The coronavirus crisis encouraged traditional and even first time investors to look for alternative investment opportunities, and cryptocurrencies have been an unconventional and increasingly popular alternative ever since. Cryptocurrencies are a form of digital currency based on blockchain technology, widely considered secure, decentralised and providing anonymity to its users, while using cryptography to secure the transaction records. Due to the highly secure nature of transactions, purchases cannot be traced, and individuals can use it to purchase even illegal merchandise, including drugs or firearms. Although cryptocurrency is “secure” two elements make cryptocurrencies riskier than bank accounts: market volatility and the lack of federal insurance and regulation.
The cryptocurrency market crossed $1 trillion value earlier this year, while unofficial industry estimates suggest that Indian owned investments in cryptocurrencies to be approximately US $1.4 billion. Further, the PwC 2020 Time for Trust Report found that blockchain technology would add $1.76 trillion (~1.4%) to the global Gross Domestic Product (GDP) by the year 2030. A global poll revealed that 73% of millionaires would invest in cryptocurrencies, such as Bitcoin and Ethereum, before the end of 2022.
In 2018, Reserve Bank of India (RBI) promulgated a circular which prohibited banks from extending financial services that involved cryptocurrency, though RBI had raised concerns about the potential financial, legal and security risks associated with it since 2013. The Ministry of Finance constituted an Inter-Ministerial Committee which published the report of the Committee to propose specific actions to be taken in relation to Virtual Currencies, 2019 raising several pertinent concerns including the need to secure consumers from fraud and risks, the protection of the financial system, and the need to prevent criminal activities. Thus, the Committee submitted the Draft Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019, which suggested a blanket ban on cryptocurrencies. Interestingly, the Draft Bill provided under Section 8(1) that whoever directly or indirectly mines, generates, holds, sells, deals in, transfers, disposes of or issues cryptocurrency, shall be punished with up to 10 years of imprisonment. The severity of the proposed imprisonment is in line with Para 2 of Part A of the Schedule under the PMLA, giving us a clear indication as to how seriously the Government views these transactions.
However, a Supreme Court Bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian, JJ. quashed RBI circular in Internet and Mobile Assn. of India v. RBI, (hereinafter “IMAI”), on the ground of proportionality, and upheld the contention that the denial of access to cryptocurrency users would be tantamount to a denial of the right to carry on any trade or profession guaranteed under Article 19(1)(g) of the Constitution of India (hereinafter “the Constitution”). Thereafter, the Cryptocurrency and Regulation of Official Digital Currency Bill, 2021, was set to be introduced in the Lok Sabha, to prohibit all private cryptocurrencies operational in India. There is a strong likelihood that this step is being undertaken, because RBI is instructed to launch its own digital currency. Yet, as on date, there is no definitive regulation governing cryptocurrencies, adding to the uncertainty and confusion about its legality in India.
The Government of India initially wanted to encourage blockchain technology whilst opposing the legitimisation of cryptocurrency because once the unit of transaction changes from rupees to any kind of cryptocurrencies, tax recovery or general regulatory control would become extremely difficult and may reach beyond the regulatory capacity of the Government. Thus, the Government has attempted to welcome blockchain technology, but has vehemently opposed the use of private cryptocurrencies. Recently, it was reported that the Government plans to consult experts and seek “legal opinion at the highest level” before it comes to a final decision on whether to allow the trading and holding of cryptocurrencies within the domestic market.
Therefore, it is warranted to declutter the aspect of cryptocurrencies regarding the foregoing anticipation of money laundering attached to it, as to whether it can or rather should, be regulated through the PMLA, in view of its decentralised and peer-to-peer (P2P) network mechanism apropos its tenuous legality.
II. Legality of Cryptocurrency
The key issue surrounding cryptocurrency is the inability to define its legal status. In light of cryptocurrencies being prone to anti-money laundering/counter terrorist financing (AML/CTF), the “silk road,” or sophisticated cyber hackings, almost no country has recognised cryptocurrency as a valid legal tender. Though recently, El Salvador became the first country to adopt Bitcoin as a parallel legal currency, while the move was anticipated to be allied with legal and economic issues by the International Monetary Fund (IMF).
