While news channels are outraged about something or the other every weeknight, here are some of the issues the media ignored in 2013
We have an aam aadmi sitting in the chief minister’s chair in Delhi, after having shocked the capital’s power-brokers as well as Mumbai’s moneybags. Everybody is talking about a new wind blowing in the country. Middle-class awakening, helped by the social media, which, when translated to a significant increase in voter turnout, upset the Delhi electoral math and threw up game-changing results. Will the story be repeated elsewhere? Is there really a new intolerance for corruption among people and a willingness to fight for their rights? Well, the 2014 elections will provide an answer. But a dispassionate analysis will show that, in 2013, the rich and powerful got away with the same old machinations and they also dictated what is fit to be published or debated at super prime time.
The Watchdog that Didn’t Bark: The Financial Crisis and the Disappearance of Investigative Journalism, recently excerpted by Columbia Journalism Review, says, “The US business press failed to investigate and hold accountable Wall Street banks and major mortgage lenders in the years leading up to the financial crisis of 2008. That’s why the crisis came as such a shock to the public and to the press itself. And that’s the news about the news.” It also mentions how “some journalists, mostly outside the mainstream, were able to produce work that in fact did reflect the radical changes overtaking the financial system while the vast majority in the mainstream did not.”
Doesn’t this ring true of India today? There are questions that nobody asks; stories that die because they are simply not followed up or buried by hysterical and motivated pursuit of select and, often inconsequential, issues. The best example, in recent times. is that report of the speeding Aston Martin that was completely destroyed, after it crashed into two cars on the road where Mukesh Ambani lives in his billion-dollar home. Initial reports said that the driver of the Aston Martin was bundled into a security car and whisked away.
Later, a driver turned up to accept responsibility for the rash driving. There was no arrest. The owners of the damaged cars suddenly acquired new and more expensive cars, which may have induced haziness in their recollection of events. This is bound to happen, when the driver is rumoured to be the son of the richest Indian.
The expensive, customised Rs4.3-crore Aston Martin belongs to Reliance Ports and Terminals, which the media reports variously say is a Reliance group company or a subsidiary of Reliance Industries Limited (RIL). In that case, shouldn’t shareholders of RIL be asking why the company owns such an expensive car, rather than the chairman who takes home over Rs200 crore annually as dividend? Sure, Reliance is a giant company and its board of directors is not expected to look into trifling expenses like a Rs4.3-crore Aston Martin. But that is not the reason why they are not asking the questions.
Reliance Ports & Terminals (RPTL) is a wholly-owned subsidiary of Reliance Industries Holding Private Limited, which owns all personal companies of Mukesh Ambani, built on large fund transfers from the publicly-listed RIL to these private entities. All this was in the public domain when brothers Anil and Mukesh were at loggerheads.
In fact, Firstpost wrote a hard-hitting article (Reliance funnels money and business to Mukesh Ambani’s private companies) about how RIL was “paying Mukesh Ambani Rs4,300 crore for bankrolling his private companies for fuel, transport, power, water and gas distribution”, in 2011. RPTL received Rs2,600 crore from RIL that year, says the Firstpost report. They have a guaranteed business from RIL and enjoy a triple AAA rating from CRISIL (whose report is silent about the peculiar funding and ownership).
In its unaudited results for June 2013, the company continues to report a net loss (carried forward) of about Rs4 crore. That figure is lower than the cost of the Aston Martin, used by the Ambanis, from money ‘funneled’ from the listed company. So what has Firstpost written this time on the Aston Martin scandal? Well, not much. You see, its parent, the TV18 group, is owned by Mukesh Ambani, in a complex deal, which saw a mammoth Rs3,500 crore injected into the loss-making media empire, to save it from imploding, about two years ago.
Let’s look at another example. The year-enders of every publication agree that Tarun Tejpal’s fall from grace was one of the biggest shockers of 2013. The fact is that Tejpal’s power did not emanate merely from his brilliance and brash confidence, but was owed, in no small measure, to the firm public conviction that he has the protection of the Congress high command.
How come Tehelka’s own investigative teams didn’t notice that the math behind their salary cheques, advertisements and spending did not add up? How did the tax authorities studiously look away, even when they saw large injection of funds from KD Singh of the Alchemist group and the shady Ponty Chadda (who was dramatically shot by his brother at their farm house) to set up an exclusive club called Pruffrock?
