LEGALIZATION OF CRYPTOCURRENCY IN INDIA: A NASCENTCREATION WITH SHADES OF VOIDS
Author: Bharti Nair Khan, Asst. Prof. at University of Petroleum and Energy Studies.
Co-author: Shambhvi Agarwal, III year of B.A.,LL.B.(Hons.) from University of Petroleum and Energy Studies
The usage of cryptocurrency is echoing and flourishing in today’s world and hence it is vital to dive into the understanding of this topic. Initially, the chapter elaborates on the essence of cryptocurrency. Furthermore, the chapter discusses how this topic of cryptocurrency has evolved over the years, ranging from 1998 to the current development. The chapter further spotlightsthe positive shades of crypto transactions starting from the importance and usage of cryptocurrency. On the other hand, the chapter also put forth some cons of digital currency transactions concerningsafely-associatedhitches. The chapter also incorporates the national and international legal developments concerningcryptocurrency validation with a reflection on the view of the Indian Judiciary. Further, by analyzing the whole topic the chapter has provided some suggestions.
The expected outcomes of this chapter are-
1. Accentuating that cryptocurrency transactions are on hype in the present era.
2. Addressing the utter need for concrete statutes and guidelines to regulate crypto transactions.
3. Underlining the importance, of the Cryptocurrency and Regulation of Official Digital Currency Bill, 2021.
Keywords- Cryptocurrency, Evolution, frauds, hacking, regulation, Current Development, ,Cryptocurrency and Regulation of Official Digital Currency Bill(2021).
Evolution is a fundamental chunk of our nature; everything around us evolves and the same is testified by science. The greatest unifying theory, also known as the evolution theory in biologyexplains how life originatesand goes through a gradual process of evolution that incorporates morphological, developmental, and genetic levels of transformation.Similarly, the whole world is on this track of evolution and technology nowadays is forming the bases of the same. Digitalization is dominating the world and one of its examples is the most talked about topic of electronic currency or cryptocurrency. The world has become techno-savvyon a lot of fronts and the same is inaudibly transmuting our financial landscape in agiganticmanner.Cryptocurrencies and their rudimentary blockchain technology are swiftlycounterfeiting their way into the mainstream, and numerous experts are envisagingthat the scale of their collective disruption could surpass the crude method of financial exchanges in a very short while.It is very well evident in the current scenario, that people have stopped following the old-school manner of financial transitions, and hence this concept of electronic money is on a bounce.
The concept originated around 1990 to 1995 when a cryptographer named David Chaum, released the podium of DIGICASH which was a cryptographic electronicpayment system that made the digital currency undetectable and provided room for ample obscurity.However, due to a lot of voids, the platform could not sustain itself for a long period and collapsed. Approximately after 10 years, a mysterious man or group of people named Satoshi Nakamotocreatedthe first cryptocurrency named BITCOIN which was completely decentralized and removed the needfor third-party intervention in financial transactions.The development of BITCOINfetchedessentialvariations to the precedingtheory of crypto and offered a platform that is now extensivelyacknowledged and used by people around the globe. This is how numerous cryptocurrencies came into being which supplemented the developments and created an easier and more user-friendly method of exchanges. Since this development, the cryptocurrency market is mounting at an unthinkable rate and isanticipated to grow more.
