On November 8, 2016 the Rs. 500 and 1000 notes were “demonetised”. This move has raised three interesting legal questions. Writ petitions have been filed across the country challenging the legality of demonetisation. Petitions are pending before High Courts of Kerala, Bombay, Delhi, Hyderabad, Gujarat, Karnataka, Calcutta and Allahabad. Till now, only Madras High Court has held that the move is constitutionally valid and refrained from interfering since it is a policy decision of the government. As per media reports, the Supreme Court has consistently refused to stay the high court proceedings. The Apex Court itself is hearing four petitions challenging demonetisation.
Demonetisation is not a novel idea in India. We have experienced two instances before – in 1946 and 1978. Those were also challenged in courts and a rich body of Indian caselaws exist on demonetisation. This case law suggests that although a demonetisation can be done through a notification, a Presidential Ordinance or Parliamentary Act is necessary to:
(1) and (2) cannot be done through a notification. They need a Presidential Ordinance or Parliamentary Act. Otherwise, although the demonetisation would be legal, RBI would continue to remain under a legal obligation to keep on exchanging the old notes with new ones. That would frustrate the ultimate aim of demonetisation – clamping down on black money stored in high denomination notes since RBI will have no option but to exchange them with new notes.
This article explains the concept of `legal tender’, gives a brief overview of the legal challenges against demonetisation in 1946 and 1978, the jurisprudence developed by the courts and accordingly, explains why a Parliamentary law is necessary to make the 2016 demonetisation fool-proof. It answers Question 2 of the three interesting legal questions about demonetisation.
Demonetisation and legal tender
Demonetisation is the act of taking away the ‘legal tender’ character of any specific denomination or series of banknotes. So, it is useful to first understand the legal meaning of ‘legal tender’.
Across history commodities have been widely used as medium of exchange. However, for a commodity to be accepted as a medium of payment, the receiver must be able to assess the exact intrinsic value of the commodity. Otherwise, the payer could easily get away by giving low quality commodities in return for more expensive goods. Therefore, transaction in commodities needs expertise and cannot be done any lay person. This effectively restricted usage of commodities as currency.
To avoid this problem, states started declaring certain commodities as ‘legal tender’ and guaranteeing their value by law. Such value fixed by law would be independent of the intrinsic value of the underlying commodity and therefore, could be used as a medium of exchange by everyone without having to assess the quality of the commodity. For example, in 1637, the government of Massachusetts declared white wampum as ‘legal tender’ for debts under twelve pence at the rate of four white beads per penny. Today paper currency may have replaced commodities like white wampum as `legal tender’, but the basic logic remains the same.
Black’s Law Dictionary defines the word ‘tender’ to mean ‘an unconditional offer of money or performance to satisfy a debt or obligation’. Anything can be ‘tendered’ in payment of debts as long as the creditor accepts it. A creditor will not accept any item whose intrinsic value is less than the value of debt. The only exception is a ‘legal tender’. A creditor will accept legal tender even though it lacks equivalent intrinsic value because its value is guaranteed by the state itself through law. Hence, anything whose value for the purposes of payment is independent of its intrinsic value because of an explicit state guarantee through law is a ‘legal tender’.
In India, section 22 of the RBI Act, 1934 gives RBI the sole right to issue banknotes. Section 26(1) states that every banknote shall be a legal tender in India in payment or on account for the amount mentioned on it and shall be guaranteed by the Central Government. So by default a banknote issued by RBI commands the value mentioned on it for any transaction in India since it is a legal tender guaranteed by the Central Government. This default setting can be changed in three ways.
On January 12, 1946, the Governor General of India promulgated the High Denomination Bank Notes (Demonetisation) Ordinance, 1946. It declared that the high denomination bank notes of Rs. 500, 1000, and 10,000, issued by RBI would cease to be legal tender on expiry of January 12, 1946. Section 4 of the Ordinance specifically prohibited transfer or receipt of such notes after January 12. Section 6 provided that notwithstanding anything to the contrary in the RBI Act, 1934, such bank notes could be exchanged for valid legal tender subject to a detailed procedure within January 22, 1946. Extensions could be given by the Central Government. Section 7 of the Ordinance imposed penalties for providing false information during the exchange process. Section 9 imposed a blanket ban on any legal proceeding against any person for any action taken under the 1946 Ordinance.
This Ordinance led to three types of legal challenges.
These ligitation possibly nudged the Government to clarify the law permanently. Schedule I of the Jammu And Kashmir (Extension Of Laws) Act, 956 amended the RBI Act and inserted section 26A to clarify that notwithstanding any law to the contrary, all high denomination notes of Rs. 500, 1000 and 10,000 shall cease to be legal tender from January 13, 1946.
