Facebook Row: Why Joint Parliamentary Committee Probe May Not Help

India’s JPC mechanism must be reformed before Opposition calls for a JPC probe into ‘Facebook-BJP’ controversy.

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In light of the Wall Street Journal report that Ms Ankhi Das, the head of Facebook’s public policy team in India, had opposed taking action against the Facebook accounts of BJP politicians who were uploading hate speech posts, and another report revealing that Das had allegedly claimed credit for ‘boosting’ Narendra Modi’s social media campaign in the run up to the 2014 elections, the opposition parties have demanded a joint parliamentary committee (JPC) to investigate the alleged collusion between Facebook India and the BJP.

A JPC can be formed through the adoption of a motion for its appointment by either Houses of Parliament. The members are appointed based on the strength of political parties in Parliament, and given the BJP’s numbers, the chairperson of a JPC which may be appointed, will most likely be a member of the ruling party.

While a committee is empowered to summon people and documents, in connection to an investigation, the summons are usually issued at the direction of the chairperson.

Why Past Experience With Investigative JPCs Don’t Inspire Much Confidence

Any questions regarding the functioning of the committee will be determined by a majority of the members present and voting as per Rule 261 of the Lok Sabha Rules. Therefore, it will be entirely in the hands of the ruling party MPs to decide who should be summoned for examination by the committee. Furthermore, the functioning of the committee is subject to the discretion of the Speaker, who is empowered under Rule 270 to determine whether the evidence of a person or the production of a document is relevant for the purposes of the Committee.

The Speaker can also issue directions under Rule 283 to regulate the work of the Committee. The Speaker exercised this power recently by preventing officials from Kashmir to testify before the Parliamentary Standing Committee on Information and Technology, on the issue of restriction of internet and telecommunication services in the Union Territory.

The past experience with investigative JPCs, especially into matters involving the ruling party or coalition, does not inspire much confidence in the process.

For instance, when the Bofors bribery allegations were being investigated by the JPC in 1987, Aladi Aruna, a member of the committee, prepared a list of people he wanted to question. However, the committee chairman and Congress leader B Shankaranand, rejected the list, with the approval of the majority of MPs in the committee, who belonged to the then ruling party.

Aruna also alleged that the chairman did not give the members sufficient notice for preparation before determining the dates for the examination of witnesses. Similarly, the JPC which investigated the 2G spectrum scandal, was also plagued by allegations of bias. Sitaram Yechury, in his dissent note, highlighted how material witnesses such as the former IT Minister A Raja, were not subjected to oral cross examination by the committee.

• A JPC can be formed through the adoption of a motion for its appointment by either Houses of Parliament.
• The functioning of the committee is subject to the discretion of the Speaker, who is empowered under Rule 270 to determine whether the evidence of a person or the production of a document is relevant for the purposes of the Committee.
• The past experience with investigative JPCs, especially into matters involving the ruling party or coalition, does not inspire much confidence in the process.
• Even if a JPC is constituted at the present juncture and does not undertake a comprehensive inquiry, the Speaker of a future Lok Sabha can deny a motion to form a new JPC to investigate this subject.

Why Opposition Must Be Circumspect While Demanding A Joint Parliamentary Committee

Furthermore, even if a JPC is constituted at the present juncture and does not undertake a comprehensive inquiry, the Speaker of a future Lok Sabha can deny a motion to form a new JPC to investigate this subject.

In 1997, Jaswant Singh submitted a notice in the Lok Sabha to move a motion to appoint a new JPC to investigate the Bofors case, especially in light of documents received from the Swiss authorities, and to examine the responses given by the government to the Swiss. However, PA Sangma, the then Speaker, rejected his notice using the powers under Rule 187, to hold that since the Bofors case had been investigated by the JPC in 1987-1988, there was no purpose in appointing a new committee.

Therefore, the Opposition should be circumspect while demanding a JPC, in light of this precedent.

The standing committee on IT, which is headed by Congress leader Shashi Tharoor, has already started its examination of the Facebook controversy by summoning the head of Facebook India. While the BJP still enjoys a majority in the standing committee, the chairperson has several powers which can be useful for the Opposition.

The agenda of the committee, which includes the issue of misuse of social media platforms, can be used to justify an inquiry to determine whether Facebook ignored its own hate speech norms to benefit the ruling party politicians, and whether the platform assisted the social media campaign of Modi in 2014. In order to stop this inquiry, the agenda has to be modified. Direction 54 states that if a member desires to reopen a question on which the committee has already made a decision, the permission of the chairperson is then needed.

Even A Commission Of Inquiry Can't Preclude Possibility Of A Compromised Probe

Since the agenda was approved by the committee much before the controversy broke out, it can only be amended with the permission of Shashi Tharoor. Furthermore, the chairperson can issue directions to the Secretary General of the Lok Sabha to issue summons to parties relevant to the inquiry, without having to take the prior approval of the majority of the committee members. However, constituting a JPC chaired by an MP from the ruling party to investigate the matter, will severely undercut the ability of a committee, already headed by a non-BJP MP, to look into the controversy.

When the Marconi bribery scandal took place in the UK, the House of Commons appointed a Parliamentary committee to investigate the matter. However, the committee split along party lines while making its decisions.

Veteran lawyer AG Noorani has argued that the Marconi incident convinced the British Parliament to discard the mechanism of Parliamentary inquiries, and motivated it to enact the Tribunals of Inquiry (Evidence) Act, 1921 to provide a new mechanism for investigations.

The Salmon Commission in 1966 had also recommended using non-political bodies like tribunals to inquire into matters of public interest, instead of resorting to parliamentary committees.

The Parliament of India also has the power to appoint an independent commission to investigate the facts of a case, using its powers under Section 3 of the Commissions of Inquiry Act, 1952. However, even a commission of inquiry cannot completely preclude the possibility of a compromised investigation. HS Phoolka and Manoj Mitta have detailed how the Justice Mishra Commission, appointed to investigate the 1984 riots, conducted all its proceedings in-camera and produced a highly contested report. Nevertheless, a commission of inquiry may be less partisan on politically sensitive issues, compared to a parliamentary committee consisting of several politicians.

How To Reform Joint Parliamentary Committee Mechanism?

It is important to keep in mind that a JPC or any other parliamentary committee cannot impose any form of punishment or penalties. A JPC is a fact-finding body and lays all the information to the Parliament and the public, with recommendations on further steps which can be taken.

If one accepts the principle that sunlight is the best disinfectant, then the rules must be reformed to provide greater powers to such committees to place all the relevant information in the public domain.

One possibility is to empower every committee member with the power to summon people or to seek the production of documents, instead of leaving it at the discretion of the majority or the chairperson. This will ensure that irrespective of the political background of the chairperson of the committee or the numerical majority of the ruling party, an MP can ensure that all the information that he or she deems important is provided, and it can be placed in the annexures of the final report to be presented to the Parliament.

An effort must also be made to restrict the powers of the Speaker to interfere with the working of the committees.

The specific grounds on which the Speaker may intervene, must be clearly established, so that his discretionary power is not used to hamper a committee’s investigation. However, until the JPC mechanism in India is reformed, it would be self-defeating for the Opposition to call for a JPC to investigate the allegations against Facebook or to investigate any scandal which may arise in the future.

(Arvind Kurian Abraham is a lawyer specializing in constitutional law. He tweets @ArvindKAbraham. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)