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Title : Internet and Mobile Association of India v
Reserve Bank of India
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30/05/2020 Delivery | Westlaw India Page
Supreme Court of India
4 March 2020
Internet and Mobile Association of India

v
Reserve Bank of India
Case No : Writ Petition (Civil) No. 528 of 2018 with Writ Petition (Civil) No. 373 of 2018
Bench : V. Ramasubramanian, Rohinton Fali Nariman, Aniruddha Bose
Citation : 2020 Indlaw SC 234
The Judgment was delivered by : 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).
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 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 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 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 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 financiere, 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 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 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.
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 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).
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 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 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 Regulatory sandbox refers to live
testing of new products/services in a controlled/test regulatory environment. 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 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 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.
(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 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.
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 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. (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 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.
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. 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.
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 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:
"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) 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 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, 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 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 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 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, 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'." tattvamasyadivakyena svatma hi pratip'dita'
neti neti srutirbruyad anrtam pancabhautikam-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, From his book "Digital Gold: Bitcoin and the inside story of the
Misfits and Millionaires Trying to Reinvent Money". in 1997, when a British Cypherpunk
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. 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 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 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, 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 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 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
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 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 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 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 30-03-
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 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 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
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.
(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 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 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 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 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.
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:
Paragraphs 2 and 3 as they originally stood Paragraphs 2 to 4 now substituted

AND WHEREAS in the present AND WHEREAS it is essential to have a

disorganisation of the monetary systems of modern monetary policy framework to meet
the world it is not possible to determine the challenge of an increasingly complex
what will be suitable as a permanent basis economy;
for the Indian monetary system;
BUT WHEREAS it is expedient to make AND WHEREAS the primary objective of the
temporary provision on the basis of the monetary policy is to maintain price stability
existing monetary system, and to leave the while keeping in mind the objective of
question of the monetary standard best growth;
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 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.
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
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. 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 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 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 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 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 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.
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:
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;
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.
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.
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:
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 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.
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 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 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
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 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 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 VCs are digital

Virtual Currencies and representations of value,
Beyond: Initial issued by private developers
Considerations, IMF Staff and denominated in their
Discussion Note, Dong He et own unit of account. Given
al., page 7, 16, 17 (January the fast evolving nature of
2016) (available at the industry, a universal
https://www.imf.org/extern definition has yet to emerge
al/pubs/ft/sdn/2016/sdn160 and could quickly change as
3.pdf, last accessed on 27- the VC ecosystem continues
02-2020) - presented by to transform.
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).
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, This type of VCs is
backed by the combination
of existing tangible assets or
national currencies and the
creditworthiness of the
issuer. 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 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: Guidance for a

Risk-Based Approach -
Virtual Currencies, FATF,
page 26 (June 2015)
available at
http://www.fatf-
gafi.org/media/fatf/docume
nts/reports/Guidance-RBA-
Virtual-Currencies.pdf (Last
accessed on 27-02-2020).
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: Glossary of

the FATF Recommendations
(updated on October 2018)
available at
https://www.fatf-
gafi.org/glossary/u-z/ (Last
Virtual Asset - A virtual

asset is a digital
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: Virtual Currency

Schemes, European Central
Bank, page 13 (October
2012) available at
http://www.ecb.europa.eu/p
ub/pdf/other/virtualcurrency
schemes201210en.pdf (Last
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.
2017: 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.e
n.pdf?
344b9327fec917bd7a8fd708
64a94f6e (Last accessed on
27-02-2020).
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: EBA Opinion on
'virtual currencies', page 11,
13 (July 2014) available at
https://eba.europa.eu/sites/
default/documents/files/doc
uments/10180/657547/814
09b94-4222-45d7-ba3b-
7deb5863ab57/EBA-Op-
2014-08%20Opinion%20on
%20Virtual
%20Currencies.pdf (Last
VCs are defined as a digital

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 Crypto-asset: A type of

Markets Authority Advice - private asset that depends
Initial Coin Offerings and primarily on cryptography
Crypto-Assets (January and Distributed Ledger
2019) available at Technology (DLT) or similar
https://www.esma.europa.e technology as part of their
u/sites/default/files/library/ perceived or inherent
esma50-157- value...Crypto-asset
1391_crypto_advice.pdf additionally means an asset
(Last accessed on 27-02- that is not issued by a
2020). central bank.
5. Financial Conduct Authority, Cryptoassets are a

