‘Facebook, Twitter can’t be accountable to state assemblies’: Centre to SC

The government’s submissions came as the bench, which also included justices Dinesh Maheshwari and Hrishikesh Roy, was hearing a petition by Ajit Mohan, head of Facebook India.
When the hearing began on Thursday, the bench asked Mehta to clarify if the Centre’s stand in this matter was that only the Parliament and parliamentary committees had the power to summon Facebook, WhatsApp or Twitter.(Reuters)
When the hearing began on Thursday, the bench asked Mehta to clarify if the Centre’s stand in this matter was that only the Parliament and parliamentary committees had the power to summon Facebook, WhatsApp or Twitter.(Reuters)
Updated on Feb 18, 2021 09:05 AM IST
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ByUtkarsh Anand, Hindustan Times, New Delhi

The Union government on Wednesday submitted in the Supreme Court that Facebook or Twitter cannot not be made accountable before any state assembly, even as the Centre said that the social media platforms had the “powers to de-stabalise a country” and the “propensity to create law-and-order problems”.

Representing the Centre, solicitor general Tushar Mehta said that only Parliament and its committees had the authority to deal with the issues pertaining to social media and intermediaries such as Facebook since a “national response” to this problem was required.

“It would be hazardous if every unit of the Union of India starts examining these things. Facebook, Twitter etc. have powers to destabilise a country but the response has to be a national response. If there is a problem with the Facebook, the answer is not to allow a state assembly to take it up. We cannot have over two dozen assemblies using their subjective wisdom to deal with this problem,” Mehta told a bench headed by justice Sanjay Kishan Kaul.

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According to the SG, apart from Parliament, no state government and assemblies were empowered to call upon Facebook or Twitter, through their functionaries, for recording their statements on oath, or to make any recommendation regarding social media because the power to legislate on this subject was only with the central government.

The government’s submissions came as the bench, which also included justices Dinesh Maheshwari and Hrishikesh Roy, was hearing a petition by Ajit Mohan, head of Facebook India. Mohan has challenged the summons issued to him by peace and harmony committee of the Delhi assembly, asking him to appear and answer some queries on the role of the social networking portal in the Delhi riots in February 2020.

Experts said it will be a strange situation if a state government or assembly is told it cannot conduct an inquiry because the Centre is empowered to make the law on that subject.

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“There is a huge difference between power to make laws, which is the legislative competence, and the enforcement of laws. A law can be made by the Central government but it is the states that have to apply those laws. How can a law be enforced without an inquiry or summoning certain individuals?” said PK Malhotra, former secretary, ministry of law and justice.

“It would be a very strange situation if a state government cannot even initiate an inquiry only on the ground that the law is a central law.” he added.

When the hearing began on Thursday, the bench asked Mehta to clarify if the Centre’s stand in this matter was that only the Parliament and parliamentary committees had the power to summon Facebook, WhatsApp or Twitter.

The court pointed out that in the case of Delhi, an argument was made that inquiring into the riots was a law-and-order issue, which was outside the ambit of the Delhi assembly, and hence, Facebook India head could not have been summoned. “But what about other states where law-and-order is with them, unlike the peculiar position in Delhi? Or what if Delhi assembly wants to discuss something which does not relate to law-and-order? Is it your stand that the Central government is the sole repository of what Facebook does in India and no other state assembly can summon them for anything?” the bench asked Mehta.

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Mehta outlined his submissions and asserted that if there was no power to make a law on a subject, like social media in the present case, a state assembly lacked power to examine the issue or make any recommendation in that matter.

“Can you (a state) regulate social media? If the answer is no, then you cannot summon anyone. Don’t even recommend something on which you don’t have legislative competence. The problem is global, uncontrollable but there has to be a national response and each assembly cannot be allowed to examine it,” Mehta replied.

He added that Parliament was aware of the problem and a standing committee was already looking into it. “If you are more popular, you have more potential to create problem. And Facebook is very popular. It is not that the central legislature is not aware of the problem. A parliamentary panel is seized of all these issues,” said the S-G.

Mehta also sought permission from the bench to file an affidavit on the Centre’s stand in the matter. The court gave him time till Monday to submit the affidavit and fixed the matter for hearing next week.

Contending that since Facebook was already appearing before the parliamentary panel, the Delhi government and its Peace and Harmony Committee have complained that the social networking platform could not be allowed to “pick and choose” where to appear. They have added that Mohan was being called only as a witness and that he could not choose not to show up on conjectures about what could be asked by the panel. Later, the Delhi government told the bench that Facebook could even send anybody else from the firm if Mohan did not want to appear.

Mohan, on the other hand, has underlined his “right to silence,” and that he was under no legal or constitutional obligation to appear before the assembly panel.

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Monday, November 29, 2021