Table of contents | |
Facts | |
Issues Raised | |
Legal Provisions | |
Contentions | |
Rationale | |
Dissenting Opinion | |
Conclusion |
On 16 December 2016 three Judges bench of the Hon'ble Supreme Court framed 9 questions but the Constitutional bench reframed the questions into the following 6 issues:
The court held that under Section 26(2) of the RBI Act, the Central Government can exercise its power for all series of bank notes. And just because of the fact that on the earlier two occasions, it was done through the plenary legislation, it does not mean that such power would not be available to Central Government under section 26(2).
The fact that power has to be exercised on the recommendation of the Central Board is itself a safeguard hence section 26(2) of the RBI Act does not provide for excessive delegation.
The notification also satisfies the test of proportionality and, therefore, it cannot be struck down on the said ground. The period provided for the exchange of the notes cannot be said to be unreasonable. The Reserve Bank of India does not possess independent power under section 4(2) of the 2017 Act to accept the demonetized notes beyond the period specified in notifications issued under section 4(1) of the 2017 Act.
The dissenting opinion was given by Justice B.V. Nagarathna and it has been laid down as follows:
The Central Government has the power to demonetize all series of bank notes of all denominations but the Central Board of the RBI under section 26(2) of the RBI Act cannot recommend all series of bank notes of all denominations.
Section 26(2) of the RBI Act is applicable only when the recommendation is initiated by the Central Board by way of a recommendation being made to the Central Government.
After getting the recommendation from the Central Board the Central Government may choose to do it or not to do it. If the Government accepts the recommendation, it may issue a notification in the Gazette in this regard.
The Central Government has the right of initiating demonetization but it can only be done by way of legislation and not by way of issuance of notification under section 26(2) of the RBI Act.
If the Central Board has the power to recommend demonetization of "all" series or "all" denominations of bank notes then this will amount to a case of excessive vesting of powers with the Bank.
Here in this case the demonetization was initiated by the Central Government itself and therefore, it cannot be done by way of issuance of notification under section 26(2) of the Act.
The decision-making process was tainted as the Central Board acted at the behest of the Central Government and didn't render an independent opinion to the Government.
Therefore, the notification issued under section 26(2) of the RBI Act is unlawful and the subsequent Ordinance of 2016 and Act of 2017 are also unlawful.
The Hon’ble Supreme Court upheld the decision of demonetization and declared it to be lawful with a 4:1 majority. The Apex Court held that the Central Government has the power to demonetize all series of banknotes of a particular denomination under Section 26(2) of the RBI Act provided that the recommendation has to be made by the Central Board. The process has to be initiated by the Central Board. The impugned notification satisfies the test of proportionality also and therefore, cannot be struck down on the said ground. The Court also laid down that there is an inbuilt safeguard in Section 26(2) of the RBI Act itself hence there is no excessive delegation of power. However, Justice B.V. Nagarathna disagreed with all of these and formed a dissenting opinion.
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1. What is the case of Vivek Narayan Sharma v. Union of India about? |
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