Bringing MFIs under the regulation of the Reserve Bank of India is questionable as it is not equipped with any protection mechanism and also overlooks consumer protection, experts say
The decision to bring the microfinance sector under the regulation of the Reserve Bank of India (RBI) has raised concerns among industry experts, who feel that the draft microfinance bill ignores safeguard mechanisms and consumer protection.
According to the draft of the Microfinance Institutions (Development and Regulation) Bill 2011 adopted by the government on 6th June, the RBI will regulate the Indian microfinance sector. In the new bill, all the microfinance institutions (MFIs) including non-banking finance companies (NBFCs), before commencing their businesses have to register with the RBI.
Ramesh Arunachalam, who has authored a recently released compendium on the history and growth of the industry, told Moneylife, "The proposed draft micro-finance bill is very welcome as the RBI is the legitimate regulator of the larger financial sector. From that perspective I am very happy and have argued the same in my recently released book. However, I am concerned that the bill, which leaves regulation of several hundred MFIs to the RBI, does so without necessary safeguard mechanisms. A second concern in the bill is that it does not look at consumer protection and/or consumer redressal in any significant manner." Mr Arunachalam's book is title "The Journey of Indian Microfinance: Lessons for the Future".
Mr Arunachalam said, "The department of non-bank supervision (DNBS), at the RBI, was a mute spectator to what happened between April 2008 and March 2010 when top five Andhra Pradesh headquartered NBFCs, MFIs, filing papers with DNBS, added 9.59 million clients and increased their gross loan portfolio by $2 billion. This is equivalent to each of those five NBFCs and MFIs, adding a gross loan portfolio of Rs78.55 crore per month, which continued for two years. It is important to note that the department of non-bank supervision is supposed to supervise every NBFC that has a loan portfolio of over Rs100 crore closely and each of these five MFIs were adding almost 78% of that threshold value (of Rs100 crore portfolio) every month for the two years. This is a huge task by any standards. Clearly, these are the trends that should have grabbed the attention of anyone, let alone the regulators/supervisors but, for some reason, they did not."
Critics point to a few worrisome provisions in the Bill, like the overlap between NBFCs and MFIs, which continues in this Bill. "Regrettably, the overlap between NBFCs and MFIs remains under the Bill. It would be most illogical to have a company carrying out microfinance business being regulated both as an NBFC and as an MFI. However, clause 11 (3) and (4) clearly suggest that such overlap will continue-which is a regrettable waste of regulatory attention. In fact, the Bill mandates that an MFI that becomes systematically important (based on a number of borrowers-the number to be notified by the RBI) will have to convert itself into a company. Once it converts, it obviously becomes an NBFC also," writes Vinod Kothari, on the website microfinancefocus.com.
The Bill has also mentioned the concept of 'thrift' services, which is defined in clause 2 (p) as collection of time deposits. "This seems to suggest that the RBI is inclined to permit MFIs to accept deposits too-a long-felt need. There is a mention in the marginal notes below section 14 about thrift services, but it seems that the provision actually fell through, somewhere along the way, as there is no substantive provision in the law about thrift acceptance," Mr Kothari stated.
Mr Arunachalam added, "We certainly require a microfinance law to provide legitimacy to the microfinance sector. Rather than being a paper tiger, the Bill should have the teeth and a mechanism to ensure orderly growth of the sector and for this the most critical aspect is to look at the supervisory capacity of the RBI and evaluate it to see what needs to be done to ensure ground level implementation."
Suddenly many politicians are accusing public-spirited citizens of being a threat to democracy—like a thief who, chased by the victim, cries for help. In fact, these citizens are a threat to these reckless political leaders who have trampled all democratic norms under their feet
The idea of 'democracy' has gone awry in modern India. The spontaneity and universality of the people's war cry against corruption in the higher echelons of government has scared not only those in the UPA government which is in power, but even those in the opposition smarting to return to power sooner than later. They are all set to unite and will flock together whenever any Lokpal shot is fired. The recent conclave of all political parties called by the government to discuss the draft Lokpal Bill, has given us enough insight into the mindset of India's political class.
