The dissenting, minority judgement of Supreme Court Justice Nagarathna, in the Writ Petition Vivek Narayan Sharma versus Union of India—popularly known as the demonetisation case—has regurgitated the vexed issue of whether the RBI is sufficiently autonomous and resilient in discharging its mandate.
India is new to autonomous regulation.
Autonomous regulators were a rarity till the 1980s, even in Europe, till the tailwinds of privatisation necessitated autonomous regulators, thereby, expanding the tribe. In India, autonomous regulatory agencies multiplied post the 1991 Liberalisation which spawned autonomous regulators for the securities market (SEBI 1992), telecom (TRAI 1997), major ports (TAMP 1997), electricity (CERC 1999), Insurance (IRDA 2000) and Pensions (PFRDA 2013).
RBI- the only autonomous regulator which preceded the Constitution of India
The Reserve Bank of India (RBI) constituted under the RBI Act 1934 predates all other statutory, autonomous regulators. Its longevity and resilience are consistent with the sensitive and highly technical nature of its work with economy-wide ramifications, which abjures frequent changes to either the substance of its mandate or the autonomy with which it is necessarily endowed. It has also earned its autonomy through a judicious balance between technical excellence and its ability to be in tune with the government of the day.
It is no coincidence that India’s international credit rating is the highest within the band of comparator economies with per capita income at a lower-middle level. Indian bonds are ranked BBB- (stable) by Standard and Poor’s (S&P) on par with higher per capita income economies like Mexico, Panama, Uruguay, Romania, and Cyprus. Moody’s ranks India at Baa3 on par with Italy, Portugal, and Romania. Given this context, preserving the autonomy of the RBI is not only good for India’s international image as a progressive, democracy but is also critical for showcasing India’s low credit risk credentials.
2016 not the first demonetisation
Demonetisation, implemented suddenly via a gazette notification on 8 November 2016, withdrew legal tender status from high denomination notes comprising 86 percent of the currency in circulation and expectedly, led to economic disruption and hardship till the RBI remonetised the economy a few months later.
2016 was not India’s first wholesale withdrawal of currency, in exchange for new currency. Similar measures were implemented in 1946 and 1978. Media reports suggest on both occasions RBI did not support the measure. But the government of the day went ahead and legislated the withdrawal of legal tender status using its plenary powers under entry 36 of the Union List of the Constitution of India, relating to “Currency, Coinage and legal tender; foreign exchange”.
In 2016, unusually, demonetization was implemented through a gazette notification under section 26 (2) of the RBI Act. A plain reading shows that this provision is an enabler for the RBI to “recommend” the withdrawal of currency of “any” series and of “any” denomination to the government—a routine feature, to deal with old or compromised (due to counterfeiting) currency series. Even in such routine matters, notwithstanding the high technical status of the RBI, the government is not bound by its advice, principally because as the guarantor of all currency, it has the final say.
RBI did, however, dutifully follow the motions of submitting a recommendation, but only in response to a formal government letter requesting consideration of withdrawal of all series of high denomination notes and submission of a plan for implementation of the scheme. Reportedly, this had been under discussion for six months before the letter was written.
RBI is unlikely to have independently chosen wholesale demonetisation of high denomination notes as the instrument of choice for reducing black money. The reason is technically, the reprieve is temporary—a one-time shock impacting only the current holders of black money—whilst leaving the systemic demand for its generation intact. Also, media reports in October 2016 suggested that RBI was set to issue INR 2,000 currency notes which had already been printed—a sensible, efficiency-enhancing measure, conserving space and containing carbon emissions in transport—albeit also assisting the cash-based black money economy. The about-turn by RBI a month later remains unexplained.
Ticking the boxes
The majority judgement by four senior justices upheld both the actions of the RBI and the government in implementing the decision to withdraw all existing notes of INR 500 and INR 1,000 and to end their status as legal tender. The minimum legal formalities required for a recommendation were followed. Post the 7 November letter of the government, a meeting of the Central Board of the RBI was convened the following day on 8 November. The quorum requirement of four directors, of which not less than three must be other than connected officials, appointed from industry, non-state entities and the local boards, was also complied with. Within hours of the end of the meeting, the gazette notice was issued and the Prime Minister announced the decision.
