Cryptotrading’s tryst with destiny- Supreme Court revives cryptotrading, RBI’s circular struck down

-Megha Mittal

(mittal@vinodkothari.com) 

April 2018, the Reserve Bank of India (RBI) issued a “Statement on Developmental and Regulatory Policies” (‘Circular’) dated 06.04.2018, thereby prohibiting RBI regulated entities from dealing in/ providing any services w.r.t. virtual currencies, with a 3-month ultimatum to those already engaged in such services. Cut to 4^th March, 2020- The Supreme Court of India strikes down RBI’s circular and upheld crypto-trading as valid under the Constitution of India.

Amidst apprehensions of crypto-trading being a highly-volatile and risk-concentric venture, the Apex Court, in its order dated 04.03.2020 observed that RBI, an otherwise staunch critic of cryptocurrencies, failed to present any empirical evidence substantiating cryptocurrency’s negative impact on the banking and credit sector in India; and on the basis of this singular fact, the Hon’ble SC stated RBI’s circular to have failed the test of proportionality.

In this article, the author has made a humble attempt to discuss this landmark judgment and its (dis)advantages to the Indian economy.

Before we delve into the legalities of trading in cryptocurrency, let us first briefly understand its meaning, and what made the Central Bank so wary of this technological innovation, despite its simultaneous attempts at digitalizing the Indian monetary system.

Bitcoin- the face of cryptocurrency

While there are several examples of cryptocurrency like Etherum, Ripple, Litecoins; “Bitcoins” undoubtedly have gained the maximum attention; and infact to such an extent that masses now identify the concept of cryptocurrency with “Bitcoins”. So we may too, perhaps understand cryptocurrency with the help of bitcoins.

Bitcoin, or cryptocurrency, isn’t your regular fiat money- it is digital currency that runs on block-chain technology, independent of any government or bank. Created digitally using algorithms, cryptocurrencies have no underlying asset, and exist only virtually. Further, unlike the present monetary system, rather than relying on a central body for its issuance and operation, the Bitcoin software is designed in manner such that every Bitcoin transaction and the holdings of every user, would be tracked and recorded by the computers of all the people using the digital money (‘nodes’), on a communally maintained database that would come to be known as the blockchain. The synchronised function of a private and public key associated to each node, further makes this system transparent in the sense that all participants on the network can access the information, yet private enough to not let out substantive information about a particular transaction to anyone other than the parties. Hence, cryptocurrencies made possible a financial network that would create and move money without a central authority.

Hence, the following can be enlisted as the defining elements of cryptocurrency-

• Absence of any centralized control;
• No underlying asset- value solely dependent on market sentiments.
• Provides an unalterable record of all transactions ever done on the network; with 24*7 accessibility to all participants in the network
• Anonymity of transactions- hence, “crypto”- Transactions take between public keys (uniquely assigned to every participant) and hence, identities of the parties to the transaction remains cryptic.

RBI’s apprehension and warning bells

Of the elements discussed above, it was the anonymity of transactions that bothered RBI the most. Ever since cryptocurrency set its first steps in the Indian economy, RBI raised concerns of consumer protection, market integrity, money-laundering and terror-financing among others. However, one must note that the 6^th April circular was not the first time that such concerns were raised by the RBI. Apprehensions that cryptocurrencies pose challenges in form of regulatory, legal as well as operational risks was observed in its Financial Stability Report, dating back to 2013. And owing to its massively growing popularity and reach, regulatory bodies across the globe took note of virtual currency and hence made available a rich literature on what virtual currency is all about.

The Courtroom Battle

What followed the RBI Circular was a flood of writ petitions filed before the Hon’ble Supreme Court and High Courts, praying for annulment of the Circular. First of such petitions was that filed by the Internet & Mobile Association of India in January 2018, and two years hence, the Hon’ble Supreme Court has given its landmark judgement, based on two main questions- whether cryptocurrency is money or a commodity; and lastly, whether the Circular was an appropriate exercise of its power.

Cryptocurrency- Money or commodity?

