Open Access Research Article
THE REGULATION OF BITCOIN IN INDIAN MARKETS- WITH REFERENCE TO AMERICAN REGULATORY MECHANISMS
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Article Details
THE REGULATION OF BITCOIN IN INDIAN
MARKETS- WITH REFERENCE TO AMERICAN REGULATORY MECHANISMS
AUTHORED BY - MANASA VISHWANATH
Cryptocurrency
in India is a highly unregulated and volatile market tool of the modern
international financial economy. The market has existed for over a decade from
the launch of Bitcoin in 2009; however, the regulation and legal control over
the same is poorly developed in comparison to the staggering growth of the
value of cryptocurrency and its prevalence in the market. It has now developed into
a non-traditional financial institution whose purpose and function is not privy
to fundamental norms of traditional finance and banking institutions. Every
attempt in regulation of these volatile and unpredictable assets seems to be a
clear disregard to its very purpose as a financial entity which functions in a
decentralized market. This paper seeks to analyze and study the regulation of
cryptocurrency, particularly Bitcoin, in the Indian economy. It seeks to
analyze and interpret the nature of cryptocurrency and the regulation of its
trade, sale, generation, holding and transfers. This paper includes a study of the
American legal system and its regulatory mechanisms in relation to securities
and commodities classifications of cryptocurrency with reference to which
regulatory propositions for the Indian legal system are made.
KEYWORDS –
Bitcoin, Cryptocurrency, Regulation, India
INTRODUCTION
India is a
country whose financial institutions have been primarily traditional in nature,
controlled majorly by banking systems, investment banks, credit unions,
brokerage firms, etc. These financial institutions in a capitalistic economic
system aid in the regulation of the economy, ensure fair financial practices,
and most importantly provide banking, investment opportunities and
capital-raising avenues.[1]
The traditional financial institutions govern and control various aspects of
financial assets and instruments in trusted and centralized means. The world of
financing and investment has however in modern times grown beyond the
traditional limits of these institutions to non-traditional financial
institutions (NTFIs). These NTFIs are also known in the market as decentralized
finance platforms – DeFi Platforms which function using a decentralized
verified block chain technology which carried units of financial value in the
market without any traditional form of centralized regulation.[2]
The most esteemed of the blockchain financial institutions is Bitcoin.
Bitcoin is
a ‘virtual currency’ that was introduced in an academic paper by an anonymous
person or group of people named Satoshi Nakamoto[3]
in 2009; which functioned in a manner beyond traditional financial institutions
that the world economy conformed. The functional intent and purpose of Bitcoin
was not privy to traditional institutional norms. In 2017 Bitcoin became “one
of the markets greatest speculative crazes”[4]
and it has only been on the volatile increase since then. The Bitcoin price
reached an all-time high in 2021, as values exceeded over 65,000 USD in
November 2021[5].
An individual can obtain Bitcoin in three ways – mining, purchase in an
exchange, and in exchange of goods and services.[6]
Mining is the primary source of Bitcoin, where ‘miners’ are awarded with
Bitcoins as a result of solving complex mathematical problems. The Bitcoin
mining and peer-to-peer exchange is recorded in a public ledger known as the
blockchain, which is a “shared database populated with entries that must be
confirmed and encrypted,” [7] which
functions a public access document with each block forming a logically
connected chain. Miners all compete to solve highly complex mathematical
problems to get the ‘privilege’ to add the set of latest transactions to the
blockchain, and are awarded Bitcoin as a result of successful computation.
Due to the
decentralized nature of Bitcoin and the peer-to-peer nature of the
transactions, it is an unbacked and unregulated form of digital currency. The
Indian legal system does not have a special legislation or set of regulations
that particularly address and control the cryptocurrency financial institution[8].
This paper will focus particularly on the regulation and governance of Bitcoin
(BTC) and relevant laws. Regulatory provisions, their effectiveness and
functioning will be analyzed with reference to the nature of function of
Bitcoin and its blockchain technology.[9]
The paper
explores in Part I the regulatory environment in India. In Part II it analyses
the system in the United States of America and the possible reproduction of
American systems and suggestive reforms in the Indian environment. Through this
paper I aim to probe into the shortcoming and advantages of crypto regulation
and the ways the Indian legal system may be interpreted to regulate BTC and
novel approaches towards achieving the same in line with the American legal
system.
I – REGULATION OF BITCOIN IN INDIA
A) HISTORY OF
INDIA AND CRYPTOCURRENCY
At present,
cryptocurrency is not expressly prohibited under Indian law, but historically
the Reserve Bank of India had banned dealings in cryptocurrency in 2018 which
had banned all “entities regulated by the Reserve Bank shall not deal in Virtual
Currencies (VCs) or provide services for facilitating any person or entity in
dealing with or settling VCs”[10].
