Supreme Court on Legislative Privilege

 

INTRODUCTION

 

On today’s show, we will discuss the case of Ajit Mohan and Others v. Legislative Assembly National Capital Territory of Delhi and Others, 2021 SCC OnLine SC 456. We had discussed this case on the last show regarding the observations of the Hon’ble Supreme Court in relation to wastage of judicial time. Today we will discuss the issue of legislative privilege that was discussed in this case. In layman terms, Legislative Privilege is the bundle of rights that the legislative assembly enjoys collectively and its members enjoy individually to carry out their functions.

 

FACTS 

 

On 02.03.2020, the Legislative Assembly of Delhi had constituted a Committee on Peace and Harmony in light of the Delhi Communal Riots that took place between 24^th to 29^th February 2020. Its purpose was to “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.”

 

According to the said Committee, it had received complaints against Facebook suggesting that it is used as a platform to fuel hate and communal discord. Multiple Summons were issued to the Facebook Officials to appear before the Committee of Legislative Assembly of NCT, but it was contended that the Legislative Assembly of NCT of Delhi does not have power to regulate intermediaries. Thereafter on 03.02.2021, a Fresh Notice dated 03.02.2021 was issued to Facebook seeking appearance of its officers.

 

The relevant legal provision apposite for our discussion is Article 194 (3) of the Constitution of India that provides that the powers and the privileges of a Legislature “shall be such as may from time to time be defined by the Legislature by law.” Now, let us understand the pertinent observations of the Court. 

 

OBSERVATIONS OF THE COURT

 

Firstly, it was the view of the Court that under Article 194 (3), the Constitution has given power to the legislature to make its rules from time to time and it would not be appropriate for the Courts to interfere with such powers.

 

Secondly, it was opined that intermediary like Facebook play a huge role in shaping public opinion these days and it is imbecile to suggest that Facebook is just another social media platform rather it is a business first.

 

Thirdly, it was observed that the proceedings before legislative assemblies are not the same as proceedings before the Courts and the functions performed by the legislatures are not just restricted to enacting of laws rather the legislature debates on many aspects and many of its committees do the hard groundwork before enactment of laws.

 

Fourthly, the Court was reluctant to invoke its powers of Judicial Review at threshold stage when merely the Summons have been issued for appearance. Further, the Committee is a creature of the Legislative Assembly and whether privilege powers could be exercised by it will be seen only when the same is actually done by the Committee and not at the threshold stage of issuance of summons.

 

Fifthly, according to the Court, the summons has been issued lawfully and no coercive action has been taken against the Facebook or its Officials. Even the intended coercive action could be avoided by simply participating in the proceedings.

 

Sixthly, it was argued that the Legislative Assembly has no legislative competence, and the Facebook is dragged in this matter because of political reasons. In this regard, the Court observed that “the power to investigate is inherent in the power to make laws by the legislative body.”

 

HELD BY THE COURT

 

Firstly, it was held that the power to compel attendance by initiating privilege proceedings is an essential legislative power.

 

Secondly, it was also held that in the larger context of maintaining peace and harmony, the legislative assembly is free to look into such aspects of governance.

 

Thirdly, the Committee had mentioned in its terms of reference that it may recommend action against persons against whom incriminating evidence is found. According to the Court, such terms of reference relate to Police Powers regarding maintenance of Public Order that are exclusively within Entry 1 and 2 of List II of Schedule VII of the Constitution of India as due to the unique status of Delhi, such powers are vested with the Centre.  Hence, such terms of reference are outside the scope of the power of the Committee and the Facebook would be free not to answer any questions in this regard.

 

CONCLUSION

 

I concur with the reasoning of the Court that entities like Facebook are more than social media platforms in today’s era and they have vital impact in shaping of public opinion. A Legislative Assembly has all rights to question any body and law-making is just one of the functions performed by it. Hence, I hope that in future, for trivial issues like issuance of summons, precious judicial time does not get wasted.