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Exploring the conundrums of Bitcoin and its legality within the Indian Legal system

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The global economy is inexorably transforming into digital environment.  From investment, all is going paper based, to transfer of money. Cryptocurrency is the current and most innovative contribution to the world of digital payment. Bitcoin, a well-recognized cryptocurrency, has been gaining popularity across the globe.  Bitcoin is a world’s first decentralized digital currency that can be purchase, vend and exchange, with no role of an intermediary or middlemen such as bank. All the electronic transaction, prior to the evaluation of bitcoin in 2008, involved the role of an intermediary. Satoshi Nakamoto, Bitcoin’s founder, initially recognized the need for an electronic system of payment based on cryptographic proof rather than trust.

The introduction of Bitcoin is quite revolutionary since it has eliminated the issue of double spending without involving any central authority[i]. When it comes to digital currency, there is a high possibility that it can be spent twice. The holder can easily produce a copy of digital coin and, consign it to some other person while maintaining the original one. Every transaction pertaining to the Bitcoin is recorded in a publicly shared ledger which is known as blockchain. To ensure that the same Bitcoins haven’t been used before, new transactions are compared to the blockchain[ii]. Cryptocurrencies, to authenticate the transaction and avert double-spending problem, use public-key cryptography. Public-key cryptography includes a public key as well as private key. The cryptocurrency account’s private key is primarily used to authorize the transaction. A private key is like a code or password that permits you to spend a cryptocurrency coin. Thus, it should be kept private. The public key, on the other hand, is used to validate a transaction after it has been submitted. It can be publicly disseminated in the form of an address to procure cryptocurrency. Cryptography is a means of transmitting confidential communication between two users using a mathematical technique to encrypt the message. Without encryption, the entire concept of cryptocurrencies is obsolete, because then unauthorized users would be able to decipher the transaction or data.

Cryptocurrency has the potential to reinvigorate both the Indian and global economies. Owing to the decentralized mode of transaction, sectors like Agriculture, Banking, Energy, etc. have been radically affected. The bitcoin industry has provided India with a significant possibility for economic development. Missing out on this new technological revolution would be a costly mistake for India. The potential economic rewards of the bitcoin industry are enormous, and other countries are already benefitting. In Asia,  Thailand and the Philippines have floated the idea of drafting legislative rules to help their local cryptocurrency markets flourish, as well as developing standards to improve investor confidence and obtaining licenses for a number of crypto exchanges.

COVID-19 has had a detrimental impact on the Indian economy and the global market at large. Regardless, crypto has spawned job opportunities in India and overseas in a spectrum of areas and approximately 300 start-ups have resulted in the creation of thousands of jobs as well as hundreds of millions of dollars in revenue and taxes. India will inexorably draw tech talent as a result of the continuous progress. Thus, Cryptocurrency technology offers the potential to provide a huge boost to our economy’s strength. It has the ability to lay new economic and social foundations for us. However, while blockchain will have a massive influence, it will take years for it to permeate existing economic and social systems.

Legal Position of cryptocurrencies in India

The landmark case of Internet and Mobile Association of India v. Reserve Bank of India [(2020) 10 SCC 274] silhouettes India’s most recent legal position on cryptocurrency.


The Reserve Bank of India (RBI), on April 4, 2018, released a statement on “Developmental and Regulatory Policies” instructing the entities governed by RBI (1) not to engage in virtual currencies or impart any service to business organization or Individual that specifically trade with virtual currencies and (2) to end the relationship with such entities or individual that trade with virtual currencies. Further, the RBI released a Circular in exercise of authority granted by Section 35-A read in conjunction with Section 36(1)(a) and Section 56 of Banking Regulation Act, 1949 (BR Act 1949) ,and Section 45-JA and 45L of Reserve Bank of India Act, 1934, (RBI Act 1934) and Section 10(2) read with Section 18 of Payment and Settlement System Act, 2007(PSS Act 2007), guiding the entities which are governed by RBI not to engage in virtual currencies or offer any service to business organization or individual that specifically trade with virtual currencies and (2) to end the relationship with such entities or Individual that trade with virtual currencies.

