The Supreme Court said on Wednesday it is aware of the "Lakshman Rekha'' on judicial review of the government's policy decisions but will have to examine the 2016 demonetisation decision to come to a conclusion about whether the issue has become a mere "academic" exercise.
Observing that when an issue arises before a constitution bench, it is its duty to answer, a five-judge bench headed by Justice S A Nazeer directed the Centre and the Reserve Bank of India to file a comprehensive affidavit on the petitions challenging demonetisation of Rs 500 and Rs 1,000 currency notes.
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.
The top court said in order to declare whether the exercise is academic or has become infructuous, it needs to examine the matter since both sides are not agreeable.
"In order to answer that issue, we will have 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.
"We always know where the Lakshman Rekha is, but the manner in which it was done has to be examined. We have to hear the counsel to decide that," the bench, also comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna said.
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 has to be decided by the top court. He said this kind of demonetisation requires a separate act of Parliament.
The top court has now posted the matter for hearing on November 9, 2022.
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 related matters to a larger bench of five judges for an authoritative pronouncement.
It had framed various questions in the reference order to be adjudicated upon by the five-judge bench which included whether the notification dated November 8, 2016 is ultra vires the provisions of the Reserve Bank of India Act, 1934 and does the notification contravene the provisions of Article 300 (A) of the Constitution.
The three-judge bench had then said that assuming that the 2016 notification has been validly issued under the Reserve Bank of India Act, 1934 whether it is ultra vires Articles 14 and 19 of the Constitution.
Article 300(A) says no person shall be deprived of his property save by the authority of law.
"Whether the limit on withdrawal of cash from the funds deposited in bank accounts has no basis in law and violates Articles 14,19 and 21," the bench had said while referring to one of the issues.
Article 14 provides for equality before the law, while Article 19 relates to freedom of speech and expression and Article 21 deals with the fundamental right to protection of life and personal liberty.
It had said whether the implementation of the impugned notification(s) suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19 and, if so, to what effect.
The top court had framed various other questions and said keeping in view the "general public importance" and the "far-reaching implications" which the answers to the questions may have, "we consider it proper to direct that the matters be placed before the larger bench of five judges for an authoritative pronouncement".