Holding

The Delhi Legislative Assembly and its Committee possess the power to summon non‑members, and the privilege issue is premature; the summons are valid and the petition is dismissed.

Summary

In the wake of the February 2020 Delhi communal riots, the Delhi Legislative Assembly constituted a Committee on Peace and Harmony and issued summons to Ajit Mohan, the Vice‑President of Facebook India, and later to Facebook India itself, seeking their testimony on the platform's role in online hate speech. The petitioners challenged the summons on the grounds that the Assembly lacked legislative competence to inquire into matters of law and order and that the power to compel non‑members to appear violated their fundamental rights to free speech, privacy and the right to remain silent. The Court examined the scope of parliamentary privilege under Articles 194 and 105, the legislative powers of the Delhi Assembly under Article 239AA and the Seventh Schedule, and the regulatory framework of the Information Technology Act, 2000. It held that the Assembly and its Committee have the authority to summon non‑members and that the privilege power is an essential component of legislative function, but that the privilege issue was premature as no breach of privilege had yet been established. Consequently, the petitioners' challenge to the summons was dismissed, affirming the validity of the new summons issued on 3 February 2021.

Issues considered

The Delhi Assembly's Committee on Peace and Harmony's power to summon Facebook representatives and compel their attendance.
Whether parliamentary privilege can be exercised against non‑members of the Assembly.
The compatibility of such privilege with fundamental rights, including freedom of speech, privacy and the right to silence.
The legislative competence of the Delhi Assembly to inquire into matters relating to online hate speech, public order and police functions, given the exclusions in List II of the Seventh Schedule.
Whether the petitioners' challenge is premature in the absence of any actual breach of privilege proceeding.

Legislation cited

Government of National Capital Territory Act, 1991s. 18, s. 37
Information Technology Act, 2000s. 2(1)(w), s. 69A, s. 79
Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhis. Rule 172

Subjects

parliamentary privilegelegislative committeeonline hate speechintermediary liabilityInformation Technology ActDelhi riotsfreedom of speechprivacylegislative competencecooperative federalism

Judgment

[2021] 14 S.C.R. 611 611

AJIT MOHAN & ORS. A
v.
LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY
OF DELHI & ORS.
(Writ Petition (C) No. 1088 of 2020) B
JULY 08, 2021
[SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
HRISHIKESH ROY, JJ.]
Constitution of India – Articles 194, 105 and 19(1)(a), (2) –
C
Online hate speech content – Social media platforms – Accountability
of – Parliamentary Privilege/ Privilege of Legislature – In the wake
of Delhi riots, Legislative Assembly of the National Capital Territory
of Delhi constituted a Committee on Peace and Harmony – Summons
issued to Managing Director of Facebook India, to appear before
it – Challenge to – Impugned summons withdrawn, new summons D
issued – Held: There is no dispute about the right of the Assembly
or the Committee to proceed on grounds of breach of privilege per
se – Power to compel attendance by initiating privilege proceedings
is an essential power – Members and non-Members (like the
petitioners) can equally be directed to appear before the Committee
and depose on oath – Petitioners, more so with their expanded role E
as an intermediary, can hardly contend that they have some
exceptional privilege to abstain from appearing before a committee
duly constituted by the Assembly – However, on facts, only a summons
has been issued for appearance before the Committee – Issue of
privileges is premature – The question of any privilege power being F
exercised is yet far away – Plea raised on the exercise of privilege
is a pre-emptive strike – Complete plea of the petitioners is premature
as nothing has really happened other than them having been asked
to appear before the Committee – Facebook cannot excuse
themselves from appearing pursuant to the New Summons issued –
Information Technology Act, 2000 – s.69A – Government of G
National Capital Territory Act, 1991.
Information Technology Act, 2000 – Online hate speech
content on social media platforms – Role, accountability of such
platforms – Plea of Facebook that it is merely a platform posting
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612 SUPREME COURT REPORTS [2021] 14 S.C.R.

A third party information and has no role in generating, controlling or
modulating that information – Held: Not accepted – These platforms
are by no means altruistic in character but rather employ business
models that can be highly privacy intrusive and have the potential to
polarize public debates – Further, business model of intermediaries
like the petitioner being one across countries, they cannot be permitted
B
to take contradictory stands in different jurisdictions.
Constitution of India – Seventh Schedule, List II, Entries 1, 2
& 18 – Committee on Peace and Harmony constituted by Delhi
Legislative Assembly in the wake of Delhi riots – Validity of – Held:
The Assembly is no different from any other State assembly, except
C to the extent that certain powers in List II of the Seventh Schedule
have not been conferred (i.e., Entries 1, 2 & 18) – Assembly admittedly
does not have any power to legislate on aspects of law and order
and police in view of Entries 1 and 2 of List II in the Seventh Schedule
inter alia being excluded – Assembly does not only perform the
D function of legislating; there are many other aspects of governance
which can form part of the essential functions of the Legislative
Assembly and consequently the Committee – Committee can trace
its legitimacy to several Entries in List II and List III without
encroaching upon the excluded fields of public order or police to
undertake a concerted effort albeit not to the extent as canvassed –
E In the larger context, the concept of peace and harmony goes much
beyond law and order and police, more so in view of on the-ground
governance being in the hands of the Delhi Government.
Constitution of India – Articles 194, 105 – Functions
performed by an elected Parliament or Assembly not confined to
F only enacting laws – Role of Committees constituted by legislative
bodies in the functioning and the working of the Houses Held: Unless
the committee embarks on a course completely devoid of its functional
mandate specified by the Assembly, or the Assembly itself lacks
jurisdiction to deal with the subject matter, the widest amplitude
G must be given to the functioning of these committees – The
inquisitorial role of the committee in the functioning of House is of
great significance, and as recognized, the investigation of a
complicated social problem prior to legislation often rests frequently
on such legislative committees – Intelligent legislative action and
deliberation thereon rests on the power to investigate into questions
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AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 613
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of public importance and, thus, issuance of summons is key to this A
investigative exercise.
Constitution of India – Articles 194, 105; Seventh Schedule,
List II, Entries 1 and 2 – Para 4(vii) of the Terms of Reference
tasked the Committee with recommending action against such persons
against whom incriminating evidence is found – Held: In order to B
justify the legislative competence and the remit of the Committee, the
respondents have practically given up this para – It does not survive
for any opinion of the Committee – Further, it will not be permissible
for the Committee to encroach upon any aspects strictly within the
domain of Entries 1 and 2 of List II of the Seventh Schedule – As
such, any representative of the petitioners would have the right to C
not answer questions directly covered by these two fields.
Constitution of India – Part III – Issue of privileges vis-à-vis
the right of free speech, silence, and privacy – Held: Larger issue
of privileges vis-à-vis the right of free speech, silence, and privacy
in the context of Part III of the Constitution is still at large in view D
of the reference to the larger Bench in N. Ravi v. Legislative Assembly
reported as (2005) 1 SCC 603.
Dismissing the writ petition, the Court
HELD: 1. In this modern technological age, it would be E
too simplistic for the petitioners to contend that they are merely
a platform for exchange of ideas without performing any significant
role themselves – especially given their manner of functioning
and business model. Debate in the free world has shown the
concern expressed by Governments across the board and the
necessity of greater accountability by these intermediaries which F
have become big business corporations with influence across
borders and over millions of people. Facebook today has influence
over 1/3rd population of this planet! In India, Facebook claims to
be the most popular social media with 270 million registered
users. The width of such access cannot be without responsibility G
as these platforms have become power centres themselves,
having the ability to influence vast sections of opinions. Without
undermining the role performed by Facebook in giving a voice
to various sections of society across the world, it has to be noted

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614 SUPREME COURT REPORTS [2021] 14 S.C.R.

A that their platform has also hosted disruptive voices replete with
misinformation. These have had a direct impact on vast areas of
subject matter which ultimately affect the governance of States.
It is this role which has been persuading independent democracies
to ensure that these mediums do not become tools of manipulative
power structures. These platforms are by no means altruistic in
B
character but rather employ business models that can be highly
privacy intrusive and have the potential to polarize public debates.
For them to say that they can sidestep this criticism is a fallacy as
they are right in the centre of these debates. Facebook as a
platform is in the nature of a mass circulation media which raises
C concerns of editorial responsibility over the content circulated
through its medium. The width of the reach of published material
cannot be understated or minimized. Facebook has acknowledged
in their reply that they removed 22.5 million pieces of hate speech
content in the second quarter of 2020 itself, which shows that
they exercise a substantial degree of control over the content
D
that is allowed to be disseminated on its platform. To that extent,
a parallel may be drawn with editorial responsibility cast on other
mass circulation media. The business model of intermediaries
like the petitioner being one across countries, they cannot be
permitted to take contradictory stands in different jurisdictions.
E Thus, for example in the United States of America, Facebook
projected itself in the category of a publisher, giving them
protection under the ambit of the First Amendment of its control
over the material which are disseminated in their platform. This
identity has allowed it to justify moderation and removal of content.
Conspicuously in India, however, it has chosen to identify itself
F
purely as a social media platform, despite its similar functions
and services in the two countries. Thus, dependent on the nature
of controversy, Facebook having almost identical reach to
population of different countries seeks to modify its stand
depending upon its suitability and convenience. [Paras 149-
G 151][707-B-H; 708-A-C]
2.1 The Issue of Privilege:
The privilege issue arises out of the plea advanced by the
petitioners that both, the First Impugned Summons dated
10.09.2020 and the Second Impugned Summons dated 18.09.2020,
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AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 615
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were to summon Petitioner No.1 or a duly authorized A
representative of Petitioner No. 2 respectively with a threat of
“privilege”. This argument was coupled with a plea that such
power of privilege cannot extend to compel an individual, who is
not a member of the House, into giving evidence/opinion that
they are not inclined to state. [Para 159][710-G-H; 711-A]
B
2.2 Wordings of Article 194(3) are unambiguous and clear,
and thus do not require any twist or interpretation to them. These
are not wordings of a statute, but that of the primary document –
the Constitution. The powers, privileges and immunities of a
House of the State Legislature as well as its committees have
been clearly defined as those of the House and all members and C
committees thereof before the coming into force of Section 26 of
the Constitution 44th Amendment Act, 1978. There was no
timeline provided for codification of powers, privileges and
immunities of a House. The Constitution has given leeway to the
Legislature to define the same from time to time, but there was D
no compulsion qua the same. If the Legislature in its wisdom is
of the opinion that it needs to be so done, they will do so. Is it for
this constitutional court to nudge them in that direction? The
answer would be in the negative. [Para 162][711-E-G]
2.3 It is not disputed that committee proceedings cannot E
be equated to proceedings before the court of law. No doubt these
powers have to work in the context of the business of each House,
and no House can be a knight in shining armour to correct issues
in respect of which it has no legislative power. Yet, it would be a
monumental tragedy to conclude that the legislature is restricted
to the function of enacting laws. The role of the legislature is F
sought to be diminished by such an argument. Once the wider
array of functions performed by an elected Parliament or Assembly,
not confined to only enacting laws are recognized, any act in
furtherance of this wider role and any obstruction to the same
will certainly give rise to an issue of parliamentary privilege. The G
line of argument that no non-member could be summoned if they
had not intruded on the functioning of the Assembly; or that the
non-participation of the petitioner would not have adverse
consequences as it did not disrupt the functioning of the

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616 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Committee is not appreciated. The petitioners, more so with their
expanded role as an intermediary, can hardly contend that they
have some exceptional privilege to abstain from appearing before
a committee duly constituted by the Assembly. [Paras 165-
167][712-E-G; 713-A-D]
B Amarinder Singh v. Special Committee, Punjab Vidhan
Sabha & Ors. (2010) 6 SCC 113: [2010] 4 SCR 1105
– distinguished.
Re. Special Reference of 1964 2 AIR 1965 SC 745:
[1965] SCR 413; Justice (Retd.) Markandey Katju v.
C Lok Sabha & Anr. (2017) 2 SCC 384:[ 2016] 11
SCR 621 – referred to.
2.4 In the factual matrix, only a summons has been issued
for appearance before the Committee. The question of any
privilege power being exercised is yet far away. Even if there
D was any breach of privilege recorded by the Committee, the
Committee would in turn have to make a recommendation to the
Assembly. The Assembly then would be entitled to consider
whether it is a fit case to exercise the power of breach of privilege.
In many cases, it may well be that the Assembly considers that it
is not worthwhile to do so, even if the Committee was to prima
E facie opine so. The exercise by the Assembly is further dependent
on the opinion of the Privileges Committee. Thus, there are
various tiers of scrutiny before there is culmination of the exercise
of power of privilege. None of those eventualities have at all arisen
in the present case. This case is a preventive endeavour by the
F petitioner to preclude the respondents from even considering
the aspect of privilege by seeking this Court’s intervention at a
pre-threshold stage, only on the premise of the absence of
legislative power. [Para 169][713-F-G; 714-A-D]
2.5 The committees constituted by legislative bodies like
G the Assemblies for the States and Parliament for the Union,
perform a key role in the functioning and the working of the
Houses. These committees undertake deliberations and provide
recommendations as precursors to legislative activities, and the
effective working of committees is a prelude to the core working
of the Assemblies. The committees are an extension of the
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AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 617
TERRITORY OF DELHI

legislature itself and do informed work. The contention of the A
petitioners cannot be accepted to create an artificial division
between Assembly’s core/essential and non-essential functions,
with any restrictive clauses being placed on the deliberations of
the committees. Such water-tight compartmentalisation is not
advisable. Unless the committee embarks on a course completely
B
devoid of its functional mandate specified by the Assembly, or
the Assembly itself lacks jurisdiction to deal with the subject
matter, the widest amplitude must be given to the functioning of
these committees. It is the parliamentary committee system that
has been recognised as a creative way of parliaments to perform
their basic functions. The same principle would apply, even if it is C
to some extent beyond their legislative domain. This is because
they will not be able to make any valid legislative
recommendations in the absence of competence over the subject
matter. However, they may debate aspects which may be a
reflection of their sense and consequently the sense of the House,
D
if so adopted by the House. [Paras 171, 172][714-E-H; 715-A-E]
Kalpana Mehta And Ors. vs Union of India And Ors.
(2018) 7 SCC 1: [2018] 4 SCR 1 – relied on.
Comment of US Representative James Shannon during
the 1995 Conference on the Role of Committees in E
Malawi’s Legislature as noted in Kalpana Mehta at note
20 – referred to.
2.6 The inquisitorial role of the committee in the functioning
of House is of great significance, and as recognized, the
investigation of a complicated social problem prior to legislation F
often rests frequently on such legislative committees. This task
involves the examination of witnesses and is helpful in dealing
with matters of special and technical nature, wisened by insight
into affairs of the workings of different aspects and the views
expressed by different stakeholders. It can hardly be said that in
the context of what has been debated, the petitioners have no G
role to play or are “outsiders”. Intelligent legislative action and
deliberation thereon rests on the power to investigate into
questions of public importance and, thus, issuance of summons
is key to this investigative exercise. [Para 174][716-C-E]
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618 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Bagehot: The English Constitution, (P. Smith, 2001);
J.R. Mallory, The Uses of Legislative Committees, 6
Canadian Public Administration 1, 6 (1963); Promila
Suri, Growth of Committee System in Central Legislature
of India 1920-1947, (1979) – referred to.
B 2.7 The endeavour of the petitioners to sidestep their
appearance before the Committee on a perceived notion of not
being an official representative - is not acceptable– whether the
exercise is for a legislative enactment, or for other purposes
connected with its legislative domain. The Committee is yet to
start its work qua the assistance to be rendered by the petitioners.
C The petitioners cannot themselves frame and presume possible
questions that they might face before the Committee, and then
seek to encompass it under the argument of legislative
incompetence. The work of The Committee could encompass
several fields where organisations and individuals are expected
D to cooperate. The scheme of privilege has to be seen in the
context of provisions of Article 239AA of the Constitution, as
well as the GNCTD Act. They are not divorced from each other.
Thus, Clauses 7(a) and 7(b) of Article 239AA were rightly referred
to contend that the GNCTD Act was not deemed to be an
amendment to the Constitution for the purposes of Article 368,
E notwithstanding that it may contain any provision which amends
or has the effect of amending the Constitution. Rights and
privileges are the same as any other House and, thus, the calling
into question of the proceedings of a sub-committee amounts to
calling into question the proceedings of the Assembly. At the
F cost of repetition, it is said that there has been no exercise of
privilege power. However, the Court has been called upon to
deliberate, if one may say, to some extent unnecessarily over
this issue on account of insistence of the petitioners to advance
this argument prematurely. It is not known whether on
participation of the petitioners any question of privilege would
G arise, whether the Committee would make a reference to the
Assembly, whether the Assembly would consider it to be referred
to the Privileges Committee, what would be the opinion of the
Privileges Committee and finally whether the Assembly itself

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AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 619
TERRITORY OF DELHI

would embark on a path of a breach of privilege by the petitioners. A
This is a completely speculative exercise. The Assembly is no
different from any other State assembly, except to the extent that
certain powers in List II of the Seventh Schedule have not been
conferred (i.e., Entries 1, 2 & 18). As a principle of law, all entries
are required to be read widely. Neither the included Entries nor
B
the excluded Entries have to be read restrictively. The stage for
any possible judicial intervention has not arisen in the present
case. [Paras 175-179][716-F-G; 717-A-G]
C. Subramaniam v. The Speaker, Madras Legislative
Assembly AIR 1969 Mad 10 – approved.
C
2.8 There is actually no serious dispute about the per se
competence of the Committee to discuss matters outside the
legislative domain of the Assembly but it was with a caveat that it
could not give rise to exercise of power of breach of privilege
and the right to summon a non-member. That being the position,
any plea raised on the exercise of privilege is a pre-emptive strike D
in the absence of underlying facts. Where that situation arises in
the given factual context, the petitioners could have and would
be entitled to assail the same, but this Court will not indulge in
an advance ruling on this aspect. [Para 183][719-A-C]
3.1 Privileges & Fundamental Rights: E

In view of the original notice being withdrawn, Facebook’s
plea of not having the option of choosing whom to send stands
whittled away. Further, the aspect of privilege and the rights which
flow from it have been discussed at some length. Though such
proceedings are not taking place in Court, where depositions F
also take place, privileges of an elected body of the Legislative
Assembly and consequently of its committees must be given full
play. [Paras 185, 187][719-F; 720-B]
3.2 No coercive action has been taken against the
petitioner, and none was intended if the authorised representative G
of the petitioners simply participated in the proceedings as a
witness. Emphasis was also laid on the transparency of these
proceedings in view of them being broadcasted live. The

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620 SUPREME COURT REPORTS [2021] 14 S.C.R.

A summons having been lawfully issued by an empowered
committee (subject, of course to the legislative competence
discussed hereinafter), the same must be answered. The
proceedings are not criminal or judicial in nature as there is no
accused before the Committee. Naturally, the Rules framed by
the House under Section 33 of the GNCTD Act (which in turn
B
draws strength from Article 239AA(7) of the Constitution) would
be followed. Protection of proceedings before the Assembly or
the Committee under Article 194 would include deposition of
members or non-members. The option to not answer a question
before the Committee cannot seriously be disputed qua certain
C aspects if so pleaded for good reasons, an aspect which would be
examined by the Committee as per Rules. The complete plea of
the petitioners is premature as nothing has really happened other
than them having been asked to appear before the Committee.
[Paras 189, 190][720-D-G]
D MSM Sharma v. Dr. Shree Sri Krishna Sinha AIR 1960
SC 1186: [1961] SCR 96; N. Ravi v. Legislative
Assembly (2005) 1 SCC 603 – referred to.
4.1 Legislative Competence:
It is undisputed that the Assembly is different from the
E other State Assemblies to the extent that certain subject matters
of List II have been specifically excluded and conferred on the
Central Government. It is, thus, nobody’s case that aspects
covered by Entries 1, 2 & 18 in List II can be dealt with by the
Assembly and consequently, the Committee. While there is no
F dispute about the principle of reading the Entries as widely as
possible, that proposition is in the context of challenging a law
for lack of legislative competence. Here the Court is concerned
with the interplay of Entries. The issue would be whether the
Central Government has the legislative competence or the
Assembly. The widest amplitude has to be given even to the three
G Entries of which the legislative competence has been denuded
from the Assembly and conferred on the Parliament. Facebook
is an intermediary was submitted to be apparent from Section
2(1)(w) of the I.T. Act. The role of the intermediaries is covered
by this enactment including the right of the Central Government
H to issue directions to block public access to any information under
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 621
TERRITORY OF DELHI

Section 69A of the I.T. Act. [Paras 193, 194 and 196][721-D-F; A
722-A-B]
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963 – relied on.
4.2 The intent of the Committee (and for that matter the
Assembly) was argued to be quite clear, i.e., to encroach on the B
very domain which was prohibited. This was stated to be apparent
from the Terms of Reference. The Terms of Reference contained
in paragraph 4 (i) (to consider the complaints from the members
of the public, social organisations, journalists, etc. on the situation
prevailing in a particular area/areas which have the potential to C
disturb communal peace and harmony or where communal riots
have occurred) have to be read in context of para 4(vii) which
tasks the Committee with recommending action against such
persons against whom incriminating evidence is found. The
respondents could not get away by simply saying that the power
of recommending action against such persons against whom D
incriminating evidence is found is not capable of being enforced
in view of the lack of legislative competence. These are the
aspects which were sought to be given teeth by threatening
privilege in the last paragraph of the Terms of Reference.
[Para 197][722-C-E] E
4.3 The plea that an Assembly must confine itself to the
core function of legislation cannot be accepted. This would
be unreasonably restricting the role of an elected body.
[Para 200][723-A-B]
4.4 The emphasis was that all that transpired was a F
subterfuge as the real intent of the Committee was to look into
issues that were beyond their scope, while expanding their powers
on account of a political conflict between the Central and State
Governments over the issue of the riots in question. This was
stated to be quite apparent from the nature of depositions G
recorded before the Committee and the statements made in the
press conference by the Chairman of the Committee. There is
little doubt over the proposition that the division of powers
between the Centre and the State Assemblies must be mutually
respected. The concept of a wide reading of Entries cannot be
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A allowed to encroach upon a subject matter where there is a specific
entry conferring power on the other body. [Paras 202, 203]
[723-C-G]
4.5 The recourse to Entries 1 & 2 of List III cannot be said
to include what has been excluded from the powers of List II,
B i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating to
inquiries would again not permit the Assembly or the Committee
to inquire into the aspects of public order or police functions.
That a law and order situation arose is not disputed by anyone,
and that this law and order issue related to communal riots also
cannot be seriously disputed. That the Assembly cannot deal with
C the issue of law and order and police is also quite clear. Thus, the
moot points would be (a) what is the scope of inquiry of the
Committee; (b) whether it could be said that there is any aspect
of the inquiry which falls within the legislative domain of the
Assembly; and (c) whether the attendance of the petitioners could
D be compelled legitimately. [Para 204][723-G-H; 724-A-C]
4.6 The in-principle submission drawing strength from
judicial precedents in the US, that the power to investigate is
inherent in the power to make laws by the legislative body is not
disagreed with. But while recognising this, the issue in the present
E case is whether the Assembly can at all legislate on the matter.
The investigative function of committees carries with it the
possibility of researchers ending up in some “blind alleys”. This
would have to presuppose that there is an alley. Thus, while the
right of the Committee is respected to the extent that there exists
an obligation on the petitioners to respond to the summons, the
F proceedings cannot be permitted to go on in a manner that
encroaches upon the prohibited entries. [Para 206][724-E-G;
725-A]
4.7 The police cannot be the sole custodian of peace and
harmony and that the expression itself has various connotations.
G Despite the State Government being denuded of certain powers,
it has to be noted that governance has many manifestations, and
functions of the Government can be realised in different ways.
This is especially true in the present case where the situation
was admittedly created through an intrinsically law and order
H issue. The moot point is whether the expression “peace and
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 623
TERRITORY OF DELHI

harmony” can be read in as expanded a manner as sought to be A
done by relying on a number of Entries in List II and List III.
Peace and harmony, whether in the National Capital or in a State
context, is of great importance. But it would be too much to permit
the argument that peace and harmony would impact practically
everything and thus, gives power under different entries across
B
the three lists. It is however, recognised that the inquisitorial
and recommendatory powers can be utilised under the principle
of better governance. [Paras 207, 208][725-B-D]
4.8 While keeping in mind Article 212 which restrains courts
from inquiring into the proceedings of a legislature, a narrow scope
of judicial review has always been appreciated and understood. C
The Committee can trace its legitimacy to several Entries in List
II and List III without encroaching upon the excluded fields of
public order or police to undertake a concerted effort albeit not
to the extent as canvassed. Facebook cannot excuse themselves
from appearing pursuant to the New Summons issued to them on D
03.02.2021. Areas which are not otherwise available to the
legislature for its legislative exercise may, however, be
legitimately available to a committee for its deliberations. This is
so in the context of a broad area of governmental functions.
Ultimately, it is the State Government and the State Assembly
which has to deal with the ground reality even in the dual power E
structure in Delhi. It cannot be said that informed deliberation
inter alia on the best measures through which online mass hate
and violence in their geographical jurisdiction can be addressed
would not be within the Committee’s area of competence as it
would undermine the very purpose of a vital democratic polity. F
[Paras 209, 210][725-E-H; 726-A-C]
4.9 The unfortunate communal riots between 24th and 29th
February, 2020 in various parts of Delhi, led to the death of 53
persons, caused significant damage to public and private property,
disruptions to schools, transport, water supply, medical and other G
civic amenities. The complexity of communal tensions and their
wide-ranging ramifications is a matter affecting citizens of Delhi
and it cannot be said that the Government of NCT of Delhi cannot

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624 SUPREME COURT REPORTS [2021] 14 S.C.R.

A look into the causal factors in order to formulate appropriate
remedial measures. Appropriate recommendations made by the
State Government in this regard could be of significance in the
collaborative effort between the Centre and the State to deal with
governance issues. It is in that context that this Court had
recognised that certain local interests are best addressed by the
B
elected representatives of the concerned State. Because of the
pervasive impact of the riots, the Committee could legitimately
attend to such grievances encompassing varied elements of public
life. Thus, it would be entitled to receive information and
deliberate on the same to examine their bearing on peace and
C harmony without transgressing into any fields reserved for the
Union Government in the Seventh Schedule. [Paras 211, 212]
[726-C-E, G; 727-A]
Delhi Minorities Commission, Government of NCT of
Delhi, Report of the DMC Fact-Finding Committee on
D North-East Delhi Riots of February, 2020 – referred
to.
4.10 Now turning to the Terms of Reference. In the larger
context of what the Committee is supposed to do, reliance was
placed on paragraph 4(i), i.e., to consider the factors and situations
E 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 with the object
of establishing harmony among different religious or linguistic
communities or social groups. This is not purely a law and order
or policing aspect and has several connotations. It was not
F necessary at that stage for the Terms of Reference to spell out
as to what aspects it would legislate upon (having legislative
competence) and on what aspects it would like to consider making
recommendations. That would have been a pre-hearing of the
issue. The object of para 4(i) of the Terms of Reference was to
G consider petitions, complaints or reports from the members of
the public, social organisations and journalists on the matter in
issue where communal riots have occurred. Once again this was
intrinsically linked to the larger issue. However, the real
troublesome aspect is para 4(vii). Clearly it is not within the remit

H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 625
TERRITORY OF DELHI

of the Assembly to recommend action against such persons against A
whom incriminating evidence is found or prima facie case is made
out for incitement of violence. This is an aspect purely governed
by policing. It is the function of the police to locate the wrong
doer by investigation and charge them before a competent court
and this is what has really given a handle to the petitioners to
B
approach this Court. In order to justify the legislative competence
and the remit of the Committee, the respondents have practically
given up this para 4(vii) and the same is recorded and it is made
clear that this cannot be part of the remit of the Committee.
[Paras 213-216][727-B-D; 727-F-H; 728-A]
4.11 Wiser advice prevailed in issuing the New Summons C
dated 03.02.2021, which consciously specified the diluted area of
inquiry, conscious of the aforesaid limitation and rightly so. What
it takes care of is that it is not addressed to Petitioner No.1 directly
but instead it calls for the views of an authorised representative
of Petitioner No. 2, Facebook India. It has rightly used the D
expression “requested” and also used the expression “could”
in the context of initiation of proceedings for breach of privilege
and has categorically withdrawn the previous notices and
summons. The result of the aforesaid is that fallacies in the notices
stand removed. The statements made by the Chairman of the
Committee during the press conference cannot be diluted or E
brushed aside. The said statements and conclusions are
completely outside the remit of the Committee and should not
have been made. That it may give rise to apprehension in the
minds of the petitioners can also not be doubted. It was sought
to be conveyed that in view of the “incriminating material”, the F
representatives of Facebook would be called upon to satisfy
principles of natural justice before conviction. The prima facie
view expressed is that Facebook is a co-accused and hence,
investigations regarding their role during the Delhi riots should
be carried out and after such investigation, a supplementary
chargesheet should be filed. it is as if the Committee was G
convinced that Facebook must be prosecuted, and as if the
Committee itself was the prosecutor with a right to direct the
filing of a supplementary chargesheet. It was meeting as a formality

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626 SUPREME COURT REPORTS [2021] 14 S.C.R.