Reasoning for contesting the circular issued by RBI

  1. Virtual currencies cannot be equated to legal tender and thus it does not fall within the purview of BR Act 1949 or RBI Act 1934.
  2. Virtual currencies are not subject to credit system of the country.
  3. The authority to modulate the financial system under section 45-JA and credit system of the country under Section 45-L of the RBI Act 1934 are not flexible so as to involve goods which specifically do not within the ambit of financial and credit system of the country.
  4. All the stakeholders like Department of Economics Affairs of India’s government, Central Board of Direct Taxes, etc. have rationally perceived the positive factors of cryptocurrencies as well as distributed ledger technology and thus preferred a regulatory framework. The RBI, however, has taken an irrational stance.
  5. The RBI has infringed the fundamental right to practice any profession or to carry on any occupation trade or business envisaged under Article 19(1)(g) of the Indian Constitution.
  6. It’s a true conundrum that blockchain technology is suited for RBI but not cryptocurrency.

RBI’s Statement to the Disputed Grounds

  1. Virtual currencies do not qualify the specifications to be recognized as a currency such as means of exchange, unit of value, etc.
  2. Virtual currency, to manage any consumer disputes effectively, do not have well-structured framework.
  3. Owing to pseudo-anonymity, virtual currencies can be used for an illegitimate purpose.
  4. No person has an unrestricted fundamental right to conduct any business/trade on the system of RBI-governed entities.
  5. The disputed circular has been released in exercise of power under BR Act 1949, RBI Act 1934 and PSS Act 2007.
  6. The expanding use of digital currencies could undermine financial viability of Indian currency as well as credit system.

 Issue before the Court

Whether the RBI’s statement on “Developmental and Regulatory Policies” as well as the circular are liable to be overturned?

Verdict of the Court

Once it has been established that some organizations/institutions have acknowledged digital currencies as an authentic form of payment regarding the purchase of goods/commodities and services then there is no way to circumvent the conclusion that consumers as well as dealers are engaged in an activity that comes within the jurisdiction of RBI. If an intangible property, under specific conditions, can function as a money, then RBI can certainly regulate it. The statutory duty, as a Central Bank, of RBI would necessarily require them to fix any issues that are deemed as posing a threat to country’s currency, payment, credit and financial system.

Section 45-JA and 45-L of RBI Act as well as Section 35-A of BR Act permits the RBI to issue appropriate directives if it is convinced that certain parameters prevail. The RBI, without initiating any drastic action, has been debating the matter for nearly a period of five years. As a result, RBI can scarcely be accused of not deploying its intellect. There is no doubt that RBI has the authority to release certain directives to its governed entities in the welfare of consumers or banking firms or general public. If RBI’s exercise of authority in order to realize the either of these goals inadvertently produces collateral harm to one of the many activities that are not covered by the legislative authority then the latter cannot be blamed on the colorable exercise of power or malice in law. The contested circular issued by RBI does not fit into either of these classes.

The Court, while determining the legality of a legislation limiting the conduct of a business or profession, must cogitate about (a) the immediate effect on constitutional rights, (b) the greater general interest sought to be protected in context of the goal sought to be realized, (c) the requirement of constraining individual’s autonomy and (d) intrinsic deleterious aspect of the prohibited act and (e) the potential of realizing the objective by enforcing a less severe restriction. The buying and selling of cryptocurrencies via virtual currencies swaps may be a hobby or as a business. People who purchase and offer cryptocurrencies, as a hobby, are not eligible to base their argument under Article 19(1)(g) of the India’s Constitution since it includes business /trade, vocation and profession only. Those engaging in the trade or business of selling and buying digital currencies, as well as those who operate virtual currency swaps, fall under the second and third categories of citizens. The second category cannot argue that the disputed RBI’s decision has resulted in the closure of their business. It is only the third category of citizen that have been adversely affected by the disputed RBI’s circular. The guidelines issued by the RBI must meet the proportionality test because the circular has eliminated the cryptocurrencies from the country’s industrial map and therefore impinged on Article 19(1)(g) of the India’s constitution.