Earlier, Congress spokesperson Manish Tiwari had called civil society activists like Anna Hazare 'un-elected tyrants', thereby suggesting that tyranny is a function and prerogative of the 'elected'. It is like a thief who, chased by the victim, cries for help and expects onlookers to save him and punish the victim. His mentors in the government, Pranab Mukherjee, Kapil Sibal, P Chidambaram and many more, readily lent their voices to this anti-civil society chorus.
Later, after the all-party meet in New Delhi, Lalu Prasad Yadav, in his idiosyncratic style, ridiculed peaceful mass movements by civil society activists and called them "a threat to democracy". Almost all political parties seem to empathise with this notion of citizens being a threat to democracy-in fact a threat to these political leaders! If peaceful mass movements are a threat to democracy, what better democratic method would they suggest, so the voice of the people is heard and is heeded by the government?
Are they really worried about 'democracy'? Or is their very notion of democracy different from what people hold it to be-a government of the people, for the people, by the people? The fears and concerns expressed by our politicians, however, betray their skewed conceptual interpretation of the great idea of democracy. They now assume themselves to be embodiments of 'democracy'. This essentially connotes a privileged group of parties and individuals, who are off the people, force the people and buy the people to perpetuate their exploitation.
An election manifesto is a written undertaking that each political party elaborately publicises, committing themselves in the service of the people, assuring them with specific plans and projects to be undertaken during the tenure of the democratically elected government. One would wish these manifestos served as reference points and constant reminders for the ruling party, with a periodic performance audit posted in the public domain. Sadly though, these undertakings are dumped as garbage soon after the election, as all leaders and parties go off the people, to force the good people and to buy stooges to pursue their undeclared aims.
Selectively employing the Chanakya stratagems of 'saam' (persuasion), 'daam' (bribe), 'danda' (coercion), and 'bhed' (divide), our leaders have mastered the art of ruling by creating safe zones and sanctuaries for unhindered exploitation of public resources. Our politicians are highly innovative in crafting and selling dreams to the people, hungry and eager to alleviate their suffering. They deftly entice and win over the poorest of the poor by doling out subsidies, caste-based reservations and occasional freebies that serve to perpetuate their dependence on the political masters. It is from poverty that our politicians earn their fortune in the form of votes and even notes that are easily siphoned from the subsidies and quotas. "Long live poverty; we will keep you alive" could well be the political slogan-if truth were harmless.
This is best explained by the government's stubborn stand to keep the most powerful people out of the ambit of the Lokpal-the prime minister, judges of the high courts and the supreme court, and members of parliament (MPs). This is in spite of the fact that there are more than 160 sitting MPs in the current Lok Sabha against whom there are cases registered in the court of law, many of them facing multiple charges for even such serious crimes like murder. MPs and at least one minister are already in jail, and more could be headed there soon.
The immunity provided to MPs for their conduct within parliament was intended to protect and encourage people's representatives to serve people's causes without fear or worry, and not to get away with misdeeds, like in the JMM bribery case, or 'questions for payments', or the murky moves to save the Manmohan Singh government in the vote on the confidence motion during UPA-1 when MPs waved bundles of notes in the well of the House. The presiding officers (the speaker in the Lok Sabha, and the chairman of the Rajya Sabha), they say, are empowered to deal with delinquent members. There have been innumerable cases of gross misconduct by MPs, but no member has ever been dismissed from membership, even though some should have been convicted and jailed. Yet, they do not want them to be within the jurisdiction of the Lokpal. Why?
Today, as ministers, MPs and some senior bureaucrats await trial on the serious charge of embezzlement, there appears no end to the deluge of scams that continues unabated. With Maran also now almost set on his way to Tihar, the UPA government appears to be held by sand walls which threaten to crumble and wither in the clammy humid monsoon of scams. In such a vivid scenario how can you think of 'corruption' in high places without ministers, MPs, bureaucrats and judges? Willing accomplices and patrons in positions of power are handy for bureaucrats and corporate entrepreneurs to manoeuvre government decisions in their favour by circumventing rules and procedures.