The first question for adjudication was regarding the classification of cryptocurrency as money or commodity- This distinction is important as it forms the basis of determining the validity of the Circular.

In order to be classified as money, it was important to check whether cryptocurrencies satisfied the four functions of money, that is,

• A unit of account;
• A medium of exchange;
• A store of value; and
• A standard of deferred payment.

Hence, the Apex Court tried to superimpose the definition of virtual currencies, as accorded by various international bodies, statutory enactments and non-statutory directives of governmental bodies across the globe, to the four functions of money to determine if at all virtual currency could be called money. A study of various legal frameworks, makes it clear that there are several economies have accepted cryptocurrencies as an accepted mode of payment and identified it as another form of currency, while on the contrary, economies like China have imposed a complete ban on the same.

On the basis of an exhaustive analysis of the legal framework and judicial precedents in this regard, the Apex Court reached to a simple conclusion that “if an intangible property can act under certain circumstances as money (even without faking a currency) then RBI can definitely take note of it and deal with it”.

However, the author respectfully submits that the aforesaid conclusion of the Apex Court does not clarify the true nature of cryptocurrencies, and again leaves room for interpretation. Having said so, the author has made a humble attempt to analyse the nature of cryptocurrencies, as follows:

As a unit of account

A unit of account is something than can be used to value goods and services, record debts, and make calculations. In other words, it’s a measurement for value. However, considering that the value of cryptocurrencies is solely based on demand-supply factors, and not an actual underlying asset, it may be difficult to definitively say that cryptocurrencies are a standard unit of account. Further, its high volatility and extreme-ranging prices also makes it difficult to identify cryptocurrencies as a standard unit.

Medium of exchange

For a mode of payment to be identified as a medium of exchange, the same has to be widely accepted by masses for making payment. A global level macro approach gives an idea that cryptocurrencies like bitcoin, have been increasingly used to enter into transactions; however, are not prevalent enough to buy good/ services. Similarly, in India too, while the presence of cryptocurrencies has infact been acknowledged, the same cannot be said to a “medium of exchange”, atleast at this point of time.

Store of value

Another feature of money is that it acts as “store of value”, in essence, maintains its value without depreciating over time. Considering that the fiat currency derives its value from an underlying asset (gold), it fulfils the criteria of being a “store of value”. The question here is that can cryptocurrencies, having no underlying asset be said to be having a store of value. While a literal interpretation would suggest otherwise, the value that cryptocurrencies, especially bitcoins have obtained in the current market makes it prudential to consider the same as having a store of value.

Hence, according to the author at the present juncture, cryptocurrencies may not fit into the conventional definition of money. So, does categorisation of cryptocurrencies as goods tenable?

Understanding cryptocurrencies as goods

Section 2 (7) of the Sale of Goods Act, 1939, “goods means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”

Hence, to answer whether crypto-currencies can be categorised as goods or not, we must note the following-

• As per the General Clauses Act, 1897, a movable property shall mean property of every description, except immovable property[1]e. which can be moved freely without damage. As such, cryptocurrencies are movable.
• Considering that cryptocurrency does not impose a claim on anybody, it does not tantamount to an “actionable claim[2]”

While there may be sufficient reason to classify cryptocurrencies as goods, in light of the fact that the cryptocurrencies do not have an “intrinsic value” or “speculative value” of its own, it does not completely fit into the definition of goods either.

However, in the said pretext, the author is of the opinion that nature of cryptocurrencies is more inclined towards goods rather than money.

Issuance of ‘Circular’- an appropriate exercise of power?

The second question for adjudication was w.r.t. tenability of the Circular. It must be noted that the Circular issued by RBI did not impose an explicit ban on virtual currencies as a whole; rather, it twisted the arm by imposing a restriction on all entities regulated by RBI-thereby implying that cryptocurrency could not be converted into fiat currency. However, the pertinent question is whether RBI at all had the power to issue the Circular?