A cryptocurrencysometimes called crypto-currency or crypto, is made up of 2 words i.e., Cryptography and Currency. Cryptography isthe art of writing secret codes or solving secret codes and here the codes are used as a medium to guard information andcommunication.It means concealed writing, the person to whom theinformation is directed, can read and process the information, the other person will have no such right to breach privacy. Hence, this privacy mechanism of cryptography when used to carry transactions between two entitieswherein each transaction is highly safeguarded is termed cryptocurrency. Cryptocurrencies are digital tokens developed on blockchain technology. These require no third-partymediators like the government, financial institutions, or any other centralized authority unlike conventional banks and as a wholeoffer,a wide-ranging decentralized system whereinno middlemen exist to affect the transaction.Cryptocurrency is a type of virtual/digital currency, which has a peer-to-peer network-based medium of exchange. Cryptocurrency may be used as an alternative forgovernment-sanctioned "fiat" currency to purchase goods or services, orin barter for government-approved currency or other cryptocurrencies. Cryptocurrency being digital money exists on e-storage devices or cloud-based servers and is not usually kept in physical form, these can be accessed through a computer-generated account of sortscalled a wallet.Wallets are software packages or programs that interface withblockchains and make and/or store public and private keys used tosend and receive cryptocurrency.The cryptocurrencywas developed to provide safe and secure transactions.
Evolution of Cryptocurrency in India
The emergence of cryptocurrency can be traced back to the time slot of 1998 to 2009, as during this time innumerable efforts were made to create online currencies with ledgers protected by encryption. B-Money and Bit Gold can be quoted as two prime examples of this effort.
After all these efforts to develop cryptocurrency, India’s first cryptocurrency termed BITCOIN was made publicin 2008 by a man or a group of people under the secretive name Satoshi Nakamoto. Bitcoin was erected on the system of blockchain, a ground-breaking and radical technology designedin 1991 by cryptographers Scott Stornetta and Stuart Haber.In 2009, the Bitcoin system began mining- the process by which multiplication of bitcoins took place, and transactions and exchanges weredocumented and confirmed. A year later, Laszlo Hanyecz created a historic moment by trading Bitcoin for the first time.Slowly and gradually, Bitcoin (BTC) gained popularity among people owing to its decentralizednature that was not regulated or delimited by any governmentauthority, and seeing the hype in its popularity, the first altcoins appeared in 2011. Since 2012,bitcoins were largely used by cryptoenthusiasts. Furthermore, by 2013, Bitcoins came into the spotlight, with a restaurant named"Kolonial" in Mumbai, that initiatedits financial exchange in bitcoins.The charm of cryptocurrency grew over time and several crypto ATMswere disseminated on everycontinent.
But as new cryptocurrencies emerged, Bitcoin lost its charmand became non-transactional crypto with no value. The founder of cryptocurrency exchange FTX highlighted that Bitcoin has no future as a transactional or exchange medium as its incompetent and has high environmental costs.Dr. Scott Stornettaalso stated that“Bitcoin initially proved to be avivid piece of work, but it was sort of a solution looking for a problem.”On 30th July 2015, Ethereum Classic (ETC) came into the picture with an idea of smart contract functioning.Till date, ETC is taken to be the most reliableoption for investment and exchange. It is also reflected by an enormous number of experts that ETC has a high possibility of surpassing its existing ATH at about $176.16 by the end of 2022.
As a whole, it can be quoted that in India the cryptocurrency soukflourished between 2012 and 2017 whencompanies like Zebpay, Unocoin, Koinex, etc. progressed and started functioning in India.This is when the controversy regarding the legitimacy of crypto transactions and investments came into question.
Uses of Cryptocurrency
The cryptocurrency market is ruling the transactions as they offer an easy exchange method for the users. It offers low-cost and high-speed money transfers. For example- the transactional procedure ofa $99 million Litecoin (LTC) transaction took only two and a half minutes to complete and cost the sender only $0.40 in transaction fees. Crypto encourages non-cash transactions which makes it easy to use. Moreover, one can also earn interest through crypto, making it one of the most profitable investments. Furthermore, as cryptocurrencies are not controlled by any authority, hence can never be frozen. It can act as a censorship-resilient substitute stock of wealth that only the individual with the private keys to the wallet has access to.Using crypto, a person can also invest in pioneering early-stage start-ups to gain maximum profit.Privacy-centric digital currencies such as Monero (XMR), Zcash (ZEC), and PIVX (PIVX) also enabled users to make unidentified financial transactions.The users were free to make the private transactionswithout giving any clarification to the bank authorities that as to why they are transferring a huge sum of money, what the sources of the funds are and who they are sending it to, cutting of unnecessary delay and administrative processes.