To build and foster a conducive system, it is necessary for ministers and bureaucrats to retain control, direct or indirect, over the investigating agencies like the Central Bureau of Investigation (CBI) and, as far as possible, over the so-called autonomous bodies like the Central Vigilance Commission (CVC), Central Information Commission (CIC), Election Commission (EC), other national commissions and even the judiciary through a convergence of common interests, where everyone gains-materially or otherwise-on a reciprocal basis, except the state and its people. And the nexus flourishes and proliferates. Of course, there have been individuals of great character and verve who, as heads of such bodies, meant business and refused to give in to political or bureaucratic pressures and restored public faith in institutions like the offices of the CEC and CAG. These are rare examples though.
An analysis of how some key posts are filled in the top echelons further clears doubts, if there remain any. The first defect lies in the selection procedure for autonomous bodies. For example, a selection panel comprising the prime minister, home minister and leader of the opposition in the Lok Sabha selected PJ Thomas to be the chief vigilance commissioner. Even though Sushma Swaraj, the leader of the opposition, opposed Thomas' appointment due to his tainted past record, no legal impropriety was committed in this appointment because it was upheld by a majority of 2:1. Now, in a selection panel where the prime minister and his own home minister are members, the third member becomes redundant because it is highly improbable that the two will ever vote against each other.
Dr Ketan Desai, the former head of the Medical Council of India, was caught in April 2010 for taking a bribe of Rs2 crore to grant government recognition to a private medical college. Much earlier, he had been convicted by the Delhi High Court. Yet, on the strength of hefty cash packets, he rose to hold this top position in the medical profession. A former chief justice of India, KG Balakrishnan, has been in the news for some time for all the wrong reasons, most unbecoming of an honourable man in that position. Yet, he was appointed chairman of the National Human Rights Commission.
The process of dealing with a corrupt judge of the high court or the supreme court is so complex that there has been only one impeachment in India till date and that too in 1949, before the Constitution became effective. The second impeachment motion against judge V Ramaswami failed in 1993 because the then ruling Congress (205 MPs) abstained. Naturally, shamelessly unfazed by all the allegations and indictments, judges like PB Dinakaran (chief justice, Sikkim High Court), Soumitra Sen (Calcutta High Court) and many more, arrogantly go on dispensing 'justice' in their high positions.
Even as the crime graph in general moves upwards, it is still feasible to put petty criminals behind bars. But it is the big fish that has proved too slippery for the law, all through. From Bofors to fodder to hawala and the series of scams today-only preliminaries are played. No powerful politician, bureaucrat or judge has been finally convicted (having exhausted appeals at the supreme court).
The system has proved power-friendly and at a time when the talk of an effective Lokpal is gaining momentum, fears of those in power are quite understandable. Political parties have moved away from nationalistic orientation and metamorphosed into cliques of vested interests, like promoting dynastic power centres. Coteries of henchmen have mushroomed in almost all parties. These henchmen are mostly local goons who have embedded themselves between the leader and the people, insulating the former from the latter. Soon after the elections, leaders are quick to snap their public contact and interact with the people through their henchmen whose swagger signals when and whether you will have the Netaji's darshan.
Gimmicks like Rahul Gandhi, the prince charming of Indian politics, dining at a Dalit's home or stage-managed padyatras and public display of a pseudo-frugal lifestyle are carefully orchestrated to create a mass impact even as his oratory skills and leadership prowess still remain hidden. Even if he fails to leave behind any lasting impact, his style leaves people largely amused. Organisations and parties bereft of ideas and ideologues will be likewise forced to innovate, borrow and stage-perform to entertain people. But how long will this drama go on? The political environment in India has become highly polluted and all parties need to reorient and readjust to ground realities.
Institutionalising a powerful, independent Lokpal will help the country to prosper faster, making development people-friendly. The ruling clique has drifted far away from the people and a course correction is urgently needed. The sooner they change their bearings and perception, the better it will be for them as well as the country.
(The writer is a military veteran who commanded an Infantry battalion with many successes in counter-terrorist operations. He was also actively involved in numerous high-risk operations as second-in-command of the elite 51 Special Action Group of the National Security Guard (NSG). He conducts leadership training and is the author of two bestsellers on leadership development that have also been translated into foreign languages).