A to give a right of hearing before doing so, i.e. “before taking any
action.” Such statements are hardly conducive to fair proceedings
before the Committee and should have been desisted from. This
is especially so as that was not even the legislative mandate, and
the Assembly or the Committee had no power to do any of these
things. In view of the aforesaid, thus, while giving the widest
B
amplitude in respect of inquiry by a legislative committee, certain
fetters are put in the given factual scenario otherwise tomorrow
the proceedings itself can be claimed to be vitiated. [Paras 217-
219, 221-224][728-B-F; 729-B-F]
4.12 The importance of Committees cannot be over
C emphasised. Committees seek to perform the function of holding
the Government accountable to implement its policies, and its
duties under legislation and the performance of governmental
agencies can be the subject matter of reports formulated by these
Committees. However, in the context of the present case, on a
D particular subject matter there is no legislative mandate to enact
a legislation even if, in a broader sense, an inquiry is made. Thus,
the aspect of holding the State Government accountable is not
really envisaged as per the Terms of Reference. Rather, it seems
as if the Committee seeks to hold certain private players
responsible for a law and order scenario, which is within the
E domain of the Central Government. Therefore, the general
principles applicable to Committees would apply with a little
difference in the given scenario. the wide jurisdictions of the High
Court under Article 226 or of this Court under Article 32 of the
Constitution should not normally be exercised in a manner
F oblivious to the enormous work carried out by the Parliamentary
Committees “in the field”. An Assembly, more so in the nature
of Delhi Assembly with its own peculiarities (i.e., the exclusion
of certain powers), even if given the widest amplitude and powers
which a Committee should have; cannot step on the toes or rather
shoes of an entity having exclusive jurisdiction by reason of List
G I. The Committee cannot have a misconception that it is some
kind of a prosecuting agency which can embark on the path of
holding people guilty and direct the filing of supplementary
chargesheet against them. This aspect has to be kept in mind by

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AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 627
TERRITORY OF DELHI

the Committee so as to not vitiate future proceedings and give A
rise to another challenge. In any eventuality, as speculative as it
may be, if the Committee seeks to traverse the path relating to
the excluded Entries, i.e. law and order and police, any
representative of Facebook who would appear before the
Committee would be well within their right to refuse to answer
B
the query and such an approach cannot be taken amiss with
possibility of inviting privilege proceedings. It is a delicate balance
to follow and the Court does not seek to give an excuse to the
representative of the petitioners to not answer questions and
frustrate the proceedings before the Committee qua the
petitioners. However, at the same time, this very limited C
protection is given were the Committee to embark on these
prohibited areas. [Paras 225-227][729-G; 730-A-H; 731-A-C]
5. The ratio/directions:
I. There is no dispute about the right of the Assembly or
the Committee to proceed on grounds of breach of privilege per D
se.
II. The power to compel attendance by initiating privilege
proceedings is an essential power.
III. Members and non-Members (like the petitioners) can E
equally be directed to appear before the Committee and depose
on oath.
IV. In the given facts of the case, the issue of privileges is
premature. Having said that, the insertion of para 4(vii) of the
Terms of Reference taken along with the press conference of F
the Chairman of the Committee could legitimately give rise to
apprehensions in the mind of the petitioners on account of which
a caveat has been made.
V. Canvassing a clash between privilege powers and certain
fundamental rights is also preemptory in the present case.
G
VI. In any case, the larger issue of privileges vis-a-vis the
right of free speech, silence, and privacy in the context of Part
III of the Constitution is still at large in view of the reference to
the larger Bench in N. Ravi.
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628 SUPREME COURT REPORTS [2021] 14 S.C.R.

A VII. The Assembly admittedly does not have any power to
legislate on aspects of law and order and police in view of Entries
1 and 2 of List II in the Seventh Schedule inter alia being excluded.
Further, regulation of intermediaries is also subject matter
covered by the I.T. Act.
B VIII. The Assembly does not only perform the function of
legislating; there are many other aspects of governance which
can form part of the essential functions of the Legislative Assembly
and consequently the Committee. In the larger context, the
concept of peace and harmony goes much beyond law and order
and police, more so in view of on- the-ground governance being
C in the hands of the Delhi Government.
IX. Para 4(vii) of the Terms of Reference does not survive
for any opinion of the Committee. It will not be permissible for
the Committee to encroach upon any aspects strictly within the
domain of Entries 1 and 2 of List II of the Seventh Schedule. As
D such, any representative of the petitioners would have the right
to not answer questions directly covered by these two fields.
[Para 228][731-D-H; 732-A-E]
State of Karnataka v. Union of India (1977) 4 SCC
608 : [1978] 2 SCR 1 – relied on.
E
Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr.
(1975) 2 SCC 159 : [1978] 2 SCR 405; State (NCT of
Delhi) v. Union of India and Anr. (2018) 8 SCC 501 :
[2018] 7 SCR 1; State of Madhya Pradesh v. Nandlal
Jaiswal (1986) 4 SCC 566 : [1987] 1 SCR 1; K. Nagraj
F v. State of Andhra Pradesh (1985) 1 SCC 523 : [1985]
2 SCR 579; S.M.D. Kiran Pasha v. Government of A.P.
and Ors., (1990) 1 SCC 328 : [1989] 2 Suppl. SCR
105; Bengal Immunity Co. Ltd. v. State of Bihar and
Ors. (1955) 2 SCR 603; Selvi and Ors. v. State of
G Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381; K.S.
Puttaswamy and Anr. v. Union of India and Ors. (2017)
10 SCC 1 : [2017] 10 SCR 569; Excel Wear v. Union
of India & Ors. (1978) 4 SCC 224 : [1979] 1
SCR 1009; Maneka Gandhi v. Union of India (1978) 1

H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 629
TERRITORY OF DELHI

SCC 248 : [1978] 2 SCR 621; R.C. Cooper v. Union of A
India (1970) 2 SCC 298 : [1971] 1 SCR 512; Bennett
Coleman & Ors. v. Union of India (1972) 2 SCC 788 :
[1973] 2 SCR 757; Divisional Forest Officer v.
Bishwanath Tea Co. Ltd. (1981) 3 SCC 238 : [1981] 3
SCR 662; Chiranjit Lal Chowdhury v. Union of India
B
[1950] SCR 869; Petronet LNG Ltd. v. Indian Petronet
Group and Anr. (2009) 158 DLT 759; K.
Lakshminarayan v. Union of India & Anr. (2020) 14
SCC 664 : [2018] 14 SCR 689; Govt. of NCT of Delhi
v. Union of India 2020 12 SCC 259 : [2019] 3 SCR 28;
Kerala State Electricity Board v. The Indian Aluminium C
Co. Ltd. (1976) 1 SCC 466 : [1976] 1 SCR 552;
Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1
SCC 109 : [1989] 1 Suppl. SCR 623; Jilubhai Nanbhai
v. State of Gujarat (1995) Supp. 1 SCC 596 : [1994] 1
Suppl. SCR 807; Ujagar Prints (II) v. Union of India
D
(1989) 3 SCC 488 : [1988] 3 Suppl. SCR 770; Sriram
Krishna Dalmia v. Justice Tendolkar [1959] SCR 279;
Rai Sahib Ram Jawaya Kapur v. State of Punjab [1955]
2 SCR 225; A.S. Krishna v. State of Madras AIR 1957
SC 297 : [1957] SCR 399; Kartar Singh v. State of
Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; Zameer E
Ahmed Latifur Rehman Sheikh v. State of Maharashtra
& Ors. (2010) 5 SCC 246 : [2010] 4 SCR 1042; ITC
Ltd. v. State of Karnataka 1985 Supp SCC 47 : [1985]
Suppl. SCR 145; Hoechst Pharmaceuticals Ltd. v. State
of Bihar (1983) 4 SCC 45 : [1983] 3 SCR 130; Offshore
F
Holdings (P) Ltd. v. Bangalore Development Authority
(2011) 3 SCC 139 : [2011] 1 SCR 453 – referred to.
“Preface”; See A. M. Singhvi et. al., The Law of
Emergency Powers- Comparative Common Law
Perspectives (Springer, 2020); Facebook, Press
Release, Facebook reports 1st Quarter 2021 Results, G
(2021); UNESCO, Concept Note, Media for
Democracy, Journalism and Elections in times of
Misinformation,(2019); Oxford Dictionary Word of the
Year 2016; K. Gessen, Introduction, 26, in All Art Is
Propaganda: Critical Essays (G. Orwell et. al., 2008); H
630 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Digital, Culture, Media and Sport Committee, U.K.
House of Commons, Disinformation and ‘fake news’:
Final Report, 20-44 (18/02/2019); Facebook admits it
was used to ‘incite offline violence’ in Myanmar, BBC
(06/11/2018); Joshua Brustein, Facebook Apologizes
for Role in Sri Lankan Violence, Bloomberg (13/05/
B
2020); News Media and Digital Platforms Mandatory
Bargaining Code Bill, 2020 formulated by Australia;
Alex Barker, Jamie Smyth et al., Facebook bans
Australian news as impact of media law is felt globally,
Financial Times (18/02/2021); European Parliament,
C Social media and democracy: we need laws, not
platform guidelines (10/02/2021); Erskine May’s
Treatise on the law, privileges, proceedings, and
usage of Parliament, (Sir David Natzler, 25th Edition,
2019) – referred to.
D Watkins v. United States 354 US 178 (1957); Barenblatt
v. United States 360 US 109 (1959); Eastland v. United
States Servicemen’s Fund 421 US 491 (1975); Howard
Jarvis Taxpayers Association v. Padilla 62 Cali 486
(2016) ; Wilkinson v. United States 365 US 399 (1961);
Braden v. United States 365 US 431 (1961) – referred
E to.
Case Law Reference
[1978] 2 SCR 1 relied on Para 28 (i)
[1978] 2 SCR 405 referred to Para 28 (i)
F
[2010] 4 SCR 1105 distinguished Para 28 (ii)
[1965] SCR 413 referred to Para 28 (ii)
[ 2016] 11 SCR 621 referred to Para 28 (iii)
[1961] SCR 96 referred to Para 28 (iii)
G
[2018] 4 SCR 1 relied on Para 29
[2018] 7 SCR 1 referred to Para 46
[1987] 1 SCR 1 referred to Para 53
[1985] 2 SCR 579 referred to Para 53
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 631
TERRITORY OF DELHI

[1989] 2 Suppl. SCR 105 referred to Para 66 A
[1955] 2 SCR 603 referred to Para 66
[2010] 5 SCR 381 referred to Para 69
[2017] 10 SCR 569 referred to Para 69
[1979] 1 SCR 1009 referred to Para 69 B
[1978] 2 SCR 621 referred to Para 70
[1971] 1 SCR 512 referred to Para 70
(2005) 1 SCC 603 referred to Para 71
C
[1973] 2 SCR 757 referred to Para 76
[1981] 3 SCR 662 referred to Para 76
[1950] SCR 869 referred to Para 78
(2009) 158 DLT 759 referred to Para 78
D
[2015] 5 SCR 963 relied on Para 89
[2018] 14 SCR 689 referred to Para 93
[2019] 3 SCR 28 referred to Para 106
[1976] 1 SCR 552 referred to Para 112
E
[1989] 1 Suppl. SCR 623 referred to Para 122
[1994] 1 Suppl. SCR 807 referred to Para 124
[1988] 3 Suppl. SCR 770 referred to Para 125
[1959] SCR 279 referred to Para 126 F
[1955] 2 SCR 225 referred to Para 127
[1957] SCR 399 referred to Para 135
[1994] 2 SCR 375 referred to Para 135
[2010] 4 SCR 1042 referred to Para 135 G
[1985] Suppl. SCR 145 referred to Para 138
[1983] 3 SCR 130 referred to Para 138
[2011] 1 SCR 453 referred to Para 138
H
632 SUPREME COURT REPORTS [2021] 14 S.C.R.

A CIVIL ORIGINAL JURISDICTION: Writ Petition No. 1088 of
2020.
[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
Tushar Mehta, SG, Harish N. Salve, Arvind Datar, Dr. Abhishek
Manu Singhvi, Prashanto Sen, Dr. Rajeev Dhavan, Sr. Advs., Vivek
B Reddy, Raghav Seth, Shravya Reddy, Ms. Chetna Rai, Mayank Pandey,
Aditya Jalan, Manoj Reddy, Ms. Durga Priya Manda, Ms. Vanya Chhabra,
Bharat Makkar, Vijayendra Pratap Singh, Abhijnan Jha, Ms. Preeti Kolluri,
Rahul Unnikrishnan, Mayank Pandey, Shadan Farasat, Amit Bhandari,
Talha Abdul Rahman, Prashant Manchanda, Shourya Dasgupta, Bharat
C Gupta, Ms. R. Radha, Ms. Aditi Sharma, Miss Ravleen Chhabra, M.
Shaz Khan, Udit Atul Kokanthankar, Ms. Aishwarya Devi, Kanu Agrawal,
Rajat Nair, Saurabh Mishra, Ms. Vanshaja Shukla, B.V. Balram Das,
Gurmeet Singh Makker, G. Ramakrishna Prasad, Suyodhan Byrapaneni,
Ms. Filza Moonis, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant
Dogra, Advs. for the appearing parties.
D
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
Prolegomenon1:
1. The technological age has produced digital platforms – not like
E
the railway platforms where trains were regulated on arrival and
departure. These digital platforms can be imminently uncontrollable at
times and carry their own challenges. One form of digital platforms are
the intermediaries that claim to be providing a platform for exchange of
ideas without any contribution of their own. It is their say that they are
F not responsible for all that transpires on their platform; though on
complaints being made, they do remove offensive content based on their
internal guidelines. The power and potentiality of these intermediaries is
vast, running across borders. These are multinational corporations with
large wealth and influence at their command. By the very reason of the
platform they provide, their influence extends over populations across
G
borders. Facebook is one such corporation.
2. A testament to the wide-ranging services which Facebook
offers is the fact that it has about 2.85 billion monthly active users as
1
“Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers – Comparative
H Common Law Perspectives (Springer, 2020).
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 633
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

of March, 2021.2 This is over 1/3rd of the total population of this planet. A
In the national context, Facebook is the most popular social media platform
in India with about 270 million registered users. Such vast powers must
necessarily come with responsibility. Entities like Facebook have to remain
accountable to those who entrust them with such power. While Facebook
has played a crucial role in enabling free speech by providing a voice to
B
the voiceless and a means to escape state censorship, we cannot lose
sight of the fact that it has simultaneously become a platform for disruptive
messages, voices, and ideologies. The successful functioning of a liberal
democracy can only be ensured when citizens are able to make informed
decisions. Such decisions have to be made keeping in mind a plurality of
perspectives and ideas. The information explosion in the digital age is C
capable of creating new challenges that are insidiously modulating the
debate on issues where opinions can be vastly divided. Thus, while social
media, on the one hand, is enhancing equal and open dialogue between
citizens and policy makers; on the other hand, it has become a tool in the
hands of various interest groups who have recognised its disruptive
D
potential. This results in a paradoxical outcome where extremist views
are peddled into the mainstream, thereby spreading misinformation.
Established independent democracies are seeing the effect of such ripples
across the globe and are concerned. Election and voting processes, the
very foundation of a democratic government, stand threatened by social
media manipulation. This has given rise to significant debates about the E
increasing concentration of power in platforms like Facebook, more so
as they are said to employ business models that are privacy-intrusive
and attention soliciting.3 The effect on a stable society can be cataclysmic
with citizens being ‘polarized and parlayzed’ by such “debates”, dividing
the society vertically. Less informed individuals might have a tendency
F
to not verify information sourced from friends, or to treat information
received from populist leaders as the gospel truth.
3. It is interesting to note that the Oxford Dictionary in 2016 chose
“Post-Truth” as the word of the year. The adjective has been defined as
“relating to or denoting circumstances in which objective facts are
G
2
Facebook, Press Release, Facebook reports 1st Quarter 2021 Results, (2021) accessible
at https://www.prnewswire.com/news-releases/facebook-reports-first-quarter-2021-
results-301279518.html.
3
UNESCO, Concept Note, Media for Democracy, Journalism and Elections in times of
Misinformation, (2019) accessible at: https://en.unesco.org/sites/default/files/
wpfd2019_concept_note_en.pdf. H
634 SUPREME COURT REPORTS [2021] 14 S.C.R.

A less influential in shaping public opinion than appeals to emotion
and personal belief.”4 This expression has a period relevance when it
came to be recognised contextually with divided debates about the 2016
US Presidential Elections and Brexit – two important events with effects
beyond their territorial limits. The obfuscation of facts, abandonment of
evidentiary standards in reasoning, and outright lying in the public sphere
B
left many aghast. A lot of blame was sought to be placed at the door of
social media, it being a source of this evolving contemporary phenomenon
where objective truth is becoming a commodity with diminishing value.
George Orwell, in his 1943 essay titled “Looking Back on the Spanish
War” had expressed “…the very concept of objective truth is fading
C out of the world. After all, the chances are that those lies, or at any
rate similar lies will pass into history”5 – the words have proved to be
prophetic.
4. In the conspectus of the aforesaid, it is difficult to accept the
simplistic approach adopted by Facebook - that it is merely a platform
D posting third party information and has no role in generating, controlling
or modulating that information. The endeavour to hide behind such
simplistic models have been found to be unacceptable by the UK
Parliament. The House of Commons Digital, Culture, Media and Sport
Select Committee in its 2018 Report had opined that this would amount
to shirking of their responsibilities with respect to content regulation on
E their site.6
5. Serious questions have been raised about whether there is a
faulty architecture of such intermediary platforms and whether the kind
of free, liberal debate which they sought to encourage has itself become
a casualty, defeating the very objective of providing that platform. It is
F too late in the day for companies like Facebook to deny that they use
algorithms (which are sequences of instructions) with some human
intervention to personalise content and news to target users. The
algorithms select the content based on several factors including social

G 4
Oxford Dictionary Word of the Year2016, accessible at: https://languages.oup.com/
word-of-the-year/2016/.
5
See K. Gessen, Introduction, 26,in All Art Is Propaganda: Critical Essays (G. Orwell
et. al., 2008).
6
Digital, Culture, Media and Sport Committee, U.K. House of Commons,
Disinformation and ‘fake news’: Final Report, 20-44(18/02/2019), accessible at: https:/
/publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/1791.pdf.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 635
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connections, location, and past online activity of the user. These algorithms A
are often far from objective with biases capable of getting replicated
and reinforced. The role played by Facebook is, thus, more active and
not as innocuous as is often presented when dealing with third party
content.
6. In fact, in the proceedings before us, it is their contention that B
there are times when they are at the receiving end of both groups alleging
bias towards the other but then this is a sequitur to their ability to decide
which content to amplify, suggest, and elevate. Internationally, Facebook
has had to recognise its role in failing to prevent division and incitement
of offline violence in the context of the stated ethnic cleansing in Myanmar C
where a crescendo of misinformation and posts, somehow missed by
Facebook employees, helped fuel the violence.7 The platform similarly
apologised for its lack of serious response to evident signs of abuse of
the platform in Sri Lanka, which again is stated to have stoked widespread
violence in 2018 in the country and had to acknowledge its need to be
regulated though the exact method is still unclear and a prerogative of D
law making authority.
7. There have been endeavours in light of the aforesaid by
countries like Australia, US, the UK, and the EU for ways to regulate
platforms such as Facebook in an efficient manner but their efforts are
E
still at a nascent stage as studies are undertaken to understand the
dynamism of the platform and its disruptive potential. A recent example
has been Australia’s effort to formulate a legislation that would require
Facebook to pay publishers for using their news stories. The law was
seen as a tool to regulate the platform’s unchecked influence over
political discourse, society, and democracy. In response, Facebook F
blocked all news on its platform across the country with the result that
there was some relaxation but ultimately a via media was found. The
US has also seen heated debates arising from the 2016 Presidential
elections with allegations of supposed interference by Russia allegedly
facilitated by platforms like Facebook. Last year, the EU formulated G

7
Facebook admits it was used to ‘incite offline violence’ in Myanmar, BBC (06/11/
2018), accessible at: https://www.bbc.com/news/world-asia-46105934. Joshua Brustein,
Facebook Apologizes for Role in Sri Lankan Violence, Bloomberg (13/05/2020),
accessible at: https://www.bloomberg.com/news/articles/2020-05-12/facebook-
apologizes-for-role-in-sri-lankan-violence. H
636 SUPREME COURT REPORTS [2021] 14 S.C.R.

A legislative proposals namely the Digital Services Act and Digital Markets
Act, setting out rules for platforms to follow.8
8. We have penned down a detailed introduction to appreciate the
gravity of what was debated before us in the context of Facebook’s
hands off approach, who have urged that they cannot be compelled to
B participate in proceedings of Sub Committees formed by the Parliament
or the Legislative Assemblies. The immense power that platforms like
Facebook wield has stirred a debate not only in our country but across
the world. The endeavour has been to draw a line between tackling hate
speech and fake news on the one hand and suppressing legitimate speech
which may make those in power uncomfortable, on the other. This delicate
C balance has thus far only been maintained by the intermediaries by being
value-neutral. The significance of this is all the more in a democracy
which itself rests on certain core values. This unprecedented degree of
influence necessitates safeguards and caution in consonance with
democratic values. Platforms and intermediaries must subserve the
D principal objective as a valuable tool for public good upholding democratic
values.
9. The sheer population of our country makes it an important
destination for Facebook. We are possibly more diverse than the whole
of Europe in local culture, food, clothing, language, religion, traditions
E and yet have a history of what has now commonly been called ‘unity in
diversity’. This cannot be disrupted at any cost or under any professed
freedom by a giant like Facebook claiming ignorance or lack of any
pivotal role.
The factual context:
F 10. Delhi, the capital of our country, witnessed an unfortunate
eruption of violence between 24th and 29th February, 2020 with communal
riots in different parts of North-East Delhi. This caused loss of life and
property and disrupted the working of civic services in Delhi. It need not

8
News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 was
G
formulated by Australia; See Alex Barker, Jamie Smyth et al., Facebook bans Australian
news as impact of media law is felt globally, Financial Times (18/02/2021), accessible
at: https://www.ft.com/content/cec5d055-c2d1-4d5f-a392-a6343beb0b01. See also
European Parliament, Social media and democracy: we need laws, not platform guidelines
(10/02/2021) accessible at: https://www.europarl.europa.eu/news/en/headlines/society/
20210204STO97129/ social-media-and-democracy-we-need-laws-not-platform-
H guidelines.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 637
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be stated that like any other incident of this nature, it also took a political A
colour. This produced a divide in the society with people across political
affiliations blaming each other.
11. In the wake of these riots, the Legislative Assembly of the
National Capital Territory of Delhi (“the Assembly”) resolved to
constitute a Committee on Peace and Harmony (“the Committee”) B
under the chairmanship of Mr. Raghav Chadha, Member, Legislative
Assembly on 02.03.2020, to inter alia “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 C
groups.” It is the say of the Assembly and the Committee, that it is their
objective to detect what happened and formulate recommendations to
ensure it does not happen again. It is appropriate to extract the Terms of
Reference of the Committee dated 12.03.2020 as issued by the Assembly
Secretariat as under: D
“LEGISLATIVE ASSEMBLY SECRETARIAT
NATIONAL CAPITAL TERRITORY OF DELHI
BULLETIN PART-II
(General information relating to legislative and other matters)
E
Thursday 12th March, 2020/ 22, Phalgun, 1941 (Shaka)
No.: 11
Subject: Terms of Reference of the Committee on Peace
and Harmony.
Hon’ble Members are hereby informed that Hon’ble F
Speaker has approved the following Terms of Reference for the
Committee on Peace and Harmony constituted on 02.03.2020:
1. There shall be a Committee on Peace and Harmony inter-alia
to consider the factors and situations which have the potential to
disturb communal harmony in the National Capital Territory of G
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.
2. The Committee shall consist of nine members who shall be
nominated by the Speaker. H
638 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 3. The term of the Committee shall be one year.
4. The functions of the Committee shall be:-
(i) to consider the petitions, complaints or reports from the members
of the public, social organizations, journalists etc. on the situations
prevailing in a particular area/areas which have the potential to
B disturb communal peace and harmony or where communal riots
have occurred and to examine in detail and identify the factors
responsible for it.
(ii) to recommend suitable measures to defuse the situation and
restore harmony among religious communities, linguistic
C communities or social groups.
(iii) to recognise, reward and felicitate individuals who played a
role in the protection of fellow citizens during acts of communal
violence, or undertook any activity that led to the restoration of
peace in the state.
D
(iv) to recognize, reward and felicitate individuals whose
information resulted in the registration of First Information Reports
(FIRs) in relation to the crimes committed during the communal
riots.

E (v) to undertake scientific study of the religious, linguistic and
social composition of the population of NCR Delhi, with a view to
identifying and strengthening the factors which unite the people
despite the diversity in terms of their social, religious, economic
and cultural tradition.

F (vi) to recommend measures to be undertaken by the government
towards establishing communal harmony and peace in the state.
(vii) to recommend action against such persons against whom
incriminating evidence is found or prima facie case is made out
for incitement to violence.
G (viii) to examine such other matters, broadly in conformity with
the objectives of the Committee, as may seem fit to the Committee
or are specifically referred to it by the House or the Speaker.
(ix) The Committee shall submit its report to the House. If the
House is not in session the Committee may submit the report to
H the Speaker who may forward the same to the Govt. for necessary
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 639
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

action thereon. The Secretary shall lay the report on the Table of A
the House on the first day of the next session.
(x) As soon as maybe after the submission of the report to the
House by the Committee, the Govt. shall take appropriate action
in the matter dealt with in the report and a complete statement on
the action taken by all the authorities thereon shall be laid in the B
House within two weeks after the report is presented in the House.
(xi) In considering/examining the complaints/reports etc., the
Committee may engage the services of experts.
(xii) The Speaker shall reconstitute the Committee on the expiry
of its term. C
(xiii) Except in respect of matters provided in these rules, other
matters in connection with the Committee shall be dealt with under
the general rules relating to the Committees.
(xiv) The Speaker may issue such directions as he may consider
D
necessary for regulating the procedure in connection with all
matters involving the consideration of any question that may be
brought up before the Committee.
(xv) The Committee shall have all the powers, privileges and
immunities as are available to the Committees of the Legislative
Assembly of National Capital Territory of Delhi. E

C. Velmurugan
Secretary”
(Emphasis supplied)
12. It appears that the first public meeting was held on 05.03.2020, F
which was attended by religious leaders, social workers and various
officials from different walks of life. It is the say of the Committee that
thousands of complaints were received which inter alia suggested that
Facebook had been used as a platform for fomenting hate and
jeopardising communal harmony. This was further fuelled by an article G
published in the Wall Street Journal on 14.8.2020 titled “Facebook’s
Hate-Speech Rules Collide with Indian Politics” (“the Article”)
suggesting that there was a broad pattern of favouritism towards the
ruling party and Hindu hardliners. The Article also made serious
allegations of lapses on the part of Facebook India in addressing hate
speech content. H
640 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 13. The aforesaid resulted in two important developments. The
first was that on 20.08.2020 the Parliamentary Standing Committee on
Information Technology (“Parliamentary Committee”) issued a notice
requesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President and
Managing Director of Petitioner No. 2 Facebook India Online Services
Private Limited, to appear before the Parliamentary Committee on
B
02.09.2020. The notice stated that the Committee was seeking Facebook
India’s views inter alia on the subject of “safeguarding citizens’ rights
and prevention of misuse of social/online news media platforms
including special emphasis on women security in the digital space.”
The letter reads as under:
C “MOST IMMEDIATE
LOK SABHA SECRETARIAT
(STANDING COMMITTEE ON INFORMATION
TECHNOLOGY BRANCH)
D FAX: 23010756 PARLIAMENT HOUSE
ANNEXE
NEW DELHI-110001
No.18/1(iv)/IT/2020 20th August, 2020
E From
Y.M. Kandpal
Director
To
F Shri Ajit Mohan
Vice President & MD,
Facebook India Online Services Pvt. Ltd.,
7th Floor, Parsvnath Capital Towers,
Bhai Veer Singh Marg, Gole Market,
G
New Delhi-110001.
Subject: Examination of the subject ‘Safeguarding citizens’ rights
and prevention of misuse of social/online news media platforms
including special emphasis on women security in the digital space’
H xxxxx
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 641
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Sir, A
I am directed to state that the Standing Committee on
Information Technology are examining the subject ‘Safeguarding
citizens’ rights and prevention of misuse of social/online news
media platforms including special emphasis on women security in
the digital space’. B
2. Keeping in view the importance of the subject and its wider
implications in the present context, the Committee have decided
to hear the views of representatives of Facebook India on the
above subject at their sitting scheduled to be held on Wednesday,
2nd September, 2020 from 1600 hrs. onwards in Main Committee C
Room, Parliament House Annexe, New Delhi.
3. It is, therefore, requested that senior most representatives of
Facebook India may make it convenient to appear before the
Committee on the said date, time and venue. The names/
designations of the representatives from Facebook India who will D
appear before the Committee may be intimated to this Secretariat
by 27th August, 2020 or before positively. In view of the COVID-
19 pandemic, you are requested to restrict the number of
representatives who will attend the scheduled sitting on 2 nd
September, 2020 to a maximum of 5 persons. E
4. You may like to submit a brief note highlighting your views/
comments on the subject matter to the Committee before sitting.
The same can be e-mailed at comit@sansad.nic.in.
5. Entry passes to the venue of the sitting may be collected from
F
the IT Committee Branch in advance.
6. A copy of the points of Conduct and Etiquette to be observed
by non-official witnesses appearing before the Committee is
enclosed at Annexure-I for your guidance.
Yours faithfully, G
Sd/-
Director
Tel No.23034388/5235
comit@sansad.nic.in”
H
642 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 14. Along with the aforesaid letter was annexed as Annexure-I
the Points of Conduct and Etiquette for the guidance of witnesses
appearing before the Parliamentary Committees or their sub-committees,
which inter alia in para 8, set out as to what would constitute breach of
privilege and contempt of the Parliamentary Committee. The said
Annexure reads as under:
B
“ANNEXURE-I
POINTS OF CONDUCT AND ETIQUETTE FOR THE
GUIDANCE OF WITNESSES APPEARING BEFORE THE
PARLIAMENTARY COMMITTEES OR THEIR SUB-
C COMMITTEES.
The witnesses should note the following points while
appearing before Parliamentary Committee:
1. Due respects to the Chairman and the Committee/Sub-
Committee should be shown by the witness by bowing while
D taking his seat.
2. The witness should take the seat earmarked for him opposite
to the seat of the Chairman.
3. The witness should take the oath, or make affirmation, if so
asked by the Chairman. The oath or affirmation will be
E administered by the Secretary. The witness will take the
oath or make affirmation standing in his seat and bow to
the Chair just before taking the oath or making the
affirmation and immediately afterwards.
4. The witness should answer specific questions put to him
F either by the Chairman, or by a Member of the Committee
or by any other person authorized by the Chairman. The
witness may be asked to place before the Committee any
other points that have not been covered and which a witness
thinks are essential to be placed before the Committee.
G 5. All submissions to the Chair and the Committee should be
couched in courteous and polite language.
6. When the evidence is completed, and the witness is asked
to withdraw, he should, while leaving, bow to the Chair.
7. The witness should not smoke or chew when he is seated
H before the Committee.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 643
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

8. Subject to the provisions of Rule 270 of the Rules of A
Procedure and Conduct of Business in the Lok Sabha, the
witness should note that following acts shall constitute
breaches of privilege and contempt of Committee:-
(a) Refusal to answer questions.
(b) Prevarication or willfully giving false evidence or B
suppressing the truth or misleading the Committee.
(c) Trifling with the Committee; returning insulting
answers.
(d) Destroying or damaging a material document relative C
to the enquiry.
9. The witness should not bring cellular phones inside the
Parliament House Complex.
xxxxx”
D
15. Mr. Ajit Mohan, Petitioner No. 1, duly appeared before the
Parliamentary Committee and offered his views.
16. The second development took place on 31.08.2020 when the
Chairman of the Committee held a press conference (“the press
conference”) wherein he summarised the complaints received in the
hearings conducted between 25.08.2020 and 31.08.2020. In this process, E
he stated that it prima facie appeared that Facebook had colluded with
vested interests during the Delhi riots in February, 2020. Comments were
also made by the Chairman to the effect that Facebook ought to be
treated as a co-accused and an independent investigation should be
carried out into its role in the riots. It was stated that if the investigation F
uncovered strong evidence against Facebook, a supplementary
chargesheet should be filed in this regard (we may note here itself that
the stand taken during the course of arguments was that these were not
the Chairman’s own views but were merely the views expressed by the
Committee). Since Facebook had not been heard, it was observed in the
press conference that before any action is taken in writing, Facebook G
should be given a chance to appear before the Committee. Consequently,
notice for appearance was issued on 10.09.2020 (“First Impugned
Summons”) by the Assembly to Mr. Ajit Mohan in the capacity of Vice
President and Managing Director of Facebook India. The First Impugned
Summons highlighted the factum of numerous complaints alleging H
644 SUPREME COURT REPORTS [2021] 14 S.C.R.

