The need for technological developments to be incorporated into the procedure and paperwork of litigation petitions.
Problem in Status Quo: Electronic Petitions
A standard process of litigation is known to be very cumbersome. Everyone has to deal with innumerable visits to court and endless paperwork. The process of litigation is intertwined with inefficient administration in Courts as well. For a simple litigation, all parties involved have to go through countless stacks of paper in the form or orders, plaints, written statements etc. A single case has various stages to it and each stage leads to a multiplicity of paper and excessive documentation. A paperless system of filing of petitions would ensure an environmental friendly judiciary and a substantial amount of time saved, not to mention bringing additional transparency and efficiency.
Applying Minimalism to the Process of E-Filing
The judiciary has already shown that it is willing to embrace minimalism and move towards a digitised system. Instances like electronic recording of witness statements, a digital FIR process being envisioned; are indicators of change. Thus, it is obvious to see that the Government is already taking steps towards a minimalist approach and is keen on digitisation. Hopefully this will make the potential change quicker.
Implementation
a.Technology
Implementation of a process where petitions can be filed is not as hard as it sounds. Various tech companies across the world have proven to be proficient in generating a system where e-filing can be achieved, as can be seen by the following case study:
The Government of Brazil decided to address the critical problem of overloading of litigations in the court, as it was burdened with approximately 2 million cases per year. The Government wanted to address the need of speedy justice. Microsoft came up with an integrated set of technologies which served as a solution to the specific problems at hand. The software company focused on making the system easy to use and driven by consumer need and demand. The system is capable of handling about 30,000 processes a day, which adds up to an estimated 7 million different litigations a year.
The digitization and usage of ICT by courts in Brazil has gained legitimacy after a federal law was passed to that effect in 2006. The judiciary is to achieve the efficiency that electronic filing promises.
b.Security of Identity
A possible obstacle may arise in cases of fraud or other problems but given that the process is online, the verification of identity of a person is made easy. The idea of a Digital India is to make online copies of documents available and this can be achieved by adapting minimalism.
c.Certification of Documents
Documents like say, written statements, affidavits etc. are required to be certified in court for the purposes of admissibility of the same. The same can easily be done online at the time of submission of the documents electronically to vouch for their authenticity.
Benefits of Electronic- Filing
E-Filing and other information and technology sharing initiatives are extremely beneficial to the public as it reduces congestion and delay by doing away with cumbersome processes. It facilitates a unique model of justice which allows an aggrieved party to obtain justice whilst in the comfort of his/her four walls. A large number of judicial processes and justice systems can become well connected if they use electronic systems efficiently.
Conclusion
The electronic system (with special reference to the E-filing of petitions) is one that is achievable and practically implementable as well, as seen by the Government’s efforts to digitise the judiciary. All that is needed is a concrete step toward complete digitisation of processes, which will greatly benefit the judicial system in India.
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Malicious Prosecution, while often viewed through a negative lens, offers an unexpected advantage in the realm of judicial efficiency. By identifying and curtailing cases initiated with ill intent or without a solid legal basis, courts can significantly reduce their pendency of cases. This approach not only ensures that genuine litigants receive timely justice but also discourages the misuse of the judicial process for personal vendettas or tactical delays. The growing awareness and consequential action against such practices could pave the way for a more streamlined, effective, and trusted legal system, minimizing case backlogs and promoting the true essence of justice.
In India, when a person is prosecuted by the criminal justice system, all he can do is defend himself. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court. The mental stress and agony, the loss of reputation, the loss of personal liberty in case of arrest and detention, loss of livelihood and earning, the costs of defending the prosecution, the physical hardships etc are not accounted for. The victim of vexatious or malicious litigation has no legal recourse to protect himself against such abuse of process of law.
Supreme Court Precedent on Reputation and Allied Concepts
The Supreme Court of India has said that Right to Reputation is part and parcel of Right to Life and Personal Liberty guaranteed by the Constitution of India[1]. The same was reiterated by the Hon’ble Supreme Court in 2014 in the case of Umesh Kumar v. State of Andhra Pradesh[2]. Also in January, 2014, the Apex Court while deciding a case observed that instances of police machinery filing false charges is increasing day by day, and such cops should be punished[3].
The Supreme Court reiterated in July, 2014 that there is a rising trend amongst the women to file false cases under Sec. 498A of Indian Penal Code, and that the police should not make automatic arrests in such cases as it permanently scars the reputation of the person.[4] In Subroto Roy Sahara v. Union of India & Ors.[5], the Hon’ble Apex Court made a suggestion to the legislature to formulate mechanism that one who initiates and continues senseless litigation should pay for the same. From this, it is very apparent, that even the judiciary of our country is feeling the need to curb malicious prosecution.
