Demonetisation, The National Anthem And National Interest: The Political And The Judicial
NEW DELHI: One may go back to the summer of 2014, when the current Prime Minister repeated from BJP’s medley of slogans his personal favourite of “minimum government and maximum governance”.
Surprisingly, in 2016, we live in times where dictates of the State govern what a citizen is to produce and eat, how much of his/her own money can be withdrawn and how social welfare benefits to the poor will be made available only by fulfilling government’s Aadhaar card obligations.
The state of Haryana has also decided that a person will be barred from contesting elections without having certain infrastructure and educational qualifications. Of course, such commands are for the “national good”. It appears that the current regime is attempting to inflexibly define both the idea of economic development and nationalism.
The Government’s decision to derecognise existing high denomination notes has thrown the country into pandemonium. Let us look at some of the facts regarding the issue. First, it is important to note that the estimated cost of just printing new notes is roughly Rs 15,000 crores. Secondly, derecognition is being done to locate and then clamp down on only 5% to 6% of total black money which is to be found in cash (including Rs 100 notes). Thirdly, to tackle this situation, the Government, without any debate decided to neutralise 85% of cash existing in the Indian economy. Put this decision in context to the fact that Credit Suisse estimates that 90% of consumer purchases in the country are made in cash. Fifth, the effect of this move on consumption seems to be grave; most industry experts in FMCG, Automobiles, travel and luxury sectors are expecting sales to come down by 30% to 60% over the next few months. Sixth, this also being the season for the sowing of Rabi and harvesting of the Kharif crop, there is a likely negative effect on the farm output. The result as predicted by most economists at global financial institutions is that the immediate short term impact on GDP is likely to be a decline of 1to 2 percentage points.
Now, the government’s promise lies in the long run, on which former Prime Minister Manmohan Singh speaking in the house aptly quoted J.M. Keynes; that in the long run we are all dead. Anyhow let us look at the long run. So, what time frame are we looking at for bringing the lost paper currency back into the economy? Saumitra Chaudhuri, a former member of the planning commission has estimated that based on India’s current printing capacity it will take until May 2017 to replace the total impounded notes.
Nevertheless, the ultimate promise made by the ruling establishment, is that demonetization will end corrupt activities in the public sector, stop counterfeiting and put an end to black money generation. As Mr. P. Chidambaram has already articulated, temporarily stopping the use of particular denominations will not in any way end the act of bribery. For instance, reports have already come from both W. Bengal and Gujarat where bribes have been recovered given in the new denominations. In fact, corrupt practices stem from the legally recognised discretionary powers of bureaucrats.
Now the Government has gone ahead and given the Tax Department more power. Going by past experiences, when India saw more government intervention, the result is more red-tape, citizens being harassed and deals being struck between power brokers, power holders and citizens. The businesses through which black money is generated remains unaffected; it is only the means of tender that has temporarily been dislodged.
The Government has issued a decree and nullified every promissory note in possession of the citizenry. Then has subsequently issued multiple executive orders on whim, changing both rules of withdrawal (how much can be withdrawn) and the manner in which impounded notes can be used (to be used where and till when for example in petrol pumps or purchasing tickets to travel etc). The sheer scale of the economic decision and the speed at which executive orders for implementation are being altered makes it difficult for the courts to take cognizance of possibly unlawful decisions.
The impact on people is immediate and irreversible. In short, through judicial action, the inconvenience caused by the government’s desire to surprise cannot be reversed. Ironically, a decision which has impacted everyone had taken into confidence neither citizens nor democratic institutions. A dictate has been issued and the right to react and oppose is being limited and interpreted by the State’s definition of national interest.
The Supreme Court has decided to issue a judgement whereby now citizens are legally obliged to hear the national anthem before a movie and while doing so also stand in attention. For what reason? The Bench presided by a future Chief Justice reasons that Article 51-A of the constitution makes it a fundamental duty of the citizen to respect the national flag and thereby no space for an individual opinion may exist on this issue. The court sees the mandated obligation of playing the national anthem at theatres as one which enhances “constitutional patriotism.” Firstly, as we know, the directive principles of state policy are not enforceable rights as they deal with theoretical ideals which the constitution saw as goals. The wordings of Article 51-A ask the citizen to respect the national anthem, but at no point mandates a particular manner through which this goal may be achieved.
Secondly, the judgement does not elaborate on the principle of “constitutional patriotism” -- a concept popularised by Jurgen Habermas which the court seems to use to put forward their view on which values ought to be followed for promoting social and political integration. The point is, should the court attempt to define an act as promoting patriotism and further enforce obligations by law on citizens to ensure compliance with such an act ?
I would like to end this piece by sharing profound words spoken by Justice Anthony Kennedy in the landmark 1989, American Supreme Court Judgement of Texas vs Johnson. The issue in the case concerned the right of members of the Revolutionary Communist Youth brigade -- who while protesting against policies of then president Ronald Reagan burnt the flag. The question arose that could the protesters have their right to burn the national flag protected by law? The court, in view of the facts, upheld the expression of burning the flag. Justice Kennedy, an appointment of former Republican President, Ronald Reagan stated the following: -
“…. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt…”
(Abhik Chimni is a lawyer)