Further, over the previous five years or more, the RBI has found no evidence that virtual currency exchange activity has had a devastating effect on the way regulated enterprises operate. The RBI has not stated that either of the entities regulated by it has endured any detrimental effect, explicitly or implicitly as a result of the virtual currency exchanges’ engagement with any of them. Accordingly, the Supreme Court has ruled that the RBI’s circular is likely to be overturned.


This landmark judgment is certainly a boon to crypto-based organizations. However, it is only a temporary respite. The Indian government has formerly attempted to enact the Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019, which aims to outlaw cryptocurrency mining, retaining, selling, trading, issue, disposal, and usage across the country. Bitcoin is a fascinating breakthrough that has the proficiency to catalyzeconstructive and potentially transformative advances in commerce as well as transactions[iii].The application of public-key cryptography as well as peer-to-peer connectivity has eliminated the hassle of double-spending that had hitherto rendered decentralized virtual currencies impractical. It’s worth noting that cryptocurrencies, in India, are not unlawful but they are not adequately regulated. For the time being, there is no regulatory framework in place to control its operation. This suggests that a person can buy, vend and retain Bitcoin in the form of investment but there is no regulatory authority to oversee it and thus leaving a window for scams. For investors, this certainly raises the stakes to a great extent. It is a critical requirement of the hour that India should strive to take advantage of this technology’s ground-breaking capability in order to strengthen its position as a global IT giant. Accordingly, the Government, either as an asset or a means of exchange, should regulate the deployment of cryptocurrencies in India.

[i] Jerry Brito and Andria Castillo, BITCOIN: A Primer for Policymaker, 2nd ed. 2016, p.6

[ii] Ibid

[iii] See Supra Note 2 at 73

Yatharth Chauhan is currently reading BA.LLB at the School of Law, Justice and Governance, Gautam Buddha University, Greater Noida. He is an accomplished content writer with a track record of success in the legal industry. He is adept in legal writing and legal research. He has a strong interest in Intellectual Property Rights and Technology Law. He is available at yatharthchauhan08[at]

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Free-Market Capitalism and Climate Crisis

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Free market capitalism is an economic system that has brought about tremendous economic growth and prosperity in many countries around the world. However, it has also spawned a number of problems, one of which is the climate crisis. The climate crisis is a global problem caused by the emission of greenhouse gases, primarily carbon dioxide, into the atmosphere. These externalities are chiefly a consequence of day to day human activities, such as the burning of fossil fuels, deforestation, and conventional agriculture. The climate crisis is leading to rise in temperatures, sea levels, and more erratic weather patterns-The floods in Pakistan and depleting cedars of Lebanon are vivid instances for these phenomena, which are having a devastating impact on the planet.

One of the main reasons that free market capitalism has contributed to the climate crisis is that it prioritizes short-term economic growth over long-term environmental sustainability. Under capitalism, companies are primarily motivated by profit and are not required to internalize the costs of their pollution. This means that they are able to pollute without having to pay for the damage that they are causing. Additionally, the capitalist system is based on the idea of unlimited growth, which is not sustainable in the long-term. As long as there is an infinite demand for goods and services, companies will continue to produce them, leading to ever-increasing levels of pollution and resource depletion.

Another pressing issue that free market capitalism is recently going through is that it does not take into account the externalities of economic activities. Externalities are the unintended consequences of economic activities, such as pollution and climate change. Under capitalism, companies are not required to pay for the externalities of their activities, which means that they are able to continue polluting without having to pay for the damage that they are causing. In her book “This Changes Everything: Capitalism vs Climate” Naomi Klein argues that the current system of capitalism is inherently incompatible with the urgent action needed to address the Climate crisis.

To address the climate crisis, it is necessary to put checks and balances over the free market capitalism and/or make a way towards a more sustainable economic system. This can be done through a number of different effective policies, such as:

Carbon pricing: This can be done through a carbon tax or a cap-and-trade system, which would make companies pay for the carbon emissions that they are producing. In the article “The Conservative Case for Carbon Dividends” authors suggest that revenue-neutral carbon tax is the most efficient and effective way to reduce the carbon emissions.

