REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No.528 of 2018

INTERNET AND MOBILE ASSOCIATION

OF INDIA …. Petitioner

Versus

RESERVE BANK OF INDIA ... Respondent

WITH

Writ Petition (Civil) No.373 of 2018

J U D G M E N T

V. Ramasubramanian, J.

1. THE STORY LINE:

1.1. Reserve Bank of India (hereinafter, “RBI”) issued a

“Statement on Developmental and Regulatory Policies” on April

5, 2018, paragraph 13 of which directed the entities regulated by RBI

(i) not to deal with or provide services to any individual or business

entities dealing with or settling virtual currencies and (ii) to exit the

relationship, if they already have one, with such individuals/

business entities, dealing with or settling virtual currencies (VCs).

Digitally signed by

SUSHMA KUMARI

BAJAJ

Date: 2020.03.04

13:32:29 IST

Reason:

Signature Not Verified

2

1.2. Following the said Statement, RBI also issued a circular

dated April 6, 2018, in exercise of the powers conferred by Section

35A read with Section 36(1)(a) and Section 56 of the Banking

Regulation Act, 1949 and Section 45JA and 45L of the Reserve Bank

of India Act, 1934 (hereinafter, “RBI Act, 1934”) and Section 10(2)

read with Section 18 of the Payment and Settlement Systems Act,

2007, directing the entities regulated by RBI (i) not to deal in virtual

currencies nor to provide services for facilitating any person or entity

in dealing with or settling virtual currencies and (ii) to exit the

relationship with such persons or entities, if they were already

providing such services to them.

1.3. Challenging the said Statement and Circular and seeking a

direction to the respondents not to restrict or restrain banks and

financial institutions regulated by RBI, from providing access to the

banking services, to those engaged in transactions in crypto assets,

the petitioners have come up with these writ petitions. The petitioner

in the first writ petition is a specialized industry body known as

‘Internet and Mobile Association of India’ which represents the

interests of online and digital services industry. The petitioners in the

second writ petition comprise of a few companies which run online

crypto assets exchange platforms, the shareholders/founders of these

companies and a few individual crypto assets traders. It must be

stated here that the individuals who are some of the petitioners in the

3

second writ petition are young high-tech entrepreneurs who have

graduated from premier educational institutions of technology in the

country.

Contents of the impugned Statement and Circular of RBI:

1.4. The Statement dated 05-04-2018 issued by RBI, impugned

in these writ petitions, sets out various developmental and regulatory

policy measures for the purpose of (i) strengthening regulation and

supervision (ii) broadening and deepening financial markets (iii)

improving currency management (iv) promoting financial inclusion

and literacy and (v) facilitating data management. Paragraph 13 of the

said statement which falls under the caption “currency

management” deals directly with virtual currencies and the same

constitutes the offending portion of the impugned Statement.

Therefore, paragraph 13 of the impugned Statement alone is

extracted as follows:

13. Ring-fencing regulated entities from virtual

currencies

Technological innovations, including those underlying

virtual currencies, have the potential to improve the

efficiency and inclusiveness of the financial system.

However, Virtual Currencies (VCs), also variously referred

to as crypto currencies and crypto assets, raise concerns of

consumer protection, market integrity and money

laundering, among others.

Reserve Bank has repeatedly cautioned users, holders

and traders of virtual currencies, including Bitcoins,

regarding various risks associated in dealing with such

4

virtual currencies. In view of the associated risks, it has

been decided that, with immediate effect, entities

regulated by RBI shall not deal with or provide services to

any individual or business entities dealing with or settling

VCs. Regulated entities which already provide such

services shall exit the relationship within a specified time.

A circular in this regard is being issued separately.

1.5. The Circular dated 06-04-2018 deals entirely with virtual

currencies and the prohibition on dealing with the same. This

Circular is statutory in character, issued in exercise of the powers

conferred by (i) the Reserve Bank of India Act, 1934 (ii) the Banking

Regulation Act, 1949 and (iii) the Payment Settlement Systems Act,

2007. This Circular in its entirety is reproduced as follows:

Prohibition on dealing in Virtual Currencies (VCs)

Reserve Bank has repeatedly through its public notices on

December 24, 2013, February 01, 2017 and December 05,

2017, cautioned users, holders and traders of virtual

currencies, including Bitcoins, regarding various risks

associated in dealing with such virtual currencies.

2. In view of the associated risks, it has been decided that,

with immediate effect, entities regulated by the Reserve

Bank shall not deal in VCs or provide services for

facilitating any person or entity in dealing with or settling

VCs. Such services include maintaining accounts,

registering, trading, settling, clearing, giving loans against

virtual tokens, accepting them as collateral, opening

accounts of exchanges dealing with them and

transfer/receipt of money in accounts relating to

purchase/sale of VCs.

3. Regulated entities which already provide such services

shall exit the relationship within three months from the

date of this circular.

4. These instructions are issued in exercise of powers

conferred by section 35A read with section 36(1)(a) of

5

Banking Regulation Act, 1949, section 35A read with

section 36(1)(a) and section 56 of the Banking Regulation

Act, 1949, section 45JA and 45L of the Reserve Bank of

India Act, 1934 and Section 10(2) read with Section 18 of

Payment and Settlement Systems Act, 2007.

2. THE SETTING

2.1. The Statement dated 05-04-2018 and the Circular dated

06-04-2018 of RBI, impugned in these writ petitions, were a

culmination of a flurry of activities by different stakeholders,

nationally and globally, over a period of about 5 years. Therefore, it is

necessary to see the setting in which (or the backdrop against which)

the impugned decisions of RBI were posited. While doing so, it will

also be necessary to take note of the developments that have taken

place during the pendency of these writ petitions, so that we have a

close-up as well as aerial view of the setting.

2.2. It was probably for the first time that RBI took note of

technology risks in changing business environment, in their Financial

Stability Report of June 2013. Paragraph 3.60 of this report noted

that globally, the use of online and mobile technologies was driving

the proliferation of virtual currencies. Therefore, the report stated that

those developments pose challenges in the form of regulatory, legal

and operational risks. Box 3.4 of the said report dealt specifically with

virtual currency schemes and it started by defining virtual

currency as a type of unregulated digital money, issued and

6

controlled by its developers and used and accepted by the

members of a specific virtual community. It was declared in Box

3.4 of the said report that “the regulators are studying the impact of

online payment options and virtual currencies to determine potential

risks associated with them”.

2.3. In June 2013, the Financial Action Task Force (hereinafter,

“FATF”), also known by its French name, Groupe d'action financière,

which is an inter-governmental organization founded in 1989 on the

initiative of G-7 to develop policies to combat money laundering, came

up with what came to be known as “New Payment Products and

Services Guidance” (NPPS Guidance, 2013). It was actually a

Guidance for a Risk Based Approach to Pre-paid cards, Mobile

Payments and Internet-based Payment Services. But this Guidance

did not define the expressions ‘digital currency’, ‘virtual currency’, or

‘electronic money’, nor did it focus on virtual currencies, as distinct

from internet based payment systems that facilitate transactions

denominated in real money (such as Paypal, Alipay, Google Checkout

etc.). Therefore, a short-term typologies project was initiated by FATF

for promoting fuller understanding of the parties involved in

convertible virtual currency systems and for developing a risk matrix.

2.4. On 24-12-2013, a Press Release was issued by RBI

cautioning the users, holders and traders of virtual currencies about

the potential financial, operational, legal and customer protection and

7

security related risks that they are exposing themselves to. The Press

Release noted that the creation, trading or usage of VCs, as a medium

of payment is not authorized by any central bank or monetary

authority and hence may pose several risks narrated in the Press

Release.

2.5. On 27-12-2013, newspapers reported the first ever raid in

India by the Enforcement Directorate, of 2 Bitcoin trading firms in

Ahmedabad, by name, rBitco.in and buysellbitco.in. This was stated to

be India's first raid on a Bitcoin trading firm and the second globally,

after Federal Bureau of Investigation of the United States of America

conducted a raid in October of the same year.

2.6. Thereafter, a report titled “Virtual Currencies – Key

Definitions and Potential AML/CFT Risks” was issued in June 2014

by FATF, highlighting, both legitimate uses and potential risks

associated with virtual currencies. What is of great significance about

this FATF report is that it defined 2 important words. The FATF

report defined ‘Virtual currency’ as a digital representation of

value that can be traded digitally and functioning as (1) a

medium of exchange; and/or (2) a unit of account; and/or (3) a

store of value, but not having a legal tender status. The FATF

report also defined ‘Cryptocurrency’ to mean a math-based,

decentralised convertible virtual currency protected by

cryptography by relying on public and private keys to transfer

8

value from one person to another and signed cryptographically

each time it is transferred.

2.7. Again, in June 2015, FATF came up with a “Guidance for a

Risk Based Approach to Virtual Currencies”, which suggested certain

recommendations, as follows:

A. Countries to identify, assess and understand risks and to take

action aimed at mitigating such risks. National authorities to

undertake a coordinated risk assessment of VC products and services

that:

(1) enables all relevant authorities to understand how specific

virtual currency products and services function and impact

regulatory jurisdictions for Anti Money Laundering (‘AML’ for

short)/Combating the Financing of Terrorism (‘CFT’ for short)

treatment purposes;

(2) promote similar AML/CFT treatment for similar products and

services having same risk profiles.

B. Where countries are prohibiting virtual currency products and

services, they should take into account among other things, the

impact a prohibition would have on local and global level of money

laundering/terrorism financing risks, including whether prohibition

would drive such payment activities underground, where they will

operate without AML/CFT controls.

9

2.8. The FATF submitted a report in October 2015 on

“Emerging Terrorist Financing Risks”. The report was divided into

four parts, under the captions (i) introduction (ii) financial

management of terrorist organisations (iii) traditional terrorist

financing methods and techniques and (iv) emerging terrorist

financing threats and vulnerabilities. Even while acknowledging in

part 3 of the report that the traditional methods of moving funds

through the banking sector happens to be the most efficient way of

movement of funds for terrorist organisations, the report

acknowledged the emergence of new payment products and services

in part 4 of the report. The report took note of different methods of

terrorist financing, such as self-funding, crowd funding, social

network fund raising with prepaid cards etc. Coming to virtual

currencies, the report noted the following:

“Virtual currencies have emerged and attracted investment

in payment infrastructure built on their software protocols.

These payment mechanisms seek to provide a new method

for transmitting value over the internet. At the same time,

virtual currency payment products and services (VCPPS)

present ML/TF risks. The FATF made a preliminary

assessment of these ML/TF risks in the report Virtual

Currencies Key Definitions and Potential AML/CFT Risks.

As part of a staged approach, the FATF has also developed

Guidance focusing on the points of intersection that provide

gateways to the regulated financial system, in particular

convertible virtual currency exchangers.

Virtual currencies such as bitcoin, while representing a

great opportunity for financial innovation, have attracted

the attention of various criminal groups, and may pose a

10

risk for TF (terrorist financing). This technology allows

for anonymous transfer of funds internationally.

While the original purchase of the currency may be

visible (e.g., through the banking system), all

following transfers of the virtual currency are

difficult to detect. The US Secret Service has observed

that criminals are looking for and finding virtual currencies

that offer: anonymity for both users and transactions; the

ability to move illicit proceeds from one country to another

quickly; low volatility, which results in lower exchange

risk; widespread adoption in the criminal underground;

and reliability.

Law enforcement agencies are also concerned about the

use of virtual currencies (VC) by terrorist organisations.

They have seen the use of websites affiliated with terrorist

organisations to promote the collection of bitcoin donations.

In addition, law enforcement has identified internet

discussions among extremists regarding the use of VC to

purchase arms and education of less technical extremists

on use of VC. For example, a posting on a blog linked to

ISIL proposed using bitcoin to fund global extremist

efforts.” (emphasis supplied)

In support of the above conclusions, the report also indicated a case

study, which concerned the arrest of one Ali Shukri Ameen, who

admitted to have had a Twitter account with 4000 followers. He

claimed to have used his Twitter handle to provide instructions on

how to use a virtual currency to mask the provision of funds to ISIL.

In an article, the link to which he tweeted to his followers, it was

elaborated how jihadists could utilize the virtual currency to fund

their efforts. (It must be noted that the report also took note of how

prepaid cards and other internet-based payment services could also

be used for terror financing).

11

2.9. The Bank of International Settlements (hereinafter, “BIS”)

which is a body corporate established under the laws of Switzerland,

way back in the year 1930 pursuant to an agreement signed at

Hague on 22-01-1930 and owned by 60 Central Banks of different

countries including RBI, has several committees, one of which is

“Committee on Payments and Market Infrastructure” (CPMI). This

committee started taking note of digital currencies, while dealing with

innovations in retail payments. This committee formed a sub-group

within the CPMI Working Group on Retail Payments, to undertake an

analysis of digital currencies. On the basis of the findings of the sub-

group, CPMI of BIS submitted a report in November 2015 on Digital

currencies. The sub-group identified three key aspects relating

to the development of digital currencies one of which was that

the assets featured in digital currency schemes, typically have

some monetary characteristics such as being used as a means

of payment, but are not backed by any authority. In Note 1 under

the Executive Summary of the said report, it was stated as follows:

“although digital currencies typically do have some, but not all

the characteristics of a currency, they may also have

characteristics of a commodity or other asset. Their legal

treatment can vary from jurisdiction to jurisdiction.” (emphasis

supplied) Paragraph 4 of the said report dealt with the “implications

for central banks, of digital currencies and their underlying

12

decentralized payment mechanisms”. In the said paragraph, the

report indicated that “digital currencies represent a technology for

settling peer to peer payments without trusted third parties and may

involve a non-sovereign currency”. Though the report stated that the

impact of digital currencies on the mainstream financial

system is negligible as at that time, some of the implications

indicated in the report may actually materialize if there was

widespread adoption of digital currencies. Two risks were noted

in the report and they were consumer protection and operational

risks. But in so far as distributed ledger technology is concerned, the

report was positive. However, the report cautioned that a

widespread substitution of bank notes with digital currencies

could lead to a decline in central banks’ non-interest paying

liabilities and that if the adoption and use of digital currencies

were to increase significantly, the demand for existing

monetary aggregates and the conduct of monetary policy could

be affected. Nevertheless, the report stated that at present, the use

of private digital currencies is too low for these risks to materialize.

2.10. In December 2015, the Financial Stability Report of RBI

was issued, and it included a chapter on “Financial Sector

Regulation”. The same dealt with the challenges posed by technology-

based innovations such as virtual currency schemes. In Box 3.1 of

the said report, it was indicated that though the initial concerns

13

over the emergence of virtual currency schemes were about the

underlying design, episodes of excessive volatility in their value

and their anonymous nature which goes against global money

laundering rules rendered their very existence questionable.

However, the report noted that the regulators and authorities need to

keep pace with developments, as many of the world’s largest banks

started supporting a joint effort for setting up of private blockchain

and building an industry-wide platform for standardizing the use of

technology.

2.11. In December 2016, the Financial Stability Report of RBI

came. It took note of the rapid developments taking place in Fin Tech

(financial technology) globally and exhorted the regulators to gear up

to adopt technology (christened as RegTech). Paragraph 3.22 of the

said report identified the establishment of regulatory sandboxes

1

and

innovation hubs for testing new products and services and providing

support/guidance to regulated as well as unregulated entities. The

report also noted that fast paced innovations such as virtual

currencies have brought risks and concerns about data security and

consumer protection on one hand and far reaching potential impact

on the effectiveness of monetary policy itself on the other hand. The

report took note of the fact that many central banks around the

1

Regulatory sandbox refers to live testing of new products/services in a controlled/test

regulatory environment.

14

world, had already started examining the feasibility of creating their

own digital currencies, after fretting over them initially.

2.12. In January 2017, the Institute for Development and

Research in Banking Technology (IDRBT) established by RBI in 1996

as an institution to work at the intersection of banking and

technology submitted a Whitepaper on “Applications of blockchain

technology to banking and financial sector in India”. While dealing

with the applications of blockchain technology in chapter 3, the

whitepaper also enlisted the advantages and disadvantages of digital

currency. While the advantages indicated were (i) control and

security, (ii) transparency and (iii) very low transaction cost, the

disadvantages indicated were risk and volatility.

2.13. On 01-02-2017, RBI again issued a Press Release

cautioning users, holders and traders of virtual currencies. Closely

on the heels of this Press Release, the Government of India, Ministry

of Finance, constituted, in April 2017, an Inter-Disciplinary

Committee comprising of the Special Secretary (Economic Affairs)

and representatives of the Departments of Economic Affairs,

Financial Services, Revenue, Home Affairs, Electronics and

Information Technology, RBI, NITI Aayog, and State Bank of India.

The task of the Committee was to (i) take stock of the status of VCs in

India and globally, (ii) examine the existing global regulatory and

legal structures and (iii) suggest measures for dealing with VCs. The

15

Committee was mandated to submit a report within 3 months.

2.14. The report of the Inter-Disciplinary Committee was

submitted on 25-07-2017 and it contained certain recommendations

which are as follows:

(i) A very visible and clear warning should be issued

through public media informing the general public that

the Government does not consider crypto-currencies

such as bitcoins as either coins or currencies. These are

neither a legally valid medium of exchange nor a desirable

way to store value. The Government also does not consider it

desirable for people to use or invest in something which has

no real underlying asset value.

(ii) A very visible and clear warning should be issued,

through public media, advising all those who have been

offering to buy or sell these currencies, or offering a

platform to exchange these currencies, to stop this

forthwith.

(iii) Those who have bought these currencies in good

faith and are holding these should be advised to offload

these in any jurisdiction where it is not illegal to do so.

(iv) All consumer protection and enforcement agencies

should be advised to take action against all those who,

despite these warnings, indulge in buying/selling or offering

platform for trading of these currencies, since the presumption

would be that it is being done with illegal, fraudulent or tax

evading intent.

(v) If the Government agrees with the above

recommendations, a committee should be constituted

with members from DEA, RBI, SEBI, DoR, DoLA, Consumer

Affairs, and MeitY, to suggest whether any further actions,

including legislative changes, are required to make

possession, trade and use of crypto-currencies expressly

illegal and punishable.

16

(vi) Finally, it is clarified that none of the above

recommendations are meant to restrict the use of

blockchain technology for purposes other than that of

creating or trading in crypto-currencies.

2.15. In August 2017, Securities and Exchange Board of India

(SEBI) established a 10-member advisory panel to examine global

fintech developments and report on opportunities for the Indian

securities market. The goal of the new Committee on Financial and

Regulatory Technologies was to help prepare India to adopt fintech

solutions and foster innovations within the country.

2.16. On 02-11-2017, the Government of India constituted a

committee chaired by the Secretary (Department of Economic Affairs)

and comprising of Secretary, Ministry of Electronic and Information

Technology, Chairman, SEBI and Deputy Governor, RBI (Inter-

Ministerial Committee) to propose specific actions to be taken in

relation to VCs.

2.17. At that stage, two persons, by name, Siddharth Dalmia

and Vijay Pal Dalmia came up with a writ petition in WP (C) No.1071

of 2017 under Article 32 of the Constitution of India seeking the

issue of a writ of mandamus directing the respondents to declare as

illegal and ban all virtual currencies as well as ban all websites and

mobile applications which facilitate the dealing in virtual currencies.

Similarly, another person, by name, Dwaipayan Bhowmick came up

with a writ petition in WP (C) No.1076 of 2017, seeking the issue of a

17

writ of mandamus directing the respondents to regulate the flow of

Bitcoin (crypto money) and to constitute a committee of experts to

consider the prohibition/regulation of Bitcoin and other crypto

currencies. On 13.11.2017, this Court ordered notice in both the writ

petitions.

2.18. Around the same time, namely, November 2017, the Inter-

Regulatory Working Group on Fintech and Digital Banking, set up by

RBI, pursuant to a decision taken by the Financial Stability and

Development Council Sub-Committee way back in April 2016,

submitted a report. This report, in paragraph 2.1.3.2, dealt with

Digital Currencies. It defined ‘digital currencies’ to mean digital

representations of value, issued by private developers and

denominated in their own unit of account. The Report also stated

that “digital currencies are not necessarily attached to a fiat

currency, but are accepted by natural or legal persons as a

means of exchange.”

2.19. Thereafter, RBI issued another Press Release dated 05-

12-2017 reiterating the concerns expressed in earlier press releases.

The Government of India, Ministry of Finance also issued a statement

on 29-12-2017 cautioning the users, holders and traders of VCs that

they are not recognized as legal tender and that the investors should

avoid participating in them.

18

2.20. On 01-02-2018, the Minister of Finance, in his budget

speech said that the Government did not consider crypto currencies

as legal tender or coin and that all measures to eliminate the use of

these currencies in financing illegitimate activities or as part of the

payment system, will be taken by the Government. However, he also

said that the Government will explore the use of blockchain

technology proactively for ushering in digital economy.

2.21. The Central Board of Direct Taxes (CBDT), by an Office

Memorandum dated 05-03-2018, submitted to the Department of

Economic Affairs, a draft scheme proposing a ban on

cryptocurrencies. But the draft scheme advocated a step-by-step

approach, as many persons had already invested in cryptocurrencies.

The scheme also contained an advice to carry out legislative

amendments before banning them.

2.22. In the wake of a meeting of G-20 Finance Ministers and

Central Bank Governors that was scheduled to be held in mid-March

2018, the Financial Stability Board

2

(FSB) sent out a communication

dated 13-03-2018. It was indicated in the said communication that

as per the initial assessment of FSB, crypto assets did not pose risks

to global financial stability, as their combined global market value

even at their peak, was less than 1% of global GDP. But the report

also noted that the initial assessment was likely to change and that

2

FSB was established by G-20 in April 2009, as a successor to the Financial Stability

Forum founded in 1999 by G-7 Finance Ministers and Central Bank Governors.

19

crypto assets raised a host of issues around consumer and investor

protection as well as their use to shield illicit activity and for money

laundering and terrorist financing.

2.23. The communique issued by G-20, after the meeting of its

Finance Ministers and Central Bank Governors on March 19-20,

2018 also acknowledged that technological innovation including

that underlying crypto assets, has the potential to improve the

efficiency and inclusiveness of the financial system and the

economy more broadly. But it also noted that crypto assets do

raise issues with respect to consumer and investor protection,

market integrity, tax evasion, money laundering and terrorist

financing. Though crypto assets lacked the key attributes of

sovereign currencies, they could, at some point, have financial

stability implications. Therefore, the communique resolved to

implement FATF standards and to call on international standard-

setting bodies to continue their monitoring of crypto assets and their

risks.

2.24. On 02-04-2018, RBI sent an e-mail to the Government,

enclosing a note on regulating crypto assets. It was with reference to

the record of discussions of the last meeting of the Inter-Ministerial

Committee on virtual currency. This note examined the pros and

cons of banning and regulating cryptocurrencies and suggested that

it had to be done, backed by suitable legal provisions.

20

2.25. Immediately thereafter, the Statement dated 05-04-2018

and the Circular dated 06-04-2018, impugned in these writ petitions

came to be issued by RBI. It appears that at around the same time

(April 2018), the Inter-Ministerial Committee submitted its initial

report, (or a precursor to the report) along with a draft bill known as

Crypto Token and Crypto Asset (Banning, Control and

Regulation) Bill, 2018.

3

2.26. But in the meantime, a few companies which run online

crypto assets exchange platforms together with the shareholders/

founders of those companies and a few individual crypto assets

traders came up with the first of the writ petitions on hand, namely

WP (C) No. 373 of 2018, challenging the aforesaid Statement dated

05-04-2018 and Circular dated 06-04-2018. On 01-05-2018 this writ

petition was directed to be tagged along with the writ petitions WP (C)

Nos. 1071 and 1076 of 2017 which sought a ban on or regulation of

cryptocurrencies.

2.27. On 11-05-2018, all the three writ petitions, namely WP (C)

Nos. 1071 and 1076 of 2017 and 373 of 2018, came up for hearing.

At that time, it was pointed out that a few High Courts were also

seized of writ petitions concerning cryptocurrencies. Therefore, this

Court gave liberty to RBI to move appropriate applications for

3

The fate of the 2018 Bill is not known but a fresh bill called ‘Banning of

Cryptocurrency and Regulation of Official Digital Currency Bill, 2019’ has been

submitted.

21

transfer of all those cases to this Court.

2.28. Accordingly, RBI came up with transfer petitions and the

transfer petitions were taken on Board on 17-05-2018 and a

direction was issued that no High Court shall entertain any writ

petition relating to the impugned Circular dated 06-04-2018. This

Court also passed an interim order on 17-05-2018 permitting the

petitioners in WP (C) No. 1071 of 2017 to submit a representation to

RBI with a further direction to RBI to deal with the same in

accordance with law.

2.29. In the meantime, the Internet and Mobile Association of

India came up with the second of the writ petitions on hand, namely

WP (C) No. 528 of 2018 and notice was ordered in the said writ

petition on 03-07-2018. While doing so, this Court issued a direction

to RBI to dispose of the representation, if any, already submitted by

the Association. Accordingly, RBI considered the representation and

issued two communications dated 06-07-2018 and 09-07-2018.

2.30. On 23-07-2018, SEBI sent its comments on the 2018 Bill,

to the Department of Economic Affairs. Their primary objection to the

Bill was that they are not best suited to be the regulators of crypto

assets and tokens.

2.31. Next came the Annual Report of RBI for the year 2017-

2018. It contained a separate Box II.3.2 on “Cryptocurrency: Evolving

challenges”. The relevant portion of the same reads as follows:

22

“Though cryptocurrency may not currently pose systemic

risks, its increasing popularity leading to price bubbles

raises serious concerns for consumer and investor

protection, and market integrity. Notably, Bitcoins lost

nearly US$200 billion in market capitalisation in about two

months from the peak value in December 2017. As per the

CoinMarketCap, the overall cryptocurrency market had

nearly touched US$800 billion in January 2018.

The cryptocurrency eco-system may affect the

existing payment and settlement system which

could, in turn, influence the transmission of

monetary policy. Furthermore, being stored in

digital/electronic media – electronic wallets – it is prone to

hacking and operational risks, a few instances of which

have already been observed globally. There is no

established framework for recourse to customer

problems/disputes resolution as payments by

cryptocurrencies take place on a peer-to-peer basis without

an authorised central agency which regulates such

payments. There exists a high possibility of its usage for

illicit activities, including tax avoidance. The absence of

information on counterparties in such peer-to-peer

anonymous/ pseudonymous systems could subject users

to unintentional breaches of anti-money laundering laws

(AML) as well as laws for combating the financing of

terrorism (CFT) (Committee on Payments and Market

Infrastructures – CPMI, 2015). The Bank for

International Settlements (BIS) has recently warned

that the emergence of cryptocurrencies has become a

combination of a bubble, a Ponzi scheme and an

environmental disaster, and calls for policy

responses (BIS, 2018). The Financial Action Task Force

(FATF) has also observed that cryptoassets are being used

for money laundering and terrorist financing. A globally

coordinated approach is necessary to prevent abuses and

to strictly limit interconnections with regulated financial

institutions.

On a global level, regulatory responses to cryptocurrency

have ranged from a complete clamp down in some

jurisdictions to a comparatively ‘light touch regulatory

approach’. The Securities and Exchange Commission (SEC)

23

and the Commodity Futures Trading Commission (CFTC)

have emerged as the primary regulators of

cryptocurrencies in the United States, where these assets

like most other jurisdictions, do not enjoy the legal tender

status. Asian countries have experienced oversized

concentration of crypto players – Japan and South Korea

account for the biggest shares of crypto asset markets in

the world. In the case of Bitcoins, half of transactions

worldwide are carried out in Japan. In September 2017,

Japan approved transactions by its exchanges in

cryptocurrencies. China’s exchanges hosted a

disproportionately large volumes of global Bitcoin trading

until their ban recently. […]

Developments on this front need to be monitored as some

trading may shift from exchanges to peer-to-peer mode,

which may also involve increased usage of cash.

Possibilities of migration of crypto exchange houses to dark

pools/cash and to offshore locations, thus raising concerns

on AML/CFT and taxation issues, require close watch.”

(emphasis supplied)

2.32. In this background, all the four writ petitions namely WP

(C) Nos. 1071 and 1076 of 2017 (seeking a ban) and WP (C) Nos. 373

and 528 of 2018 (challenging the indirect ban) came up for hearing,

along with the transfer petitions, on 25-10-2018, when this Court

was informed that the Union of India had already constituted a

committee and that this Inter-Ministerial Committee was deliberating

on the issue. Therefore, the writ petitions were adjourned to enable

the Committee to come up with their recommendations.

