Challenge To Demonetisation Not Academic : Supreme Court Seeks Affidavits Of Union & RBI

Persuaded by the petitioners to change its preliminary view that the challenge to demonetisation has become an academic issue, the Supreme Court on Wednesday commenced hearing the legal arguments raised by petitioners on merits.After the arguments of the day, the Court asked the Union of India and the Reserve Bank of India to file a comprehensive affidavit in response to the petitioners' arguments, especialy the one that Section 26(2) of the Reserve Bank of India Act does not authorize the Union to completely cancel currency notes of particular denominations. The petitioners argue that Section 26(2) empower the Centre to cancel currency notes of a particular series and not the entire currency notes. The bench also said that it wants to see the documents relating to the RBI Board meetings ahead of the announcement of the demonetisation. The case will be next considered on November 9.A Constitution Bench comprising Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna is considering 58 petitions which challenge the decision taken by the Central Government to demonetise the currency notes of Rupees 500 and 1000 denominations.On the previous hearing date (September 28), the Court had observed that it will first examine whether the petitions challenging demonetisation have become academic.While Attorney General for India R Venkataramani and Solicitor General of India Tushar Mehta repeatedly asserted that the issue has become academic in view of the passage of 6 years, Senior Advocates P Chidambaram and Shyam Divan contended that the validity of the Government's decision was still open to challenge. The senior lawyers appearing for the petitioners raised the argument that the Government lacked the power to cancel the currency notes through an executive order and stressed that the issues hold relevance for the future as well.Persuaded by the petitioners' arguments, the bench observed that the issue may not have become academic. The bench also said that it has the duty to answer the issues referred to it by the Constitution Bench and that it has to answer them "one way or the other for posterity".A detailed account of today's exchange is given below :When the matter was taken today, Solicitor General of India Tushar Mehta told the bench that the issues are academic and the individual cases of hardships could be addressed independently. SG said that the Court's time need not be "wasted" on academic issues.Senior Advocate Shyam Divan, appearing for some petitioners, expressed astonishment at the expression "wastage of time" when issues of constitutional importance have been referred. Divan said that he has produced a compilation of the various orders passed by the Constitution Bench and also smaller benches indicating the issues involved in the case.Justice Nagarathna said "When issues of constitutional importance are referred, it is the duty of the court to answer them. But in this case, has the issue not become fait accompli?".Senior Advocate P Chidambaram disagreed and said that the issue are very much live. Attorney General for India R Venkataramani expressed the view that the issues are now academic. "When the Act is not challenged, the notifications cannot be challenged, that too without a context. The issues are academic and there are political implications", the AG said."If the issue has academic, there is no point in wasting the court's time. Should we take this up at this stage after passage of time? We can deal with individual issues", Justice Nazeer suggested.Chidambaram said that the demonetisation carried out in 1978 was through a separate Act of the Parliament unlike the 2016 decision. So, the legal issue whether the Section 24 and 26 of the Reserve Bank of India Act can be invoked to demonetise currency notes is very much alive. If the issue is not settled, the government can repeat the same in future. "Whether the demonetisation of this kind withdrawing 86% of currency notes in circulation requires a separate law by the Parliament", Chidambaram framed the question.Seemingly moved by Chidambaram's arguments, the bench turned to the Attorney General seeking his response."Ultimately, what are they seeking for?", AG asked."Perhaps we cannot undo what has been done. Whether it can be done in future...", Justice Bopanna said."Are we in an advisory jurisdiction?", AG asked."This is not advisory jurisdiction, whether the power can be used in future is the question", Justice Gavai commented. Justice Nazeer added that many landmark judgments of the Supreme Court came in "advisory" jurisdiction and cited the example of SR Bommai case."It is not advisory jurisdiction. This is about declaration of law", Chidambaram said. He referred to Article 142 of the Constitution to say that the Supreme Court has the power to declare what is the correct law.AG repeated that the questions cannot be gone into in the "abstract". He also said that the Court may be entering into a "wide range of...

Challenge To Demonetisation Not Academic : Supreme Court Seeks Affidavits Of Union & RBI

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