RBI opined that cryptocurrencies were ‘stateless digital currencies’ which were
independent from state intervention and control.[11]
Later, by result of a pronouncement of the Supreme Court in 2020[12]
the Crypto Ban Notification was set aside and the ban was listed. The Apex
Court has also rendered a decision wherein it states that virtual currencies
are not recognized as legal tender although they are “capable of performing
some of most of the functions of real currency”[13].
However, the legality of crypto still lies within a grey area as there isn’t a
firm prohibition but there is also a lack of affirming legislation on the same.
There was a proposed bill in Lok Sabha – Cryptocurrency and Regulation of
Official Digital Currency Bill, 2021 which aimed to create a favorable
framework for the regulation of the blockchain and virtual digital asset
industry[14].
RBI has also been considering the creation of India’s own Central Bank Digital
Currency (CBDC) using blockchain technologies. India has been exploring the use
of blockchain technologies and its application and development across various
platforms[15].
Coming back particularly to the regulation of crypto, the Indian government has
also taxed the income from trade of crypto through Income Tax and Goods and
Services Tax – wherein a 30% tax will be charged on the earnings from the
transfer of digital assets with a 1% tax deducted at source [16].
The scheme
of Indian cryptocurrency regulation is however not absolute and there is a need
for more comprehensive and clear legislation, regulation and governance. The
next subsection explores the need for regulation in light of Bitcoin as the
primary concern cryptocurrency.
B)
NEED FOR REGULATION
1.
Inherent ‘problems’ of Bitcoin- Bitcoin by its very
nature and function is decentralized, trustless and unregulated. Although the
technical features of the protocol “create and inherent level of security”[17]
it is still a security-less financial institution. All the transactions occur
in a peer-to-peer format, with every block of transactions being verified by a
computation and addition to the public blockchain ledger with no regulating
intermediary or central power verifying the transactions. The value of Bitcoin
is also extremely volatile, fluctuating to extreme highs and lows. It does not
derive value from the government; its value is wholly dependent on transactions
– as a function of supply and demand[18].
This also makes Bitcoin particularly susceptible to currency manipulation as
there is no overseeing central body.[19]
2.
Black market potential – Due to the central importance
accorded to anonymity in Bitcoin transactions, it became a hub for illegal
black market operations. The most prolific virtual black market was Silk Road.
A dark web site where users could deal drugs and illegal substances using
Bitcoin transactions. In India the Narcotic Control Bureau along with the
Central Board of Indirect Taxes and Customs discovered drug trafficking crypto
payments amounting to INR 2.2 crores[20].
3.
Bitcoin exchanges – Bitcoin exchanges are platforms
wherein Bitcoin can be exchanged for other assets such as other forms of
cryptocurrencies or fiat currencies. They act in a manner similar to stock
exchanges. [21]
Since these platforms are new developments they are susceptible to hackers[22]
; Mt. Gox was of the oldest Bitcoin exchanges, however in 2014 it was hacked
and approximately 8,50,000 Bitcoins were stolen.[23]
Indian virtual asset exchange providers such as WazirX, CoinDCX, CoinSwitch,
BuyUCoin, etc. are all requires to mandatorily maintaining information of
customers – KYC- all records of financial transactions for the past 5 years[24].
4.
Vehicle for Tax Evasion and Money Laundering - Tax
evaders who have traditionally used offshore accounts and shell companies as
means to facilitate tax evasion, have a novel opportunity in Bitcoin for the
same. [25]
In the Indian system since transaction and gains from such taxations are taxed
under the Income Tax Act, it does not preclude the possibility of the use of
Bitcoin for evasion of tax. Bitcoins also “seems to provide a more effective
vehicle for money laundering”[26]
where the aim to obscure the source of illegally obtained monetary gain.
5.
Fraud and Theft -
Bitcoin related fraud has also been in the rise, with exchanges getting
hacked and large amounts of Bitcoin being stolen and subsequently untraceable.
All Bitcoins are stored virtually in ‘digital wallets’, this has also lead to
the development of fake wallets to lure Bitcoin users. Many have also been
victim to fake exchanges to extract funds from unwitting investors[27]
6.
The questionable nature of Bitcoin- The nature of
Bitcoin as a virtual asset is extremely confusing as it is not recognized in
the Indian jurisdiction as legal tender. However, it is not prohibited; trade
and exchange in the same is allowed, supported, taxed and slightly regulated.
