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On Monday, 2 January, a constitution bench of the Supreme Court pronounced its verdict on pleas challenging the demonetisation exercise carried out by the Narendra Modi government in November 2016.
Yes, the same exercise that had led to long queues outside banks, ATMs swiftly running out of cash and people scampering helplessly amid piles of currency notes that no longer held validity.
Stills of People standing in long queues to access ATMs.
(Photo: PTI; Altered by The Quint)
But the apex court decided to uphold the validity of the exercise. Or at least four of the five judges on the bench did. What stood out markedly, however, was the sole voice of dissent.
And whose voice was it?
Justice BV Nagarathana – the junior-most and the only woman judge on the bench.
Within hours of the judgment, several Twitter users equated her dissent to that of Justice HR Khanna against the majority verdict in the infamous ADM Jabalpur case (which had placed riders on right to liberty).
What Did Justice Nagarathna Say in Her Dissent? Highlights
Disagreeing with the four other judges on the bench, Justice Nagarathna unambiguously stated that the demonetisation was an unlawful exercise, even as she maintained that it was well intentioned.
But what was her reasoning?
*Demonetisation of all series of currency notes at the instance of the government is far more serious than that of a particular series by the bank. Thus, such an exercise ought to be carried out through a legislation (as opposed to an executive notification, which is what happened).
“...Parliament which is the fulcrum in our democratic system of governance, must be taken into confidence…Parliament is...a “nation in miniature”; it is the basis for democracy.”
"...on a matter as critical as demonetisation, having a bearing on nearly 86% of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure would have lent legitimacy to the exercise.”
*Section 26(2) of the RBI act says that on recommendation of the Central Board, the Central Government may, by notification in the Gazette of India, declare that, any series of bank notes of any denomination shall cease to be legal tender. However, the term "any series" cannot be construed to mean "all series".
"If the word “any” is not given a plain grammatical meaning and interpreted to mean “all series of bank notes” of “all denominations”, it would vest with the Central Board of the Bank unguided and unlimited powers which would be ex facie arbitrary and suffer from the vice of unconstitutionality as this would amount to excessive vesting of powers with the Bank."
*The Reserve Bank of India (RBI) did not show any independent application of mind in this matter.
“The use of the words/phrases such as, “as desired” by the Central Government; Government had “recommended” the withdrawal of the legal tender of existing Rs.500/ and Rs.1,000/notes; recommendation has been “obtained”; etc., are self-explanatory. This demonstrates there was no independent application of mind by the Bank. Neither was there any time for the Bank to apply its mind to such a serious issue. This observation is being made having regard to the fact that the entire exercise of demonetisation of all series of bank notes of Rs.500/ and Rs.1,000/ was carried out in twenty four hours.”
But Who is Justice Nagarathna? What Has She Done Before?
Daughter of former Chief Justice of India ES Venkataramiah, Justice Nagarathna received her LLB degree from Faculty of Law, Delhi University, and joined the Bar Council of Karnataka in 1987.
Prior to her appointment as a judge of the Supreme Court in 2021, she served as a judge of the Karnataka High Court for 13 years.
Former Chief Justice of India ES Venkataramiah.
(Photo: Supreme Court Website)
JUDICIAL PRONOUNCEMENTS
While the demonetisation dissent might be her most prominent judgment so far as a Supreme Court judge, Nagarathna's time at the Karnataka High Court was marked by several notable orders and observations. These included:
In 2012, she was part of a division bench that directed the Centre to consider formulating a statutory framework for regulating broadcast media, amid a surge of fake news and its unlawful ramifications. “While truthful dissemination of information is an essential requirement of any broadcasting channel, sensationalism in the form of ‘Breaking News', ‘Flash News' or in any other form must be curbed,” the bench said.
In 2020, she was part of a division bench that upheld the Karnataka government’s decision to direct all universities (both State-governed as well as private) to adopt a uniform mechanism to promote undergraduate and post-graduate students of intermediate semesters, in consideration of the COVID-19 pandemic.
In 2021 she was part of a bench that reportedly urged the Karnataka government to resume mid-day meals. It rejected the state government’s proposal to reopen schools, but refuse mid-day meals in those situated in areas where COVID cases had shot up. “Right to Education is a Fundamental Right under Article 21A. The provision of mid-day meal will become a fundamental right, as you cannot ask them to study on an empty stomach,” the bench had remarked.
AND IN THE SUPREME COURT…
Justice Nagarathna has passed other orders of note as a Supreme Court judge as well. In September 2022, a bench of Justices Ajay Rastogi and Nagarathna reiterated that bail applications ought to be decided as quickly as possible.
"Although we are not supposed to give any guidelines for the disposal of bail applications, at the same time we always expect that bail applications must be decided as expeditiously as possible and not be posted in due course of time. (sic)"
IN OTHER NEWS (BEYOND JUDICIAL PRONOUNCEMENTS)
In 2009, Justice Nagarathna, along with one other Karnataka High Court judge as well as the then Chief Justice PD Dinakaran, was unlawfully detained by lawyers (who were protesting against Dinakaran amid allegations of corruption against him). She was quoted by Hindustan Times as having said afterwards:
“We are not angry, but we are sad that the Bar has done this to us. We have to hang our heads in shame.”
Justice Nagarathna is slated to make history by becoming the first woman Chief Justice of India (in 2027).
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