United Kingdom Guidance cryptographically secured
on Cryptoassets, digital representation of
Consultation Paper, CP value or contractual rights
19/3, Financial Conduct that is powered by forms of
Authority, page 7 (January DLT and can be stored,
2019) available at transferred or traded
https://www.fca.org.uk/publ electronically.
ication/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/publ
ication/policy/ps19-22.pdf
(Last accessed on 27-02-
2020).
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, 2014: IRS Virtual Currency

Department of Treasury, Guidance: Virtual Currency
USA 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).
"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: 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
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

Commission, USA as a decentralized, peer-to-
peer virtual currency that is
used like 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. Investor
Alert: Bitcoin and Other
Virtual Currency-Related
Investments (May 2014)
available at
https://www.sec.gov/oiea/in
vestor-alerts-
bulletins/investoralertsia_bit
coin.html (Last accessed on
27-02-2020).
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. 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
8. Commodity Futures Trading Section 1a(9) of the Act (US

Commission, USA 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. 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/publ
ic/@lrenforcementactions/d
ocuments/legalpleading/enf
coinfliprorder09172015.pdf
(Last accessed on 27-02-
2020).
9. Financial Crimes Virtual currency is a

Enforcement Network, medium of exchange that
Department of Treasury, operates like a currency in
USA Guidance - Application some environments, but
of FinCEN's Regulations to does not have all the
Persons Administering, attributes of real currency.
Exchanging, or Using Virtual In particular, virtual
Currencies (March 2013) currency does not have
available at legal tender status in any
https://www.fincen.gov/site jurisdiction.
s/default/files/shared/FIN-
2013-G001.pdf (Last
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.
10. Canada Revenue Agency Cryptocurrency is a digital

(CRA) Guide for representation of value that
cryptocurrency users and is not legal tender. It is a
tax professionals (Last digital asset ....that works
modified on 27 June 2019) as a medium of exchange
available at for goods and services
https://www.canada.ca/en/r between the parties who
evenue- agree to use it.
agency/programs/about-
canada-revenue-agency-
cra/compliance/digital-
currency/cryptocurrency-
guide.html (Last accessed
on 27-02-2020).
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. Virtual
Currency (Last modified on
26 June 2019) available at

https://www.canada.ca/en/r
evenue-
agency/programs/about-
canada-revenue-agency-
cra/compliance/digital-
currency.html (Last
DEFINITIONS UNDER STATUTORY ENACTMENTS AND NON-STATUTORY DIRECTIVES OF

GOVERNMENTS
S.No. Country Statutory Section/Article

Enactment/Non- defining VC
Statutory Directive
1. Japan Payment Services Article 2(5): The

Act, 2009 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 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.
2. Malta Virtual Financial Article 2(2): "virtual

Asset Act, 2018 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 withi
3. Canada Proceeds of Crime Section 1(2): virtual

(Money Laundering) currency means
and Terrorist
Financing
Regulations, 2002
As amended in June
2019, which
amendment is yet
to come into force.
(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 No specific

Instruments legislation for
(Oversight) crypto currencies.
Regulations, 2017 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
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 Section 3(9):

and Terrorist cryptocurrencies
Financing (virtual currencies)
Prevention Act, are value
2017 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 Section 1 (22):

of Money virtual currency - a
Laundering and digital
Terrorism and representation of
Proliferation value which can be
Financing, as transferred, stored
amended in 2017 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, Clauses
10 and 11 of the
Law on the Payment
Services and
Electronic Money;
7. Liechtenstein Due Diligence Act, Article 2(1)(l):

2009 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 Section 11A (7)

Financial Services defines financial
Law, 5776-2016 asset. Financial
asset includes
virtual currency.
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.go
v/law/help/cryptocu
rrency/world-
survey.php#israel
(Last accessed on
27-02-2020).
9. Jersey (Crown Proceeds of Crime Article 4(4): 'Virtual

dependency) (Miscellaneous currency' means
Amendments) any currency which
(Jersey) (whilst not itself
Regulations 2016 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.
10. Mexico Financial It defines virtual

