Nearly six years after the government’s banknote demonetisation saw long queues, reported deaths and cash shortage, a Constitution Bench, charged with examining the validity of an Ordinance promulgated to legalise the exercise retrospectively and look into human problems which accompanied the implementation of withdrawal of ₹500 and ₹1,000 currency notes from legal tender, turned around on September 28 to ask if “anything survives at all” in the issue in 2022.
A three-judge Bench of the Supreme Court had referred the question of the legality of the demonetisation exercise and its implementation to a Constitution Bench on December 16, 2016, saying the issue was of public importance with far-reaching consequences for the common man.
“Does this survive at this stage? In those days, it was relevant. Does it survive now?” Justice S. Abdul Nazeer, who headed the five-judge Bench, asked as soon as the hearing in the case that commenced on Wednesday.
Solicitor General Tushar Mehta, for the government, said the case did not survive for “all practical purposes”. What is left is merely an “academic exercise” of examining the law. “We are prepared,” Mr. Mehta assured.
Justice B. R. Gavai, on the Bench, said five judges may not be able to spare the time to look into the case for “academic purposes” when they were already burdened with a huge caseload.
“Yes, when there are so many other rights’ cases...” Mr. Mehta agreed.
Justice B. V. Nagarathna, putting the issue in perspective, said the Constitution Bench was asked to examine two aspects — the validity of the action [demonetisation]’ and problems about its implementation.
“What is being put [by the Bench] is with regard to the survival of questions on the validity of the action,” Justice Nagarathna asked the petitioners.
The Constitution Bench also indicated that it cannot be expected to hear individual claims and grievances.
Justice Nazeer finally said the case would be taken up on October 12 to consider whether or not the case was only “academic in nature”.
“We will hear you all on that day,” Justice Nazeer told the lawyers on both sides.
Advocate Pranav Sachdeva, for a petitioner, said the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 had breached assurances that legal tender of the demonetised notes would be accepted till March 31, 2017. The Specified Bank Notes (Cessation of Liabilities) Act, 2017 replaced the ordinance.
The government had announced demonetisation on November 8, 2016.
While referring the case to a Constitution Bench, the three-judge Bench led by then Chief Justice T. S. Thakur had framed nine questions of law for the Constitution Bench to examine. It had also barred High Court from entertaining petitions on the demonetisation issue, virtually leaving a palpable freeze on litigation in the issue.
The questions framed for the Constitution Bench included whether the Reserve Bank of India notification and the "limited withdrawal" of one’s own money were violations of Articles 14 (right to equality), 19 (freedom of speech, trade, occupation, etc), 21 (fundamental right to protection of life) and 300A (right to property) of the Constitution. The apex court also wants the Constitution Bench to decide whether the very implementation of the notification suffered from "substantive and procedural unreasonableness".
The three-judge Bench had refrained from providing any drastic interim relief in terms of complaints raised by petitioners, including that banks were not honouring the notified ₹24,000 weekly withdrawal limit of money and the expiry of exemptions granted to the public's use of demonetised ₹1,000 and ₹500 notes for essential services and institutions such as railway ticketing and payments at government hospitals and pharmacies. The Supreme Court had in 2016 said it trusted the government to be the best judge of its own economic and fiscal policies. The court had placed its faith in the government' assurances that the policy was triggered to weed out black money, counterfeit currency and choke terror funding.
