Ms. Nappinai, a renowned lawyer, specializing in constitutional, criminal, IPR and cyber laws also has a passion for legal aspects of Blockchain and emerging technologies. In this interview, she expresses her thoughts about the recent Supreme Court decision impacting Crypto and Crypto Exchanges. Ms. Nappinai gives also some insight into Laws and Regulation, and the generational gap existing with respect to new inventions and crypto in India today. Take a look at what this power-woman advocate working since 1991 in India has to say about crypto today.
Interview Date :12th March 2020
The Indian Woman behind Cyber Law
I am N. S. Nappinai, I am an advocate practicing in India. I focus primarily on litigation in the Supreme Court and in the Bombay High Court. I specialize inter alia in Cyber Laws and Constitutional law, and I have been a forerunner in terms of not just my practice or speaking, but also training judiciary and police and writing about blockchain and cryptocurrency (www.nappinai.com). I have recently launched my initiative titled “cyber Saathi” (translating to “cyber friend”) for empowering through knowledge of cyber laws (www.cybersaathi.org).
N S Nappinai
A woman advocate specializing in Indian cyber law is a rare sight even today, but my gender I believe is irrelevant to the stream of practice I chose to specialize in. Let me tell you, I think I have been a disrupter, always. I started practice in 1991 as a criminal lawyer, and in 1991 a woman as a criminal lawyer was also mostly unheard of. At that time, I specialized in litigating white collar offenses, and intellectual property rights (“IPR”) cases. I was handling a lot of IPR cases pertaining to software license etc., in 1994~95. That’s when my curiosity about something beyond IPR and more about Information Technology came up. I started reading about data protection – that was also when the world started moving towards strong data protection regimes. We started getting models laws for e-commerce, electronic signatures, and so on, so that was also the time when cyber laws were actually evolving. I was therefore ahead of times in reading and becoming an expert in cyber laws before India received its first codified cyber law in 2000. I started way ahead of the crowd, and that I am a woman is just incidental.
No Crypto ban in India till date. Let me explain:
There was no ban on cryptocurrency in India. What happened was, in 2013 there were circulars issued by the Reserve bank of India (“RBI”), which is the Indian central bank, that cautioned people about dabbling in cryptocurrency. The circulars moved from its usage of cryptocurrency to virtual currencies sometime in 2017. On 6th April 2018, RBI issued a circular that was only a restriction on banks and payment systems from transacting on cryptocurrency. If you were involved in the field of cryptocurrency, you could no longer use banking systems or payment systems to dabble in it. That was what RBI did.
Once you restrict the usage of the banking system for crypto transactions, you can effectively restrict people from transacting in cryptocurrencies. The exchanges were then left only with the option of undertaking crypto to crypto transactions or crypto to cash transactions. There was no other way you could deal with it and exchanges were not really encouraging cash transactions, thus it brought them to a standstill, which caused this whole scenario of people assuming there was a ban on cryptocurrencies in India, which was incorrect. In a way, this is a ground on which the supreme court also decided in 4th March’s decision on why the RBI circular was disproportionate. It struck down all the other arguments, but only upheld this one aspect which was that this circular was excessive, or disproportionate to the harm and the damage that this circular was purportedly attempting to protect against. The supreme court felt that it was disproportionate, and therefore it was struck down.
We cannot assume that it is all rosy and wonderful with respect to cryptocurrencies or even blockchain in India because the Supreme Court struck down the RBI circular. I have just written an article that is published now online on Supreme Court’s judgment impacting cryptocurrency.
My cautioning note here is that people should wait and watch because the very judgment gives RBI a clear mandate to decide the future of cryptocurrencies in India. Apart from that, the Government would also have to decide on how it wants to go forward with cryptocurrency. So, India is in a state of flux where you need to see what RBI will come up with next, and what the Government will do. We cannot assume that it is celebration time for cryptocurrencies.
Another aspect would be the weakness in terms of the judgment itself where RBI has a very strong ground for review. If RBI decides to go for a review, which it already said it’s going to take that position, they would most probably also ask for a stay of the order till the decision on the review has been taken. Their argument would be that, banks have not done anything on this since April 2018, so if they were to start again and the review is in favor of RBI, the absence of a stay would have an impact on banks and payments systems. Their chances of succeeding in obtaining a stay of the order is therefore high. I would say that it is best that we wait and watch at least until the review period is over, and then take a decision on what next. Of course, nothing stops RBI to go ahead with new circulars, or of the government to take the definitive stand on law any time.
Interviewer , Editor : Lina Kamada
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