I got 99 Problems But The 100 Rupee Note Ain't One

While sacks of money are burning in Bareilly in Uttar Pradesh, The Witness Stand is back with its second post where we examine the collective shock of the Prime Minister’s announcement where 500 and 1000 Rupee denomination notes ceased to be legal tender as of 8 November, 2016 at 23:59 PM.

The authors of this post understand that this is a major executive decision and we do not intend to take a political stance or affiliate with any political party through the course of our discussion. We will analytically view this move by examining legal provisions and in the event we discuss the practical implications of this measure, we will analyse arguments from both sides of the (Vote/Reserve) bank.

Image credits - allindiaroundup.com

This is a measure taken by the Central Government and the Reserve Bank of India (“RBI”) for the following reasons according to the Ministry of Finance Notification dated 8 November, 2016:

·   1) To combat the adverse effects on the economy caused by counterfeit notes in the denominations of 500 and 1000, as it has been found to be ‘difficult’ to easily identify genuine bank notes from the fake ones;

·   2) In light of the large recoveries of cash and black money made by the law enforcement agencies, it has been seen that these denominations are commonly used for storing unaccounted wealth;

·   3) It has also been taken as a measure to protect national security, as it has been found that that fake currency in this denomination is being used for financing  activities like drug trafficking and terrorism.

The actual string of events behind this sudden move is not public information yet, but with the help of the media, we are able to piece together bits and pieces of the puzzle. It is rumoured that Pakistan had a mint in Peshawar where only fake Indian currency notes, mostly in 500 and 1000 rupee note denominations were being printed and terrorist organisations as well as international criminal networks were being used to push fake currency into India. Intelligence agencies had also previously claimed that the Pakistan printing machinery had achieved a "zero-error counterfeit capability" in printing fake Indian notes. In light of this influx of black money and threat to our national security, this move has been welcomed and criticized by the people of India who heard about this new policy from the Prime Minister's address to the nation on 8 November, 2016. Let us examine the legal background of this move in detail.

Image credits - Times of India 

What is the Legal Basis for this De-Monetization Measure?

This measure has two wide impacts:

• On the flow of currency in the economy by people trading money for commodities and goods

•  On the ability of people to procure currency from their accounts by withdrawing money from the bank or the ATM

With respect to the first, the concerned legislation is the RBI Act, 1934 and with respect to the second, the concerned legislation is the Payment and Settlement Act, 2007.

The RBI Act, 1934

The RBI was established for the purpose of regulating the issue of Bank notes and maintaining the currency reserves of the Country. The Preamble of the RBI Act mentions that it was created for the purpose of maintaining monetary stability in the country.

Section 24 of the RBI Act deals with the denomination of notes. Section 24 (1) of the RBI Act reads –“Subject to the provisions of sub-section (2), bank notes shall be of the denominational values of two rupees, five rupees, ten rupees, twenty rupees, fifty rupees, one hundred rupees, five hundred rupees, one thousand rupees, five thousand rupees and ten thousand rupees or of such other denominational values, not exceeding ten thousand rupees, as the Central Government may, on the recommendation of the Central Board, specify in this behalf.” 

Section 24 (2) of the RBI Act reads as –“The Central Government may, on the recommendation of the Central Board, direct the non-issue or the discontinuance of issue of bank notes of such denominational values as it may specify in this behalf.”

What is this Central Board?

The Reserve Bank's affairs are governed by a central board of directors. The board is appointed by the Government of India under the provisions of the RBI Act.

Section 26 of the RBI Act deals with the legal tender character of notes.Section 26(2) of the RBI Act reads –“On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification.While on a cursory reading, it may seem like both the sections prevent the circulation of a certain denomination from the market, there is a marked difference between stopping circulation of a currency and deeming it to not be legal tender.”

For example, the RBI discontinued currency issued before 2005 in January, 2014. The press release reads -“As you are aware, RBI has been following a policy of phasing out certain series of banknotes from time to time. It has now been decided that all old series of banknotes issued prior to 2005 will be completely withdrawn from circulation.”

In contrast, the RBI notification issued yesterday reads - “Rupees 500 and 1000 denominations of Bank Notes of the existing series issued by Reserve Bank of India (hereinafter referred to as Specified Bank Notes) shall cease to be legal tender with effect from 9th November, 2016.”

This means that not only will the 500 and 1000 rupee denomination be discontinued; it would have no value as legal tender anymore. The RBI has also introduced one new currency denomination – the 2000 rupee note and the 500 rupee note which would be printed in a fresh format (with an inset letter E). The 2000 rupee note will be printed two ways – one with an inset letter (letter R) and one without an inset letter. 

Image credits - ndtv.com

What are inset letters?

Inset letters in Indian currency is an extremely interesting but little known concept. Inset letters are a security feature in bank notes, to differentiate the distinct series of bank notes and to identify the printer of the currency. In India, there are commonly 4 printers in different States employed by the RBI to print currency namely Salboni, West Bengal; Dewas, Madhya Pradesh; Mysore, Karnataka and Nashik, Maharashtra and each of them have been allocated separate alphabets.

The Payment and Settlements Act, 2007

This Act regulates and supervises the payment systems in India and authorizes the RBI as the authority for the purpose of regulation and supervision of payment systems. Payment System is defined under Section 2(i) of the Payments and Settlements Act and includes systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations’. Hence, all your ATM transactions fall under the ambit of payment systems which are regulated by the RBI, though not directly under the RBI Act. 

