Editorial

Judicial review on public issues including demonetisation is need of the State

The Supreme Court saying that it is aware of the “Lakshman Rekha” on judicial review of government policy decisions surprised and put the nation to dismay and accute shock. There is no Laxman Rekha for the apex Court including to decide on merits of each case of the public importance.

There every public policy permits the apex Court to examine any issues touching to the Constitution of India. There is a need to examine the 2016 demonetisation decision in letter and spirit. 2016 demonetisation decision now has become a mere “academic” exercise. The nation is glad that a five-judge bench headed by Justice S A Nazeer said when an issue arises before a Constitution bench, it is the duty of the Supreme Court to answer.

Attorney General R Venkataramani submitted that unless the Act on demonetisation is challenged in a proper perspective, the issue will essentially remain academic.

The High Denomination Bank Notes (Demonetisation) Act was passed in 1978 to provide in public interest for demonetisation of certain high denomination bank notes in order to check illicit transfer of money harmful to the economy which such currency notes facilitate.

In order to declare whether the exercise is academic or infructuous, it needs to examine the matter since both sides are not agreeable. On many issues the apex court compromised the largest litigants the Union Government.

“In order to answer that issue, Supreme Court is duty bond to hear and give an answer whether it’s academic, not academic or beyond the scope of judicial review. The point in the case is the government policy and its wisdom which is one aspect of the matter.

The public review is itself need of the State. SC knows how to overcome the Lakshman Rekha if any State exigencies occur, The manner in which is being done needs to followed on. Indeed SC has to hear the counsel to decide by the bench comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna.

Solicitor General Tushar Mehta, appearing for the Centre, said the court’s time should not be “wasted” on academic issues.

Objecting to Mehta’s submission, senior lawyer Shyam Divan, representing petitioner Vivek Narayan Sharma, said he was surprised at the words “waste of constitutional bench’s time” as the earlier bench had said these cases must be placed before a constitution bench.

Senior advocate P Chidambaram, appearing for one of the parties, said the issue has not become academic and it has to be decided by the top court.

He said this kind of demonetisation requires a separate act of Parliament.

On December 16, 2016, a bench headed by then Chief Justice TS Thakur had referred the question of the validity of the decision and other issues to a larger bench of five judges for authoritative pronouncement.

It had framed various questions in the reference order to be adjudicated by the five-judge bench which included whether the notification dated November 8, 2016 is ultra vires provisions of the Reserve Bank of India Act, 1934 and does the notification contravene the provisions of Article 300 (A) of the Constitution. Article 300(A) says no person shall be deprived of his property save by the authority of law.