Failure of Criminal Justice System
The basic purpose and the soul of the criminal justice system of our country was to punish the criminals, and create deterrence among them, so as to provide for a law abiding society for the common man. However, over the years, the very soul of this justice system has been lost. It is no longer effective in punishing the culprits. Instead it is increasingly being used to harass the common man.
There are endless citizens in our country who face the judicial system and prosecution for years together, and in the end it turns out that there was no merit in the case. For a matter of fact, as of today, in countless cases recourse is taken to criminal proceedings only as a way of ‘pressure tactic’ or to illicit a ‘compromise’. In the end, the real victim turns out to be the accused, as he has to face the complicated and time consuming justice delivery system of India. Action for malicious prosecution will be the apt tool to fight this menace.
Concept of Malicious Prosecution
The concept of malicious prosecution recognises the individual’s interest in not being subjected to unjustified litigation. Litigation, especially criminal, brings along with it great humiliation, harassment, annoyance, loss of reputation and loss of livelihood amongst other things. In order to curb the unjust litigation, malicious prosecution plays an important role.
One of the earliest cases to be decided on the concept of Malicious Prosecution was Savil v. Roberts [6]. The said case laid down a three-part test for malicious prosecution: damage to the person, damage to the property and damage to the man’s fame. Any litigation which has been intentionally initiated to accomplish either of these three tasks, would be a malicious prosecution. An action, for damages for being subjected to such a litigation, is called an action for malicious prosecution.
What can be Done
It is the need of the hour to address this issue. It is necessary to add legal provisions which act as an effective deterrent for such ‘malicious prosecution’ and compensates the people for their loss of reputation, earnings, livelihood, and the trauma. This could possibly be achieved by adding a chapter dedicated to malicious prosecution by way of amendments to the Code of Criminal Procedure, or promulgating a new legislature on the following lines –
The person initiating malicious prosecution (aggresor) is punished with imprisonment term and/or fine, equivalent to the punishment mentioned for the charges levelled by him in the malicious prosecution.
Loss of reputation and livelihood be compensated by imposing additional fine on the aggresor by computing the amount after taking into consideration the income, qualification and social status of the victim of malicious prosecution. The said amount can be secured by attaching the bank accounts or property of the aggresor, if the payment is not made forthwith.
Immunity should not be given to the prosecuting and investigation agencies who falsely prosecute any person. In a country like ours, where even the highest judicial courts are held accountable for their actions, this is the least we can do.
Malicious Prosecution: A Tool to Achieve Minimalism
Various governments over the years in India have promised to curb the pendency of cases in our courts. However, none have been successful in delivering on this promise. The essential reason for the pendency is the complexity on one hand, and the easy and free initiation of criminal proceedings without any penal or punitive action for false initiation of proceedings on the other hand. Formulation and strict implementation of provisions of Malicious Prosecution would aid in reducing the pendency to a great extent, as people would be very cautious before initiating criminal proceedings. As a result, a great percentage of cases would never be filed thereby reducing the burden of the judiciary. In return, the judiciary can focus all its resources on genuine cases due to which the disposal of the same would be much quicker.
Malicious Prosecution has been largely implemented effectively in countries like Canada and United States of America to curb malicious litigations. Specifically in United States of America, the implementation of the law of Malicious Prosecution is so stringent, that damages amounting to millions of dollars are to be paid if a person initiates a malicious prosecution. As a result, people think twice before initiating any legal proceeding thereby protecting innocent citizens as well as saving the precious time of the judiciary. This ensures that no superfluous and redundant litigations flood the court, thus proving to be truly minimalistic in nature.
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Certification process, effects due to delays and the scope for legal minimalism in the domain.
Government of India recently announced that they are going to stop physical publishing of the Official Gazette, which is the official press/media of the Government. Any law or rules which are made by the government need to be published in this Gazette for them to become operational. The Government has recently proposed to convert the Gazette into an electronic form. Indian government estimates that this move will save Rs. 40 crores and 90 tonnes of paper annually, thus proving a commendable measure reflecting minimalism by the government of India. This brings us to another aspect of publishing by a government agency- Courts.
Process of Obtaining Certified Copies
Taking out official copies of court orders as per todays procedure is a task in itself. The process is so cumbersome that there are specialized agents in court to just take out certified copies. Several orders are passed during the tenure of a case. The only way to know the order is to either inspect and read it from the court file or apply and get a ‘certified copy’ of the order. Even the parties to a case are not given copies of the court order without applying for a ‘certified copy’.
Typically, the process for a certified copy (“CC”) is as follows –
An order is dictated by the judge to a typist, who types it on a computer (typewriters were used earlier).
The order is then printed through a computer and signed by judge.
The same is then kept in the case file.
Applicant makes an application to Court Registry for CC.
Court Registry takes the application to the Judge.