The RBI issued another notification on November 8, 2016 titled - 'ATMs –Non-dispensing of Old High Denomination Notes – Closure of operations'. Under this notification, the following are directives issued for the Banks with respect to the functioning of ATMs. There are:

•  Stop dispersing 500 and 1000 rupee denomination notes (called Old High Denomination notes in the notification) from the midnight of 8 November, 2016.
• The ATMs may resume functioning from November 11, 2016 upon their recalibration to dispense bank notes of only ₹ 50 and ₹ 100 denominations.

The RBI derived the power to do this from Section 10 (2) and Section 18 of the Payment and Settlement Act. 

Section 10(1) of the Payments and Settlements Act gives the RBI the power to prescribe directions for the following: 

1. Timings to be maintained by the payment systems

2. Manner of transfer of funds within the payment system

3. Other standards to be complied with the payment systems generally.

     Section 10(2) of the Payments and Settlements Act reads as –“Without prejudice to the provisions of sub-section (1), the Reserve Bank may, from time to time, issue such guidelines, as it may consider necessary for the proper and efficient management of the payment systems generally.”

Section 18 of the Payments and Settlements Act gives the RBI a very wide scope to implement any direction with respect to payment systems affecting domestic transactions that it deems fit in public interest. 

Hence any measure taken by the RBI with respect to closure of all ATMs across the country on a certain date and maintenance of only a certain denomination of currency in the ATM is possible because of the above-mentioned sections.

If Only We Had Checked The RBI Website As Closely As We Check Our Facebook Profiles.

On November 2, 2016 (nearly six days prior to this policy being notified), the RBI came out with a notification titled – ‘Dispensation of Rs.100 denomination banknotes through exclusive ATMs’.

 In this notification, it has been mentioned that – ‘very few banks had taken initiatives in setting up ATMs dispensing lower denomination notes including Rs.100 denomination banknotes’. The notification then continues to read – ‘With a view to encourage the banks in that direction, it has been decided to conduct a pilot project wherein 10% of the ATMs in the country will be calibrated to dispense Rs.100 banknotes exclusively. You are, therefore, advised to configure / calibrate 10% of your ATMs to facilitate this arrangement.’

While one cannot expect news of this move to be conveyed to the Bank Customers in advance, as it would defeat the motive of public interest and the fight against black money, one can see that the RBI had made a discreet effort to bring higher levels of circulation of the 100 Rupee note in the market.

What Happens Now? 

While the suddenness of this move has certainly caused disturbance in public life, the other important aspect is that ATMs and cash dispensing machines are being re-configured to disburse bank notes of 100 and 50 rupee denominations. This makes transacting in lager volumes of cash cumbersome for the time being.

This is not the first time countries have discontinued currency out of fear of counterfeiting. In May 2016, the European Central Bank (“ECB”) announced that it would stop printing the 500 Euro notes, which would permanently be discontinued by the end of 2018. However, in its statement dated 4 May, 2016, the reason given by the ECB was the fear that the 500 Euro note could facilitate illicit activities. This is similar to the Indian Government’s motive of combating black money, currency counterfeiting and money laundering by making the 500 and 1000 rupee notes illegal tender. 

However, a stark difference in the approach of both these countries is that the currency is being phased out in a systematic manner in Europe. While one can argue that this level of cinematic surprise was required in India to make this an efficient move, the rebuttal is that the common man who has not made provisions for alternate revenues of liquid cash to facilitate day to day transactions is ultimately suffering.  

Image credits - allindiaroundup.com 

The effects of this policy will be something that will be debated for years to come. In the sphere of international relations, India and China have opened a 24*7 hotline to exchange information regarding fake currency, as a lot of the counterfeit notes are smuggled from Pakistan to India through China. The Income tax department has already cracked down on a few jewelers who were accepting the 500 and 1000 rupee notes at a 40% discount and converting the unaccounted money into jewelry and bullion. 

There has also been a 1000% increase in train ticket and airline ticket bookings, as the Notifications state that railway and airline counters can accept these denominations until November 11, 2016. However, the Government has been pacing many steps ahead of potential hoarders, and the Indian Railways will only be refunding a maximum amount of Rs. 10,000 per person in the event of cancellation. Hence, if a person has spent around Rs. 50,000 in 1000 and 500 rupee denominations on AC 1st tier tickets with a plan to cancel it and get the refund into his bank account, thereby avoiding going to the bank and legally exchanging the money, they would suffer a loss of Rs. 40,000. Airline tickets are now non-refundable if they are purchased with 1000 and 500 rupee notes. 

There are petitions in the Supreme Court and the Bombay High Court contesting the validity of this measure. The Madras High Court has dismissed a petition on de-monetization, stating that this measure is for the greater good of the country. While there are no direct fundamental rights that have been violated by this measure, it will be interesting to note the judicial response to what is easily one of the most surprising and shocking executive decisions that the country has seen in the recent past.


Peering out from behind The Witness Stand: 

Advocate Shriya Maini (Content Creator) is a young, bright, scholarly, advocate turned entrepreneur currently practicing at the Supreme Court of India, the Delhi High Court and the district courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of Delhi, India to pursue her passion in litigation.

Ms. Chethana Venkataraghavan (Editor) is currently a fifth year law student at Gujarat National Law University. She was part of the team that won Surana and Surana Corporate Law Moot Court Competition, 2013 and the Philip.C.Jessup International Moot Court Competition, India Rounds, 2016. She was adjudged the Best Speaker of the Finals at the Manfred Lachs Space Law Moot Court Competition, Asia Pacific Rounds, 2014. She is passionate about blogging and is currently involved in an initiative – Examofsmile - that aims to reduce levels of stress and depression among law students across the country.