2.33. It appears that the Committee so constituted, submitted a

report on 28-02-2019 indicating the action to be taken in relation to

virtual currencies. A bill known as “Banning of Cryptocurrency and

24

Regulation of Official Digital Currency Bill, 2019” had also been

prepared by then to be introduced in the Lok Sabha. To this report of

the Committee, is appended, the minutes of the discussions of the

Committee in the meetings held on 27-11-2017, 22-02-2018, and 09-

01-2019. The contents of the report of the Inter-Ministerial

Committee dated 28-02-2019, can be well understood only if we look

at the Record of Discussions of the meetings of the Committee. The

Record of Discussions held on 27-11-2017 shows that the Inter-

Ministerial Committee was of the initial view that the banning

option was difficult to implement and that it can also drive

some operators underground, encouraging the use of such

currencies for illegitimate purposes. But it was generally agreed in

the said meeting that VCs cannot be treated as currency. However, in

the meeting held on 22-02-2018, the Deputy Governor, RBI made

an initial intervention and argued in favour of using the

banning option. Eventually, the other members of the Committee

agreed, and it was resolved in the said meeting that a detailed paper

on the option of banning VCs, including a draft law could be

prepared and submitted by RBI and CBDT. It was also resolved to

prepare a detailed paper within Department of Economic Affairs on

options of regulating crypto assets. Following the same, it was

resolved in the next meeting held on 09-01-2019 that a Standing

Committee should be constituted to revisit certain issues. Eventually,

25

the Inter-Ministerial Committee submitted the aforesaid report dated

28-02-2019. The key aspects of this report are:

i. Virtual currency is a digital representation of value that can

be digitally traded and it can function as a medium of exchange

and/or a unit of account and/or a store of value, though it does not

have the status of a legal tender.

ii. Initial Coin Offerings (hereinafter, “ICO”) are a way for

companies to raise money by issuing digital tokens in exchange for

fiat currency or cryptocurrency, but there is a clear risk with the

issuance of ICOs as many of the companies are looking to raise

money without having any tangible products. In the year 2018, as

many as 983 ICOs were issued, through which funds to the tune of

USD 20 billion were raised.

iii. Virtual currencies are accorded different legal treatment by

different countries, which range from barter transactions to mode of

payment to legal tender. Countries like China have imposed a

complete ban.

iv. The mining of non-official virtual currencies is very resource-

intensive requiring enormous amounts of electricity which may prove

to be an environmental disaster.

v. They may also affect the ability of the Central Banks to carry

out their mandates.

vi. China has not only banned trading in cryptocurrencies but

26

also used its firewall to ban crypto currency exchanges. China even

blocked crypto currency focused accounts from WeChat and crypto-

currency related content from Baidu. However, Chinese traders use

VPNs to circumvent these bans.

The report dated 28-02-2019 of the Inter-Ministerial Committee

finally made certain recommendations which included a complete

ban on private cryptocurrencies.

2.34. It is important to note here that the report of the Inter-

Ministerial Committee dated 28-02-2019 not only recommended

a ban, but also specifically endorsed the stand taken by RBI to

eliminate the interface of institutions regulated by RBI from

crypto currencies.

2.35. As a matter of fact, the issue of the impugned Circular by

RBI was even taken note of by the Financial Stability Board (of G-20),

in a document titled ‘Crypto Assets Regulators Directory’, submitted

to G-20 Finance Ministers and Central Bank Governors in April

2019. While acknowledging the fact that RBI does not have a legal

mandate to directly regulate crypto assets, this Directory indicated

that with a view to ring fence its regulated entities from the risks

associated with VCs, RBI has issued the impugned Circular.

2.36. In a report released in June 2019 under the caption

‘Guidance for a risk-based approach to Virtual Assets and

Virtual Asset Service Providers’, FATF reiterated a risk-based

27

approach advocated in FATF 2012 and 2015 recommendations. At

the same time, this Guidance recognized that a jurisdiction has

the discretion to prohibit VA activities and VASPs in order to

support other policy goals not addressed in the Guidance such

as consumer protection, safety and soundness or monetary

policy. But the Guidance also suggested that countries which

prohibit VA activities or VASPs should also assess the effect that

such prohibition may have on their money laundering and terrorist

financing risks.

2.37. It is also relevant to note here that the Government was

conscious of the impugned Circular issued by RBI. This can be seen

from the answer provided by the Minister of State in the Ministry of

Finance, on 16-07-2019 in response to a question raised in the Rajya

Sabha (Unstarred question no. 2591). While answering in the

negative, the question whether the Government had banned

cryptocurrencies in the country, the Minister of State added that RBI

has been issuing advisories, press releases and circulars.

2.38. On 22-07-2019, the Report of the Inter-Ministerial

Committee, recommending a ban, along with the draft of the Bill

“Banning of Crypto currency and Regulation of Official Digital

Currency Bill 2019”, was hosted in the website of the Department of

Economic Affairs. Therefore, on 08-08-2019, the first two writ

petitions namely WP (C) Nos. 1071 and 1076 of 2017 were delinked

28

and adjourned to January 2020, since, the prayers made in these

two writ petitions (seeking a ban) appeared substantially answered.

2.39. Thereafter, the present writ petitions were taken up for

hearing and this Court passed an interim direction on 21-08-2019,

directing the Reserve Bank of India to give a detailed point-wise reply

to the representations dated 29-05-2018 and 30-05-2018. The reply

already given by RBI to the representations dated 29-05-2018 and

30-05-2018 was found by this Court to be inadequate and hence this

direction. Accordingly, RBI gave a detailed point-wise reply on 04-09-

2019 and 18-09-2019. Thereafter, the present writ petitions were

taken up for hearing.

3. FLASHBACK

3.1. The archeological excavations carried out at the (world wide

web) sites, reveal that this digital currency civilization is just 12 years

old (at the most, 37 years). But these excavations became necessary

since virtual currencies, known by different names such as crypto

assets, crypto currencies, digital assets, electronic currency, digital

currency etc., elude an exact and precise definition, making it

impossible to identify them as belonging either to the category of legal

tender solely or to the category of commodity/good or stock solely.

3.2. Any attempt to define what a virtual currency is, it

appears, should follow the Vedic analysis of negation namely “neti,

29

neti”. Avadhuta Gita of Dattatreya says, “by such sentences as ‘that

thou are’, our own self or that which is untrue and composed of

the 5 elements, is affirmed, but the sruti says ‘not this not

that’.”

4

The concept of Neti Neti is an expression of something

inexpressible, but which seeks to capture the essence of that to

which no other definition applies. This conundrum will squarely

apply to crypto currencies and hence this flashback, into its genesis,

so that its DNA is sequenced.

3.3. Though the idea of digital cash appears to have been first

introduced by David Lee Chaum, an American Computer Scientist

and Cryptographer way back in 1983 in a research paper and was

actually launched by him in 1990 through a company by name

Digicash, the company filed for bankruptcy in 1998, with Digicash

becoming Digi-crash. But the actual story of creation of

cryptocurrencies began, in a more scientific way, according to

Nathaniel Popper, the New York Times journalist,

5

in 1997, when a

British Cypherpunk

6

by name Adam Back released a plan called

hashcash, which claimed to have solved some of the problems that

stalled the digital cash project. But this program had its

shortcomings. Another Cypherpunk by name Nick Szabo, came up

4

tattvamasyādivākyena svātmā hi pratipāditaḥ

neti neti śrutirbrūyād anṛtaṁ pāñcabhautikam-

5

From his book “Digital Gold: Bitcoin and the inside story of the Misfits and Millionaires

Trying to Reinvent Money”.

6

Cypherpunk is an activist advocating widespread use of strong cryptography and privacy

enhancing technologies, as a route to social and political change. This word was added to

the Oxford English Dictionary in November 2006.

30

with a concept called bitgold, which attempted to solve hashcash’s

shortcomings. Soon, an American by name Wei Dai came up with

something called b-money. Hal Finney, another American created his

own option. But all of them had a common goal, which, as revealed

by Adam Back was as follows:

“What we want is fully anonymous, ultra low

transaction cost, transferable units of exchange. If

we get that going… the banks will become the

obsolete dinosaurs they deserve to become.”

3.4. But all these experiments continued to hit roadblocks,

until the emergence of Satoshi Nakamoto (who still remains

anonymous) in the world of netizens. It appears that Satoshi sent

an e-mail in August 2008 to Adam Back attaching a white paper

prepared by him on what was called ‘Bitcoin’. The gist of what

Satoshi stated in his paper is indicated in simple terms, for the

understanding of the common man, by Nathaniel Popper, in his

book as follows:

“Rather than relying on a central bank or company to issue

and keep track of the money – as the existing financial

system and Chaum’s DigiCash did – this system was set

up so 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, on a

communally maintained database that would come to be

known as the blockchain.

The process by which this all happened had many layers,

and it would take even experts, months to understand how

they all worked together. But the basic elements of the

system can be sketched out in rough terms, and were in

Satoshi’s paper, which would become known as the

31

Bitcoin white paper.

According to the paper, each user of the system could have

one or more public Bitcoin addresses – sort of like bank

account numbers – and a private key for each address.

The coins attached to a given address could be spent only

by a person with the private key corresponding to the

address. The private key was slightly different from a

traditional password, which has to be kept by some

central authority to check that the user is entering the

correct password. In Bitcoin, Satoshi harnessed the

wonders of public-key cryptography to make it possible for

a user – let’s call her Alice again – to sign off on a

transaction, and prove she has the private key, without

anyone else ever needing to see or know her private key.

Once Alice signed off on a transaction with her private key

she would broadcast it out to all the other computers on

the Bitcoin network. Those computers would check that

Alice had the coins she was trying to spend. They could do

this by consulting the public record of all Bitcoin

transactions, which computers on the network kept a copy

of. Once the computers confirmed that Alice’s address did

indeed have the money she was trying to spend, the

information about Alice’s transaction was recorded in a list

of all recent transactions, referred to as a block, on the

blockchain. […]

The result of this complicated process was something that

was deceptively simple but never previously possible: a

financial network that could create and move money

without a central authority. No bank, no credit card

company, no regulators. The system was designed so that

no one other than the holder of a private key could spend

or take the money associated with a particular Bitcoin

address. What’s more, each user of the system could be

confident that, at every moment in time, there would be

only one public, unalterable record of what everyone in the

system owned. To believe in this, the users didn’t have to

trust Satoshi, as the users of DigiCash had to trust David

Chaum, or users of the dollar had to trust the Federal

Reserve. They just had to trust their own computers

running the Bitcoin software, and the code Satoshi wrote,

32

which was open source, and therefore available for

everyone to review. If the users didn’t like something about

the rules set down by Satoshi’s software, they could

change the rules. People who joined the Bitcoin network

were, quite literally, both customers and owners of both

the bank and the mint.”

3.5. That Satoshi and the Cypherpunks who

participated in the initial experiments developed Bitcoin as

an alternative to conventional currency, to counter the

problems of debasement of currency by central agencies, was

made clear by Satoshi himself when he said: “The root problem

with conventional currency is all the trust that’s required to make it

work. The Central Bank must be trusted not to debase the currency

but the history of fiat currencies is full of breaches of that trust.”

3.6. What attracted people to Satoshi’s proposal, was the fact

that while Central Banks had no restraints in unlimited printing of

money, thereby devaluing all savings and holdings, the Bitcoin

software had rules to ensure that the process of creating new

coins would stop after 21 million were out in the world. When

Martti Malmi, a student at the Helsinki University of Technology,

joined hands with Satoshi to improvise the project and to market

it, he formulated the philosophy in the following words:

“Be safe from the unfair monetary policies of the

monopolistic Central Banks and the other risks of

centralized power over a money supply. The limited

inflation of Bitcoin system’s money supply is

33

distributed evenly (by CPU power) throughout the

network, not monopolized to a banking elite.”

3.7. Therefore, it is beyond any pale of doubt that irrespective of

the metamorphosis (or gene mutation) it has undergone over the

years, bitcoin, the Adam or Manu of the race of cryptocurrencies, was

developed as an alternative to fiat currency. Keeping this birth chart

of virtual currencies in mind, let us now see how the petitioners are

aggrieved by the impugned decisions of RBI, the grounds on which

they challenge the same and the justification sought to be provided

by RBI.

4. BACKGROUND SCORE (of the petitioners)

4.1. The theme of the song of the petitioners in one of the writ

petitions, as fine-tuned by Shri Ashim Sood, learned Counsel, can be

summarized as follows:

I. RBI has no power to prohibit the activity of trading in virtual

currencies through VC exchanges since:

(i) Virtual currencies are not legal tender but tradable

commodities/digital goods, not falling within the regulatory

framework of the RBI Act, 1934 or the Banking Regulation

Act, 1949.

(ii) Virtual currencies do not even fall within the credit

system of the country, so as to enable RBI to fall back upon

the Preamble to the RBI Act 1934, which gives a mandate

34

to RBI to operate the currency and credit system of the

country to its advantage.

(iii) Neither the power to regulate the financial system of

the country to its advantage conferred under Section 45JA,

nor the power to regulate the credit system of the country

conferred under Section 45L of the RBI Act, 1934

exercisable in public interest and upon arriving at a

satisfaction, is so elastic as to cover goods that do not fall

within the purview of the financial system or credit system

of the country.

(iv) The power to issue directions “in the public interest”

conferred under Section 35A(1)(a) of the Banking

Regulation Act, 1949 and the power to caution or prohibit

banking companies against entering into any particular

transaction conferred under Section 36(1)(a) do not extend

to the issue of blanket directions that would deny access by

virtual currency exchanges, to the banking services of the

country, as the expression “public interest” appearing in a

particular provision in a statute should take its colour from

the context of the statute.

(v) The power conferred upon RBI under Section 10(2) of

the Payment and Settlement Systems Act, 2007 to issue

guidelines for proper and efficient management of payment

35

systems and under Section 18 of the said Act to lay down

policies relating to the regulation of payment systems and

to give directions pertaining to the conduct of business

relating to payments systems, exercisable in public interest

upon being satisfied, is also not applicable to virtual

currency exchanges, as the services rendered by them do

not fall within the definition of the expression “payment

system” under Section 2(1)(i) of the said Act.

II. Assuming but not admitting that RBI has the power to deal with

the activities carried on by VCEs, the mode of exercise of such power

can be tested on certain well established parameters. They are –

(i) application of mind/satisfaction/relevant and irrelevant

considerations

(ii) Malice in law/colorable exercise of power

(iii) M.S. Gill reasoning

(iv) Calibration/Proportionality

III. All other stake holders such as the Department of Economic

Affairs of the Government of India, Securities and Exchange Board of

India, Central Board of Direct Taxes, etc., have actually recognized

the positive and beneficial aspects of cryptocurrencies as digital

assets and the Distributed Ledger Technology from which crypto

currencies emanate and hence have recommended only a regulatory

36

regime, but RBI has taken a contra position without any rational

basis.

IV. Many of the developed and developing economies of the world,

multinational and international bodies and the courts of various

countries have scanned crypto currencies, but found nothing

pernicious about them and even the attempt of the Government of

India to bring a legislation banning crypto currencies, is yet to reach

its logical end.

V. RBI should have taken into account the fact that the members of

Petitioner association have taken necessary precautions including

avoiding cash transactions, ensuring compliance with KYC norms, of

their own accord and allowing peer-to-peer transactions only within

the country.

VI. RBI has not applied its mind to the fact that not every crypto

currency is anonymous. The report of the European Parliament also

classified VCs into anonymous and pseudo-anonymous. Therefore, if

the problem sought to be addressed is anonymity of transactions, the

same could have been achieved by resorting to the least invasive

option of prohibiting only anonymous VCs.

VII. It is a paradox that blockchain technology is acceptable to RBI,

but crypto currency is not.

VIII. The benefit of the rule of judicial deference to economic policies

37

of the state is not available to RBI, as the impugned Circular is an

exercise of power by a statutory body corporate and is neither a

legislation nor an exercise of executive power. In any case, there is no

deference in law to process but only to opinion emanating from the

process. No study was undertaken by RBI before the impugned

measure was taken and hence, the impugned decisions are not even

based upon knowledge or expertise.

IX. While regulation of a trade or business through reasonable

restrictions imposed under a law made in the interests of the general

public is saved by Article 19(6) of the Constitution, a total

prohibition, especially through a subordinate legislation such as a

directive from RBI, of an activity not declared by law to be unlawful,

is violative of Article 19(1)(g). Whether a directive would tantamount

to “regulation” or “prohibition”, depends upon the impact of the

directive.

4.2. The contentions of the petitioners in the other writ petition

(WP (C) No. 373 of 2018), as set to tune by Shri Nakul Dewan,

learned Senior Counsel, are:

I. The immediate effect of the impugned Circular is to completely

severe the ties between the virtual currency market and the formal

Indian economy, without actually a legislative ban on the trading of

VCs, thereby promoting cash and black-market transactions.

II. The impugned Circular fails to take note of the difference between

38

various VC schemes such as closed VC schemes, unidirectional flow

VC schemes and bidirectional flow VC schemes and unreasonably

differentiates between unidirectional flow schemes and bidirectional

flow schemes, by targeting only bidirectional flow schemes.

III. VCs do not qualify as money, as they do not fulfill the four

characteristics of money namely medium of exchange, unit of

account, store of value and constituting a final discharge of debt and

since RBI has accepted this position, they have no power to regulate

it.

IV. Considering the fact that historically, money as understood in the

social sense and money as understood in the legal sense, are

different, the courts in different jurisdictions such as USA and

Singapore have understood VCs to be akin to money or funds at

times or as commodities/intangible properties at other times.

V. The impugned Circular is manifestly arbitrary, based on non-

reasonable classification and it imposes disproportionate restrictions.

VI. A decision to prohibit an article as res extra commercium is a

matter of legislative policy and must arise out of an Act of legislature

and not by a notification issued by an executive authority.

4.3. In addition to the aforementioned legal contentions, Shri

Nakul Dewan learned Senior Counsel also submitted that as a result

of the impugned Circular, the virtual currency exchange (VCE) run

by one of the petitioners in one writ petition was shut down on 30-

39

03-2019, the VCE run by another petitioner became non-operational,

though their website still opens and the VCE run by yet another

petitioner by name Discidium Internet Labs Pvt. Ltd., not only

became non-operational, but an amount of Rs. 12 crores lying in

their account also got frozen. However, one VCE by name CoinDCX

alone survives, by operating on a peer-to-peer (P2P) basis.

4.4. In support of their respective contentions, Shri Ashim Sood

and Shri Nakul Dewan, the learned counsels, relied upon a number

of decisions of this court and other courts. We shall refer to them

when we take up their contentions for analysis.

5. SCRIPT (of RBI)

5.1. RBI has filed counter-affidavit in one of these writ petitions,

covering the entire gamut. But the response of RBI to the contentions

of the petitioners is available not only in the counter-affidavit, but

also in some communications issued by them pursuant to certain

interim directions issued by this court.

5.2. For instance, this Court passed an interim direction on 21-

08-2019, after hearing lengthy arguments, directing the Reserve

Bank of India to give a detailed point-wise reply to the

representations dated 29-05-2018 and 30-05-2018. Pursuant to the

said interim direction, RBI gave a detailed point-wise reply on 04-09-

2019 and 18-09-2019. Therefore, RBI’s stand in these cases has to

40

be culled out not only from the counter-affidavit but also from the

orders passed/replies issued to the representations of the writ

petitioners, during the pendency of these writ petitions.

5.3. In brief, the response of RBI to the issues raised by the

petitioners, as articulated by Shri Shyam Divan, learned Senior

Counsel, can be summarized as follows:

(i) Virtual currencies do not satisfy the criteria such as

store of value, medium of payment and unit of account,

required for being acknowledged as currency.

(ii) Virtual currency exchanges do not have any formal or

structured mechanism for handling consumer disputes/

grievances.

(iii) Virtual currencies are capable of being used for illegal

activities due to their anonymity/pseudo-anonymity.

(iv) Increased use of virtual currencies would eventually

erode the monetary stability of the Indian currency and the

credit system.

(v) The impugned decision of RBI is legislative in

character and is in the realm of an economic policy

decision taken by an expert body warranting a hands-off

approach from the Court.

(vi) The impugned decision is within the range of wide

powers conferred upon RBI under the Banking Regulation

41

Act, 1949, the Reserve Bank of India Act, 1934 and the

Payment and Settlement Systems Act, 2007.

(vii) No one has an unfettered fundamental right to do

business on the network of the entities regulated by RBI.

(viii) The impugned decisions do not violate any of the

rights guaranteed by Articles 14, 19 and 21 of the

Constitution of India.

(ix) The impugned decisions are not excessive,

confiscatory or disproportionate in as much as RBI has

given three months’ time to the affected parties to sever

their relationships with the banks. This is apart from the

repeated cautions issued to the stakeholders by RBI

through Press Releases from the year 2013.

(x) The ambit of the 2013 press release was much wider

than just consumer protection. RBI cautioned users,

holders and traders of VCs about the potential financial,

operational, legal, customer protection and security related

risks they were exposing themselves to.

(xi) The host of material taken note of by RBI in their

reports, the reports of the committees to which RBI was a

party and the cautions repeatedly issued by RBI over a

period of 5 years, would demonstrate the application of

mind on the part of RBI. They also demonstrate that RBI

42

did not proceed in haste but proceeded with great care and

caution. Therefore, the satisfaction arrived at by them was

too loud and clear to be ignored. The standard for

considering the impugned Circular, is the existence of

material and not the adequacy or sufficiency of such

material.

(xii) In any case, there is no complete ban on virtual

currencies or on the use of distributed ledger technology by

the regulated entities.

(xiii) The impugned decisions were necessitated in public

interest to protect the interest of consumers, the interest of

the payment and settlement systems of the country and for

protection of regulated entities against exposure to high

volatility of the virtual currencies. RBI is empowered and

duty bound to take such pre-emptive measures in public

interest and the power to regulate includes the power to

prohibit.

(xiv) The impugned decisions were necessitated because in

the opinion of RBI, VC transactions cannot be termed as a

payment system, but only peer-to-peer transactions which

do not involve a system provider under the Payments and

Settlement Systems Act. Despite this, VC transactions have

the potential to develop as a parallel system of payment.

43

(xv) The KYC norms followed by the VCEs are far below

what other participants in the payments and monetary

system follow. In any case, KYC norms are ineffective, as

the inherent characteristic of anonymity of VCs does not

get remedied.

(xvi) Cross-border nature of the trade in VCs, coupled with

the lack of accountability, has the potential to impact the

regulated payments system managed by RBI. A large

constituent of the VC universe does not hold membership

of the Petitioner association or is not even accountable for

their acts but is material and instrumental in driving the

VC trade.

(xvii) RBI or any other Government authority would not be

able to curtail, limit, regulate or control the generation of

VCs and their transactions, resulting in ever-present and

inevitable financial risks.

6. UNFOLDING OF THE PLOT

6.1. In the light of the above factual matrix and the rival

contentions, let us now see how the plot before us, unfolds.

I. No Power at all for RBI (Ultra vires)

6.2. The first ground of attack revolves around the power of RBI

to deal with, regulate or even ban VCs and VCEs. The entire

44

foundation of this contention rests on the stand taken by the

petitioners that VCs are not money or other legal tender, but only

goods/commodities, falling outside the purview of the RBI Act, 1934,

Banking Regulation Act, 1949 and the Payment and Settlement

Systems Act, 2007. In fact, the impugned Circular of RBI dated 06-

04-2018 was issued in exercise of the powers conferred upon RBI by

all these three enactments. Therefore, if virtual currencies do not fall

within subject matter covered by any or all of these three enactments

and over which RBI has a statutory control, then the petitioners will

be right in contending that the Circular is ultra vires.

6.3. Hence it is necessary (i) first to see the role historically

assigned to a central bank such as RBI, the powers and functions

conferred upon and entrusted to RBI and the statutory scheme of all

the above three enactments and (ii) then to investigate what these

virtual currencies really are. Therefore, we shall divide our discussion

in this regard into two parts, the first concerning the role, powers

and functions of RBI and the second concerning the identity of

virtual currencies.

Role assigned to, functions entrusted to and the powers

conferred upon RBI as a Central Bank

6.4. The Reserve Bank of India was established under Act 2 of

1934 for the purpose of (i) regulating the issue of bank notes, (ii)

keeping of reserves with a view to securing monetary stability in the

45

country and (iii) operating the currency and credit system of the

country to its advantage. The role of a central bank such as the

Reserve Bank in an economy is to manage (i) the currency (ii) the

money supply and (iii) interest rates. The unique feature of a central

bank is the monopoly that it has on increasing the monetary base in

the state and the control it has in the printing of the national

currency. The central bank virtually functions as “a lender of last

resort” to banks suffering a liquidity crisis.

6.5. Historians trace the rise of modern central banks to the

establishment of the Bank of England under a Royal Charter granted

on 27-07-1694 through the Tunnage Act, 1694. The establishment of

this bank in 1694 was not actually for stimulating the economy but

for financing the war that England had with France. The currency

crisis of 1797 and the creation of a ratio between the gold reserves

held by the Bank of England and the notes that the bank could

issue, under the Bank Charter Act, 1844 brought huge changes in

the way the central bank was supposed to function.

6.6. In so far as India is concerned, the functions of a central

bank were originally conferred upon the Imperial Bank of India,

established in the year 1921, under the Imperial Bank of India Act,

1920. The reason why and the manner in which the Imperial Bank

was established, is quite interesting to see. At the time when the

46

British Crown took over the control of the territories in India, after

the Sepoy Mutiny of 1857, there were three Presidency Banks, one in

Calcutta, another in Bombay and the third in Madras. All these three

banks established respectively in 1809, 1840 and 1843, were

authorized to issue notes up to certain specified limits. But this

privilege was withdrawn in 1862 under the Paper Currency Act,

which vested the sole right to issue notes with the Government of

India.

6.7. The question of absorption of the three Presidency Banks

into a central bank came up for consideration on and off. Though the

Chamberlain Commission, known as the Royal Commission on

Indian Finance and Currency, appointed in 1913, felt the need for

setting up a central bank, the proposal did not materialize. But after

the First World War, the Presidency Banks themselves favoured an

amalgamation. Therefore, the Imperial Bank of India Bill providing for

the amalgamation of all the three Presidency Banks was passed in

September 1920 and came into effect in January 1921. The trend of

setting up central banks gained momentum internationally, after the

International Financial Conferences held at Brussels in 1920 and at

Genoa in 1922.

6.8. But the maintenance of an overvalued exchange rate to

help British exporters, gave rise to a clash between the colonial

47

administration and Indian business interests. The Congress sought

devaluation and hence a Royal Commission was set up in 1925 to

examine the matter. This Royal Commission on Indian Currency and

Finance, also known as Hilton Young Commission (to which Dr. B. R.

Ambedkar also contributed a statement), recommended the creation

of a strong Central Bank for India in 1926. Though a bill known as

the Gold Standard and Reserve Bank of India Bill, 1927 to give effect

to the recommendations was introduced in the Legislative Assembly,

it was withdrawn on 10-02-1928. From 1930 onwards, the question

of establishing a Reserve Bank received fresh impetus, when

Constitutional reforms for the country were undertaken.

6.9. The White Paper on Indian Constitutional Reforms,

presented in March 1933, assumed that a Reserve Bank, free from

political influence, would have to be set up and should already be

successfully operating before the first Federal Ministry was installed.

6.10. Subsequently, a Departmental Committee (hereinafter

referred to, as “the India Office Committee”) was appointed in

London by the India Office, which submitted a report dated 14-03-

1933. This report was followed up by the appointment of the “London

Committee”, which endorsed the India Office Committee’s view that

the Reserve Bank should be free from any political influence.

48

6.11. Therefore, a Bill drafted on the basis of the

recommendations of the London Committee was introduced in

September 1933. In 1934, the Bill was passed. The Reserve Bank of

India commenced operations as the country’s central bank on 01-04-

1935. Under the Reserve Bank (Transfer of Public Ownership) Act,

1948, the bank was nationalized.

6.12. Once the historical background of the creation of RBI is

understood, it will be easy to appreciate its role in the economy of the

country and the functions and powers exercised by it statutorily.

6.13. As the Preamble of the RBI Act suggests, the object of

constitution of RBI was threefold namely (i) regulating the issue of

bank notes (ii) keeping of reserves with a view to securing monetary

stability in the country and (iii) operating the currency and credit

system of the country to its advantage.

6.14. In fact, the original Preamble of the Act contained only

three paragraphs. But paragraphs 2 and 3 of the Preamble were

substituted with 3 new paragraphs by Act 28 of 2016. Paragraphs 2

and 3 of the original Preamble and paragraphs 2 to 4 substituted in

2016, are presented in a tabular column as follows:

49

Paragraphs 2 and 3 as they originally

stood

Paragraphs 2 to 4 now substituted

AND WHEREAS in the present

disorganisation of the monetary

systems of the world it is not

possible to determine what will be

suitable as a permanent basis for the

Indian monetary system;

BUT WHEREAS it is expedient to

make temporary provision on the

basis of the existing monetary

system, and to leave the question of

the monetary standard best suited to

India to be considered when the

international monetary position has

become sufficiently clear and stable

to make it possible to frame

permanent measures;

AND WHEREAS it is essential to have a

modern monetary policy framework to

meet the challenge of an increasingly

complex economy;

AND WHEREAS the primary

objective of the monetary policy is to

maintain price stability while keeping in

mind the objective of growth;

AND WHEREAS the monetary policy

framework in India shall be operated by

the Reserve Bank of India;

6.15. It may be observed from the newly substituted paragraphs

that RBI is now vested with the obligation to operate the

monetary policy framework in India. An indication of the primary

objective of the monetary policy is provided in paragraph 3 which

says that the maintenance of price stability is the prime

objective even while the objective of growth is to be kept in

mind. Paragraph 2 recognizes the necessity to have a modern

monetary policy framework to meet the challenge of an increasingly

complex economy.

