Then why did it approve demonetization? The minutes stated: “The board was assured that the matter has been discussed between the central government and the RBI for the past six months, during which most of these issues have been considered. Aside from the stated goals, the proposed move also presents a great opportunity to seize the process financial inclusion and incentives for the use of electronic means of payment forward when people see the advantages of bank accounts and electronic payment methods over using cash”.

But none of these facts were revealed to the Supreme Court in the RBI and Center affidavits.

RBI’s endorsement (which turned its own wisdom on its head) after Rajan left and Urjit Patel took over as RBI governor in September 2016 was the same: most black money is not in cash, but in gold and real estate maintained, and therefore demonetization would be futile while imposing high costs on the economy; There are better ways to tackle black money.

Sealed Cover, Policy Making and Procedures

While majority judgment affirms the “legitimacy” of the policy (the dissenter does not), it steers clear of the economic “wisdom” or evidence for the policy decision (including by the dissenter) and upholds the “procedural” aspect or the policy-making process.

In order to decide both the “wisdom” and “procedural” matters, the court relies on a number of documents which are critical but not publicly available or available to the petitioners. The court requested and received these documents after the hearing is completedby turning them into “sealed envelope” documents.

These documents are: (i) the central government letter dated 7 November 2016 requesting RBI to agree to demonetarisation (ii) RBI’s ‘agenda note’ to its board dated 8 November 2016 (iii) the “Recommendations” and “Minutes” of the Board meeting of RBI on November 8, 2016 (iv) the “Cabinet Memo” prepared on November 8, 2016 and (v) the “Actual Decision” and “Minutes” of the Union Cabinet Approval on November 8, 2016.

Since the petitioners did not have access to these key documents, they amount to denial of natural law. The court’s role, like that of the Center and the RBI, is not only questionable in not granting access to the petitioners, but also makes demonization an “academic exercise” and a “fait accompli” to determine the verdict on 58 to delay injunctions six years.