Senior advocate Fali S Nariman, appearing for the Sahara group, said that Sahara was not a listed company and only the government has jurisdiction over it and not market regulator SEBI
New Delhi: The Supreme Court today declined the Sahara Group's plea to issue a notice to the government in connection to a dispute with market regulator Securities and Exchange Board of India (SEBI), which had directed the firm to return funds raised from investors under an OFCD scheme along with 15% interest, reports PTI.
"We do not want Union of India (government) to come at this stage. Let them (SEBI) come and clarify. We have our own query on it," said the bench headed by the Chief Justice SH Kapadia.
During today's proceedings, senior advocate Fali S Nariman, appearing for the Sahara group, said that Sahara was not a listed company and only the government has jurisdiction over it and not market regulator SEBI.
"We (Sahara) are not a listed company and the government (ministry of corporate affairs) has jurisdiction over us. If there is any listed company, then SEBI has jurisdiction," he said, asking the bench to issue a notice to the government seeking a clarification of its stance.
Nariman said that despite the matter was pending in the court, SEBI issued fresh cause notice to the group and passed the order.
On it, the bench said, "We have asked the SEBI to explain it. We wanted to know that from where you got this (concept of) OFCD."
The Supreme Court further said that it had asked SEBI as "We wanted investors to be protected."
The bench later the adjourned the matter for a week on the request made by SEBI's counsel P Venugopal. SEBI submitted that Sahara group has filed some documents before it and the regulator wanted to go through it.
In November, SEBI had indicated that two Sahara Group firms—Sahara India Real Estate Corporation and Sahara Housing Investment Corporation—were raising funds from the public through an optionally fully convertible debentures (OFCD) scheme without conforming to prudent disclosure and other investor protection norms.
Subsequently, Sahara Group had contested SEBI's authority to look into the issue in the Supreme Court, asserting that it was a privately held company and not listed and therefore, was under the jurisdiction of the ministry of corporate affairs.
Earlier, on 27th June, a vacation bench of the apex court, comprising justices P Sathasivam and AK Patnaik had declined to hear the plea of Sahara India Real Estate Corp and asked to list it before the chief justice which has been hearing the case.
Following the orders of the Supreme Court, SEBI had on 23rd June passed an order and directed the two Sahara group firms—Sahara India Real Estate Corporation and Sahara Housing Investment Corporation—to refund the money raised by them in OFCD citing violation of regulatory norms.
As per SEBI's order, the two companies and its promoter Subrata Roy Sahara, and the directors-Vandana Bhargava, Ravi Shankar Dubey and Ashok Roy Choudhary—jointly and severally, shall refund the money collected, the order said.
Besides, the regulator has also restrained the entities from accessing the securities market for raising funds, till the time payments are made to the satisfaction of the SEBI.
As per the order of the 12th May order of the apex court, the order of the SEBI order was not to take effect till its further order.
During the last hearing on 12th May, the apex court had asked SEBI to proceed with its probe into Sahara group's OFCD scheme by observing that investors may not have any knowledge about these products and might feel cheated like in the Harshad Mehta scam.
The court had also allowed Allahabad High Court to proceed with its hearing, where the Sahara group has challenged SEBI's direction to give details of its investors.
The court, during the proceeding, had also sought to know from Sahara the law under which it was running the OFCD schemes.
Though Sahara's counsel tried to explain the nuances of the OFCD scheme, the apex court was not satisfied and said: "Till today, I do not know what is OFCD. How can some investors know? We want SEBI to decide."
"We want to know on what basis you were calling for investment in OFCD," the bench asked.
The bench mentioned that the scheme is meant for rural people and they were not aware of it.
"Investors are not aware of OFCD. At the end of day, they would come and say that they were cheated... You know Harshad Mehta's case, same modus operandi was there. Investors were not aware of the scheme," the bench had said.
The court had repeatedly asked the Sahara Group to make available their brochure and other relevant information which they were giving to investors through their agents to find out the nature of the OFCD scheme.
The bench appeared unconvinced with the logic of the Sahara Group firms that OFCD schemes don't come under the purview of the SEBI Act.
OFCDs are a type of bond with the option to fully convert them into equity at a rate decided by the company.