The next round of demonetisation happened under the Janata government in 1978. Morarji Desai was the Prime Minister at the time. On January 16, 1978, the President promulgated the High denomination Bank Notes (Demonetisation) Ordinance, 1978. This Ordinance was subsequently repealed and replaced by the High Denomination Bank Notes Demonetisation) Act, 1978 on March 30, 1978. By this law, banknotes of denominations 1000, 5000 and 10,000 issued by RBI ceased to be legal tenders from January 17, 1978. Section 4 prohibited transfer or receipt of such notes after January 16, 1978. Section 7 provided for exchange of these high denomination banknotes with valid legal tender from January 17 to January 19, 1978. Section 8 provided for exchange of such notes even after January 19 but up to January 24, 1978 provided RBI was satisfied that there was genuine ground for delay. Section 10 provided for penalties and section 11 provided for offences. This 1978 Act also ran into the same legal challenges as the 1946 Ordinance.
The liabilities of the Issue Department shall be an amount equal to the total of the amount of the currency notes of the Government of India and banknotes for the time being in circulation.
On November 8, 2016 demonetisation of the Indian Rupee was effected through three legal instruments:
Both MoF and RBI issued subsequent notifications to clarify and adjust for additional circumstances. However, unlike 1946 and 1978, the 2016 demonetisation is not backed by any Presidential Ordinance or Act of Parliament. Therefore, the 2016 demonetisation cannot be challenged on the ground of temporary nature of an Ordinance. Further, since the Madras High Court has upheld the constitutionality of MoF Notification 1, let’s assume that the right to property challenge cannot be taken anymore. Therefore, the only legal question that still remains unresolved is: whether RBI’s statutory obligation to exchange old notes with new ones continues?
RBI’s statutory obligation
RBI’s liability continues even for cancelled legal tender: RBI banknotes are issued by RBI’s Issue Department, which is separate and wholly distinct from the Banking Department. According to section 34 of the RBI Act:
Liability of Issue Department = Total amount of currency notes of Government of India + banknotes for the time being in circulation
MoF Notification 1 took away the legal tender status of Rs. 500 and Rs. 1000 bank notes. However, as on date, there is no legal prohibition on their circulation. Legally speaking, they can be presumed to be out of circulation only if there is a legal prohibition on their transfer or receipt. For instance, in 1946 and 1978, the Ordinances and the Parlimanentary Act specifically prohibited the transfer or receipt of banknotes which had ceased to be legal tender. In 2016, this has not yet been done. Neither can such prohibition be imposed through a notification under section 24 or 26 of the RBI Act.
Therefore, the Rs 500 and 1000 notes that have ceased to be legal tender can still legally be in circulation in India. Following Delhi High Court’s decision in Bimladevi v. Union of India (1982), they will continue to form part of the liability of RBI’s Issue Department till their transfer or receipt is prohibited by an Ordinance or Parliamentary law. RBI’s obligation to exchange continues: Under section 39 of the RBI Act, RBI is under a statutory obligation to exchange banknotes with other legal tender. RBI cannot refuse to exchange the old Rs. 500 and 1000 with new legal tender based on a notification under section 26(2). An Ordinance or Parliamentary Act is necessary to specifically override this statutory duty of RBI. For instance, section 6 of the 1946 Ordinance and section 7 of the 1978 Act specifically mentioned that notwithstanding anything contained in the RBI Act exchange of notes held by persons (other than banks) will stand restricted after a certain date. In absence of such a provision in an Ordinance or Parliamentary law, RBI’s obligation to exchange notes under section 39 of RBI Act will continue based on the Calcutta High Court’s judgement in Dominion of India v. Manindra Land And Building Corporation Ltd. (1952) as discussed above. Further, to be constitutionally valid, the Ordinance or Parliamentary Act must provide for a reasonable mechanism to exchange the old notes with new legal tender. This does not prohibit imposition of a hard deadline for such exchange.
The current demonetisation move is not legally fool-proof. To be legally ring-fenced, an Act of the Parliament is needed, although a Presidential Ordinance can serve the purpose in the interim. The Parliamentary Act must have at least three features:
In the absence of such a law, RBI’s obligation to exchange the old banknotes for new banknotes subsists irrespective of any timeline mentioned in any notification. The RBI Governor’s signed
promise on every note to pay the bearer will have to be honoured till such a law is passed. This answers Question 2.
It will be interesting to see if the Government considers using the money bill route to legislate on this.
Pratik Datta is a researcher at the National Institute of Public Finance and Policy. Rajeswari Sengupta is a researcher at the Indira Gandhi Institute of Development Research.