A intentional omission and deliberate inaction on the part of Facebook in
tackling hate speech online. The Article was also referred to and Mr.
Ajit Mohan was called upon to deliver insights to the Committee with
respect to Facebook India’s internal functioning and enforcement of
policies in view of the special knowledge that he possessed. It was clearly
stated that he was being called as a witness for testifying on oath before
B
the Committee on 15.09.2020. Significantly, no consequences in the form
of breach of parliamentary privilege were intimated in case Mr. Ajit
Mohan refused to appear. The same reads as under:
“LEGISLATIVE ASSEMBLY
NATIONAL CAPITAL TERRITORY OF DELHI
C
OLD SECRETARIAT, DELHI 110054.
Notice/Summon for Appearance
No.24/3/P&H/2020/LAS-VII/Leg./33 Date: 10.09.2020

D To,
Mr. Ajit Mohan,
Vice President & Managing Director,
India-Facebook,
Address:-1 Address:-2
E Facebook India Online Services Pvt. Ltd. One BKC
Level-17, DLF Horizon Building, Bandra Kurla Complex
Two Horizon Centre, Golf Course Road, Bandra (E)
DLF Phase 5, Sector 43, Mumbai, India-400051
Gurugram, Haryana 122022
F
Subject: Notice for Appearance before the Delhi Legislative
Assembly’s Committee on Peace and Harmony, NCT of
Delhi.
The Delhi Legislative Assembly’s committee on ‘Peace and
Harmony’, headed by Hon’ble Member of Legislative Assembly
G
of NCT of Delhi, Mr. Raghav Chadha, as its Chairman along with
other Hon’ble Members of the Legislative Assembly, assisting
and facilitating the state’s endeavour to maintain and promote an
irenic atmosphere in the city as well as establishing a conducive
milieu of concordance, peace and pacification amongst different
H communities residing in NCT of Delhi.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 645
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Pertinently, the committee has received numerous complaints A
alleging inter alia intentional omission and deliberate inaction on
the part of social media platform-Facebook to apply hate speech
rules and Polices which has allegedly led to serious repercussions
and disruption of peace and harmony across the NCT of Delhi. A
few complainants have also drawn considerable strength from
B
the news report published by The Wall Street Journal on
14.08.2020, titled as ‘Facebook’s Hate-Speech Rules Collide With
Indian Politics’. The committee had promptly taken cognizance
of serious allegations set out in the vetted complaints and have
begun the proceedings in this regard, pursuant to which numerous
witnesses have been examined. C
Significantly, in the wake of serious allegations leveled against
Facebook India unit which you have been spearheading since 2019,
you, the addressee, as the Vice-President and Managing Director
of Facebook India and as a representative of the same, are best
suited to deliver insights to the committee with respect to Facebook D
India’s internal functioning and enforcement of policies, and thus,
your special knowledge in this regard would be imperative for the
committee while examining the current issue in hand.
In view thereof, the committee, under the Chairmanship of Hon’be
(sic) MLA Sh. Raghav Chadha, calls you, the addressee, as a E
witness for testifying on oath and for rendering your assistance
by providing the relevant information and explanations in order to
smoothly expedite the determination of the veracity of allegations
leveled against Facebook in the complaints and depositions made
before the committee. In pursuance thereof, we hereby summon F
you, the addressee, to appear before the committee on 15 th
September, 2020 at 12 Noon at MLA Lounge-1, Delhi Vidhan
Sabha, for the purpose of recording your deposition on oath and
participating in the proceedings carried out by the committee.
(Deputy Secretary) G
The Committee on Peace and Harmony
NCT of Delhi
PH-011-23890384
Email ID dvscommittee@delhi.gov.in”
H
646 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 17. One Mr. Vikram Langeh, Director of Trust and Safety,
Facebook sent a reply dated 13.09.2020 emphasising that Facebook’s
internal policies seek to protect user safety and security and also
emphasised the different mechanisms it employs to tackle hate speech
content. The factum of Facebook having given testimony before the
Parliamentary Committee was also set out. A plea was raised that the
B
role of regulation of intermediaries like Facebook squarely fell within the
exclusive authority of Union of India; in exercise of which the Parliament
had enacted the Information Technology Act, 2000 (“the IT Act”).
Not only that, the subject of law and order in the NCT of Delhi was
stated to fall within the exclusive domain of the Union of India. On these
C pleas the First Impugned Summons was objected to and requested to be
recalled. The reply reads as under:
“FACEBOOK
September 13, 2020

D To,
The Hon’ble Chairman,
The Committee on Peace and Harmony,
Delhi Legislative Assembly, NCT of Delhi.
Subject: Response to Notice for Appearance before the Delhi
E Legislative Assembly’s Committee on Peace and Harmony, NCT
of Delhi dated September 10, 2020
Hon’ble Chairman,
Facebook India Online Services Private Limited is in receipt of
F the notice dated September 10, 2020 (“Notice”) issued by the
Delhi Legislative Assembly’s Committee on Peace and Harmony
(“Committee”).
Facebook, Inc. (“Facebook”) operates and manages the Facebook
platform, and provides the Facebook service to users in India.
Facebook shares the Committee’s concerns regarding the
G
dissemination of hate speech online and has implemented robust
measures to curb its spread on Facebook’s platforms. Facebook
bans individuals and groups that proclaim a hateful and violent
mission from having a presence on its platforms. Facebook seeks
to apply its comprehensive standards uniformly and has identified
H a range of such individual and groups across the globe.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 647
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Facebook has also built some of the most advanced systems in A
the world to protect its users’ safety and security, investing billions
of dollars in technology and hiring tens of thousands of people to
work on safety and security. Based on these efforts, we removed
22.5 million pieces of hate speech content in the second quarter
of 2020 (up from just 1.6 million pieces of hate speech removed in
B
the last quarter of 2017), nearly 95 percent of which we removed
before it was reported to us. Facebook is committed to being
more transparent about how it combats hate speech and routinely
publishes a Transparency Report, which provides details about
steps taken by Facebook to prevent and action content that violates
its policies. C
In view of the importance of this subject, the Parliament’s Standing
Committee on Information Technology (“Parliamentary Standing
Committee”) is examining the issues raised in your Notice as a
part of its inquiry into “Safeguarding citizens’ rights”. We gave
testimony before the Parliamentary Standing Committee. We are D
enclosing the notice received from the Parliamentary Standing
Committee for your reference. (Annexure A)
As you are well aware, the regulation of intermediaries like
Facebook falls within the exclusive authority of the Union of India
and in exercise of this power to regulate “communications”, E
Parliament has enacted the Information Technology Act, 2000.
Further, the subject of “law and order” in the National Capital
Territory of Delhi also falls within the exclusive domain of the
Union of India.
Given that the issues raised by the Notice involve subject matter F
within the exclusive domain of the Union of India, and that the
matters are under active consideration by Parliament, we
respectfully object to the Notice and request that you recall it.
Facebook responds to the Notice without prejudice to, and
expressly reserving, any and all of its rights.
G
Sincerely,
For Facebook
Vikram Langeh
Director,
Trust & Safety, Facebook.” H
648 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 18. The aforesaid was not acceptable to the Committee, which
formulated a reply to Facebook’s response on 18.09.2020, this time
addressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The three
annexures enclosed with the reply were: (a) Terms of Reference of the
Committee (“Terms of Reference”); (b) Sections 18 and 37 of the
Government of National Capital Territory Act, 1991 (“GNCTD Act”);
B
and (c) fresh summons issued to Mr. Ajit Mohan (“Second Impugned
Summons”) under Rule 172 of the Rules of Procedure and Conduct of
Business in the Legislative Assembly of NCT of Delhi (“the Rules”).
19. The Committee’s reply alluded to its Terms of Reference to
emphasise that it was in furtherance of the objective of good governance
C and to carry out responsibilities of the State under the Constitution. The
purpose, it was stated, was to invite the public to join this exploratory
process, the remit of which included making suggestions to the Union
Government beyond using the mechanisms of the Inter-State Council.
This was stated to be in line with the principles of cooperative federalism,
D which encompassed a large number of areas. It is at this stage that a
perceived element of threat was held out to Mr. Ajit Mohan stating that
his refusal to appear was inconsistent with the law of privileges of a
legislature (which extends to the Committee and its members). He was
asked to appear before the Committee on 23.09.2020 in the “spirit of
democratic participation and constitutional mandates.” Importantly, it was
E clearly stated that non-compliance would be treated as breach of privilege
of the Committee and necessary action would be taken.
20. It is the aforesaid Second Impugned Summons which triggered
the filing of the present proceedings under Article 32 of the Constitution
of India by Mr. Ajit Mohan as the first petitioner, in his capacity as the
F Vice President and Managing Director of Facebook India Online Services
Private Limited, which is the 2nd petitioner. The third petitioner is the
parent company, Facebook Inc., US. The array of respondents include
the Assembly as the first Respondent while Respondent Nos. 2 to 4 are
the Union of India, represented through different Ministries, being Ministry
G of Law and Justice, Ministry of Home Affairs and Ministry of Electronics
and Information Technology. Respondent Nos. 5 & 6 are the Lok Sabha
and the Rajya Sabha respectively. Delhi Police was impleaded as the 7th
respondent. We may note that in the course of the proceedings the
Committee sought to be impleaded as a party and in terms of the consent
order dated 20.01.2021 the said entity was permitted to intervene. The
H prayers made in the writ petition are as under:
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 649
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

“a. Issue a writ/order or direction in the nature of Mandamus A
setting aside the Impugned Summonses dated September 10,
2020 and September 18, 2020;
b. Issue a writ/order or direction in the nature of Prohibition
restraining Respondent No.1 from taking any coercive action
against Petitioners in furtherance of the Impugned B
Summonses;
c. Issue or pass any writ, direction or order, which this Hon’ble
Court may deem fit and proper under the facts and
circumstances of the case.”
21. On 23.09.2020, in the presence of the counsel of the parties, C
notice was issued. Dr. Singhvi, learned Senior Advocate appearing for
Respondent No.1, on instructions, stated that the meeting scheduled for
the said date had already been deferred and no further meeting would
be fixed qua the petitioners till the next date of hearing. Further, on the
Court’s query regarding the role of Respondent Nos. 5 and 6 (the Lok D
Sabha and the Rajya Sabha respectively), Mr. Harish Salve, learned
Senior Advocate appearing for Petitioner Nos. 1 and 2 submitted that the
only purpose of serving them was that although no relief was claimed,
there was a perception that there may be some interplay of powers between
the Delhi Secretariat and the Secretariat of the Central Government.
E
22. The aforesaid interim arrangement continued as pleadings
were completed. The matter was set down for hearing with rule nisi
being issued on 21.01.2021. The issue was debated before us on
numerous dates thereafter and the hearing concluded on 24.02.2021. We
recorded that the counsels had argued over a period of 26 hours, leaving
the task to us to pen down the judgment - which we seek to perform now. F
23. At this stage, we must note a significant development that
arose during the course of the proceedings, possibly emanating from
certain questions posed by the Court qua the press conference, the
summonses issued to Petitioner No.1, and on account of certain submissions
advanced by learned counsel for the Petitioners. An affidavit was placed G
before us (as recorded in the proceedings of 04.02.2021) in terms whereof
the two impugned summonses issued to Petitioner No.1 dated 10.09.2020
and 18.09.2020 stood withdrawn. A fresh notice was issued on 03.02.2021
(“The New Summons”) to Petitioner No. 2, i.e. Facebook India alone.
The New Summons dated 03.02.2021 reads as under:
H
650 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “LEGISLATIVE ASSEMBLY
NATIONAL CAPITAL TERRITORY OF DELHI
OLD SECRETARIAT, DELHI 1100 54
Committee on Peace and Harmony
B No.24/3/P&H/2020/LAS-VII/Leg./1305 Date: 03.02.2021
Notice/Summon for Appearance
To,
Facebook India Online Services Pvt Limited
C Address 1
One BKC, Bandra Kurla Complex
Bandra (E)
Mumbai, India-400051
Address 2
D Level-17, DLF Horizon Building,
Two Horizon Centre, Golf Course Road,
DLF Phase 5, Sector 43,
Gurugram, Haryana 122022
Subject: Notice for Appearance under Rule 172 of Rules of
E
Procedure and Conduct of Business in the Legislative Assembly
of NCT of Delhi.
1. In supersession of earlier notice(s)/summons dated 10.09.2020
and 18.09.2020, the present notice for appearance is being issued.
F 2. I am directed to state that the National Capital Territory of
Delhi had witnessed unprecedented communal disharmony and
violence in February 2020. The Hon’ble Speaker of the Legislative
Assembly of NCT of Delhi has constituted a Committee on Peace
on (sic.) Harmony under the Chairmanship of Sh. Raghav Chadha
along with other Hon’ble Members of the Legislative Assembly
G to recommend suitable measures to defuse the situation and restore
harmony among religious communities, linguistic communities or
social groups. The Committee aims to recommend preventive and
remedial measures concerning issues of governance, social
cohesion, unity, brotherhood and peace. The Committee further
H aims to recommend measures to strengthen overall social and
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 651
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

economic development in the context of establishing communal A
harmony and peace in society in the NCT of Delhi.
3. Keeping in view the importance of the above subject and its
implication on persons in the NCT of Delhi, various persons
including journalists, former bureaucrats and community leaders
have appeared before the Committee to offer their evidence and B
suggestions. The Committee has observed and is of the opinion
that social media has a very important role in curbing the spread
of false, provocative and malicious messages which can fan the
violence and disharmony.
4. Since, Facebook has lakhs of users in the NCT of Delhi, in the C
above-stated context, the Committee has decided to hear the views
of representative(s) of Facebook India on the above subject at
their sitting scheduled to be held on 25 th February, 2021 from 11
AM onwards in MLA Lounge-1, Assembly Complex, Old
Secretariat, Delhi-110054 as per the Rules of Procedure and
Conduct of Business of the House. D
5. It is, therefore, requested that a competent senior representative(s)
of Facebook India well conversant with the issues involved may
appear before the Committee on the said date, time and venue as
a witness. The names/designations of the representatives from
Facebook India who will appear before the Committee may be E
intimated to this Secretariat by 24th February, 2021 or before
positively. Because of the COVID-19 pandemic, you are requested
to restrict the number of representatives to a minimum.
6. Please note that failure to send a representative as summoned
above, could in terms of the Rules of Procedure and Conduct of F
Business in the Legislative Assembly of NCT of Delhi lead to
initiation of proceedings for breach of privilege/contempt of the
Assembly.
7. In light of the abovementioned supersession, previous notice(s)/
summons dated 10.09.2020 and 18.09.2020 stand withdrawn
G
Sd/-
(Sadanand Sah)
Deputy Secretary
PH-011-23890384
E-mail ID: dvscommittee@delhi.gov.in ” H
652 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Dr. Singhvi submitted that since the legal position was being
debated in the larger context, the New Summons would not make a
difference, except that the specific challenge to the earlier summonses
would not stand as they stood withdrawn and had been substituted with
the New Summons. It was Mr. Salve’s view, that this would not really
be a redeeming feature and the matter still had to be debated.
B
24. Notably, a discordant note did arise in the stands canvassed
on behalf of the Assembly by Dr. Singhvi and on behalf of the Committee
by Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earlier
summons were as good in law as the New Summons and, thus, it made
no difference. Obviously, Dr. Singhvi thought otherwise, as there would
C have been no occasion to withdraw the earlier summons and issue a
fresh summons. We say so as this is one aspect emphasised in the course
of arguments in rejoinder by Mr. Salve.
25. One aspect to be noticed is that the New Summons dated
03.02.2021 has been issued by the Deputy Secretary of the Committee.
D Thus, on the one hand, the Committee deemed it appropriate to withdraw
the earlier summons and issue a fresh one (apparently wiser after some
arguments from Mr. Salve and possibly some remarks of the Court)
while on the other hand as an intervening entity, peculiarly, the stand of
Dr. Dhavan was that this was not required to be done! On this, we say
E no more.
The Submissions
26. In his opening arguments Mr. Salve punched hard on the issue
that niceties aside, one has to consider the true intent with which the
summons was issued. In short, it was his say that the objective was to
F file a supplementary chargesheet and rope in Facebook. To substantiate
this contention, he refers to three factors, i.e. (a) Para 4 (vii) read with
4 (i) of the terms of reference of the Committee; (b) the Article and (c)
the press conference dated 31.08.2020.
27. The aforesaid was in the background of what was a politically
G polarised issue and Mr. Salve contended that the Petitioner had no intent
to become part of such a debate. The parent company (Facebook Inc.)
being an intermediary based in the US, could hardly be expected to be
roped into this political battle which formed the basis of the summonses
that have been issued. It was emphasised that the Committee’s actions
amounted to a clear and present danger of coercive action, which was
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 653
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

in violation of Petitioner No. 1’s fundamental rights. In the process of A
reading his note of arguments, which were more detailed with different
nuances, broadly four issues were sketched out:
• Does a House have a privilege to summon a person to give
evidence who is not directly or indirectly part of the
executive? B
• Do powers of privilege extend to summoning an individual
and compelling them to give evidence on matters of fact or
seek their opinion on any subject matter?
• If there does indeed exist a privilege, how is the same to be
reconciled with an individual’s right to privacy and free C
speech?
• Is the House constrained by the subject matter which
constitutes a part of the business of the House relating to
its legislative functions?
In light of these four issues canvassed by Mr. Salve, we propose D
to set out the detailed arguments and thereafter proceed with our analysis
under three broad heads – (a) the privileges issue, (b) privilege, right to
privacy and free speech and (c) legislative competence.
Privilege Issue
28. Mr. Salve took us through the history of the notion of privilege, E
how it emanated, and how it is to be understood in the current context.
He urged that privilege is a special right enjoyed by the House as a
shield in order to enable it to work without fear or interference. It owes
its origination in the United Kingdom under the rubric of the constitutional
role of the House of Commons (functioning as a court). This role, F
however, has to be appropriately adapted to the Indian Constitution where
there is a sharp separation of powers. A distinction was, thus, sought to
be drawn that while privileges have arisen by virtue of House of
Commons being a Court (with powers such as summoning persons to its
“bar”) it cannot be read into the privileges of a Parliament of a republic.
It was, thus, argued that in the Indian context, parliamentary privileges G
are strictly restricted to legislative functions. Privileges serve the distinct
purpose of safeguarding the integrity of the legislative functions against
obstructions which could be caused by either members or non-members.
Learned counsel sought to refer to certain judicial pronouncements in
this behalf. H
654 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (i) In State of Karnataka v. Union of India9 the proceedings
related to a Commission of Inquiry appointed by the Central Government
under the Commission of Inquiry Act, 1952 against the then Chief Minister
of Karnataka. The challenge was laid by the State Government which
was repelled by a majority judgment of six Judges with one dissenting
Judge.
B
The most significant aspect emphasised was that the “powers”
meant to be indicated in Article 194(3) are not independent but are such
powers which depend upon and are necessary for the conduct of business
of each House. Thus, they could not be expanded into those of the House
of Commons in England for all purposes. The Constitution is sovereign
C or supreme and thus, the Parliament as well as each legislature of the
State in India enjoys only such legislative powers as the Constitution
confers upon it. A distinction was made in the role performed by the
Parliament and Legislative Assembly while exercising its legislative power
as against a court of justice. In taking up proceedings which are quasi
D judicial in cases of contempt of its authority and motions concerning its
“privileges” and “immunities”, the House only seeks removal of
obstructions to the due performance of its legislative functions. However,
if the question of jurisdiction arises as to whether a matter falls here or
not, it has to be decided by the ordinary courts in appropriate
proceedings.10
E
(ii) The next judgment relied upon is Amarinder Singh v. Special
Committee, Punjab Vidhan Sabha & Ors.11 In this case, Shri Amarinder
Singh, then a Member of the Punjab Vidhan Sabha was expelled for the
remaining part of the 13th Vidhan Sabha on allegations of criminal
misconduct relating back to his tenure as the Chief Minister of Punjab
F during the 12th term of the Vidhan Sabha qua alleged responsibility for
improper exemption of a vacant plot of land licensed to a private party.
On a challenge being laid, the Supreme Court opined in favour of Shri
Amarinder Singh holding that the proper course of action for the State
Government should have been to move the criminal law machinery with
G the filing of a complaint followed by investigation as contemplated under
the Code of Criminal Procedure and thus, the Punjab Vidhan Sabha had
exceeded its powers by expelling the appellant on the ground of breach

9
(1977) 4 SCC 608.
10
Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (1975) 2 SCC 159.
11
H (2010) 6 SCC 113.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 655
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

of privilege when there existed none. The alleged improper exemption A
of land was only an executive act and it did not distort, obstruct, or
threaten the integrity of legislative proceedings in any manner observed
the Constitution Bench of five Judges. In coming to the conclusion, the
scope of the powers, privileges and immunities available under Articles
105(3) and 194(3) have been discussed in paras 33 to 37. It was noticed
B
that they were not codified by way of statute till date and, thus, the
Supreme Court held that it could consider the principles and precedents
relatable to the British House of Commons. This Court had adopted a
similar approach towards the concept of legislative privileges to interpret
Article 194(3) in Re. Special Reference 1 of 1964. 12 An aspect
emphasised was that there was a distinction between exercise of C
legislative privileges and ordinary legislative functions. In that context it
was observed as under:
“45. In U.P. Assembly case (supra.), this Court had also drawn a
distinction between the exercise of legislative privileges and that
of ordinary legislative functions in the following manner: D
“70. ….There is a distinction between privilege and function,
though it is not always apparent. On the whole, however, it is
more convenient to reserve the term `privilege’ to certain
fundamental rights of each House which are generally accepted
as necessary for the exercise of its constitutional functions. The E
distinctive mark of a privilege is its ancillary character. The
privileges of Parliament are rights which are ‘absolutely necessary
for the due execution of its powers.’ They are enjoyed by individual
Members, because the House cannot perform its functions without
unimpeded use of the services of its Members; and by each House
for the protection of its Members and the vindication of its own F
authority and dignity.”
(iii) The next judgment relied upon is in the case of Justice (Retd.)
Markandey Katju v. Lok Sabha & Anr.13 Facebook, as an intermediary,
was used by Justice Markandey Katju, former Judge of this Court to
make a statement that Mahatma Gandhi was a British agent causing harm G
to India and that Netaji Subhash Chandra Bose was an agent of Japanese
fascism. This naturally invoked the hackles of the Parliamentarians and a

12
AIR 1965 SC 745.
13
(2017) 2 SCC 384. H
656 SUPREME COURT REPORTS [2021] 14 S.C.R.

A discussion took place in the Rajya Sabha. A resolution was passed
unanimously with the Lok Sabha doing the same on the next day
unequivocally condemning the remarks of Justice (Retd.) Katju. Letters
and e-mails were written questioning this methodology as he was not
given an opportunity of hearing in compliance with the principles of natural
justice. Since it provoked no response, these resolutions were sought to
B
be assailed by Justice (Retd.) Katju in judicial proceedings before this
Court. Since no aspect of privilege was invoked and it was an expression
of the views of the Parliament falling within the domain of freedom of
speech in Parliament, the petition was rejected. It is in that context that
a distinction was made between the exercise of contempt or breach of
C privilege where action was sought to be initiated against a citizen,-whether
a member or a non-member. The law has developed that the action of
such citizen must have interfered with fundamental functioning of the
House so as to enable the House to initiate any proceedings against the
citizen. The earlier judgments inter alia in the case of MSM Sharma v.
Dr. Shree Sri Krishna Sinha14, Raja Ram Pal15, Special Reference
D
No. 1 of 1964 16 and Amarinder Singh17 were discussed to conclude
that Chapter 20 of the Lok Sabha Rules entitled privileges and Rules
222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to
203 of the Rajya Sabha Rules deal with issues concerning privileges.
Thus, an inquiry would be along the lines submitted by the petitioner only
E if such a privilege action was proposed to be taken which was not so in
that case.
In the conspectus of the aforesaid legal principles, it was urged
that the petitioners in the instant case being non-members could only be
summoned if they had intruded upon any functions of the Assembly.
F Their non-appearance or unwillingness to participate in the debate in
which they were compelled to participate did not in any manner disrupt
the functioning of the Committee so as to face the consequences of breach
of privilege. The Committee could always make its recommendations
but the petitioners do not want to be part of it. There were no legislative
G functions to be performed and thus, the contention was that this was a
case of expanding unbridled privileges in the garb of an amorphous set

14
AIR 1960 SC 1186.
15
(2007) 3 SCC 184.
16
Supra note 12.
17
H Supra note 11.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 657
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

of rules to make an exception to the rule of law. As such, it was argued A
that the Terms of Reference had to be given a restrictive meaning.
29. Next, Mr. Salve sought to deal with the issue of judicial scrutiny
of proceedings of the Assembly by seeking to canvas that there is no
absolute bar on Courts to look into the validity of the proceedings of the
Assembly. In the context of Article 212 of the Constitution read with B
relevant sections of the GNCTD Act, if proceedings adopted by the
Assembly suffer from lack of jurisdiction or are illegal or unconstitutional,
a challenge can be made before the competent court. Learned senior
counsel relied upon judicial pronouncements in Special Reference No.1
of 196418, Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.19
and Kalpana Mehta And Ors. vs Union of India And Ors.20 C

30. In Special Reference No.1 of 196421 the dispute arose out of
a conflict between the legislature and the judiciary, if one may say so, as a
consequence of the power exercised by the U.P. Assembly in sentencing
one Keshav Singh to be detained in a civil prison for a period of 7 days and
the judiciary (Allahabad High Court) enlarging him on bail thereafter. This D
was taken as an affront by the legislature, which passed a resolution against
the two concerned judges to be brought in custody before the House. A
Full Bench of 28 judges consisting of the strength of the Court thereafter
assembled to deal with the petitions filed by the two judges against this
resolution. The bench restrained the Speaker from issuing a warrant against E
the judges and the Marshal of the House from executing the warrant. In
order to resolve this confrontation, the President of India decided to exercise
the power to make a reference to this Court under Art. 143(1) of the
Constitution. The reference was on the important question of the exercise
of powers, privileges and immunities of the State legislature vis-à-vis the
power of the High Court and the Judges to discharge their duties. Suffice F
to say that the opinion rendered by the Court in the reference was that the
powers conferred on the High Court under Article 226 of the Constitution
and the authority of the Supreme Court under Article 32 of the Constitution
are not subject to any restrictions. It could not be said that a citizen cannot
move the High Court or the Supreme Court to invoke its jurisdiction, even G
in cases where fundamental rights have been violated. Once the judiciary

