On the eve of the 74th Indian Independence Day, the Wall Street Journal (“WSJ”) carried a controversial article by Newley Purnell and Jeff Horwitz which went into the claims of Facebook’s alleged bias and favoritism to the Bharatiya Janata Party (“BJP”), the ruling party in India. The said article went on to claim that Facebook and its executives had made strategic attempts to not offend the ruling party in India and other governments across the world for its dominant market shares in such geographical regions. Four days later, another article authored by Newley Purnell and Rajesh Roy on the WSJ discussed the repercussions of the article alleging favoritism extended by Facebook and its reactions amongst the opposition political parties in India, especially that of the Indian National Congress (“INC”) Party and the Aam Aadmi Party (“AAP”), which is the ruling party in the nation’s capital city of Delhi. The Aam Aadmi Party’s spokesperson stated that the Delhi Legislative Assembly’s Peace and Harmony Committee would summon the representatives of Facebook to enquire into the issue of its alleged bias and preferential treatment while dealing with online hate-speech in India. Moments after the Congress Party’s politician and a Member of Parliament (“MP”), Rahul Gandhi had tweeted on the WSJ articles, Dr. Shashi Tharoor who heads the Parliamentary Committee on Information Technology (“the Committee”) and a Congress Party MP, had responded on Twitter that the Committee would wish to hear from Facebook and its executives in India on its alleged role in political bias.
The authors in this article try to delve into the depth of two primary legal issues that have erupted out of the numerous tweets and complaints of breach of privilege by MPs, which are now in popular debate. The first issue of exploration being the powers of the Parliament to summon executives representing Facebook in India and secondly, to assess whether Dr. Tharoor has acted within the limits of the framework of Parliamentary rules.
Significant functions performed by the Committee include consideration of the annual reports of the Ministries, demands for grants of the related Ministries, examination of Bills, or consideration national basic long-term policy documents presented to the Houses if referred to the Committee by the Chairperson or the Speaker, as the case may be. The Committee also selects other subjects for examination on the basis of Annual Reports of the Ministries or Departments under its jurisdiction. Therefore, without any hesitation, one can state that the Committee has suo-moto powers to examine issues of concern based on the Annual Reports of the Ministries. In this case, the Ministry of Electronics and Information Technology, which is within the jurisdiction of the Committee, has been continuously dealing with the issue of the role of intermediaries and its relationship with Indian users vide the Information Technology (Intermediary Guidelines) Amendment Rules of 2018, which is yet to be notified.
The answer to the question whether Dr. Tharoor is empowered as the Chairperson to summon Facebook to the Indian Parliament, is an ambiguous one which requires a better understanding of the two ways of beating this political conundrum. Thiruvananthapuram’s INC MP, Dr. Shashi Tharoor while responding to tweets by his party leader Rahul Gandhi commented that “the Parliamentary Standing Committee on Information Technology would certainly wish to hear from Facebook about these reports and what they propose to do about hate-speech in India.” His colleague and the ruling BJP’s MP from Godda (Jharkhand), Nishikant Dubey, had complained of a breach of privilege against Dr. Tharoor, calling his action of summoning Facebook executives before the Committee on September 2nd, 2020 in question. He also added that:
(Dr. Tharoor’s) accent does not give (him) freedom … to not only disregard our glorious Parliamentary institutions/organs to meet his own political ambitions but also to abuse our Constitution. He is running the affairs of the Committee in a thoroughly unprofessional manner and to serve his political agenda of spreading rumors and defaming my party.
Responding to his earlier tweet, Dr. Shashi Tharoor stated that:
Our Parliamentary Committee will, in the normal course, consider testimony under the topic ‘Safeguarding citizens’ rights & prevention of misuse of social or online news media platforms’. The subject is squarely within the IT Committee’s mandate and Facebook has been summoned in the past.
Dr. Tharoor’s actions of summoning Facebook as the Chairperson of the Committee over its alleged role of political favoritism on the removal and taking down of content that is said to tantamount to hate-speech has been called in question for not consulting other members of the Committee.
One must essentially peruse Rule 269 and Rule 270 of the Rules of Procedure and Conduct of Business in Lok Sabha to better understand Parliament’s power to summon Facebook’s executives before it.
Rule 269(1), which is in regard to power to take evidence or call for documents, reads as “a witness may be summoned by an order signed by the Secretary-General and shall produce such documents as are required for the use of a Committee.” While Rule 270, which is related to the power to send for persons, papers and records, reads as:
A Committee shall have power to send for persons, papers and records: Provided that if any question arises whether the evidence of a person or the production of a document is relevant for the purposes of the Committee, the question shall be referred to the Speaker whose decision shall be final: Provided further that Government may decline to produce a document on the ground that its disclosure would be prejudicial to the safety or interest of the State.
Therefore, it is crystal clear that the Parliamentary Standing Committees do enjoy the power to call for and summon witnesses as per its own Rules of Procedure and Conduct of Business. However, the ambiguity arises on the question of whether the word ‘Committee’ is being used alternatively with ‘Chairperson’ in this scenario of the above-mentioned Rule 269 and 270, as the assumption of such powers by any one of another could otherwise be argued to be arbitrary in nature. It is pertinent to argue why a strict rule of construction and interpretation should be applicable in the present case as certain provisions within the same part of the Parliament’s rules differentiate between the role of a Committee from that of its Chairperson.