Increasing renewable energy investments: an increment in the investments in clean energy technologies, such as solar and wind power, can result in the reduction in  the use of fossil fuels.

Regulating pollution: Governments can regulate pollution to limit the amount of greenhouse gases that are emitted into the atmosphere.

Encouraging sustainable practices: Governments can encourage sustainable practices, such as recycling and conservation, to reduce the use of resources.

It is remarkable that evolving Capitalism can be harnessed to address the climate change. The private sector has the resources and innovation to develop and implement new technologies and sustainable practices, but they need the right incentives and regulations to do so. Finding the balance between economic growth and environmental protection must be a priority for capitalists.

The free market capitalism has been the driving force behind global economic growth, but at the same time, it has contributed to the ongoing climate crisis. The solution to this problem is not to reject capitalism, but rather to reform it to the societies’ suitable demands. Government should consider providing a level playing field so as to make the probable transition from fossil-based energy systems to Green energy technologies possible. The capitalists should not consider short-termism over long term environmental sustainability. Government intervention to put a price on carbon emissions, invest in renewable energy, regulate pollution, and encourage sustainable practices is necessary to avoid the worst impacts of the climate crisis and build a sustainable future for all. However, here is the catch:  Is achieving net-zero-carbon emissions by mid-century a probable target? The answer is quite uncertain, however it is critical point to strive for in the face of  escalating Climate Crisis.

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Egypt’s “Too Big to Fail” Theory Once Again at Test



Authors: Reem Mansour & Mohamed A. Fouad

In the wake of 2022 FED’s hawkish monetary policy, the Arab world’s most populous nation, Egypt, saw an exodus of about USD20bn of foreign capital.  A feat that exerted pressure on the value of its pound against the dollar slashing it by almost half.  This led to USD12bn trade backlog accumulating in Egypt’s ports by December 2022.

Meanwhile, amidst foreign debt nearing USD170bn, inflation soaring to double digits, and a chronic balance of payment deficit, Egypt became structurally unfit to sustain global shocks; the country saw its foreign debt mounting to 35% of GDP, causing the financing gap to hover at USD20billion. 

While it may seem all gloom and doom, friends from the GCC rushed to inject funds in the “too big to fail” country, sparing it, an arguably, ill-fate that was well reflected in its Eurobond yields spreads and credit default swaps, a measure that assesses a sovereign default risk. 

For the same reason in early 2023, the IMF sealed a deal worth of USD3bn, with the government, which unlocked an extra USD14bn sources of financing from multilateral institutions, and GCC sovereign funds, to fill in a hefty portion of the annual foreign exchange gap, albeit  a considerable amount averaging USD6bn per annum is yet to be sourced from portfolio investments.  

With the IMF stepping in, the Egyptian government agreed on a structural reform program that requires a flexible exchange rate regime, where the Egyptian pound is set to trade within daily boundaries against the US dollar, rationalize government spending, especially in projects that require foreign currency; and most importantly the program entails stake-sales in publicly owned assets, paving the way for the private sector to play a bigger role in the economy.

In due course, through its sovereign fund, Egypt planned initial offerings for shares in companies worth about USD5-USD6bn, and expanded the sale of its shares in local banks and government holdings to Gulf investment funds. 

Through the limited period of execution of these reforms, the EGP hit a high of 32 against the greenback, and an inflow of portfolio investments amounting to USD1bn took place, according to the Central Bank of Egypt. 

Simultaneously, Citibank International, cited a possible near end of the devaluation of the Egyptian pound against the US dollar.  Also, in a report to investors, Standard Chartered recommended to buy Egyptian treasury bills, and pointed to the return of portfolio flows to the local debt market in the early days of January, 2023. Likewise, Fitch indicated the ability of the Egyptian banking sector to face the repercussions of the depreciation of the pound, and that the compulsory reserve ratios within Egyptian banks are able to withstand any declines in the value of the pound because they are supported by healthy internal flows of capital.