The majority judgement focused on the mechanics of the process and concluded that the measure was legally sound. All the required boxes had been ticked. It made light of the fact that section 26(2) had not been used during the earlier episodes of wholesale withdrawal of high currency notes. It rationalized that, since section 26(2) empowers the RBI only to recommend to the government, it matters little whether the proposal originated in the RBI or the government.
The majority judgement quotes from Volume III of the “History of the Reserve Bank of India “how business was done at the time of the January 1978 demonetisation, when Shri Morarji Desai was prime Minister and Shri Hirubhai Patel, previously an Indian Civil Service officer, was the finance minister. On 14th January 1978, a senior RBI official was summoned to Delhi for undisclosed urgent work. On arrival, he was told to draft an ordinance for withdrawing legal tender status for high-denomination currency. Never having done this before, he did the next best, smart thing. He asked for the 1946 ordinance and used the template for the draft 1978 ordinance which was approved by the President of India in the early hours of the very next day and became effective the same day.
The majority judgement perceives no daylight between the government and the RBI which work as a team—the RBI advises on technical issues whilst the government manages the broader political, external, and domestic economic and security challenges and exercises the plenary power to legislate.
Procedural safeguards for preserving RBIs autonomy.
The minority judgement takes a differentiated view of the RBI Act. It agrees that the final authority for demonetisation vests with government. This is why only government can use its plenary powers to proceed through an Ordinance (in the interests of speed and secrecy if Parliament is not in session) or legislation to withdraw legal tender status from currency before RBI can extinguish that liability from its books and the Union government can extinguish its guarantee. But there remains the matter of safeguarding the technical autonomy of the RBI.
Justice Nagarathna justifies why it is necessary for the RBI to be the sole initiator under Section 26 (2). It acts as a proxy for RBI’s autonomy in technical matters by reserving the power to recommend exclusively for the RBI. Also, a fundamental principle in administrative law is that once legislation clearly defines a process, it must be followed. Another practical reason could be to preserve an “audit trail” of how decisions were taken to exercise oversight over delegated power—in this case over the RBI if a proposal does not work as planned.
Under the “innovative” consultative process, adopted by the government in 2016, responsibility gets diffused across government and the RBI. This could potentially weaken the resolve of the RBI to retain its technical focus and credibility, particularly against politically convenient but technically inferior measures, not validated by the fourth test of “the principle of proportionality” that the least cost and most effective alternative must be used to achieve the stated purpose—in this case controlling black money, counterfeiting or terrorist financing. Most importantly, once iron-clad processes for recording dissent cease to exist, over time, the habit of principled dissent also dissipates.
Two unanswered questions
Why was the suave Arun Jaitley, then Finance Minister and legal luminary, unable to get the RBI on board, without the awkward (and self-damning) construct of the RBI merely responding to a government request whilst reiterating that government was the originator of the demonetisation proposal? Did Urjit Patel, Governor RBI refuse voluntary support, as did his predecessors C.D. Deshmukh in 1946 and I.G. Patel in 1958? Only time and “fly on the wall” reminiscences can tell.
Why was precedent not followed? Possibly the political challenges emanating from the ongoing negotiations for a new Goods and Services Tax legislation, combined with the slender majority of the BJP (without including NDA allies) in the 2016 Lok Sabha and the dominance of the opposition in the Rajya Sabha, militated against associating NDA allies closely with demonetisation—a necessity, if the ordinance route was followed. The in-house administrative route might have appeared neater and more secret.
This episode confirms that administrative process rigidities alone, are rarely sufficient to ensure good outcomes. Nor can institutions be built assuming that highly motivated, high-minded individuals would safeguard them. The best safeguard against human frailties is an institutional architecture, which diffuses power widely but constrains its permissible exercise narrowly for optimum outcomes.
This opinion piece first appeared in orfonline.org on January 7, 2023 https://www.orfonline.org/expert-speak/dissecting-the-demonetisation-verdict/