Judge approves the application for CC.
The application comes back to Registry.
Registry initiates photocopy of the order from the court file.
The copies come back from photocopy section.
The copies are stamped by court seal and signed.
Applicant then needs to follow-up and receives the CC after it is ready.
Usually, it takes around 3–5 days to get this CC. In some courts (because of pendency) it might even take around 30 days to get CC. These orders are nothing but a publication by a government arm, but the process and method adopted takes us back to the 18th century.
Online Judgements as Example
Today all Supreme Court judgments are published online. Some High Courts and Tribunals have also started online publishing. However, these online orders are not given the status of ‘Certified Copy’ and you will still have to follow the 18th century method to get a CC from these courts.
Substantial Injustice due to delay in obtaining CC –
Sometimes, the mechanical procedure of procuring a CC through the lethargic administrative system of the Courts can lead to gross injustice to ordinary citizens.
Illustration: Law provides that in case a person is arrested by the police he can apply to the court for bail (i.e. his release). In case he makes this application in the first court (i.e. Magistrate) and is rejected, he can challenge this order of the Magistrate before a higher court (i.e. Court of Sessions). But to be able to challenge this first order from Magistrate before the higher court, he would need to get a CC. However, because of the overburdened court machinery, he may not get CC the same day and will not be able to approach the higher court immediately. Which means a person would have to spend time in jail only because the CC was not received in time. Thus. as CC is the only authentic proof of an order being passed. Any delay in obtaining it can result in immense hardship for litigants.
Applying Minimalism to this process of court orders
The Judiciary can take a cue from the government of India which has chosen online platform to publish laws. If laws can be published online, then court orders which are based on those laws can also be published online.
Few things that need to be taken care of –
a.Authentication
The court orders today are authentic only when signed by the judge and then stamped with his seal. How do we ensure this for online judgments?
The Ministry of Corporate Affairs can serve as good guidance that respect. It has completely digitised its process of company incorporation sound compliance. A certificate of incorporation (i.e. a government approval to formation of a company) is no longer physical but only digital. It is signed via digital signature of the Registrar of Companies and the original is uploaded on the Ministry website.
In the same way, judges can authenticate their orders by attesting their digital signatures as done by the Registrar of Companies.
a.Fraud and Forgery
Digital media like a ‘pdf’ can be edited and therefore it may be argued that the same cannot be relied upon. The idea in a digital India would be to rely only on a digital copy and hence instead of a paper order what the authorities should insist on is the web link on which the order is uploaded. Any action to be taken by any authority should be only after verification online.
In fact, an online order provides immediate opportunity to verify a court order. There are cases where forged court orders are circulated and have been used. The only way for verification of such orders would be to go and inspect the court file and see if they match. Thus an online order takes care of such cumbersome verification procedure as well.
b.Revenue earned by CC
A nominal fee is charged for issuing CC. The same is done considering the manpower involved for physically photocopying large files and huge number of documents. In case of a digital order such costs will be substantially reduced.
A nominal fee though, may be charged for accessing these orders as are charged by the Ministry of Corporate Affairs in case you want to inspect any company documents.
Implementation:
This does not require any major innovation for courts as today most of the orders are typed on a computer. Case statuses are also regularly updated on the district court website by the court office. Therefore, the court office can at the same time of updating the next date upload the pdf copy of the judgment along with the digital signature of the judge.
The Supreme Court, many High Courts, Tribunals and some of the District Courts are already uploading the orders on their websites daily. All that needs to be done is to give these orders the status of Certified Copies. Other courts can slowly follow suit.
Law Commission Report:
The Law Commission in its 188th Report published way back in 2003 had in fact made this suggestion and observed that once the digital signatures are valid, certified copies can be issued to the litigants on Internet under the court’s Digital Signature Certificates.
But Alas! Even after a period of 12 years from the publishing of the report, the archaic methods of obtaining CC still remains.
Conclusion
Adopting a process of obtaining Certified Copies online would save a huge chunk of time for lawyers, litigants, court clerks and the entire machinery. It will also go a long way in saving paper. Publishing them online is an easy task as most orders are typed and printed from a computer anyway.
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Analyzing the importance of cryptography in ensuring online security.
When recently Edgartown bank in Massachusetts, USA needed more space they made a decision to do away with their steel enforced vault built in 1850. What seemed to be a simple re-furnishing task turned into a mammoth demolition exercise! Its only when they started digging deep, did they realise that it wasn’t that the vault was put in the Bank. But The bank was built, around the vault. Thus removing the vault meant destabilizing the complete infrastructure.