It wasn’t until the media-feeding frenzy that followed Tarun Tejpal’s sexual assault on a young colleague, and his subsequent arrest, that triggered a ‘probe’ by the tax authorities. Consider the irony. At a time when the government claims that our every foreign trip or purchase above Rs20,000 is tracked and reported to the taxman, the tax authorities will start investigating Tehelka’s unusual 2006 transaction now. On one day, the Tejpal family transferred 25,758 shares at a whopping premium, while Tarun Tejpal acquired 4,125 shares from Shankar Sharma and Devina Mehra of First Global, the original financiers of Tehelka, at just Rs10 each. The Indian Express says Tehelka issued such exorbitantly priced shares in 2006-07, 2007-08, 2008-09 and 2011-12 without the taxmen ever noticing these egregious deals.
From the media perspective, the bigger question is: Who were these investors and what were they paying for? Celebrities and intellectuals, who have supported Tehelka’s sting journalism, continue to sing paeans to its investigative work without asking how it enriched the Tejpal family instead of isolating it.
Finally, the more frightening story that is rarely discussed, except in a manner that makes no sense to ordinary people, is the sharp growth in bad loans or non-performing assets (NPAs) of Indian banks. The Congress-led government has allowed bad loans to balloon to a point where they are threatening the stability of the banking system. The mammoth All India Bank Employees Federation (AIBEA) has blown the whistle, named wilful defaulters and given a call to ‘stop the loot of public funds’ and start recovery of bad loans.
But the Reserve Bank of India (RBI) paints a more frightening picture. RBI’s financial stability report, released on 30th December says, “Failure of a major corporate or a major corporate group could trigger a contagion in the banking system due to exposures of a large number of banks to such corporates. The analysis shows that interconnectedness in the banking sector could cause losses due to contagion, over and above the direct losses on account of the failure of large corporate groups.” Bluntly speaking, it means that your safe fixed deposits in nationalised banks may no longer be as safe; when crisis grips the country, those too will be affected.
None of these issues is systematically pursued by India’s mainstream media (MSM). Loss-making MSM, desperate for advertising or capital infusion, do not have the luxury of editorial freedom. The most profitable media house openly puts advertising far above journalism. But the fault lies mainly with the reader, who cannot distinguish between outrage expressed on blogs and social media, and serious, unbiased investigation that requires organisation, funds and paid subscribers. Like the politicians, we get the press we deserve.
Sucheta Dalal is the managing editor of Moneylife. She was awarded the Padma Shri in 2006 for her outstanding contribution to journalism. She can be reached at [email protected]
Low margins but high return on capital
Heritage Foods, based in Hyderabad, has three...
Gold investment schemes are completely unregulated. In this scenario, the lingering question is what if the company or jeweler goes into liquidation? Will the investors’ money ever be returned?
The spurt of gold investment schemes has grabbed the attention of many. The gold investment schemes which offer interest at the end of the tenure as contribution by the company require the same to be redeemed against jewellery only. However, what is forgotten in this mad rush is that such schemes are completely unregulated. Recent public interest litigation (PIL) questioned the legality of these very gold investment schemes.
Such gold purchases schemes require the investor to put in money for say 11 months and the installment for the 12th month is put in by the company. Thus, the interest is nothing but the last installment which the investor earns. Although, such schemes claim that cash refunds will not be possible, yet in a way it is cash in the form of the 12th installment that the investor gets back. Such schemes not only ensure that the investor remains tied to the company but also that the company always has a steady inflow of money.
Although, there apparently seems to be nothing wrong in such schemes, yet the lingering question is what if the company goes into liquidation? Will the investment ever be returned? The terms of such schemes clearly mention that no cash refund is possible. The question becomes even more daunting to answer considering that such schemes are completely unregulated. According to a media report, both Securities and Exchange Board of India (SEBI) and Reserve Bank of India (RBI) have replied to a Right to Information (RTI) application stating that such schemes are not regulated by them at all. It is however, difficult to believe how the regulatory bodies could take such a stand. Here are few regulations which rebut this stand of the regulatory bodies.