6.16. Therefore, it is clear that after the amendment under Act

28 of 2016, the very task of operating the monetary policy framework

has been conferred exclusively upon RBI.

50

6.17. Though the expression “monetary policy” is not defined in

the Act, an entire chapter under the title “Monetary Policy”

containing Sections 45Z to 45ZO was inserted as Chapter IIIF. The

provisions of this chapter are given overriding effect upon the other

provisions of the Act, under Section 45Z. Under Section 45ZA(1), the

central government is empowered to determine the inflation target in

terms of the consumer price index, once in every 5 years, in

consultation with RBI. The policy rate required to achieve the

inflation target is to be determined by a Monetary Policy Committee,

constituted under Section 45ZB.

6.18. The object of establishment of RBI is also spelt out in

Section 3(1). It says that “a bank to be called the Reserve Bank of

India shall be constituted for the purpose of taking over the

management of the currency from the Central Government and

of carrying on the business of banking in accordance with the

provisions of this Act”.

6.19. Chapter III of the Act enlists the central banking functions

of RBI. Section 17 authorizes RBI to carry on and transact several

kinds of businesses listed therein, one of which, referred in sub-

section (15) is the making and issue of bank notes. Section 20 which

forms part of Chapter III, obliges RBI (i) to accept monies for account

of the central government (ii) to make payments up to the amount

standing to the credit of its account and (iii) to carry out its

51

exchange, remittance and other banking operations including the

management of the public debt of the Union. Under Section 21,

the central government is obliged to entrust all its money,

remittance, exchange and banking transactions in India with RBI.

Under Section 22(1), RBI has the sole right to issue bank notes

in India (however, the central government has the power under

Section 28A(2) to issue Government of India notes of the

denominational value of Rs. 1/-). It may also issue currency notes of

the Government of India, on the recommendations of the Central

Board, for a period fixed by the central government. Sub-section (2)

of Section 22 goes one step further by stipulating that on and

from the date on which Chapter III comes into force, the central

government shall not issue any currency notes.

6.20. Section 26(1) makes every bank note a legal tender at any

place in India in payment, which is guaranteed by the central

government. Since a bank note issued by RBI is a legal tender

guaranteed by the central government, the central government is also

vested with the power under sub-section (2) of Section 26 to declare

any series of bank notes of any denomination, to cease to be legal

tender. But this can be done only on the recommendation of the

Central Board of Directors of RBI.

6.21. Under Section 38, the central government is prohibited

from putting into circulation any rupees, except through RBI.

52

Similarly, RBI is also prohibited from disposing of rupee coin

otherwise than for the purpose of circulation.

6.22. Chapter IIIB which contains provisions relating to non-

banking institutions (NBFCs) receiving deposits and financial

institutions, contains two important provisions, one in Section 45JA

and another in Section 45L. Sub section (1) of Section 45JA reads as

follows:

45JA. Power of Bank to determine policy and issue

directions.— (1) If the Bank is satisfied that, in the public

interest or to regulate the financial system of the country to

its advantage or to prevent the affairs of any non-banking

financial company being conducted in a manner

detrimental to the interest of the depositors or in a manner

prejudicial to the interest of the non-banking financial

company, it is necessary or expedient so to do, it may

determine the policy and give directions to all or any of the

non-banking financial companies relating to income

recognition, accounting standards, making of proper

provision for bad and doubtful debts, capital adequacy

based on risk weights for assets and credit conversion

factors for off balance-sheet items and also relating to

deployment of funds by a non-banking financial company

or a class of non-banking financial companies or non-

banking financial companies generally, as the case maybe,

and such non-banking financial companies shall be bound

to follow the policy so determined and the direction so

issued.

6.23. It may be seen that the aforesaid provision uses certain

words similar to those found in paragraph 1 of the Preamble. While

paragraph 1 of the Preamble speaks about the power of RBI to

operate the currency and credit system of the country to its

53

advantage, Section 45JA speaks about the power of RBI to regulate

the financial system of the country to its advantage.

6.24. The salient feature of Section 45JA is that it empowers

RBI, both (i) to determine the policy and (ii) to give directions to all

NBFCs in respect of certain matters. The concerns sought to be

addressed by Section 45JA(1) are (i) public interest (ii) financial

system of the country (iii) interests of the depositors and (iv)

interests of NBFCs.

6.25. Section 45L addresses yet another concern namely, the

regulation of the credit system of the country to its advantage.

Section 45L reads as follows:

45L. Power of Bank to call for information from financial

institutions and to give directions.—

(1) If the Bank is satisfied for the purpose of enabling it to

regulate the credit system of the country to its advantage it

is necessary so to do, it may—

(a) require financial institutions either generally or any

group of financial institutions or financial institution in

particular, to furnish to the Bank in such form, at such

intervals and within such time, such statements,

information or particulars relating to the business of such

financial institutions or institution, as may be specified by

the Bank by general or special order;

(b) give to such institutions either generally or to any such

institution in particular, directions relating to the conduct of

business by them or by it as financial institutions or

institution.

(2) Without prejudice to the generality of the power vested

in the Bank under clause (a) of sub-section (1), the

statements, information or particulars to be furnished by a

financial institution may relate to all or any of the following

matters, namely, the paid-up capital, reserves or other

liabilities, the investments whether in Government

54

securities or otherwise, the persons to whom, and the

purposes and periods for which, finance is provided and

the terms and conditions, including the rates of interest, on

which it is provided.

(3) In issuing directions to any financial institution under

clause (b) of sub-section (1), the Bank shall have due

regard to the conditions in which, and the objects for

which, the institution has been established, its statutory

responsibilities, if any, and the effect the business of such

financial institution is likely to have on trends in the money

and capital markets.

6.26. It may be seen that the phrase “credit system of the

country to its advantage”, as found in paragraph 1 of the Preamble, is

repeated in sub-section (1) of Section 45L. The only difference

between the two is that paragraph 1 of the Preamble speaks

about the operation of the credit system, while Section 45L (1)

speaks about regulation of the credit system. While exercising

the power to issue directions conferred by clause (b) of sub-section

(1) of Section 45L, RBI is obliged under sub-section (3) of Section

45L to have due regard to certain things, one of them being

“the effect the business of such financial institution is likely to

have on trends in the money and capital markets”.

6.27. Chapter IIID of the Act contains provisions for the

regulation of transactions in derivatives, money markets or

securities, etc. The expression “money market instruments” is

defined in clause (b) of Section 45U as follows:

45U(b) "money market instruments" include call or notice

money, term money, repo, reverse repo, certificate of

55

deposit, commercial usance bill, commercial paper and

such other debt instrument of original or initial maturity up

to one year as the Bank may specify from time to time;

6.28. Section 45W empowers RBI to determine the policy relating

to interest rates or interest rate products and to give directions in

that behalf to all or any of the agencies dealing in securities, money

market instruments, etc., for the purpose of regulating the financial

system of the country to its advantage. Section 45W(1) reads as

follows:

45W. Power to regulate transactions in derivatives, money

market instruments, etc.—(1) The Bank may, in public

interest, or to regulate the financial system of the country

to its advantage, determine the policy relating to interest

rates or interest rate products and give directions in that

behalf to all agencies or any of them, dealing in securities,

money market instruments, foreign exchange, derivatives,

or other instruments of like nature as the Bank may

specify from time to time:

Provided that the directions issued under this sub-

section shall not relate to the procedure for execution or

settlement of the trades in respect of the transactions

mentioned therein, on the Stock Exchanges recognised

under section 4 of the Securities Contracts (Regulation) Act,

1956 (42 of 1956).

6.29. It is important to note that Section 45W(1) contains merely

an illustrative list of transactions. This is seen by the use of the

expression “other instruments of like nature” appearing in the above

provision.

6.30. A careful scan of the RBI Act, 1934 in its entirety would

show that the operation/regulation of the credit/financial

56

system of the country to its advantage, is a thread that

connects all the provisions which confer powers upon RBI, both

to determine policy and to issue directions.

6.31. RBI Act, 1934 is not the only Act from which RBI derives

its powers. The Banking Regulation Act, 1949 is also a source of

power for RBI to do certain things. This can be seen from the

Statement of Objects and Reasons for the Banking Regulation Act,

1949. One of the main features of the Bill as indicated in the

Statement of Objects and Reasons was “widening the powers of RBI

so as to enable it to come to the aid of the banking companies in

times of emergency”.

6.32. Section 5 of the Banking Regulation Act, 1949 which

contains the interpretation clause defines the expression “banking

policy” under clause (ca) of Section 5. This definition reads as follows:

5(ca)

“

banking policy” means any policy which is specified

from time to time by the Reserve Bank in the interest of the

banking system or in the interest of monetary stability or

sound economic growth, having due regard to the interests

of the depositors, the volume of deposits and other

resources of the bank and the need for equitable allocation

and the efficient use of these deposits and resources;

6.33. Since Banking Regulation Act, 1949 was issued after the

RBI Act, 1934 and the nationalization of RBI, Section 5(ca) borrows

certain words such as “interest of the banking system” and “interest

57

of the monetary stability” and “economic growth” from the RBI Act,

1934.

6.34. Section 8 of the Banking Regulation Act, 1949 prohibits a

banking company from directly or indirectly dealing in the buying or

selling or bartering of goods. The Explanation to Section 8 also

defines the word “goods”, for the purposes of Section 8. Section 8

reads as follows:

8 - Prohibition of trading –

Notwithstanding anything contained in section 6 or in any

contract, no banking company shall directly or indirectly

deal in the buying or selling or bartering of goods, except in

connection with the realisation of security given to or held

by it, or engage in any trade, or buy, sell or barter goods

for others otherwise than in connection with bills of

exchange received for collection or negotiation or with such

of its business as is referred to in clause (i) of sub-section

(1) of section 6:

PROVIDED that this section shall not apply to any such

business as is specified in pursuance of clause (o) of sub-

section (1) of section 6.

Explanation.--For the purposes of this section, "goods"

means every kind of movable property, other than

actionable claims, stocks, shares, money, bullion and

specie, and all instruments referred to in clause (a) of sub-

section (1) of section 6.

6.35. Section 21 empowers RBI to determine the policy in

relation to advances to be followed by banking companies. The

determination of policy may be in (i) public interest (ii) interests

of depositors or (iii) interests of the banking policy. Once a policy

is determined by RBI under Section 21(1), all banking companies are

bound to follow the policy.

58

6.36. No company can carry on banking business in India

unless it holds a license issued by RBI. Under Section 22(1), RBI has

power to issue license, subject to certain terms and conditions as it

may think fit to impose.

6.37. Every banking company is obliged under Section 27(1) of

the Banking Regulation Act, 1949 to submit to RBI, monthly returns

in the prescribed form, showing its assets and liabilities. RBI is

conferred with powers under Section 29A even to call for information

about the affairs of any associate enterprise of a banking company.

Under sub-section (2) of Section 29A, RBI can even cause an

inspection of any associate enterprise of a banking company. A power

to conduct special audit of a banking company’s accounts is also

conferred upon RBI under Section 30(1B).

6.38. Section 35A of Banking Regulation Act, 1949 empowers

RBI to issue directions to banking companies. Such directions are

binding on the banking companies. The directions under Section 35A

may be issued (i) in public interest (ii) in the interest of banking

policy (iii) to prevent the affairs of the banking company from being

conducted in a manner prejudicial to the interests of the depositors

or of the banking company itself and (iv) to secure the proper

management of the banking company. Section 35A(1) reads as

follows:

59

35A. Power of the Reserve Bank to give directions.—(1)

Where the Reserve Bank is satisfied that—

(a) in the public interest; or

(aa) in the interest of banking policy; or

(b) to prevent the affairs of any banking company being

conducted in a manner detrimental to the interests of the

depositors or in a manner prejudicial to the interests of the

banking company; or

(c) to secure the proper management of any banking

company generally, it is necessary to issue directions

to banking companies generally or to any banking

company in particular, it may, from time to time, issue

such directions as it deems fit, and the banking companies

or the banking company, as the case may be, shall be

bound to comply with such directions.

6.39. Section 35AA and Section 35AB, inserted by the

Amendment Act 30 of 2017 (pursuant to the enactment of Insolvency

and Bankruptcy Code, 2016), empowers RBI respectively (i) to issue

directions to any banking company to initiate insolvency resolution

process, if so authorized by the central government and (ii) to issue

directions to any banking company for the resolution of stressed

assets.

6.40. Section 36(1)(a) empowers RBI to caution or prohibit

banking companies against entering into any particular transaction

or class of transactions. Section 36(1)(a) reads follows:

36. Further powers and functions of Reserve Bank.—(1)

The Reserve Bank may—(a) caution or prohibit banking

companies generally or any banking company in

particular against entering into any particular transaction

or class of transactions, and generally give advice to any

banking company;

60

Part IIA and IIAB of the Banking Regulation Act, 1949 confers powers

upon the Reserve Bank (i) under Section 36AA to remove managerial

or other persons from office (ii) under Section 36AB to appoint

additional directors and (iii) under Section 36ACA to order the

supersession of the board of directors.

6.41. For a long time, RBI drew its powers only from the

aforesaid 2 enactments, namely RBI Act, 1934 and the Banking

Regulation Act, 1949. But with the passage of time, as the industrial

economy grew and several banking companies came into existence

and a need to fast track paper-based cheque processing increased,

the banks came together to set up clearing houses. The clearing

houses developed the procedure of netting (arriving at the

multilateral net settlement). But with the advent of technology, new

payment systems such as MICR clearing, Electronic Funds Transfer

Systems, cash-based payment systems, RTGS (real time gross

settlement) etc. became popular. The development of multiple

payment systems, which operated only in the realm of contracts

among various stakeholders, did not have a legislative sanction.

Therefore, an Act known as the Payment and Settlement Systems

Act, 2007 was enacted with the object of providing for the regulation

and supervision of payment systems in India and to designate RBI as

the authority for that purpose.

61

6.42. It is seen from the Statement of Objects and Reasons of

the Bill that RBI is empowered to regulate and supervise various

payment and settlement systems in India including those operated by

non-banks, card companies, other payment system providers and the

proposed umbrella organization for retail payments. The Act further

empowers RBI to (i) lay down the procedure for authorization of

payment systems (ii) lay down the operation and technical standards

for payment systems (iii) issue directions and guidelines to system

providers (iv) call for information and furnish returns and documents

from the service providers (v) audit and inspect the systems and

premises of the system providers (vi) lay down the duties of the

system providers and (vii) make regulations for carrying out the

provisions of the Act.

6.43. Section 2(1)(i) defines a “payment system”. The Section

reads as follows:

2(1)(i) “payment system” means a system that enables

payment to be effected between a payer and a beneficiary,

involving clearing, payment or settlement service or all of

them, but does not include a stock exchange;

Explanation.- For the purposes of this clause, “payment

system” includes the systems enabling credit card

operations, debit card operations, smart card operations,

money transfer operations or similar operations;

6.44. Under Section 3 of the Payment and Settlement Systems

Act, 2007 RBI is the designated authority for the regulation and

supervision of payment systems under the Act.

62

6.45. Chapter III of the Act deals with “authorisation of

payment systems”. Section 4(1) of the Payment and Settlement

Systems Act, 2007 provides that any person other than RBI seeking

to commence or operate a payment system shall take authorization

from the Reserve Bank in that regard. Section 4(1) reads as follows:

4. Payment system not to operate without authorisation.—

(1) No person, other than the Reserve Bank, shall

commence or operate a payment system except under and

in accordance with an authorisation issued by the Reserve

Bank under the provisions of this Act:

Provided that nothing contained in this section shall apply

to—

(a) the continued operation of an existing payment system

on commencement of this Act for a period not exceeding six

months from such commencement, unless within such

period, the operator of such payment system obtains an

authorisation under this Act or the application for

authorisation made under section 7 of this Act is refused

by the Reserve Bank;

(b) any person acting as the duly appointed agent of

another person to whom the payment is due;

(c) a company accepting payments either from its holding

company or any of its subsidiary companies or from any

other company which is also a subsidiary of the same

holding company;

(d) any other person whom the Reserve Bank may, after

considering the interests of monetary policy or efficient

operation of payment systems, the size of any payment

system or for any other reason, by notification, exempt

from the provisions of this section.

6.46. Chapter IV of the Act specifies the regulatory and

supervisory powers of RBI. Under Section 10, RBI is empowered to

prescribe certain standards and guidelines for the proper and

efficient management of the payment systems. The Section reads as

follows:

63

10. Power to determine standards.—(1) The Reserve Bank

may, from time to time, prescribe—

(a) the format of payment instructions and the size and

shape of such instructions;

(b) the timings to be maintained by payment systems;

(c) the manner of transfer of funds within the payment

system, either through paper, electronic means or in any

other manner, between banks or between banks and other

system participants;

(d) such other standards to be complied with the payment

systems generally;

(e) the criteria for membership of payment systems

including continuation, termination and rejection of

membership;

(f) the conditions subject to which the system participants

shall participate in such fund transfers and the rights and

obligations of the system participants in such funds.

(2) Without prejudice to the provisions of sub-section (1),

the Reserve Bank may, from time to time, issue such

guidelines, as it may consider necessary for the proper

and efficient management of the payment systems

generally or with reference to any particular payment

system.

6.47. Section 11 of the Act provides that any change in the

system which would affect the structure or the operation of the

payment system would require prior approval from the Reserve Bank.

Section 11 reads as follows:

11. Notice of change in the payment system.—(1) No

system provider shall cause any change in the system

which would affect the structure or the operation of the

payment system without—

(a) the prior approval of the Reserve Bank; and

(b) giving notice of not less than thirty days to the system

participants after the approval of the Reserve Bank:

Provided that in the interest of monetary policy of the

country or in public interest, the Reserve Bank may permit

the system provider to make any changes in a payment

system without giving notice to the system participants

64

under clause (b) or requiring the system provider to give

notice for a period longer than thirty days.

(2) Where the Reserve Bank has any objection, to the

proposed change for any reason, it shall communicate

such objection to the systems provider within two weeks of

receipt of the intimation of the proposed changes from the

system provider.

(3) The system provider shall, within a period of two weeks

of the receipt of the objections from the Reserve Bank

forward his comments to the Reserve Bank and the

proposed changes may be effected only after the receipt of

approval from the Reserve Bank.

6.48. Section 17 empowers RBI to issue directions to a

payment system or a system participant, which, in RBI’s opinion

is engaging in any act that is likely to result in systemic risk

being inadequately controlled or is likely to affect the payment

system, the monetary policy or the credit policy of the country.

The Section reads as follows:

17. Power to issue directions.—Where the Reserve Bank is

of the opinion that,—

(a) a payment system or a system participant is engaging

in, or is about to engage in, any act, omission or course of

conduct that results, or is likely to result, in systemic risk

being inadequately controlled; or

(b) any action under clause (a) is likely to affect the

payment system, the monetary policy or the credit policy of

the country,

the Reserve Bank may issue directions in writing to such

payment system or system participant requiring it, within

such time as the Reserve Bank may specify –

(i) to cease and desist from engaging in the act, omission or

course of conduct or to ensure the system participants to

cease and desist from the act, omission or course of

conduct; or

(ii) to perform such acts as may be necessary, in the

opinion of the Reserve Bank, to remedy the situation.

65

6.49. Section 18 of the Payment and Settlement Systems Act,

2007 further empowers RBI to issue directions to system

providers or the system participants or any other person

generally, to regulate the payment systems or in the interest of

management or operation of any of the payment systems or in

public interest. The Section reads as follows:

18. Power of Reserve Bank to give directions generally.—

Without prejudice to the provisions of the foregoing, the

Reserve Bank may, if it is satisfied that for the purpose of

enabling it to regulate the payment systems or in the

interest of management or operation of any of the payment

systems or in public interest, it is necessary so to do, lay

down policies relating to the regulation of payment

systems including electronic, non-electronic, domestic and

international payment systems affecting domestic

transactions and give such directions in writing as it may

consider necessary to system providers or the system

participants or any other person either generally or to any

such agency and in particular, pertaining to the conduct of

business relating to payment systems.

6.50. Thus, the RBI Act, 1934, the Banking Regulation Act,

1949 and the Payment and Settlement Systems Act, 2007

cumulatively recognize and also confer very wide powers upon RBI

(i) to operate the currency and credit system of the country to

its advantage (ii) to take over the management of the currency

from central government (iii) to have the sole right to make and

issue bank notes that would constitute legal tender at any

place in India (iv) regulate the financial system of the country

to its advantage (v) to have a say in the determination of

66

inflation target in terms of the consumer price index (vi) to have

complete control over banking companies (vii) to regulate and

supervise the payment systems (viii) to prescribe standards and

guidelines for the proper and efficient management of the

payment systems (ix) to issue directions to a payment system or

a system participant which in RBI’s opinion is engaging in any

act that is likely to result in systemic risk being inadequately

controlled or is likely to affect the payment system, the

monetary policy or the credit policy of the country and (x) to

issue directions to system providers or the system participants

or any other person generally, to regulate the payment systems

or in the interest of management or operation of any of the

payment systems or in public interest.

6.51. Having taken note of the role of RBI as a central bank in

the economy of the country, the functions entrusted to them and the

powers conferred upon them under various statutes, let us undertake

the exercise of fixing the identity of virtual currencies.

Fixing the identity of VCs

6.52. As we have stated in Part 3 of this judgment, the exact

identity of virtual currencies eludes precision. Some call it an

exchange of value, some call it a stock and some call it a

good/commodity. There may be no difficulty in accepting the

67

divergence of views, if those views are not driven by fear of regulation.

But if someone presents it as currency to a regulator of stock market

and presents it as a commodity to a regulator of money market and

so on and so forth, the definition will not merely elude a proper

molecular structure but also elude regulation. This is where the

problem of law lies. George Friedman, the founder and Chairman of

Geopolitical Futures LLC, an online publication, aptly summarized

this dilemma as follows: “Bitcoin is neither fish nor fowl…But

both pricing it as a commodity when no commodity exists and

trying to make it behave as a currency, seem problematic. The

problem is not that it is not issued by the Government nor that

it is unregulated. The problem is that it is hard to see what it

is.”

6.53. It is now universally accepted that Satoshi envisioned

a digital analog to old-fashioned gold, a new kind of

universal money that could be owned by everyone and spent

anywhere. It was designed to live with a cleverly constructed de-

centralized network without central authority. Satoshi himself

defined it as “a new electronic cash system that’s fully peer-to-

peer, with no trusted third party.”

6.54. It is true that though, at its birth, it was conceived of

only as an alternative to money, crypto currencies assumed

different shapes, different shades and different utility values over

68

the past decade and more. Several international monetary

agencies/watchdogs are dabbling to find out what these are and

they are also divided in their opinion. For instance, in a report

submitted on 22-01-2019 to the International Monetary Fund

(IMF), by Jeffrey Franks, Director of its Europe Office, under the

title ‘Cryptocurrencies and Monetary Policy’, it is pointed out as

follows:-

1. Money has evolved over time, to meet customary

demands, but its basic functions such as (A) retaining a

store of value; (B) acting as means of payment and (C)

acting as a unit of account, have all remained the same.

2. There are four basic characteristics of a crypto currency

like bitcoin, they are (A) digital in nature (B) private (C)

global and (D) run on an autonomous and de-centralized

algorithm.

6.55. According to the said report, there are four factors

which lie behind the rise of crypto currencies. They are: (1) the

development of blockchain technology (2) concerns about

conventional money and banking, that arose out of the sub-prime

mortgage crisis in 2008 and the unconventional monetary

policies/quantitative easing (3) privacy concerns and (4) political

views about the role of the Government.

6.56. The IMF report says that crypto currencies perform

poorly in terms of the three basic functions of currencies. While

the store of value increased 2000% from January 2017 to

December 2017, there was also a fall during the year 2018. As

69

means of payment, the acceptance of crypto currencies, according

to the IMF report is very low and a few companies such as

Microsoft, Dish network etc. have begun to accept crypto

currencies for limited transactions. As a unit of account, so far, no

goods or services are priced in crypto currencies.

6.57. On its potential impact on the monetary policies of

governments, the IMF report says the following:-

“But in the future, large crypto currencies holdings

could complicate monetary policy management”

Eventually the conclusions reached in the report are as follows:-

 Crypto currencies today do not do a good job at fulfilling

the main functions of money.

 They may be favored by some for ideological, technological

or monetary policy reasons.

 The blockchain technology they use does have some

important advantages in controlling fraud and maintaining

privacy.

 But they also open up avenues for tax evasion and

criminal activity.

6.58. The petitioners claim that today virtual currency is not

money or other legal tender, but good/tradable commodity and hence

RBI has no role in regulating/banning the same. RBI has also taken

a stand that VCs are not recognized as legal tender, but they seek to

justify the impugned decisions, on the ground that VCs are capable

of being used as a medium of exchange. Therefore, it is necessary to

see how VCs were defined (i) by regulators in different jurisdictions

and (ii) by the governments and other statutory authorities of various

70

countries, through statutory instruments and non-statutory

directives and (iii) by courts of different jurisdictions.

DEFINITION OF VCs – BY REGULATORS

S.

No.

Regulator

Definition of Virtual Currency

1.

International

Monetary Fund

7

VCs are digital representations of value, issued

by private developers and denominated in their

own unit of account.

8

VCs can be obtained, stored, accessed, and

transacted electronically, and can be used for a

variety of purposes, as long as the transacting

parties agree to use them.

The concept of VCs covers a wider array of

“currencies,” ranging from simple IOUs (I owe

you) of issuers (such as Internet or mobile

coupons and airline miles), to VCs backed by

assets such as gold,

9

and “cryptocurrencies”

such as Bitcoin.

As digital representations of value, VCs fall

within the broader category of digital currencies.

However, they differ from other digital

currencies, such as e-money, which is a digital

payment mechanism for (and denominated in)

fiat currency. VCs, on the other hand, are not

denominated in fiat currency and have their own

unit of account.

VCs fall short of the legal concept of currency or

money.

At present, VCs do not completely fulfill the

three economic roles associated with money:

high price volatility of VCs limits their ability to

serve as a reliable store of value; the current

small size and limited acceptance network of

7

Virtual Currencies and Beyond: Initial Considerations, IMF Staff Discussion Note, Dong

He et al., page 7, 16, 17 (January 2016) (available at

https://www.imf.org/external/pubs/ft/sdn/2016/sdn1603.pdf, last accessed on 27-02-

2020) – presented by IMF Managing Director, Christine Lagarde, presented at the World

Economic Forum (https://www.ccn.com/imf-director-talks-up-virtual-currencies-and-

blockchain-tech/, last accessed on 27-02-2020).

8

Given the fast evolving nature of the industry, a universal definition has yet to emerge

and could quickly change as the VC ecosystem continues to transform.

9

This type of VCs is backed by the combination of existing tangible assets or national

currencies and the creditworthiness of the issuer.

71

VCs significantly restricts their use as a medium

of exchange; as of now, there is little evidence

that VCs are used as an independent unit of

account.

2.

Financial Action

Task Force

June 2015:

10

Virtual currency is a digital representation of

value that can be digitally traded and functions

as (1) a medium of exchange; and/or (2) a unit of

account; and/or (3) a store of value, but does not

have legal tender status (i.e., when tendered to a

creditor, is a valid and legal offer of payment) in

any jurisdiction. It is not issued nor guaranteed

by any jurisdiction, and fulfils the above

functions only by agreement within the

community of users of the virtual currency.

October 2018:

11

Virtual Asset – A virtual asset is a digital

representation of value that can be digitally

traded, or transferred, and can be used for

payment or investment purposes. Virtual assets

do not include digital representations of fiat

currencies, securities and other financial assets

that are already covered elsewhere in the FATF

Recommendations.

For the purposes of applying the FATF

Recommendations, countries should consider

virtual assets as “property,” “proceeds,” “funds,”

“funds or other assets,” or other “corresponding

value.”

3.

European Central

Bank

2012:

12

A virtual currency is a type of unregulated,

digital money, which is issued and usually

controlled by its developers, and used and

accepted among the members of a specific

virtual community. This definition may need to

be adapted in future if fundamental

characteristics change.

10

Guidance for a Risk-Based Approach – Virtual Currencies, FATF, page 26 (June 2015)

available at http://www.fatf-gafi.org/media/fatf/documents/reports/Guidance-RBA-

Virtual-Currencies.pdf (Last accessed on 27-02-2020).

11

Glossary of the FATF Recommendations (updated on October 2018) available at

https://www.fatf-gafi.org/glossary/u-z/ (Last accessed on 27-02-2020).

12

Virtual Currency Schemes, European Central Bank, page 13 (October 2012) available at

http://www.ecb.europa.eu/pub/pdf/other/virtualcurrencyschemes201210en.pdf (Last

accessed on 27-02-2020).