This small instance reveals a very important aspect of Banking. Safety is paramount. Banks have constantly been the biggest buyers of safe and vaults. Even today, banks pay tremendous attention to detail as regards safety and vaults, like the Federal Reserve Bank of New York, which claims to possess one of the world’s safest vaults. [1] The vault in New York is safeguarded by a comprehensive multi-layered security system, highlighted by a 90-ton steel cylinder protecting the only entry into the vault. The nine-foot-tall cylinder is set within a 140-ton steel-and-concrete frame that, when closed, creates an airtight and watertight seal. [2] In light of prevalent practices such as net banking, e-wallets and digital payment systems, the importance of security is further amplified.
Banks have always thrived (and done maximum business) on the notion of trust that customers place in them. Direct evidence of this principle can be found in the fact that banks act as trustees and guardians of the currency of their customers. Customers deposit large sums of money and are led to believe that a similar value of currency (as regards their bank balance) is present at the bank, despite the fact that it is common knowledge that banks often deal with monetary values and transaction amounts which are far greater than the actual amount of currency present at the bank at a particular point of time.
Need for Security
When the infamous thief Willie Sutton was asked why he robbed banks, he answered, “Because that’s where the money is.” While the witty comeback still “holds up” today, the weapon of choice now is more likely to be a pen/computer than a gun. The business of a bank/financial institution is constantly under threat from menaces of robbery, or even fraud. What is pertinent to note, is that banks have always placed tremendous value on security and will leave no stone unturned to ensure that safety standards remain high. [3]
The advent of technology has made fraud-inducing practices more prevalent and sophisticated, with them being at an all-time rise.[4] A survey on financial trends made by Assocham and PwC said that financial frauds led to approximately $20 billion (Rs 1.26 lakh crore) in direct losses annually. D S Rawat, Secretary-General, Assocham stated that “Financial fraud is big business, contributing to an estimated $20 billion in direct losses annually. Industry experts suspect that this figure is actually much higher, as firms cannot accurately identify and measure losses due to fraud. The worst effect of financial frauds is on FDI (foreign direct investment) inflows into India.” [5]
The report states that as 75% of the population of India has a mobile phone, ‘banking on the go’ has become the norm, so as to increase the convenience to the consumer. Which reflects in the Reserve Bank of India’s data which states that from a meagre INR 1819 crore in 2012, the volume of mobile banking transactions has risen to INR 1,01,851 crore in 2015.
Technology continues in the race with bank robbers, coming up with new devices such as heat sensors, motion detectors, and alarms. Bank robbers have in turn developed even more technological tools to find ways around these systems. Although the number of bank robberies has been cut dramatically, they are still attempted. [6]
Cryptography
As the world moves digital there is a corresponding need of similar safety and security in the digital world. Cryptography plays a crucial role in ensuring complete safety in areas like e-mail to cellular communications, secure Web access and digital cash. Cryptography helps provide accountability, fairness, accuracy, and confidentiality. It can prevent fraud in electronic commerce and assure the validity of financial transactions. [7]
Cryptography secures the global information infrastructure by encrypting data flows and protecting data from third-party interception. Nowadays, cryptography secures data in transit and at rest, protects personal information and communications, and ensures the integrity of every online purchase. Cryptography has four key attributes:
1. Confidentiality: The protection of information and prevention of unauthorized access;
2. Privacy: Protecting the personal information of individuals;
3. Non-repudiation: The inability to deny an action took place; and
4. Integrity: Assurance that information cannot be manipulated. [8]
Cryptography also powers one of the most rapidly rising finance technology — Blockchain.
It has driven businesses to reimagine how their networks operate and has become synonymous with alternative business models. At its core, however, blockchain leverages a vast amount of public key cryptography to enable confidentiality, privacy and security of data and user identities. [11] Apart from its security benefits, blockchain also increases the speeds of different transactions. Instead of waiting days for a check to clear, a payment can be verified in seconds. There’s also less risk that payments will have to be denied because funds are unavailable. There’s no more “playing the float” since account debits and credits are instantaneous. [12]
Conclusion
Banks in India have started realizing that consumer experience and ease of banking are very important. This has led to several collaborations between the fin-tech start-ups and Banks. What would probably be the next wave in this collaboration is startups that focus on digital security helping banks bring the “offline” trust to the online world. Banks which focus on security and safety of digital consumers are more likely to build trust in the long run, and would most probably be the winners in the digital world.
About Signzy
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Smart Contracts, within the burgeoning realm of blockchain technology, are beginning to gain traction in India’s technological and legal landscapes. These self-executing contracts, with terms of agreement directly written into code, promise a future of transparent, tamper-proof, and efficient transactions. While the global community has been quick to adopt and integrate these into various sectors, India stands at a pivotal juncture, balancing its rich legal traditions with the innovations of the digital age. As the nation grapples with the challenges and opportunities presented by smart contracts, it’s essential to understand their implications, regulatory frameworks, and potential transformative power in reshaping the Indian contractual ecosystem.
