senior Counsel Abhishek Manu Singhvi, appearing for the Delhi government, told the Court that Mohan was summoned as an expert witness without any threat of coercion. This position is further elaborated in the affidavit, which says that the first summons had invited Mohan's presence before the Committee for his response on certain issues pertaining to the use of Facebookduring the riots earlier this year. .However, in response to this first summons, another employee of Facebook wrote back to the Committee asking for the notice/summons to be withdrawn. It is the Delhi government's argument that the response received from a third party ought not have been entertatined by the Committee, which "went out of its way" to respond to the same with a detailed letter and fresh summons. It was this new notice that spoke of breach of privilege. Elaborating the same, the affidavit says,."It was only at this stage, when the Petitioner No. 1(Mohan) had in effect refused to appear and instead sought to respond through some other entity that it was pointed out that non-appearance of Petitioner No. 1 before the Committee can potentially be treated as breach of privilege.".Finally, the Delhi Assembly avers that in any case, the petitioner ought to have approached the Delhi High Court in the first instance, considering the fact that Article 32 jurisdiction of the Apex Court is limited to instances of violation of fundamental rights..The petition before the Court is "premature and misconceived", and deserves to be dismissed, the affidavit filed through Advocate Shadan Farasat says.