India Should Embrace Not Ban Crypto

Should India ban crypto in a return to foreign currency regulations of the past or embrace cryptocurrency? Shruti Rajagopalan has an excellent column reminding us of India’s old system of currency control under the License Raj.

If India proceeds with a rumored ban on cryptocurrency, it wouldn’t be the country’s first attempt to impose currency controls. This time, however, a ban is even less likely to succeed — and the consequences for India’s economy could be more dire. The country shouldn’t make the same mistake twice.

In the 1970s and 80s, at the height of what was known as the License Raj, Indians could only hold foreign currency for a specific purpose and with a permit from the central bank. If a businessman bought foreign exchange to spend over two days in Paris and one in Frankfurt, and instead spent two days in Germany, the Reserve Bank of India would demand to know why he’d deviated from the currency permit. Violators were routinely threatened with fines and jail time of up to seven years.

Imports required additional permits. Infosys Ltd. founder Narayana Murthy recalls spending about $25,000 (including bribes) to make 50 trips to Delhi over three years, just to get permission to import a $150,000 computer. Plus, since any foreign exchange that the company earned notionally belonged to the government, the RBI would release only half of Infosys’s earnings for the firm to spend on business expenses abroad.

Naturally a black market, with all its unsavory elements, emerged for foreign currency. The government doubled down, subjecting those dealing in illicit foreign exchange to preventative detention, usually reserved for terrorists. Businessmen selling Nike shoes and Sony stereos were arrested as smugglers.

The system impoverished Indians and made it impossible for Indian firms to compete globally. There’s a reason the country’s world-class IT sector took off only after a balance of payments crisis forced India to open up its economy in 1991.

…While details of the possible crypto ban remain unclear, a draft bill from 2019 bears eerie resemblance to the 1970s controls. It would criminalize the possession, mining, trading or transferring of cryptocurrency assets. Offenders could face up to ten years in jail as well as fines. Such a blanket prohibition would be foolish on multiple levels….

A related problem is that you may think you are banning a cryptocurrency but if you are banning something like Ethereum or Elrond what you are really banning is an experimental workspace, a platform capable of supporting an ecosystem of innovations in finance, art and new forms of cooperation and organization. As I said some time ago:

The Decentralized Autonomous Organization (DAO) is a new organizational form potentially as important as the creation of the corporate form in the 1600s.

and that’s just one example of how crypto will–in one form or another–under-gird much of our life in the 21st century in ways we don’t yet fully see. Banning is premature to say the least.

Moreover, the irony is that India has one of the world’s most advanced identity and payments systems, the India stack. By integrating the India stack with crypto systems regulated similarly to foreign currencies under India’s Foreign Exchange Management Act, India could become a leader in fintech. Balaji Srinivasan presents practical steps forward:

Basically, India doesn’t need to take a risk with a novel ban on the financial internet. It can just modify FEMA to regulate decentralized cryptocurrencies and national digital currencies as foreign assets. A 64-page report by the Indian law firm Nishith Desai Associates outlines in detail how that could work. In brief, the report recommends:

  • Treating crypto as a foreign asset. FEMA provides language that could be used to expressly classify digital assets as “securities”, “goods”, “software”, or “foreign currencies” depending on their features and attributes.
  • Regulating exchanges with startup-friendly licensing. RBI could use FEMA to regulate crypto exchanges as “authorised persons” per the Act, thereby permitting them to deal in foreign currency. Some provision would need to be made to accommodate startups, perhaps by monitoring small new licensees under a regulatory sandbox framework. By repurposing this well-established regulatory mechanism, crypto-assets become subject to all the existing safeguards that the Act provides, including RBI oversight and KYC/AML.
  • Adopting KYC/AML rules. Most developed jurisdictions, including Australia, Canada, the EU, Japan, South Korea, and the US, have brought crypto-asset business activity within their AML regimes. Such an approach has also been recommended by the FATF. India can do this with a simple Central Government notification under the Prevention of Money-Laundering Act.

The FEMA-based model (or a close alternative) would allow us to turn all licensed, regulated Indian exchanges like CoinDCX, WazirX, Coinswitch, Zebpay, Unocoin, and Pocketbits into well-lit venues for trading cryptocurrency. Over time, they will also become huge drivers of remittances for Indians abroad performing remote work, thereby bringing capital into India.


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