Demonetization in India has placed Blockchain-based Smart Contracts in a visible space. Blockchain technology has enabled the smooth transition from traditional to smart contracts by making them simpler and less expensive. Smart contracts are a vital step forward in automating the terms of an agreement between two parties.
For smart contracts to completely penetrate the Indian business circuit, the following aspects need to be focused upon:
The myth of smart contracts not being analogous to traditional contracts, needs to be addressed.
The legal clarification on status of Digital Currency is vital. Adequate regulation in the sphere of digital currency and smart contracts, will help in integration of digital contracts into present industrial standards. But, this transition needs the regulatory and logistical help of the RBI and Government structures.
What are Smart Contracts?
Smart contracts are computer protocols that embed the terms and conditions of a contract. The human readable terms of a contract are fed into an executable computer code that can run on a network. Many contractual clauses are made partially or fully self-executing, self-enforcing, or both.
Understanding Smart Contracts and Blockchain Technology
Smart contracts are self-performing and operate in combination with blockchain. This enables them to move information of value on the blockchain between parties.
Blockchain forms the backbone of all digital contracts and currency like the Bitcoin. It creates a transaction database that is shared by all nodes participating in a system based on the Bitcoin protocol.
Smart Contracts vs. Traditional Contracts
Contracts can be understood as agreements which are legally enforceable. The rights and obligations created by this agreement are recognized by law.
The idea of smart contracts is compatible with our understanding of traditional contract principles. Since, smart contracts also have legal backing, they fulfil the requirements of traditional contract law.
An important distinction between traditional and smart contracts is the medium on which the contract is formed. Commerce depends on individuals being able to form stable, predictable agreements with one another. Communication and physical ratification are the primary ways of creating a legal relationship. This infuses confidence of enforceability into the parties. The legal legitimacy and confidence of enforceability make traditional contracts a preferred way of forming contractual relations.
In smart contracts, the terms and conditions of contractual agreement are entered into the software code. But, this does not take away from the original character of the agreement. As long as the agreement creates a set of rights and duties or obligation, it is a valid contract.
Smart contract comprises of a new set of tools to articulate terms. The process of formation and articulation of contract is now embedded in a self-enforcing automated contract. Hence blockchain technology-based-smart contracts are a way to complement or replace, existing legal contracts.
For a wide range of potential applications, blockchain-based-smart contracts offer many benefits:
Speed — Smart contracts use software code. These codes automate tasks that are typically accomplished manually. Hence, they can increase the speed of a wide variety of business processes.
Accuracy — The probability of manual error is reduced due to automated transactions.
Lower cost — Smart Contracts need less human intervention, fewer intermediaries and thus reduce costs.
Auto-enforcement — Smart contracts are unique in their enforceability since these clauses are embedded in the applicable software itself.
Despite these benefits, there is hesitancy to participate in transactions involving smart contracts. This is because the status of digital currency is still ambiguous in India. Unlike traditional contracts, the legal position on enforcement, jurisdiction etc. is unsettled.
Yet, it can be seen that smart contract based transactions are much more popular in international parlance. Recognition for such transactions in major international commercial law statute have a profound impact.
Current Legal Scenario in India
Opponents of smart contracts in India argue that cryptocurrencies do not have the legal status as a currency in India. Hence, there is ambiguity about whether they constitute a ‘valid consideration’ as per traditional contractual principles.
Cryptocurrency is undefined under the FEMA, RBI Act or Coinage Act.
It is uncertain as to how Cryptocurrencies will be taxed and whether such tax will be a central or state subject.
Recently, a multi-stakeholder panel comprising of members from the RBI and the IDRBT looked into the implications of blockchain technology.[1]
Since all transactions take place over the internet, the dispute resolution or clause reposing jurisdiction to courts or excluding jurisdiction of courts needs to be clearly spelt out. “Smart contract itself should envisage a dispute resolution mechanism involving external arbitrators and/or courts, where the contract is frozen pending proceedings, and the award of the court is incorporated into the terms of the smart contract. With regards to evidence, a dual-integration mechanism comprising hybrid ‘code + paper’ contracts can be presented in court.”[2]
Commercial agreements comprise of clauses that protect parties from various liabilities. They are not always suitable for representation and execution through code. Hence it can be concluded that smart legal contracts will need a blend of code and natural language.
Smart contracts in the commercial realm are at a nascent stage. Hence, regulation in this regard will render adequate clarity to the functioning of smart contracts. This would ensure a smooth transition from traditional contracts to smart contracts in the near future.