Cryptocurrencies permitaugmented market efficacies. At root, cryptocurrency transactions are:
1. Private- No privatedata is essential to complete a transaction. No breach of privacy takes place while the transactions.
2. Fast- Crypto transactionsare settled almost immediately, they are not like conventional credit card exchanges or wire transfers that require days.
3. Irreversible- Crypto transactions are irrevocable because transactions are completedwithin no time and hence thereare no subsequent chargebacks or leeway for disagreements between consumerand vender.
4. Low-priced- The crypto transactionsare quite cost-effective or inexpensive. The costs are generally less than 1% if an intermediary is used, rather than the customary credit card processingfee of roughly 2.5 percent; and
5. Global- Crypto transactions are pan-world exchanges without any paper-money barriers. Neither purchaser nor retailerneeds a bank account, and there areno currency transaction dues.
6. Asset- Cryptocurrencies have restricted supply, unlike normal fiat currency that has an unrestricted supply bythe respective governing central banks of different countries.Therefore, inflation is not a problem with crypto and henceitcan be used by visionary investors as a good medium of investment.
Safety Related Issues in Cryptocurrency
Crypto transactions are regarded as safe because they are established on the notion of blockchain which makes it very tough for anindividual to act fraudulently with the system and take advantage of it.Blockchain technology is a technology wherein a digital journal or ledger of transactions is distributed across the entire network of blockchain computer systems.It condenses the menace of being hacked,delivers more transparency, and eradicates the centralized authority which makes the whole system more decentralized, consistent, reliable,etc.
But, apart from these advantages of crypto transactions, there exist some issues worth pondering.Cryptocurrencies are stored and fetched from the Digi-wallets for transactions, but as a whole, these wallets are vulnerable and exposed to hackers and thefts, andare prone to cyber-attacks. A team of researchers from the University of Edinburgh (United Kingdom), highlighted that there are enormous weak spots in hardware wallets and hence these wallets can be exploited hugely. Furthermore, they stated that even the profoundlyencoded hardware wallets were susceptible due to several security-related loopholes.Hence, security-breach is one of the fundamental issues with crypto transactions. Another underlining threat is the self-catered mining of cryptocurrencies. Since crypto exchanges are not regulated by a particular governmental authority and are not centralized, hence some of the mining pools can dominate over the others and can unjustly regulate the whole mining ratio and they can also be involved in illegitimate and unethical mining for selfish gains. This is how one greedy miner can make his chain. Also, the unregulated nature of crypto transactions may lead to overlapped exchanges.
As a whole, crypto exchanges are not fool-proof and infallible, they have both positive and negative aspects added to them.
National Canons for theRegulation of Cryptocurrency
The controversies around the usage of cryptocurrencies for transactions began in the year 2018 when the Reserve Bank of India which governs the fiat currency of India, released an order barring banks, Non-Banking Financial Companies (NBFCs), payment system providers, etc., from trading and perform exchangeswith any kind of cybernetic currencies or providing facilities to the individuals which have agreements basedoncryptocurrency. This order had a pessimistic impact on crypto exchange chains as they were thrown out of their business track because they were barred from accessing banking services anymore. This circular released by RBI paved the way for several writ petitions against this restrictive order.
In the case of Internet and Mobile Association of India v. Reserve Bank of India, a writ petition was filed in the Hon’ble Apex Courtchallenging the circular released by the RBIstating that the RBI has arbitrarily used its powers and the same is against the fundamental right to carry any trade andbusiness under Article 19(1) (g). The Supreme Court stated that RBI has all the powers to issue such circulars to guardthe banking sector, but there was a lack of no such proportional damage or harm caused to any of the banks in this case. Moreover, no such case was found in the near history wherein the banking sector or the Indian economy at largewas affected bleakly by the arrival of cryptocurrency in India. Hence, the apex court highlighted that the issue of such a circular by RBI is groundless and has no right to breach the fundamental rights of the crypto market in any manner.Consequently, in 2020 the Supreme Court quelled theRBI's prohibition on the crypto-transactions to avail advantageofbanking services. Supreme Courttransparently mentioned that cryptocurrency in India is unregulated as it is not governed by a particular government authority, but the same is notillicit.