18
Supra note 12.
19
Supra note 15.
20
(2018) 7 SCC 1.
21
Supra note 12. H
658 SUPREME COURT REPORTS [2021] 14 S.C.R.

A was authorized to consider the validity of the actions of the legislature, it
was opined that the judiciary cannot be prevented from scrutinizing the
validity of the actions of the legislatures trespassing on the fundamental
rights conferred on the citizens.
31. In Raja Ram Pal22 a private channel’s telecast based on a
B sting operation in the “cash for query case” where 10 Members of
Parliament accepted money through middlemen to raise certain questions
in the House resulted in an inquiry and subsequent expulsion of these
members from the House. The members challenged the said expulsion.
The three questions framed by the Supreme Court were all answered in
the affirmative – (i) that the Supreme Court within our constitutional
C scheme has the jurisdiction to decide the content and scope of powers,
privileges and immunities of the legislature and its members; (ii) the
power and privileges of the legislature in India, in particular reference to
Article 105 of the Constitution, includes the power of expulsion of its
members; and (iii) in case of expulsion, the Supreme Court had jurisdiction
D to interfere to exercise such power and privileges. While rejecting the
plea on expulsion, the Court expounded on the scope of such judicial
review. Significantly, it was opined that though there would be a
presumption that the Parliament would always perform its functions and
exercise its powers within a reasonable manner, there could be no scope
for a general rule that the exercise of power by the legislature was not
E amenable to judicial review. This would neither be in the letter nor the
spirit of the Constitution. The touchstone, however, would not be that of
an ordinary administrative action but the legislature could not be said to
have the licence even to commit a jurisdictional error.
32. In Kalpana Mehta and Ors.23 a vaccination drive conducted
F by NGOs without the vaccine going through all the pre-requisite trials
caused loss of life, resulting in a parliamentary standing committee being
constituted to inquire into the matter. The report of the standing committee
was sought to be relied on in a Public Interest Litigation dealing with the
issue. The question which arose was whether such a report of a standing
G committee could be relied upon in the judicial review. The relevant
observations for our purposes are the summary of conclusions which
deal with the judicial review of such legislative action. It was opined that
constitutional courts are not prevented from scrutinising the validity of
22
Supra note 15.
23
H Supra note 20.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 659
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

the actions of the legislature trespassing on the fundamental rights A
conferred on the citizens. There could, thus, be no immunity to
parliamentary proceedings under Article 105(3) of the Constitution though
it was subject to the restriction contained in other constitutional provisions
such as Article 122 or Article 212. The prohibition on the jurisdiction of
the Court was restricted to the ground of irregularity of procedure but if
B
the proceedings are tainted on account of substantive or gross illegality
or unconstitutionality, there would be no protection against judicial scrutiny.
33. Finally, on the issue of privileges, Mr. Salve referred to the
prevalent position in some other countries regarding the exercise of
privilege powers. It was contended that such privilege powers could not
be used to compel speech, more so when the organisation in question is C
an American corporation. We may notice at this stage itself that we
really do not appreciate the second limb of this submission. When these
corporations are working within the territory of our country and are
subject to the jurisdiction of this Court, then what kind of special privilege
would they have by reason of being an American corporation or a D
corporation incorporated in any other country! Now turning to the two
enactments sought to be referred to by learned senior counsel – the first
one is the Scotland Act, 1998, more specifically Section 23 and the
Government of Wales Act, 2006, more specifically Section 37. We
reproduce the relevant provisions as under:
E
“Section 23 of the Scotland Act, 1998:
23. Power to call for witnesses and documents
(1)The Parliament may require any person—
(a)to attend its proceedings for the purpose of giving evidence, or F
(b)to produce documents in his custody or under his control,
concerning any subject for which any member of the Scottish
Executive has general responsibility.
[…]”
“Section 37 of the Government of Wales Act, 2006 G

37. Power to call
(1) Subject as follows, the Assembly may require any person—
(a) to attend Assembly proceedings for the purpose of giving
evidence, or H
660 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (b) to produce for the purposes of the Assembly (or a committee
of the Assembly or a sub-committee of such a committee)
documents in the possession, or under the control, of the person,
concerning any matter relevant to the exercise by the Welsh
Ministers of any of their functions.
B […]”
34. In the context of the aforesaid provisions, emphasis was laid
on the expression “may” to submit that there is no element of compulsion.
The second aspect emphasised was that, as these legislations suggest,
privilege should relate to matters in connection with functions of the
C
ministers. This in turn was sought to be linked with the argument that
what the Committee was seeking to perform was not a core function of
the Assembly and thus, cannot be said to be their function. Further, if
only an opinion was being sought, as had been urged by the respondents,
then it was submitted that oath could only be on a question of fact and
D not a matter of opinion.
35. Learned senior counsel also assailed the intent of the New
Summons as only a subterfuge. Compelling experts to give an opinion in
a democratic polity, it was argued, would be an “abhorrent proposition”
as it could only be a voluntary act. As such, the act of Assembly it was
E stated, reeked of constitutional arrogance. In fact, what senior counsel
sought to stress was that his submission was not challenging the exercise
of privilege power but the very existence of the same. In this behalf it
was stressed that the Assembly (the Committee being only a smaller
group constituted) would have to reconcile with where their powers to
F summon originate from. Entry 39 of List II (Powers, privileges and
immunities of the Legislative Assemblies) could not be a source of power
of the Assembly and the scenario was rather of a statutory source of
power emanating from Section 18 of the GNCTD Act, which was enacted
in pursuance of Article 239AA (3)(a) and (3)(b) of the Constitution.
Thus, a distinction was sought to be made between a power directly
G emanating from the Constitution and one flowing from a statutory
provision. In the given facts, this was a case of the latter, which, it was
urged would necessarily have to be tested on the touchstone of Part III
of the Constitution. The relevant provisions are extracted hereinunder to
appreciate the controversy:
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 661
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

“Article 239AA (3)(a) and (3)(b) A
239AA. Special provisions with respect to Delhi.—
xxxx xxxx xxxx xxxx xxxx
(3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any B
part of the National Capital Territory with respect to any of the
matters enumerated in the State List or in the Concurrent List in
so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2 and 18. C

(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect to
any matter for a Union territory or any part thereof.”
…. …. …. …. …. …. D
“Section 18 of the GNCTD Act
18. Powers, privileges, etc., of members.—(1) Subject to the
provisions of this Act and to the rules and standing orders regulating
the procedure of the Legislative Assembly, there shall be freedom
of speech in the Legislative Assembly. E
(2) No member of the Legislative Assembly shall be liable to any
proceedings in any court in respect of anything said or any vote
given by him in the Assembly or any committee thereof and no
person shall be so liable in respect of the publication by or under
the authority of such Assembly of any report, paper, votes or F
proceedings.
(3) In other respects, the powers, privileges and immunities of the
Legislative Assembly and of the members and the committees
thereof shall be such as are for the time being enjoyed by the
House of the People and its members and committees. G
(4) The provisions of sub-sections (1), (2) and (3) shall apply in
relation to persons who by virtue of this Act have the right to
speak in, and otherwise to take part in the proceedings of, the
Legislative Assembly or any committee thereof as they apply in
relation to members of that Assembly.” H
662 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 36. We may clarify at this stage that since the submissions were
drawn in the context of certain questions raised, this latter submission
really arises in the context of privilege powers vis-à-vis the constitutional
provisions under Part III of the Constitution which are to be considered
under a separate section.
B 37. It appears that the petitioners wanted to avail of the benefit of
another senior counsel, possibly to further buttress their submissions and
thus, Mr. Arvind Datar, learned senior counsel sought to address us next,
on behalf of Petitioner No. 3, Facebook Inc.
38. Mr. Datar, in an endeavour to trace out the constitutional history,
C referred to the origin of powers and privileges by inviting our attention to
Section 71 of the Government of India Act, 1935. It was stressed that
the provincial legislatures had no powers but only privileges; they did not
have powers to punish people under that Act. Next, in the context of
Erskine May’s seminal commentary on Parliamentary Practices, it was
pointed out that Chapter XI deals with powers and Chapter XII deals
D with privileges and immunities which are used interchangeably.24 Power,
however, remains, distinct. The primary power given to the House was
to make laws or legislative powers. It is these powers from the Act of
1935, which are stated to have been adopted under Article 194(3) of the
Indian Constitution, which applies to the State Government and every
E State Assembly.
39. Learned senior counsel submitted that Delhi is different as it
is on a special footing being categorised as a Union Territory in Article
239AA of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datar
stressed that the powers and privileges conferred on the Delhi Assembly
F are not derived from the Constitution but by reason of statutory
enactments, i.e., Section 18 of the GNCTD Act. The privilege and powers
of the Assembly are, thus, undoubtedly to be tested against Part III of
the Constitution. These being statutory in nature, the aspect of
constitutional balancing of powers with fundamental rights, as arose in
In Special Reference No.1 of 196425 and MSM Sharma26 does not
G arise in the present case. The privilege here is a “derivative” from an
Act of Parliament and not from any Constitutional provision.
24
Erskine May’s Treatise on the law, privileges, proceedings, and usage of Parliament,
(Sir David Natzler, 25th Edition, 2019).
25
Supra note 12.
H 26
Supra note 14.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 663
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

40. We now turn to the submissions of the respondents on this A
issue, which were as vehemently argued. Dr. Singhvi, learned senior
counsel seeking to address submissions on behalf of the Assembly,
sketched out the contours of his submissions as under:
(i) The occasion to argue privilege has not even arisen and
was premature as there was no actual notice of privilege. B
There was, thus, no factual matrix before the Court to
analyse the exercise of the power and what was being
sought by the petitioners qua the aspect of privilege amounted
to seeking an advance ruling on the issue.
(ii) Were the arguments of the petitioners to be accepted, it C
would have wide ramifications on the working of the
committees across the nation both at the State as well as
the Parliamentary levels. The argument of the petitioners,
it was urged, had the propensity to destroy the system of
committees which had been found historically to do yeoman
work, possibly away from the more aggressive stances in D
the Parliament.
(iii) The petitioners could not be conferred with the privilege to
appear before the kind of committees they want to appear
before. The petitioners admittedly had appeared on more
than one occasion of a similar nature without any qualms. E

(iv) In the similar vein, the reference to the IT Act was
premature as the Assembly was not debating any legislation
of the issue but only discussing a particular aspect.
(v) Arguments of the petitioners were premised on lack of F
mutual respect and difference between the organs of our
democracy.
(vi) Committee proceedings are House proceedings and the
Supreme Court would normally never interfere with House
proceedings and therefore also not with committee
G
proceedings.
41. The obvious political divergence between Central Government
and the State Government came out quite openly during the arguments
where Dr. Singhvi sought to put forth the argument that the bold stand of
the petitioners stood on a support base from the Central Government.
H
664 SUPREME COURT REPORTS [2021] 14 S.C.R.

A The appearance before the Parliamentary Committee was sought to be
justified by the petitioners as being based on commercial and operational
reasons and not in view of any compulsion (an aspect disputed by learned
Solicitor General on behalf of the Central Government). The petitioners,
it was argued, were actually canvassing a case on absence of any
commercial and operational consequences/compulsions rather than lack
B
of jurisdiction. It was, however, fairly assured and rightly so, that the
Assembly and the Committee were not oblivious to the constitutional
exclusion of entries 1, 2 and 18 of List II and the respondent would
never contend to encroach upon this constitutional demarcation. One
aspect which Dr. Singhvi sought to emphasise, in our view not very
C convincingly, was that the issue of the press conference was an
afterthought, raised by the petitioners to create prejudice. We say so as
the press conference being held is not in doubt nor what transpired there.
The only turn which Dr. Singhvi could seek to give to this is that what
the Chairman of the Committee mentioned in the press conference were
views of the persons who had deposed and not his own view per se. To
D
say the least, we find this submission very difficult to accept and we will
deal with it at the relevant stage.
42. The other aspect which Dr. Singhvi pointed out was the
withdrawal of the Second Impugned Summons and the New Summons
being issued, which no longer compelled Petitioner No.1 to appear before
E the Committee. However, this aspect has been labeled as a “subterfuge”
by Mr. Salve, on account of the divergent views taken on the aspect of
withdrawal by Dr. Singhvi and Dr. Dhavan– and surprisingly so.
Consequently Dr. Singhvi will have to bear the burden of the cross for
the same.
F 43. On the specific plea of privilege Dr. Singhvi commenced by
seeking to establish that all committees of legislatures have the power to
summon and compel attendance. Any power, without subsidiary powers
to ensure implementation, it was urged, was akin to having no power at
all. The power to compel attendance by initiating privilege proceedings
G is therefore, an essential power. The argument was further supplemented
with the contention that the power of privileges was amorphous in
common law and the Parliament has consciously not codified this area
of law so that they can cater to unimagined situations in the future.
44. Dr. Singhvi, in fact, cautioned that this Court should not embark
H on the path suggested by Mr. Salve, who had argued that it was time
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 665
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

that these privileges were codified. Dr. Singhvi urged this Court to not A
even opine on the necessity of codifying such privileges and that the
same should be left to the Parliament, if they so desire without any
nudge by this Court.
45. Dr. Singhvi sought to erase the distinction between the exercise
of privilege powers under the Constitution and under the GNCTD Act B
by putting them on the same pedestal, urging that the two together provide
for the scheme of operation. Learned senior counsel referred to provisions
(7)(a) & (b) of Article 239AA in the context that the GNCTD Act was
not to be deemed to be an amendment to the Constitution for purposes
of Article 368 of the Constitution notwithstanding that it may contain any C
provision which amends or has the effect of amending the Constitution.
The Assembly was, thus, submitted to be a privileged body with members
enjoying freedom of speech in the House as well as freedom to vote and
had all the privileges (under Section 18 of the GNCTD Act) as are
enjoyed by Members of Parliament. It was thus urged that calling into
question the proceedings of the Committee amounted to calling into D
question the proceedings of the Assembly in a court of law for which the
powers were not vested. The regulation of the procedure of conduct of
business was not subject to jurisdiction of the courts. In order to establish
parity of the privilege powers, Dr. Singhvi drew the attention of the
Court to Article 105 of the Constitution, Section 18 of the GNCTD Act E
coupled with Rule 172 of the Rules.
46. On this aspect, parity was sought to be drawn by relying on
Parliamentary privileges in Entry 74 of List I and that of the Legislative
Assembly in Entry 39 of List II which were stated to be pari materia.
Delhi was no different, it was submitted, and thus the powers of the F
Assembly are the same under entry 39 of List II as any other Assembly
in the context of Article 239AA of the Constitution. To further amplify
this aspect, learned counsel sought to draw strength from the observations
of this Court in State (NCT of Delhi) v. Union of India and Anr.27
which comprehensively dealt with the segregation of powers between
the State and the Central Government in view of an ongoing conflict on G
various issues in this behalf. It was opined by this Court that all entries in
List II will have full play except three specific entries which were
excluded, i.e. entries 1, 2 & 18.

27
(2018) 8 SCC 501. H
666 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 47. In view of Article 239AA(3)(a) the power to summon and
compel attendance was stated to be akin to that of any other legislative
assembly. Testimonies before committees were stated to be mostly under
oath and the rationale for the same was that the process was solemn in
nature and that it would improve the quality of debate. There was stated
to be no competing entry in List I and the question of repugnancy would
B
only arise in terms of any entry in List III where there are central statutes
in a given scenario. The committees of legislatures all over the country
(including Delhi), thus, possess the power to compel attendance of
witnesses as a part of their constitutionally recognized powers and
privileges and there could be no distinction based on the kind of committee
C or the type of person who is summoned in exercise of these powers.
48. We may note another submission of Dr. Singhvi where he
cautioned the court against ruling in a manner wished for by the petitioners
on account of its wider ramifications especially in the context of
observations made in Kalpana Mehta And Ors.28 on the importance of
D committees. Any hampering of the working of the committee would
hamper the working of the Assembly as passing laws is not the only
function of the Assembly. Thus, the practice of passing resolutions by
Assemblies on the sense of the house would be disrupted. On the
significance of the working of these committees, it is not necessary to
go into depth as the issue has been well considered in Kalpana Mehta
E And Ors.29 We, thus, consider it appropriate to only extract some of the
relevant paragraphs:
66. Woodrow Wilson, the 28th President of the United States,
was quoted as saying in 1885 that “it is not far from the truth to
say that Congress in session is Congress on public exhibition, whilst
F Congress in its Committee rooms is Congress at work.” This is
because most of the work of Congress was referred to committees
for detailed review to inform debate on the floor of the House.”
…. …. …. …. …. ….
“70. The importance of Committees in today’s democracy has
G further been detailed thus:
“Committees may not be of much service in the more spectacular
aspect of these democratic institutions, and they might not be of
28
Supra note 20.
29
H Supra note 20.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 667
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

much use in shaping fundamental policy, or laying down basic A
principles of government. But they are absolutely indispensable
for the detailed work of supervision and control of the
administration. Not infrequently, do they carry out great pieces of
constructive legislation of public economy. Investigation of a
complicated social problem, prior to legislation, maybe and is
B
frequently carried out by such legislative committees, the value of
whose service cannot be exaggerated. They are useful for
obtaining expert advice when the problem is a technical one
involving several branches within an organization, or when experts
are required to advise upon a highly technical problem definable
within narrow limits. The provision of advice based on an inquiry C
involving the examination of witnesses is also a task suitable for a
committee. The employment of small committees, chosen from
the members of the House, for dealing with some of the items of
the business of the House is not only convenience but is also in
accordance with the established convention of Parliament. This
D
procedure is particularly helpful in dealing with matters which,
because of their special or technical nature, are better considered
in detail by a committee of House. Besides expediting legislative
business, committees serve other useful services. Service on these
committees keeps the members adequately supplied with
information, deepens their insight into affairs and steady their E
judgment, providing invaluable training to aspirants to office, and
the general level of knowledge and ability in the legislature rises.
Committees properly attuned to the spirit and forms parliamentary
government can serve the country well as the eyes and ears and
to some extent the brain of the legislature, the more so since the
F
functions and fields of interest of the government increase day by
day.”
49. Dr. Singhvi concluded by emphasising that not a single judicial
precedent had been cited from our country or outside where the Court
had intervened at the stage of summoning of a witness by the legislature
(sub-committee). Reliance was placed on the judgment of the Madras G
High Court in C. Subramaniam v. The Speaker, Madras Legislative
Assembly.30 In this case, on a speech being made by a former Member
of the Madras Assembly a show-cause notice was issued by the Speaker

30
AIR 1969 Mad 10. H
668 SUPREME COURT REPORTS [2021] 14 S.C.R.

A of the Assembly as to why his conduct should not be treated as a breach
of privilege. The endeavour to assail the notice was rejected by the Full
Bench of the High Court, on the short ground that it was premature at
that stage as no action had been taken. It was held to be akin to a writ of
prohibition restraining the Speaker of the Legislative Assembly from
proceeding further, which was virtually on the ground of absence of an
B
ab initio jurisdiction. It was further opined that the power vested under
Article 194(3) of the Constitution empowered the Speaker with the right
to call upon a third party like the writ petitioner to show cause against an
alleged breach of privilege by way of contempt. In the facts of the present
case, it was urged, even a show cause notice had not been issued as the
C Petitioner had only been called upon to depose. Thus, there was not
even an initiation of any privilege proceedings.
50. We now turn to the arguments of Dr. Rajeev Dhavan on behalf
of the Committee which sought to intervene in the present proceedings.
We may note at the threshold that the Committee is really a creation of
D the Assembly, but it appears that like the petitioners, the respondents
wanted assistance of more than one counsel in the belief that it would
further advance their case. In the process, as noticed above, some
contradiction of stand came into being regarding the implication of the
issuance of the New Summons and withdrawal of the old one.
E 51. Dr. Dhavan laid great emphasis on the main functions of the
Committee as enunciated, taking a cue from its very description as a
“Peace and Harmony Committee.” The main functions, thus, were to
consider viewpoints across society about prevalence of such a situation
which had the potential to disturb communal peace and harmony or where
communal riots had occurred and to examine in detail and identify the
F factors responsible for it. This was coupled with the mandate to undertake
scientific study on religious, linguistic, and social compositions of the
population of Delhi NCR, with a view to identify and strengthen the
factors which unite people despite their diversity. The Committee also
sought to recommend measures to be undertaken by the government
G towards establishing communal harmony and peace in the State. We
may note with some trepidation Dr. Dhavan’s submissions while seeking
intervention that even if a writ was issued to the Assembly it could not
be deemed to have been issued to the Committee because the Committee
was an autonomous body which would eventually report to the Assembly
and thus, enjoys a separate legal existence. Suffice for us to say at this
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 669
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

stage that if the Committee is the creation of the Assembly and seeks to A
derive its powers and strength from the Assembly, it is surprising to note
a submission that the -Committee would not be bound by a direction of
this Court if it was not specifically made a party. Be that as it may, we
did permit the Committee to intervene and to that extent there was no
objection from Mr. Salve.
B
52. The initial rebuttal to the challenge is based on the anticipatory
nature of the proceedings, being presumptive and pre-emptive. There
are several stages of scrutiny before a breach of privilege notice is even
issued; much less any conviction arising from such a breach of privilege.
53. It was further contended that no factual basis had been laid C
for the concerns regarding the First and Second Impugned Summons
and the press conference. Fundamental rights could not be said to be
violated by a mere issuance of summons. There was stated to be lack of
specificity of any claim of mala fides which could not be general in
character but must be specifically pleaded and proved by all material
particulars in relation to the persons concerned.31 This was an aspect D
absent in the present case. Dr. Dhavan categorised the writ petition as a
SLAPP (Strategic Lawsuit Against Public Participation), engineered to
silence the Committee and interfere with the democratic process.
54. Dr. Dhavan clarified the statements made by Mr. Raghav
Chadha during the press conference on 31.08.2020 to contend that it E
was merely a summary of the complaints received by the Committee.
They were stated not to represent the Chairman’s views, the Committee’s
conclusions or the scope of the Committee’s functions. The Committee
had not suo moto decided that the petitioners were responsible for causing
disharmony. It had received complaints from several different people, F
who specifically attributed the disharmony caused by the riots in Delhi
to Facebook. The statements made in the press conference were, thus,
not made in bad faith and were simply repetitions of the depositions
made to the effect that Facebook may have had a role in the riots.
55. The contention on the Committee’s Terms of Reference G
recommending criminal action was stated to be “toothless.” Thus, in a
sense what was conceded was that the said part of the Committee’s
Terms of Reference (i.e. in paragraph 4(vii)) was “otiose.” The

31
State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566; K. Nagraj v. State of
Andhra Pradesh (1985) 1 SCC 523. H
670 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Committee could, at best, make recommendations. Whether criminal
action was, in fact, initiated was entirely the remit of the police or the
judiciary and in that context no real threat was made to the petitioners
either by the Terms of Reference or by the impromptu statements made
by the Chairman in the press conference.
B 56. The aforesaid submissions, in our view, may have mollified
the petitioners though apparently not Mr. Salve. As per his submissions,
all the aspects would have to be read together to come to a conclusion
whether the petitioners had a real concern to approach the Court or not.
We say so in the context of the Terms of Reference which included
recommending criminal action, the utterances of Mr. Raghav Chadha in
C the press conference (undoubtedly in the background of the depositions
before the Committee) and the limitation on the legislative domain by
carving out of certain entries from List II as applicable to the Assembly.
We will pen down our view on this aspect at a later stage.
57. We now come to arguments of Dr. Dhavan that were in sync
D with what Dr. Singhvi had argued, i.e., in view of the judicial observations,
these committees are the eyes and ears of the Parliament, essential for
the democratic polity. The functions performed by the committees are
part of the core legislative functions of State Assemblies, which may
include (a) supervising administration, (b) taking evidence on legislation,
E and (c) dealing with a crisis or governance generally. In that context, Dr.
Dhavan pointed out that the petitioners had not challenged the constitution
of the Committee itself or its Terms of Reference. The petitioners had
also not challenged the summons issued by the Parliament despite
Parliament’s threat to initiate breach of privilege proceedings in case
they refused to appear. As such, Facebook could not be said to have any
F issues while appearing before the Parliamentary Committee. The role
of intermediaries in governance was relevant and the testimony of the
petitioners was important in that context. The refusal was sought to be
labeled down as one relating to “political reasons.”
58. Dr. Dhavan then turned to the aspect of the distinction drawn
G by Dr. Singhvi between members and non-members in the context of
the legislature’s power to summon witnesses or initiate breach of privilege
proceedings. He canvassed that no rule existed as per which non-
members have the power to refuse a summons issued by a legislative
committee. The core function of the legislature is democracy and not
H just to legislate, an aspect we agree with. Thus, it was the obligation of
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 671
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

every person to cooperate with the legislature and appear when requested A
to assist in the realisation of this core function. There were several ways
in which the legislature may seek democratic participation, one example
was appearance before committees.
59. In support of the aforesaid plea, Dr. Dhavan illustrated the
proposition by giving instances of notices issued to non-members which B
also form a subject matter of a treatise by Dr. Dhavan “Only the Good
News: On the Law of the Press in India” published in 1987.
“- Thaniram (1975), (1975) XX P.D. (No.2) 49 (Kerala
Legislative Assembly) – Reprimand to person who
questioned the partiality of Speaker. C
- Satyayug (1977), (1977) XXII P.D. (No.1) 18 (West Bengal)
– The West Bengal Legislature was maligned and the
feature writer did not apologise but the editor did.
- Udayavani (1978), (1977) XXII P.D. (No.2) 47 (Karnataka)
– An unrepentant editor of a newspaper reprimanded by D
the Legislature for accusations of harassing educational
institutions.
- Nagrik (1978), (1981) XXVI P.D. (No.1) 19 (Tripura) – An
editor, who criticized the alleged leak of a budget by the
Chief Minister, subject to imprisonment for a day. E
- Varsha Joshi and K.W. Deson (1982), (1982) XXVII P.D.
(No.1) (Gujarat) – The threat to institute legal proceedings
against a speaker for allowing discussion on sub judice
matters caused the Committee to recommend imprisonment
of a person.” F
60. On the constitutional status of the Assembly, Dr. Dhavan sought
to make a distinction between all Union Territories on the one hand, and
Delhi and Puducherry on the other. A second distinction was made
between the Delhi and the Puducherry Legislative Assemblies. The
significant distinction was stated to be that while the Puducherry G
Legislative Assembly was empowered by Article 239A, the Delhi
Legislative Assembly was created through an exercise of constituent
power by the 69th Amendment Act, 1991. Thus, while Article 239AA
excluded police power and public order from the scope of the Assembly’s
competence, that did not detract from it being a full-fledged working
H
672 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Legislative Assembly similar to the Parliament. This aspect was stated
to be reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’s
view, the powers of privilege of the Assembly could be traced to Article
239AA(2) & (7) of the Constitution, Section 18(3) of the GNCTD Act
and Rules 160 and 172(4) of the Rules. Dr. Dhavan drew strength from
Article 212(1) to canvas that the Constitution grants internal autonomy
B
to each House of the State legislature and the validity of any proceedings
cannot be questioned on an allegation of “irregularity of procedure.” 32
There were conceded to be limitations to Article 212(1) of the Constitution
and this Court had held that interference with the internal functioning of
the State Legislative Assemblies can only be limited to cases of “gross
C illegality and unconstitutionality.”33 No such illegality having occurred in
this case and only a summons being issued, no proceedings for breach
of privilege had been initiated and no question had been asked. As such
there was no occasion whatsoever to call for interference by this Court.
61. Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasised
D on the sui generis nature of parliamentary powers and privileges and
vehemently opposed the suggestion that these privileges needed to be
codified. The powers and privileges of the legislature do not require a
law and learned senior counsel sought to repel the argument of Mr.
Salve that the amorphous nature of privileges offends the law and due
process. It would not amount to claiming privilege as they want, as the
E Supreme Court has recognized a “Lakshman Rekha” to confine the
extent and exercise of their powers.34 There could be many other legal
concepts that are similarly amorphous or in HLA Hart’s language “open
textured.” This would not amount to ipso facto undermining the credibility
of these concepts or reducing the importance of the meaning given to
F them by the Supreme Court. Thus, at this stage, the only question was
whether a simpliciter issuance of summons from a sub-committee was
constitutionally improper to which the answer should be in the negative.
62. The last set of arguments on this point by Mr. Tushar Mehta,
learned Solicitor General of India, were in a limited contour. He supported
G learned counsel for the respondents on the power of the Parliament and
Assemblies per se to summon but that would be subject to judicial review.
However, his next submission was in sync with the submission of the