About Signzy
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Fintech & Banks, once perceived as rivals in the financial ecosystem, are now increasingly embracing a synergistic approach to reshape the future of finance. While fintech startups bring agility, innovation, and digital prowess to the table, traditional banks offer a wealth of experience, deep-rooted customer trust, and robust regulatory frameworks. By collaborating, they harness the best of both worlds: leveraging cutting-edge technology to enhance customer experiences while building on the strong foundations that banks have established over centuries. This evolving partnership not only promises greater financial inclusivity and efficiency but also indicates a future where technological innovation and banking legacy coalesce for the betterment of consumers worldwide.
The global economic crises brought the world economy to its knees a decade ago. Still, the world’s largest banks operated and continue to operate, almost as if they were too big to fall. This feeling was echoed by Governments the world over. Their steadfast foundation among consumers has now been challenged by a different type of institution. This is the financial technology start-ups. (fin-techs.)
A compelling argument elucidates the whirlwind-like effect that fin-tech start-ups have on banking. The shift of priorities towards a consumer-convenience model gives incentive to banks to collaborate with fin-tech companies. These fin-techs make banking processes quicker and easier. They continuously innovate in the field to ensure greatest satisfaction of the consumer.
Fintech – a Growing Force Internationally
The growth of fin-techs has been exponential, making them a true force to be reckoned with. Venture capitalists, private equity firms, corporates etc have poured an unprecedented amount of money into global financial technology start-ups. More than $50 billion has been invested in almost 2,500 companies since 2010. These innovators redefine the way we store, save, borrow, invest, move, spend and protect money. Leading financial analysts and experts like KPMG have estimated that the investment in fin-techs will increase by a whopping 36% in 2016.
There are various instances of success when it comes to fin-techs across the globe. Fin techs realize that consumer desire is paramount. They have persevered to provide quality digital service to thousands of consumers across the globe. M-Pesa is a case in point. M- Pesa is mobile money platform created by Vodafone and functional in Kenya. It capitalized on the realization that phones can be used to not only make calls, but also execute financial transactions. The premise of the M-Pesa is that most people in emerging and frontier markets don’t have bank accounts. They can use the platform via their mobile phones to make payments and ease money transfers. Estimates suggest that nearly 43 percent of the gross domestic product of Kenya takes place on the M-Pesa platform. The upward trajectory of investment in fin-techs is due to the satisfaction they provide to consumers worldwide. This has ensured that they become a strong global force.
Fintech in India
The Modi regime in India has been particularly supportive of the start-up culture in India. There has been consistent lobbying for foreign direct investment into the entrepreneurship sector. There have been initiatives such as ‘Start-up India, Stand up India’. India is among the first five largest start-up communities in the world. with the number of start-ups crossing 4,200 (at a growth of 40%) by the end of 2015. A Microsoft Ventures report states that the number of start-ups is expected to zoom from 3,100 in 2015 to an expected 11,500 start-ups by 2020.
The recent demonetization has encouraged ideas of a cashless and an e-wallet friendly economy. It has further prioritized the necessity of secure enablers and other platforms, such as Signzy Technologies Pvt. Ltd. They ensure a simple, secure and legal way of making payments. They also help to execute other necessary due diligence through their products like RealKYCTM, ARITM (Algorithmic Risk Intelligence) and Digital Contracts. This provide safety and security of parties to an online/diligence related transaction.
Flipkart CEO Binny Bansal and Snapdeal (and Freecharge) CEO Kunal Bahl acknowledged demonetisation as a game-changer. They labelled it as a move which will usher in the era of digital growth in India’s economy. The economy currently needs a stable and reliable platform to ease payments and related transactions now. This is where fin-techs step in. They bridge the gap between security and dependability. These are two key considerations that consumers in this new-look economy will have.
Services which Fin-Techs Can Offer
Mobile Payments
Payment security is a key concern in today’s risk-loaded environment. Innovation is essential to ensure risk mitigation and consumer responsiveness in the sector.[6] Fin-techs enable convenient and quick payments for various services, goods and other transactions through mobile wallets. Tokenisation and biometric data have developed to a great extent. This ensures authorization of payments through ‘mobile wallets’. There is no need to go through elaborate documentation and technicalities anymore.
P2P Payments
Fin-techs also enable the transfer of value of currency between to persons, thus enabling person to person (P2P) payments. The same transactions can be made between institutions and persons also.
The picture above is a representation of a report by BI Intelligence. It shows the growing popularity of P2P payments using mobiles. It also explains how they may serve as a bridge to widen use of smartphones to complete in-person “wallet-less transactions”.
Collaborative Actions between Fin-techs and Banks in India
Banks have realized that the way forward is to embrace digitized processes. It is essential to collaborate with fin-tech start-ups to maximize consumer satisfaction. Various Indian banks have taken active steps to partner with start-ups to make banking processes easier.