While things seem to be poised for a recovery, the long term prospects may lack sustainability.  The Egyptian government needs to accelerate its plans to shift gears towards a real operational economy capable of withstanding shocks and dealing with any global challenges. Egypt, however has implicitly held the narrative that the country is ‘too big to fail”. This is largely true to the country’s geopolitical relevance, but even this has its limitations when the price to bail far outweighs the price to fail.

Former President George W. Bush’s administration popularized the “too big to fail” (TBTF) doctrine notably during the 2008 financial crisis. The Bush administration often used the term to describe why it stepped in to bail out some financial companies to avert worldwide economic collapse.

In his book “The Myth of Too Big To Fail” Imad Moosa presented arguments against using public fund to bail out failing financial institutions. He ultimately argued that a failing financial institution should be allowed to fail without fearing an apocalyptic outcome. For countries, the TBTF theory comes under considerable challenge.

In August 1982, Mexico was not able to service its external debt obligations, marking the start of the debt crisis. After years of accumulating external debt, rising world interest rates, the worldwide recession and sudden devaluations of the peso caused the external debt bill to rise sharply, which ultimately caused a default. 

After six years of economic reform in Russia, privatization and macroeconomic stabilization had experienced some limited success. Yet in August 1998, after recording its first year of positive economic growth since the fall of the Soviet Union, Russia was forced to default on its sovereign debt, devalue the ruble, and declare a suspension of payments by commercial banks to foreign creditors.

In Egypt, although the country remains to face a number of challenges, signs remain relatively less worrying than 2022, as global sentiment suggests that leverage will be provided in the short-term at least. Egypt’s diversified economy, size and relative regional clout may very well spare the country the fate of Lebanon. However, if reforms do not happen fast enough, the TBTF shield may become completely depleted.

Hence, in order to avoid an economic fallout scenario a full fledged support to the private sector’s local manufacturing activity and tourism is a must.  Effective policies geared towards competitiveness are mandatory, and tax & export oriented concessions are required to unleash the private sector’s maximum potential and shift Egypt into gear.

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Sanctions and the Confiscation of Russian Property. The First Experience

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After the start of the special military operation in Ukraine, Western countries froze the assets of the Russian public and private sector entities which had been hit by blocking financial sanctions. At the same time, the possibility that these assets could be confiscated and liquidated so that the funds could be transferred to Ukraine was discussed. So far, only Canada has such a legal mechanism. It will also be the first country to implement the idea of confiscation in practice. How does the new mechanism work, what is the essence of the first confiscation, and what consequences can we expect from the new practice in the future?

Loss of control over assets in countries that impose sanctions against certain individuals has long been a common phenomenon. The mechanism of blocking sanctions has been widely used for several decades by US authorities. A similar methodology has been adopted by the EU, Switzerland, Canada, Australia, New Zealand, Japan and some other countries. Russia and China may also resort to these tactics, although Moscow and Beijing rarely use them. In the hands of Western countries, blocking sanctions, however, have become a frequent occurrence. Along with the ban on financial transactions with individuals and legal entities named in the lists of blocked persons, such sanctions also imply the freezing of the assets of persons in the jurisdiction of the initiating countries. In other words, having fallen under blocking sanctions, a person or organisation loses the ability to use their bank accounts, real estate and any other property. Since February 2022, Western countries have blocked more than 1,500 Russian individuals in this way. If you add subsidiary structures to them, their number will be even greater. The volume of the property of these persons frozen abroad is colossal. It includes at least 300 billion dollars in gold and foreign exchange reserves.

This is not counting the assets of high net worth Russian individuals worth $30 billion or more which have been blocked by the G7 countries. However, the freezing of property does not mean its confiscation. Although the blocked person cannot dispose of his assets, it formally remains his property. At some point, the sanctions may be lifted, and access to property restored. In practice, restrictive measures can be in place for years, but theoretically, the possibility of recovering assets still remains.

