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Bitcoin to be banned in india
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Bitcoin: Legal Treatment under the Current Indian Legal and Regulatory Regime This paper is an effort to examine the legal basis and treatment of Bitcoin under the current legal and regulatory regime in India. In this paper we shall first give a brief description of Bitcoin and then move on to what its legal treatment would most likely be which would then lead us to examine which regulations would most likely apply to various Bitcoin transactions. What is Bitcoin? Bitcoin creation and transfer is based on an open source cryptographic protocol and is not managed by any central authority.
Each Bitcoin is subdivided down to eight decimal places, forming ,, smaller units called satoshis. Bitcoins can be transferred through a computer or smartphone without an intermediate financial institution. The integrity and chronological order of the blockchain is enforced with cryptography. In addition to archiving transactions, each new ledger update creates some newly-minted Bitcoins.
The number of new Bitcoins created in each update is halved every 4 years until the year when this number will round down to zero. At that time no more Bitcoins will be added into circulation and the total number of Bitcoins will have reached a maximum of 21 million Bitcoins. Each user of Bitcoin gets a digital wallet and a Bitcoin address which is the address from and to which Bitcoins can be transferred once this address is given to another party for the transfer.
A transaction or transfer of Bitcoins is simply a transfer of value between Bitcoin addresses that gets included in the block chain or the system log, which ensures that each transaction is valid and that nobody can use his or her Bitcoins more than once i. Private keys are used to sign transactions, providing a mathematical proof that they have come from the owner of the addresses.
With this very basic and brief understanding of Bitcoin, we shall now try to examine whether Bitcoins should be treated under Indian law as i currency, ii security, iii derivative, iv negotiable instrument, v prepaid payment instrument, or vi movable property. Can Bitcoins be Treated as Currency? Indian laws do not define digital currency or virtual currency, so we will have to look at the traditional definition of currency to see if Bitcoin falls in that definition.
This means that if any instrument which is being used as a currency is not covered by the definition as it stands, then the RBI is free to notify it and include it in the definition of currency. It is clear that Bitcoin is not really similar to any of the instruments mentioned in the definition, not least because none of them are digital or virtual in nature. Since Bitcoin is not really backed by any institution and has no backing by any central bank or institution and because most of the transactions involving acceptance of Bitcoin are voluntary in nature, therefore it does not seem that Bitcoin is an instrument that can be used to create a financial liability.
This can be explained further with the help of two examples: i If a person owns Indian rupee notes worth Rs. As soon as I give flipkart currency notes or coins worth Rs. On the other hand if I pay for those shoes with Bitcoins then unless flipkart voluntarily accepts payment in Bitcoin, my liability to pay for the shoes will still legally exist till I pay flipkart Rs.
Therefore it is clear that Bitcoins do not fit into the plain vanilla definition of currency under Indian law. Cynics may argue that this is not possible due to the peer to peer nature of Bitcoins and the Bitcoin network and they would be right to the extent that it may not be physically feasible for the RBI to regulate every Bitcoin transaction, but it would be possible for them to target Bitcoin exchanges which is the entry point for most users of Bitcoin.
To sum up, although Bitcoins may not be classified as a currency at present, this does not preclude the RBI from regulating them in the future. Can Bitcoins be considered as Securities? In such a scenario it will be the entire gamut of regulations governing securities including the various rules and regulations prescribed by the Securities and Exchange Board of India SEBI.
Can Bitcoins be considered as a Derivatives or a Negotiable Instruments? Further since Bitcoin is only a voluntary currency based on two parties deciding that the code itself has some value, therefore Bitcoin can also not be described as a contract which derives its value from the prices or index of prices of underlying securities. Therefore it is clear that Bitcoin would not satisfy the requirements of being a derivative under the SCRA.
Since the terms promissory note, bill of exchange or cheque are easily understood in trading parlance, there is no need to go into the definitions of these instruments as provided under the Negotiable Instruments Act, , suffice it to say that Bitcoins do not fall under the definitions of any of these terms under the Act. The enactment of the Payment and Settlement Systems Act, has brought the payment systems involved in the issuance of prepaid payment instruments under the regulatory jurisdiction of the RBI.
In exercise of its powers under Section 18 of the Payment and Settlement Systems Act, the RBI on April 27, issued policy guidelines governing institutions issuing prepaid payment instruments such as mobile wallets, Paypal, etc. In these guidelines the term Prepaid Payment Instrument is defined in the following words: Pre-paid payment instruments are payment instruments that facilitate purchase of goods and services against the value stored on such instruments.
The value stored on such instruments represents the value paid for by the holders by cash, by debit to a bank account, or by credit card… Since Prepaid Payment Instruments have a definite value stored on them which is equal to the amount paid by the holders in cash or by debit or credit card, it seems that Bitcoins cannot be classified as Prepaid Payment Instruments since there is no static value stored in Bitcoins, rather they have an inherent value.
In other words the amount of money that a person pays to buy Bitcoin does not represent the value of the Bitcoins that the person is buying, rather the value or exchange rate of Bitcoins keeps changing on a daily basis. Therefore Bitcoins cannot be classified as prepaid payment instruments because the value stored on prepaid instruments such as Paypal is always constant and is equal to the amount of money paid to the system to get a Paypal balance, but this is not the case with Bitcoins.
What can Bitcoins be Classified As? What therefore, should be the legal treatment of Bitcoins under Indian law? Bitcoins are essentially lines of code which create the system of transfer of Bitcoin currency from one account to another. Speaking of the ban on all private cryptocurrencies, there has always been a heated debate around cryptocurrency, most notably bitcoin, which is said to be the largest digital currency by market capitalization to date.
And due to such controversies surrounding these digital currencies, a number of countries have placed limitations on the way Bitcoin can be used and several countries have totally banned the use of Bitcoin and cryptocurrencies outright with heavy penalties in place for anyone making crypto transactions.
China: Ever since the advent of digital currencies, China has cracked down on cryptocurrencies and been quite brutal with its restrictions. To deal with the crypto giants like Bitcoin, China even introduced their own centrally-regulated digital currency called Digital Renminbi RMB. The government has also cracked down on mining bitcoins in the country. With this, it can be said that bitcoin is essentially banned in China.
Colombia: In this country, financial institutions are not allowed to facilitate Bitcoin transactions.
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