Power of RBI to regulate virtual currency

Attention may be drawn to section 18 of the Payment and Settlement Act, which indicates that RBI has the power to lay down policies relating to the regulation of payment systems including electronic, non-electronic, domestic and international payment systems affecting domestic transactions and (ii) to give such directions as it may consider necessary. Having said so, even if it does not completely classify as “money”, the fact that it is indeed being used as a payment system cannot be ruled out. Hence, as observed by the Apex Court, “it is impossible to say that RBI does not have the power to frame policies and issue directions to banks who are system participants, with respect to transactions that will fall under the category of payment obligation or payment instruction, if not a payment system.”

Tenability of the Circular

As discussed above, the Circular was not the first time when RBI expressed its concerns about the risks that cryptocurrency brings along with it. As such, the Central Bank stood its ground that the Circular was issued after a long drawn research and analysis- and hence, in no way was the Circular arbitrary. Further, the fact that other regulatory authorities viz. Enforcement Directorate, SEBI, CBDT etc. did not consider the Circular as a knee-jerk, and that their roles come into picture of actual commission of offence, RBI cannot be faulted on the grounds on issuing a preventive circular.

Hence, despite the Circular being tenable in all other aspects, the Apex Court annulled the same on the grounds on principle of proportionality- which is discussed hereunder.

The Circular vis-à-vis Doctrine of Proportionality

The final checkbox for the Circular to be held has valid was its adherence to Article 19 (1) (g) of the Constitution of India on the basis of test of proportionality. Before delving into the same, let us first understand what the principle of proportionality means.

The doctrine of proportionality

The doctrine of proportionality is a principle that is used as a ground for reviewing administrative actions. The doctrine essentially signifies that any measure taken by a constituted body should not be disproportionate to its purpose. As was held in Coimbatore District Central Coop. Bank v Employees Assn. (2007) 4 SCC 669, “Proportionality is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.”  It is basically dependent on four main factors-

• that the measure is designated for a proper purpose;
• that the measures are rationally connected to the fulfilment of the purpose;
• that there are no alternative less invasive measures; and
• that there is a proper relation between the importance of achieving the aim and the importance of limiting the right.

Article 19 (1) (g)- Freedom of occupation

It was contended that the ‘Circular’ was in breach of the right of freedom of carrying out an occupation not prohibited by law. Further contending that the restriction was not ‘reasonable’ as per Article 19 (6) of the Constitution and that irrespective of its object, the impact of the Circular was a direct restriction on Virtual Currency Exchanges (VCEs) and not the actual trading- hence, a restriction from carrying an otherwise legal activity. As such, by the very reason that the Circular effectively wipes off all VCEs, it must pass the test of proportionality.

The Apex Court observed that, while the RBI indeed has powers to issue the Circular, it’s validity shall be subject to the test of proportionality according to which, though the measures taken by RBI were for a designated purpose, it cannot be accepted that there were no other alternatives which were less invasive. Reference was drawn to the recommendations made by the European Parliament, and in the Crypto-Regulation Bill, 2018, as per which, a generalised or total ban of virtual currencies is not a favourable/ advisable approach. Rather, working and operation of virtual currencies should be brought within the scope of regulation- RegTech for FinTech. Hence, the Circular was adjudged to have failed the test of proportionality.

Concluding remarks

While the Order of the Apex Court has set the stage free for VC and VCEs to flourish, we cannot turn a blind eye towards the lingering risk of consumer/ investor protection, anonymity, money laundering, as identified by RBI. It must be kept in mind that the Hon’ble SC rejected the RBI circular on the singular ground of proportionality, and as such does not rule out the presence of the risk that comes as a collateral of this Order.

The author is of the view that with cryptocurrencies having been held valid, it is now time to introduce a sound regulatory framework for dealing with the same. Reviving from the quasi-ban that led to the shutting down of many companies acting as VCEs, a distinct legal set up shall be a pre-requisite for instilling confidence amongst investors as well as service providers.

[1] Section 3 (26) of General Clauses Act, 1897 provides that “Immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.”

[2] Refer: General Clauses Act, 1987

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