Technology assets as
Institutions Law, representations of
2018 (Chapter on value electronically
Virtual Assets) registered and
utilized by the
public as a means
of payment for all
types of legal
transactions, which
may only be
transferred
electronically.
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.go
v/law/help/cryptocu
rrency/world-
survey.php#mexico
(Last accessed on
27-02-2020).
11. Austria Ministry of Finance Treats virtual

currency as 'other
intangible
commodity'.
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.go
v/law/help/cryptocu
rrency/world-
survey.php#austria
(Last accessed on
27-02-2020).
12. Czech Republic Vice Governor, Treats virtual

Czech National currency as
Bank 'commodity'.
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.go
v/law/help/cryptocu
rrency/world-
survey.php#czech
(Last accessed on
27-02-2020).
13. Germany German Federal The Authority

Financial qualifies virtual
Supervisory currencies as "units
Authority 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).
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.go
v/law/help/cryptocu
rrency/world-
survey.php#german
y (Last accessed on
27-02-2020).
14. Luxembourg Minister of Finance Recognized before

the Parliament that
crypto currencies
are actual
currencies.
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.go
v/law/help/cryptocu
rrency/world-
survey.php#luxemb
ourg (Last accessed
on 27-02-2020).
15. Slovakia Ministry of Finance, Virtual currencies

Slovakia published must be treated as
guidance "short term financial
assets other than
money "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.go
v/law/help/cryptocu
rrency/world-
survey.php#slovaki
a (Last accessed on
27-02-2020).
16. European Union European Union's Article 3(18):

Directive 2018/843 'Virtual Currencies'
of 30 May 2018 means a digital
(5th Anti-Money representation of
Laundering value that is not
Directive) European issued or
Union's Directive guaranteed by a
2018/843 available central bank or a
at https://eur- public authority, is
lex.europa.eu/legal- not necessarily
content/EN/TXT/PD attached to a legally
F/? established
uri=CELEX:32018L0 currency and does
843&from=EN (Last not possess a legal
accessed on 27-02- status of currency
2020). 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 & Cryptoassets (or

Customs, UK Policy 'cryptocurrency' as
paper, they are also
Cryptoassets: Tax known) are
for Individuals cryptographically
(December 2019) secured digital
available at representations of
https://www.gov.uk value or contractual
/government/public rights that can be:
ations/tax-on-
cryptoassets/crypto
assets-for-
individuals (Last
accessed on 27-02-
2020).
- 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. 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/public
ations/revenue-
and-customs-brief-
9-2014-bitcoin-and-
other-
cryptocurrencies/re
venue-and-
customs-brief-9-
2014-bitcoin-and-
other-
cryptocurrencies
(Last accessed on
27-02-2020).
Bank of England The first part of the

What are word 'crypto',
cryptoassets means 'hidden' or
(cryptocurrencies)? 'secret' reflecting
available at the secure
https://www.bankof technology used to
england.co.uk/know record who owns
ledgebank/what- what, and for
are- making payments
cryptocurrencies between users.
(Last accessed on
27-02-2020).
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 New York Section 2(p): virtual

America [BitLicense currency means any
Regulation (23 type of digital unit
CRR-NY 200)] 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 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 Virtual currency-A

[Money digital
Transmitters Act ($ representation of
53-208.42)] 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 "Virtual currency"

[General Statutes of means any type of
Connecticut, Sec. digital unit that is
36a-596] 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.
Florida [Florida (2) (j) "Virtual

Money Laundering currency" means a
Act (Fla. Stat. medium of
Section 896.101)] exchange in
electronic or digital
format that is not a
coin or currency of
the United States or
any other country.
Illinois [Digital A digital currency is

Currency an electronic
Regulatory medium of
Guidance (2017)] exchange used to
Digital Currency purchase goods and
Regulatory services. A digital
Guidance, Illinois currency may also
Department of be exchanged for
Financial and money. A digital
Professional currency, by nature
Regulation (June of its properties
13, 2017) available detailed below, is
at distinct from
https://www.idfpr.c money.
om/Forms/DFI/CCD
/IDFPR%20-
%20Digital
%20Currency
%20Regulatory
%20Guidance.pdf
(Last accessed on
27-02-2020).
Louisiana Virtual currency is