32
Supra note 14.
33
Supra notes 12 and 15.
H 34
Supra note 12.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 673
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

petitioners that the Assembly lacks legislative competence to deal with A
the subject matter in question. That being his submission, it was felt that
a complete argument on privilege was not required to be considered. In
substance, his contention was that the summonses could not have been
issued because of lack of legislative competence but if the Assembly
had the legislative competence, then the principles as enunciated by
B
learned counsel for the respondents were the correct principles.
Privileges, Free Speech and Privacy
63. We have dealt with the aspect of rival contentions arising
from the privilege of the House to summon a person, to compel them to
give evidence on matters of fact, and seek their opinion – which are the C
first two questions framed by Mr. Salve under the head of privileges as
aforesaid. Having done so, we proceed to the third question dealing with
the interesting aspect of privileges vis-à-vis an individual’s right to privacy
and free speech.
64. We may at the threshold note that Mr. Salve had to deal with
the aspect raised by the respondents on the petition being premature – D
both in the context of privilege per se and in the interaction between
privileges and fundamental rights.
65. Mr. Salve strongly refuted the plea of the petition being
premature on the basis of the summonses issued by the Committee where
it was threatened that “necessary action” would be taken against the E
petitioners for breach of privilege if they do not appear. He submitted
that even a threatened breach of fundamental rights is sufficient to
invoke jurisdiction of this Court under Article 32 of the Constitution.35
Further elucidating on this aspect, Mr. Salve submitted that access to
justice is a human right available where there is even a threat to personal F
liberties.36 In that context, he stated that the Second Impugned Summons
left no room for doubt that Respondent No. 2 was determined that the
failure to appear would constitute a breach of privilege for which “necessary
action” will be taken, which included the risk of arrest and imprisonment.
This argument arose from the plea of Mr. Salve that the petitioner had a
right to not appear and in the alternative a right to remain silent if he so G
appears.
35
K.K. Kochunni v. State of Madras, AIR 1959 SC 725, at 729-730; D.A.V. College v.
State of Punjab (1971) 2 SCC 261, at para 5; Anita Kushwaha v. Pushap Sudan (2016)
8 SCC 509, at para 42.
36
Tashi Dalek Gaming Solutions Ltd. v. State of Karnataka (2006) 1 SCC 442. H
674 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 66. In view of the aforesaid fact and the plea that the summons
itself was without jurisdiction, it was submitted that the threat of coercive
action is itself without jurisdiction and a person need not wait for injury
to occur before seeking the Court’s protection.37 Mr. Salve emphasised
the importance of the observations made in S.M.D. Kiran Pasha v.
Government of A.P. and Ors., where the Court recognized that “if a
B
threatened invasion of a right is removed by restraining the potential
violator from taking any steps towards violation, the rights remain
protected and the compulsion against its violation is enforced.”38
Mr. Salve further relied on Bengal Immunity Co. Ltd. v. State of Bihar
and Ors., wherein the Court observed “It is, therefore, not reasonable
C to expect the person served with such an order or notice to ignore it
on the ground that it is illegal, for he can only do so at his own risk
and peril.”39 The certainty of a legal proposition qua the right of a person
was, thus, emphasised by this Court observing “a person placed in such
a situation has the right to be told definitely by the proper legal
authority exactly where he stands and what he may or may not do.”40
D
67. The plea raised by Mr. Salve is on the premise that even if a
right of privilege validly accrued, the same would have to be narrowly
construed and reconciled with the petitioner’s right under Part III of the
Constitution . The First and Second Impugned Summons addressed to
Petitioner No.1 explicitly stated that it was so addressed to him as the
E one “spearheading Facebook”, and thus, no option was left to Facebook
to decide who would appear before the Committee. Of course, with the
recall of the Second Impugned Summons and the issuance of the New
Summons; this aspect urged before the recall of the first notice would
not really survive.
F 68. Learned counsel, once again, took us to Article 194(3) of the
Constitution to contend that it provided that privilege powers would, from
time to time, be defined. The submission was that the Constitution makers
had envisaged a clear ambit to be defined for privilege powers, which
has unfortunately never happened. That is why, the plea has been made
G to the effect that either this Court defines the privilege power or direct/
request the legislature to at least consider the issue of defining these

37
Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412.
38
(1990) 1 SCC 328, at para 14.
39
(1955) 2 SCR 603 at para 7.
40
H Ibid.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 675
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

privilege powers on the pari materia basis as in Scotland and Wales. In A
the context of the language of Article 194(3), it was submitted that only
such privileges are available to legislatures that can be exercised without
impinging on fundamental rights.
69. In the conspectus of this general proposition, it was urged that
the summons issued to the petitioner violated his right to remain silent B
which was not limited to Article 20 (which was inapplicable by virtue of
these not being criminal proceedings); but also implicit in his rights under
Article 19(1)(a) and Article 21 of the Constitution. The right of personal
autonomy has been held by this Court to include aspects of the choice
between speaking and remaining silent.41
C
70. The summons per se, as per the submissions, were violative
of the petitioner’s right against arbitrary State action under Articles 14,
19, and 21 of the Constitution. Learned counsel was conscious of the
judgment of this Court in MSM Sharma42 and the view expressed therein
about powers, privileges, and immunities available in terms of Articles
105(3) and 194(3) of the Constitution. The Court had taken the view D
that such powers, privileges, and immunities stood in the same position
as Part III of the Constitution and that the fundamental right to free
speech and expression under Article 19(1)(a) must yield to Article 194.
Mr. Salve sought to distinguish this proposition in view of subsequent
judicial developments. The principle propounded was submitted to have E
been eroded by subsequent constitutional developments as per which
the right to free speech under Article 19 was to be seen as part of a
trilogy of rights along with Articles 14 and 21, and the rights no longer
existed in silos. It was thus, his contention, that the fundamental
proposition that privileges can override Article 19 but not Article 21 stood
overruled in view of the judicial pronouncements in Maneka Gandhi v. F
Union of India43 and R.C. Cooper v. Union of India44. It would be
relevant to reproduce para 6 of Maneka Gandhi45 as it traces the
constitutional development in this regard through various judicial
pronouncements as under:
41
G
Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263; K.S. Puttaswamy and Anr. v.
Union of India and Ors. (2017) 10 SCC 1; Excel Wear v. Union of India & Ors. (1978)
4 SCC 224.
42
Supra note 14.
43
(1978) 1 SCC 248.
44
(1970) 2 SCC 298.
45
Supra note 43. H
676 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “6. We may at this stage consider the interrelation between
Article 21 on the one hand and Articles 14 and 19 on the
other. We have already pointed out that the view taken by the
majority in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR
88 : 51 Cri LJ 1383] was that so long as a law of preventive
detention satisfies the requirements of Article 22, it would be
B
within the terms of Article 21 and it would not be required to
meet the challenge of Article 19. This view proceeded on the
assumption that “certain articles in the Constitution exclusively
deal with specific matters” and where the requirements of an
article dealing with the particular matter in question are
C satisfied and there is no infringement of the fundamental right
guaranteed by that article, no recourse can be had to a
fundamental right conferred by another article. This doctrine
of exclusivity was seriously questioned in R.C. Cooper case
[(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-
ruled by a majority of the full Court, only Ray, J., as he then
D
was, dissenting. The majority Judges held that though a law
of preventive detention may pass the test of Article 22, it has
yet to satisfy the requirements of other fundamental rights
such as Article 19…”
71. We may note in the end an aspect which was raised in the
E writ petition, but not really contended on behalf of the petitioners: a similar
question related to the interplay between the State Legislature’s privilege
powers under Article 194(3) and a non-member’s fundamental rights
was pending before a 7-Judge Bench of the Supreme Court in N. Ravi
v. Legislative Assembly46 on account of a perceived conflict between
F MSM Sharma47 and Special Reference No.1 of 196448. Dr. Singhvi
mentioned this issue only to distinguish and state that N. Ravi49 was a
case that related to the conviction of a non-member which is not so in
the facts of the present case.
72. Dr. Singhvi, on behalf of Respondent No.1, once again, at the
G threshold submitted that akin to the privileges issue, this issue is also
premature as no coercive action has been taken against the petitioner

46
(2005) 1 SCC 603.
47
Supra note 14.
48
Supra note 12.
49
H Supra note 46.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 677
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

and none was intended if the authorised representative fairly attended A
and participated in the proceedings as a witness. The transparency of
the proceedings was sought to be emphasised as there was a live
broadcast and therefore there could be no question of any apprehension
in respect of the proceedings.
73. Learned counsel also sought to assail the maintainability of B
the writ petition because Petitioner Nos. 2 & 3 are not citizens of India
and no shareholder had been impleaded as a petitioner. But then one
must note that the initial summons was sent to Petitioner No.1, who is a
citizen of India, albeit holding an office in Petitioner No.2 organisation.
Subsequently, the summons issued to him was withdrawn and re-worded C
summons was issued. However, the parties had agreed to proceed on
the basis of existing pleadings and questions raised. We are thus, not
inclined at the threshold itself to look into this contention with any
seriousness.
74. Insofar as the submission about the summons issued to D
Petitioner No.1 is concerned (even though summons was withdrawn), it
was urged that a witness could not claim his right to remain silent or to
be let alone in response to a summon to depose before a lawful committee
of an empowered legislature. Such a right was not a fundamental right
under Article 20 of the Constitution unless a person is an accused; as
was the case in Selvi50 which involved rights of an accused in context of E
narco analysis and other tests. Petitioner No.1, and for that matter anyone
who deposes, is not an accused. There is no conflict between Article
19(1)(a) of the Constitution and Rule 174 of the Rules. The right to
remain silent is relevant only in criminal investigations. The proceedings
before the Committee are not criminal or judicial proceedings. There is F
no accused before the Committee. All persons who appear before it are
witnesses and subject to examination by the members as per the Rules
of the House. These Rules have been made in exercise of the powers
conferred under Section 33 of the GNCTD Act, which in turn draws its
strength from Article 239AA(7) of the Constitution. Thus, it was submitted
that the mere summons to give expert deposition before the Committee G
on the issues falling within the remit of the Committee cannot be said to
be a violation of any fundamental rights so as to invoke Article 32 of the
Constitution. We may note at this stage that the third issue we will deal

50
Supra note 41. H
678 SUPREME COURT REPORTS [2021] 14 S.C.R.

A with is the perceived remit of the Committee and whether the remit has
the sanction of the Constitution in the context of division of subject matter
under the three Lists of the 7th Schedule.
75. The distinction between members and non-members carved
out by Mr. Salve was sought to be brushed aside by Dr. Singhvi by
B submitting that there was no such distinction as Article 105(4) uses the
expression “in relation to persons”. The apprehension about self-
incrimination was also urged to be misconceived in view of the constitutional
protection envisaged under Article 105(2) of the Constitution.
76. Dr. Singhvi then engaged with the arguments of the petitioners
C regarding encroachment of fundamental rights, the submissions originally
addressed by both parties being in the context of Petitioner No.1. In this
regard, it was submitted that not even a prima facie case was established
for the breach of any fundamental right. Petitioner No.1 had not been
summoned to speak as a private individual but to speak on behalf of
Petitioner No.2. Only a shareholder could have asserted the right on
D behalf of Petitioner Nos. 2 & 3, as they were corporate entities, because
individuals’ rights are not to be subsumed in the company. 51
77. We may note that surprisingly, Dr. Singhvi sought to urge that
Petitioner No.1 has not been summoned to speak as a private individual
but to speak for Petitioner No.2. We are saying this is surprising because
E the New Summons also permits any suitable officer to speak on behalf
of Petitioner No. 2 and if a shareholder can urge a right under Article 32
of the Constitution, we fail to appreciate why an officer of a corporation
to the extent he has been asked to speak cannot urge this aspect. The
First and Second Impugned Summons were specifically addressed to
F Petitioner No.1 and only during the course of arguments, facing certain
difficulties (which somehow Dr. Dhavan did not consider relevant) the
initial summons was withdrawn and a new summons issued.
78. The more relevant submission is that in the context of Article
21, at this stage, only a summons to appear was issued and there was no
G question of restriction of personal liberty. The proceedings were not for
breach of privilege. No coercive action was taken or was intended if
Petitioner No.1 (or any other officer) merely appeared and assisted the
Committee as a witness. On the issue of right to privacy under Article
51
Supra note 44; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788; Divisional
H Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 679
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

21, it was urged that Article 21 itself would have to be read as confined A
to a person while a corporation has no personhood.52
79. The argument of Mr. Salve, based on the trilogy of rights
under Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out of
context in the present case as the Constitution sets clear parameters for
the applicability of certain fundamental rights. Article 19 is still available B
only to citizens. Article 21 is available only to humans who are capable
of having personhood and Article 19(1)(a) continues to be unavailable
when legislative privilege is invoked especially if the legislatures are to
function effectively. In that context it was urged that the ratio of the
decisions in MSM Sharma53 and In Special Reference 1 of 196454
still hold good. On the right to remain silent, it was urged that this was C
not a right protected under Article 19(1)(a) of the Constitution as it was
not a general right; and if at all this right had to be pleaded, it was to be
before the legislature which had summoned Petitioner No. 1, and not
before the Supreme Court. If silence is to be pleaded for a good reason
in response to a specific question, that request should be dealt with by D
the Committee as per applicable rules. Reliance in the petition on the
pending reference in N. Ravi55 would be of no avail to the petitioners as
there has been no punishment for any breach so far, making the present
case distinguishable.
80. Dr. Dhavan while advancing his case on behalf of the E
Committee sought to lift the corporate veil between Petitioner Nos. 1 &
2, as the true petitioner is Facebook and not Ajit Mohan. The purpose of
the summons was to seek Facebook’s assistance regarding its role as a
social media platform/intermediary in a situation like the Delhi riot, where
persons had deposed before the Committee and pointed out the
aggravation which had taken place because of platforms like Facebook. F
The summons had been issued to Facebook’s senior representative who
could be of assistance and the summon itself had made it clear that this
notice was issued to Facebook India, not to a specific individual: inasmuch
as the notice was issued to Petitioner No.1 in his capacity as a
representative of Facebook. Thus, it was contended that neither Article G

52
Chiranjit Lal Chowdhury v. Union of India 1950 SCR 869; Petronet LNG Ltd. v.
Indian Petronet Group and Anr. (2009) 158 DLT 759.
53
Supra note 14.
54
Supra note 12.
55
Supra note 46. H
680 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 32 nor Article 19(1)(a) of the Constitution were available to the petitioners
as these rights do not extend to corporations. This was stated to be of
significance as the petitioner had claimed the right against compelled
speech under Article 19(1)(a) of the Constitution. As far as corporations
are concerned, there are no personal liberties for corporations though
they have certain responsibilities.56
B
81. Learned counsel took us through Article 194(3) to emphasise
that it has two parts. The first part deals with privileges being enacted
statutorily, while the second part states that until such a law is enacted,
legislative privileges are frozen as they stood on 20.06.1979. A trilogy of
pre-1979 cases authoritatively discussed which fundamental rights are
C attracted in relation to a breach of privilege.57 MSM Sharma58 declared
that the relevant portion of the Ganupati Keshavan Reddy59 was obiter
and therefore not binding. Thus, it was submitted that the correct legal
position regarding privileges and fundamental rights was laid down in
MSM Sharma60 and Special Reference No. 1 of 196461; i.e., Article
D 19 of the Constitution does not apply to exercise of privileges under
Article 194(3). The relevant portion of the judgment in MSM Sharma62
as part of para 27 is extracted as under:
“27. .…Article 19(1)(a) and Art. 194(3) have to be reconciled
and the only way of reconciling the same is to read Art.
E 19(1)(a) as subject to the latter part of Art. 194(3), just as
Art. 31 has been read as subject to Art. 265 in the cases of
Ramjilal v. Income-tax Officer, Mohindargarh (1) and
Laxmanappa Hanumantappa v. Union of India (2), where this
Court has held that Art. 31(1) has to be read as referring to
deprivation of property otherwise than by way of taxation. In
F the light of the foregoing discussion, the observations in the
Madhya Bharat case (3) relied on by the petitioner, cannot,
with respect, be supported as correct. Our decision in

56
Supra notes 44 and 51.
57
G Ganupati Keshavan Reddy v. Nafisul Hasan AIR 1954 SC 636 (“the Blitz case”);
Supra note 14 (“the Searchlight case”); Supra note 12 (“the Legislative Assembly
case”).
58
Supra note 14.
59
Supra note 57.
60
Supra note 14.
61
Supra note 12.
62
H Supra note 14.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 681
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Gunupati Keshavram Reddy v. Nafisul Hasan (4), also relied A
on by learned advocate for the petitioner, proceeded entirely
on a concession of counsel and -cannot be regarded as a
considered opinion on the subject. In our judgment the
principle of harmonious construction must be adopted and
so construed, the provisions of Art. 19(1)(a), which are
B
general, must yield to Art. 194(1) and the latter part of its el.
(3) which are special.”
82. Dr. Dhavan in sync with the arguments of Dr. Singhvi disputed
Mr. Salve’s case that Articles 14, 19, & 21 of the Constitution were
integrated by R. C. Cooper63 and Maneka Gandhi64 into one single
C
right. He submitted that the effect of these cases was only to create
India’s due process as far as constitutional limitations are concerned.
Each of these rights have their own independent existence and
correspondingly their own independent limitations. The golden triangle
does not invalidate the cases ruling that Article 194(3) of the Constitution,
though subject to Article 21, was not subject to Article 19 of the D
Constitution. The argument of Mr. Salve was, thus, pleaded to be
overstated and contradictory.
83. In the end it was contended that no fundamental right was
violated by issuance of summons to the petitioner.
E
84. Suffice to say that so far as learned Solicitor General is
concerned no specific arguments were addressed in this behalf except
that he drew attention of this Court to N. Ravi65.
Legislative Competence
85. Elaborate submissions were addressed on the first three aspects F
by Mr. Salve even though one of the primary issues was whether it was
more speculative in character and premature, as at this stage of the
assailed proceedings only summons had been issued to the petitioners.
The bedrock of Mr. Salve’s submissions was based on the alleged lack
of legislative competence of the Assembly and consequently of the
G
Committee to look into the subject matter qua which the notice had been
issued to the petitioners. The submission, thus, was that in the absence

63
Supra note 44.
64
Supra note 43.
65
Supra note 46. H
682 SUPREME COURT REPORTS [2021] 14 S.C.R.

A of any such legislative competence, the petitioners were entitled to
approach the Court at this stage itself rather than being compelled to
wait for further progress in the proceedings.
86. There were three limbs of this submission. The first limb was
in respect of the statutory enactments, i.e., the IT Act, enacted by the
B Parliament under List I, governs and regulates Facebook. This could not
be an aspect with which the State Government was concerned. In fact,
this was stated to be the reason why the petitioners had willingly
cooperated and appeared before the Parliamentary Committee in the
past. The second limb was based on the subject matter which the
Committee wanted to go into, even though it had been specifically denuded
C
of the power as those subject matters fall within the jurisdiction of the
Central Government under Entry 31 (Communications) and under Article
239AA(3)(a) of the Constitution read with Entries 1 and 2 in List II
(Public Order and Police). The third limb flowed from these two issues
and is based on the unique status of Delhi. He argued that the constitutional
D scheme specifically took away certain subject matters which would
normally fall in List II and would ordinarily be dealt with by a State
Assembly. However, in Delhi’s case, these powers were conferred on
the Central Government.
87. He then took us through the provisions of the IT Act to contend
E that it is undisputed that Facebook was an intermediary within the
definition of the IT Act. Section 2(1)(w) of the IT Act defines
intermediaries as under:
“2(1). In this Act, unless the context requires otherwise,

F xxxx xxxx xxxx xxxx xxxx
[(w) “intermediary”, with respect to any particular electronic
records, means any person who on behalf of another person
receives, stores or transmits that record or provides any service
with respect to that record and includes telecom service providers,
G network service providers, internet service providers, web-hosting
service providers, search engines, online payment sites, online-
auction sites, online-market places and cyber cafes;]”
88. In the context of the controversy sought to be raised as regards
the role of intermediaries during such law and order problems, Mr. Salve
H contended that this aspect was covered by the power to issue directions
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 683
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

to block public access to any information and was thus, squarely covered A
by Section 69A of the IT Act.
89. The aforesaid provision and its role was not a grey area in
view of the judicial pronouncement of this Court in Shreya Singhal v.
Union of India.66 Thus, a well-developed procedure to deal with such
issues was already in place and consequently, the matter was an occupied B
field by the Central Government.
90. Another issue raised by Mr. Salve was that the legislative
domains of “public order” and “police” both stood explicitly outside the
competence of the Assembly. It was contended that recommendations
in matters which fall within List I or which do not fall within List II C
cannot be said to be legislative functions. It was stressed that the purpose
for which the summons was issued, and the issue sought to be addressed
by the Committee were aspects of public order and therefore they were
not primary functions of the Assembly.
91. The utterances in the press conference were pointed out to D
contend that it was amply clear that the purpose behind its exercise was
to file a supplementary chargesheet which was alien to the powers of
the Assembly.
92. The endeavour of Respondent No.1 had been confirmed in
the reply filed by the respondents to compel Petitioner No.1 to testify as
E
an expert witness as part of its decision “to delve into the matter of
concern raised in the complaints (about Facebook)”. The complaints,
in turn, dealt with content allegedly posted on Facebook and how they
contributed to the Delhi riots. By respondents’ own pleadings, the
endeavour of compelling Petitioner No.1 to appear before it was in
furtherance of the following: F
a. Examine testimonies relating to Facebook’s alleged role in
the Delhi riots;
b. Examine instances of inaction/inability on the part of social
media platform (Facebook) to enforce its policies against
hateful content; G
c. Seek views of Petitioner No.1 as a representative of
Facebook to understand Facebook India’s internal policies
and their implementation.
66
(2015) 5 SCC 1. H
684 SUPREME COURT REPORTS [2021] 14 S.C.R.

A d. Ascertain (Petitioners’) views on the question whether the
said company’s platform has contributed to the Delhi riots
and also how these platforms could be used to strengthen
unity among the citizens of Delhi in the future.
93. Conscious of the line sought to be adopted by the respondents
B by referring to “Cooperative Federalism”, Mr. Salve contended that the
same was misconceived as it arose in a factual matrix where the Union
and the State exercise overlapping powers. The exercise of power by
the Assembly in question had no connection with any such area of overlap.
He argued that cooperative federalism cannot be converted into an
independent head of power in addition to the powers conferred by the
C
statute. In this regard reference was made to two judicial pronouncements
in K. Lakshminarayan v. Union of India & Anr.67 and State (NCT of
Delhi) v. Union of India68.
94. In order to appreciate what is meant by “cooperative
federalism” in the context of what appears to be a continuous judicial
D
battle between the Central Government and the State Government has
been enunciated in State (NCT of Delhi) (2018), where the Court
encouraged walking hand-in-hand even if there are different political
dispensations in power. We do believe and may note at this stage that
such hope has been repeatedly belied! The enunciation of the principle
E is set out in para 119 as under:69
“119. Thus, the idea behind the concept of collaborative federalism
is negotiation and coordination so as to iron out the differences
which may arise between the Union and the State Governments
in their respective pursuits of development. The Union Government
F and the State Governments should endeavour to address the
common problems with the intention to arrive at a solution by
showing statesmanship, combined action and sincere cooperation.
In collaborative federalism, the Union and the State Governments
should express their readiness to achieve the common objective
and work together for achieving it. In a functional Constitution,
G
the authorities should exhibit sincere concern to avoid any conflict.
This concept has to be borne in mind when both intend to rely on

67
(2020) 14 SCC 664.
68
Supra note 27.
69
H Supra note 27 at para 119.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 685
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

the constitutional provision as the source of authority. We are A
absolutely unequivocal that both the Centre and the States must
work within their spheres and not think of any encroachment. But
in the context of exercise of authority within their spheres, there
should be perception of mature statesmanship so that the
constitutionally bestowed responsibilities are shared by them. Such
B
an approach requires continuous and seamless interaction between
the Union and the State Governments. We may hasten to add that
this idea of collaborative federalism would be more clear when
we understand the very essence of the special status of NCT of
Delhi and the power conferred on the Chief Minister and the
Council of Ministers on the one hand and the Lieutenant Governor C
on the other by the Constitution.”
95. Thus, Mr. Salve contended that while the Court has touched
on the concept of collaborative federalism, it has also simultaneously
observed in “absolutely unequivocal” terms that both the Centre and the
State have to work within their spheres and not think of any encroachment. D
It was, thus, contended that what was sought to be done was clearly an
encroachment by relying on the larger principle of cooperative federalism.
96. An important aspect has, once again, been emphasized in K.
Lakshminarayan70, that the Assembly can seek to exercise power as
conferred under the GNCTD Act, promulgated by the Parliament E
exercising its residuary powers under Entry 74 of List I. In that context
it was emphasised that there is a difference between Articles 239A and
239AA of the Constitution. The former is with respect to the Union
Territory of Puducherry, which simply provided purely enabling provisions
while the latter contained extensive provisions among which sub-clause
(7) empowered the Parliament to legislate and give effect to all the F
provisions. Mr. Salve assailed the endeavour of the Assembly to “clutch
at a jurisdiction that is not available”.
97. In response to the Court’s queries arising from the earlier
summons being superseded by the New Summons, the respondents’
contention that the aspect of privilege had not arisen, and whether the G
petitioners could claim to be an unaccountable platform; Mr. Salve
contended that the petitioners were ready to comply with any Indian law
and had been doing so. What they were not desirous of doing was to be

70
Supra note 67. H
686 SUPREME COURT REPORTS [2021] 14 S.C.R.

A drawn into an aspect of political divide. To emphasise this point he referred
to a letter dated 01.09.2020 by the Union Communication Minister alleging
inter alia that Facebook India was leading a concerted effort to shrink
the space for dialogue for those with a right-of-centre ideology. It was,
thus, submitted that on the one hand the respondents seem to allege that
there was a pro-Government or a pro-right bias of Facebook while the
B
Central Government claimed the opposite – the common factor being
that both positions were for their respective political reasons by alleging
bias against the petitioners albeit from different sides. Mr. Salve’s
contention was that an Assembly must limit itself to its core function of
legislation. Even if it were to summon a witness, this must be in relation
C to matters that were within its ambit as demarcated by the Court in the
judgment of State (NCT of Delhi) v. Union of India71. This judgment
made it clear that in reference to the Code of Criminal Procedure,
1973, the powers in relation to the Entry of public order were conferred
on the Parliament and consequently denuded from the powers of the
D Assembly. In that context, even if the widest amplitude was given to
the Entries, that was with the objective of not restricting the legislative
competence of the Parliament or the Assembly in a field which they in
principle were competent to legislate. In the present case, one was
concerned with the powers of the Central Government vis-à-vis the
State Government and therefore the principle of widest meaning of
E entries could not result in overlapping powers as that can hardly be
conducive to administrative exigencies. That it was so was obvious
from the submission of the learned Solicitor General who contended
that the doctrine of pith and substance would have to be applied to the
reading of the entries while dealing with them to demarcate the
F ‘Lakshman Rekha’ for the Parliament and the State Assemblies. In
the context of the controversy, it was urged, that allowing such wide
reading of entries would lead to a slippery slope.
98. In the end, Mr. Salve also emphasised the ‘doublespeak’
between the stand of the counsel for the Assembly and the Committee;
G which was a telltale sign that the New Summons was only subterfuge to
get over the possibility or anticipation of an adverse judicial consideration.
The right to remain silent was a virtuous right and in today’s noisy times,
should not be curbed or abrogated.

71
Supra note 27 and Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 687
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

99. Mr. Datar, learned senior counsel for Petitioner No.3, once A
again, supporting the stand of Mr. Salve sought to urge that any powers
or privileges were in turn circumscribed by the legislative competence
of the Assembly. Thus, any powers or privileges have to be exercised
within the assigned legislative fields. He sought to draw strength from
May’s Commentary as also the Commentary of Kaul and Shakdher in
B
this context where it was observed in the former “Disobedience to the
order of a committee made within its authority is a contempt of the
House.” (emphasis supplied). 72 In the latter it was observed
“Disobedience to the orders of a Committee of the House is treated
as a contempt of the House itself, provided the order disobeyed is
within the scope of the Committee’s authority…” (emphasis supplied).73 C
Learned counsel thereafter turned to the judicial precedents in this
regard.74
100. He submitted that the powers and privileges are controlled
by the basic concepts of the written Constitution which could be exercised
within the legislative fields allotted to their jurisdiction by the three lists D
under the 7th Schedule; and the legislatures were not competent to travel
beyond the lists.75
101. It was, thus, contended that if a primary legislation can be
struck down for being outside the legislative domain, then a committee
E
cannot be formed to deal with such matters. Thus, it was argued that the
respondents could not say that they had the power to go into a roving
and fishing inquiry before the Committee relating to all perceived fields
based on a belief that the State Assembly deals with the core functions
in Delhi. Its legislative competence by various entries should not be read
in such an expansive manner as to not be restricted by specific exclusions, F
at least for the purposes of discussion.
102. Mr. Datar then turned to judicial precedents from the United
States to analyse the similar federal structure of governance in both
India and USA. The cases dealt with enquires by the Congress.
G

72
Supra note 24 at para 38.57.
73
M. N. Kaul and S. L. Shakhder, Practice and Procedure of Parliament, 303 (A.
Mishra, 7th Edn. 2016).
74
Supra notes9 and 15.
75
Supra note 20.
H
688 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 103. In Watkins v. United States 76 it was observed that “no
enquiry is an end in itself, it must be related to a legitimate task of
Congress.” Thus, academic enquiries cannot be undertaken – it is only
what is within the powers of the Congress that can be enquired into.
“Broad is the power of inquiry, but not unlimited.”77 Such power of
enquiry of the Congress is limited to its “legitimate tasks”, which would
B
imply legislative competence in the present case.
104. We may note at this stage that a plea was advanced by Dr.
Dhavan that this judgment stood overruled in Barenblatt v. United
States78 and Eastland v. United States Servicemen’s Fund79. Mr. Datar
C clarified that the aspect he was seeking to rely upon the judgment for
was not only not overruled, but there was confirmation on the limits on
the power of inquiry of the Congress as laid down in Watkins80.
105. He next referred to the judgment in Howard Jarvis
Taxpayers Association v. Padilla 81 for the observation that the
D legislature may not use its powers to “defeat or materially impair” the
exercise of its fellow branches’ constitutional functions, nor “intrude
upon a core zone” of another branch’s authority. The investigative
powers may not be used to trench upon matters falling outside the
legislative purview and the investigative power permits inquiry only into
those subjects in reference to which the legislature has power to act.
E
106. In the context of the requirement of reading of entries widely,
Mr. Datar contended that the power to legislate conferred by Article
239AA(3)(a) was in respect of matters in List II except Entries 1, 2 &
18. If the principle of reading entries widely is to be applied in this context,
even the excluded entries have to be read widely as conferring the power
F on the Parliament. It could not be said that entries conferring power on
the State Assembly were to be read widely while at the same time a
restrictive meaning was to be given to entries under which powers have
been specifically excluded. The phraseology “with respect to” entails
that the entries encompass anything with a nexus to public order and/or
G
76
354 US 178 (1957) at pg. 187.
77
Ibid.
78
360 US 109 (1959) at pg. 111-112.
79
421 US 491 (1975) at pg. 504.
80
Supra note 76.
81
H 62 Cali 486 (2016) at pg. 499.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 689
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

the police. The powers with respect to such activities, thus, squarely lie A
with the Parliament. Once again, a judicial view already taken was clear
and explicit, i.e., that the Assembly did not have any power – legislative
or executive, over the police and its functions.82 Thus, exempted entries
would have to be read in substance and not hyper-technically, and Article
239AA would have to be read contextually as also widely to include all
B
ancillary and subsidiary matters. This in turn denuded the Assembly and
the Committee of the powers to legislate or enquire into that aspect. As
such, what has been specifically denied to the Assembly could not be
achieved through Committees under the garb of “peace and harmony.”
The Assembly had no jurisdiction to address violence and communal
riots, if Entries 1 & 2 of List II are interpreted as submitted. In the end C
there could be no power even to investigate these matters.
107. The Committee, it was argued, was a creation of the Assembly
and could not have a larger jurisdiction than the Assembly itself. The
Bulletin issued on 02.03.2020 suggested that the Committee was formed
to deal with matters falling in Entries 1 & 2 of List II while stating this to D
be “in view of the recent communal riots and violence….”. This made
it amply clear that the Committee was meant to deal with the violence
and disturbance caused to public order during the riots. The expression
“public order” has to be interpreted broadly and would encompass
communal peace and harmony. The summons issued by the Committee
E
related to the law and order situation of Delhi for which the Assembly
had no power to investigate or formulate law. If there was no competence
with regard to such matters, the summons in that context would be without
jurisdiction and, thus, void ab initio.
108. Since cooperative federalism was propagated as the basis to F
justify the constitutionality of the actions of the respondents, it was
submitted that the same would not amount to a license to place reliance
on Entries 1 & 2 of List III to sidestep the explicit exclusion in Article
239AA(3)(a) of the Constitution. The relevant Entries are as under:
“LIST III – CONCURRENT LIST G
1. Criminal law, including all matters included in the Indian Penal
Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified

82
Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259. H
690 SUPREME COURT REPORTS [2021] 14 S.C.R.