Further, Rule 273 throws light in this regard stating that before any examination of witnesses, the Parliamentary Committees shall be deciding the mode of procedure and the nature of question that may be put before the witness. It is important here to differentiate between the ‘process of summoning’ and the ‘process of preparing before examining a witness’. Therefore, no statutory provisions exist to bar the Chairperson from issuing summons to Facebook’s executives before placing the matter for discussion or vote. Even if the action of the issuance of summons only ‘after’ a sitting of the Committee is to be considered a convention, no legal backing stands to its rescue. Therefore, Dr. Tharoor’s summoning does pass muster.
Last year, during the tenure of the Sixteenth Lok Sabha, when BJP MP Anurag Thakur was leading the Committee, he had summoned Twitter CEO Jack Dorsey and its executives, asking them to submit its views on the subject of “‘safeguarding citizens’ rights on social or online news media platform” after a volunteer group wrote to the committee, alleging that the company had extended preferential treatment wherein it was alleged to have been biased against right-wing Twitter accounts.
The present matter concerning the summoning of Facebook are much on the same lines of the erstwhile Parliamentary Committee’s agenda of “safeguarding citizens’ rights and misuse of social or online news media platforms including special emphasis on women’s security in the digital space.” However, this present matter is differently placed when one assesses the timing of issuance of summons. Mr. Thakur had issued the notice when the Parliament was in its Budget session in 2019 and accordingly, the Committee had the opportunity to consider the issue. However, the pandemic has created a unique situation wherein the Cabinet Committee on Parliamentary Affairs has mulled over the various options that may be exercised to begin with the proceedings of the Parliament amidst the rising number of COVID-19 cases in the national capital and in the country at large. Therefore, Dr. Tharoor’s issuance of summons to Facebook executives would require a glance into the extraordinary powers, if any, held by him as a Chairperson of the committee or that of the other members of the Parliamentary Standing Committee who would like to oppose the decisions undertaken by him as its chairman.
A perusal of Rule 264 of the Rules of Procedure and Conduct of Business in Lok Sabha states that “the sittings of a Committee shall be held on such days and at such hour as the Chairperson of the Committee may fix”, clearly indicating that Dr. Tharoor as the Chairperson does have the power to call for a sitting which even includes an occasion of extraordinary sittings of the Committee. It is interesting to note here that the power to send for a person, paper or any record is only possessed by the Committee as highlighted under Rule 270. A conjoint reading of the two rules indicate that the chairperson should have tried to schedule a sitting of the Committee before serving any summons as the power to call for witnesses is a prerogative of the Committee and not that of the chairperson, specifically as per Rule 270. Although, the rules reflect that the Committee enjoys the power to summon a witness, the same has not been a convention in practice.
Our debate on the procedure of law laid down by the Parliament hints at every corner on how the rules of procedure can be amended. A Parliamentary Committee does have the requisite power to pass resolutions on matters of procedure relating to that Committee for the consideration of the Speaker, who may make such variations in procedure as the Speaker may consider necessary. In fact, the Speaker has the option to issue directions to the Chairperson of a Committee, as the Speaker considers necessary from time to time in order to regulate the procedure and the organization of the Committee’s work. Recently, Lok Sabha Speaker Om Birla, has conveyed to Chairpersons of Parliamentary Committees that sub-judice matters should not be taken up in their sittings on which BJP MP Nishikant Dubey has written to Dr. Tharoor that the issue of restoring 4G telecom services in Jammu and Kashmir should not be discussed in the upcoming September 1st meeting as the matter is before the Supreme Court.
The Chairperson of the Committee, Dr. Tharoor, has allowed room for us to deliberate on whether a Committee member could raise any issues on their line of difference of thought with the Chairperson on whether one should have been summoned at all to the Parliamentary Committee. In accordance with the existing Parliamentary rules, all communications between a Committee and the Speaker or that with the Houses of the Parliament are to be made only by the Chairperson of the Committee. He is, so to say, the spokesman or the mouthpiece of the Committee. Therefore, one necessarily is being accused of an antithesis of free speech even when one is not in power. Without any adieu, there is no hesitation to state that if any doubt arises on any point of procedure or otherwise, the Chairperson would be the authority to decide whether he thinks fit for a point of reference to be made to the Speaker whose decision would tantamount to be final. Hence, the last call on requesting a reference before the Speaker lies with Dr. Tharoor as the incumbent chairperson of the committee. However, the Speaker can at any time issue directions to the chairperson or the committee which shall be final and binding upon all.
Although Facebook has been summoned on September 2nd, 2020, one must not forget that the entire story may be anticipated to fall before the climax reaches as the incumbent Committee’s date of institution nears a year from its constitution on September 13th, 2019. This is in pursuance of Rule 331D(4) which does not allow for the term of office of the members of the Parliamentary Committees to exceed one year. However, if a Committee is unable to complete its work before the expiration of its term or before the dissolution of the House then it may report to the House that the Committee has not been able to complete its work and any preliminary report, memorandum or note that the Committee may have prepared or any evidence that the Committee may have taken, especially if Facebook’s executives appear for testimony, shall be made available to the new Committee. If the Committee votes to keep the matter a private affair, then the conundrum may wait to receive the next push on some later political tussle.
Avirup Mandal is a final year law student at Government Law College, Mumbai who will soon be joining a Tier-I law firm.
Vatsla Varandani is a penultimate year law student at Government Law College, Mumbai and holds a Diploma in Cyber Laws from Asian School of Cyber Laws.
Avirup Mandal and Vatsla Varandani, A Legal Analysis of Shashi Tharoor’s Power to Summon Facebook, JURIST – Student Commentary, September 08, 2020, https://www.jurist.org/commentary/2020/09/avirup-mandal-vatsla-varandani-shashi-tharoor-summons-facebook/.
Photo Credits: David Paul Morris/Bloomberg