[Consumer and an electronic
Investor Advisory medium of
on Virtual Currency exchange that does
by Office of not have all the
Financial Institute attributes of real or

(2014)] Office of fiat currencies.
Financial Virtual currencies
Institutions, State include
of Louisiana, cryptocurrencies,
Consumer and such as Bitcoin and
Investor Advisory Litecoin, which are
on Virtual Currency not legal tender and
(August 2014) are not issued or
available at backed by any
http://www.ofi.stat central bank or
e.la.us/SOCGuidanc governmental
eVirtualCurrency.pd authority. Virtual
f (Last accessed on currencies are:
27-02-2020).
- 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
merchants that are
willing to accept
virtual currencies in
lieu of real
currency.
Michigan [Michigan Convertible virtual

Department of currency is a digital
Treasury Guidance representation of
(January 2015)] value that has an
Virtual Currency, equivalent value in
Treasury Update real currency, such
published by the as the United States
Tax Policy Division, Dollar (USD),
Michigan and/or acts as a
Department of substitute for real
Treasury (Vol. 1(1), currency. A
November 2015) prominent example
available at of convertible
https://www.michig virtual currency is
an.gov/documents/t Bitcoin, a form of e-
reasury/Tax-Policy- currency that has
November2015- been around since
Newsletter_504036 2008.
_7.pdf (Last
accessed on 27-02-
2020).
Washington Uniform "Virtual currency"

Money Services Act means a digital
(RCW 19.230.010) 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 Wyoming (xxii) "Virtual

