When policy decisions get challenged in courts, as is the case with the present government's act of demonetising high denomination notes, it is customary for the government to demand that the judiciary stays within its limits.
Observing Constitution Day on Saturday, Attorney General Mukul Rohatgi said that the judiciary must recognise and respect that there is a "lakshman rekha" that ought not to be crossed. The comment has come in the back drop of the ongoing stand-off between the Supreme Court and the government over judges' appointments. With the Supreme Court agreeing to hear the petitions challenging the validity of the demonestiation policy, the judiciary-government tussle is likely to further escalate. The final judicial outcome will have far-reaching consequences, not just for the balance of powers between the organs of the state, but for the future of constitutional democracy itself.
It is important to remember that Naseer's Egypt, Sukarno's Indonesia and Stalin's Russia were all self-styled democracies. What distinguishes India from them is that we are not a democracy, simpliciter. We are a constitutional democracy.
Since the day it was sworn-in, the present government has been pushing those limits. With the demonetization move, the government may have just crossed the "lakshman rekha."
The boot is on the other foot now.
When a state policy or its implementation is challenged as being contrary to larger public good or violative of constitutional principles, it becomes the duty of court (to quote Justice GS Singhvi from the famous 2G spectrum verdict) "to exercise its powers in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken an oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will."
It is a well-settled principle that the state is bound to act in conformity with the principles of equality, public trust and larger public good. Constitutionalism must be reflected at every state of the decision-making process.
For the moment, in the affidavit filed in the Supreme Court, the government has answered none of these questions. It has defended the move purely on the ground of good intent. Elimination of counterfeit currency, terrorism and black money "operating since Independence" have been cited as government's avowed goals.
As they say, the road to hell is paved with good intentions.
However laudable the objectives may be, the decision will have to meet the test of legally permissible and constitutional limits. Unsuspecting citizens cannot be subjected to collateral damage in the government's "war on black money and corruption." More so, when the government had a whole array of policy options to curb the shadow economy. The onus is on the government to justify why it opted for the most afflictive and draconian option.
"Liberty is power cut into pieces," said Thomas Hobbes. Our constitution safeguards civil rights and civil liberties by both dividing powers (horizontally between three branches of government, and vertically between the centre and states) and adopting fundamental rights.
Has the act of demonetization violated federal principles and fundamental rights? It has grievously affected people's livelihoods and basic liberties. Many people have committed suicide, some have died of shock, some have succumbed because they couldn't buy medical care with the old currency. A large number of people have been deprived of their daily incomes. Worse, the "inconveniences" are unevenly distributed. The poor and lower middle class have been most severely affected, while the affluent sections, with access to plastic money and deep pockets, are better off. The policy also seems to be detached from the socio-economic realities of rural and semi-urban India. Agriculture sector, micro, small and medium enterprises and rural economy have been badly hit. Marriages and private ceremonies have got derailed. Not a day goes by without a tragic story of personal grief being reported in the media.
On the other hand, state government revenues earned from sales tax, stamp duty and excise are expected to take a major hit. Which would mean major cuts in socio-economic welfare programmes and public spending on sectors like health, education, sanitation, drinking water, nutrition and public infrastructure.
Though currency, coinage and legal tender is a union subject, the rights and interests of state governments have inarguably been injured. Whether those who have suffered injury, be it state governments, corporations or individuals, are entitled to damages?
The central government's revenues are also expected to see a slump. Dr. Singh has forecasted a decline of 2 percent in national income. Other forecasts are much gloomier. At the end of the day, some black money might get flushed out, but at what cost?
(Ashish Khetan is a member of AAP and vice chairperson of the Dialogue and Development Commission of Delhi.)
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.
Observing Constitution Day on Saturday, Attorney General Mukul Rohatgi said that the judiciary must recognise and respect that there is a "lakshman rekha" that ought not to be crossed. The comment has come in the back drop of the ongoing stand-off between the Supreme Court and the government over judges' appointments. With the Supreme Court agreeing to hear the petitions challenging the validity of the demonestiation policy, the judiciary-government tussle is likely to further escalate. The final judicial outcome will have far-reaching consequences, not just for the balance of powers between the organs of the state, but for the future of constitutional democracy itself.
It is important to remember that Naseer's Egypt, Sukarno's Indonesia and Stalin's Russia were all self-styled democracies. What distinguishes India from them is that we are not a democracy, simpliciter. We are a constitutional democracy.
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Since the day it was sworn-in, the present government has been pushing those limits. With the demonetization move, the government may have just crossed the "lakshman rekha."
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The boot is on the other foot now.
Advertisement
When a state policy or its implementation is challenged as being contrary to larger public good or violative of constitutional principles, it becomes the duty of court (to quote Justice GS Singhvi from the famous 2G spectrum verdict) "to exercise its powers in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken an oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will."
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It is a well-settled principle that the state is bound to act in conformity with the principles of equality, public trust and larger public good. Constitutionalism must be reflected at every state of the decision-making process.
Advertisement
For the moment, in the affidavit filed in the Supreme Court, the government has answered none of these questions. It has defended the move purely on the ground of good intent. Elimination of counterfeit currency, terrorism and black money "operating since Independence" have been cited as government's avowed goals.
As they say, the road to hell is paved with good intentions.
However laudable the objectives may be, the decision will have to meet the test of legally permissible and constitutional limits. Unsuspecting citizens cannot be subjected to collateral damage in the government's "war on black money and corruption." More so, when the government had a whole array of policy options to curb the shadow economy. The onus is on the government to justify why it opted for the most afflictive and draconian option.
"Liberty is power cut into pieces," said Thomas Hobbes. Our constitution safeguards civil rights and civil liberties by both dividing powers (horizontally between three branches of government, and vertically between the centre and states) and adopting fundamental rights.
Has the act of demonetization violated federal principles and fundamental rights? It has grievously affected people's livelihoods and basic liberties. Many people have committed suicide, some have died of shock, some have succumbed because they couldn't buy medical care with the old currency. A large number of people have been deprived of their daily incomes. Worse, the "inconveniences" are unevenly distributed. The poor and lower middle class have been most severely affected, while the affluent sections, with access to plastic money and deep pockets, are better off. The policy also seems to be detached from the socio-economic realities of rural and semi-urban India. Agriculture sector, micro, small and medium enterprises and rural economy have been badly hit. Marriages and private ceremonies have got derailed. Not a day goes by without a tragic story of personal grief being reported in the media.
On the other hand, state government revenues earned from sales tax, stamp duty and excise are expected to take a major hit. Which would mean major cuts in socio-economic welfare programmes and public spending on sectors like health, education, sanitation, drinking water, nutrition and public infrastructure.
Though currency, coinage and legal tender is a union subject, the rights and interests of state governments have inarguably been injured. Whether those who have suffered injury, be it state governments, corporations or individuals, are entitled to damages?
The central government's revenues are also expected to see a slump. Dr. Singh has forecasted a decline of 2 percent in national income. Other forecasts are much gloomier. At the end of the day, some black money might get flushed out, but at what cost?
(Ashish Khetan is a member of AAP and vice chairperson of the Dialogue and Development Commission of Delhi.)
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.
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