The Supreme Court in IMAI judgment recognised that RBI could notify cryptocurrencies to fall under the definition of “currency” under the Foreign Exchange Management Act, 1999 (hereinafter “FEMA”). Therefore, cryptocurrency users would be deemed to carry on an activity that falls within the control of RBI. The Court further held that cryptocurrency does not hold any inherent monetary value and it cannot be classified as a prepaid instrument under the Payment and Settlement Systems Act, 2007 (PSSA). However, the Court recognised the ability of RBI to regulate cryptocurrencies under the PSSA. Notwithstanding the IMAI judgment, RBI has “major concerns” on the impact of cryptocurrency trade on the country’s financial stability.
On 24-3-2021, the Ministry of Corporate Affairs made it mandatory for companies dealing with cryptocurrencies to disclose profit or loss incurred on transactions, the amount of cryptocurrency they hold and deposits or advances from any person. Further, multiple banks have warned their customers of restrictions if they deal in cryptocurrencies, further adding uncertainty on the tenuous legality of cryptocurrencies. The Court in IMAI judgment opined that,
- It is as much true that VCs (virtual currencies) are not recognised as legal tender, as it is true that they are capable of performing some or most of the functions of real currency.
Certain cryptocurrencies known as “stablecoins” are today’s economic equivalent of money market funds, which could create significant damage in the broader crypto market. One of the serious criticisms of cryptocurrencies is that it has no inherent worth, and it only has the worth that the world gives it. Moreover, owing to the decentralised structure, a random “broken heart” emoji tweeted by Elon Musk drastically fluctuated the market valuation of Bitcoin. A monetary system that fluctuates on individual opinions, might be regarded as inherently flawed. Further, cybercriminals are going after cryptocurrency, with an increase in the number of new modifications of miners, according to a report by the cybersecurity firm Kaspersky.
Thus, how can there be a currency that is not backed up by a sovereign State? The IMAI judgment noted that, “George Friedman, the founder and Chairman of Geopolitical Futures LLC, an online publication, aptly summarised this dilemma as follows:
- 104. 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.
III. Cryptocurrency and money laundering
Some cryptocurrencies such as Monero, Zcash, DASH, Verge and Horizen provide their users with maximum privacy, making it almost impossible to trace the parties involved in the transactions. In other words, most cryptocurrencies allow criminals to hide the source of their wealth. Though Bitcoin records all transactions which are contained in a freely distributed database, criminals reportedly laundered US $2.8 billion through Bitcoin exchanges in 2019, up from US $1 billion in 2018, making it even more appealing to criminals. Thus, there is minimal or no law enforcement oversight protection, since there is no authority for regulating cryptocurrency, as opposed to the active role of the Government in the distribution of fiat currencies.
Cryptocurrencies being primarily based on P2P mechanism attract launderers for having the total cost of cash out strategy at less than 15% of the proceeds of crime, compared to other money laundering methods costing up to 50%. It is because the information relating to the transaction, or the source of funds mostly are anonymous, making it next to impossible to bring it within the ambit of the PMLA, besides the fact that not recording every transaction detail violates Section 12 of the PMLA, which imposes an obligation on banking companies, financial institutions, and intermediaries to maintain and upkeep records. This anonymity and accessibility arguably make cryptocurrencies the preferred safe haven for criminal activities including money laundering.
Therefore, unless anonymity is omitted from all transactions relevant to cryptocurrency, tracing or freezing the digital wallet suspected to be containing “proceeds of crime,” would practically become impossible for an agency like the Directorate of Enforcement (hereinafter “ED”). The Draft Bill which sought to ban all cryptocurrencies, attempted to address the problem of anonymity by bringing the act of mining, generating, issuing, holding, using, selling, transfer and/or disposal of cryptocurrency within the meaning of a “scheduled offence,” under the PMLA. Further, it has been reported that India’s leading cryptocurrency exchanges, including WazirX, CoinDCX and CoinSwitch Kuber, have partnered with Internet and Mobile Association of India to set up an advisory board to implement a code of conduct for the crypto industry in India. Recently, the ED reportedly issued a notice to WazirX for allegedly violating the FEMA for transactions worth ₹2,790.74 crore. Even though India has not yet passed a law on cryptocurrency, certain types of transaction have a higher risk of attracting penalties.
