Note Ban: Govt Can’t Decide How Much Money We Can Withdraw

The State is violating rights of the people by deciding cash withdrawal limits, writes Bishwajit Bhattacharyya.

A disturbing feature in the aftermath of demonetisation has been the restrictions clamped on bank depositors from withdrawing cash freely. Bank deposits constitute property of the depositor. Under Article 300A of the Constitution, the right to property is a Constitutional right, which cannot be deprived save by the authority of law; this right cannot be deprived by administrative instructions. The Supreme Court has delivered several judgements on this constitutional principle.

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Breaching Right to Property

In the case of State of Jharkhand Versus Jitender Kumar Srivastava [AIR 2013 SC 3383], the Apex Court held: to take away a “part” of pension or gratuity or even leave encashment without any statutory provision under the umbrage of administrative instructions cannot be countenanced under Article 300A of the Constitution.

The Bench comprising Hon’ble Mr Justice K.S. Radhakrishnan and Hon’ble Mr Justice AK Sikri held that “withholding” these in the absence of rule is impermissible. The Court went on to rule: pension, gratuity etc are not bounties and have been earned by dint of long, continuous and faithful service. It is in the nature of property. The words “part” and “withholding”, as referred to by the Supreme Court, signify that even a partial restriction on the right to “property” cannot be sustained legally without the authority of law.

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Note Ban Legally Unsustainable

A bank depositor keeps tax-paid money in his account. The funds may well be his/her life’s savings, or proceeds of provident fund, pension, provident fund, or any other legitimate income. These depositors are surely not cash hoarders! Why punish them by imposing unreasonable restriction on withdrawal of cash? Just because there has not been any proper plan to fill bank vaults/ATMs with cash after demonetisation ? Who is responsible for this?

Does Section 26 (2) of the RBI Act, 1934, that triggered demonetisation, authorise the Central government to deprive a bank depositor to access his money in cash even for a split second? Surely not! Then, under which law are bank depositors being deprived of their right to properties, even partially or temporarily? The entire exercise, if by administrative instruction, seems to be unsustainable by law.

Today the right to property is not only a constitutional right, but also a human right, held the Supreme Court in the judgement of Tukaram Kana Joshi Versus MIDC [AIR 2013 SC 565 – a Bench comprising Hon’ble Dr Justice B.S. Chauhan and Hon’ble Mr Justice J.S. Khehar]. Though the right to property is neither a basic feature of the Constitution nor a fundamental right, it is now gaining multifaceted dimension in the form of it being a human right, the Apex Court held.

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Right to Property No Less Than Fundamental Rights

Articles 14, 19, and 21 pertaining to the fundamental right to equality, freedom, and personal liberty were inter-linked by the Supreme Court in 1978 in the judgement of Mrs Menaka Gandhi when her passport was impounded.

Today, the right to property under Article 300A [not a fundamental right after Constitution (44th Amendment) Act, 1978 w.e.f 20th June, 1979], by metamorphosis of judicial verdicts, has ascended to the position of a human right, which also flows from Article 21. Thus, the jurisprudence of the right to property is now inching towards inter-linking article 300A with the golden troika – Articles 14, 19, and 21 of the Constitution. This is a welcome development to keep the executive within constitutional bounds.

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Public vs Private Rights

It can be argued, however, that public rights always overlap private rights to property; and in case of public utility, public rights take precedence. This argument emerges from the judicially sanctified concept of “eminent domain”. Yet, if there is no nexus between the objective sought to be achieved by the State and deprivation of the constitutional right to private property, then efficacy of “eminent domain” diminishes.

If, in order to suck out Rs 3 to 4 lakh crore of bank notes, restriction on cash withdrawal is imposed on Rs 105 lakh crore of bank deposits, then this amounts to glaring arbitrariness, and flagrantly violates articles 14, 21 and 300A of the Constitution. I hope the Central Government sees reason, and rolls back cash withdrawal restrictions from banks. This will remove irritants post demonetisation.

(The writer is a senior advocate, Supreme Court, and ex-additional solicitor general of India)

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