To properly formulate regulations on the same, the ascertaining of the nature
of Bitcoin and its categorization into a particular financial asset is of
utmost importance and requirement. It is observed in the American legal system
that the categorization of Bitcoin into securities, stocks or commodities has a
stark effect in the form and method of its regulation.
The need
for regulation as mentioned above focuses mainly on the problems and the
possible misuse of Bitcoin by members of a capitalistic profit-oriented
economy. The need for regulation goes far beyond the control of parties and
their actions to prevent financial crime; it also touches the sphere of
consumer protection of the Bitcoin user. It must also be kept in mind that
although Bitcoin and other cryptocurrencies have been victim of regulatory
oversight, the “authority of regulators faces certain limits”[28].
As observed in Bohme et all in the aforementioned cited paper, if one country
proposes excessive regulations onto cryptocurrencies the same if not more
developed crypto-services will develop in a more lenient regulatory jurisdiction.
II- THE
AMERICAN REGULATORY SYSTEM AND ITS POSSIBLE APPLICATION IN INDIA
This
section follows an analysis of the regulatory mechanism in the American legal
system and regulatory environment in relation to cryptocurrencies and Bitcoin.
There is a categorical analysis of the nature of cryptocurrency either as a
security or as a commodity. The regulatory implications in each case are also
observed. Then I have analyzed the same in the light of Indian legislation and
policy reforms.
A) Through the
Lens of Securities –
The
Securities Exchange Commission is the regulatory body that enforces federal
security laws in the USA. The Howey Test; which was established in the Supreme
Court ruling in SEC v. W.J. Howey Co[29]
, determines whether cryptocurrencies offered by companies in Initial Coin
Offerings[30]
are considered to be securities for the sake of regulation of investment. This
interpretation is not direct as cryptocurrencies are not enumerated in the
Securities and Exchange Act it is interpreted as “investment contract”[31].
The test sets out a set of requirements which must all be satisfied in order to
identify whether the asset in question is to be considered as security in the
regular meaning of the Securities Act[32].
The test is divided into four prongs - first, there must be an investment of
money or something of value to obtain the virtual asset in question. It is
observed that cryptocurrencies which dish out ICOs satisfy this requirement.
Bitcoin obtained by way of exchanges also satisfy this requirement. Second, the
investment must be in a common enterprise which also includes the fourth prong
which will be discussed forthwith. The third prong is the expectation of
profits which is more particularly return on investment into the digital asset
rather than the profit that the issuer of the cryptocurrency may earn.[33]
The fourth and last prong is the efforts of others (common enterprise).
American Courts have interpreted this to mean the managerial or entrepreneurial
efforts of individuals that contribute to profit raising activities.[34]
The nature of decentralized cryptocurrency is to be free from market and
entrepreneurial control and regulation tokens like Bitcoin would not satisfy
this prong[35]
and would thus fail the test to qualify as a security. However, certain ICOs
are still controlled in value by their capital source companies and thus can
qualify to be regulated by the SEC as securities.
In India
the definition of securities includes an array of assets as described in
Securities Contracts (Regulation) Act, 1956[36].
A security is a financial instrument that is used to raise capital funds and
enable the flow of capital resources to areas of economical requirement. [37]
it was observed in Internet and Mobile Association of India that the “SEBI can
step in only when the transactions involve securities within the meaning of
Section 2(h) of the SCRA” [38]
the court also observed that the Crypto-token Regulation Bill, 2018 “initially
recommended … a proposal to prohibit persons dealing with activities related to
crypto token from falsely posing these products as not being securities…”[39].
Section 2(h) sub clause (ii)(a) grants the Central Government the power to
declare other instruments as securities under the Act.[40]
Thus, adopting the Howey Security test into Indian legislation cryptocurrency
and Bitcoin that qualify as securities may be regulated by the Securities
Exchange Board of India and other relevant legislations.
B)
Through the lens of Commodities –
The Howey
test is employed to establish an asset as security as explained above; it
necessarily requires full satisfaction of its fourfold requirements - of
investment, common enterprise, profit and human effort. If even one of these
elements is not satisfied the virtual asset in consideration is not a security.
Which is the case when Bitcoin is traditionally mined (not obtained from
platform exchanges). Thus, these assets are considered to be commodities like
gold and other such minerals. It is also observed that the value of commodities
such as gold depends on market forces of demand and supply and not the
managerial efforts or common enterprise of an organization of individuals.[41]
Thus the value of virtual asset such as cryptocurrency depends not on the
efforts and actions of those behind ICOs but the forces of supply and demand in
the market the effects of the same on the value of the digital currency. It was
also held by the Commodities Future Trading Commission (CFTC) which is the
overseer of the options and commodities futures markets in America[42]
that virtual currencies including Bitcoin were commodities under the
Commodities Exchange Act.[43]
It held that "Section la(9) of the 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”[44].