72

2017:

13

Absent a universally accepted definition, ‘virtual

currencies’ can be defined as digital

representations of value which, despite not being

issued by a central bank or another comparable

public authority, nor being ‘attached’, subject to

certain exceptions, to a fiat currency, are

voluntarily accepted, by natural or legal persons,

as a means of exchange, and which are stored,

transferred and traded electronically, without a

tangible, real-world representation.

This definition of ‘virtual currencies’ captures

decentralised, peer-to-peer VCs – as distinct

from E-money or Internet (software)-based

payment schemes, which merely facilitate

transactions denominated in fiat money or in

central bank-issued digital currencies – which,

while devoid of legal tender status, fulfil, at least

to some extent, all three traditional functions of

money by way of agreement within their user

community. This definition does not, however,

extend to centrally-issued digital currencies,

such as the central bank digital currencies

under consideration, at the time of writing, in

several jurisdictions.

European Banking Authority in 2014:

14

VCs are defined as a digital representation of

value that is neither issued by a central bank or

public authority nor necessarily attached to a

FC, but is used by natural or legal persons as a

means of exchange and can be transferred,

stored or traded electronically.

4.

European Securities

and Markets

Authority

15

Crypto-asset: A type of private asset that

depends primarily on cryptography and

Distributed Ledger Technology (DLT) or similar

technology as part of their perceived or inherent

13

Phoebus Athanassiou, Impact of Digital Innovation on the Processing of Electronic

Payments and Contracting: An Overview of Legal Risks, Legal Working Paper Series, No.

16, European Central Bank (October 2017) available at

https://www.ecb.europa.eu/pub/pdf/scplps/ecb.lwp16.en.pdf?344b9327fec917bd7a8fd7

0864a94f6e (Last accessed on 27-02-2020).

14

EBA Opinion on ‘virtual currencies’, page 11, 13 (July 2014) available at

https://eba.europa.eu/sites/default/documents/files/documents/10180/657547/81409

b94-4222-45d7-ba3b-7deb5863ab57/EBA-Op-2014-

08%20Opinion%20on%20Virtual%20Currencies.pdf (Last accessed on 27-02-2020).

15

Advice - Initial Coin Offerings and Crypto-Assets (January 2019) available at

https://www.esma.europa.eu/sites/default/files/library/esma50-157-

1391_crypto_advice.pdf (Last accessed on 27-02-2020).

73

value...Crypto-asset additionally means an asset

that is not issued by a central bank.

5.

Financial Conduct

Authority, United

Kingdom

16

Cryptoassets are a cryptographically secured

digital representation of value or contractual

rights that is powered by forms of DLT and can

be stored, transferred or traded electronically.

While cryptoassets can be used as a means of

exchange, they are not considered to be a

currency or money, as both the Bank of England

and the G20 Finance Ministers and Central

Bank Governors have previously set out. They

are too volatile to be a good store of value, they

are not widely accepted as a means of exchange,

and they are not used as a unit of account.

6.

Internal Revenue

Service, Department

of Treasury, USA

2014:

17

“virtual currency” may be used to pay for goods

or services, or held for investment. Virtual

currency is a digital representation of value that

functions as a medium of exchange, a unit of

account, and/or a store of value.

Convertible VC is treated as property for U.S.

federal tax purposes. General tax principles that

apply to property transactions apply to

transactions using virtual currency. VC is not

treated as currency that could generate foreign

currency gain or loss for U.S. federal tax

purposes.

2018:

18

Virtual currency, as generally defined, is a digital

representation of value that functions in the

same manner as a country’s traditional

currency.

7.

Securities and

Exchange

Bitcoin has been described as a decentralized,

peer-to-peer virtual currency that is used like

16

Guidance on Cryptoassets, Consultation Paper, CP 19/3, Financial Conduct Authority,

page 7 (January 2019) available at

https://www.fca.org.uk/publication/consultation/cp19-03.pdf (Last accessed on 27-02-

2020) and Guidance on Cryptoassets, Feedback and Final Guidance to CP 19/3, Policy

Statement, PS19/22 (July 2019) available at

https://www.fca.org.uk/publication/policy/ps19-22.pdf (Last accessed on 27-02-2020).

17

IRS Virtual Currency Guidance: Virtual Currency is Treated as Property for U.S. Federal

Tax Purposes; General Rules for Property Transactions Apply (March 2014) available at

https://www.irs.gov/newsroom/irs-virtual-currency-guidance (Last accessed on 27-02-

2020) and https://www.irs.gov/pub/irs-drop/n-14-21.pdf (Last accessed on 27-02-2020).

18

IRS reminds taxpayers to report virtual currency transactions (March 2018) available at

https://www.irs.gov/newsroom/irs-reminds-taxpayers-to-report-virtual-currency-

transactions (Last accessed on 27-02-2020).

74

Commission, USA

money – it can be exchanged for traditional

currencies such as the U.S. dollar, or used to

purchase goods or services, usually

online. Unlike traditional currencies, Bitcoin

operates without central authority or banks and is

not backed by any government.

19

Speaking broadly, crypto currencies purport to

be items of inherent value (similar, for instance,

to cash or gold) that are designed to enable

purchases, sales and other financial

transactions. They are intended to provide many

of the same functions as long-established

currencies such as the U.S. dollar, euro or

Japanese yen but do not have the backing of a

government or other body.

20

8.

Commodity Futures

Trading

Commission, USA

Section 1a(9) of the Act (US Commodity

Exchange Act) defines “commodity” to include,

among other things, “all services, rights, and

interests in which contracts for future delivery

are presently or in the future dealt in.” 7 U.S.C.

§ 1a(9). The definition of a “commodity” is broad.

See, e.g., Board of Trade of City of Chicago v.

SEC, 677 F. 2d 1137, 1142 (7th Cir. 1982).

Bitcoin and other virtual currencies are

encompassed in the definition and properly

defined as commodities.

21

9.

Financial Crimes

Enforcement

Network,

Department of

Treasury, USA

22

Virtual currency is a medium of exchange that

operates like a currency in some environments,

but does not have all the attributes of real

currency. In particular, virtual currency does not

have legal tender status in any jurisdiction.

This guidance addresses “convertible” virtual

currency. This type of virtual currency either has

an equivalent value in real currency, or acts as a

substitute for real currency.

19

Investor Alert: Bitcoin and Other Virtual Currency-Related Investments (May 2014)

available at https://www.sec.gov/oiea/investor-alerts-

bulletins/investoralertsia_bitcoin.html (Last accessed on 27-02-2020).

20

Chairman Jay Clayton, Statement on Cryptocurrencies and Initial Coin Offerings

(December 2017) available at https://www.sec.gov/news/public-statement/statement-

clayton-2017-12-11 (Last accessed on 27-02-2020).

21

In the Matter of: Coinflip, Inc., d/b/a Derivabit, and Francisco Riordan, CFTC Docket No.

15-29. 2015 WL 5535736 (September 17, 2015) available at

https://www.cftc.gov/sites/default/files/idc/groups/public/@lrenforcementactions/docu

ments/legalpleading/enfcoinfliprorder09172015.pdf (Last accessed on 27-02-2020).

22

Guidance - Application of FinCEN’s Regulations to Persons Administering, Exchanging, or

Using Virtual Currencies (March 2013) available at

https://www.fincen.gov/sites/default/files/shared/FIN-2013-G001.pdf (Last accessed on

27-02-2020).

75

10.

Canada Revenue

Agency (CRA)

23

Cryptocurrency is a digital representation of

value that is not legal tender. It is a digital

asset…that works as a medium of exchange for

goods and services between the parties who

agree to use it.

CRA generally treats cryptocurrency like a

commodity for purposes of Income Tax Act. Any

income from transactions involving

cryptocurrency is generally treated as business

income or as a capital gain, depending on the

circumstances.

Virtual currency is digital asset that can be used

to buy and sell goods or services. Cryptocurrency

is a blockchain-based, virtual currency. When

cryptocurrency is used to pay for goods or

services, the rules for barter transactions apply

for income tax purposes. A barter transaction

occurs when any two persons agree to exchange

good or services and carry out that exchange

without legal currency. Virtual currency can also

be bought or sold like commodity.

24

DEFINITIONS UNDER STATUTORY ENACTMENTS AND NON-

STATUTORY DIRECTIVES OF GOVERNMENTS

S.

No.

Country

Statutory

Enactment/

Non-Statutory

Directive

Section/ Article defining VC

1.

Japan

Payment

Services Act,

2009

Article 2(5): The term “Virtual

Currency” as used in this Act means

any of the following:

(i) property value (limited to that

which is recorded on an electronic

device or any other object by

electronic means, and excluding the

Japanese currency, foreign

currencies, and Currency-

Denominated Assets; the same applies

23

Guide for cryptocurrency users and tax professionals (Last modified on 27 June

2019) available at https://www.canada.ca/en/revenue-agency/programs/about-canada-

revenue-agency-cra/compliance/digital-currency/cryptocurrency-guide.html (Last

accessed on 27-02-2020).

24

Virtual Currency (Last modified on 26 June 2019) available

at https://www.canada.ca/en/revenue-agency/programs/about-canada-revenue-agency-

cra/compliance/digital-currency.html (Last accessed on 27-02-2020).

76

in the following item) which can be

used in relation to unspecified

persons for the purpose of paying

consideration for the purchase or

leasing of goods or the receipt of

provision of services and can also be

purchased from and sold to

unspecified persons acting as

counterparties, and which can be

transferred by means of an electronic

data processing system; and

(ii) property value which can be

mutually exchanged with what is set

forth in the preceding item with

unspecified persons acting as

counterparties, and which can be

transferred by means of an electronic

data processing system.

2019 amendment to this Act (to come

into force from April 2020) uses the

term “crypto assets (angoshisan)” in

place of the term “virtual currency”.

The 2019 Amendment added crypto

assets to the term “financial

instruments” for the purposes of

defining underlying assets of the

derivative transactions subject to

derivative regulations under the FIEA

(Financial Instruments and Exchange

Act), and therefore the same

regulations applicable to other

derivative transactions under the

FIEA will apply to crypto asset

derivative transactions. These

regulations include certain conduct

regulations, such as the notice

requirement prior to trading, and

prohibitions on making false

statements, providing conclusive

judgements, and engaging in

uninvited solicitation.

77

2.

Malta

Virtual

Financial Asset

Act, 2018

Article 2(2): “virtual financial asset” or

“VFA” means any form of digital

medium recordation that is used as a

digital medium of exchange, unit of

account, or store of value and that is

not -

(a) electronic money;

(b) a financial instrument; or

(c) a virtual token;

“virtual token” means a form of digital

medium recordation whose utility,

value or application is restricted

solely to the acquisition of goods or

services, either solely within the

DLT platform on or in relation to

which it was issued or within a limited

network of DLT platforms.

3.

Canada

Proceeds of

Crime (Money

Laundering)

and Terrorist

Financing

Regulations,

2002

25

Section 1(2): virtual currency means

(a) a digital representation of value

that can be used for payment or

investment purposes that is not a fiat

currency and that can be readily

exchanged for funds or for another

virtual currency that can be readily

exchanged for funds; or

(b) a private key of a cryptographic

system that enables a person or entity

to have access to a digital

representation of value referred to in

paragraph (a).

4.

Bahamas

Payment

Instruments

(Oversight)

Regulations,

2017

No specific legislation for crypto

currencies. But according to Central

Bank, Bahamas the regulations which

provide a framework for a system of

national electronic payment services,

apply to crypto currencies.

Article 2(1): electronic money or e-

money means electronically stored

monetary value as represented by a

claim on the issuer, which is issued

on receipt of funds for the purpose of

making payment transactions and

which is accepted as a means of

25

As amended in June 2019, which amendment is yet to come into force.

78

payment by persons other than the

issuer, and includes monetary value

stored magnetically or in any other

tangible or intangible device (such as

SIM card or software).

A Bill is under consideration that

would bring virtual currencies within

the ambit of proceeds of crime

legislation (Proceeds of Crime Bill,

2018). Clause (2) of the Bill defines:

“virtual currency” as a digital

representation of value which can be

digitally traded and functions as – (a)

a medium of exchange; (b) a unit of

account; or (c) a store of value, that

does not have legal tender status or

carry any security or guarantee in any

jurisdiction.

“currency or money” means coin and

paper money of any jurisdiction that

is designated as legal tender or is

customarily used and accepted as a

medium of exchange, including virtual

currency as a means of payment.

5.

Estonia

Money

Laundering and

Terrorist

Financing

Prevention Act,

2017

Section 3(9): cryptocurrencies (virtual

currencies) are value represented in

digital form that is digitally

transferable, preservable, or tradable

and that which natural persons or

legal persons accept as a payment

instrument, but that is not the legal

tender of any country or funds

(banknotes or coins, scriptural money

held by banks, or electronic money).

6.

Latvia

Law on

Prevention of

Money

Laundering and

Terrorism and

Proliferation

Financing, as

amended in

2017

Section 1 (2

2

): virtual currency - a

digital representation of value which

can be transferred, stored or traded

digitally and operate as a means of

exchange, but has not been

recognised as a legal means of

payment, cannot be recognised as a

banknote and coin, non-cash money

and electronic money, and is not a

monetary value accrued in the

payment instrument which is used in

the cases referred to in Section 3,

79

Clauses 10 and 11 of the Law on the

Payment Services and Electronic

Money;

7.

Liechtenstein

Due Diligence

Act, 2009

Article 2(1)(l): Virtual currencies shall

be understood to be digital monetary

units, which can be exchanged for

legal tender, used to purchase goods

or services or to preserve value and

thus assume the function of legal

tender.

8.

Israel

Supervision of

Financial

Services Law,

5776-2016

Section 11A (7) defines financial asset.

Financial asset includes virtual

currency.

26

9.

Jersey

(Crown

dependency)

Proceeds of

Crime

(Miscellaneous

Amendments)

(Jersey)

Regulations

2016

Article 4(4): ‘Virtual currency’ means

any currency which (whilst not itself

being issued by, or legal tender in,

any jurisdiction) –

(a) digitally represents value;

(b) is a unit of account;

(c) functions as a medium of

exchange; and

(d) is capable of being digitally

exchanged for money in any form.

Article 4(5): For the avoidance of

doubt, virtual currency does not

include any instrument which

represents or stores (whether digitally

or otherwise) value that can be used

only to acquire goods and services in

or on the premises of, or under a

commercial agreement with, the

issuer of the instrument.

26

Regulation of Cryptocurrency Around the World – Israel, Report of The Law Library of

Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#israel (Last accessed

on 27-02-2020).

80

10.

Mexico

Financial

Technology

Institutions

Law, 2018

(Chapter on

Virtual Assets)

It defines virtual assets as

representations of value electronically

registered and utilized by the public

as a means of payment for all types of

legal transactions, which may only be

transferred electronically.

27

11.

Austria

Ministry of

Finance

Treats virtual currency as ‘other

intangible commodity’.

28

12.

Czech

Republic

Vice Governor,

Czech National

Bank

Treats virtual currency as

‘commodity’.

29

13.

Germany

German

Federal

Financial

Supervisory

Authority

The Authority qualifies virtual

currencies as “units of account” and

therefore, “financial instruments”.

But bitcoin is considered to be crypto

token by German Bundesbank

(because it does not fulfil the typical

functions of a currency).

30

14.

Luxembourg

Minister of

Finance

Recognized before the Parliament that

crypto currencies are actual

currencies.

31

27

Regulation of Cryptocurrency Around the World – Mexico, Report of The Law Library of

Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#mexico (Last

accessed on 27-02-2020).

28

Regulation of Cryptocurrency Around the World – Austria, Report of The Law Library of

Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#austria (Last

accessed on 27-02-2020).

29

Regulation of Cryptocurrency Around the World – Czech Republic, Report of The Law

Library of Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#czech (Last accessed

on 27-02-2020).

30

Regulation of Cryptocurrency Around the World – Germany, Report of The Law Library

of Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#germany (Last

accessed on 27-02-2020).

31

Regulation of Cryptocurrency Around the World – Luxembourg, Report of The Law

Library of Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#luxembourg (Last

accessed on 27-02-2020).

81

15.

Slovakia

Ministry of

Finance,

Slovakia

published

guidance

Virtual currencies must be treated as

“short term financial assets other

than money”.

32

16.

European

Union

European

Union’s

Directive

2018/843 of 30

May 2018 (5

th

Anti-Money

Laundering

Directive)

33

Article 3(18): ‘Virtual Currencies’

means a digital representation of

value that is not issued or guaranteed

by a central bank or a public

authority, is not necessarily attached

to a legally established currency and

does not possess a legal status of

currency or money, but is accepted by

natural or legal persons as a means of

exchange and which can be

transferred, stored and traded

electronically.

17.

United

Kingdom

HM Revenue &

Customs, UK

34

Cryptoassets (or ‘cryptocurrency’ as

they are also known) are

cryptographically secured digital

representations of value or

contractual rights that can be:

 transferred

 stored

 traded electronically

HMRC does not consider cryptoassets

to be currency or money.

Cryptocurrencies have a unique

identity and cannot therefore be

directly compared to any other form of

investment activity or payment

mechanism.

35

32

Regulation of Cryptocurrency Around the World – Slovakia, Report of The Law Library of

Congress, Global Legal Research Center (June 2018) available

at https://www.loc.gov/law/help/cryptocurrency/world-survey.php#slovakia (Last

accessed on 27-02-2020).

33

European Union’s Directive 2018/843 available at https://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32018L0843&from=EN (Last accessed on 27-02-

2020).

34

Policy paper, Cryptoassets: Tax for Individuals (December 2019) available at

https://www.gov.uk/government/publications/tax-on-cryptoassets/cryptoassets-for-

individuals (Last accessed on 27-02-2020).

35

Policy paper on Revenue and Customs Brief 9 (2014): Bitcoin and other

cryptocurrencies, HM Revenue & Customs (March 3, 2014) available at

https://www.gov.uk/government/publications/revenue-and-customs-brief-9-2014-

bitcoin-and-other-cryptocurrencies/revenue-and-customs-brief-9-2014-bitcoin-and-other-

cryptocurrencies (Last accessed on 27-02-2020).

82

Bank of

England

36

The first part of the word ‘crypto’,

means ‘hidden’ or ‘secret’ reflecting

the secure technology used to record

who owns what, and for making

payments between users.

The second part of the word,

‘currency,’ tells us the reason

cryptocurrencies were designed in the

first place: a type of electronic cash.

But cryptocurrencies aren’t like the

cash we carry. They exist

electronically and use a peer-to-peer

system. There is no central bank or

government to manage the system or

step in if something goes wrong.

18.

United States

of America

New York

[BitLicense

Regulation (23

CRR-NY 200)]

Section 2(p): virtual currency means

any type of digital unit that is used as

a medium of exchange or a form of

digitally stored value. Virtual currency

shall be broadly construed to include

digital units of exchange that: have a

centralized repository or

administrator; are decentralized and

have no centralized repository or

administrator; or may be created or

obtained by computing or

manufacturing effort. Virtual

currency shall not be construed to

include any of the following:

(1) digital units that:

(i) are used solely within online

gaming platforms;

(ii) have no market or application

outside of those gaming platforms;

(iii) cannot be converted into, or

redeemed for, fiat currency or

virtual currency; and

(iv) may or may not be redeemable

for real-world goods, services,

discounts, or purchases;

(2) digital units that can be redeemed

for goods, services, discounts, or

purchases as part of a customer

36

What are cryptoassets (cryptocurrencies)? available

at https://www.bankofengland.co.uk/knowledgebank/what-are-cryptocurrencies (Last

accessed on 27-02-2020).

83

affinity or rewards program with the

issuer and/or other designated

merchants or can be redeemed for

digital units in another customer

affinity or rewards program, but

cannot be converted into, or redeemed

for, fiat currency or virtual currency;

or

(3) digital units used as part of

prepaid cards;

North Carolina

[Money

Transmitters

Act (§ 53-

208.42)]

Virtual currency– A digital

representation of value that can be

digitally traded and functions as a

medium of exchange, a unit of

account, or a store of value but only

to the extent defined as stored

value under subdivision (19) of this

section, but does not have legal tender

status as recognized by the United

States Government.

Connecticut

[General

Statutes of

Connecticut,

Sec. 36a-596]

“Virtual currency” means any type of

digital unit that is used as a medium

of exchange or a form of digitally

stored value or that is incorporated

into payment system technology.

Virtual currency shall be construed to

include digital units of exchange that

(A) have a centralized repository or

administrator; (B) are decentralized

and have no centralized repository or

administrator; or (C) may be created

or obtained by computing or

manufacturing effort.

Virtual currency shall not be

construed to include digital units that

are used (i) solely within online

gaming platforms with no market or

application outside such gaming

platforms, or (ii) exclusively as part of

a consumer affinity or rewards

program, and can be applied solely as

payment for purchases with the issuer

or other designated merchants, but

cannot be converted into or redeemed

for fiat currency.

84

Florida

[Florida Money

Laundering Act

(Fla. Stat. §

896.101)]

(2) (j) “Virtual currency” means a

medium of exchange in electronic or

digital format that is not a coin or

currency of the United States or any

other country.

Illinois

[Digital

Currency

Regulatory

Guidance

(2017)]

37

A digital currency is an electronic

medium of exchange used to purchase

goods and services. A digital currency

may also be exchanged for money. A

digital currency, by nature of its

properties detailed below, is distinct

from money.

Louisiana

[Consumer and

Investor

Advisory on

Virtual

Currency by

Office of

Financial

Institute

(2014)]

38

Virtual currency is an electronic

medium of exchange that does not

have all the attributes of real or fiat

currencies. Virtual currencies include

cryptocurrencies, such as Bitcoin and

Litecoin, which are not legal tender

and are not issued or backed by any

central bank or governmental

authority. Virtual currencies are:

 not backed by the United States

or any other national

government;

 not insured by the Federal

Deposit Insurance Corporation

or any governmental agency;

 not backed by any physical

commodity, such as gold or

silver; and

 not legal tender for debts.

Virtual currencies have legitimate

purposes and can be purchased, sold,

and exchanged with other types of

virtual currencies or real currencies

like the U.S. dollar. This can happen

through various mechanisms such as

exchangers, administrators, or

37

Digital Currency Regulatory Guidance, Illinois Department of Financial and Professional

Regulation (June 13, 2017) available at

https://www.idfpr.com/Forms/DFI/CCD/IDFPR%20-

%20Digital%20Currency%20Regulatory%20Guidance.pdf (Last accessed on 27-02-2020).

38

Office of Financial Institutions, State of Louisiana, Consumer and Investor Advisory on

Virtual Currency (August 2014) available

at http://www.ofi.state.la.us/SOCGuidanceVirtualCurrency.pdf (Last accessed on 27-02-

2020).

85

merchants that are willing to accept

virtual currencies in lieu of real

currency.

Michigan

[Michigan

Department of

Treasury

Guidance

(January

2015)]

39

Convertible virtual currency is a

digital representation of value that

has an equivalent value in real

currency, such as the United States

Dollar (USD), and/or acts as a

substitute for real currency. A

prominent example of convertible

virtual currency is Bitcoin, a form of

e-currency that has been around

since 2008.

Washington

Uniform Money

Services Act

(RCW 19.230.0

10)

“Virtual currency” means a digital

representation of value used as a

medium of exchange, a unit of

account, or a store of value, but does

not have legal tender status as

recognized by the United States

government. "Virtual currency" does

not include the software or protocols

governing the transfer of the digital

representation of value or other uses

of virtual distributed ledger systems to

verify ownership or authenticity in a

digital capacity when the virtual

currency is not used as a medium of

exchange.

Wyoming

Money

Transmitter Act

[W.S. 40-22-

102(a)]

(xxii) "Virtual currency" means any

type of digital representation of value

that:

(A) Is used as a medium of exchange,

unit of account or store of value; and

(B) Is not recognized as legal tender

by the United States government.

6.59. It may be seen from the contents of the tables given above

that there is unanimity of opinion among all the regulators and the

governments of various countries that though virtual currencies have

39

Virtual Currency, Treasury Update published by the Tax Policy Division, Michigan

Department of Treasury (Vol. 1(1), November 2015) available

at https://www.michigan.gov/documents/treasury/Tax-Policy-November2015-

Newsletter_504036_7.pdf (Last accessed on 27-02-2020).

86

not acquired the status of a legal tender, they nevertheless constitute

digital representations of value and that they are capable of

functioning as (i) a medium of exchange and/or (ii) a unit of account

and/or (iii) a store of value. The IMF, the FATF, the European Central

Bank, the Financial Conduct Authority of the United Kingdom, the

Internal Revenue Service of the United States, Department of

Treasury and the Canadian Revenue Authority treat virtual

currencies as digital representations of value. The European Central

Bank went a step further by describing a virtual currency as a type of

unregulated digital money. The Internal Revenue Service of the

United States, Department of Treasury has recognized that a virtual

currency can function in the same manner as a country’s traditional

currency. The Securities and Exchange Commission, USA also

recognizes that virtual currencies are intended to perform many of

the same functions as long-established currencies such as US dollar,

Euro or Japanese Yen. Yet another wing of the United States

Department of Treasury namely Financial Crimes Enforcement

Network calls virtual currency as a medium of exchange that

operates like a currency in some environments, though it may not

have all the attributes of a real currency.

6.60. The Bank of International Settlements, as pointed out in

Part 2 of this judgment, got a sub-group within the Committee on

Payments and Market Infrastructure (CPMI) to undertake an analysis

87

of digital currencies. In a report submitted by them in November

2015, this sub-group recognized that though the use of private digital

currencies was too low at that time for certain risks to materialize,

the widespread substitution of bank notes over a period of time, with

digital currencies, could lead to a decline in non-interest paying

liabilities of central banks and that the conduct of the monetary

policy could be affected.

6.61. Similarly, the state of Liechtenstein considers virtual

currencies as digital monetary units which can be exchanged for legal

tender and also be used to purchase goods or services, thereby

assuming the character of a legal tender. The German Federal

Financial Supervisory Authority treats virtual currencies as units of

account and consequently as financial instruments. Luxembourg has

taken an official position that crypto currencies are actual

currencies. Some of the states in the Unites States of America have

passed laws recognizing virtual currencies as electronic medium of

exchange.

6.62. It is clear from the above that the governments and money

market regulators throughout the world have come to terms with the

reality that virtual currencies are capable of being used as real

money, but all of them have gone into the denial mode (like the

proverbial cat closing its eyes and thinking that there is complete

darkness) by claiming that VCs do not have the status of a legal

88

tender, as they are not backed by a central authority. But what an

article of merchandise is capable of functioning as, is different

from how it is recognized in law to be. It is as much true that

VCs are not recognized as legal tender, as it is true that they

are capable of performing some or most of the functions of real

currency.

6.63. The word “currency” is defined in Section 2(h) of the

Foreign Exchange Management Act, 1999 (hereinafter, “FEMA”) to

include “all currency notes, postal notes, postal orders, money

orders, cheques, drafts, travelers’ cheques, letters of credit,

bills of exchange and promissory notes, credit cards or such

other similar instruments as may be notified by the Reserve

Bank.” The expression “currency notes” is also defined in Section 2(i)

of FEMA to mean and include cash in the form of coins and bank

notes. Again, FEMA defines “Indian currency” under Section 2(q) to

mean currency which is expressed or drawn in Indian rupees, but

which would not include special bank notes and special one rupee

notes issued under Section 28A of the RBI Act. But RBI has taken a

stand in paragraph 24 of its counter-affidavit that VCs do not fit into

the definition of the expression “currency” under Section 2(h) of

FEMA, despite the fact that FATF, in its report on June 2014 on

“Virtual Currencies: Key Definitions and Potential AML/CFT Risks”

defined virtual currency to mean “digital representation of value that

89

can be digitally traded and functions as (1) a medium of exchange;

and/or (2) a unit of account; and/or (3) a store of value, but does not

have legal tender status.” According to the report, legal tender

status is acquired only when it is accepted as a valid and legal

offer of payment when tendered to a creditor.

6.64. Traditionally ‘money’ has always been defined in terms of

the 3 functions or services that it provides namely (1) a medium of

exchange (2) a unit of account and (3) a store of value. But in course

of time, a fourth function namely that of being a final discharge of

debt or standard of deferred payment was also added. This fourth

function is acquired by money through the conferment of the legal

tender status by a Government/central authority. Therefore,

capitalizing on this fourth dimension/function and drawing a

distinction between money as understood in the social sense and

money as understood in the legal sense, it was contended by Shri

Nakul Dewan, learned Senior Counsel, with particular reference to

the book ‘Property Rights in Money’ by David Fox and the decision

of the Queen’s Bench in Moss v. Hancock

40

and the decision of the

US Supreme Court in Wisconsin Central Ltd v. United States,

41

that so long as VCs do not qualify as money either in the legal sense

(not having a legal tender status) or in the social sense (not being

widely accepted by a huge population as a medium of exchange), they

40

(1899) 2 QB 111

41

585 US ___ 2018, 138 S. Ct. 2067 (2018)

90

cannot be treated as currencies within the meaning of any of the

statutory enactments from which RBI draws its energy and power.