Before the 2020 judgment of the Supreme Court, the administrationkept forward its plan tobar all the private cryptocurrencies in India and as an alternative release a digital rupee, a government-sponsored cryptocurrency in India. This created a fear in the minds of investors as now cryptocurrencies were no less than fiat currency and one wrong move can make you pay for the same. But up till today, private cryptocurrencies are not banned and hence require regulation. However, a fewoccurrences spotlight the fact that cryptocurrency is legal in India to a certain extent.Like, in March 2021, the administration of India made it obligatory to reveal all theinvestments done in Cryptocurrency to maintain transparency and avoid arbitrariness.Also, the Income Tax Department stated that all the profits/gains that an individual gets out of cryptocurrency would be taxed to avoid illegitimacy.And, recently a cryptocurrency investment platform, CoinSwitchKuber got launched and its new advertisement campaign was aired duringthe IPL telecast on Disney+Hotstar.
Therefore, it can be said that Cryptocurrency is Legal in India, but it is probable to quote that the use of cryptocurrency can be seen under the cage of regulations soon and the same can be reflected through The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021which was introduced in the Lok Sabha on 23rd November 2021.The Bill was drafted to conceal the loopholes under the Draft Banning of Cryptocurrency & Regulation of Official Digital Currency Bill, 2019.The Bill seeks to generate a facilitative outline for the formation of the authorized digital currency which will be sanctioned by the Reserve Bank of India. The Bill also pursues to forbid all private mining, holding, selling, trade, issuance, disposal,and use of cryptocurrencies in India; though, it permits certain exemptions to endorse the fundamental technology of cryptocurrency and its usages.As a whole, theBill seeks to promote a blanket ban on the outflow of private cryptocurrency to safeguard the conventional method of transaction.The Bill also highlights that mining, holding, vending, issuing, transferring, or usage of cryptocurrency is punishable with a fine or imprisonment of up to 10 years, or both to create an environment of deterrence. Furthermore, it emphasizes that an individual must affirm and dispose of any cryptocurrency in his ownership, within 90 days from the commencement of the Act and it authorizes RBI to issue any digital rupee through legal tender.
Global Use of Cryptocurrency
The status of cryptocurrency transactions through the global panorama is as follows-
1. Vietnam- The use of cryptocurrencies is highly discouraged in Vietnam. The State Bank of Vietnam levied a decree against cryptocurrencies highlighting that crypto transactions are not backed by any legal authority and hence are very vague. It also announced on 30th October 2017, that any individual dealing in cryptocurrencies will be held accountable and shall be liable to pay a fine not exceeding 200 million dongs.
2. Thailand- On 12th February 2018, the Bank ofThailand drafted a circular asserting that the banking sector is barred from investing or dealing in cryptocurrencies. Moreover, the Bank of Bangkok terminatedits exchange contact with a Thai company named Thai Digital Asset Exchange (TDAX)on 24th February 2018 as it was found dealing in crypto.
After the same, the Cabinet of Thailand passed verdicts to scrutinize and control cryptocurrencies and ICOs and to change capital taxes from virtualcurrencies.
3. Taiwan- Both the Taiwan CentralBank and Financial Supervisory Committeestatedthat virtual currencies are traitorous and hence crypto and other digital currencies were tilted as "highly conjectural virtual products".Following this statement, the Financial SupervisoryCommittee on 16th January 2014, made a draft to prohibit anysuch virtual currencies in the banks ofTaiwan.