In the
Indian legal system, the consideration of commodity will not arise but the same
will be taken under the purview of the Goods and Services Act, 2017. The
Central Board of Indirect Taxes and Customs has issued a clarification which
mentioned that cryptocurrencies would be considered as goods and services as
they were not ever considered to be currencies. Additionally any exchange of
cryptocurrency would incur the levy of the GST tax. The definition of ‘Goods’
under the Act[45]
mentions that it does not include ‘money and securities’; the delineation between
securities and goods is clear in Indian jurisprudence. The definition of
‘Service’[46]
also does not include money and securities but includes activities relating to
the use of money or its conversion by cash or by any other mode, from one form,
to another form. The GST Act does not have an explicit mention of
cryptocurrencies or virtual digital assets. The latter has however been defined
in the Finance Bill, 2022 as “any data, code, number, or token created using
cryptographic methods that serves as a digital representation of value traded
and can be applied to any financial transaction.”[47]
Since Virtual Digital Assets cannot be described as either money or security it
will be considered as “goods” under the GST Act and transactions will be taxed
accordingly.
The
implication of considering Bitcoin as either a security or good will bring the
cryptocurrency under the respective regulatory authority and applicable
legislations will govern the trade, transactions, holding and taxation of the
virtual asset. This will mean the adoption of the non-traditional financial
asset into a traditionally regulated financial system. This posits a direct
challenge to the very nature of Bitcoin as a decentralized blockchain based
financial asset. However important the need for regulation is, the adoption of
Bitcoin into the securities or goods regulatory mechanism may bring in means of
taxation and trade control; but as mentioned earlier if Bitcoin users face the
burden of excessive regulation under these traditional regulatory authorities
and mechanisms they will simply shift to another virtual financial asset
service which faces lesser regulatory lag.
CONCLUSION
In
conclusion this paper has set about to explore the regulatory environment of
cryptocurrencies and digital assets that is present in India and the United
States, with particular focus on Bitcoin. It has long been observed that
traditional financial institutions in India have had the forefront
responsibility to regulate the economy, ensure fair financial and trading practices,
providing banking and investment opportunities, and capital raising avenues.
However, the world economy of financing and investment as we know it has grown
far beyond the traditional limits to grow into and give space to the growth and
development of non-traditional financial institutions, which are also known as
decentralized financial platforms or DeFi Platforms. These platforms host
cryptocurrencies or virtual digital assets that function using a decentralized
blockchain technologies which support and act as a ledger for novel units of
financial value that do not follow the traditional form of centralized
regulation and control.
The paper
has explored the potential benefits and drawbacks of using decentralized
finance platforms for investment and capital-raising. It also recognizes the
need for regulation of cryptocurrencies and their exchange platforms. While
these platforms offer greater accessibility, transparency, and efficiency, they
also pose significant risks, including security concerns, lack of regulation,
and potential for fraud and scams.
The
American legal system has established a set of regulatory mechanisms for
cryptocurrencies and Bitcoin. The system first encapsulates the determination
of whether the virtual asset in consideration is a security or a commodity. In
the vase of the former the Securities Exchange Commission (SEC) is the
regulatory body that enforces federal security laws in the USA. The Howey Test,
which determines whether cryptocurrencies offered by companies in Initial Coin
Offerings (ICOs) are considered to be securities for the sake of regulation of
investment, has been established in the Supreme Court ruling in SEC v. W.J.
Howey Co. Contrastingly, if the asset in question does not satisfy the Howey
Test it is considered to be a ‘commodity’ and regulated thus so. The same
classification and regulatory mechanism has been attempted to be visualized in
the Indian financial jurisprudence. The regulatory implications of
cryptocurrencies as securities or commodities have been analyzed in the
American legal system, and the same has been analyzed in the light of Indian
legislation
However,
this paper has some limitations. The regulatory environment for
cryptocurrencies is forever constantly evolving, and the findings presented in
this paper may become outdated quickly due to developments in the law and in
the technology of the cryptocurrencies in the market. Additionally, the paper
has focused primarily on Bitcoin and may not be applicable to other
cryptocurrencies and Initial Coin Offerings. Finally, the paper has not
explored the potential impact of cryptocurrencies on the broader international;
economy and society. In conclusion, this paper has provided a comprehensive
overview of the regulatory environment of cryptocurrencies, with a particular
focus on Bitcoin, in India and the United States. While decentralized finance
platforms offer significant benefits, they also pose significant risks, and it
is essential to establish effective regulatory mechanisms to ensure their safe
and responsible use.
