Non-appearance of a witness after summons is also an obstruction of a legislative function, said the Delhi government in the Supreme Court as it criticised Facebook and its managing director Ajit Mohan in “picking and choosing" which law and whose notices to obey in India.
The NCT government has filed its affidavit in response to a petition by Mohan and Facebook, in which they have maintained that a Delhi legislative committee looking into certain aspects of the Delhi riots can’t compel Mohan to show up and testify.
While their petition asserted the right to remain silent, the Delhi government called it “frivolous" and “misplaced" that Mohan, who chose to appear before a parliamentary committee of Lok Sabha, has been questioning the rights of a legislative committee to summon him as a witness.
It pointed out that Mohan has already deposed before the Parliament on some other issues and that Facebook representatives regularly depose before legislatures across the world, including in the United States of America where the social networking company is incorporated.
“Therefore, the attempt to press and engage some fundamental rights in the present facts is prima-facie not genuine or bonafide, and the fundamental rights claimed are not at all engaged in the present facts. The Petitioners cannot be allowed to pick and choose which constitutionally empowered body they will appear before, as per their own convenience," stated the affidavit, filed through advocate Shadan Farasat.
About Mohan’s right to remain silent, the Delhi government maintained that such rights are available only in criminal proceedings where self-incrimination has to be discouraged, but not to someone who has been called as a witness.
“It not open for a witness who has been summoned to testify to seek refuge in Article 19(1)(a) - free speech, and refuse to answer by asserting his right to remain silent. It is stated that such a right is available only to an accused under Article 20 (against self-incrimination) of the Constitution," read the affidavit.
The NCT government also sought to refute that Mohan could exercise his right to be left alone as a matter of privacy.
“The right to be let alone is not available to a witness. The right to privacy is not at all engaged in the present facts. It is completely unimaginable how a summons to a representative of a company to depose in respect of the public impact of that company can even remotely be said to engage the right to privacy," it contended.
The affidavit further rebutted that the Peace and Harmony Committee is examining issues such as policing and law and order, which are exclusively under the domain of the Central government in the NCT.
The reply said that first it cannot be the prerogative of a witness to decide by himself about the powers of a legislative committee without even bothering to appear before it.
Next, the Delhi government denied that its committee is examining issues that are in the domain of the Central government and cited multiple subjects such as criminal law, courts, prisons, local government, public health etc to buttress that its house panel was focussing on these subjects.
It said that Mohan was called as a witness since Delhi has lakhs of Facebook users and the committee deemed it necessary to ascertain if the platform was used to flare up the violence in February during the riots and also how these platforms could be used to strengthen the unity among the citizens of Delhi in the future.
“The petitioners are not disinterested or unattached persons… Given the terms of reference of the Committee, it is erroneous to conclude that the social media, particularly Facebook, has no capability of maintaining or disrupting communal harmony and peace, given its huge userbase," it said.
The affidavit further maintained that there has been no finding of guilt by the Committee nor has any breach of privilege motion been initiated against Mohan, and therefore, these apprehensions in the petition are simply premature.
The Delhi government also questioned the maintanability of petition filed jointly by Mohan and Facebook, arguing the company isn’t even an Indian citizen and hence can’t say in the Supreme Court that its fundamental rights have been violated.
The government sought dismissal of their petition while asserting it possesses right to summon Mohan as a witness and that he must show up and assist.
The Supreme Court, which had on the last date restrained the Delhi government from proceeding against Mohan, will hear this case next on October 15.