4. New Zealand- In October 2017, the FinancialMarkets Authority of New Zealand, highlighted difficultieswithcryptocurrencies. It stated that cryptocurrency usage promotes unethical activities like fraud, hacking, etc., and hence these kinds of transactions are exploitative. As a whole, crypto transactions affect the economy at large. After analyzing the same, all cryptocurrency services or businesses are regulated by the Financial ServiceProviders (Registration and DisputeResolution) Act 2008 in New Zealand.
5. Nepal- On the 13th of August 2017, Nepal Rastra Bankstated that cryptocurrency transactions are illegal. In 2017, the Central Investigation Bureau has also detained 7 individuals as they were found guilty of operating their services in crypto.
6. China- After analyzingthe entitlement of virtual currencies for three years, the People’s Bank of China established an organization for digitalcurrencies named the Institute of Digital Money.On 4th September 2017, 7 central government-operated associations namely the People's Bankof China, Cyberspace Administration ofChina, Ministry of Industry and IT, StateAdministration for Industry andCommerce, China Banking RegulatorCommission, China Securities RegulatoryCommission, and China InsuranceRegulatory Commission, joined hands and drafted a declarationto prevent the economy from financial risks caused due to crypto-exchanges.
In March 2018, the Governor of the People'sBank of China,Zhou Xiaochuan, opined that virtualcurrencies cannot be termedas an eligible medium for any kind ofcustomer transaction or tax expenditures.
Finally, in May 2021 China proscribed financial institutions from engaging in any crypto transactions, and then in June 2021, it debarred all domestic crypto mining, and entirelyoutlawed cryptocurrencies outright in September 2021.
7. United States- Unlike all the above-mentioned countries, the US has optimistically examined cryptocurrencies. Huge entities like Dish Network, Microsoft Store, etc., accepted remissions in bitcoins. Over time, virtual currency has also gained importance in United States financial security markets, where the legal status of cryptocurrency is supported.
According to Bank Secrecy Act, digital currency is not only paper money or authorized tender but also Money ServicesBusiness (MSB). This Act obligates the investors dealing in crypto, to keep a record of the transactions. This is how each country has diverse sights regarding cryptocurrency exchanges and their legitimacy.
The present age is the age of digitalization wherein new developments are taking place to make things easier and more accessible for operators. One such development took place through the emergence of cryptocurrency. These are extremely easy to make transactions but on the other hand, the decentralized nature of these transactions makes them very insecure and arbitrary. It is also quite apparent that India lacks clarity regarding cryptocurrency guidelines, which is making it even more difficult to regulate crypto exchanges with the help of proper statutes.
It is vital to quote that crypto transactions in today’s time are prominently ruling the financial world.In the year 2020, Bitcoin saw massive hype in valuation and because of the same plentiful new pecuniarysponsorsexhibited a rock-hardpropensity towards it. But as we are in a phase where an ever-fascinating sum of ground-breaking innovations and advances will undeniably befall, every evolution will eternally hide within itself some danger and hence, it is mindful to continue to enlarge the legal horizon to keep it foreseeable withcontemporary turns of events.
Based on the above conclusion the following suggestions are proposed by the authors-
1. Concreteguidelines are needed to regulate crypto transactions. A digital currency regulation requires systematic, organized, and nuanced guidelines, with due admiration to the association of law with its subjects.
2. Regulatory transactions governed by more stringent lawsand anonymity should be monitored and scrutinized accordingly so that it can counter theft, frauds,money laundering, hacking,and othercyber-crimes linked with it.
3. BackingCrypto transactions by an authority to maintain reliabilityis extremely pertinent. These exchanges shall become centralized to avoid nebulousness and establish accountability of a particular entity.
4. The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 shall be taken into serious consideration as it can regulate illicit crypto exchanges and bar them with the help ofappropriate punishments.
5. Vibrant ideas should be borrowed from various countries where cryptocurrency is authorized and the same should be incorporated to suit the Indian legal system.
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