6.65. But we do not think that RBI’s role and power can

come into play only if something has actually acquired the

status of a legal tender. We do not also think that for RBI to

invoke its power, something should have all the four

characteristics or functions of money. Moss v. Hancock (supra),

itself a century old decision (1899), relies upon the definition of

‘money’ as given by F. A. Walker in his treatise ‘Money, Trade and

Industry’ (actual title of the book appears to be ‘Money in its relation

to Trade and Industry’), published in 1879 to the effect that “money

is that which passes freely from hand to hand throughout the

community in final discharge of debts and full payment for

commodities, being accepted equally without reference to the character

or the credit of the person who offers it and without the intention of the

person who receives it to consume it or apply it to any other use than

in turn to tender it to others in discharge of debts or payment for

commodities.”

6.66. But that 1879 definition cannot be accepted as perfect,

final and everlasting, in modern times. Cross border transactions and

technological advancements have removed many shackles created by

old concepts (except perhaps those created by law courts). This fact

has been recognized in the dissent of Breyer, J., in Wisconsin

91

Central (supra) when he says “…what we view as money has

changed over time. Cowrie shells once were such a medium but

no longer are… our currency originally included gold, coins and

bullion, but after 1934, gold could not be used as a medium of

exchange… perhaps one day employees will be paid in Bitcoin

or some other type of currency”. In the linguistic sense, Oxford

English Dictionary has already included “property or possessions

of any kind viewed as convertible into money” within the

definition of money. Therefore, Breyer, J., points out in his dissent

“So, where does this duel of definitions lead us? Some seem too

narrow; some seem too broad; some seem indeterminate. The result is

ambiguity”. He therefore concluded that stock options given to

employees constitute money remuneration for the services rendered.

But the majority proceeded on the basis that when the law was

enacted, the term ‘money’ was not used in an expansive sense.

6.67. Neither the RBI Act, 1934 nor the Banking Regulation

Act, 1949 nor the Payment and Settlement Systems Act, 2007 nor the

Coinage Act, 2011 define the words ‘currency’ or ‘money’. But FEMA

defines the words ‘currency’, ‘currency notes’, ‘Indian currency’ and

‘Foreign currency’. We have taken note of these definitions.

Interestingly, Section 2(b) of Prize Chits and Money Circulation

Schemes (Banning) Act, 1978 defines money to include a cheque,

postal order, demand draft, telegraphic transfer or money

92

order. Clause (33) of Section 65B of the Finance Act, 1994, inserted

by way of Finance Act, 2012 defines ‘money’ to mean “legal tender,

cheque, promissory note, bill of exchange, letter of credit, draft,

pay order, traveler cheque, money order, postal or electronic

remittance or any other similar instrument, but shall not

include any currency that is held for its numismatic value”.

This definition is important, for it identifies many instruments

other than legal tender, which could come within the definition

of money.

6.68. The Sale of Goods Act, 1930 does not define ‘money’ or

‘currency’ but excludes money from the definition of the word ‘goods’.

The Central Goods and Services Tax Act, 2017 defines ‘money’ under

Section 2(75) to mean “the Indian legal tender or any foreign

currency, cheque, promissory note, bill of exchange, letter of

credit, draft, pay order, traveler cheque, money order, postal or

electronic remittance or any other instrument recognised by

RBI, when used as a consideration to settle an obligation or

exchange with Indian legal tender of another denomination but

shall not include any currency that is held for its numismatic

value.”

93

6.69 In CIT v. Kasturi & Sons Ltd.,

42

a question arose as to

whether the replacement by the insurer, of an article destroyed by

one of the perils as against which coverage is provided, would be

taken to be “money” within the meaning of Section 41(2) of the

Income Tax Act, 1961. This court held that the word “money” used in

Section 41(2) has to be interpreted only as actual money or cash and

not as any other thing or benefit which could be evaluated in terms of

money.

6.70. In Dhampur Sugar Mills Ltd. v. Commissioner of

Trade Tax,

43

this court was concerned with the question whether

the adjustment of price of molasses from the amount of license fee

would amount to sale within the meaning of the U.P. Trade Tax Act,

1948. The argument advanced was that an exchange or barter

cannot be said to be a sale. After referring to the phrase “cash,

deferred payment or other valuable consideration”, this court pointed

out that “money is a legal tender, but cash is narrower than

money.” This is for the reason that in contradistinction to cash,

deferred payment or other valuable consideration would also come

within the meaning of money, for the purpose of the Act.

6.71. Just as the very concept of ‘money’ or ‘currency’ has

changed over the years, and different jurisdictions and different

statutes have adopted different definitions of ‘money’ and ‘currency’,

42

(1999) 3 SCC 346

43

(2006) 5 SCC 624

94

depending upon the issue sought to be addressed, the concept of VCs

have also undergone a sea of change, with different regulators and

statutory authorities adopting different definitions, leading to

diametrically opposite views emerging from courts across the

spectrum. Let us now see how courts in other jurisdictions have

grappled with the definition of the word ‘virtual currency’.

6.72. The Securities and Exchange Commission (SEC) of the

United States of America prosecuted a person by name Trendon

Shavers, who was the founder and operator of Bitcoin Savings and

Trust (BTCST), for soliciting illicit investments in Bitcoin related

opportunities from a number of lenders, defrauding them to the tune

of 700,000 BTC in funds. While SEC contended that Bitcoin

investments were securities, Shavers contended that Bitcoin is not

money and hence, not ‘securities’. But the Sherman Division Eastern

District Court of Texas opined in SEC v. Trendon Shavers,

44

that: “It

is clear that bitcoin can be used as money. It can be used to purchase

goods or services and as Shavers stated, used to pay for individual

living expenses. The only limitation of bitcoin is that it is limited to

those places that accept it as currency. However, it can also be

exchanged for conventional currencies such as the US dollar, euro, yen

and Yuan. Therefore, bitcoin is a currency or form of money…”

44

Case No. 4: 13-Cv-416 (August 6, 2013)

95

6.73. In United States v. Ulbricht,

45

the United States District

Court, Southern District, New York was concerned with the

defendant’s motion to dismiss four counts namely (i) participation in

a narcotics trafficking conspiracy (ii) a continuing criminal enterprise

(iii) computer hacking conspiracy and (iv) money laundering

conspiracy, for which the Grand jury returned indictment. The

allegation against the defendant was that Ulbricht engaged in these

offences by designing, launching and administering a website called

Silk Road, as an online marketplace for illicit goods and services.

According to the prosecution, Bitcoin was used to launder the

proceeds. The website was available only to those using Tor

(abbreviation for ‘The Onion Router’), a free and open source software

and a network that allows anonymous, untraceable internet

browsing. Payments were allowed only through Bitcoin. Opposing the

money laundering charge, Ulbricht contended that the use of Bitcoin

did not involve a legally cognizable financial transaction. But the

court held “Bitcoins carry value-that is their purpose and function-and

act as a medium of exchange. Bitcoins may be exchanged for legal

tender, be it US dollars, euros or some other currency”.

6.74. The decision in Ulbricht (supra) was closely followed by

another decision of the same court in United States v. Faiella.

46

This was also a case where the defendants were charged with the

45

31F. Supp. 3d 540 (2014)

46

39F. Supp. 3d 544 (2014)

96

operation of an underground market in the virtual currency bitcoin

via the website Silk Road. Faiella moved the District court to dismiss

count one of the indictments namely that of operating an unlicensed

money transmitting business in violation of a particular statute. The

contention of the defendant was (i) that Bitcoin does not qualify as

money (ii) that operating a Bitcoin exchange does not constitute

“transmitting” of money and (iii) that he is not a money transmitter.

While rejecting the motion, the court held “bitcoin clearly qualifies as

money or funds under the plain meaning definitions. Bitcoin can be

easily purchased in exchange for ordinary currency, acts as a

denominator of value and is used to conduct financial transactions.”

The decision in Trendon Shavers (supra) was relied upon.

6.75. While the district courts of USA took the view that virtual

currency can be used as money, the Commodity Futures Trading

Commission (CFTC) took a view in In re Coinflip, Inc,

47

that virtual

currencies are “commodities”. This was in relation to the initiation of

public administrative proceedings to determine whether the

defendant was engaged in violation of the provisions of Commodity

Exchange Act and the Commission’s Regulations by operating an

online facility named Derivabit offering to connect buyers and sellers

of Bitcoin option contracts. Interestingly, the defendant admitted an

offer of settlement in anticipation of administrative proceedings.

47

CFTC Docket No. 15-29 dated 17-09-2015

97

6.76. Within a week, another entity, by name, TeraExchange

LLC also submitted an offer of settlement before CFTC In the matter

of TeraExchange LLC.

48

CFTC reiterated even in that case that

Bitcoin is a commodity under the relevant statute. Another Bitcoin

exchange, by name Bitfinex, also conceded the position, before the

CFTC when public administrative proceedings were sought to be

initiated against them. In the order accepting the offer of settlement,

delivered on 02-06-2016 In the matter of BFXNA Inc, d/b/a

BITFINEX,

49

CFTC recorded that Bitcoin and other virtual currencies

are commodities under the relevant provisions of the statute.

6.77. In United States v. Murgio,

50

which was also before the

US District Court, S.D. New York, the defendant was charged with

operating Coin.mx, as an unlicensed money transmitting business.

The government alleged that Murgio and his co-conspirators

attempted to shield the true nature of his Bitcoin exchange business

by operating through several front companies, to convince financial

institutions that Coin.mx was just a members-only association of

individuals interested in collectable items. Count one of the

indictments was the alleged conspiracy in the operation of an

unlicensed money transmitting business, punishable under 18 U. S.

C. § 1960. Under Section 1960, a business must (i) transfer on behalf

48

CFTC Docket No. 15-33 dated 24-09-2015

49

CFTC Docket No. 16-19 dated 02-06-2016

50

209 F. Supp. 3d 698 (2016)

98

of public, (ii) funds and (iii) in violation of licensing and registration

requirements, to qualify as an unlicensed money transmitting

business. The court concluded that Bitcoins are funds within the

plain meaning of the term, as the word “funds” would mean

pecuniary resources, generally accepted as a medium of exchange or

means of payment. Interestingly, the defendant’s contention that

Bitcoin is a commodity as held by CFTC was rejected by the court.

6.78. However, despite the opinion of other District courts in

four previous cases, the United States District Court, Eastern district

of New York held in a preliminary hearing for injunctive relief, in

Commodity Futures Trading Commission v. Patrick McDonnell

51

(Memorandum and order), that virtual currencies are commodities

within the meaning of the Commodity Exchange Act. But it is seen

from the order that there was no ‘currency versus commodity’ debate

in the entire order.

6.79. A similar view was taken by United States District Court,

District of Massachusetts in Commodity Futures Trading

Commission v. My Big Coin Pay, Inc. et al.,

52

holding that since

there is futures trading in virtual currencies, they constitute

‘commodity’ within the meaning of the Statute.

51

18-Cv-361 dated 03-06-2018

52

18-Cv-10077-RWZ dated 26-09-2018

99

6.80. State of Florida v. Michell Abner Espinoza,

53

is an

interesting case which came up before the Eleventh Judicial Circuit

in and for Miami-Dade County, Florida. In that case, a Detective of

the Miami Police department teamed up with a Special Agent of the

Miami Electronic Crimes Task Force of the United States Secret

Service to initiate an investigation into virtual currencies. After

getting in touch with a person who advertised the sale of Bitcoins in

an online platform run by a peer-to-peer Bitcoin exchange by name

Localbitcoins.com, the team organized an undercover operation in

December 2013/January 2014. The Detective offered to pay for the

Bitcoins through stolen credit cards and when the transaction was

about to take place, the offeror was arrested. He was charged with

one count of unlawfully engaging in money services business and 2

counts of money laundering. The defendant filed motions for

dismissal and the State filed motions for striking out those motions.

While allowing the defendant’s motion to dismiss all the 3 counts on

the ground that the court will be unwilling to punish a man for

selling his property to another, when his action falls under a statute

that is so vaguely written that even legal professionals have difficulty

finding a singular meaning, the court ruled as follows:

“Nothing in our frame of references allows us to accurately

define or describe Bitcoin……. Bitcoin may have some

attributes in common with what we commonly refer to as

53

F 14-2923 decided on 22-07-2016

100

money, but differ in many important aspects. While

Bitcoins can be exchanged for items of value, they are not

a commonly used means of exchange. They are accepted

by some but not by all merchants or service providers. ….

With such volatility they have a limited ability to act as a

store of value, another important attribute of money. This

court is not an expert in economics, however it is very

clear, even to someone with limited knowledge in the area,

that Bitcoin has a long way to go before it is equivalent of

money. The Florida Legislature may choose to adopt

statutes regulating virtual currency in future. At this time,

however, attempting to fit the sale of Bitcoin into a

statutory scheme regulating money services businesses is

like fitting a square peg in a round hole”

6.81. But the decision of the Circuit Court was appealed to the

Third District Court of Appeal, State of Florida. By an opinion

rendered on 30-01-2019, reported as State of Florida v. Michell

Abner Espinoza

54

the Court of Appeal reversed the decision of the

Circuit Court and held, after referring to the June 2014 Report of

FATF titled “Virtual currencies: key definitions and potential

AML/CFT risks” that given the plain language of the Florida

statutes governing money service businesses and the nature of

bitcoin and how it functions, Espinoza was acting both as a

payment instrument seller and engaging in the business of a

money transmitter. The Court of Appeal pointed out that the

definition of a “payment instrument” included “a cheque, draft,

warrant, money order, travelers’ cheque, electronic instrument or other

instrument, payment of money or monetary value, whether or not

54

264 So. 3d 1055 (2019)

101

negotiable”. The phrase “money services business” was defined in the

statute to include any person who acts as a payment instrument

seller. Since the expression monetary value means a medium of

exchange, whether or not redeemable in currency, the court

concluded that VCs are payment instruments and hence a person

dealing with the same is in money services business. Though Bitcoin

does not expressly fall within the definition of “currency” found in the

statute, the court concluded that Bitcoin would certainly fall under

the definition of a payment instrument. The Court of Appeal took

note of the fact that several restaurants in the Miami area accepted

Bitcoins as a form of payment and hence Bitcoin functions as a

medium of exchange. (What is important to note about this decision

is that it dealt with a penal statute. This is why the Circuit court

followed the cautionary approach, not to allow a citizen to be

prosecuted on the basis of conjectures about what is a money

services business. But the Court of Appeal found on fundamentals

that the business concerned a payment instrument and that

therefore, there was no ambiguity.)

6.82. In a completely different context, the Singapore

International Commercial Court ruled in B2C2 Ltd. v. Quoine Pte

Ltd.,

55

that virtual currency can be considered as property which is

capable of being held on trust. The case arose out of a dispute

55

[2019] SGHC (I) 3

102

between a person who traded in virtual currencies and the VC

Exchange platform on which he traded. The dispute revolved more

around the breach of contract and breach of trust than around the

identity of virtual currencies. It was in that context that the court

opined that crypto currencies satisfied the definition of ‘property’ as

provided by the House of Lords in National Provincial Bank v.

Ainsworth

56

to the effect that it must be “definable, identifiable by

third parties, capable in its nature of assumption by third parties, and

have some degree of permanence or stability”. The court further noted

that “crypto currencies are not legal tender in the sense of being a

regulated currency issued by a government but do have the

fundamental characteristic of intangible property as being an

identifiable thing of value”. The decision of the Commercial Court was

appealed to the Court of Appeal. While dismissing Quoine’s appeal on

breach of contract claim, but allowing it on breach of trust claim, the

Court of Appeal held in Quoine Pte Ltd v. B2C2 Ltd

57

that though

crypto currencies are capable of assimilation into the general

concepts of property, there are difficult questions as to the type of

property that is involved. Therefore, the Court of Appeal did not take

a final position on the question, since it felt that the precise nature of

the property right involved, was not clear.

56

[1965] 1 AC 1175 at 1248

57

[2020] SGCA (I) 02

103

6.83. In a very recent decision, in AA v. Persons Unknown &

others Re Bitcoin,

58

the English High Court ruled that Bitcoin is

property. But this decision was on the basis of the definition adopted

by UK Jurisdictional Taskforce of the Law Tech Delivery Panel, in its

“Legal Statement on the Status of Cryptoassets and Smart

Contracts”, that crypto assets constitute property under English law.

The facts out of which this decision arose, were peculiar. The IT

system of a Canadian insurance company was hacked through a

malware called Bitpaymer, which encrypted all the data of the

company. A ransom equivalent of US $ 950,000 in Bitcoin was

demanded by the hackers for decryption. After negotiations through a

specialist intermediary by name Incident Response Company, the

insurance company paid the ransom into a wallet and retrieved the

data with the decryption tools provided by the hackers. Thereafter

the insurance company engaged the services of a blockchain

investigation outfit known as Chainalysis Inc., which found that of

the total of 109.25 Bitcoins transferred as ransom, 13.25 Bitcoins

(worth approximately US $ 120,000 at the time) had been converted

into an untraceable fiat currency. The remaining 96 Bitcoins had

been transferred to a “wallet” linked to a Virtual Currency exchange

known as Bitfinex (registered in the British Virgin Islands). The

insurance company then sued the VC Exchange before the High

58

[2019] EWHC 3556 (Comm)

104

Court and sought ancillary disclosure orders to know the identity of

persons who held the Bitcoins in the wallet of the exchange. The

company also sought a proprietary injunction. Interestingly, the

Court agreed to hear the application in private and protect the

identity of the insurer which got hacked, for they feared retaliatory

copycat attacks. The core issue before the court was whether crypto

currencies constituted a form of property capable of being the subject

matter of a proprietary injunction. After referring to Fry L.J’s

statement in Colonial Bank v. Whinney,

59

that all things personal

are either in possession or in action and that the law knows no third

category between the two and also after referring to the four classic

criteria for property, [namely they are (i) definable; (ii) identifiable by

third parties; (iii) capable in their nature of assumption by third

parties; and (iv) capable of some degree of permanence] set out by

Lord Wilberforce in National Provincial Bank v. Ainsworth (supra),

Bryan, J held in AA v. Persons Unknown that virtual currencies are

neither choses in action (not embodying a right capable of being

enforced in action) nor choses in possession (being virtual and

incapable of being possessed). However, the court ruled that VCs can

still be treated as property, by applying the 4 criteria laid down in

National Provincial Bank and Law Tech Delivery Panel's Legal

Statement, though it did not constitute a statement of the law. Bryan

59

[1885] 30 ChD

105

J. was convinced that the statement's detailed legal analysis of the

proprietary status of cryptocurrencies was “compelling” and should

be adopted by the court. Thus, what prevailed with the court was

the definition provided by Law Tech Delivery Panel’s UK

Jurisdiction Task Force, which, unlike RBI, did not enjoy a

statutory status, but was only an industry-led government

backed initiative.

6.84. The ruling of the European Court of Justice in

Skatteverket v. David Hedqvist,

60

was with particular reference to

the identity of virtual currencies. ECJ was in this case asked to

decide a reference from Supreme Administrative Court, Sweden on

whether transactions to exchange a traditional currency for the

‘Bitcoin’ virtual currency or vice versa, which Mr. Hedqvist wished to

perform through a company, were subject to value added tax. The

opinion of the court was to the effect that:

(i) Bitcoin with bidirectional flow which will be exchanged for

traditional currencies in the context of exchange transactions cannot

be categorized as tangible property since virtual currency has no

purpose other than to be a means of payment.

(ii) VC transactions do not fall within the concept of the supply of

goods as they consist of exchange of different means of payment and

hence, they constitute supply of services.

60

Case C-264/14 dated 22-10-2015

106

(iii) Bitcoin virtual currency being a contractual means of payment

could not be regarded as a current account or a deposit account, a

payment or a transfer, and unlike debt, cheques and other negotiable

instruments (referred to in Article 135(1)(d) of the EU VAT Directive),

Bitcoin is a direct means of payment between the operators that

accept.

(iv) Bitcoin virtual currency is neither a security conferring a property

right nor a security of a comparable nature.

(v) The transactions in issue were entitled to exemption from payment

of VAT as they fell under the category of transactions involving

‘currency [and] bank notes and coins used as legal tender’.

(vi) Article 135(1)(e) EU Council VAT Directive 2006/112/EC is

applicable to non-traditional currencies i.e., to currencies other

than those that are legal tender in one or more countries in so

far as those currencies have been accepted by the parties to a

transaction as an alternative to legal tender and have no

purpose other than to be a means of payment.

The court accordingly concluded that virtual currencies would

fall under this definition of non-traditional currencies.

6.85. Thus (i) depending upon the text of the statute involved in

the case and (ii) depending upon the context, various courts in

different jurisdictions have identified virtual currencies to

belong to different categories ranging from property to

107

commodity to non-traditional currency to payment instrument

to money to funds. While each of these descriptions is true, none of

these constitute the whole truth. Every court which attempted to fix

the identity of virtual currencies, merely acted as the 4 blind men in

the Anekantavada philosophy of Jainism,

61

(theory of non-absolutism

that encourages acceptance of relativism and pluralism) who attempt

to describe an elephant, but end up describing only one physical

feature of the elephant.

6.86. RBI was also caught in this dilemma. Nothing prevented

RBI from adopting a short circuit by notifying VCs under the category

of “other similar instruments” indicated in Section 2(h) of FEMA,

1999 which defines ‘currency’ to mean “all currency notes, postal

notes, postal orders, money orders, cheques, drafts, travelers’ cheque,

letters of credit, bills of exchange and promissory notes, credit cards or

such other similar instruments as may be notified by the Reserve

Bank.” After all, promissory notes, cheques, bills of exchange etc. are

also not exactly currencies but operate as valid discharge (or the

creation) of a debt only between 2 persons or peer-to-peer. Therefore,

it is not possible to accept the contention of the petitioners that VCs

are just goods/commodities and can never be regarded as real

money.

61

According to this doctrine, truth and reality are perceived differently from different

points of view and no single point is the complete truth.

108

6.87. Once we are clear about the above confusion, and once it

is accepted that some institutions accept virtual currencies as valid

payments for the purchase of goods and services, there is no escape

from the conclusion that the users and traders of virtual currencies

carry on an activity that falls squarely within the purview of the

Reserve Bank of India. The statutory obligation that RBI has, as

a central bank, (i) to operate the currency and credit system, (ii)

to regulate the financial system and (iii) to ensure the payment

system of the country to be on track, would compel them

naturally to address all issues that are perceived as potential

risks to the monetary, currency, payment, credit and financial

systems of the country. 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. Hence it is not

possible to accept the contention of the petitioners that they are

carrying on an activity over which RBI has no power statutorily.

6.88. In Keshavlal Khemchand & Sons Pvt. Ltd. v. Union of

India,

62

this court pointed out that “Reserve Bank of India is an

expert body to which the responsibility of monitoring the economic

system of the country is entrusted, under various enactments like the

RBI Act, 1934, the Banking Regulation Act, 1949.” Therefore, (i) in the

teeth of the statutory scheme of these enactments (ii) from the way

62

(2015) 4 SCC 770

109

different courts and regulators of different jurisdictions have treated

VCs and (iii) from the very characteristics of VCs, it is clear that they

have the potential to interfere with the matters that RBI has the

power to restrict or regulate. Hence, we have no hesitation in

rejecting the first contention of the petitioners that the impugned

decision is ultra vires.

6.89. It was argued that the Preamble of the RBI Act speaks

only about the role of RBI in operating the currency and credit

system of the country to its advantage and that since virtual

currencies may not form part of the credit system of the country as

they are not recognized as currency, the invocation of the provisions

of RBI Act was out of context.

6.90. But as pointed out elsewhere, RBI is the sole repository of

power for the management of the currency, under Section 3 of the

RBI Act. RBI is also vested with the sole right to issue bank notes

under Section 22(1) and to issue currency notes supplied to it by the

Government of India and has an important role to play in evolving

the monetary policy of the country, by participation in the Monetary

Policy Committee which is empowered to determine the policy rate

required to achieve the inflation target, in terms of the consumer

price index. Therefore, anything that may pose a threat to or

have an impact on the financial system of the country, can be

regulated or prohibited by RBI, despite the said activity not

110

forming part of the credit system or payment system. The

expression “management of the currency” appearing in Section 3(1)

need not necessarily be confined to the management of what is

recognized in law to be currency but would also include what is

capable of faking or playing the role of a currency.

6.91. It is ironical that virtual currencies which took avatar

(according to its creator Satoshi) to kill the demon of a central

authority (such as RBI), seek from the very same central authority,

access to banking services so that the purpose of the avatar is

accomplished. As we have pointed out elsewhere, the very creation of

digital currency/ Bitcoin was to liberate the monetary system from

being a slave to the central authority and from being operated in a

manner prejudicial to private interests. Therefore, the ultra vires

argument cannot be accepted when the provision of access to

banking services without any interference from the central authority

over a long period of time is perceived as a threat to the very

existence of the central authority. Hence, we hold that RBI has the

requisite power to regulate or prohibit an activity of this nature.

If at all, the power is only to regulate, not prohibit

6.92. The next contention that if at all, RBI is conferred only

with the power to regulate, but not to prohibit, as seen from the

express language of Section 45JA of the RBI Act, does not appeal to

us. In Star India Pvt. ltd. v. Dept. of Industrial Policy and

111

Promotion and Ors.,

63

this court opined that the word “regulate” has

a very broad meaning including the power to prohibit. The following

passage from K. Ramanathan v. State of Tamil Nadu

64

was quoted

in Star India (supra):

19. It has often been said that the power to regulate does

not necessarily include the power to prohibit, and

ordinarily the word “regulate” is not synonymous with the

word “prohibit”. This is true in a general sense and in the

sense that mere regulation is not the same as absolute

prohibition. At the same time, the power to regulate carries

with it full power over the thing subject to regulation and in

absence of restrictive words, the power must be regarded

as plenary over the entire subject. It implies the power to

rule, direct and control, and involves the adoption of a rule

or guiding principle to be followed, or the making of a rule

with respect to the subject to be regulated. The power to

regulate implies the power to check and may imply the

power to prohibit under certain circumstances, as where

the best or only efficacious regulation consists of

suppression. It would therefore appear that the word

“regulation” cannot have any inflexible meaning as to

exclude “prohibition”. It has different shades of meaning

and must take its colour from the context in which it is

used having regard to the purpose and object of the

legislation, and the Court must necessarily keep in view

the mischief which the legislature seeks to remedy.

6.93. The contention that the power to prohibit something as

res extra commercium is always a legislative policy and that therefore

the same cannot be done through an executive fiat, omits to take

note of the crucial role assigned to RBI in the economic sphere. It is

true that in Godawat Pan Masala Products IP Ltd. & Anr v. Union

63

(2019) 2 SCC 104

64

1985 (2) SCC 116

112

of India,

65

it was held that whether an article is to be prohibited

as res extra commercium, is a matter of Legislative policy and

must arise out of an Act of legislature and not by a mere

executive notification. But we must remember that in Khoday

Distilleries Ltd. v. State of Karnataka,

66

while dealing with

prohibitions on alcohol it was held that what articles and goods

should be allowed to be produced, possessed, sold and consumed is

to be left to the judgment of legislative and executive wisdom.

6.94. In any case, the projection of the impugned decisions of

RBI as a total prohibition of an activity altogether, may not be

correct. The impugned Circular does not impose a prohibition on the

use of or the trading in VCs. It merely directs the entities regulated

by RBI not to provide banking services to those engaged in the

trading or facilitating the trading in VCs. Section 36(1)(a) of the

Banking Regulation Act, 1949 very clearly empowers RBI to caution

or prohibit banking companies against entering into certain types of

transactions or class of transactions. The prohibition is not per se

against the trading in VCs. It is against banking companies, with

respect to a class of transactions. The fact that the functioning of

VCEs automatically gets paralyzed or crippled because of the

impugned Circular, is no ground to hold that it tantamount to total

prohibition. So long as those trading in VCs do not wish to convert

65

(2004) 7 SCC 68

66

(1995) 1 SCC 574

113

them into fiat currency in India and so long as the VCEs do not seek

to collect their service charges or commission in fiat currency

through banking channels, they will not be affected by this Circular.

Admittedly, peer-to-peer transactions are still taking place, without

the involvement of the banking channel. In fact, those actually

buying and selling VCs without seeking to convert fiat currency into

VCs or vice-versa, are not affected by this Circular. It is only the

online platforms which provide a space or medium for the traders to

buy and sell VCs, that are seriously affected by the Circular, since

the commission that they earn by facilitating the trade is required to

be converted into fiat currency. Interestingly, the petitioners argue on

the one hand that there is total prohibition and argue on the other

hand that the Circular does not achieve its original object of

curtailing the actual trading, though it cripples the exchanges. If the

first part of this submission is right, the latter cannot be and if the

latter part is right, the former cannot be.

6.95. The reliance placed in this regard by the petitioners on

the decision of this court in State of Rajasthan v. Basant Nahata

67

may not be appropriate. The said decision arose out of a challenge to

the constitutional validity of Section 22A of the Registration Act,

1908 inserted by way of State Amendment by the State of Rajasthan.