Collective Investment Schemes (CIS)
The SEBI Act, 1992 gives the market regulator power to regulate the working of schemes which are in effect CIS and have the following characteristics:
The same is taken as a CIS and such schemes have to be necessarily registered with SEBI (). In the recent ruling of Maitreya Services (P.) Ltd. vs Securities and Exchange Board of India, the Securities Appellate Tribunal (SAT) stated the following:
“In my view, a typical real estate business might satisfy one or more but not all of the above four conditions. In common parlance, in a real estate business the agreement to sell is executed for purchase of the immovable property that is identified and distinguished. Right, title and interest of purchaser in the identified and distinguished immovable property is created at the time of executing the agreement to sell. This real estate business entails a contract to buy and sell immovable property rather than an investment contract involving investment with a view to receive the predetermined returns as in the schemes/plans of MSPL. Further, in real estate business the contributions might be pooled but may not be necessarily utilized for the purposes of development of the property. The property might be already identified, acquired and/or developed and thereafter the payments might be received against different stages of construction. In a real estate transaction, the purchaser gets title to the property, and he can transfer the same before getting possession. Further, he may be given participation in development by consulting him on amenities, facilities and quality of constructions etc. Thus, he gets certain amount of accessibility to the property.”
The SAT in this case held that the alleged real estate business was actually a CIS not only because it fulfilled all criteria under section 11AA of SEBI Act, 1992 but also that the end product should be identifiable and distinguished.
Under such gold investment schemes, the obligation is only on purchase of jewellery. The type of jewellery, the quality of gold purchased are never predetermined and neither identified at the beginning of a scheme. In fact a recent ruling by Bombay High Court in the case of Sandeep Badriprasad Agrawal vs Securities and Exchange Board of India and others, the High Court struck down the PIL on the ground that there was no public interest at all. It further stated that such schemes were commercial transactions between a businessman and consumer and the consumer was voluntarily taking part in the scheme.
Although, the Bombay High Court has taken a very conservative look in Sandeep Badriprasad (supra) case, and since such gold purchase schemes are not contribution of money or sharing of returns from investments, they may not be a CIS. However, the High Court could have gone further to see the real intent behind such schemes, which is nothing but “loan in substance.”
Deposit under the Companies (Acceptance of Deposit) Regulations, 1975 is defined to mean:
“means any deposit of money with, and includes any amount borrowed by, a company, XXX”
Typically what a company borrows is construed to mean loan. Further, section 45I (bb) of The Reserve Bank of India Act, 1934 defines deposit to include a loan. As a loan includes a transaction which is nothing but in substance a loan, hence a loan in substance is also to be construed as deposit within this ambit. For this reason, it is important to look into a transaction in depth to know whether the transaction is a loan in substance or not. In his Judgment in Fateh Chand Mahesri vs Akimuddin Chaudhury, Mitter J observed as follows:
“If in a transaction there is no actual advance but only a notional advance -- what a Court of law would deem to be an advance -- with a view to earn interest, the transaction would be regarded as loan for the purpose of the Act. A renewed bond where interest is capitalised would thus be a loan although at its execution no money is actually advanced. In order to determine the question whether a particular transaction amounts to a loan the substance and not the form must be looked to and the facts and circumstances attending it must be taken into consideration. If the conclusion be that it was really an interest bearing investment it would be a loan." (For more read: )
The substance of gold investment schemes is nothing but a loan. The investors under such schemes approach the investor to pay few installments and the investor on its part pays interest in the form of last installment. Thus, what the company takes up is monetary liability. Since, the amount of gold to be purchased is not fixed at the time of first deposit itself, it is only money which is earning money. Although, the companies may claim that the amount invested in put in fixed deposits to ensure safety of return, however what happens of the interest earned is anybody’s guess – i.e. deployed as to fulfill the working capital needs of the company.
The discussion’s attempt was to highlight that how under the garb of assured returns, the gold purchase schemes continue to thrive and that too unregulated. It is even more surprising to see the stand of regulatory bodies on such cases. Take the case of enactment of SEBI (CIS) Regulations, 1999. The Dave Committee suggested the enactment of the stated regulations to regulate the fast mushrooming agro bonds, plantation bonds and the investments in such bonds. The outlook of any policy maker should ideally be what the law should be rather than what the law is. If any existing scheme is such that it requires immediate attention and possible regulation, then the need has to be met. Thus, the contention that such schemes being private commercial arrangements are outside regulatory ambit is rebuttable. Hoping that the regulatory bodies do not wake from their slumber after a Saradha like incident happens to understand that such schemes are well within regulatory ambit and should be rightfully regulated.
(Nivedita Shankar is a Company Secretary and works as senior associate at Vinod Kothari & Company)