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[9] Bitcoin possesses dominance in the
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[10] Reserve Bank of India, ‘Prohibition on dealing in Virtual Currencies
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[11] Nand Gopal Anand, Harshit Dusad,
Vrindesh Patel, Regulating Cryptocurrency
In India, (October 15, 2023, 6:00 p.m) https://www.ibanet.org/article/2E4FB646-4FFD-4660-A5BE-5E41E79C5576#_edn6
[12] Internet and Mobile Association of
India v. Reserve Bank of India, (2020) 10 SCC 274 .
[13] Id at 6.62 .
[14] GLOBAL LEGAL INSIGHTS, (October
15, 2023, 6:00 p.m) https://www.globallegalinsights.com/practice-areas/blockchain-laws-and-regulations/india#_edn3 .
[15] MINISTRY OF ELECTRONICS &
INFORMATION TECHNOLOGY Government of
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[17] Misha Tsukerman, The Block is Hot A Survey of the State of
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LAW JOURNAL, 1127-1170, (2015).
[18] Id at 1132.
[19] Maya Kosoff, Could Price Manipulation be Killing Bitcoin?, VANITY FAIR (October
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[20] LOK SABHA QUOTES ANNEX, (October
15, 2023, 6:00 p.m) http://164.100.24.220/loksabhaquestions/annex/178/AU5222.pdf..
[21] BITCOIN, (October 15, 2023, 6:00
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[22] Supra note 17 .
[23] Takashi Mochizuki & Eleanor
Warnock , Mt. Gox Head Believes No More
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[24] Supra note 14.
[25] Omri Y. Marian, Are Cryptocurrencies Super Tax Havens?,
112 MICH. L. REV. FIRST IMPRESSIONS 38, 39 (2013).
[26] Jonathan M. Warren,A Too Convenient Transaction Bitcoin and Its
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[27] Antonio Madeira, ,7 Ways Criminals Can Steal Your Bitcoins,
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[28] Rainer Bohme, Nicolas Christin,
Benjamin Edelman, Tyler Moore, Bitcoin:
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213-238, (2015).
[29] SEC v. W.J. Howey Co, 328
U.S. 293 (1946).
[30] An initial coin offering (ICO) is
a type of capital-raising activity in the cryptocurrency and blockchain environment. The ICO can be
viewed as an initial public offering (IPO) that uses
cryptocurrencies.
[31] Supra note 28 .
[32] Jiaying Christine Jiang, Regulating Blockchain? An Ex-Post Regulatory
Impact Assessment of the U.S. Blockchain Regulatory Regime, 8, JOURNAL OF
LAW AND CYBER WARFARE, 5-58, (2022).
[33] SEC v. Edwards, 540 U.S. 389, 394
(2004).
[34] SEC v. Koscot Interplanetary,
Inc., 497 F.2d 473, 479-84 (5th Cir. 1974).
[35]Marco Iansiti & Karim R.
Lakhani, The Truth About Blockchain ,
HARV BUS REV ( 2017) at 118.
[36] Securities Contracts (Regulation)
Act, 1956, s.2(h), No.42 Acts of Parliament, 1956 (India).
[37] NATIONAL INSTITUTE OF SECURITIES
MARKETS, (October 15, 2023, 6:00 p.m) ,
https://www.nism.ac.in/knowledge_base/understand-the-basics-of-securities-markets/
[38] Supra note 12 at 179 .
[39] Id at 219
[40]Supra note 35 - (iia) such other
instruments as may be declared by the Central Government to be securities.
[41]
R.G. Reynolds, 952 F.2d at 1135; Belmont Reid , 794 F.2d at 1391; Noa,
638 F. 2d at 79.
[42] Supra note 31.
[43] Neil Tiwari, The Commodification of Cryptocurrency,117, MICHIGAN LAW REVIEW,
611-634 (2018)
[44] In re Coinflip, Inc., CFTC No.
15-29 at 7 U.S.C. § 1(a)(9) (2012)).
[45] Goods and Services Act, 2017,
s.2(52) , No. 12 Acts of Parliament, 2017(India).
[46] Goods and Services Act, 2017,
s.2(102) , No. 12 Acts of Parliament, 2017(India).
Article Information
THE REGULATION OF BITCOIN IN INDIAN MARKETS- WITH REFERENCE TO AMERICAN REGULATORY MECHANISMS
Authors: MANASA VISHWANATH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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