By the said amendment, the state government was conferred with

67

(2005) 12 SCC 77

114

unbridled powers to declare by notification in the official gazette, the

registration of any document or class of documents as opposed to

public policy. In exercise of the power so conferred, the state

government issued notifications declaring the registration of an

irrevocable power of attorney or a power of attorney to be in force for

more than a certain period, authorizing the attorney to transfer any

immovable property, as opposed to public policy. This court found

that the delegation made by Section 22A was uncanalised and

unguided. In addition, the court found that a transaction between

two persons capable of entering into contract, which does not

contravene any statute, would be valid in law and that when the

State of Rajasthan did not make such transactions illegal, it cannot

strike at the documents recording such transactions. The court held

that Section 22A cannot control the transactions which fall outside

the scope of the Act, through a subordinate legislation.

6.96. But the said decision is of no assistance to the

petitioners, since none of the provisions of the RBI Act or the

Banking Regulation Act are under challenge before us. The delegation

itself is not in question before us. Unlike the Registration Act, Section

36(1)(a) of the Banking Regulation Act, 1949 empowers RBI to

specifically target transactions. Moreover, RBI’s role in the economy

of the country is not akin to the power of any other delegate.

115

6.97. While holding that price fixation may normally be a

legislative act, this court pointed out in Union of India & Anr v.

Cynamide India ltd. & Anr:

68

“…with the proliferation of delegated legislation, there is a

tendency for the line between legislation and

administration to vanish into an illusion. Administrative,

quasi-judicial decisions tend to merge in legislative activity

and, conversely, legislative activity tends to fade into and

present an appearance of an administrative or quasi-

judicial activity. Any attempt to draw a distinct line

between legislative and administrative functions, it has

been said, is ‘difficult in theory and impossible in practice’.

... The distinction between the two has usually been

expressed as ‘one between the general and the particular’.

‘A legislative act is the creation and promulgation of

a general rule of conduct without reference to

particular cases; an administrative act is the

making and issue of a specific direction or the

application of a general rule to a particular case in

accordance with the requirements of policy’.

‘Legislation is the process of formulating a general rule of

conduct without reference to particular cases and usually

operating in future; administration is the process of

performing particular acts, of issuing particular orders or of

making decisions which apply general rules to particular

cases’.” (emphasis supplied)

6.98. On the effect and force of delegated legislation, this court

held in St. Johns Teachers Training Institute v. Regional

Director, NCTE:

69

“The regulations made under power conferred by the

statute are supporting legislation and have the force and

effect, if validly made, as an Act passed by the competent

legislature.”.

68

(1987) 2 SCC 720

69

(2003) 3 SCC 321

116

Similar views were expressed in Udai Singh Dagar v. Union of

India,

70

when the court held:“...a legislative Act must be read with the

regulations framed. A subordinate legislation, as is well known, when

validly framed, becomes a part of the Act.”

6.99. Law is well settled that when RBI exercises the powers

conferred upon it, both to frame a policy and to issue directions for

its enforcement, such directions become supplemental to the Act

itself. In Peerless General Finance and Investment Co. Ltd. v.

Reserve Bank of India,

71

this court followed the decisions in State

of U.P. and Ors v. Babu Ram Upadhya

72

and D.K.V. Prasada Rao

v. Govt. of A.P.

73

to hold that Rules made under a statute must be

treated as if they were contained in the Act and that therefore they

must be governed by the same principles as the statute itself. Useful

reference can also be made in this regard to the following

observations in ICICI Bank Ltd v. Official Liquidator of APS Star

Industries Ltd:

74

“40. When a delegate is empowered by Parliament to enact

a policy and to issue directions which have a statutory

force and when the delegatee (RBI) issues such guidelines

(policy) having statutory force, such guidelines have got to

be read as supplement to the provisions of the BR Act,

1949. The “banking policy” is enunciated by RBI. Such

policy cannot be said to be ultra vires the Act.” (emphasis

supplied)

70

(2007) 10 SCC 306

71

(1992) 2 SCC 343

72

AIR 1961 SC 751

73

AIR 1984 AP 75

74

(2010) 10 SCC 1

117

6.100. In his treatise on Administrative Law, Durga Das Basu

75

states:

The scope of judicial review is narrowed down when a

statute confers discretionary power upon an executive

authority to make such rules or regulations or orders ‘as

appear to him to be necessary’ or ‘expedient’, for carrying

out the purposes of the statute or any other specified

purpose. In such a case, the check of ultra vires

vanishes for all practical purposes inasmuch as the

determination of the necessity or expediency is

taken out of the hands of the Courts and the only

ground upon which Courts may interfere is that the

authority acted mala fide or never applied his mind

to the matter, or applied an irrelevant principle in

making a statutory order. (emphasis supplied)

6.101. In Jayantilal Amrit Lal Shodhan v. F.N. Rana,

76

the

majority pointed out that there can be no assumption that the

legislative functions are exclusively performed by the legislature,

executive functions by the executive and judicial functions by the

judiciary alone. The court indicated that the Constitution has not

made an absolute or rigid division of functions between the three

agencies of the state and that at times the exercise of legislative or

judicial functions are entrusted to the executive. A very important

observation made by the Constitution Bench in Jayantilal (supra)

was as follows:

“…..in addition to these quasi-judicial and quasi-legislative

functions, the executive has also been empowered by

statute to exercise functions which are legislative and

judicial in character and in certain instances, powers are

75

Ch. 4, Pg. 121, 6

th

Edition, 2004

76

AIR 1964 SC 648

118

exercised which appear to partake at the same moment of

legislative, executive and judicial characteristics.”

6.102. In Shri Sitaram Sugar Co. Ltd. & Anr v. Union of

India & Ors,

77

the Constitution bench of this court held that

whether an order is characterized as legislative or administrative or

quasi-judicial or whether it is a determination of law or fact, the

judgment of the expert body entrusted with power is generally treated

as final and the judicial function is exhausted when it is found to

have “warrant in the record” and a rational basis in law.

6.103. It must be pointed out that the power of RBI is not

merely curative but also preventive. This is acknowledged by this

court in Ganesh Bank of Kurunwad Ltd. & Ors v. Union of India

& Ors.,

78

where it was held that RBI has a right to take pre-emptive

action taking into account the totality of the circumstances.

“It is not that when there is a run on the bank then only

RBI must intervene or that it must intervene only when

there are a good number of court proceedings against the

bank concerned. RBI has to take into account the totality of

the circumstances and has to form its opinion accordingly.”

6.104. The impugned Circular is intended to prohibit banking

companies from entering into certain territories. The Circular is

actually addressed to entities regulated by RBI and not to those who

do not come within the purview of RBI’s net. But the exercise of such

a power by RBI, over the entities regulated by it, has caused a

77

(1990) 3 SCC 223

78

(2006) 10 SCC 645

119

collateral damage to some establishments like the petitioners’, who do

not come within the reach of RBI’s net.

6.105. The power of a statutory authority to do something has

to be tested normally with reference to the persons/entities qua

whom the power is exercised. The question to be addressed in such

cases is whether the authority had the power to do that act or issue

such a directive, qua the person to whom it is addressed. While

persons who suffer a collateral damage can certainly challenge the

action, such challenge will be a very weak challenge qua the

availability of power.

6.106. Apart from the provisions of the RBI Act, 1934 and the

Banking Regulation Act, 1949, the impugned Circular also refers to

the power under Section 18 of the Payment and Settlement Systems

Act, 2007. In order to buttress their contention regarding the

availability of power to regulate, the petitioners refer to the definition

of the expression “payment system” under Section 2(1)(i) of the said

Act and contend that VCEs do not operate any payment system and

that since the power to issue directions under Section 18 is only to

regulate the payment systems, the invocation of the said power to

something that does not fall within the purview of payment system, is

arbitrary.

6.107. But Section 18 of the Payment and Settlement Systems

Act indicates (i) what RBI can do (ii) the persons qua whom it can be

120

done and (iii) the object for which it can be done. In other words,

Section 18 empowers RBI (i) 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. These are what RBI can do under Section 18. Coming to

the second aspect, the persons qua whom the powers under Section

18 can be exercised are (i) system providers (ii) system participants

and (iii) any other person generally or any such agency. The

expression “system provider” is defined under Section 2(1)(q) to mean

a person who operates an authorized payment system. The

expression “system participant” is defined in Section 2(1)(p) to mean

a bank or any other person participating in a payment system,

including the system provider. Other than the expressions ‘system

provider’ and ‘system participant’, Section 18 also uses the

expressions ‘any other person’ and ‘any such agency’.

6.108. It is true that the purposes for which the power under

Section 18 can be exercised, are also indicated in Section 18. They

are (i) regulation of the payment systems (ii) the interest of the

management and operation of any payment system and (iii) public

interest.

6.109. As we have pointed out elsewhere, the impugned

Circular is primarily addressed to banks who are “system

121

participants” within the meaning of Section 2(1)(p). The banks

certainly have a system of payment to be effected between a payer

and a beneficiary, falling thereby within the meaning of the

expression payment system.

6.110. It may also be relevant to take note of the definition of

the expressions “payment instruction” and “payment obligation”

appearing in clauses (g) and (h) of subsection (1) of Section 2 which

read as follows:

2(1)(g)

“

payment instruction” means any instrument,

authorisation or order in any form, including electronic

means, to effect a payment,—

(i) by a person to a system participant; or

(ii) by a system participant to another system participant;

2(1)(h)

“

payment obligation” means an indebtedness that

is owned by one system participant to another system

participant as a result of clearing or settlement of one or

more payment instructions relating to funds, securities or

foreign exchange or derivatives or other transactions;

6.111. Therefore, in the overall scheme of the Payment and

Settlement Systems Act, 2007, 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. Hence, the argument revolving around Section

18 should fail.

122

II. Mode of exercise of power:

Satisfaction/Application of mind/relevant and irrelevant

considerations

6.112. That takes us to the next question whether the power

was exercised properly in a manner prescribed by law. The argument

of Shri Ashim Sood, learned Counsel for the petitioner is that

assuming that RBI has the requisite power under Section 35A(1) of

Banking Regulation Act, 1949 to do what it has done, the necessary

sine qua non is the “satisfaction”. Section 35A(1) of the Banking

Regulation Act, 1949 as well as Section 45JA and 45L of the RBI Act,

1934 empower RBI to issue directions “if it is satisfied” about the

existence of certain parameters. Satisfaction can be arrived at only by

(i) gathering facts (ii) sifting relevant material from those which are

irrelevant and (iii) forming an opinion about the cause and

connection between relevant material and the decision proposed to be

taken. In respect of each of these requirements, the learned Counsel

relied upon certain judicial precedents.

6.113. But we do not think that in the facts of the present case,

we could hold RBI guilty of non-application of mind. As a matter of

fact, the issue as to how to deal with virtual currencies has been

lingering with RBI from June 2013 onwards, when the Financial

Stability Report took note of the challenges posed by virtual

currencies in the form of regulatory, legal and operational risks. The

123

Financial Stability Report of June 2013 led to a press release dated

24-12-2013 cautioning the users, holders and traders of virtual

currencies about the potential financial, operational, legal and

consumer protection and security related risks associated with

virtual currencies. Then came the Financial Stability Report of

December 2015 which raised concerns about excessive volatility in

the value of VCs and their anonymous nature which went against

global money laundering rules rendering their very existence

questionable. The Financial Stability Report of December 2016 also

took note of the risks associated with virtual currencies qua data

security and consumer protection. The report also recorded concerns

about far reaching potential impact of the effectiveness of monetary

policy itself. Therefore, the report suggested RegTech to deal with

FinTech.

6.114. IDRBT, established by RBI to work at the intersection of

banking and technology submitted a white paper in January 2017,

which enlisted the advantages as well as disadvantages of digital

currencies. This white paper was taken note of by RBI in the

Financial Stability Report of June 2017. In the meantime, RBI issued

a press release on 01-02-2017 once again cautioning the users,

holders and traders of virtual currencies.

6.115. The sub-committee of the Financial Stability and

Development Council took a decision in April 2016, pursuant to

124

which RBI set up an Inter-Regulatory Working Group on FinTech and

Digital Banking. This Working Group submitted a report in November

2017, after which RBI issued a third press release on 05-12-2017.

Thereafter RBI also sent a mail on 02-04-2018 to the central

government, enclosing a note on regulating crypto assets. To be fair

to RBI, even this note examined the pros and cons of banning and

regulating crypto currencies.

6.116. All the above sequence of events from June 2013 up to

02-04-2018 would show that RBI had been brooding over the issue

for almost five years, without taking the extreme step. Therefore, RBI

can hardly be held guilty of non-application of mind. If an issue had

come up again and again before a statutory authority and such an

authority had also issued warnings to those who are likely to be

impacted, it can hardly be said that there was no application of mind.

For arriving at a “satisfaction” as required by Section 35A(1) of

Banking Regulation Act, 1949 and Section 45JA and 45L of RBI Act,

1934, it was not required of RBI either to write a thesis or to write a

judgement.

6.117. In fact, RBI cannot even be accused of not taking note of

relevant considerations or taking into account irrelevant

considerations. RBI has taken into account only those considerations

which multinational bodies and regulators of various countries such

as FATF, BIS, etc., have taken into account. This can be seen even

125

from the earliest press release dated 24-12-2013, which is more

elaborate than the impugned Circular dated 06-04-2018. The press

release dated 24-12-2013 reads as follows:

RBI cautions users of Virtual Currencies against

Risks

The Reserve Bank of India has today cautioned the users,

holders and traders of Virtual currencies (VCs), including

Bitcoins, about the potential financial, operational, legal,

customer protection and security related risks that they

are exposing themselves to.

The Reserve Bank has mentioned that it has been looking

at the developments relating to certain electronic records

claimed to be “Decentralised Digital Currency” or “Virtual

Currency” (VCs), such as, Bitcoins, litecoins, bbqcoins,

dogecoins etc., their usage or trading in the country and

the various media reports in this regard.

The creation, trading or usage of VCs including Bitcoins, as

a medium for payment are not authorised by any central

bank or monetary authority. No regulatory approvals,

registration or authorisation is stated to have been

obtained by the entities concerned for carrying on such

activities. As such, they may pose several risks to their

users, including the following:

•

VCs being in digital form are stored in digital/electronic

media that are called electronic wallets. Therefore, they

are prone to losses arising out of hacking, loss of

password, compromise of access credentials, malware

attack etc. Since they are not created by or traded through

any authorised central registry or agency, the loss of the e-

wallet could result in the permanent loss of the VCs held in

them.

•

Payments by VCs, such as Bitcoins, take place on a

peer-to-peer basis without an authorised central agency

which regulates such payments. As such, there is no

established framework for recourse to customer problems /

disputes / charge backs etc.

•

There is no underlying or backing of any asset for VCs.

As such, their value seems to be a matter of speculation.

126

Huge volatility in the value of VCs has been noticed in the

recent past. Thus, the users are exposed to potential losses

on account of such volatility in value.

•

It is reported that VCs, such as Bitcoins, are being

traded on exchange platforms set up in various

jurisdictions whose legal status is also unclear. Hence, the

traders of VCs on such platforms are exposed to legal as

well as financial risks.

•

There have been several media reports of the usage of

VCs, including Bitcoins, for illicit and illegal activities in

several jurisdictions. The absence of information of

counterparties in such peer-to-peer anonymous/

pseudonymous systems could subject the users to

unintentional breaches of anti-money laundering and

combating the financing of terrorism (AML/CFT) laws.

The Reserve Bank has also stated that it is presently

examining the issues associated with the usage, holding

and trading of VCs under the extant legal and regulatory

framework of the country, including Foreign Exchange and

Payment Systems laws and regulations.

6.118. When a series of steps taken by a statutory authority

over a period of about five years disclose in detail what triggered their

action, it is not possible to see the last of the orders in the series in

isolation and conclude that the satisfaction arrived at by the

authority is not reflected appropriately. In any case, pursuant to an

order passed by this court on 21-08-2019, RBI has given a detailed

point-wise reply to the representations of the petitioners. In these

representations, the petitioners have highlighted all considerations

that they thought as relevant. RBI has given its detailed responses on

04-09-2019 and 18-09-2019. Therefore, the contention that there

was no application of mind and that relevant considerations were

127

omitted to be taken note of, loses its vigour in view of the subsequent

developments.

Malice in law/colorable exercise

6.119. Drawing our attention to a reply given by RBI dated 26-

04-2017 to a query under the Right to Information Act, and the reply

given by Minister of State for Finance in response to a question

raised in the Lok Sabha (Unstarred Question No. 2113) on 28-07-

2017, wherein RBI took a position that they had no power to freeze

the accounts either of defaulting companies or of shell companies, it

was contended by Shri Ashim Sood, that the impugned Circular goes

contrary to the position so taken officially, as the Circular has the

effect of closing the accounts of VCEs and that therefore it was hit by

arbitrariness and caprice.

6.120. But the above argument arises out of a misconception

about the purport of the impugned Circular. The impugned Circular

does not order either the freezing or the closing of any particular

account of a particular customer. All that the impugned Circular says

is that RBI regulated entities shall exit the relationship that they

have with any person or entity dealing with or settling VCs, within

three months of the date of the Circular. The regulated entities are

directed not to provide services for facilitating any person or entity in

dealing with or settling VCs. Some of the petitioners herein are

individuals and companies who run virtual currency exchanges. In

128

case they have other businesses, the impugned Circular does not

order the closure of their bank accounts relating to other businesses.

The prohibition under paragraph 2 of the impugned Circular is with

respect to the provision of services for facilitating any person or entity

in dealing with or settling VCs. This prohibition does not extend

either to the closing or the freezing of the accounts of the petitioners

in relation to their other ventures.

6.121. Taking clue from the averment contained in the counter-

affidavit of RBI to the effect that “VCs are outside the ambit of the

central authority’s effective sphere of control and management” and

also referring to the stand taken by RBI in their letter dated 04-09-

2019 to the effect that “neither VCs nor the businesses involved in

providing VC based services come under the regulatory purview of

RBI”, it was contended by Shri Ashim Sood that the impugned

Circular is a colourable exercise of power and tainted by malice in

law, in as much as it seeks to achieve an object completely different

from the one for which the power is entrusted. State of Punjab &

Anr v. Gurdial Singh & Ors,

79

Collector (District Magistrate)

Allahabad & Anr v. Raja Ram Jaiswal,

80

and Kalabharati

Advertising v. Hemant Vimalnath Narichania & Ors

81

are relied

upon in this regard.

79

(1980) 2 SCC 471

80

(1985) 3 SCC 1

81

(2010) 9 SCC 437

129

6.122. But the above contention is completely misconceived.

There can be no quarrel with the proposition that RBI has sufficient

power to issue directions to its regulated entities in the interest of

depositors, in the interest of banking policy or in the interest of the

banking company or in public interest. If the exercise of power by RBI

with a view to achieve one of these objectives incidentally causes a

collateral damage to one of the several activities of an entity which

does not come within the purview of the statutory authority, the

same cannot be assailed as a colourable exercise of power or being

vitiated by malice in law. To constitute colourable exercise of power,

the act must have been done in bad faith and the power must have

been exercised not with the object of protecting the regulated entities

or the public in general, but with the object of hitting those who form

the target. To constitute malice in law, the act must have been done

wrongfully and willfully without reasonable or probable cause. The

impugned Circular does not fall under the category of either of them.

6.123. The argument that the invocation by RBI, of ‘public

interest’ as a weapon, purportedly for the benefit of users, consumers

or traders of virtual currencies is a colourable exercise of power also

does not hold water. Once it is conceded that RBI has powers to issue

directions in public interest, it is impossible to exclude users,

consumers or traders of virtual currencies from the coverage. In fact,

the repeated press releases issued by RBI from 2013 onwards

130

indicate that RBI did not want the members of the public, which

include users, consumers and traders of VCs, even to remotely think

that virtual currencies have a legal tender status or are backed by a

central authority. Irrespective of what VCs actually do or do not do, it

is an accepted fact that they are capable of performing some of the

functions of real currencies. Therefore, if RBI takes steps to prevent

the gullible public from having an illusion as though VCs may

constitute a valid legal tender, the steps so taken, are actually taken

in good faith. The repeated warnings through press releases from

December 2013 onwards indicate a genuine attempt on the part of

RBI to safeguard the interests of the public. Therefore, the contention

that the impugned Circular is vitiated by malice in law and that it is

a colorable exercise of power, cannot be sustained.

6.124. Relying upon (i) the decision in Meerut Development

Authority v. Assn. Management Studies & Anr,

82

wherein it was

held that the term “public interest” must be understood and

interpreted in the light of the entire scheme, purpose and object of

the enactment (ii) the decision in Bihar Public Service Commission

v. Saiyed Hussain Abbas Rizwi & Anr,

83

wherein it was held that

the term “public interest” does not have a rigid meaning and takes its

colour from the statute in which it occurs (iii) the decision in Utkal

82

(2009) 6 SCC 171

83

(2012) 13 SCC 61

131

Contractors & Joinery (P) Ltd. & Ors v. State of Orissa & Ors,

84

wherein it was held that the words of a statute take their colour from

the reason for it and (iv) the decision in Empress Mills v. Municipal

Committee, Wardha,

85

wherein it was held that general words and

phrases must usually be construed as being limited to the actual

object of the Act, it was contended that the expression ‘public

interest’ appearing in Section 35A(1)(a) of the Banking Regulation

Act, 1949, cannot be given an expansive meaning.

6.125. But the said argument does not take the petitioners

anywhere. As we have indicated elsewhere, the power under Section

35A to issue directions is to be exercised under four contingencies

namely (i) public interest (ii) interest of banking policy (iii) interest of

the depositors and (iv) interest of the banking company. The

expression “banking policy” is defined in Section 5(ca) to mean

any policy specified by RBI (i) in the interest of the banking

system (ii) in the interest of monetary stability and (iii) sound

economic growth. Public interest permeates all these three

areas. This is why Section 35A(1)(a) is invoked in the impugned

Circular. Therefore, we reject the argument that the impugned

decision is a colorable exercise of power and it is vitiated by malice in

law.

84

(1987) 3 SCC 279

85

(1958) SCR 1102

132

M. S. Gill Reasoning

6.126. The impugned Circular cannot be assailed on the basis

of M. S. Gill

86

test, for two reasons. First is that in Chairman, All

India Railway Recruitment Board v. K. Shyam Kumar & Ors,

87

this court held that MS Gill test may not always be applicable where

larger public interest is involved and that in such situations,

additional grounds can be looked into for examining the validity of an

order. This was followed in PRP Exports & Ors v. Chief Secretary,

Government of Tamil Nadu & Ors.

88

In 63 Moons Technologies

ltd. & Ors v. Union of India & Ors,

89

this court clarified that

though there is no broad proposition that MS Gill test will not apply

where larger public interest is involved, subsequent materials in the

form of facts that have taken place after the order in question is

passed, can always be looked at in the larger public interest, in order

to support an administrative order. The second reason why the

weapon of MS Gill will get blunted in this case, is that during the

pendency of this case, this court passed an interim order on 21-08-

2019 directing RBI to give a point-wise reply to the detailed

representation made by the writ petitioners. Pursuant to the said

order, RBI gave detailed responses on 04-09-2019 and 18-09-2019.

Therefore, the argument based on MS Gill test has lost its potency.

86

M S Gill v. The Chief Election Commissioner, (1978) 1 SCC 405

87

(2010) 6 SCC 614

88

(2014) 13 SCC 692

89

(2019) SCC Online SC 624

133

Calibration/Proportionality

6.127. The next argument is that the impugned measure is

extreme and that it will not pass the test of proportionality. For the

purpose of convenience, we shall take up this argument together with

the argument revolving around Article 19(1)(g) while dealing with the

reasonableness of the restriction.

III. Wait and watch approach of the other stakeholders

6.128. The argument that other stakeholders such as the

Enforcement Directorate which is concerned with money laundering,

the Department of Economic Affairs which is concerned with the

economic policies of the State, SEBI which is concerned with security

contracts and CBDT which is concerned with the tax regime relating

to goods and services, did not see any grave threat and that therefore

RBI’s reaction is knee-jerk, is not acceptable. Enforcement Directorate

can step in only when actual money laundering takes place, since the

statutory scheme of Prevention of Money Laundering Act deals with a

procedure which is quasi-criminal. SEBI can step in only when the

transactions involve securities within the meaning of Section 2(h) of

the Securities Contracts (Regulation) Act, 1956. CBDT will come into

the picture only when the transaction related to the sale and

purchase of taxable goods/commodities. Every one of these

stakeholders has a different function to perform and are entitled to

have an approach depending upon the prism through which they are

134

obliged to look at the issue. Therefore, RBI cannot be faulted for not

adopting the very same approach as that of others.

IV. Light-touch approach of the other countries

6.129. The argument that most of the countries except very few

like China, Vietnam, Pakistan, Nepal, Bangladesh, UAE, have not

imposed a ban (total or partial) may not take the petitioners

anywhere. The list of countries where a ban similar to the one on

hand and much more has been imposed discloses a commonality.

Almost all countries in the neighborhood of India have adopted the

same or similar approach (in essence India is ring fenced). In any

case, our judicial decision cannot be colored by what other countries

have done or not done. Comparative perspective helps only in relation

to principles of judicial decision making and not for testing the

validity of an action taken based on the existing statutory scheme.

6.130. There can also be no comparison with the approach

adopted by countries such as UK, US, Japan, Singapore, Australia,

New Zealand, Canada etc., as they have developed economies capable

of absorbing greater shocks. Indian economic conditions cannot be

placed on par. Therefore, we will not test the correctness of the

measure taken by RBI on the basis of the approach adopted by other

countries, though we have, for better understanding of the

complexities of the issues involved, undertaken a survey of how the

regulators and courts of other countries have treated VCs.

135

V. Precautionary steps taken by petitioners

6.131. The next contention of the petitioners is that the VC

exchanges run by them have already put in place certain best

practices such as (i) avoidance of cash transactions (ii) enhanced KYC

norms and (iii) confining their services only to persons within India.

Therefore, it is contended that all the issues flagged by RBI have

already been addressed and that therefore, there was no necessity to

disconnect the trade from the regular banking channels. But the fact

of the matter is that enhanced KYC norms may remove anonymity of

the customer, but not that of the VC. Even the European

Parliament, in the portion of its report relied upon by Shri Ashim

Sood accepts that the adequacy of mandatory registration of

users (as a less invasive measure), whether or not of fully

anonymous or pseudo anonymous crypto currencies depends on

the users’ compliance with the registration requirement. After

pointing out that compliance will partly depend on an adequate

sanctioning toolbox in the event of breach, the report wonders

whether it is at all possible outside of the context of randomly

bumping into it, at least when fully anonymous VCs are concerned. In

any case, we are not experts to say whether the safety valves put in

place could have addressed all issues raised by RBI.

136

VI. Different types of VCs require different treatments

6.132. Drawing our attention to a Report by the European

Parliament under the caption ‘Cryptocurrencies and Blockchain’,

released in July 2018, it is contended by Shri Ashim Sood, learned

Counsel for the petitioners that all virtual currencies are not fully

anonymous. While some, such as Dash and Monero are fully

anonymous, others such as Bitcoin are pseudo-anonymous.

Therefore, it is contended that banning transactions only in fully

anonymous VCs could have been a better and less intrusive measure.

An identical argument is advanced by Shri Nakul Dewan learned

Senior Counsel for the petitioners, with reference to a report of

October 2012 of the European Central Bank on “Virtual Currency

Schemes”. According to the said Report, Virtual Currency schemes

can be classified into three types, depending upon their interaction

with traditional real money and real economy. They are (i) closed

virtual currency schemes basically used in an online game (ii) virtual

currency schemes having a unidirectional flow (usually an inflow),

with a conversion rate for purchasing the virtual currency which can

subsequently be used to buy virtual goods and services, but

exceptionally also to buy real goods and services and (iii) virtual

currency schemes having a bidirectional flow, where they act like any

other convertible currency with two exchange rates (buy and sell)

137

which can subsequently be used to buy virtual goods and services as

well as real goods and services.

6.133. Let us first deal with Shri Nakul Dewan’s submission. In

the very same October 2012 Report of the European Central

Bank, it is accepted that virtual currencies (i) resemble money

and (ii) necessarily come with their own dedicated retail

payment systems. These two aspects are indicated in the Report to

be covered by the term “Virtual Currency Scheme”.

6.134. But the entire premise on which the petitioners have

developed their case is that they are neither money nor constitute a

payment system. Therefore, if the Report of the European Central

Bank is to be accepted, it should be accepted in total and cannot be

selectively taken.

6.135. The examples provided in the October 2012 Report of the

European Central Bank show that there are VC Schemes set up by

entities such as Nintendo, in which consumers can purchase points

online by using a credit card or in retail stores by purchasing a

Nintendo points card which cannot be converted back to real money.