The Supreme Court in IMAI judgment observed that virtual currencies are not widely accepted modes of exchange and thus they could also not be regarded as a final discharge of debt. The Government once aimed to block cryptocurrencies and welcome blockchain technology in the same breath, however, the Government may be required to recognise cryptocurrency if it intends to generate revenue through it and prevent its misuse as an avenue of money laundering. Moreover, the Indian income tax law is unclear regarding the tax impact on the gains earned from cryptocurrencies.
IV. Where the world stands on cryptocurrency
According to the United Nations, the estimated amount of money laundered globally in a year is 2% to 5% (or $800 billion to $2 trillion) of the global GDP. While the world leans towards the sustainable development goals to counter climate change, a debate looms around the energy consumption in cryptocurrency mining. As per an analysis of the Cambridge Centre for Alternate Finance, Bitcoin consumes approximately 110 Terawatt hours per year – 0.55% of the global electricity production, or roughly equivalent to annual energy draw of Malaysia or Sweden. Is the cryptocurrency energy consumption appropriate use of non-renewable resources or the world needs to reject this model of monetary system?
In Canada, digital currencies are not legal tender, but are bound by the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, which include processes such as record keeping, verification, suspicious transaction reporting, and registration. In Singapore, primarily the Payment Services Act, 2019, mandate that cryptocurrency businesses should obtain a licence complying with AML/CTF regulations. In the United Kingdom, those engaged in crypto related business have to register with the Financial Conduct Authority, and they have to comply with AML/CTF measures provided under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations, 2017. Recently, it was reported that up to 50 companies dealing in cryptocurrencies such as Bitcoin may be forced to close after failing to meet the UK’s AML rules.
On the other hand, in the United States, though there is no federal regulation governing cryptocurrencies, the Financial Crimes Enforcement Network (FinCEN) regulates money services businesses (MSBs) under the Bank Secrecy Act of 1970. Thus, while MSBs are required to conduct a comprehensive risk assessment of exposure to money laundering, FinCEN regulates MSBs to develop, implement, and maintain a compliance program for AML/CTF. Recently, the owner of a Bitcoin exchange was convicted by a federal jury for his role in a transnational and multimillion-dollar scheme to defraud Americans and received a 121-month prison sentence. Another man was sentenced to 121 months in federal prison for conspiring to distribute and possess methamphetamine, a dangerous drug, the payment of which was done through cryptocurrency. These are just a few illustrations that point to the dangers of an unregulated anonymous currency.
V. The way forward
Cryptocurrency needs to be regulated, undoubtedly. However, the PMLA as it currently exists is wholly insufficient to deal with money laundering via cryptocurrency and there can be two procedures to tackle this insufficiency. Firstly, it may be regulated by amending Section 2(s)(sa) of the PMLA to include cryptocurrency business persons within the meaning of “person carrying on designated business or profession,” bringing the exchange service provider within the meaning of “reporting entity” under Section 2(w)(wa) and imposing “client due diligence/KYC” requirements on cryptocurrency businesses under Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005. Secondly, an effective legislation can be enacted with an autonomous body as thewatchdog, to affect safe utilisation of the currency. India should reasonably anticipate that decentralised and unregulated cryptocurrencies, while undermining the control of e RBI, can destabilise the economy; alongside being misused for circumventing capital controls, money laundering or illegal purchases. The verdict of the Supreme Court in IMAI shall necessarily be complied with, which makes a ban on cryptocurrencies to be violative of the fundamental right to trade guaranteed under the Constitution. However, it is more likely that this position will have to be revised and a legislative ban be imposed as the dangers of cryptocurrency become clearer.
† Criminal Lawyer based out of New Delhi.
†† Intern, Law Chambers of Jai Anant Dehadrai [3rd Year, BA LLB (Hons), Jamia Millia Islamia, Delhi].
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