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

After extensive hearings, the Supreme Court on Wednesday reserved orders in the plea moved by Facebook India's head Ajit Mohan challenging the notice issued by the Delhi Assembly's Peace and Harmony Committee in relation to its inquiry into the 2020 Delhi Riots ( Ajit Mohan v. Legislative Assembly, National Capital Territory of Delhi ).

. A Bench of Justices Sanjay Kishan Kaul , Dinesh Maheshwari and Hrishikesh Roy today heard the final leg of arguments in the matter.

. As the hearing drew to a close, Senior Advocate Harish Salve asserted on behalf of Mohan that Facebook India cannot be compelled to speak before the Peace and Harmony Committee and that the top Court should uphold the right to silence.

. "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 argued. . The right to silence is a very valuable right in today's day and age... please protect this right. Harish Salve (for Ajit Mohan) . He exhorted the Court to restrict the Delhi Assembly from expanding its powers "throught the backdoor."

" Please do not permit this kind of expansion of powers through the backdoor and please protect citizens' rights", he said while concluding his arguments.

. Senior Advocates AM Singhvi and Rajeev Dhavan appeared today for the Peace and Harmony Committee. Senior Advocate Mukul Rohatgi appeared earlier for Facebook. Solicitor General Tushar Mehta appeared for the Central Government.

. Highlights of Salve's submissions today . Facebook cannot be compelled to give its views amid the polarizing situation in India . There is, as is facially apparent, a huge political divide today in India, Salve contended as he started his submissions today. In such a scenario, Mohan has the right not to express his views , which is Constitutionally protected, Salve argued.

. 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. Harish Salve (for Ajit Mohan) . "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.. If you ask me what is the effect of Facebook in India - I don't want to answer that. Constitution gives me that protection," Salve said, for Mohan. . Justice Kaul briefly interjected to point out that when Facebook is a platform for debate, debates are bound to occur.

" 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," Salve replied.

. Whereas the Court mused whether this aspect would be more relevant at a later stage, after Facebook appears before the Committee, Salve responded,

" If I accede to that jurisdiction, I will not be able to say no. "

. Salve also argued that the demand against Facebook is not to give evidence, but rather that it has to do with compelling its representatives to express their views, which cannot be permitted.

. " It (original notice) says 'You the addressee.' Why does it say that? Because it says 'in the wake of allegations levelled against Facebook, you the addressee are best suited to answer... your special knowledge in this regard would be imperative for this committee.'... If they ask for your views on social media, that is not evidence," Salve argued.

. Delhi Assembly's face-off not with Facebook, but with Union of India . In the course of his submissions, Salve contended that the Delhi Assembly's issue is less to do with Facebook and more to do with its differences with the ruling Central Government.

. " 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, " Salve argued.

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

. However, Salve went on to assert,

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

. He also referred to how Facebook has been accused of bias by all sides. In this regard, he recounted that on the one hand, Law Minister RS Prasad wrote to Facebook accusing it of being biased against those supporting the right-wing.

. On the other hand, AAP's Raghav Chadda has stated that a Wall Street Journal report indicates that Facebook is favouring the ruling regime.

. In a lighter vein, Salve added, " Facebook must be doing something right because it seems I have annoyed both sides equally . "

. Facebook must be doing something right because it seems I have annoyed both sides equally. Harish Salve (for Ajit Mohan) . Delhi Assembly cannot summon third parties beyond "core functions" . Salve has contended that the Delhi Assembly, more since Delhi is not a State and is a Union Territory, does not have the legislative competence to summon Facebook India in a matter that is beyond its assigned "core functions."

. Salve argued that the "core function" of holding the executive accountable will, in any case, rest with the Central government and not the Delhi Assembly.

" Who has this power in our case (to hold executive accountable)? 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, " he submitted.

. " Assuming you have the power to summon third parties, should it not be limited to what are your 'core functions'? ... 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 argued, adding that the notion of expanding an Assembly's privilege has been frowned upon by different courts.

. He asserted that it is up to Facebook India to decide whether or not to appear, and to choose not to appear even if it runs the risk of the committee saying something adverse in their report.

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

. He further questioned whether the Delhi Assembly notice comprises a summons - which may have to be complied with - or an opportunity for Facebook to present its case.

. In the latter scenario, where the Assembly says it is only giving Facebook an opportunity in fairness to present its side, then it is permissible not to attend the meeting and run whatever risks that may ensue.

. 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. Harish Salve (for Ajit Mohan) . He proceeded to assert that the Assembly does not have the power to issue a summons. In this regard, he also argued that Entry 39 of the Constitution is not applicable to the Delhi Assembly, more so since it is not a "State".

. Disputing the stance that Entry 39 is applicable to the Delhi Assembly, Salve argued:

" 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. "

. Salve also questioned whether Delhi Assembly could have taken up the issue citing the Information Technology Act on the pretext that the riots impacted school students.

" Students cannot be expected to study if India is in state of war. Does that give you the power over defence? 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 added that 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," he added.

. Delhi Assembly is doing doublespeak before Court . " There is a lot of doublespeak going on in the Assembly, let me expose that", Salve contended.

. Salve was referring to submissions made for the Assembly that while it has issued a revised notice to Facebook India on the court's orders, the original notice was also justified.

. " It's 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.... (Assembly says) 'I have withdrawn this notice but have done so under your Lordships' compulsion.. Please do not miss that your Lordships have heard contradictory submissions by one party. Assembly has told their original notice was correct," Salve submitted.

. He added that the Court ought to reject the revised notice when the Assembly says the " original notice is justified ."

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

Meera Emmanuel

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