The Report also shows that one VC by name Linden Dollars is issued

in a virtual world called “Second life”, where users create avatars

(digital characters), which can be customized. Second life has its own

economy where users can buy and sell goods and services from and

to each other. But they first need to purchase Linden dollars using

138

fiat currency. Later they can also sell Linden dollars in return for fiat

currency. Therefore, it is clear that the very same virtual currency can

have a unidirectional or bidirectional flow depending upon the

scheme with which the entities come up. Moreover, the question

whether anonymous VCs alone could have been banned leaving the

pseudo-anonymous, is for experts and not for this Court to decide. In

any case, the stand taken by RBI is that they have not banned VCs.

Hence, the question whether RBI should have adopted different

approaches towards different VCs does not arise.

VII. Acceptance of DLT and rejection of VCs is a paradox

6.136. It was argued that the acceptance of the Distributed

Ledger Technology and the rejection of VCs is actually a contradiction

in terms. This argument is based upon the various reports, both of

RBI and of the Inter-Ministerial Group, to the effect that DLT is part

of FinTech.

6.137. The above contention, in legal terms, is about the

irrationality of the impugned decision. But there is nothing irrational

about the acceptance of a technological advancement/innovation, but

the rejection of a by-product of such innovation. There is nothing like

a “take it or leave it” option.

VIII. RBI’s decisions do not qualify for Judicial deference

6.138. It is contended by Shri Ashim Sood, learned Counsel for

the petitioners that the impugned Circular does not have either the

139

status of a legislation or the status of an executive action, but is only

the exercise of a power conferred by statute upon a statutory body

corporate. Therefore, it is his contention that the judicial rule of

deference as articulated in R.K. Garg v. Union of India,

90

BALCO

Employees’ Union (Regd.) v. Union of India & Ors,

91

and Swiss

Ribbons Pvt. Ltd. & Anr v. Union of India & Ors,

92

will not apply to

the decision taken by a statutory body like RBI. If, a legislation

relating to economic matters is placed at the highest pedestal, an

executive decision with regard to similar matters will be placed only at

a lower pedestal and the decision taken by a statutory body may not

even be entitled to any such deference or reverence.

6.139. But given the scheme of the RBI Act, 1934 and the

Banking Regulation Act, 1949, the above argument appears only to

belittle the role of RBI. RBI is not just like any other statutory body

created by an Act of legislature. It is a creature, created with a

mandate to get liberated even from its creator. This is why it is given a

mandate – (i) under the Preamble of the RBI Act 1934, to operate the

currency and credit system of the country to its advantage and to

operate the monetary policy framework in the country (ii) under

Section 3(1), to take over the management of the currency from the

central government (iii) under Section 20, to undertake to accept

90

(1981) 4 SCC 675

91

(2002) 2 SCC 333

92

(2019) 4 SCC 17

140

monies for account of the central government, to make payments up

to the amount standing to the credit of its account and to carry out

its exchange, remittance and other banking operations, including the

management of the public debt of the Union (iv) under Section 21(1),

to have all the money, remittance, exchange and banking

transactions in India of the central government entrusted with it (v)

under Section 22(1), to have the sole right to issue bank notes in

India and (vi) under Section 38, to get rupees into circulation only

through it, to the exclusion of the central government. Therefore, RBI

cannot be equated to any other statutory body that merely serves its

master. It is specifically empowered to do certain things to the

exclusion of even the central government. Therefore, to place its

decisions at a pedestal lower than that of even an executive decision,

would do violence to the scheme of the Act.

6.140. On the primary question of switching over to judicial

“silent mode” or “hands off mode”, qua economic legislation, it is not

necessary to catalogue all the decisions of this court such as State of

Gujarat & Anr v. Shri Ambica Mills Ltd. & Anr,

93

G.K.Krishnan v. Tamil

Nadu,

94

R. K. Garg v. Union of India (supra), State of M.P. v. Nandlal

Jaiswal,

95

P.M. Ashwathanarayana Setty v. State of Karnataka,

96

Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of

93

(1974) 4 SCC 656

94

(1975) 1 SCC 375

95

(1986) 4 SCC 566

96

(1989) Supp (1) SCC 696

141

India (supra), T. Velayudhan v. Union of India,

97

Delhi Science Forum

v. Union of India,

98

Bhavesh D. Parish v. Union of India,

99

Ugar Sugar

Works ltd. v. Delhi Administration & Ors,

100

BALCO Employees’ Union

(Regd.) v. Union of India (supra), Govt. of Andhra Pradesh & Ors v. P.

Laxmi Devi,

101

Villianur Iyarkkai Padukappu Maiyam v. Union of

India,

102

D.G. of Foreign Trade v. Kanak Exports,

103

State of J & K v.

Trikuta Roller Flour Mills Pvt. Ltd.,

104

and Pioneer Urban Land and

Infrastructure Ltd. v. Union of India,

105

as the entire history of the

doctrine of deference from Lochner Era has been summarized by this

court in Swiss Ribbons Pvt. Ltd. v. Union of India (supra). In fact,

even the learned Counsel for the petitioners is ad idem with the

learned Senior Counsel for RBI that economic regulations require due

judicial deference. The actual argument of the learned Counsel for the

petitioners is that such deference may differ in degree from being very

weak in respect of the decision of a statutory authority, to being very

strong in respect of a legislative enactment.

6.141. But as we have pointed out above, RBI is not just any

other statutory authority. It is not like a stream which cannot be

greater than the source. The RBI Act, 1934 is a pre-constitutional

97

(1993) 2 SCC 582

98

(1996) 2 SCC 405

99

(2000) 5 SCC 471

100

(2001) 3 SCC 635

101

(2008) 4 SCC 720

102

(2009) 7 SCC 561

103

(2016) 2 SCC 226

104

(2018) 11 SCC 260

105

(2019) 8 SCC 416

142

legislation, which survived the Constitution by virtue of Article 372(1)

of the Constitution. The difference between other statutory

creatures and RBI is that what the statutory creatures can do,

could as well be done by the executive. The power conferred

upon the delegate in other statutes can be tinkered with,

amended or even withdrawn. But the power conferred upon RBI

under Section 3(1) of the RBI Act, 1934 to take over the

management of the currency from the central government,

cannot be taken away. The sole right to issue bank notes in India,

conferred by Section 22(1) cannot also be taken away and conferred

upon any other bank or authority. RBI by virtue of its authority, is a

member of the Bank of International Settlements, which position

cannot be taken over by the central government and conferred upon

any other authority. Therefore, to say that it is just like any other

statutory authority whose decisions cannot invite due deference, is to

do violence to the scheme of the Act. In fact, all countries have

central banks/authorities, which, technically have independence

from the government of the country. To ensure such independence, a

fixed tenure is granted to the Board of Governors, so that they are

not bogged down by political expediencies. In the United States of

America, the Chairman of the Federal Reserve is the second most

powerful person next only to the President. Though the President

appoints the seven-member Board of Governors of the Federal

143

Reserve, in consultation with the Senate, each of them is appointed

for a fixed tenure of fourteen years. Only one among those seven is

appointed as Chairman for a period of four years. As a result of the

fixed tenure of 14 years, all the members of Board of Governors

survive in office more than three governments. Even the European

Central Bank headquartered in Frankfurt has a President, Vice-

President and four members, appointed for a period of eight years in

consultation with the European Parliament. World-wide, central

authorities/banks are ensured an independence, but unfortunately

Section 8(4) of the RBI Act, 1934 gives a tenure not exceeding five

years, as the central government may fix at the time of appointment.

Though the shorter tenure and the choice given to the central

government to fix the tenure, to some extent, undermines the ability

of the incumbents of office to be absolutely independent, the

statutory scheme nevertheless provides for independence to the

institution as such. Therefore, we do not accept the argument that a

policy decision taken by RBI does not warrant any deference.

IX. Article 19(1)(g) challenge & Proportionality

6.142. The next ground of attack is on the basis of Article

19(1)(g). Any restriction to the freedom guaranteed under Article

19(1)(g) should pass the test of reasonableness in terms of Article

19(6). It is contended by the petitioners that since access to banking

is the equivalent of the supply of oxygen in any modern economy, the

144

denial of such access to those who carry on a trade which is not

prohibited by law, is not a reasonable restriction and that it is also

extremely disproportionate. It is further contended that the right to

access the banking system is actually integral to the right to carry on

any trade or profession and that therefore a legislation, subordinate

or otherwise whose effect or impact severely impairs the right to carry

on a trade or business, not prohibited by law, would be violative of

Article 19(1)(g). Reliance is placed in this regard on the decisions of

this court in (i) Md. Yasin v. Town Area Committee,

106

where it was

held that the right under Article 19(1)(g) is affected when “in effect

and in substance”, the impugned measures brought about a total

stoppage of business, both, in a commercial sense and from a

practical point of view, even though there was no prohibition in form

and (ii) Bennett Coleman & Co. v. Union of India,

107

where this

court held that the impact and not the object of the measure will

determine whether or not, a fundamental right is violated. It is further

contended, on the strength of the decision in Md. Faruk v. State of

Madhya Pradesh & Ors,

108

that the imposition of restriction on the

exercise of a fundamental right may be in the form of control or

prohibition and that when the exercise of a fundamental right is

prohibited, the burden of proving that a total ban on the exercise of

106

(1952) SCR 572

107

(1972) 2 SCC 788

108

(1969) 1 SCC 853

145

the right alone may ensure the maintenance of the general public

interest, lies heavily upon the state. It was held in the said decision

that a law which directly infringes the right guaranteed under Article

19(1)(g) may be upheld only if it is established that it seeks to impose

reasonable restrictions in the interest of the general public and a less

drastic restriction will not ensure the interest of the general public.

6.143. The parameters laid down in Md. Faruk are

unimpeachable. While testing the validity of a law imposing a

restriction on the carrying on of a business or a profession, the court

must, as formulated in Md. Faruk, attempt an evaluation of (i) its

direct and immediate impact upon of the fundamental rights of the

citizens affected thereby (ii) the larger public interest sought to be

ensured in the light of the object sought to be achieved (iii) the

necessity to restrict the citizens’ freedom (iv) the inherent pernicious

nature of the act prohibited or its capacity or tendency to be harmful

to the general public and (v) the possibility of achieving the same

object by imposing a less drastic restraint.

6.144. There can also be no quarrel with the proposition that

banking channels provide the lifeline of any business, trade or

profession. This is especially so in the light of the restrictions on cash

transactions contained in Sections 269SS and 269T of the Income

Tax Act, 1961. When currency itself has undergone a metamorphosis

over the centuries, from stone to metal to paper to paperless and we

146

have ushered into the digital age, cashless transactions (not penniless

transactions) require banking channels. Therefore, the moment a

person is deprived of the facility of operating a bank account, the

lifeline of his trade or business is severed, resulting in the trade or

business getting automatically shut down. Hence, the burden of

showing that larger public interest warranted such a serious

restriction bordering on prohibition, is heavily on RBI.

6.145. In the counter-affidavit filed in WP (C) No. 528 of 2018,

RBI has raised 2 fundamental objections in this regard. The first is

that corporate bodies/entities who have come up with the challenge

are not ‘citizens’ and hence, not entitled to maintain a challenge

under Article 19(1)(g). This objection may hold good in respect of the

writ petition filed by Internet and Mobile Association of India, which is

described by them as a not-for-profit association of corporate entities

who are in the trade. But this objection may not hold good in respect

of the other writ petition, as the companies running VC exchanges

have not come up alone. The shareholders and promoters have come

up with the second writ petition along with those entities and hence

the challenge under Article 19(1)(g) cannot be said to be not

maintainable.

6.146. The second objection of RBI is that there is no

fundamental right to purchase, sell, transact and/or invest in VCs

and that therefore, the petitioners cannot invoke Article 19(1)(g). But

147

this contention is liable to be rejected outright for two reasons

namely, (i) that at least some of the petitioners are not claiming any

right to purchase, sell or transact in VCs, but claiming a right to

provide a platform for facilitating an activity (of trading in VCs

between individuals/entities who want to buy and sell VCs) which is

not yet prohibited by law and (ii) that in any case the impugned

Circular does not per se prohibit the purchase or sale of VCs. This is

why it is contended by the learned Counsel for the petitioners, that

what is hit by the impugned Circular is not the actual target. The

actual target of the impugned Circular, as seen from various

communications and committee reports that preceded the same, is

the trade in VCs. The object of hitting at trading in VCs, is to ensure

(i) consumer protection (ii) prevention of violation of money laundering

laws (iii) curbing the menace of financing of terrorism and (iv)

safeguarding of the existing monetary/payment/credit system from

being polluted. But hitting the target directly, is not within the

domain of RBI and hence the impugned Circular purportedly seeks to

protect only the regulated entities, by ring-fencing them. In the

process, it has hit VC Exchanges and not the actual trading of VCs,

though as a consequence, the volume of transactions in VCs (perhaps

through VCEs alone) is stated to have come down. People who wish to

buy and sell VCs can still do so merrily, without using the medium of

a VC Exchange and without seeking to convert the virtual currencies

148

into fiat currency. It is in this context that the contention revolving

around Article 19(1)(g) has to be examined.

6.147. In order to test the validity of the impugned action on the

touchstone of Article 19(1)(g), we may have to understand the

fundamental distinction between (i) the purchase and sale of virtual

currencies by and between two individuals or entities and (ii) the

business of online exchanges that provide certain services such as the

facility of buying and selling of virtual currencies, the storing or

securing of the virtual currencies in what are known as wallets and

the conversion of virtual currencies into fiat currency and vice versa.

The buying and selling of crypto currencies through VC Exchanges

can be by way of hobby or as a trade/business. The distinction

between the two is that there may or may not exist a profit motive in

the former, while it would, in the latter.

6.148. Persons who engage in buying and selling virtual

currencies, just as a matter of hobby cannot pitch their claim on

Article 19(1)(g), for what is covered therein are only profession,

occupation, trade or business. Therefore hobbyists, who are one

among the three categories of citizens (hobbyists, traders in VCs and

VC Exchanges), straightaway go out of the challenge under Article

19(1)(g).

6.149. The second and third categories of citizens namely, those

who have made the purchase and sale of VCs as their occupation or

149

trade, and those who are running online platforms and VC exchanges

can certainly pitch their claim on the basis of Article 19(1)(g).

Technically speaking, the second category of citizens cannot claim

that the impugned decision of RBI has the effect of completely

shutting down their trade or occupation. Citizens who have taken up

the trade of buying and selling virtual currencies are not prohibited

by the impugned Circular (i) either from trading in crypto-to-crypto

pairs (ii) or in using the currencies stored in their wallets, to make

payments for purchase of goods and services to those who are

prepared to accept them, within India or abroad. As a matter of fact,

reports/articles in online journals suggest (i) that a few eateries such

as Kolonial, a vintage themed pizzeria in Mumbai’s Worli area,

Suryawanshi restaurant in Indiranagar, Bengaluru and Suri Andhra

Mess in Taramani, Chennai were accepting payments in virtual

currencies (Mumbai and Chennai eateries are now closed and the one

in Bangalore has stopped accepting) and (ii) that there are few

intermediaries which accept payments in Bitcoins for gift cards which

in turn facilitate online shopping from popular sites.

6.150. An important aspect to be taken note of is that virtual

currencies cannot be stored anywhere, in the real sense of the term,

as they do not exist in any physical shape or form. What is actually

stored is the private keys, which can be used to access the public

address and transaction signatures.

150

6.151. The software program in which the private and public

keys of those who own virtual currencies is stored, is called a digital

wallet. There are different types of wallets namely (i) paper wallet

which is essentially a document that contains a public address for

receiving the currency and a private key which allows the owner to

spend or transfer the virtual currencies stored in the address (ii)

mobile wallet, which is a tool which runs as an app on the

smartphone, where the private keys are stored, enabling the owner to

make payments in crypto currencies directly from the phone (iii) web

wallet, in which the private keys are stored on a server which is

constantly online (iv) desktop wallet, in which private keys are

stored in the hard drive and (v) hardware wallet, where the private

keys are stored in a hardware device such as pen drive.

6.152. All the above types of wallets except the desktop wallet

allow a great degree of flexibility, in that they can be accessed from

anywhere in the world. For instance, paper wallets are printed in the

form of QR codes that can be scanned, and a transaction completed

by using the private keys. Similarly, mobile wallets run as an app on

the smartphone and hence they allow a person to use the crypto

currency stored in the wallet for buying anything, even while

travelling abroad, provided the vendor accepts payments in crypto

currencies. Paper wallets and mobile wallets can also be used to draw

fiat currency from virtual currency ATMs available in countries like

151

USA, Canada, Switzerland, etc.

6.153. In other words, most of the wallets except perhaps

desktop wallet, have great mobility and have transcended borders.

Therefore, despite the fact that the users and traders of virtual

currencies are also prevented by the impugned Circular from

accessing the banking services, the impugned Circular has not

paralyzed many of the other ways in which crypto currencies can still

find their way to or through the market.

6.154. Persons who have suffered a deadly blow from the

impugned Circular are only those running VC exchanges and not

even those who are trading in VCs. Persons trading in VCs, even now

have different options, some of which we have discussed above

(wizards may have many more options). But the VC exchanges do not

appear to have found out any other means of survival (at least as of

now) if they are disconnected from the banking channels.

6.155. In all cases where legislative/executive action infringing

the right guaranteed under Article 19(1)(g) were set at naught by this

court, this court was concerned with a ban/prohibition of an activity.

The question of the prohibited/banned activities having the potential

to destabilize an existing system, did not arise in those cases. The

pleadings contained in the first writ petition filed by the Association,

would show that three companies who are members of the Internet

and Mobile Association of India, had a combined total of

152

approximately 17 lakhs verified users throughout India. These

companies held a combined total of approximately Rs. 1365 crores of

user funds in trust. The approximate monthly transaction volume of

just these three companies was around Rs. 5000 crores. Even

according to the petitioner, the crypto asset industry is estimated to

have a market capitalization of approximately 430 billion US dollars

globally. India is estimated to contribute between 2 and 10% based on

varied estimates. It is admitted in WP (C) No. 373 of 2018 that the

total number of investors in Indian crypto market was approximately

20 lakhs and the average daily trade volume was at least Rs. 150

crores, at the time when the writ petition was filed. Therefore, if a

central authority like RBI, on a conspectus of various factors perceive

the trend as the growth of a parallel economy and severs the

umbilical cord that virtual currency has with fiat currency, the same

cannot be very lightly nullified as offending Article 19(1)(g).

6.156. But nevertheless, the measure taken by RBI should pass

the test of proportionality, since the impugned Circular has almost

wiped the VC exchanges out of the industrial map of the country,

thereby infringing Article 19(1)(g). On the question of proportionality,

the learned Counsel for the petitioners relies upon the four-pronged

test summed up in the opinion of the majority in Modern Dental

153

College and Research Centre v. State of Madhya Pradesh.

109

These four tests are (i) that the measure is designated for a proper

purpose (ii) that the measures are rationally connected to the

fulfillment of the purpose (iii) that there are no alternative less

invasive measures and (iv) that there is a proper relation between the

importance of achieving the aim and the importance of limiting the

right. The court in the said case held that a mere ritualistic

incantation of “money laundering” or “black money” does not satisfy

the first test and that alternative methods should have been explored.

6.157. Let us now see whether the impugned Circular would fail

the four-pronged test. In fact, the Privy Council originally set forth in

Elloy de Freitas v. Permanent Secretary of Ministry of

Agriculture, Fisheries, Lands and Housing,

110

only a three-fold

test namely (i) whether the legislative policy is sufficiently important

to justify limiting a fundamental right (ii) whether the measures

designed to meet the legislative objective are rationally connected to it

and (iii) whether the means used to impair the right or freedom are no

more than is necessary to accomplish the objective. These three tests

came to be known as De Freitas test. But a fourth test namely “the

need to balance the interests of society with those of individuals and

groups” was added by the House of Lords in Huang v. Secretary of

109

(2016) 7 SCC 353

110

[1999] 1 AC 69

154

State for the Home Department.

111

These four tests were more

elaborately articulated by the Supreme Court of United Kingdom in

Bank Mellat v. HM Treasury (No. 2).

112

6.158. Bank Mellat (supra) is an important decision to be

taken note of, as it concerned almost an identical measure by which

Her Majesty’s Treasury restricted access to the UK’s financial markets

by a major Iranian commercial bank on account of its alleged

connection with Iran’s nuclear program. This was done by the

Treasury by way of a direction under Schedule 7 of the Counter

Terrorism Act, 2008, requiring all persons operating in the financial

sector not to have any commercial dealings with Bank Mellat.

Schedule 7 of the Act dealt with “terrorist financing and money

laundering”. This Schedule 7 has several parts, Part 1 providing

“conditions for giving a direction”, Part 2 indicating the “persons to

whom a direction may be given”, Part 3 laying down the requirements

that may be imposed by a direction, Part 4 containing “procedural

provisions and licensing”, Part 5 dealing with enforcement and

information powers, Part 6 dealing with civil penalties, Part 7 listing

out the offences and Part 8 containing supplemental provisions.

Paragraph 14 of Schedule 7 of the said Act enables the Treasury to

issue general directions, to all persons or a description of persons

operating in the financial sector. But certain procedural safeguards

111

[2007] UKHL 11

112

[2013] UKSC 39

155

are provided in paragraph 14(2) as well as paragraph 9(6). Under

paragraph 14(2), a general direction issued to persons operating in

the financial sector, must be laid before the Parliament and will cease

to have effect if not approved by a resolution of each House of

Parliament before the end of 28 days. Under paragraph 9(6), the

requirements imposed by a direction, either in the form of customer

due diligence or in the form of ongoing monitoring or in the form of

systematic reporting or in the form of limiting or ceasing business,

should be proportionate, having regard to the advice given by the

Financial Action Task Force or having regard to the reasonable belief

that the Treasury has about the risks of terrorist financing or money

laundering activities or the development of radiological, biological,

nuclear or chemical weapons. In addition to these procedural

safeguards, Section 63 of the aforesaid Act provided for a remedy to a

person affected by any such decision of the Treasury, to apply to the

High Court or in Scotland, to the Court of Session. Section 63(3)

specifically recognized the application of the principles of judicial

review, to the applications filed against such measures.

6.159. It is in the context of those specific statutory

prescriptions for judicial review available in UK (unlike in India) that

Bank Mellat challenged the Treasury’s decision. The challenge was

both on procedural and substantive grounds. By a majority of 6 to 3,

the Supreme Court of the United Kingdom allowed the appeal of the

156

Bank on procedural grounds. On the substantive grounds, the appeal

of the Bank was allowed by a majority of 5 to 4.

6.160. Lord Reed who wrote a dissent both on the procedural

grounds and the substantive grounds, traced the history of the

doctrine of proportionality as follows:

68. The idea that proportionality is an aspect of justice can

be traced back via Aquinas to the Nicomachean Ethics and

beyond. The development of the concept in modern times

as a standard in public law derives from the

Enlightenment, when the relationship between citizens and

their rulers came to be considered in a new way, reflected

in the concepts of the social contract and of natural rights.

As Blackstone wrote in his Commentaries on the Laws of

England, 9

th

(1783), Vol 1, p 125, the concept of civil liberty

comprises “natural liberty so far restrained by human

laws (and not farther) as is necessary and expedient for

the general advantage of the public”. The idea that the

state should limit natural rights only to the minimum

extent necessary developed in Germany into a public law

standard known as Verhältnismäßigkeit, or

proportionality. From its origins in German administrative

law, where it forms the basis of a rigorously structured

analysis of the validity of legislative and administrative

acts, the concept of proportionality came to be adopted in

the case law of the European Court of Justice and the

European Court of Human Rights. From the latter, it

migrated to Canada, where it has received a particularly

careful and influential analysis, and from Canada it

spread to a number of other common law jurisdictions.

69. Proportionality has become one of the general

principles of EU law, and appears in article 5(4) of the

Treaty on European Union (“TEU”). The test is expressed in

more compressed and general terms than in German or

Canadian law, and the relevant jurisprudence is not

always clear, at least to a reader from a common law

tradition. In R v Ministry of Agriculture, Fisheries and

Food, ex p Fedesa and others (Case C-331/88) [1990] ECR

157

I-4023, the European Court of Justice stated (para 13):

“The Court has consistently held that the principle of

proportionality is one of the general principles of

Community law. By virtue of that principle, the lawfulness

of the prohibition of an economic activity is subject to the

condition that the prohibitory measures are appropriate

and necessary in order to achieve the objectives

legitimately pursued by the legislation in question; when

there is a choice between several appropriate measures

recourse must be had to the least onerous, and the

disadvantages caused must not be disproportionate to the

aims pursued.”

The intensity with which the test is applied – that is to say,

the degree of weight or respect given to the assessment of

the primary decision-maker - depends upon the context.

70. As I have mentioned, proportionality is also a concept

applied by the European Court of Human Rights. As the

court has often stated, inherent in the whole of the

Convention is a search for a fair balance between the

demands of the general interest of the community and the

requirements of the protection of the individual’s

fundamental rights (see eg Sporrong and Lönnroth v

Sweden (1982) 5 EHRR 35, para 69). The court has

described its approach to striking such a balance in

different ways in different contexts, and in practice often

approaches the matter in a relatively broad-brush way. In

cases concerned with A1P1, for example, the court has

often asked whether the person concerned had to bear an

individual and excessive burden (see eg James v United

Kingdom (1986) 8 EHRR 123, para 50). The intensity of

review varies considerably according to the right in issue

and the context in which the question arises.

Unsurprisingly, given that it is an international court, its

approach to proportionality does not correspond precisely

to the various approaches adopted in contracting states.

71. An assessment of proportionality inevitably involves a

value judgment at the stage at which a balance has to be

struck between the importance of the objective pursued

and the value of the right intruded upon. The principle

does not however entitle the courts simply to substitute

158

their own assessment for that of the decision-maker. As I

have noted, the intensity of review under EU law and the

Convention varies according to the nature of the right at

stake and the context in which the interference occurs.

Those are not however the only relevant factors. One

important factor in relation to the Convention is that the

Strasbourg court recognises that it may be less well placed

than a national court to decide whether an appropriate

balance has been struck in the particular national context.

For that reason, in the Convention case law the principle of

proportionality is indissolubly linked to the concept of the

margin of appreciation. That concept does not apply in the

same way at the national level, where the degree of

restraint practised by courts in applying the principle of

proportionality, and the extent to which they will respect

the judgment of the primary decision maker, will depend

upon the context, and will in part reflect national traditions

and institutional culture. For these reasons, the approach

adopted to proportionality at the national level cannot

simply mirror that of the Strasbourg court.

72. The approach to proportionality adopted in our

domestic case law under the Human Rights Act has not

generally mirrored that of the Strasbourg court. In

accordance with the analytical approach to legal reasoning

characteristic of the common law, a more clearly structured

approach has generally been adopted, derived from case

law under Commonwealth constitutions and Bills of

Rights, including in particular the Canadian Charter of

Fundamental Rights and Freedoms of 1982. The three-limb

test set out by Lord Clyde in De Freitas v Permanent

Secretary of Ministry of Agriculture, Fisheries, Lands and

Housing [1999] 1 AC 69, 80 has been influential:

“whether: (i) the legislative objective is sufficiently

important to justify limiting a fundamental right; (ii) the

measures designed to meet the legislative objective are

rationally connected to it; and (iii) the means used to

impair the right or freedom are no more than is necessary

to accomplish the objective.”

De Freitas was a Privy Council case concerned with

fundamental rights under the constitution of Antigua and

159

Barbuda, and the dictum drew on South African,

Canadian and Zimbabwean authority. The three criteria

have however an affinity to those formulated by the

Strasbourg court in cases concerned with the requirement

under articles 8 to 11 that an interference with the

protected right should be necessary in a democratic society

(eg Jersild v Denmark (1994) Publications of the ECtHR

Series A No 298, para 31), provided the third limb of the

test is understood as permitting the primary decision-

maker an area within which its judgment will be

respected.

73. The De Freitas formulation has been applied by the

House of Lords and the Supreme Court as a test of

proportionality in a number of cases under the Human

Rights Act. It was however observed in Huang v Secretary

of State for the Home Department [2007] UKHL 11; [2007]

2 AC 167, para 19 that the formulation was derived from

the judgment of Dickson CJ in R v Oakes [1986] 1 SCR

103, and that a further element mentioned in that

judgment was the need to balance the interests of society

with those of individuals and groups. That, it was said,

was an aspect which should never be overlooked or

discounted. That this aspect constituted a fourth criterion

was noted by Lord Wilson, with whom Lord Phillips and

Lord Clarke agreed, in R (Aguilar Quila) v Secretary of

State for the Home Department [2011] UKSC 45; [2012] 1

AC 621, para 45.

74. The judgment of Dickson CJ in Oakes provides the

clearest and most influential judicial analysis of

proportionality within the common law tradition of legal

reasoning. Its attraction as a heuristic tool is that, by

breaking down an assessment of proportionality into

distinct elements, it can clarify different aspects of such an

assessment, and make value judgments more explicit. The

approach adopted in Oakes can be summarised by saying

that it is necessary to determine (1) whether the objective

of the measure is sufficiently important to justify the

limitation of a protected right, (2) whether the measure is

rationally connected to the objective, (3) whether a less

intrusive measure could have been used without

unacceptably compromising the achievement of the

160

objective, and (4) whether, balancing the severity of the

measure’s effects on the rights of the persons to whom it

applies against the importance of the objective, to the

extent that the measure will contribute to its achievement,

the former outweighs the latter. The first three of these are

the criteria listed by Lord Clyde in De Freitas, and the

fourth reflects the additional observation made in Huang. I

have formulated the fourth criterion in greater detail than

Lord Sumption, but there is no difference of substance. In

essence, the question at step four is whether the impact of

the rights infringement is disproportionate to the likely

benefit of the impugned measure.