Money Transmitter currency" means
Act [W.S. 40-22- any type of digital
102(a)] 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 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 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 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 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 (1899) 2 QB 111 and the decision of the US Supreme Court in Wisconsin Central Ltd
v. United States, 585 US __ 2018, 138 S. Ct. 2067 (2018) 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 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 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 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."
6.69 In CIT v. Kasturi & Sons Ltd., (1999) 3 SCC 346 1999 Indlaw SC 1189 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, (2006) 5 SCC 624 2006
Indlaw SC 241 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', 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, Case No. 4: 13-Cv-416 (August 6, 2013) 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..."
6.73. In United States v. Ulbricht, 31F. Supp. 3d 540 (2014) 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. 39F. Supp. 3d 544 (2014) This was also a case where the
defendants were charged with the 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,
CFTC Docket No. 15-29 dated 17-09-2015 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.
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. CFTC Docket No. 15-33 dated 24-
09-2015 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, CFTC Docket No. 16-19 dated 02-06-2016 CFTC recorded that Bitcoin and
other virtual currencies are commodities under the relevant provisions of the statute.
6.77. In United States v. Murgio, 209 F. Supp. 3d 698 (2016) 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. Section 1960. Under Section 1960, a business must (i)
transfer on behalf 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 18-Cv-361 dated 03-
06-2018 (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., 18-Cv-10077-RWZ
dated 26-09-2018 holding that since there is futures trading in virtual currencies, they
constitute 'commodity' within the meaning of the Statute.
6.80. State of Florida v. Michell Abner Espinoza, F 14-2923 decided on 22-07-2016 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 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 264 So. 3d 1055 (2019) 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 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., [2019] SGHC (I) 3 that virtual currency can be considered as
property which is capable of being held on trust. The case arose out of a dispute 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 [1965] 1 AC 1175 at 1248 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 [2020] SGCA (I) 02 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.
6.83. In a very recent decision, in AA v. Persons Unknown & others Re Bitcoin, [2019] EWHC
3556 (Comm) 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 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,
[1885] 30 ChD 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 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, Case C-
264/14 dated 22-10-2015 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.
(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 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,
According to this doctrine, truth and reality are perceived differently from different points of
view and no single point is the complete truth. (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.
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, (2015) 4 SCC 770 2015
Indlaw SC 58 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 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 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 Promotion and Ors.,
(2019) 2 SCC 104 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 1985 (2) SCC 116 1985 Indlaw SC 438 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 of India,(2004) 7 SCC 68 2004 Indlaw SC
547 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, (1995) 1 SCC 574 1994 Indlaw SC 1123 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 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 (2005) 12 SCC 77 2005 Indlaw SC 552 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 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.
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:(1987) 2 SCC 720 1987 Indlaw SC 28421
"...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: (2003) 3 SCC 321 2003 Indlaw SC 177
"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.".
Similar views were expressed in Udai Singh Dagar v. Union of India, (2007) 10 SCC 306 2007
Indlaw SC 1212 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,
(1992) 2 SCC 343 1992 Indlaw SC 332 this court followed the decisions in State of U.P. and
Ors v. Babu Ram Upadhya AIR 1961 SC 751 1960 Indlaw SC 274 and D.K.V. Prasada Rao v.
Govt. of A.P. AIR 1984 AP 75 1983 Indlaw AP 132 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:
(2010) 10 SCC 1 2010 Indlaw SC 869
"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)
6.100. In his treatise on Administrative Law, Durga Das Basu Ch. 4, Pg. 121, 6th Edition, 2004
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, AIR 1964 SC 648 1963 Indlaw SC 309 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 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, (1990) 3 SCC 223 1990
Indlaw SC 740 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.,(2006) 10 SCC 645 2006 Indlaw SC 1267 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 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 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 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.
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 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 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 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.
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 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 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, (1980) 2 SCC 471 1979 Indlaw SC 83 Collector
(District Magistrate) Allahabad & Anr v. Raja Ram Jaiswal, (1985) 3 SCC 1 1985 Indlaw SC
417 and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors (2010) 9 SCC 437
2010 Indlaw SC 891 are relied upon in this regard.
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
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, (2009) 6 SCC 171 2009 Indlaw SC 527 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, (2012) 13 SCC 61 2012 Indlaw SC 550 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 Contractors & Joinery (P) Ltd. & Ors v. State of
Orissa & Ors, (1987) 3 SCC 279 1987 Indlaw SC 28297 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, (1958) SCR 1102 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.
M. S. Gill Reasoning
6.126. The impugned Circular cannot be assailed on the basis of M. S. Gill M S Gill v. The Chief
Election Commissioner, (1978) 1 SCC 405 1977 Indlaw SC 53 test, for two reasons. First is
that in Chairman, All India Railway Recruitment Board v. K. Shyam Kumar & Ors, (2010) 6
SCC 614 2010 Indlaw SC 404 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. (2014) 13 SCC 692 2013 Indlaw SC 836 In
63 Moons Technologies ltd. & Ors v. Union of India & Ors, (2019) SCC Online SC 624 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.
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 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.
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.
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) 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 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 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, (1981) 4 SCC 675 BALCO Employees' Union (Regd.) v. Union of
India & Ors, (2002) 2 SCC 333 2001 Indlaw SC 20366 and Swiss Ribbons Pvt. Ltd. & Anr v.
Union of India & Ors, (2019) 4 SCC 17 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 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, (1974) 4 SCC 656 1974 Indlaw SC 404
G.K.Krishnan v. Tamil Nadu, (1975) 1 SCC 375 1974 Indlaw SC 239 R. K. Garg v. Union of
India (supra), State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 1986 Indlaw SC 256 P.M.
Ashwathanarayana Setty v. State of Karnataka, (1989) Supp (1) SCC 696 Peerless General
Finance and Investment Co. Ltd. v. Reserve Bank of India (supra), T. Velayudhan v. Union of
India, (1993) 2 SCC 582 1993 Indlaw SC 1126 Delhi Science Forum v. Union of India, (1996)
2 SCC 405 1996 Indlaw SC 574 Bhavesh D. Parish v. Union of India, (2000) 5 SCC 471 2000
Indlaw SC 625 Ugar Sugar Works ltd. v. Delhi Administration & Ors, (2001) 3 SCC 635 2001
Indlaw SC 19890 BALCO Employees' Union (Regd.) v. Union of India (supra), Govt. of Andhra
Pradesh & Ors v. P. Laxmi Devi, (2008) 4 SCC 720 2008 Indlaw SC 245 Villianur Iyarkkai
Padukappu Maiyam v. Union of India, (2009) 7 SCC 561 2009 Indlaw SC 1970 D.G. of Foreign
Trade v. Kanak Exports, (2016) 2 SCC 226 2015 Indlaw SC 871 State of J & K v. Trikuta Roller
Flour Mills Pvt. Ltd., (2018) 11 SCC 260 and Pioneer Urban Land and Infrastructure Ltd. v.
Union of India, (2019) 8 SCC 416 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 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 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 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,
(1952) SCR 572 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, (1972) 2 SCC 788 1972
Indlaw SC 337 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, (1969) 1 SCC 853
1969 Indlaw SC 355 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 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 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 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 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 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.
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 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
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 College and Research Centre v. State of Madhya Pradesh. (2016) 7
SCC 353 2016 Indlaw SC 389 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, [1999] 1 AC 69 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 State for the Home
Department.[2007] UKHL 11 These four tests were more elaborately articulated by the
Supreme Court of United Kingdom in Bank Mellat v. HM Treasury (No. 2). [2013] UKSC 39
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 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 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, 9th (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
Verhaltnismabigkeit, 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 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
Lonnroth 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 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 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 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 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 (1979) 440 US 173 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 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 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 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 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 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 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 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 The technology and concept of a dashboard