A in List I or List II and excluding the use of naval, military or air
forces or any other armed forces of the Union in aid of the civil
power.
2. Criminal procedure, including all matters included in the Code
of Criminal Procedure at the commencement of this Constitution.”
B
109. The matters relating to criminal law would not include power
to legislate on issues pertaining to public order and communal peace and
harmony as the same is traceable to “public order”, if the latter is to be
interpreted broadly.

C 110. Mr. Datar further argued that Entry 45 of List III, which
relates to inquiries, cannot enable the Assembly to inquire into public
order, police functions or communications. The power of inquiry has to
be directly related to the legitimate subjects over which the Assembly
has powers to legislate. To buttress his argument on the concept of
collaborative federalism, Mr. Datar relied upon the observations of this
D Court in State (NCT of Delhi) v. Union of India 83 which held that
“both the Centre and the States must work within their spheres and
not think of any encroachment.”
111. Mr. Datar argued that obviously the Central Government
and the State Government had different perceptions as to what transpired
E in Delhi and it can hardly be disputed that it was a law and order issue
arising from communal riots. This was not an aspect that either the
Assembly or any of its committees could deal with. If the Assembly
cannot legislate on a subject, it cannot explore the same under an executive
investigation. The mere reluctance to participate could not be threatened
F with a breach of privilege and the subject matter being dealt with by the
Committee was outside the purview and power of the Assembly.
112. Mr. Datar emphasised that the role of Facebook was of an
intermediary and, thus, the relevant regulatory mechanism was under
the IT Act. He went as far as to contend that there was no jurisdiction to
G examine Facebook, as its operations were covered by Entry 31, List I,
under “other forms of communication”. Since the Parliament has
overriding power to legislate with respect to entries in List I under Article
246(1) of the Constitution, the Assembly could not intervene in matters
relating to intermediaries/other forms of communication. In addition, it
83
H Supra note 27.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 691
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

was urged that this special entry of “communication” overrides the A
general entries of “inquiries” and “criminal law” (List III), which the
Delhi Assembly had attempted to rely on.84
113. Learned counsel next turned to Section 79 of the IT Act
which deals with exemption from liability of intermediaries in certain
cases. B
114. Mr. Datar finally urged that an intermediary like Facebook
has no control over the content hosted on it and is in fact, prohibited
from knowing the substance of the content on their platform or exercising
any control over the same except as prescribed by law. It was, thus,
submitted that an intermediary cannot be held liable for any third party C
data/information made available/hosted by them. Facebook was simply
a platform where messages are transferred from one person to the other.
Whatsapp, Signal, Telegram are even end-to-end encrypted. These are
intermediaries who are not liable for third party information hosted on
them. The only obligation which Section 79 of the IT Act imposes is that
of due diligence on the part of intermediaries as Facebook did not initiate D
the transmissions, nor controlled the same. Hence, they cannot be held
liable and any action taken against intermediary has to be in the manner
prescribed by the Act.85 It was stated that the New Summons did not
change the position in any way as the content of the inquiry was the
same. E
115. Dr. Singhvi, seeking to rebut the arguments canvassed on
behalf of the petitioners sought to emphasise that it is not appropriate to
equate the expression “peace and harmony” with “law and order” as
the former was a much broader term. In any case, Legislative Assemblies
have wide inquisitorial powers,86 i.e. areas which are otherwise not F
available to a legislature for legislative interference are still available to
a committee of the legislature. The relevant para from Kalpana Mehta
reads as under:
“335. Various committees of both Rajya Sabha and Lok Sabha
are entrusted with enormous duties and responsibilities in reference G
to the functions of the Parliament. Maitland in ‘Constitutional
History of England’ while referring to the committees of the

84
Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC 466.
85
Supra note 66.
86
Supra note 20. H
692 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Houses of British Parliament noticed the functions of the
committees in the following words:
“...Then again by means of committees the Houses now exercise
what we may call an inquisitorial power. If anything is going wrong
in public affairs a committee may be appointed to investigate the
B matter; witnesses can be summoned to give evidence on oath,
and if they will not testify they can be committed for contempt.
All manner of subjects concerning the public have of late been
investigated by parliamentary commissions; thus information is
obtained which may be used as a basis for legislation or for the
recommendation of administrative reforms.”
C
(emphasis supplied)
116. This was stated to be in furtherance of the legislative
competence of an Assembly and in exercise of the Committee’s
inquisitorial powers to make the best possible recommendations.
D 117. Dr. Singhvi contended that selective extracts of the press
conference cannot be the basis for giving a different meaning to the
proceedings than the Terms of Reference. He sought to clarify that the
scope of the Committee was purely recommendatory, including making
positive recommendations to ensure peace and harmony in the NCT of
E Delhi in the future which relates to various heads of competence of the
Assembly in List II and List III of the 7th Schedule. No federal unit can
function in the absence of peace and harmony amongst various groups
of people who reside, live and work in that federal unit. Thus, the domain
of peace and harmony in the NCT of Delhi is something very broad and
inherent to the legislature of the federal unit and encompasses within it
F many areas of competence of the Assembly both in List II and List III.
It was further contended that “fraternity” is a preambular value which,
like equality and liberty, imbues the functioning of the entire Constitution.
He referred to Entry 39 of List II relating to “Powers, privileges and
immunities of Legislative Assembly” to emphasise that enforcement of
G attendance of persons for giving evidence or producing documents before
committees of the Legislature of the State was an intrinsic part of its
functions. This coupled with Entry 45 of List III dealing with Inquiries
and Statistics for the purposes of any of the matters specified in List II
or List III would completely cover the aspects sought to be gone into by
the Committee.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 693
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

118. Dr. Singhvi, in support of the manner in which such committees A
can function and their remit, referred to three judicial pronouncements
from the United States: (i) Eastland v. The United States Servicemen’s
Fund87, (ii) Watkins v. United States88 and (iii) Barenblatt v. United
States89. The common thread which permeates these judgments is that
the power to investigate is inherent in the power to make law as a
B
legislative body cannot legislate wisely or effectively in the absence of
information with respect to the conditions that the legislation is intended
to affect or change. In that context, the issuance of subpoenas could be
exercised by a committee acting on behalf of the House. It was thus
said: “To conclude that the power of inquiry is other than an integral
part of the legislative process would be a miserly reading of the C
Speech or Debate Clause is derogation of the integrity of the
legislature.” 90
119. Such an inquiry was not in turn circumscribed by what the
end result would be: “Nor is the legitimacy of a congressional inquiry
to be defined by what it produces.”91 Such investigative function was D
akin to any research with the possibility of researchers ending up in
some “blind alleys” and into non-productive enterprises, as “to be a
valid legislative inquiry there need be no predictable end result.”92
120. On the duty of a citizen to cooperate with US Congress in an
effort to obtain the facts, it was held to be an “unremitting obligation E
to respond to subpoenas, to respect the dignity of the Congress and
its committees and to testify full with respect to matters within the
province of proper investigation.” 93
121. On an aspect of teaching which is pursued in educational
institutions, it was observed that inquiries cannot be made into a F
constitutional protection against the freedom to teach. But this would
not preclude the Congress from interrogating a witness merely because
he is a teacher. Thus, “an educational institution is not a constitutional
sanctuary from inquiry into matters that may otherwise be within

87
Supra note 79.
G
88
Supra note 76.
89
Supra note 78.
90
Supra note 79.
91
Supra note 79.
92
Supra note 79.
93
Supra note 76. H
694 SUPREME COURT REPORTS [2021] 14 S.C.R.

A the constitutional legislative domain merely for the reason that
inquiry is made of someone within its walls.”94
122. Dr. Singhvi submitted that it was inappropriate for the
petitioners to link the competence to discuss the subject matter with the
powers to exercise privilege. The Terms of Reference that define the
B scope and competence not having been challenged, it was submitted
that it was not appropriate for the petitioners to invite a view of this
Court on the competence of the Committee. The argument about excluded
Entries was labeled as a “smokescreen”. In the context of the claim of
exclusion arising from Entries it was submitted that any such exclusion
would have to be narrowly construed.95
C
123. Dr. Dhavan adopted the same line of argument as Dr. Singhvi,
referring to the same judicial pronouncements. He submitted that the
holding in Watkins96 was based on Chief Justice Warren’s exclamatory
resentment of McCarthyism in the 1950s and has since been criticized
as unnecessarily limiting the powers of Congress. On the same lines
D were the subsequent judgments of the Supreme Court which settled
major issues of congressional authorisation and relevance of the first
amendment.97 The view taken thereafter by the US Supreme Court
reinforces powers of the Committee rather than undermines them.98
The essence of American Law, he contended, is that when you are
E summoned, you must appear but can plead the fifth amendment in not
answering questions.
124. Dr. Dhavan proceeded with his arguments on a larger canvas
that the Delhi Government was empowered to cover every aspect of its
governance, and peace and harmony could not be equated solely with
F police functions and public order. The argument can be said to be on
four different planes: (i) harmonious interpretation of entries; (ii) the
ragbag approach; (iii) wide scope of inquiries under Entry 45 of List III;
and (iv) executive power must be interpreted widely. The emphasis of
Dr. Dhavan’s argument was that communal harmony is an important
part of Delhi’s governance that goes beyond the limited remit of police
G
94
Supra note 78.
95
Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109.
96
Supra note 76.
97
Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US 431
(1961).
98
H Supra note 79.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 695
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

functions and public order. The incident of February, 2020 in Delhi was A
stated to prove that in addition to affecting public order, communal
disharmony has a harmful effect on trade and commerce, transportation,
education and governance generally. Considering the implication of these
domains, it was contended that it would be deeply harmful if the police
were the sole custodians of peace and harmony. The initial course of
B
action requires people to be educated and that governing authorities liaise
with them in order to calm tensions. To agree to the submissions of the
petitioners would be to permit the argument that there was none in the
Delhi Government who could address the issue of peace and harmony.
On a larger canvas, the message that would permeate to non-members
would be that they could get away by not appearing before the Legislative C
Assemblies, as the latter had no power to compel their appearance. It
was submitted that this would make the entire system of Committee
proceedings farcical. The need for harmonious construction required
that legislative entries must be given the widest amplitude and, thus, he
submitted that it was the duty of the Court to reconcile entries that may
D
appear to overlap or may be in direct conflict.99
125. Dr. Dhavan sought to introduce the concept of ragbag
legislation, submitting that this was an expression used by the Indian
Supreme Court in income tax jurisprudence.100 The ragbag approach
suggested that legislative and executive powers need not be traced to
E
only one entry, but may instead be traced to multiple entries in the relevant
list in the 7th Schedule. Thus, this perspective of multiple entries may
empower the Committee to consider peace and harmony – some that
were directly applicable like education, and others that applied indirectly
like trade and commerce. Peace and harmony was a concept much
beyond public order and police, and illustrations of the same were given F
from List II and List III. The relevant portions of List II and List III as
given in the 7th Schedule read as under:
“List II—State List
5. Local government, that is to say, the constitution and powers of
G
municipal corporations, improvement trusts, districts boards, mining
settlement authorities and other local authorities for the purpose
of local self-government or village administration.

99
Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596.
100
Ujagar Prints (II) v. Union of India (1989) 3 SCC 488. H
696 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 6. Public health and sanitation; hospitals and dispensaries.
7. Pilgrimages, other than pilgrimages to places outside India.
10. Burials and burial grounds; cremations and cremation grounds.
12. Libraries, museums and other similar institutions controlled or
B financed by the State; ancient and historical monuments and
records other than those [declared by or under law made by
Parliament] to be of national importance.
13. Communications, that is to say, roads, bridges, ferries, and
other means of communication not specified in List I; municipal
tramways; ropeways; inland waterways and traffic thereon subject
C
to the provisions of List I and List III with regard to such
waterways; vehicles other than mechanically propelled vehicles.
17. Water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage and water power
subject to the provisions of entry 56 of List I.
D
22. Courts of wards subject to the provisions of entry 34 of List I;
encumbered and attached estates.
24. Industries subject to the provisions of [entries 7 and 52] of
List I.
E 26. Trade and commerce within the State subject to the provisions
of entry 33 of List III.
27. Production, supply and distribution of goods subject to the
provisions of entry 33 of List III.
28. Markets and fairs.
F
32. Incorporation, regulation and winding up of corporations, other
than those specified in List I, and universities; unincorporated
trading, literary, scientific, religious and other societies and
associations; co-operative societies.
35. Works, lands and buildings vested in or in the possession of
G
the State.
37. Elections to the Legislature of the State subject to the provisions
of any law made by Parliament.
39. Powers, privileges and immunities of the Legislative Assembly
H and of the members and the committees thereof, and, if there is a
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 697
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Legislative Council, of that Council and of the members and the A
committees thereof; enforcement of attendance of persons for
giving evidence or producing documents before committees of
the Legislature of the State.
65. Jurisdiction and powers of all courts, except the Supreme Court,
with respect to any of the matters in this List.” B
“List III—Concurrent List
1. Criminal law, including all matters included in the Indian Penal
Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified
in List I or List II and excluding the use of naval, military or air C
forces or any other armed forces of the Union in aid of the civil
power.
3. Preventive detention for reasons connected with the security
of a State, the maintenance of public order, or the maintenance of
supplies and services essential to the community; persons subjected D
to such detention.
8. Actionable wrongs.
12. Evidence and oaths; recognition of laws, public acts and records,
and judicial proceedings.
15. Vagrancy; nomadic and migratory tribes. E
16. Lunacy and mental deficiency, including places for the reception
or treatment of lunatics and mental deficients.
20. Economic and social planning.
23. Social security and social insurance; employment and F
unemployment.
25. Education, including technical education, medical education
and universities, subject to the provisions of entries 63, 64, 65 and
66 of List I; vocational and technical training of labour.
28. Charities and charitable institutions, charitable and religious G
endowments and religious institutions.
33. Trade and commerce in, and the production, supply and
distribution of,—
(a) the products of any industry where the control of such industry
by the Union is declared by Parliament by law to be expedient in H
698 SUPREME COURT REPORTS [2021] 14 S.C.R.

A the public interest, and imported goods of the same kind as such
products;
(b) foodstuffs, including edible oilseeds and oils;
(c) cattle fodder, including oilcakes and other concentrates;
B (d) raw cotton, whether ginned or unginned, and cotton seed; and
(e) raw jute.
38. Electricity.
39. Newspapers, books and printing presses.
C 40. Archaeological sites and remains other than those [declared
by or under law made by Parliament] to be of national importance.
45. Inquiries and statistics for the purposes of any of the matters
specified in List II or List III.”

D 126. Dr. Dhavan further submitted that the constitutional obligation
to take preventive action to ensure non-discrimination provided for the
Government’s duty to examine and recommend action in respect of peace
and harmony as also to protect religion, cultural rights and dignity of
individuals as envisaged in various constitutional provisions, i.e., Articles
14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These provisions
E are really an amalgam of fundamental rights and directive principles of
state policy. Considerable emphasis was placed by Dr. Dhavan on Entry
45 in List III, which is a self-standing entry that has been given the
widest amplitude by this Court.101 This entry deals with the executive
power to make committees of inquiry. In that context it has been observed
F that these inquiries would encompass any matter enumerated in any of
the Lists and would not be confined to those matters as mere heads of
legislative topics – extending the inquiries into collateral matters. Further
referring to Entry 39 of List II, Dr. Dhavan urged that this entry was
wide enough from a bare reading to include the power to summon non-
members having used the expression of “enforcement of attendance of
G persons”.
127. The thread which permeated Dr. Dhavan’s arguments was
that the task of governance is much wider than merely drafting legislation
and executing it. Executive power would collapse if it were to be reduced
101
H Sriram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 at pgs. 289, 291.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 699
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

to simply executing the laws enacted by the Legislature and, thus, the A
Supreme Court had explained that executive power without law had to
be construed widely.102
128. After having dealt with the four aspects referred to aforesaid,
Dr. Dhavan sought to respond to Mr. Salve’s argument of the legislative
domain being occupied by the IT Act. It was Dr. Dhavan’s submission B
that the IT Act was an example of “cooperative federalism” as the Act
empowered both the State and the Centre in terms of the definition of
“appropriate government” in Section 2(e). Thus, provisions such as
Section 6 and 69 of the IT Act could refer to either the Centre or the
State and the legislative domain could not be said to be exclusively
occupied by the Centre. This is more so in the context of a mere summons C
that required the petitioner’s appearance without reaching the stage at
which punitive action may be considered. The Committee was submitted
not to be engaged in any inquisitorial exercise but was only limited to aid
in the spirit of cooperative federalism.
129. Cooperative federalism was contended not to be a source of D
power but rather a part of the principles that underlie the Constitution. It
was a method of communication that makes federalism more effective
requiring both Centre and State to work together to address common
problems. Thus, the State could not exist without collaborative or
cooperative federalism. 103 This was stated to be of even greater E
significance in light of the tug of war between the Centre and the State
in respect of the unique position of the Delhi Legislative Assembly. As
such, peace and harmony issues ought to be resolved by a coordinated
effort. He did, of course, concede that the history of two governments
was testament to a tussle which was closer to being competitive rather
than collaborative. F
130. Dr. Dhavan, thus, concluded his arguments by submitting on
this aspect that:
(a) it was not his contention that conventions and broad
concepts are sources of power;
G
(b) underlying principles, however, are fundamental to both
interpretation of the Constitution and powers exercised
through the Government or their legislatures;

102
Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225.
103
Supra note 27. H
700 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (c) a recommendatory committee has a duty to inform the
Central Government of the problems it encounters so that
organs of Government can act in furtherance of this principle
of cooperative pragmatic federalism;
(d) the Committee by itself did not claim the power to punish
B the breach though it does possess the power to summon
without penal consequences. It could at best make a
recommendation which would have to be examined by the
House through the process of a privileges committee. This
was a routine part of every summon, only indicative of the
power of the Parliament/Assembly.
C
131. Mr.Tushar Mehta, learned Solicitor General sought to advance
submissions substantially on this aspect as there was a conflict in the
stands taken by the State and the Central Government on this issue. As
noticed earlier – while on the one hand he was with the State Government
on the issue of the right to summon per se, a difference arose on account
D of his argument that in the given factual situation, the power to summon
vested solely with the Central Government. Mr. Mehta referred to Article
212 of the Constitution, which reads as under:
“212. Courts not to inquire into proceedings of the
Legislature. –
E
(1) The validity of any proceedings in the Legislature of a State
shall not be called in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom
F powers are vested by or under this Constitution for regulating
procedure or the conduct of business, or for maintaining order, in
the Legislature shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.”
132. It was his submission that proper effect should be given to
the above provision and the Court did not really have the power to deal
G
with the functioning/internal administration of the Parliament/Assemblies
and the committees thereof. There was, however, a narrow scope of
judicial review permitted in the present case as the person involved was
not a member of the House. The enquiry being ultra vires the powers
conferred on the Assembly, he contended that the subjects specifically
H excluded by the Constitution could not be surreptitiously brought within
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 701
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

the purview of the Assembly by categorising the issue as “peace and A
harmony.” It was intrinsically a law and order issue, which was an occupied
field and also an excluded field so far as the Assembly was concerned.
133. While accepting that privilege was necessarily connected
with legislative power, the same (if the aspect so arose) would have to
be considered in the context of legislative competence. The plenary B
powers of the legislature were circumscribed by the written Constitution
which set out the legislative fields allotted to each of their jurisdictions
by the three Lists in the 7 th Schedule putting an embargo on the
Legislatures to travel beyond the entries in their respective lists.104
134. Learned Solicitor General sought to emphasise on the unique C
case of Delhi with reference to its excluded entries. It was not at par
with any other State Assembly. Delhi was the national capital and thus,
the law makers had consciously made a provision keeping this larger
picture in mind and reserving to the Parliament three entries which would
otherwise be available in List II to the State Assemblies. In the absence
D
of legislative competence, it would be a colourable exercise of power to
engage in the subject matter. The formation of a “peace and harmony”
committee was stated to be one such colourable exercise of power. This
became apparent from the summons issued which explicitly provided
that, in effect, the Committee was dealing with law and order and the
police. The battle between the Centre and the State qua Delhi which E
gave rise to the previous judicial pronouncements, clarified which of the
two had powers qua specific excluded entries. It would be a betrayal of
the mandate of these judgments which had upheld the rationale behind
exclusion of entries drawing from the unique position of Delhi.105
135. The pith and substance argument was sought to be advanced F
to contend that reliance on entries in List II and List III was not justified
if the matter directedly related to excluded entries.106
136. Learned Solicitor General, while accepting the proposition
that entries have to be read widely, submitted that where there is a
specific entry dealing with a particular subject, that specific entry would G

104
Supra note 12.
105
Supra notes 27 and 82.
106
A.S. Krishna v. State of Madras AIR 1957 SC 297 at para 8; Kartar Singh v. State
of Punjab (1994) 3 SCC 569 at para 60; Zameer Ahmed Latifur Rehman Sheikh v. State
of Maharashtra & Ors. (2010) 5 SCC 246 at para 40. H
702 SUPREME COURT REPORTS [2021] 14 S.C.R.

A prevail to the exclusion of the general entry.107 The entries relied upon
by the respondents were general in nature, while the entries of “law and
order” and “police” were specific and thus, must prevail. The subsequent
executive action was also not permissible for the Assembly as the Central
Government had sole jurisdiction even over executive matters relatable
to those entries in view of Article 73 of the Constitution. The executive
B
powers were mandated to be co-terminus with legislative competence
and the legislature could not be allowed to intervene through the indirect
method of committees and its privilege, thereby overreaching the
Constitution.
137. The principle of cooperative and collaborative federalism
C was not disputed but then it was urged that the summons did not say that
the Assembly and the Committee wanted to give any recommendations.
This was only a defence and an afterthought. By way of example, Mr.
Mehta averred that on a defence strategy matter, the Assembly could
not be permitted to call the Chief of Defence Staff (CDS). In fact, it
D was submitted that cooperative/collaborative federalism required the
Assembly to function within the confines of the powers conferred on it
and not commit an overreach – to read it otherwise would be combative
or competitive federalism.
138. On the doctrine of occupied field, it was urged that the
E subjects which the Committee sought to go into were already occupied
by the Parliament. Facebook was an intermediary, and in that regard
would be covered under “communication”, which is Entry 31 of List I. In
fact, all three fields of intermediaries, law and order or police were occupied
by the Parliament. There was no perceived conflict of entries and the
specific omission of Entries 1 & 2 of List II and the presence of Entry 31
F of List I, clearly indicated which fields were specifically occupied by the
Parliament and what has been specifically omitted for the Assembly.108
139. It was submitted that the Parliamentary Standing Committee
on Information Technology was already in seisin of the aspect of
“Safeguarding citizens’ rights and preservation of misuse of social/
G online news media platforms including special emphasis on women
107
Supra note 84.
108
ITC Ltd. v. State of Karnataka 1985 Supp SCC 476 at paras 17, 32; Hoechst
Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 at para 51; Offshore Holdings
(P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 at para 102.
109
H Supra note 46.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 703
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

security in the digital space”. It was in pursuance thereto that a notice A
was issued to Petitioner No.1 on 20.08.2020 to provide his views and
the said petitioner duly appeared before that Committee on 02.09.2020.
There was, thus, no occasion for the Committee to go into this aspect.
140. On the aspect of the IT Act, a field occupied by the Parliament,
it was submitted that even rules have been framed thereunder including B
the IT (Procedure and Safeguards for Blocking for Access of Information
by Public) Rules that provide an elaborate procedure for blocking of
information by an online intermediary and their criminal liability for failing
to do so. The IT Act has been formulated under Entry 31 of List I, which
covers “other forms of communication”. Thus, in that sense the
intermediaries were beyond the competence of the Assembly. Section C
69A of the IT Act specifically deals with blocking of content, including
hate speech.
141. It was his submission that the legal issues involving law and
order, public order, and the corresponding responsibility of online
intermediaries to address hate speech on their platforms have already D
been addressed by the Central Government. The Assembly not having
legislative competence, cannot also have the competence to examine
people and prepare a report. There was no power to give
recommendations and the summons did not even clarify that the exercise
was for making recommendations. E
142. Finally, the learned Solicitor General referred to the case in
N. Ravi109 to contend that the issue in contention, i.e., the interplay of
fundamental rights and parliamentary privileges, was already pending
before a 7-Judge Bench.
Recent Developments: F
A. Role of Intermediaries:
143. In COVID times there have been some fast-paced
developments around the world qua the role and management of
intermediaries. In view of there being some time gap between the date
G
of reserving the judgment and its pronouncement, we consider it
appropriate to pen down these developments over the last four months.
The UK Commons Privileges Committee published a new report on
select committee powers on 03.05.2021, looking to strengthen the ability
of select committees to call for persons, papers, and records. The
background to this is the reluctance, or in some cases even refusal, of H
704 SUPREME COURT REPORTS [2021] 14 S.C.R.

