Has challenge to demonetisation become academic? Does the issue survive? Supreme Court to decide today

The Supreme Court is scheduled to take up a batch of 58 petitions challenging the central government’s November 8, 2016 decision to demonetise the currency notes. On September 28, the top court wondered if anything survived in the issue after all these years and said it will first examine whether the matter has become merely academic.

“The first question we examine is whether the issue has become academic and if it can be heard at all,” Justice S Abdul Nazeer heading a five-judge Constitution bench hearing petitions challenging the demonetisation of Rs 500 and Rs 1,000 currency notes had said while fixing it for hearing on October 12.

A counsel appearing for some of the petitioners said the validity of the government decision and individual claims relating to hardships need to be examined.

Solicitor General Tushar Mehta, appearing for the Centre, said that “for all practical purposes, the issues do not survive” and added that he was willing to assist if the bench wants to consider it for academic purposes.

Jutice Gavai asked if “five judges should spend time on academic issues when there is large pendency? Is there time for deciding academic issues?”

Mehta agreed that there are other matters involving rights of citizens following which the court said it will first examine if it has become academic before proceeding further.

On December 16, 2016, a bench headed by then Chief Justice TS Thakur and Justice (retd) AM Khanwilkar, and Justice DY Chandrachud referred the question of the validity of the decision and other questions 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 includes 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.

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. "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.

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 that 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".