repository 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 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 Issuance and management have been a

and Restricting trade of crypto-assets to function solely of the sovereign / central
white listed addresses 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 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. 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 protection and DILPL suggests setting up an investor

education fund protection and education fund, for which the
VC exchanges would 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,
https://www.vice.com/en_in/article/bjwjpd/s
omeone-just-moved-a-billion-dollars-
inbitcoin-and-no-one-knows-whywhich; last
accessed on September 12, 2019. 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.
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-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 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, 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 exchanges had with any of them. As held by this court in State of
Maharashtra v. Indian Hotel and Restaurants Association, (2013) 8 SCC 519 2013 Indlaw SC
439 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 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.
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 impugned Circular, but for which, the climax could not have had a nail biting finish.
Petitions allowed
© 2019 Thomson Reuters South Asia Private Limited
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30/05/2020 Delivery | Westlaw India

Westlaw India Delivery Summary

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© 2020 Thomson Reuters South Asia Private Limited

Supreme Court of India

Internet and Mobile Association of India

Reserve Bank of India

globally coordinated approach is necessary to prevent abuses and to strictly limit

available to RBI, as the impugned Circular is an exercise of power by a statutory body

Paragraphs 2 and 3 as they originally stood Paragraphs 2 to 4 now substituted

AND WHEREAS in the present AND WHEREAS it is essential to have a

AND WHEREAS the monetary policy

reserves or other liabilities, the investments whether in Government securities or otherwise,

does not include a stock exchange;

Reserve Bank. Section 11 reads as follows:

S.No. Regulator Definition of Virtual

1. International Monetary Fund VCs are digital

VCs can be obtained,

The concept of VCs covers a

VCs fall short of the legal

At present, VCs do not

2. Financial Action Task Force June 2015: Guidance for a

Virtual currency is a digital

October 2018: Glossary of

Virtual Asset - A virtual

For the purposes of applying

3. European Central Bank 2012: Virtual Currency

A virtual currency is a type

2017: Phoebus Athanassiou,

bank or another comparable

This definition of 'virtual

European Banking Authority

VCs are defined as a digital

4. European Securities and Crypto-asset: A type of

5. Financial Conduct Authority, Cryptoassets are a

While cryptoassets can be

have previously set out.

6 Internal Revenue Service, 2014: IRS Virtual Currency

"virtual currency" may be

2018: IRS reminds

7. Securities and Exchange Bitcoin has been described

Speaking broadly, crypto

8. Commodity Futures Trading Section 1a(9) of the Act (US

9. Financial Crimes Virtual currency is a

This guidance addresses

10. Canada Revenue Agency Cryptocurrency is a digital

CRA generally treats

Virtual currency is digital

26 June 2019) available at

DEFINITIONS UNDER STATUTORY ENACTMENTS AND NON-STATUTORY DIRECTIVES OF

S.No. Country Statutory Section/Article

1. Japan Payment Services Article 2(5): The

(i) property value

(ii) property value

2. Malta Virtual Financial Article 2(2): "virtual

(c) a virtual token;

3. Canada Proceeds of Crime Section 1(2): virtual

(b) a private key of

4. Bahamas Payment No specific