A individuals to appear before these committees in a number of high-profile
cases. The Privileges Committee has proposed a Parliamentary
Committees (Witnesses) Bill, which would introduce new criminal
offences relating to refusal to attend a summons or failing to provide
information or documents without a reasonable excuse110.
B Intermediaries and platforms have seen a hot pursuit in the US
for regulating the consequences of their business. The House Energy
and Commerce Committee of the US House of Representatives issued
a summons to Facebook CEO Mark Zuckerberg, Google CEO Sundar
Pichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which they
duly complied. The House Committee pointed out false claims about
C COVID-19 vaccines and the supposed election fraud that had proliferated
on social media platforms.111 The background was the incident at the
Capitol post the US Presidential Election results being declared in 2021.
It is of significance to note the comments of the Chairman of the
Committee, Frank Pallone that, “For far too long, big tech has failed
D to acknowledge the role they have played in fomenting and elevating
blatantly false information to its online audiences. Industry self-
regulation has failed.”112 The Chairmen of two other sub-committees
remarked, “We must begin the work of changing incentives driving
social media companies to allow and even promote misinformation
and disinformation.”113 The divergence of views between Republicans
E and Democrats was also evident. While the former claimed that
conservative viewpoints are maligned on social media platforms, the
latter sought action against misinformation and hate speech with special
attention to its impact on minority communities including the LGBTQ+
community, the Black community, Asian Americans, and Latin Americans.
F These developments, to our mind, are apposite to be examined in the

110
Alexander Horne, Should Select Committees Be Able To Compel Attendance?,
Prospect Magazine (07/05/2021), accessible at: https://www.prospectmagazine.co.uk/
politics/should-select-committees-be-able-to-compel-attendance.
111
Lauren Feiner, Facebook, Google And Twitter CEOs Will Make Another Appearance
Before Congress In March, CNBC (18/02/2021),accessible at: https://www.cnbc.com/
G 2021/02/18/facebook-google-twitter-ceos-to-testify-before-congress-in-march.html.
112
House Committee on Energy and Commerce , Press Release, , E&C Committee
Announces Hearing with Tech CEOs on the Misinformation and Disinformation Plaguing
Online Platforms, (18/02/2021), accessible at: https://energycommerce.house.gov/
newsroom/press-releases/ec-committee-announces-hearing-with-tech-ceos-on-the-
misinformation-and.
113
H Ibid.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 705
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

context of the argument advanced on behalf of the petitioners that they A
do not want to appear before the Committee on account of a divided
political milieu.
144. In India, since 2020, a Joint Parliamentary Committee has
been examining the Personal Data Protection Bill, 2019 in relation to the
issues of data protection and security.114 The Committee summoned B
telecom operators Jio and Airtel as well as aggregators Ola and Uber in
November, 2020. Google, PayTM, Facebook, Twitter and Amazon have
earlier deposed before this Committee 115 and the report of the
parliamentary committee is stated to be in its final stages.
145. A significant development has been the notification of The
C
Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021 on 25.02.2021116, a day after the judgment
was reserved. These rules introduce a range of due diligence measures
to be implemented by intermediaries and lay down a code of ethics for
digital news platforms in relation to digital media. These Rules have
been assailed before different High Courts across the country including D
Kerala, Karnataka, Madras, and Delhi, and are currently pending
consideration.
B. Amendment to the GNCTD Act, 1991:
146. Yet another significant development in the context of the
controversy before us, in the legislative domain, has been the amendment E
of the GNCTD Act which came into force on 27.04.2021 117. The
amendments are:

114
Ministry of Parliamentary Affairs, Press Release, Joint Committee on the Personal
Data Protection Bill, 2019 Seeks Views and Suggestions, (03/02/2020), accessibleat:
https://pib.gov.in/PressReleasePage.aspx?PRID=1601695. F
115
India Today Web Desk, Parliamentary Panel Summons Airtel, Jio, Uber, Ola,
Truecaller Over Data Security Concerns, India Today, aaccessible at: https://
www.indiatoday.in/india/story/parliamentary-panel-summons-airtel-jio-uber-ola-
truecaller-over-data-security-concerns-1736020-2020-10-28.
116
The Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021, Notification of the Ministry of Electronics & Information Technology
No. 2021 G.S.R. 139(E) (25/02/2021), accessible at: https://www.meity.gov.in/
G
writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-
2021.pdf.
117
Ministry of Home Affairs,Press Release, , Amendments to GNCTD Act, 1991 Do not
Alter Constitutional and Legal Responsibilities of Elected Government in Respect of
Transferred Subjects in State & Concurrent Lists (29/04/2021), accessible at: https://
pib.gov.in/PressReleaseIframePage.aspx?PRID=1714828. H
706 SUPREME COURT REPORTS [2021] 14 S.C.R.

A a. The term ‘Government’ referred to in any law made by the
Delhi Legislative Assembly will mean the Lieutenant
Governor (‘LG’).
b. The LG must reserve for the consideration of the President
all bills that incidentally cover any matters that fall outside
B the purview of the powers conferred on the Legislative
Assembly.
c. Rules made by the Delhi Legislative Assembly to regulate
its own procedure and conduct of business in the Assembly
must be consistent with the Rules of Procedure and Conduct
C of Business in the Lok Sabha.
d. The Delhi Legislative Assembly will not be entitled to make
rules to (i) enable itself or its Committees to consider matters
of day-to-day administration of the NCT of Delhi, or (ii)
conduct any inquiry in relation to administrative decisions;
D and any such rules made prior to this amendment will be
void.
e. Any executive action taken by the Delhi Government will
be in the name of the LG and the requirement of a prior
opinion of the LG by the Delhi Legislative Assembly before
E it takes any executive action in respect of certain matters
with such matters being specified by a general or special
order issued by the LG.
147. The object of the aforesaid as per the Statement of Objects
and Reasons of these amendments is stated to be to promote “harmonious
F relations between the legislature and the executive” and to define the
responsibilities of the elected government and the LG in accordance
with the two NCT judgments118. Suffice to state that these amendments
have been assailed before the Delhi High Court and are pending
consideration.
148. We say that these amendments are significant as in a way
G
they appear to be an offshoot of the continuous tussle between the State
Assembly and the Central Government. The present proceedings where
such difference of opinion is clearly reflected seem to also be a trigger,
possibly in an attempt to control what the Assembly and the Committee

118
H Supra notes 27 and 82.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 707
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

intended. However, we are concerned with the situation prevalent at the A
relevant time and the arguments advanced in that behalf. We have not
been called upon to comment on the consequences of these amendments
qua the subject matter of the present proceedings, more so when the
challenge in respect of the same is pending before the Delhi High Court.
The Opinion: B
149. We must begin our opinion by noticing at the inception itself,
the vast and influential role of an intermediary like Facebook. In this
modern technological age, it would be too simplistic for the petitioners to
contend that they are merely a platform for exchange of ideas without
performing any significant role themselves – especially given their manner C
of functioning and business model. Debate in the free world has shown
the concern expressed by Governments across the board and the
necessity of greater accountability by these intermediaries which have
become big business corporations with influence across borders and
over millions of people. Facebook today has influence over 1/3rd population
of this planet! In India, Facebook claims to be the most popular social D
media with 270 million registered users. The width of such access cannot
be without responsibility as these platforms have become power centres
themselves, having the ability to influence vast sections of opinions.
Without undermining the role performed by Facebook in giving a voice
to various sections of society across the world, it has to be noted that E
their platform has also hosted disruptive voices replete with
misinformation. These have had a direct impact on vast areas of subject
matter which ultimately affect the governance of States. It is this role
which has been persuading independent democracies to ensure that these
mediums do not become tools of manipulative power structures. These
platforms are by no means altruistic in character but rather employ F
business models that can be highly privacy intrusive and have the potential
to polarize public debates. For them to say that they can sidestep this
criticism is a fallacy as they are right in the centre of these debates.
150. Facebook as a platform is in the nature of a mass circulation
media which raises concerns of editorial responsibility over the content G
circulated through its medium. The width of the reach of published material
cannot be understated or minimized. Facebook has acknowledged in
their reply that they removed 22.5 million pieces of hate speech content
in the second quarter of 2020 itself, which shows that they exercise a
substantial degree of control over the content that is allowed to be H
708 SUPREME COURT REPORTS [2021] 14 S.C.R.

A disseminated on its platform. To that extent, a parallel may be drawn
with editorial responsibility cast on other mass circulation media.
151. The business modelof intermediaries like the petitioner being
one across countries, they cannot be permitted to take contradictory
stands in different jurisdictions. Thus, for example in the United States
B of America, Facebook projected itself in the category of a publisher 119,
giving them protection under the ambit of the First Amendment of its
control over the material which are disseminated in their platform. This
identity has allowed it to justify moderation and removal of content.
Conspicuously in India, however, it has chosen to identify itself purely as
a social media platform, despite its similar functions and services in the
C two countries. Thus, dependent on the nature of controversy, Facebook
having almost identical reach to population of different countries seeks
to modify its stand depending upon its suitability and convenience.
152. We are afraid we are not inclined to accept the simplistic
approach sought to be canvassed by Mr. Salve on the role of Facebook.
D Forceful as it may be, it does not convince us. Developments around the
world, as we have noted above, reflect rising concerns across borders.
The concern is whether the liberal debate which these platforms profess
to encourage has itself become a casualty. We have noticed in the
beginning that algorithms, which are sequences of instructions, have
E human interventions to personalise content and influence opinions as
part of the business model. As such, their primary objective is to subserve
their business interests. It is first a business and then anything else. As
per their own acknowledgement, they would only appear before any
committee if it served their commercial and operational interests, as it
did when they appeared before the parliamentary committee. But if their
F business interests are not served, they seek a right to stay away. Such a
stand is completely unacceptable to us. Facebook has the power of not
simply a hand but a fist, gloved as it may be.
153. We now turn to the incident at hand, that of an unfortunate
violent eruption. The need to go into this incident both from a legal and
G social perspective cannot be belittled. The capital of the country can ill-
afford any repetition of the occurrence and thus, the role of Facebook in
119
Facebook’s Motion to Dismiss Pursuant to Federal Rule Of Civil Procedure 12(B)(6)
and Incorporated Memorandum Of Law in Laura Loomer v. Facebook Inc. Case No.9:
19-cv-80893-RS, accessible at https://docs.reclaimthenet.org/Loomer-v-Facebook-fb-
H response.pdf.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 709
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

this context must be looked into by the powers that be. It is in this A
background that the Assembly sought to constitute a peace and harmony
committee – whether it has the legislative competence or not is an aspect
we will deal with it under the relevant head. The Assembly being a local
legislative and governance body, it cannot be said that their concerns
were misconceived or illegitimate. It is not only their concern but their
B
duty to ensure that “peace and harmony” prevails. However, we may
note that the long and repeated battles between the State and the Centre
appear to have cast a shadow even over the well-meaning intent of the
Committee to assess peace and harmony as reflected in the Terms of
Reference.
154. We may record that the Central Government and the State C
Government have been unable to see eye to eye on governance issues
in Delhi. This has been responsible for a spate of litigation and despite
repeated judicial counsel to work in tandem, this endeavour has not been
successful. There is little doubt that the constitution of the governance
model in Delhi is somewhat unique. This itself flows from Delhi being D
the capital of the country. Delhi has had a history of having an Assembly
replaced by a model of Union Territory governance by Executive
Councilors. There were long years of tussle to have a Legislative
Assembly with commonality of objectives across the primary political
space, but whoever was in governance found it difficult to let go. The
model that came into being, thus, had somewhat of a hybrid character, E
giving an expanded role to the Central Government as compared to any
other Legislative Assembly. To that extent, there was a diminishing of
the federal structure but there appears to have been a consensus on this
aspect.
155. The aforesaid arrangement worked well for many years even F
with different political dispensations in power in the Centre and the State.
But the last few years have seen an unfortunate tussle on every aspect
with the State Government seeking to exercise powers as any other
Assembly and the Central Government unwilling to let them do so. The
bone of contention has not only been the three subject matters of which G
the State was denuded of its powers, i.e., Entries 1, 2 & 18 from List II;
but it is almost a daily governance tussle.
156. The political dispensation which is in power in the State has
to recognise the constitutional scheme of division of powers in Delhi
which circumscribes their ability to work only within those powers. When H
710 SUPREME COURT REPORTS [2021] 14 S.C.R.

A they got elected, they knew what they were getting elected for – not
what they thought should be the division of powers. On the other hand,
the Central Government is required to work in tandem, albeit with a
different political dispensation. Maturity is required from both sides and
we have to reluctantly note the absence of such maturity in this important
inter-relationship.
B
157. To work well, the Central Government and the State
Government have to walk hand in hand or at least walk side by side for
better governance. The failure to do so is really a breach of their
respective electoral mandate, the seven Lok Sabha seats are all held by
the powers that be in the Central Government but a very different result
C came in the Assembly Elections. This has seen a repeat. It is a reflection
of the maturity of the electorate which has chosen to put one dispensation
in power in the Centre while seeking to choose another in the State as
the roles are divergent. The concerns are different. The two powers
unfortunately do not seek to recognise this aspect, and that is the bane
D of this structure requiring collaboration and concurrence. Unfortunately,
it has become an endeavour to score points over the other. Some prior
discussion and understanding could easily solve this problem instead of
wasting large amounts of judicial time repeatedly arising from the failure
of the two dispensations to have a broader outlook. In fact, the current
round is, in our view, arising from the petitioners seeking to take
E advantage of this divergence of view and their inability to see a common
path.
158. No governance model requiring such collaboration can work
if either of the two sides take a ‘my way or the high way’ approach –
which both seem to have adopted. We have expressed our view on the
F contours of the dispute and the facts have already been set out
hereinabove. We see no purpose in repeating those facts. We now turn
to the four propositions which form the basis of the writ petition (dealt
with under three heads) to record our views qua them.
On the Issue of Privilege:
G
159. The privilege issue arises out of the plea advanced by the
petitioners that both, the First Impugned Summons dated 10.09.2020
and the Second Impugned Summons dated 18.09.2020, were to summon
Petitioner No.1 or a duly authorized representative of Petitioner No. 2
respectively with a threat of “privilege”. This argument was coupled
H with a plea that such power of privilege cannot extend to compel an
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 711
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

individual, who is not a member of the House, into giving evidence/opinion A
that they are not inclined to state.
160. We may note the elaborate arguments addressed by Mr.
Salve, based on a premise that privilege power is really a special right
enjoyed as a shield in order to facilitate the working of the Assembly. It
is not a sword for assertion of power. It was argued that the constitutional B
schemes of the UK and of India, a republic, are different and thus, the
privilege powers in the latter must be strictly confined to legislative
functions. Only if the integrity of the legislative functions is impaired,
either by a member or by non-members, would the occasion arise for
exercise of such power.
C
161. In fact, Mr. Salve sought to contend that it is time that exercise
of privilege power is codified, and to that extent an intent was expressed
by the Constitution makers in sub-clause (3) of Article 194. The relevant
portion states that such privileges “shall be such as may from time to
time be defined by the Legislature by law.”, and thus, the submission
was that this clause operated for a period “until (privilege powers were) D
so defined.” Mr. Salve sought to persuade us to either lay down the
guiding principles or at least nudge the Parliament/Legislature to do so.
We have already noticed that this is an aspect seriously disputed by all
the counsel for the respondents.
162. We may notice in the aforesaid context that the wordings of E
Article 194(3) are unambiguous and clear, and thus do not require us to
give our own twist or interpretation to them. These are not wordings of
a statute, but that of the primary document – the Constitution. The powers,
privileges and immunities of a House of the State Legislature as well as
its committees have been clearly defined as those of the House and all F
members and committees thereof before the coming into force of Section
26 of the Constitution 44th Amendment Act, 1978. There was no timeline
provided for codification of powers, privileges and immunities of a House.
The Constitution has given leeway to the Legislature to define the same
from time to time, but there was no compulsion qua the same. If the
Legislature in its wisdom is of the opinion that it needs to be so done, G
they will do so. Is it for this constitutional court to nudge them in that
direction? Our answer would be in the negative.
163. We say so as this is itself a debatable issue. There is a
divergence of views even amongst constitutional experts whether full
play must be given to the powers, privileges, and immunities of legislative H
712 SUPREME COURT REPORTS [2021] 14 S.C.R.

A bodies, as originally defined in the Constitution, or is it to be restricted.
Such opinion would have to be debated before the Parliament/Legislature
of the State to come to a conclusion, one way or the other. It is not even
a subject matter where it could be said that any one opinion must prevail,
or a nudge must be given by this Court, or a recommendation must be
made for consideration by the legislative body. That Scotland and Wales
B
have considered it appropriate to have their own enactments in this
context, is a deliberate legislative exercise by those bodies. There is no
uniformity across the world in this regard.
164. The notion of individual constitutional rights and the right to
privacy is sought to be expanded by the petitioners to encompass the
C
right of refusal even to appear in pursuance of the summons. The debates
across democratic policy including some of the developments recorded
by us, would show that there is a turn towards recognising the importance
of an element of compulsion (if so required) for deposition/opinions relating
to the present subject matter. This is more so in the context of monolithic
D business models having vast financial and technical powers at their
disposal. As a constitutional court, we are not inclined to step into it.
165. It is not disputed that committee proceedings cannot be
equated to proceedings before the court of law.120 No doubt these powers
have to work in the context of the business of each House, and no
E House can be a knight in shining armour to correct issues in respect of
which it has no legislative power. Yet, it would be a monumental tragedy
to conclude that the legislature is restricted to the function of enacting
laws. The role of the legislature is sought to be diminished by such an
argument. The legislature debates many aspects, and at times records a
sense of the House. This is not unusual or without precedent. The
F
judgment in Amarinder Singh121 is of little assistance to the petitioner
as that was a case of an executive act of exemption of land, and in no
way obstructed or threatened the integrity of the legislative proceedings.
The facts of each case are important and propositions of law must apply
in the context of the facts.
G
166. Once we recognize the wider array of functions performed
by an elected Parliament or Assembly, not confined to only enacting

120
Lord Denning’s observations as noted in State of Karnataka v. Union of India on
note 9.
121
H Supra note 11.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 713
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

laws, any act in furtherance of this wider role and any obstruction to the A
same will certainly give rise to an issue of parliamentary privilege.122
167. There is little quibble with the proposition recognized in the
Special Reference No.1/1964123 that there is a distinction between
exercise of legislative privileges and ordinary legislative functions. A
similar line of reasoning has been expressed in Justice (Retd.) B
Markandey Katju v. Lok Sabha and Anr., when the hackles of the
Parliamentarians were raised on account of some utterances by Justice
(Retd.) Markandey Katju.124 We, however, fail to appreciate the line of
argument that no non-member could be summoned if they had not intruded
on the functioning of the Assembly; or that the non-participation of the C
petitioner would not have adverse consequences as it did not disrupt the
functioning of the Committee. The petitioners, more so with their expanded
role as an intermediary, can hardly contend that they have some exceptional
privilege to abstain from appearing before a committee duly constituted
by the Assembly.
D
168. We really do not have any quibble with the propositions
advanced by Mr. Salve that there can be judicial scrutiny of an endeavour
to exercise the power of privilege, which inherently suffers from lack of
jurisdiction, if illegal or unconstitutional.125 The issue, however, is whether
the situation has at all arisen meriting scrutiny by this Court- which in
turn has to be preceded by initiation of the privilege proceedings, an E
aspect emphasised by learned counsel for the Assembly as well as the
Committee.
169. In the factual matrix, only a summons has been issued for
appearance before the Committee. The question of any privilege power
F
being exercised is yet far away. It has been rightly pointed out by the
learned counsels for the respondents, that even if there was any breach
of privilege recorded by the Committee, the Committee would in turn
have to make a recommendation to the Assembly. The Assembly then
would be entitled to consider whether it is a fit case to exercise the
power of breach of privilege. In many cases, it may well be that the G
Assembly considers that it is not worthwhile to do so, even if the
122
Supra note 24.
123
Supra note 12.
124
Supra note 13.
125
Supra notes 12, 15 and 20. H
714 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Committee was to prima facie opine so. The exercise by the Assembly
is further dependent on the opinion of the Privileges Committee. Thus,
there are various tiers of scrutiny before there is culmination of the
exercise of power of privilege. None of those eventualities have at all
arisen in the present case. This case is a preventive endeavour by the
petitioner to preclude the respondents from even considering the aspect
B
of privilege by seeking this Court’s intervention at a pre-threshold stage,
only on the premise of the absence of legislative power. We will, of
course, consider the aspect of absence of legislative power as the last
aspect on the questions framed - but we cannot accept the fetters Mr.
Salve seeks to place on the Assembly and the Committee at the
C threshold. We may notice the arguments of the respondents that
recording of the consequences of breach of privilege in a notice to
appear is apparently something which is done in a routine manner in
such notices. This is possibly to make the noticee conscious of the
consequences. That would not mean that an action for privilege has
been triggered off at the outset.
D
170. We would like to turn to the aspect of the importance of the
working of committees; as, if there is no power to compel attendance,
we have little doubt that the working of these committees would be
badly impaired.
E 171. The committees constituted by legislative bodies like the
Assemblies for the States and Parliament for the Union, perform a key
role in the functioning and the working of the Houses. In fact, it is often
said that the real work is done in these committees - away from the din
of the Parliament. These committees witness more vociferous reflection
of the divergent view, slightly away from public gaze. It is said that there
F
is a more reasonable and applied discussion in these committees. This is
an aspect recognized all over the world qua the functioning of such
committees. These committees are bodies which have the capability to
undertake wide-scale consultative processes, engage in dialogue, and
build consensus through intelligent deliberations. In fact, such an exercise
G is intrinsic to the legislative process where public policies would require
detailed studies and concentration. These committees undertake
deliberations and provide recommendations as precursors to legislative
activities, and the effective working of committees is a prelude to the
core working of the Assemblies.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 715
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

172. The committees are an extension of the legislature itself and A
do informed work. Their significance has been exhaustively dealt with
in Kalpana Mehta 126 which we have extracted hereinabove. US
Representative James Shannon’s words were noted with approval in
the judgment, recognising that “around the world there is a trend to
move toward reliance on committees to conduct the work of
B
parliament, and the greatest reason for this trend is a concern for
efficiency.”127 It is not possible for us to accept the contention of the
petitioners to create an artificial division between Assembly’s core/
essential and non-essential functions, with any restrictive clauses being
placed on the deliberations of the committees. Such water-tight
compartmentalisation is not advisable. Unless the committee embarks C
on a course completely devoid of its functional mandate specified by the
Assembly, or the Assembly itself lacks jurisdiction to deal with the subject
matter, we are of the view that the widest amplitude must be given to
the functioning of these committees. It is the parliamentary committee
system that has been recognised as a creative way of parliaments to D
perform their basic functions. The same principle would apply, even if it
is to some extent beyond their legislative domain. This is because they
will not be able to make any valid legislative recommendations in the
absence of competence over the subject matter. However, they may
debate aspects which may be a reflection of their sense and consequently
the sense of the House, if so adopted by the House. E

173. Walter Bagehot in his seminal work “The English
Constitution”128 elucidated five significant functions of the House -
elective, expressive, teaching, informing and finally, the legislative. The
legislative function itself is a broad umbrella under which multiple
responsibilities and tasks are carried out in synchronization. The legislature F
is a “democratic nucleus”, whereby such title entails the law-making
process itself as being multi-functional; involving receipt of informed
opinions and balancing interests of various stakeholders. 129 Committees
actually are in the nature of specialised forums as Mallory states:
G
126
Supra note 20.
127
Comment of US Representative James Shannon during the 1995 Conference on the
Role of Committees in Malawi’s Legislature as noted in Kalpana Mehta at note 20.
128
Bagehot: The English Constitution, (P. Smith, 2001)..
129
J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public Administration
1, 6 (1963).
H
716 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “The flow of public business is now so great, and its nature
so complicated, that it can only be handled by bodies with
the technical competence and the rational organization to
master it. As Dr. Bernard Crick has pointed out:
The novels of C. P. Snow, Professor Parkinson’s Law and K.
B C. Wheare’s Government by Committee are all, in different
ways, testimonies to the truth that the most important work of
central government is conducted not by civil servants or M.P.’s
working as individuals, but by committees (Bernard Crick,
Reform of the Commons. Fabian Tract No.319 (London,
1959), p.13).”
C
174. The inquisitorial role of the committee in the functioning of
House is of great significance, and as recognized, the investigation of a
complicated social problem prior to legislation often rests frequently on
such legislative committees.130 This task involves the examination of
witnesses and is helpful in dealing with matters of special and technical
D nature, wisened by insight into affairs of the workings of different aspects
and the views expressed by different stakeholders. It can hardly be said
that in the context of what has been debated, the petitioners have no role
to play or are “outsiders”. Intelligent legislative action and deliberation
thereon rests on the power to investigate into questions of public
E importance and, thus, issuance of summons is key to this investigative
exercise - a role clearly recognised in Kalpana Mehta131.
175. We have no hesitation in stating that the endeavour of the
petitioners to sidestep their appearance before the Committee on a
perceived notion of not being an official representative - is not acceptable
F to us – whether the exercise is for a legislative enactment, or for other
purposes connected with its legislative domain. After all, “To be a valid
legislative inquiry there need be no predictable end result.” 132
176. The Committee is yet to start its work qua the assistance to be
rendered by the petitioners. The petitioners cannot themselves frame and
G presume possible questions that they might face before the Committee,
and then seek to encompass it under the argument of legislative

130
Promila Suri, Growth of Committee System in Central Legislature of India 1920-
1947, (1979).
131
Supra note 20.
132
H Supra note 79.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 717
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

incompetence. The work of The Committee could encompass several A
fields where organisations and individuals are expected to cooperate.
177. We are also not impressed by the argument that the privilege
powers of the Assembly are not constitutional in character but flow only
from the GNCTD Act. The scheme of privilege has to be seen in the
context of provisions of Article 239AA of the Constitution, as well as the B
GNCTD Act. They are not divorced from each other. Dr. Singhvi, thus,
rightly referred to clauses 7(a) and 7(b) of Article 239AA to contend
that the GNCTD Act was not deemed to be an amendment to the
Constitution for the purposes of Article 368, notwithstanding that it may
contain any provision which amends or has the effect of amending the
Constitution. Rights and privileges are the same as any other House C
and, thus, the calling into question of the proceedings of a sub-committee
amounts to calling into question the proceedings of the Assembly. At the
cost of repetition, we say that there has been no exercise of privilege
power. However, we have been called upon to deliberate, if one may
say, to some extent unnecessarily over this issue on account of insistence D
of the petitioners to advance this argument prematurely. We do not know
whether on participation of the petitioners any question of privilege would
arise, whether the Committee would make a reference to the Assembly,
whether the Assembly would consider it to be referred to the Privileges
Committee, what would be the opinion of the Privileges Committee and
finally whether the Assembly itself would embark on a path of a breach E
of privilege by the petitioners. This is a completely speculative exercise.
178. The Assembly is no different from any other State assembly,
except to the extent that certain powers in List II of the Seventh Schedule
have not been conferred (i.e., Entries 1, 2 & 18). As a principle of law,
we are required to read all entries widely. Neither the included Entries F
nor the excluded Entries have to be read restrictively. That is the principle
we will have to keep in mind.
179. Dr. Singhvi rightly pointed out that there is no judicial
precedent shown before us where judicial review has been successfully
exercised at such a threshold stage. Thus, judicial precedents would G
have to be read in their factual matrix. The stage for any possible judicial
intervention has not arisen in the present case. In fact, such a threshold
intervention was sought and repelled by the Full Bench of the Madras
High Court in C. Subramaniam133.
133
Supra note 30. H
718 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 180. We have little doubt that a “Peace and Harmony” Committee
may have a much wider amplitude than what is excluded in Entries 1, 2
& 18 of List II. As to the issue of the extent of legislative power, we will
deal with it in the third part of our conclusion.
181. We have already noted with some disquiet the divergence of
B views taken by Dr. Dhavan and Dr. Singhvi on the issue of the earlier
notice being withdrawn, and a subsequent notice being sent. Dr. Dhavan
expressed that this was really of not much significance. We are of the
view that the Committee is a creation of the Assembly. The notice was
withdrawn by the respondents themselves. In the wisdom of the
Committee, they sent a fresh notice- that the same was possibly not
C under the advice of Dr. Dhavan or may have been on the advice of Dr.
Singhvi is of little relevance to us. Such conflict of submissions was best
avoided and unnecessarily gave rise to another set of arguments on
behalf of the petitioners to read some intent into the same. Dr. Dhavan
was, however, right in seeking to repel the challenge as based on
D anticipatory nature of proceedings – being presumptive and preemptive.
182. The aspect of Dr. Dhavan’s submission that the Committee’s
threat to recommend criminal action was “toothless” and the Committee
Chairman’s statements during the press conference in this regard are
both best dealt with under the third aspect. Suffice to say at this stage
E that, in our view, greater care would be required while framing the Terms
of Reference so as to not include something which would be termed by
the counsel as “otiose” before this constitutional court. The utterances
of the Chairman of the Committee, which would give rise to petitioner’s
apprehensions are best avoided. We are noticing these aspects because
these two factors can be the only reasons for the petitioners to have
F approached this Court at this stage. In our view, there would have been
nothing to argue but for these two aspects – the first effectively
withdrawn during the course of argument, and the second sought to be
explained away as views of the people who deposed before the
Committee. We find it very difficult to accept both these aspects, and
G we can safely say that these gave the petitioners an ostensible cause for
approaching this Court. This is an issue we cannot ignore - but for these
aspects, we would have possibly burdened the petitioners with exemplary
costs to have approached the court at this stage. A number of past
illustrations have been rightly given by Dr. Dhavan to illustrate notices
issued to non-members which we have already recorded in para 58 and
H there is no need to repeat them.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 719
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183. We may record, at the end, that there is actually no serious A
dispute about the per se competence of the Committee to discuss matters
outside the legislative domain of the Assembly but it was with a caveat
that it could not give rise to exercise of power of breach of privilege and
the right to summon a non-member. That being the position, we have
already noticed that any plea raised on the exercise of privilege is a pre-
B
emptive strike in the absence of underlying facts. Where that situation
arises in the given factual context, the petitioners could have and would
be entitled to assail the same, but this Court will not indulge in an advance
ruling on this aspect. We have already clarified that we are not inclined
to accept the distinction between a member and non-member in the
aforesaid context; and the power of the Assembly to summon in the C
format it sought to do is beyond exception and in accordance with law.
So much for the aspect of privilege.
On Privileges & Fundamental Rights
184. Mr. Salve sought to pit the expanded right of free speech
and privacy against privilege, emphasising that the petitioner had a right D
to remain silent. In the context of the plea of the petition being premature
(which we have found against the petitioners as aforesaid), his submission
was that the mere threat of “necessary action” i.e., the possibility of a
breach of privilege, was enough to infringe both the right to free speech
and privacy. Thus, “the threatened invasion of the right” could be “removed E
by restraining the potential violator”.134
185. The more restricted plea advanced by Mr. Salve was that
even if the right of privilege is recognised, it must be narrowly construed
so as to give maximum play to the fundamental rights to privacy and
free speech, which includes the right to remain silent. We may note that F
in view of the original notice being withdrawn, Facebook’s plea of not
having the option of choosing whom to send stands whittled away. The
interesting part is that Petitioner No.1 did appear before the Parliament.
186. We find it rather difficult to countenance the plea that the
judgment of this Court in MSM Sharma135 stands whittled down by G
subsequent judicial pronouncements or that powers, privileges and
immunities under Articles 105(3) and 194(3) of the Constitution must
give way to the more fundamental right of free speech under Article

134
Supra note 38.
135
Supra note 14. H
720 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 19(1)(a) of the Constitution in view of the reference pending before the
larger Bench in N. Ravi136.
187. We have discussed at some length the aspect of privilege
and the rights which flow from it. Though such proceedings are not
taking place in Court, where depositions also take place, privileges of an
B elected body of the Legislative Assembly and consequently of its
committees must be given full play.
188. We would also not like to delve on this issue in more depth as
we are conscious of the fact that the perceived conflict between MSM
Sharma 137 and Special Reference No.1 of 1964 138 is pending
C consideration before a larger Bench in N. Ravi139. Suffice for us to add
that this reference has been pending since 2005. It may be stated that
this reference needs to be given some priority to settle the legal principles
involved, especially in the context of the expanding conflict on such subject
matters.
189. Be that as it may, we also agree with what Dr. Singhvi
D
contended -that this is another aspect which is premature. No coercive
action has been taken against the petitioner, and none was intended if
the authorised representative of the petitioners simply participated in the
proceedings as a witness. Emphasis was also laid on the transparency
of these proceedings in view of them being broadcasted live. The
E summons having been lawfully issued by an empowered committee
(subject, of course to the legislative competence discussed hereinafter),
the same must be answered. The proceedings are not criminal or judicial
in nature as there is no accused before the Committee. Naturally, the
Rules framed by the House under Section 33 of the GNCTD Act (which
in turn draws strength from Article 239AA(7) of the Constitution) would
F be followed. Protection of proceedings before the Assembly or the
Committee under Article 194 would include deposition of members or
non-members.
190. We may add here that the option to not answer a question
before the Committee cannot seriously be disputed qua certain aspects
G if so pleaded for good reasons, an aspect which would be examined by
the Committee as per Rules.
136
Supra note 46.
137
Supra note 14.
138
Supra note 12.
H 139
Supra note 46.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 721
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

191. We would not like to say anything more on this subject in A
view of the reference pending in N. Ravi,140 and the fact that the complete
plea of the petitioners is premature as nothing has really happened other
than them having been asked to appear before the Committee.
On Legislative Competence:
B
192. Is the Assembly embarking on a path which is blocked for
them? This is the core question of legislative competence of the Assembly
in the context of its powers and privileges not being akin to other State
Assemblies. The endeavour of Mr. Salve was to persuade us that once
the Assembly lacks competence, the petitioners have a right to stay
away, as all proceedings before the Committee would be devoid of any C
constitutional mandate.
193. It is undisputed that the Assembly is different from the other
State Assemblies to the extent that certain subject matters of List II
have been specifically excluded and conferred on the Central
Government. It is, thus, nobody’s case that aspects covered by Entries D
1, 2 & 18 in List II can be dealt with by the Assembly and consequently,
the Committee. In fact, the submission of Mr. Salve can be summarised
as advancing a plea that the Assembly and the Committee cannot be
permitted to do indirectly what they cannot do directly.
194. While there is no dispute about the principle of reading the E
Entries as widely as possible, that proposition is in the context of
challenging a law for lack of legislative competence. Here we are
concerned with the interplay of Entries. The issue would be whether the
Central Government has the legislative competence or the Assembly.
The widest amplitude has to be given even to the three Entries of which F
the legislative competence has been denuded from the Assembly and
conferred on the Parliament.
195. It is in the aforesaid context that it was emphasised that
apart from the aforesaid three Entries, what is also to be appreciated is
that the business of Facebook is directly covered under a Parliamentary G
enactment, i.e., the I.T. Act. In this respect, petitioners have willingly
cooperated with proceedings before the Parliamentary Committee in
the past.