HDFC Bank
HDFC has partnered with a Bangalore-based start-up called “Tone Tag”. It provides phone-based proximity payment services to its customers. it had also tied up with Chillr — an app-based payments platform which transfers funds from account to account without having to fill in any account numbers or bank codes. The bank is also known to host start-up competitions in the form of digital innovation summits.
Axis Bank
Axis bank partnered with Vayana Network. Together. Together, they launched “Invoice to Payment,” an end-to-end digital invoicing and payment solution. The solution aims to simplify B2B payments in India. Currently B2B payment is estimated at over $95 billion annually. It offers digital invoicing, electronic workflow approval and instant payment processing for businesses in India.
ICICI Bank
ICICI Bank is partners with Paytm. Paytm is India’s largest mobile payment firm to launch virtual prepaid cards. This idea has now evolved into the Paytm wallet. It can be used for purposes such as purchasing supplies, usage of public transport etc.
YES Bank has partnered with some exciting fin-tech start-ups like Ultracash Technologies. They have launched payments processing through sound waves and TimesofMoney. They also plan on launching their own online remittance solution called YES Remit. YES Remit will allow non-resident Indians (NRIs) to send money to any YES BANK account or other bank accounts in India.
Bill Gates once said that banking would remain essential to the world, but banks wouldn’t. Fin-tech companies are looking to take over the market. Hence, NBFCs and financial institutions need to remember is that collaboration is key. It is high time that these institutions look inwards and identify key weaknesses that these fin-techs can fill proficiently. Fin-techs and undeniably exciting. They also own the brightest and most innovative minds in the country and have enough funding. Yet taking lessons in market expertise, brand image, expensive licensing, brand name and image etc. from banks is the only way for them to progress. A combination of digitally aware customers and a symbiotic synergy between fin-techs and financial institutions is indicative of the birth of a new system of global finance.
About Signzy
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Peer to Peer (P2P) lending is revolutionizing the financial landscape by offering an alternative platform for borrowing and lending money. By directly connecting borrowers with individual lenders, it bypasses traditional financial intermediaries like banks, leading to quicker, more transparent, and often more favorable loan terms. This model not only democratizes access to credit for many underserved segments but also presents an attractive investment opportunity for individuals seeking better returns than traditional savings vehicles. As the popularity and trust in P2P lending grow, it’s poised to reshape how consumers and investors perceive and engage with the credit market.
After Securities Exchange Board of India (SEBI) released its Discussion Paper on Crowdfunding, the Reserve Bank of India (RBI) also has decided to regulate the online lending and borrowing market. While it is easy to digest the thought and attempt made by SEBI through its discussion paper considering the involvement of “securities” and “public” in the whole process of crowdfunding, the same is not the case with RBI’s consultation paper (“the paper”). One fundamental point of difference between these two regulatory bodies is that SEBI comes into the picture whenever there is involvement of “securities” and “public” but RBI does not get involved in every activity when there is “money” and “transaction” involved because there are several other enactments which deal with other aspects of transactions which take place in money. One such activity is money lending which is a State subject and it is to be governed by the individual states, leaving RBI with no role to play.
Keeping that in mind, this article will further analyze how, at several instances, RBI is trying to regulate P2P lending platforms by exceeding its jurisdiction.
Nature of P2P Lending
Firstly, one needs to understand that P2P lending is not just something to do only with start-ups but is in fact a much bigger idea than that. Here the borrower can either be an individual or a legal person requiring a loan and hence this new area has the capability to satisfy temporary monetary needs of individuals as well.
Proposed Regulations
(i) Permitted Activity: The P2P Lending Platform will only act as a facilitator for borrower and lender. Various requirements need to be met by the platform, such as:
Display of the amount of lending and borrowing on balance sheet.
No ‘financial activity’ can be carried out on its own, and compliance to The Reserve Bank of India Act, 1934 is necessary.
Assurances of any returns cannot be given/made.
Information about suitability of a lender and creditworthiness, reliability of a borrower can be given on the platform.
Advertisement will be regulated.
The platform cannot take part in the financial transaction between lender and borrower and move through banking channels between the two.
No cross-border transaction will be allowed.
(ii) Prudential Requirements: The prudential requirements will include a minimum capital of Rs 2 crore. Also, leverage ratio may be prescribed. There can also be a cap on the total investment by a Lender.
(iii) Governance Requirements: The management and operational personnel of the platform would need to be stationed within the country and a financial background of promoters and board needs to be thoroughly conducted.
(iv) Business Continuity Plan (BCP): There must be an arrangement like a ‘living will’ or alternative arrangement in the form of an agreement for continuation of its operations. The Platform must also contain risk management systems and a Business Continuity Plan. There should be a back-up for the data since the Platform acts as a custodian of cheques, agreements and other details.