75. In relation to the third of these criteria, Dickson CJ

made clear in R v Edwards Books and Art Ltd [1986] 2

SCR 713, 781-782 that the limitation of the protected right

must be “one that it was reasonable for the legislature to

impose”, and that the courts were “not called upon to

substitute judicial opinions for legislative ones as to the

place at which to draw a precise line”. This approach is

unavoidable, if there is to be any real prospect of a

limitation on rights being justified: as Blackmun J once

observed, a judge would be unimaginative indeed if he

could not come up with something a little less drastic or a

little less restrictive in almost any situation, and thereby

enable himself to vote to strike legislation down (Illinois

Elections Bd v Socialist Workers Party (1979) 440 US 173,

188 189); especially, one might add, if he is unaware of

the relevant practicalities and indifferent to considerations

of cost. To allow the legislature a margin of appreciation is

also essential if a federal system such as that of Canada,

or a devolved system such as that of the United Kingdom,

is to work, since a strict application of a “least restrictive

means” test would allow only one legislative response to

an objective that involved limiting a protected right.

76. In relation to the fourth criterion, there is a meaningful

distinction to be drawn (as was explained by McLachlin CJ

in Alberta v Hutterian Brethren of Wilson Colony [2009] 2

SCR 567, para 76) between the question whether a

particular objective is in principle sufficiently important to

justify limiting a particular right (step one), and the

question whether, having determined that no less drastic

161

means of achieving the objective are available, the impact

of the rights infringement is disproportionate to the likely

benefits of the impugned measure (step four).

6.161. Despite the fact that the Iranian bank succeeded by a

greater majority on procedural grounds and by a thin majority on the

substantive grounds, a common thread is seen, both, in the opinion

of the majority and in the opinion of the minority. Firstly, it was

agreed even by the majority that cases which lay in the areas of

foreign policy and national security were once regarded as unsuitable

for judicial scrutiny, but they have been opened up by the express

terms of the 2008 Act, because they may engage the rights of

designated persons or others under the European Convention on

Human Rights. Therefore, there was unanimity of opinion that

any assessment of rationality and proportionality must

recognize that the nature of the issue required the Treasury to

be allowed a large margin of judgment. Even Lord Sumption who

wrote the lead judgment for the majority agreed that “the making of

Government and legislative policy cannot be turned into a

judicial process”. An interesting statement made by Blackmun J in

Illinois Elections Bd v. Socialist Workers Party

113

was quoted by

Lord Reed in his dissent which reads “a judge would be

unimaginative indeed if he could come up with something a

little less drastic or a little less restrictive in almost any

113

(1979) 440 US 173

162

situation and thereby enable himself to vote to strike legislation

down”. In essence, there was unanimity of opinion on the fact that a

margin of appreciation should certainly be allowed to the decision-

maker. But on the ground of proportionality, the majority struck

down the ban imposed by the UK Treasury. The highlights of the

decision, as formulated by the court itself, read as follows:

(i) The essential question before the court was whether the

interruption of Bank Mellat’s commercial dealings in the UK bore

some rational and proportionate relationship to the statutory purpose

of hindering the pursuit by Iran of its nuclear weapons programmes.

(ii) For the majority, there were two particular difficulties with the

direction, namely (a) it did not explain or justify the singling out Bank

Mellat; and (b) the justification was not one which Ministers advanced

before Parliament, and was in some respects inconsistent with it.

(iii) The risk, according to the majority, was not specific to Bank

Mellat but an inherent risk of banking, and the risk posed by Bank

Mellat’s access to those markets was no different from that posed by

other comparable banks.

(iv) Singling out Bank Mellat, according to the court, was arbitrary

and irrational, and disproportionate to any contribution which it

could rationally be expected to make to the direction’s objective.

(v) By contrast, the minority were satisfied that, in view of the wide

margin of appreciation given to the Treasury in these matters, the

163

direction was rationally connected to the objective and was

proportionate.

6.162. We cannot and need not go as far as the majority had

gone in Bank Mellat. U.K. has a statute where standards of

procedure for judicial review are set out and the majority decision was

on the application of those standards. But even by our own

standards, we are obliged to see if there were less intrusive measures

available and whether RBI has at least considered these alternatives.

On the question of availability of alternatives, the July 2018 report of

the European Union Parliament (titled ‘Cryptocurrencies and

Blockchain’) is relied upon by Shri Ashim Sood. The relevant portion

(in paragraph 5.4) reads as follows:

“In this respect we also note that some cryptocurrencies

that are now on the market, such as Dash and Monero, are

fully anonymous, whereas others, such as Bitcoin and the

like are pseudo-anonymous, basically meaning that if

great effort is made and complex techniques are deployed,

it is possible for authorities to find out users' identities.

These fully anonymous cryptocurrencies are designed to

stay in the dark and outside of the scope of authorities.

After AMLD5 (Fifth Anti-Money Laundering Directive of the

European union) this will no longer be possible to the

fullest extent: the cryptocurrency users that want to

convert their cryptocurrency into fiat currency via a virtual

currency exchange or hold their portfolio via a custodian

wallet provider, will be subject to customer due diligence.

But, as aforementioned, there is still a whole world outside

of these new obliged entities under AMLD5. It goes without

saying that this may sound particularly interesting for

criminals seeking for new ways to launder money, finance

terrorists or evade taxes. If a legislator does not want to

outright ban these cryptocurrencies - and for not imposing

164

such a ban a good argument is that cash is also fully

anonymous and lawful - the only way to find out who uses

them is to require users to register mandatorily. For

reasons of proportionality it could then be

considered to make the registration subject to a

materiality threshold.” (emphasis supplied)

6.163. The discussion in paragraph 5.7 of the July 2018 Report

of the European Union Parliament also addresses the issue as to

whether it is best to introduce an outright ban for some aspects

linked to some crypto currencies. This paragraph reads as follows:

5.7. “Is it not best to introduce an outright ban for some

aspects linked to some cryptocurrencies?

The question arises whether some aspects relating to some

cryptocurrencies should not just be banned and criminally

sanctioned. To mind come the mixing process attached to

Dash's feature PrivateSend and Monero's RingCT, stealth

addresses and Kovri-project. In essence, these features are

designed to make cryptocurrency users untraceable. But

why is such degree of anonymity truly necessary? Would

allowing this not veer too far towards criminals? Imposing

a ban for such aspects surrounding cryptocurrencies that

are aimed at making it impossible to verify their users and

criminally sanctioning these aspects seems to be in line

with the Council's conclusions of April 2018 on how to

respond to malicious cyber activities, under which that the

use of ICT for malicious purposes is unacceptable.

Whatever the answer may be, we must again avoid being

naive: even if a ban would be imposed, how do we detect a

breach, given that the purpose of the object of the ban just

is to obscure identities? Nevertheless, it would be

worthwhile to consider introducing a ban. If

authorities then bump into the prohibited activities,

they have a legal basis for prosecution, insofar not

yet available. Possibly, imposing a ban could also

have a deterrent effect. Of course, again there is the

tension with data protection, but arguably in the balance

of things the interest of authorities and society to more

effectively combat money laundering, terrorist financing

165

and tax evasion via well-defined specific bans outweighs

the interest of persons desiring to hide their identities

completely. In any event, imposing a ban should always

be focused on specific aspects facilitating the illicit use of

cryptocurrency too much. We are not in favour of

general bans on cryptocurrencies or barring the

interaction between cryptocurrency business and the

formal financial sector as a whole, such as is the

case in China for example. That would go too far in

our opinion. As long as good safeguards are in place

protecting the formal financial sector and more in

general society as a whole, such as rules combating

money laundering, terrorist financing, tax evasion

and maybe a more comprehensive set of rules aiming

at protecting legitimate users (such as ordinary

consumers and investors), that should be sufficient.”

(emphasis supplied)

6.164. Thus, the ultimate recommendation made by the

European Union Parliament in the paragraph extracted above,

is not to go for a total ban of the interaction between crypto

currency business and the formal financial sector as a whole.

Obviously, RBI did not consider the availability of alternatives before

issuing the impugned circular. But by an interim direction, issued on

21-08-2019 this court directed RBI to give a detailed point-wise reply

to the representations of the petitioners. Pursuant to the said order,

RBI gave a reply dated 04-09-2019. In the reply, RBI has dealt with

every one of the contentions of the petitioners. The relevant portion

reads as follows:

“Firstly, the RBI has not prohibited VCs in the

country. The RBI has directed the entities regulated by it

to not provide services to those persons or entities dealing

in or settling VCs. The risks associated with VCs that are

166

highlighted by the RBI stands mitigated so far as the

entities regulated by it are concerned. Thus, the RBI been

able to ring fence the entities regulated by it from being

involved in activities that pose reputational and financial

risks along with other legal and operational risks. For

example, VCs have been used to defraud consumers in a

Rs. 2000 crore scam in India whereby users were assured

returns upon their investment in GainBitcoin and were

paid their return in another form of VC, whose value was

much lower than that of GainBitcoin.

We do not agree that the Circular has the effect of forcing

members to do deal in cash. The Circular neither directs

nor encourages any dealing with respect to VCs at all.

After the issuance of the Circular, some of the IAMAI

member VC exchanges have been operating peer to peer

VC exchanges. In P2P transfers, while the exchange

provides a portal to match the orders of a seller and buyer,

the consideration would flow directly from the buyer to the

seller without the exchanges being an intermediary for this

leg of the trade. The exchanges would only act as the

intermediary for the storing the VCs till the time the

transfer of the consideration from the buyer to the seller is

complete. In other words, the exchanges act as an escrow

agent for the transaction between the buyer and the seller.

The buyers in the P2P transaction transfer the

consideration directly to the seller’s bank account. In any

case, the capital flight problem mentioned by the petitioner

is not new and existed even before the issuance of the

Circular. As mentioned earlier, the IAMAI VC exchanges

allowed their customers to transfer VCs to foreign wallet

addresses, even before the issuance of the Circular,

exposing the customers to the risks of violating FEMA,

AML/CFT guidelines.

The issues highlighted by IAMAI have been considered by

the RBI. The RBI, as the banking and financial regulator of

Indian markets, assessed the risks and benefits arising

from the exponential and increasing use of VCs. The

potential adverse impact of VCs on the banking sector and

the digitization of the Indian payments industry, on

account of the inherent nature of VCs, is lowered as a

167

result of the Circular. The RBI stepped in as part of its duty

to carryout preventive oversight to ensure that the banking

system was not a casualty on account of the growth in VC

trading. The Circular became all the more necessary as the

use and trade through VCs continued to grow despite

multiple cautions issued by the RBI. Further, the public

should not lose faith in the Indian digital payments

ecosystem as a consequence of any impact of VCs given its

intrinsic nature. The focus of the digital payments in India

will be defeated should the usage of VCs result in

implications. Any unpleasant experience in using VCs can

affect the public’s trust in electronic payment systems in

general.

It is in this context that the RBI had highlighted some of

the possible ways to enforce the prohibition on VCs in the

RBI Representation, which are as follows:

(i) Initial Coin Offerings (“ICOs”) ought to be prohibited and

VC asset funds may to be allowed to be set-up and/or

operated within the legal jurisdiction of India as also

perform such transactions in India. ICOs that were in

the nature of multi -level marketing or pyramid schemes

can be banned;

(ii) The FEMA and its regulations can be enhanced to

prevent and track remittances for the purpose of

investing in VCs which are flowing out of the country

under the LRS;

(iii) Enforcement agencies can take punitive action against

entities/establishments that accept VCs as a medium of

payment, as and when these agencies are faced with

such instances; and

(iv) Regulators can issue warnings to the public and

educated the public to the extent possible.

One must also be alive to the issue faced by the country.

India is not a safe haven free from any external intrusions

and terror attacks. India is plagued by the menace of cross

border terror financing and money laundering. While laws

have been enacted to counter terror financing and money

laundering activities, the Government cannot permit

anything which would facilitate or have the potential to

facilitate such nefarious and illegal acts to incubate in the

168

country. Any possible avenues which facilitate anonymous

cross border fund transfer have to be acted upon swiftly

and stringently dealt with. It is an admitted fact that VCs

have been used to purchase illegal and illicit goods ranging

from guns and ammunition to drugs. Therefore, the RBI’s

measures under the Circular become all the more

necessary. With the Circular coming into effect, the

banking system and the RBI’s regulated entities would not

be facilitating persons looking to obtain VCs for illegal

trades. Th additional measures taken by the RBI by way

of the Circular were necessary as, despite multiple

cautions, 5 million Indian users engaged in VC trades of

INR 1 billion daily.” (emphasis supplied)

6.165. In Annexure B to their second response dated 18-09-

2019, RBI has also dealt with every one of the additional safeguards

proposed by one of the writ petitioners, by name, Discidium Internet

Labs Pvt, Ltd. and demonstrated as to how these safeguards may not

be sufficient to ring fence the regulated entities:

Safeguards

proposed by

petitioners

Response of RBI

Development of

a dashboard and

central

repository

The technology and concept of a dashboard that is

accessible by all the relevant government authorities

is yet to be tested in India and cannot guarantee that

the same will enable authorities to mitigate risks in

relation to VCs, particularly the ones arising out of

cross border transactions or illegal and nefarious

activities. Such a development would require the

association of various government authorities at

different levels with implications on the roles and

responsibilities of other regulatory / enforcement

agencies and cannot be implemented by the RBI

alone. Therefore, even assuming that the proposed

structure is adequate enough, its implementation will

entail other authorities to formulate the appropriate

rules or directions in their jurisdictions, which is

169

beyond the RBI’s control. In any case, for such a

development to come into existence, the Government

will need to formulate and establish appropriate rules

governing the nitty gritty of the same.

In addition, VCs are difficult to monitor as their

opaque nature makes it difficult to gather information

and monitor their operations. Moreover, asserting

jurisdiction over a particular VC transaction or

market participant may prove challenging for

national regulators in the light of the cross- border

reach of the technology.

Formation of a

self-regulatory

organization and

Restricting trade

of crypto-assets

to white listed

addresses

Issuance and management have been a function

solely of the sovereign / central bank and a collection

of private entities cannot be trusted to perform this

role. Moreover, when such VCs become widely used,

the central bank’s ability to control the money supply

in the economy could get adversely impacted. In fact,

implications of VCs vis-a-vis consumer protection,

data privacy and security were also highlighted. It

was also acknowledged that there are several

uncertainties around the VC, particularly with

respect to how the VC is secured, the extent to which

there are measures to prevent and respond to the

dramatic shifts of value; and the characterization of

the sellers of such a VC. Additionally, it was

recognized that there can be implications on the US

monetary policy as another ‘currency’ not under the

government control can adversely impact the Federal

Reserve’s monetary policy as the Federal Reserve

would lose its monopoly on controlling inflation and

inflation targeting though manipulating cash in the

system.

Adoption of

Aadhar based

electronic KYC

Electronic KYC is currently permitted only for banks

for individuals desirous of receiving any benefit or

subsidy under any scheme notified under Section 7

of the Aadhaar (Targeted Delivery of Financial and

Other Subsidies Benefits and Services) Act, 2016 or if

an individual voluntarily uses his/her Aadhaar

number for identification purpose.

Moreover, the adoption of Aadhaar based electronic

170

KYC may not be sufficient to address the risks stated

by the RBI in the Press Releases. This is because for

the RBI to issue norms/measures that sufficiently

resolves and/or mitigated the stated risks of dealing

in VCs, it has to be privy to the technicalities of the

various types of VCs, their characteristics and

difficulties and drawbacks. There is still a high level

of uncertainty and ambiguity surrounding VCs.

Regulators around the world are still in fact

contemplating how to regulate initial coin offerings

and how to tax them. The RBI is keeping a close tab

on all such developments including the regulatory

stand taken by each jurisdictions across the world

and will consider implementing the same to the

extent of its jurisdiction and in line with the policy

framework that will be adopted by the Government of

India in relation to VCs.

Mandatory

capitalisation

requirement

DILPL has failed to set out the benefit or security

provided by the proposed mandatory capitalisation

requirements. In the absence of any benefits

prescribed by DILPL, the RBI has to rely upon

conjecture and surmises to assume the purported

benefits of this suggestion. Notably, the fact that

certain jurisdictions prescribe mandatory

capitalisation requirements does not necessarily

make the suggestion beneficial or implementable in

India.

The only benefit which a reasonable person may

assume is that the VC exchanges will have to be of a

minimum prescribed size and value. However, the

mandatory capitalisation requirement of VC

exchanges would not reduce the inherent risks

involved in VCs. VCs transactions would continue to

be anonymous and untraceable. The mandatory

capitalisation requirement does not reduce the use of

VCs in nefarious activities and illegal cross-border

transactions. Further, the mandatory capitalisation

requirement does not provide any security or benefit

to the monetary and banking system from the risks

associated with VCs.

171

Pertinently, the suggestion includes prescribing a

mandatory capitalisation requirement in VCs itself.

Given the instability and price fluctuations of VCs,

the RBI rejects any suggestion of providing a security

or capitalisation requirement in VC itself.

Additionally, the suggested mandatory capitalisation

requirement would also not reduce the risks to

consumers arising not only from fraud but also from

the possible loss of value given the fluctuations and

manipulation VCs’ value.

Insurance of

crypto-assets

Firstly, Indian Insurance service providers are not

governed by the RBI. Insurance providers come

within the regulatory jurisdiction of the Insurance

Regulatory and Development Agency (“IRDA”).

Therefore, the RBI cannot assume jurisdiction over

insurance providers by directing them to formulate

tailored insurance policies for VC exchanges. It is for

the purpose of such regulatory aspects, that the

Inter-Ministerial Committee was constituted to study

VCs. Accordingly, the RBI had, at that time,

forwarded a copy of the Representation to the Inter-

Ministerial Committee for their due consideration.

Secondly, Indian insurance providers, as mandated

by the IRDA, take a cautious approach to the

insurance policies offered by them. Therefore, the

insurance providers may not, either suo moto or on

account of IRDA’s directions, offer insurance policies

to protect VCs. Further, this cautious approach

includes various limitation or exclusion of liability

clauses. Therefore, the insurance policies may not

provide adequate cover in the event of any value

degradation, loss or theft of VCs. Moreover, the highly

speculative and fluctuating value of VCs is a risk

which ought not to be borne by the insurance

providers, who are already suffering from the various

financial frauds in the Indian monetary and banking

system.

Formation of an

investor

DILPL suggests setting up an investor protection and

education fund, for which the VC exchanges would

172

protection and

education fund

transfer all proceeds earmarked towards their

corporate social responsibility (“CSR”) obligations

under the Companies Act, 2013. This suggestion, as

per the RBI, would not protect the customers as

claimed by Discidium as the steps would be

insufficient to provide adequate cover to customers.

Notably, Discidium has not suggested that it create

any additional buffer for the education and protection

of its customers but instead, has merely suggested

that VC exchanges transfer its existing legal

obligations to create a fund which would purportedly

benefit customers.

Despite best efforts made to educate customers, the

inherent risks in VCs would still remain. It is

reiterated that VCs transactions would remain

anonymous and open to facilitating illegal activities.

It is unlikely that the education of customers would

change the intent of nefarious customers, who would

continue to conduct illicit transactions through VCs.

The anonymous nature of VCs cannot be disputed.

The transactions in VCs are anonymous due to the

pseudonymous address or user handle. For instance,

the reportedly largest transfer of Bitcoins, worth

nearly USD 1 billion,

114

took place as recently as

September 2019, was between anonymous accounts.

Even if the exchanges try to mitigate the risks of

cyber-attacks by subscribing to insurance products,

the risks are likely to spread to sectors other than

banking.

Further, the utilisation of CSR funds is not regulated

or governed by the RBI. Therefore, implementation of

this suggestion would require other authorities to

formulate necessary rules or directions, which is

beyond the RBI’s control and would depend on the

final law passed by the Parliament based on the

currently pending draft Banning of Cryptocurrency

and Regulation of Official Digital Currency Bill, 2019.

114

https://www.vice.com/en_in/article/bjwjpd/someone-just-moved-a-billion-dollars-in-

bitcoin-and-no-one-knows-whywhich; last accessed on September 12, 2019.

173

6.166. Though at the time when the impugned Circular was

issued, RBI has not obviously addressed many of the issues flagged

by the writ petitioners, RBI did in fact consider the issues raised by

the petitioners, pursuant to the order passed by this court on 21-08-

2019. RBI has also analyzed in Annexure B to the reply dated 18-09-

2019 extracted above, the additional safeguards suggested by the

petitioners, to see if the purpose of the impugned measure can be

achieved through less intrusive measures. While exercising the power

of judicial review we may not scan the response of RBI in greater

detail to find out if the response to the additional safeguards

suggested by the petitioners was just imaginary.

6.167. But at the same time we cannot lose sight of three

important aspects namely, (i) that RBI has not so far found, in the

past 5 years or more, the activities of VC exchanges to have actually

impacted adversely, the way the entities regulated by RBI function (ii)

that the consistent stand taken by RBI up to and including in their

reply dated 04-09-2019 is that RBI has not prohibited VCs in the

country and (iii) that even the Inter-Ministerial Committee

constituted on 02-11-2017, which initially recommended a specific

legal framework including the introduction of a new law namely,

Crypto-token Regulation Bill 2018, was of the opinion that a ban

might be an extreme tool and that the same objectives can be

achieved through regulatory measures. Paragraph 7 of the ‘Note-

174

precursor to report’ throws light on the same and hence it is

reproduced as follows:

“Options

7. The Committee has considered various approaches to

achieve the objectives and notes:

Achieving the objectives by doing nothing

i. Issuing warnings may prevent unsophisticated

consumers from dealing in VCs but it would not deter VC

service providers or those raising funds through Initial

Coin Offerings (ICOs), mis-sell or run Ponzi schemes.

ii. The recourse available to customers would be

inadequate.

iii. Persons who provide VC services without necessary fit

and proper criteria including capital and technology would

continue to pose a heightened risk.

Achieving the objectives through banning

i. Consumer protection is a key concern but a ban might

be an extreme too to address this. There are many

things/activities that may be harmful but they are not all

banned. Problems related to information asymmetry,

concerns around market risks, law enforcement or threat

to financial system cannot be adequately addressed

through a ban.

ii. A ban would make dealing in VCs illegal but

simultaneously it might decrease the ability of the law

enforcement agencies and regulators to track and stop

illegal activities.

iii. Ver few countries have actually banned VCs. A ban

might not be in-step with India’s position as an important

centre of Information Technology services.

Achieving the objectives by regulating

i. Penalizing entities or persons who do not opt for

regulation under this Act and may choose to operate

illegally may continue to be difficult.”

6.168. The Crypto-token Regulation Bill, 2018 initially

recommended by the Inter-Ministerial Committee contained a

175

proposal (i) to prohibit persons dealing with activities related to

crypto tokens from falsely posing these products as not being

securities or investment schemes or offering investment schemes due

to gaps in the existing regulatory framework and (ii) to regulate VC

exchanges and brokers where sale and purchase may be permitted.

6.169. The key aspects of the Crypto-token Regulation Bill,

2018, found in paragraph 13 of the ‘Note-precursor to report’ shows

that the Inter-Ministerial Committee was fine with the idea of

allowing the sale and purchase of digital crypto asset at recognized

exchanges. Paragraph 13 (iii) & (vii) of the ‘Note-precursor to the

report’ reads as follows:

13. Key aspects are summarised below:

(i)…

(ii)…

(iii) The sale and purchase of digital crypto asset shall only

be permitted at recognised exchanges.

(iv)…

(v)…

(vi)…

(vii) The registry of all holdings and transactions on the

recognised exchanges shall be maintained at recognised

depositories.

6.170. But within a year, there was a volte-face and the final

report of the very same Inter-Ministerial Committee, submitted in

February 2019 recommended the imposition of a total ban on private

crypto currencies through a legislation to be known as “Banning of

Cryptocurrency and Regulation of Official Digital Currency Act,

176

2019”. The draft of the bill contained a proposal to ban the mining,

generation, holding, selling, dealing in, issuing, transferring,

disposing of or using crypto currency in the territory of India. At the

same time, the bill contemplated (i) the creation of a digital rupee as

a legal tender, by the central government in consultation with RBI

and (ii) the recognition of any official foreign digital currency, as

foreign currency in India.

6.171. In case the said enactment (2019) had come through,

there would have been an official digital currency, for the creation

and circulation of which, RBI/central government would have had a

monopoly. But that situation had not arisen. The position as on date

is that VCs are not banned, but the trading in VCs and the

functioning of VC exchanges are sent to comatose by the impugned

Circular by disconnecting their lifeline namely, the interface with the

regular banking sector. What is worse is that this has been done (i)

despite RBI not finding anything wrong about the way in which these

exchanges function and (ii) despite the fact that VCs are not banned.

6.172. As we have pointed out earlier, the concern of RBI is and

it ought to be, about the entities regulated by it. Till date, RBI has

not come out with a stand that any of the entities regulated by it

namely, the nationalized banks/scheduled commercial banks/co-

operative banks/NBFCs has suffered any loss or adverse effect

directly or indirectly, on account of the interface that the VC

177

exchanges had with any of them. As held by this court in State of

Maharashtra v. Indian Hotel and Restaurants Association,

115

there must have been at least some empirical data about the degree

of harm suffered by the regulated entities (after establishing that they

were harmed). It is not the case of RBI that any of the entities

regulated by it has suffered on account of the provision of banking

services to the online platforms running VC exchanges.

6.173. It is no doubt true that RBI has very wide powers not

only in view of the statutory scheme of the 3 enactments indicated

earlier, but also in view of the special place and role that it has in the

economy of the country. These powers can be exercised both in the

form of preventive as well as curative measures. But the availability

of power is different from the manner and extent to which it can be

exercised. While we have recognized elsewhere in this order, the

power of RBI to take a pre-emptive action, we are testing in this part

of the order the proportionality of such measure, for the

determination of which RBI needs to show at least some semblance of

any damage suffered by its regulated entities. But there is none.

When the consistent stand of RBI is that they have not banned VCs

and when the Government of India is unable to take a call despite

several committees coming up with several proposals including two

draft bills, both of which advocated exactly opposite positions, it is

115

(2013) 8 SCC 519

178

not possible for us to hold that the impugned measure is

proportionate.

7. CLIMAX

7.1. Therefore, in the light of the above discussion, the

petitioners are entitled to succeed and the impugned Circular dated

06-04-2018 is liable to be set aside on the ground of proportionality.

Accordingly, the writ petitions are allowed and the Circular dated 06-

04-2018 is set aside. The Statement dated 05-04-2018, though

challenged in one writ petition, is not in the nature of a statutory

direction and hence the question of setting aside the same does not

arise.

7.2. There is still one more issue left. It is the freezing of the

account of Discidium Internet Labs Pvt. Ltd., which is petitioner no. 6

in WP (C) No. 373 of 2018. This company seems to have had an

amount of Rs. 12,05,36,667.83/- in current account no. 3677101984

with the Central Bank of India, Worli, Mumbai. When the petitioner

made a request on 21-05-2018 to close the account and issue a

demand draft, the Central Bank replied that they had referred the

matter to their higher authorities/regulators. Therefore, petitioner

no. 6 has come up with an application in I.A. No. 110424 of 2019 for

appropriate directions.

179

7.3. RBI has filed a reply to this application conceding that it

had not directed the bank to freeze the account. It is specifically

stated in paragraph 12 of the affidavit-in-reply of RBI that they did

not issue any direction to the Central Bank of India to freeze the

account. However, RBI has taken a stand that the prayer for release

of the amount does not arise out of or incidental to the main writ

petition.

7.4. But we think that the lukewarm response of RBI in this

regard is wholly unjustified. Admittedly, the activities carried on by

the petitioner no. 6 were not declared as unlawful. It is the positive

case of RBI that they did not in fact freeze the accounts of petitioner

no. 6. Therefore, RBI is obliged to direct the Central Bank of India to

defreeze the account and release the funds. Hence, RBI is directed to

issue instructions forthwith to the Central Bank of India, Worli

branch, to defreeze the current account no. 3677101984 of petitioner

no. 6 in WP (C) No. 373 of 2018 and to release the funds lying in the

account to the company together with interest at the rate applicable.

There will be no order as to costs.

7.5. Before drawing the curtains down, we are bound to record,

as in every artistic display, our appreciation for the skillful manner in

which Shri Ashim Sood, learned Counsel, led the attack on the

180

impugned Circular, but for which, the climax could not have had a

nail biting finish.

…..…………....................J

(Rohinton Fali Nariman)

…..…………....................J

(Aniruddha Bose)

.…..………......................J

(V. Ramasubramanian)

New Delhi

MARCH 04, 2020.