140
Supra note 46.
H
722 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 196. That Facebook is an intermediary was submitted to be
apparent from Section 2(1)(w) of the I.T. Act. The role of the
intermediaries is covered by this enactment including the right of the
Central Government to issue directions to block public access to any
information under Section 69A of the I.T. Act and this is no more res
integra in view of the judgment in Shreya Singhal141 where a procedure
B
for the same has been laid down.
197. The intent of the Committee (and for that matter the
Assembly) was argued by Mr. Salve to be quite clear, i.e., to encroach
on the very domain which was prohibited. This was stated to be apparent
C from the Terms of Reference. The Terms of Reference contained in
paragraph 4 (i) (to consider the complaints from the members of the
public, social organisations, journalists, etc. on the situation prevailing in
a particular area/areas which have the potential to disturb communal
peace and harmony or where communal riots have occurred) have to be
read in context of para 4(vii) which tasks the Committee with
D recommending action against such persons against whom incriminating
evidence is found. The respondents could not get away by simply saying
that the power of recommending action against such persons against
whom incriminating evidence is found is not capable of being enforced
in view of the lack of legislative competence. These are the aspects
E which were sought to be given teeth by threatening privilege in the last
paragraph of the Terms of Reference.
198. Mr. Salve also sought to rely on the reply of the respondents
to justify that these were not mere apprehensions. We have set out
these aspects as reflected in para 90.
F 199. It could not be seriously disputed before us that collaborative
federalism was an integral part of the working of the Indian Constitution
as emphasised by the Court. However, it was simultaneously accepted
that such functioning had to be within respective spheres of legislative
competence. Were the Assembly to encroach upon matters covered by
G List I (and similarly, if the Central Government were to encroach upon
the powers of the Assembly in List II), it would lead to a chaotic situation
and a breakdown of the division of powers inter se the Centre and the
State.

141
Supra note 66.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 723
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

200. We are, however, not impressed with the argument of Mr. A
Salve that the petitioners cannot be drawn into what is perceived to be a
political divide. Facebook is a platform where such political differences
are reflected. They cannot wash their hands off the issue as this is their
very business. As noticed earlier, their role is not as innocuous as they
are seeking to contend.
B
201. Similarly, we cannot accept the plea that an Assembly must
confine itself to the core function of legislation. This would be
unreasonably restricting the role of an elected body.
202. Mr. Salve’s emphasis was that all that transpired was a
subterfuge as the real intent of the Committee was to look into issues C
that were beyond their scope, while expanding their powers on account
of a political conflict between the Central and State Governments over
the issue of the riots in question. This was stated to be quite apparent
from the nature of depositions recorded before the Committee and the
statements made in the press conference by the Chairman of the D
Committee.
203. As already stated, we have little doubt over the proposition
that the division of powers between the Centre and the State Assemblies
must be mutually respected. The concept of a wide reading of Entries
cannot be allowed to encroach upon a subject matter where there is a E
specific entry conferring power on the other body. It is this very principle
which was in the minds of the Constitution makers, considering the wide
diversity and the federal nature of the country. Thus, whether it is the
argument of Mr. Salve or Mr. Datar in this context, we find them
unexceptionable. The illustrations given by Mr. Datar for exercise of
F
such powers and their judicial scrutiny in the US also support the
proposition, i.e., that an inquiry could not be an end in itself and has to be
related to a legitimate task of the Congress (legislative body).142 There
could not be exercise of power which may “defeat or materially impair”
the exercise of its fellow branches’ constitutional functions, nor “intrude
upon a core zone” of another branch’s authority”.143 G
204. We are also of the view that the recourse to Entries 1 & 2 of
List III cannot be said to include what has been excluded from the powers
142
Supra note 76.
143
Supra note 81. H
724 SUPREME COURT REPORTS [2021] 14 S.C.R.

A of List II, i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating to
inquiries would again not permit the Assembly or the Committee to inquire
into the aspects of public order or police functions. That a law and order
situation arose is not disputed by anyone, and that this law and order
issue related to communal riots also cannot be seriously disputed. That
the Assembly cannot deal with the issue of law and order and police is
B
also quite clear. Thus, the moot points would be (a) what is the scope of
inquiry of the Committee; (b) whether it could be said that there is any
aspect of the inquiry which falls within the legislative domain of the
Assembly; and (c) whether the attendance of the petitioners could be
compelled legitimately.
C 205. We may say that both Dr. Singhvi and Dr. Dhavan were
quite conscious of the limitations which inherently exist on the powers of
the Assembly. It is in that context that their argument was premised on
a broader understanding of the expression “peace and harmony”, as
opposed to it being restricted to law and order. However, the difficulty
D that they face relates to the part of the Terms of Reference that was
clearly outside the purview of the powers vested with the Assembly.
This problem was compounded by what transpired in the press
conference held by the Chairman of the Committee. Speaking on behalf
of the members of the Committee, the Chairman made certain statements
that assume greater significance by virtue of being in the public domain.
E
206. We also do not disagree with the in-principle submission of
Dr. Dhavan, drawing strength from judicial precedents in the US, that
the power to investigate is inherent in the power to make laws by the
legislative body.144 But while recognising this, the issue in the present
case is whether the Assembly can at all legislate on the matter. The
F investigative function of committees carries with it the possibility of
researchers ending up in some “blind alleys”.145 This would have to
presuppose that there is an alley. Thus, while we respect the right of the
Committee to the extent that there exists an obligation on the petitioners
to respond to the summons, we cannot permit the proceedings to go on
G in a manner that encroaches upon the prohibited entries. We hasten to
add that we are not seeking to control how the Committee proceeds. In
fact, the Committee is yet to proceed. But certain provisions of the Terms
of Reference coupled with the press conference is what has persuaded
144
Supra notes 76, 78, 79.
145
H Supra note 79.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 725
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

us to say something more than simply leaving it to the wisdom of the A
Committee to proceed in the manner they deem fit.
207. Once again, we do appreciate the contention of Dr. Dhavan
that the police cannot be the sole custodian of peace and harmony and
that the expression itself has various connotations. Despite the State
Government being denuded of certain powers, it has to be noted that B
governance has many manifestations, and functions of the Government
can be realised in different ways. This is especially true in the present
case where the situation was admittedly created through an intrinsically
law and order issue.
208. The moot point is whether the expression “peace and C
harmony” can be read in as expanded a manner as Dr. Dhavan seeks to
do by relying a on a number of Entries in List II and List III. We have no
doubt that peace and harmony, whether in the National Capital or in a
State context, is of great importance. But it would be too much to permit
the argument that peace and harmony would impact practically everything
and thus, gives power under different entries across the three lists. We, D
do, however, recognise that the inquisitorial and recommendatory powers
can be utilised under the principle of better governance.
209. In the aforesaid conspectus, while keeping in mind Article
212 which restrains courts from inquiring into the proceedings of a
legislature, we must also note that a narrow scope of judicial review has E
always been appreciated and understood. We are confronted with a
situation where the two legislative bodies are not on the same page as to
what transpired and there is in a sense, a tug of war on the issue as to
who would look into what happened and what ought not to have happened.
It is in this context that the learned Solicitor General emphasised the F
doctrine of pith and substance to locate the power within the entries
which have been taken out of List II and thus, seeks to block the inquiry
by the Committee on aspects which are already covered under the three
excluded entries or under the I.T. Act.
210. The divergent contentions lead us to conclude that the G
Committee can trace its legitimacy to several Entries in List II and List
III without encroaching upon the excluded fields of public order or police
toundertake a concerted effort albeit not to the extent as canvassed by
Dr. Dhavan. Facebook cannot excuse themselves from appearing
pursuant to the New Summons issued to them on 03.02.2021. Areas
which are not otherwise available to the legislature for its legislative H
726 SUPREME COURT REPORTS [2021] 14 S.C.R.

A exercise may, however, be legitimately available to a committee for its
deliberations. This is so in the context of a broad area of governmental
functions. Ultimately, it is the State Government and the State Assembly
which has to deal with the ground reality even in the dual power structure
in Delhi. If we may say so, it is only the factum of Delhi being the capital
and the sensitivities arising therefrom in respect of public order or police
B
which has possibly persuaded these powers to be retained by the Central
Government. We cannot say that informed deliberation inter alia on the
best measures through which online mass hate and violence in their
geographical jurisdiction can be addressed would not be within the
Committee’s area of competence as it would undermine the very purpose
C of a vital democratic polity.
211. The unfortunate communal riots between 24 th and 29 th
February, 2020 in various parts of Delhi, led to the death of 53 persons,
caused significant damage to public and private property, disruptions to
schools, transport, water supply, medical and other civic amenities.146
D The complexity of communal tensions and their wide-ranging ramifications
is a matter affecting citizens of Delhi and it cannot be said that the
Government of NCT of Delhi cannot look into the causal factors in
order to formulate appropriate remedial measures. Appropriate
recommendations made by the State Government in this regard could be
of significance in the collaborative effort between the Centre and the
E State to deal with governance issues. It is in that context that this Court
had recognised that certain local interests are best addressed by the
elected representatives of the concerned State:
“130. Sawer’s “federal principles” reiterate this concept of federal
balance when he states:
F
“Power of the centre is limited, in theory at least, to those matters
which concern the nation as a whole. The regions are intended to
be as free as possible to pursue their own local interest.”147
212. We are of the view that because of the pervasive impact of
G the riots, the Committee could legitimately attend to such grievances
encompassing varied elements of public life. Thus, it would be entitled to

146
Delhi Minorities Commission, Government of NCT of Delhi, Report of the DMC
Fact-Finding Committee on North-East Delhi Riots of February, 2020 :accessibleat:
https://archive.org/details/dmc-delhi-riot-fact-report-2020.
147
H Supra note 27.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 727
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

receive information and deliberate on the same to examine their bearing A
on peace and harmony without transgressing into any fields reserved for
the Union Government in the Seventh Schedule.
213. Let us now turn to the Terms of Reference. In the larger
context of what the Committee is supposed to do, reliance was placed
on paragraph 4(i), i.e., to consider the factors and situations which have B
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 with the object of establishing harmony among different
religious or linguistic communities or social groups. This is not purely a
law and order or policing aspect and has several connotations. It was
not necessary at that stage for the Terms of Reference to spell out as to C
what aspects it would legislate upon (having legislative competence)
and on what aspects it would like to consider making recommendations.
That would have been a pre-hearing of the issue.
214. If we turn to para 4(i) of the Terms of Reference, the object
was to consider petitions, complaints or reports from the members of D
the public, social organisationsand journalists on the matter in issue where
communal riots have occurred. Once again this was intrinsically linked
to the larger issue. However, the real troublesome aspect is para 4(vii),
which we reproduce, once again, to appreciate the context:
“(vii) to recommend action against such persons against whom E
incriminating evidence is found or prima faciecase is made out
for incitement to violence”
215. Clearly it is not within the remit of the Assembly to recommend
action against such persons against whom incriminating evidence is found
or prima facie case is made out for incitement of violence. This is an F
aspect purely governed by policing. It is the function of the police to
locate the wrong doer by investigation and charge them before a
competent court and this is what has really given a handle to the petitioners
to approach this Court.
216. We have noticed the submissions of Dr. Singhvi and Dr. G
Dhavan, which really amount to saying that this paragraph is insignificant
as no action can be taken. If that be so, then in that sense, this paragraph
does not stand even though the petitioners may not have directly assailed
it. In order to justify the legislative competence and the remit of the
Committee, the respondents have practically given up this para 4(vii)
H
728 SUPREME COURT REPORTS [2021] 14 S.C.R.

A and we record the same and make it clear that this cannot be part of the
remit of the Committee.
217. We may say that wiser advice prevailed in issuing the New
Summons dated 03.02.2021, which consciously specified the diluted area
of inquiry, conscious of the aforesaid limitation and if we may say, rightly
B so. What it takes care of is that it is not addressed to Petitioner No.1
directly but instead it calls for the views of an authorised representative
of Petitioner No. 2, Facebook India. It has rightly used the expression
“requested” and also used the expression “could” in the context of initiation
of proceedings for breach of privilege and has categorically withdrawn
the previous notices and summons. On the lighter side, possibly Dr.
C
Singhvi’s advice was adhered to.
218. The result of the aforesaid is that fallacies in the notices
stand removed.
219. We have already noticed that the statements made by the
D Chairman of the Committee during the press conference cannot be diluted
or brushed aside in a manner as learned counsel for the respondents
seek to do. No doubt some part of the press conference refers to the
complaints received and statements made by persons deposing before
the Committee. But, at the same time, it was stated by the Chairman
that the material placed before the Committee had resulted in a
E
“preliminary conclusion”. Thereafter it was stated that “prima facie it
seems that Facebook has colluded with vested interests during Delhi
riots”. It does not rest at this and he further states:
“Facebook should be treated as a co-accused and investigated
F as a co-accused in Delhi riots investigation.” and “As the issue of
Delhi riots is still going in the court, a supplementary chargesheet
should be filled (sic) considering Facebook as a co-accused.”
The aforesaid statements and conclusions are completely outside
the remit of the Committee and should not have been made. That it may
G give rise to apprehension in the minds of the petitioners can also not be
doubted.
220. The further utterances also show that the findings have
already given out of the proceedings including 3-4 significant important
aspects including posting by Facebook of incriminating material on the
H platform in spite of continuous request to remove the same and that
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 729
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Facebook colluded with such web news channels, which has a sole A
agenda to confuse content and disturb social harmony. The Chairman
also states that material has come before them which shows that
wherever there is content of harmonious nature, Facebook removes that
content while disharmonious content is promoted. A reference has also
been made to the race clashes in the US.
B
221. Towards the end it is also sought to be conveyed that in view
of the “incriminating material”, the representatives of Facebook would
be called upon to satisfy principles of natural justice before conviction.
The prima facie view expressed is that Facebook is a co-accused and
hence investigations regarding their role during the Delhi riots should be
C
carried out and after such investigation, a supplementary chargesheet
should be filed.
222. If it may be said, it is as if the Committee was convinced that
Facebook must be prosecuted, and as if the Committee itself was the
prosecutor with a right to direct the filing of a supplementary chargesheet.
D
It was meeting as a formality to give a right of hearing before doing so,
i.e. “before taking any action.”What more is to be said!
223. We can only say that such statements are hardly conducive
to fair proceedings before the Committee and should have been desisted
from. This is especially so as that was not even the legislative mandate,
E
and the Assembly or the Committee had no power to do any of these
things.
224. In view of the aforesaid, thus, while giving the widest
amplitude in respect of inquiry by a legislative committee, we are
constrained to put certain fetters in the given factual scenario otherwise F
tomorrow the proceedings itself can be claimed to be vitiated.
225. The importance of Committees cannot be over emphasised.
The Kalpana Mehta 148 case discusses this issue in some depth.
Committees seek to perform the function of holding the Government
accountable to implement its policies, and its duties under legislation and G
the performance of governmental agencies can be the subject matter of
reports formulated by these Committees. However, in the context of the
present case, we are dealing with a scenario where on a particular subject
matter there is no legislative mandate to enact a legislation even if, in a
148
Supra note 20. H
730 SUPREME COURT REPORTS [2021] 14 S.C.R.

A broader sense, an inquiry is made. Thus, the aspect of holding the State
Government accountable is not really envisaged as per the Terms of
Reference. Rather, it seems as if the Committee seeks to hold certain
private players responsible for a law and order scenario, which is within
the domain of the Central Government. Therefore, the general principles
applicable to Committees would apply with a little difference in the given
B
scenario.
226. We are conscious of the rationale emphasised that the wide
jurisdictions of the High Court under Article 226 or of this Court under
Article 32 of the Constitution should not normally be exercised in a manner
C oblivious to the enormous work carried out by the Parliamentary
Committees “in the field”. An Assembly, more so in the nature of Delhi
Assembly with its own peculiarities (i.e., the exclusion of certain powers),
even if given the widest amplitude and powers which a Committee should
have; cannot step on the toes or rather shoes of an entity having exclusive
jurisdiction by reason of List I.
D
227. We cannot lose sight of the repeated brushes which have
occurred between the current dispensation in the Central Government
and the State Government and the Courts being called upon to define
the contours of their powers. Sagacious advice to act in concert appears
to have fallen on deaf ears. We are, faced with a scenario which is a
E little different from the normal and, thus, much as we would not like to,
some fetters have to be placed qua the exercise sought to be undertaken
by the Committee in question. One set of fetters is not required because
it has already been conceded that para 4(vii) of the Terms of Reference
is otiose and that there will be no endeavour to prosecute. However,
F another set of fetters become necessary because of the history
recorded aforesaid and the significance of the press conference given
by the Chairman of the Committee. The subject matter went much
further than it ought to have and as a result, we have analysed the
press conference in detail to repel the contention on behalf of the
respondents that this aspect should not be taken seriously or is more
G preemptory in nature. We are clearly of the view that it is not so. The
Committee cannot have a misconception that it is some kind of a
prosecuting agency which can embark on the path of holding people
guilty and direct the filing of supplementary chargesheet against them.
We, thus, opine that this aspect has to be kept in mind by the Committee
so as to not vitiate future proceedings and give rise to another challenge.
H
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 731
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We are of the view that in any eventuality, as speculative as it may be, A
if the Committee seeks to traverse the path relating to the excluded
Entries, i.e. law and order and police, any representative of Facebook
who would appear before the Committee would be well within their
right to refuse to answer the query and such an approach cannot be
taken amiss with possibility of inviting privilege proceedings. It is a
B
delicate balance to follow and we do not seek to give an excuse to the
representative of the petitioners to not answer questions and frustrate
the proceedings before the Committee qua the petitioners. However,
at the same time, we give this very limited protection were the
Committee to embark on these prohibited areas. We are quite confident
that such an eventuality will not arise, given the important role that the C
Committee is performing and that it will accept the sagacious advice.
So much and not further.
Conclusion:
228. We have penned down our views on the issues raised by the D
petitioners, but in view of the elaborate arguments and length of the
judgment, we consider it appropriate to summarise the ratio/directions in
the following terms:
I. There is no dispute about the right of the Assembly or the
Committee to proceed on grounds of breach of privilege E
per se.
II. The power to compel attendance by initiating privilege
proceedings is an essential power.
III. Members and non-Members (like the petitioners) can equally
F
be directed to appear before the Committee and depose on
oath.
IV. In the given facts of the case, the issue of privileges is
premature. Having said that, the insertion of para 4(vii) of
the Terms of Reference taken along with the press G
conference of the Chairman of the Committee could
legitimately give rise to apprehensions in the mind of the
petitioners on account of which a caveat has been made.
V. Canvassing a clash between privilege powers and certain
fundamental rights is also preemptory in the present case. H
732 SUPREME COURT REPORTS [2021] 14 S.C.R.

A VI. In any case, the larger issue of privileges vis-a-vis the right
of free speech, silence, and privacy in the context of Part
III of the Constitution is still at large in view of the reference
to the larger Bench in N. Ravi.149
VII. The Assembly admittedly does not have any power to
B legislate on aspects of law and order and police in view of
Entries 1 and 2 of List II in the Seventh Schedule inter alia
being excluded. Further, regulation of intermediaries is also
subject matter covered by the I.T. Act.
VIII. The Assembly does not only perform the function of
C legislating; there are many other aspects of governance
which can form part of the essential functions of the
Legislative Assembly and consequently the Committee. In
the larger context, the concept of peace and harmony goes
much beyond law and order and police, more so in view of
on-the-ground governance being in the hands of the Delhi
D Government.
IX. Para 4(vii) of the Terms of Reference does not survive for
any opinion of the Committee. It will not be permissible for
the Committee to encroach upon any aspects strictly within
the domain of Entries 1 and 2 of List II of the Seventh
E Schedule. As such, any representative of the petitioners
would have the right to not answer questions directly covered
by these two fields.
229. That brings us to the end of this saga. The writ petition is
accordingly dismissed, subject to terms aforesaid.
F
Postscript:
1. COVID times have been difficult for everyone. The Judiciary
and the Bar are no exception. It has been a contributing factor in there
being a period of four months between reserving the judgment and
pronouncement of the order, but that is not the only reason.
G
2. We have noticed the presumptive nature of grievances and the
invitation to the court to opine on the same with undoubtedly a handle
being provided by the respondents. The saga of the hearing lasted 26
hours – which is a lot of judicial time. Daily time period was recorded.
149
H Supra note 46.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 733
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

Apart from pleadings, there were written synopses, additional written A
synopses, rejoinders and replies filed liberally by both parties. The
convenience compilations themselves were very voluminous, in
contradiction to their very purpose. Our concern is if this is how the
proceedings will go on in the future, it will be very difficult to deal with
the post COVID period, which is likely to see a surge in the number of
B
cases pending adjudication.
3. What is the way forward? We do believe that there needs to be
clarity in the thought process on what is to be addressed before the
Court. Counsels must be clear on the contours of their submissions from
the very inception of the arguments. This should be submitted as a brief
C
synopsis by both sides and then strictly adhered to. Much as the legal
fraternity would not want, restriction of time period for oral submissions
is an aspect which must be brought into force. We really doubt whether
any judicial forum anywhere in the world would allow such time periods
to be taken for oral submissions and these be further supplemented by
written synopsis thereafter. Instead of restricting oral arguments it has D
become a competing arena of who gets to argue for the longest time.
4. We have looked into this aspect to see if there are any
international best practices and would like to refer to some of them
without a very expansive discussion.
5. Article 6 of the European Convention on Human Rights, while E
recognising the right of fair trial and public hearing, qualifies it inter alia
to be completed “within a reasonable time”.150 This is intrinsically linked
to administering justice without delays. Delay in judicial proceedings has
been the bane of our country and there cannot be a refusal to part ways
from old practices especially when they have outlived their purpose. It is F
the litigants who bear the costs of our complex and prolonged adjudicatory
process. We are conscious of the equal responsibility of this side of the
bench – it is the need of the hour to write clear and short judgments
which the litigant can understand. The Wren & Martin principles of
precis writing must be adopted. But then how is this to be achieved if the
G
submissions itself go on for hours on end with vast amounts of material
being placed before the Court; with the expectation that each aspect
would be dealt with in detail failing which review applications will be
filed (not that they are not filed otherwise!) We are weighed down by

150
Article 6, European Convention on Human Rights, 1953. H
734 SUPREME COURT REPORTS [2021] 14 S.C.R.

A judicial precedent. Often a reference is made to the judgment of the
Privy Council or the earlier years of the Supreme Court, which saw
short and crisp judgments but then, the volume of precedents we face
today was not present then. In a technological age like ours, all that is
required is to instruct the junior counsel to take out all judgments on a
particular point of view and submit it to the court in a nice spiral binding.
B
On every aspect there may be multiple judgments. In our view if the
proposition of law is not doubted by the Court, it does not need a precedent
unless asked for. If a question is raised about a legal proposition, the
judgment must be relatable to that proposition – and not multiple judgments.
The other scenario is if the facts of the cited judgments are so apposite
C to the facts of the case that it could act as a guiding principle. In R. v.
Erskine; R. v. Williams151 a well-known aphorism of Viscount Falkland
in 1641 was noticed “if it is not necessary to refer to a previous
decision of the court, it is necessary not to refer to it. Similarly, if it
is not necessary to include a previous decision in the bundle of
authorities, it is necessary to exclude it. That approach will be rigidly
D
enforced.” This forms the basis of the criminal practice directions in
the UK which apply to all criminal matters before the Court of Appeals,
Crown Court, and the Magistrate’s Court. Criminal practice directions
(vii) clarifies that if a judgment does not refer to a cited case, it is not
that the court has not referred to it but rather, that the court was not
E assisted by it. We adopt the same as we can say no better.
6. The contribution to the development of law can be nurtured by
comprehensible precedent. There may be times when the complexity of
matters gives rise to complex opinions. But we find that judgments are
becoming more complex and verbose only on account of large number
F of precedents cited and the necessity to deal with them and not merely
refer to them as is done in other countries.
7. We have for long discussed case management but seldom is it
followed in its true letter and spirit. This may possibly be because of the
large volumes of cases but then this is all the more reason for better
G management.
8. The US Supreme Court is more restrictive in its time frame –
not that UK Courts are far behind. The norms and the traditions take
care of the requirement of restrictive time frames to address submissions;

151
H [2009] EWCA Crim 1425, [2010] 1 WLR 183.
AJIT MOHAN v. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL 735
TERRITORY OF DELHI [SANJAY KISHAN KAUL, J.]

which are preceded by the contours of arguments given in the written A
synopsis and the material sought to be relied upon. We do not doubt that
lawyers think on their feet but then given the current milieu, there has to
be clarity before the lawyers get on their feet keeping a little leeway in
mind for something which may evolve during the arguments.
9. The Supreme Court of India as on 01.05.2021 had 67,898 B
pending matters.152 The time spent on routine matters leaves little time
to settle legal principles pending before larger Benches that may have
an impact down the line on the judicial system. We have a straight example
of this with a reference to a larger Bench pending in N. Ravi153.
10. Another matter of concern is prolonged interim proceedings. C
In criminal matters, even bail matters are being argued for hours together
and at multiple levels. The position is no different in civil proceedings
where considerable time is spent at interim stage when the objective
should be only to safeguard the rights of the parties by a short order, and
spend the time on the substantive proceedings instead which could bring
an end to the lis rather than on the interim arrangement. In fact, interim D
orders in civil proceedings are of no precedential value. This is the reason
it is said that we have become courts of interim proceedings where final
proceedings conclude after ages- only for another round to start in civil
proceedings of execution.
11. The purpose of our post script is only to start a discussion E
among the legal fraternity by bringing to notice the importance of
succinctly framed written synopsis in advance, and the same being
adhered to in course of oral arguments to be addressed over a limited
time period and more crisp, clear and precise judgments so that the
common man can understand what is the law being laid down. After all, F
it is for ‘the common man’ that the judicial system exists.

Divya Pandey Writ Petition dismissed.

G

152
Statistics, Monthly Pending Cases, Types of matters pending in Supreme Court of
India as on 01.05.2021, Supreme Court India, accessible at: https://main.sci.gov.in/
statistics.
153
Supra note 46. H