Dr. A. Md. Samiulla,
Assistant Professor of Law,
Sultan-ul-Uloom College of Law.
The world’s biggest democracy — India is currently at the forefront of its conceptual win fighting against menace of black money but losing its battle in averting smoldering crisis of currency crunch. Any Government’s decision presupposes the operational difficulties of implementing its policy. It is everyone’s foreseer that the note ban decision will ensue into currency crunch as the nexus between small denomination and daily life is a direct one. Demonetization decision manifests the lacking of effective law and mechanism fighting against black money. The government’s catastrophic decision of demonetization manifested the signs of frustration among the people of the nation.
The government represents the majority people’s mandate and the mandate shall be expressed into actions through making the law and its implementation through its agency. An action without a concrete law created a crisis the government is unable to ride it out. The government’s decision is more of a party’s political idea than an ideological political outcome for an ideological government is to share a set of ideas about politics and economy. In a democracy, an idea without the process of transforming into law for the people as its subjects would not have sanction of the State, for people are the first element of the State, who accept and are ruled by the sanctity of the law and not by the authority of the government. The government is the machinery through which the administration of the State is carried on.
The first element of the State is population for there can be no State without people. Another essential element of the State is Government the machinery which administers the country. The government is the outward manifestation of a State. It is an organ of the community. Another essential element of the State is sovereignty. The function of war and the administration of justice are of high importance upon a State. The action of the government on demonetization is not the one among its pressing issues both nationally and internationally. It is a regret that we have reached an impasse much more than those emergencies declared in the past. The present currency impasse which everyone is facing is a creation by an omnipotent government, which has no effective exercise of action in present times of crisis. The absence of planning by the government and the hasty action are inconsistent with the rule of law in a democracy. The rules announced beforehand make it possible for the people to foresee with fair certainty and to plan one’s individual affairs on the basis of this knowledge. The frequent changes and relaxations on limits on withdrawals from banks are only to reduce the state to its old minimum functions of tax-gatherer and policeman. The impeding arrangements of new currency halted the whole trend of economic growth in the country. The demonetization measure has subjected the individual private interests to high degree of insecurity and sacrifice for the sake of such overriding public interests.
The government’s decision, in effect, has taken the cognizance deeming all people with the criminality of black money. The action is neither focused nor targeted but deemed all as potential criminals with the tag of black money. The action is a misdirected measure averting the culpability of black money. The present measure of banning currency turned the nation into a chaotic economic state.
Few may disagree that the national interest is of paramount importance. However, the present crunch victimizing the innocent people is inconsistent with the established concept of the rule of law. The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual. The measure is contradicting the doctrines of criminal jurisprudence.
Fundamentally, the original onus never shifts and the prosecution has at all stages of the criminal case, to prove the guilt of the accused beyond a reasonable doubt. However, the much-predicted measures in the pipeline administering the black money are just vice-versa. Paradoxically, the measures shift the burden onto the innocent people to prove their innocence.
Month beginning is the time for salary credits and its withdrawals, employees began queuing up outside banks and ATMs to meet their daily and monthly needs and make petty payments, pay servants, buying grocery, milk, newspaper, etc. The government failed to avert this crisis since the supply of notes from currency chests has failed to meet the much-anticipated rush for withdrawals and the need for small denomination of currency.
What is required now is, in an action against black money, a legal order creating a machinery which can operate effectively at the same time encounter ceaseless waves of insecurity in the people.
The effort of the government is much welcome but the result ensued reduced its decision to a pork barrel. It is a waste of government’s effort in fighting against the black money the real foundation of which is lacking the effective operation of penal law in eliminating the menace of black money.