(v) Customer Interface: Confidentiality of the customer data and data security would be the responsibility of the Platform. It will also need to provide to borrowers and lenders transparency, data confidentiality, minimum disclosures and proper grievance redress mechanism.
(vi) Reporting Requirements: Basic reporting requirements may be prescribed.
Dissecting the paper and analysing RBI Responsibility
1. Para 1.6 of the paper inter-alia states that:
“The platform provides the service of collecting loan repayments and doing preliminary assessment on the borrower’s creditworthiness.”
The question arises in a situation where both these functions i.e. of collecting loan repayments and doing preliminary assessment on the borrower’s creditworthiness are outsourced by the P2P platform as both of these activities though important are not core to the platform and not something that cannot be outsourced.
2. Para 1.6 of the paper further inter-alia states that:
“The fees go towards the cost of these services as well as the general business costs. The platforms do the credit scoring and make a profit from arrangement fees and not from the spread between lending and deposit rates as is the case with normal financial intermediation.”
Here RBI itself has made a fundamental classification of business activities undertaken by a financial intermediary and that of a P2P platform.
3. Para 5.4 of the paper which deals with the scope of RBI’s regulations also inter-alia state that:
“The notification can therefore specify that no entity other than a company can undertake this activity. This will render such services provided under any other organizational structure illegal. Alternatively, the other forms of structure may be regulated by the State Governments.”
RBI recognizes here that money lending activity is an activity which is not completely an unregulated space but can be regulated by the State Governments.
4. Para 4.3 of the paper which puts forth the arguments in support of regulating the activity is as follows:
Considering the significance of the online industry and the impact which it can have on the traditional banking channels/NBFC sector.
“Impact on something that RBI regulates” cannot qualify as a reason for RBI to regulate something which it is not supposes to regulate. If this rationale were to be followed, RBI should also have power to regulate the securities market considering the situation that would have been in existence for the Banks & NBFCs had there not been any securities market and Stock Exchanges.
If properly regulated, the P2P lending platforms can do this more effectively.
Making something more effective can only be done if the RBI is statutorily permitted to do so, and it is clear that is not the case.
5. For better understanding let us divide para 4.3. (iv) of the paper, because here RBI has tried to establish its jurisdiction.
Attention must be paid to the fact that the providing platform for lenders and borrowers does not fall under the functions carried on by financial institutions.
b. if his or its principal business is that of receiving of deposits under any scheme or arrangement or in any other manner, or lending in any manner
It is important to note that there is no receiving of deposits done by the platform providers.
c. As per the Act, ‘‘deposit’’ includes and shall be deemed always to have included any receipt of money by way of deposit or loan or in any other form, but does not include any amount received from an individual or a firm or an association of individuals not being a body corporate, registered under any enactment relating to money lending which is for the time being in force in any State.
The RBI Act once again has recognized that the money lending activity is to be regulated at the state level.
d. Since the borrowers and lenders brought together by a P2P platform could fall within these prohibitions, absence of regulation may lead to perpetrating an illegality.
At the end RBI has also accepted that borrowers and lenders are the persons which come under the purview of the RBI and not the platform itself. However, going by this logic, RBI should have power to regulate the money lenders also under the Money Lenders enactments of states.
In this whole clause the justification given by RBI has only shown how remote this industry is from its ambit and has failed to substantiate a solid claim for regulation.
Regulatory Space- State Governments
RBI’s own paper expresses doubts over the legality of these regulations over P2P lending platforms in Para 5.4 of the Paper, as money lending through money lenders is a state subject any regulations over P2P may need a legislative backing. Currently, it seems that the two regulators SEBI and RBI are trying to draw boundaries between themselves over crowdfunding and P2P lending.
Conclusion:
The consultation paper in its present form if developed into any regulations may provide for an easier entry for the large NBFCs to set up a P2P platform which might create an entry barrier for the new players willing to enter into this space and eventually few of these NBFCs might grab up substantial part of the future market of P2P lending by availing the early bird benefit and undertaking aggressive marketing, which eventually leads to brand recognition.
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
Signzy is a market-leading platform redefining the speed, accuracy, and experience of how financial institutions are onboarding customers and businesses – using the digital medium. The company’s award-winning no-code GO platform delivers seamless, end-to-end, and multi-channel onboarding journeys while offering customizable workflows. In addition, it gives these players access to an aggregated marketplace of 240+ bespoke APIs that can be easily added to any workflow with simple widgets.
Signzy is enabling ten million+ end customer and business onboarding every month at a success rate of 99% while reducing the speed to market from 6 months to 3-4 weeks. It works with over 240+ FIs globally, including the 4 largest banks in India, a Top 3 acquiring Bank in the US, and has a robust global partnership with Mastercard and Microsoft. The company’s product team is based out of Bengaluru and has a strong presence in Mumbai, New York, and Dubai.
