BW Legal World: Thanks, Anirudh and Tanya, for this interview to BW Legal World, and congratulations to you both and Ikigai Law on winning the much publicised case in the Supreme Court.

How did Ikigai Law get involved with the cryptocurrency matter?

Tanya: We have been involved with the blockchain industry since 2016. Our team had assisted in the setting up of the some of the leading crypto-exchanges, including Koinex, which was the first multi-currency exchange. Having worked closely with a majority of the stakeholders, we naturally got involved with the present litigation as well, after the subject RBI circular was notified. We were able to file the petition within just ten days of the circular, despite the logistical and other difficulties because of the very diverse set of stakeholders from all over the country who wanted to join the petition. 

How did these diverse set of parties all come together?

Tanya: Understandably, there was a lot of panic and chaos immediately after the circular, and the industry was divided on the best way to take this forward. Some players filed separate petitions in various high courts. We were approached by a few of our existing clients (the exchanges) and we suggested that more stakeholders be brought on board, especially, the individual traders and the promoters of the exchanges. This paid off well because one of RBI's key arguments against our writ petition was that the fundamental right to trade guaranteed under Article 19(1)(g) of the Constitution was available only to citizens, and that companies and industry associations could not claim under the same. Our strategy was to preempt this by having individuals, such as traders and promoters, on our side. 

A major difficulty in getting everyone together was that not everyone was comfortable taking on the RBI, and we had a lot of risk-benefit analysis and comforting to do. 

From strategy perspective, what made you approach the highest court?

Anirudh: We believed that this did not concern just an industry, but was a matter of national importance (because of its economic implications). RBI's unprecedented move had the effect of denying banking access to an entire industry. In fact, we sought views of a few senior counsels, who cautioned that the Supreme Court would not entertain this matter directly. But, the Supreme Court did. It ordered the transfer of all matters from the High Courts and barred any fresh matters to be filed in any of the High Courts. Looking back, it was a bold move for the time and it helped that our filing advocate Mr. Avinash Menon and arguing counsel Mr. Nakul Dewan, Senior Advocate, both had the confidence and clarity of thought that it made sense to approach the Supreme Court directly.

Shortly after, the petition by the Internet and Mobile Association of India (IAMAI) was also filed and all petitions were then heard together. 

How easy or difficult was it to explain blockchain and cryptocurrency to the court? 

Anirudh: It wasn’t easy, but we were before a very knowledgeable bench. The bench did change a couple of times during the course of the proceedings and, as it happens, we had to start all over again each time, but we always found the court well-informed and receptive. We remember making tens of iterations of what was a single-page explainer, a 101, if you will, to break down what’s a very complex technology, for the court. Both the arguing counsels, Mr. Nakul Dewan (representing the exchanges), and Mr. Ashim Sood (for IAMAI), did a phenomenal job at breaking down complex ideas to their constituent elements with simple analogies.   

What does this decision mean for the crypto-currency industry going forward?

Anirudh: I have written extensively about whether this judgment will catalyse the industry or not. It will have to be seen. I believe that the banks will remain cautious in servicing the cryptocurrency industry owing to the regulator’s discomfort with the business and continuing regulatory uncertainty. There are reports that the RBI may file for review of the decision, or, the RBI or the government may push for a nuanced law that addresses the court’s concerns. But, irrespective that, the judgment ensures that the government will have to exercise caution. 

Were you confident of a verdict in your favour?

Tanya: It was difficult to say. This was a complex matter. Rarely has an RBI circular been struck down before. But, surrounded by a stellar team and with messrs Menon and Dewan, we were sure we had put in our best.   

Mr. Anirudh Rastogi is the Founder & Managing Partner of Ikigai Law and has worked extensively with the blockchain industry. He was named Achiever of the Year 2017 by Business World and is recognized by Chambers and Partners for Technology, Media and Telecom.  

Ms. Tanya Sadana leads the general corporate practice at Ikigai Law and led the cryptocurrency litigation for the firm.