After the start of the special military operation (SMO), calls began to be heard in Western countries to confiscate frozen property and transfer it to Ukraine. Confiscation mechanisms have existed before. For example, property could be confiscated by a court order as part of the criminal prosecution of violators of the sanctions legislation. However, such mechanisms are clearly not suitable for the mass confiscation of property. Blocking sanctions are a political decision that do not require the level of proof of guilt that is required in the criminal process. To put it bluntly, the hundreds of Russian officials or entrepreneurs put on blocking lists for supporting the SMO did not commit criminal offenses for which their property could be subject to confiscation. The sanctions have spurred the search for such crimes in the form of money laundering or other illegal operations. But the amount of funds raised in this way would be a tiny fraction of the value of the frozen assets. To implement the idea of confiscation of the frozen assets of sanctioned persons and the subsequent transfer of the proceeds for them, Ukraine needed a different mechanism.

Canada was the first country to implement such a mechanism. The 2022 revision of the Special Economic Measures Act gives Canadian authorities the executive power to order the seizure of property located in Canada which is owned by a foreign government or any person or entity from that country, as well as any citizen of the given country who is not a resident of Canada (article 4 (1)). The reason for the application of such measures may be “a gross violation of international peace and security, which has caused or may cause a serious international crisis” (Article 4 (1.1.)). The final decision on confiscation must be made by a judge, to whom a relevant representative of the executive branch sends a corresponding petition (Article 5.3). Furthermore, the executive authorities, at their own discretion, may decide to transfer the proceeds from the confiscated property in favour of a foreign state that has suffered as a result of actions to violate peace and security, in favour of restoring peace and security, as well as in favour of victims of violations of peace and security, or victims of violations of human rights law or anti-corruption laws (art. 5.6).

The first target of the new legal mechanism will be the Canadian asset of Roman Abramovich’s Granite Capital Holding Ltd. The value of the asset, according to a statement by Canadian authorities, is $26 million.

Roman Abramovich is on the Canadian Blocked List, i. e. his property is already frozen, and transactions are prohibited. Now the property of the Russian businessman will be confiscated and, with a high degree of probability, ownership will be transferred to Ukraine. This is a relatively small asset (from the standpoint of state property), but the procedure itself can be worked out. Further confiscations may be more extensive.

The Canadian experience can be copied by other Western countries. In the US, work on such a mechanism was announced back in April 2022. although it has not yet been adopted at the legislative level. In the EU, such a mechanism is also not finally fixed in the regulatory legal acts of the Union, although Art. 15 of Regulation 269/2014 obliges Member States to develop, inter alia, rules on the confiscation of assets obtained as a result of violations of the sanctions regime. The very concept of violations can be interpreted broadly. So, for example, Art. 9 of the said Regulation obliges blocked Russian persons to report to the authorities of the EU countries within six weeks after blocking about their assets. Violation of this requirement can be regarded as a circumvention of blocking sanctions.

There are several consequences of the Canadian authorities’ initiative.

First, it becomes clear that the confiscation rule is not dormant. Its use is possible and is a risk. This is a serious signal to those Russians and Russian companies that have not yet come under sanctions, but own property in the West. It can be not only frozen, but also confiscated. This risk will inevitably be taken into account by investors and owners from other countries, which could potentially be the target of increased Western sanctions in the future. Among them are China, Saudi Arabia, Turkey, and others. It is unlikely that the confiscation of Russian property will lead to an outflow of assets of these countries and their citizens from Canada and other Western jurisdictions. But the signal itself will be taken into account.

Second, the Russian side is very likely to take retaliatory measures. Western companies are rapidly withdrawing their assets from Russia. The representation of Canadian business in the Russian Federation was small even before the start of the operation in Ukraine. If the practice of confiscation becomes widespread, then the Russian side can roll it out in relation against the remaining Western businesses. However, so far, Moscow has been extremely hesitant to freeze Western property. While the US, EU and other Western countries have actively blocked Russians and their assets, Russia has mainly responded with visa sanctions. The confiscation could overwhelm Moscow’s patience and make the retaliatory practice more proportionate.

Finally, the practice of confiscation modifies the very Western idea of sanctions. It currently implies, among other things, that the “behavioural change” of sanctioned persons would result in the lifting of sanctions and the return of property. The freezing mechanism was combined with this idea. However, the confiscation mechanism contradicts it. Sanctions now become exclusively a mechanism for causing damage.

From our partner RIAC

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