Regulations
SEBI internal study finds consent order system completely arbitrary

An internal study commissioned by the new SEBI chairman found what Moneylife alone has been saying: total subjectivity in the way whole-time members have been passing consent orders

Among the many things that UK Sinha, Chairman of the Securities and Exchange Board of India (SEBI) has thought fit to report in his 13-page letter to the Union finance secretary (dated 8th July), is a plan to review the consent order system. Under SEBI's current consent order system, those charged with specific violations are let off by paying a settlement charge without admitting or denying guilt.

The consent order system is another debatable import from the US markets. The logic was that monetary penalties are the biggest deterrents to financial crimes and when coupled with the embarrassment of the charges being published on the regulators' website, this would act as a sufficient check. India has perverted the system in two ways. First, there was no attempt to link the seriousness of charges to the amount paid. Worse, some wrongdoers were repeatedly let off for the same violations with either paltry penalties under the consent terms or a mere "administrative warning".

Moneylife has exposed these dubious 'administrative warnings', which find no place in the SEBI Act or its regulations. In the past three years, under the chairmanship of CB Bhave, these have been freely issued by SEBI's whole-time members (WTMs). SEBI has not bothered to answer our questions regarding the issue of these orders, although a SEBI director has promised to raise them at the regulators' board in the near future. Meanwhile, let's look at Mr UK Sinha's plans. We reproduce the section verbatim: "for the first time in the history of SEBI, I asked a research study to be done analyzing the orders passed by Whole Time Members (WTMs) and Adjudicating Officers.

"We found that in cases of orders passed by WTMs in similar type of cases, while one member had passed orders for suspension in 8% of the cases, another one has done it in 0.5% of the cases and the third member has passed suspension in 25% of the cases.

"Similarly, debarment order has been passed in 50% of the cases by one member, 75% of the cases by the second member and 0.4% of the cases by the third member. The quantum of suspension orders passed also varies vastly from member to member. In quantum of debarment orders, it varies from 50% to 1/3rd to 1/6th when the period of debarment of 2 to 5 years is calculated.

"In cases of corporates making misleading announcements, debarment has varied from 6 months to 2 years to 5 years.

"Similarly in orders passed by adjudicating officers, there is a wide variation. For non-compliance of summons cases, the amount has varied from Rs1 lakh to Rs20 lakh. Mr Sinha points out that, "It must be underscored, however, that different cases may have different facts and circumstances and a uniform slab cannot be prescribed but a wide variation unaccompanied by sufficient reasons gives the impressions to the outside world about arbitrariness and subjectivity. I have emphasized that the same should be avoided and quasi-judicial officers should be sensitive about the outcome and the need to maintain equal treatment in similar cases. Any good enforcement action must have some element of predictability with regard to similar cases based on quantum and degree of offence".

Mr Sinha goes on to say that there is a "prevailing perception" that consent orders passed by SEBI are "subjective" and "provide an escape route to offenders and the quality of orders is not high and is not transparent".

Well, Moneylife has certainly been saying this, and we have been alone in this regard. Mr Sinha then says, "while I have publicly defended the decisions of consent proceedings which are legal and as per law… I do feel that there is a need to bring in uniformity and consistency." He has advised SEBI executives to "have more clarity on when consent orders can be passed or cannot be passed, how to improve the quality of orders, how to improve drafting and to provide training to our officers so that the quality of their orders can improve". He also says that while his efforts have been appreciated by some of the staff members, his views and study may not have "gone well with everybody in the organization".
 
Moneylife has written regularly on the arbitrariness of consent orders and administrative warnings, even as the rest of the media has glossed over this, while singing praises of the previous regime. 

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COMMENTS

Test

5 years ago

http://wikileaks.org/cable/2009/03/09MUM...

MUMBAI BUSINESS COMMUNITY RAISES CHALLENGES TO IMPROVING
CORPORATE GOVERNANCE IN THE WAKE OF THE SATYAM SCANDAL

Dr Vaibhav Dhoka

5 years ago

CONSENT orders are sham.It is levying PENALTY at 99.99% discount.In no where in the universe such discount is available.Consent orders have STINK of corruption.Therefore everyone must support ANNA for JANLOKPAL when it will also be flooded with complaints against SEBI by investors.SEBI should come out with white paper on Investors Grievance Forum the money spent on it and how efficiently it handled Investors grievance/or helped Brokers?

Nagesh KiniFCA

5 years ago

All consent orders, settlements and debarments, administrative warnings etc by any name should be reopened and examined de novo. After all SEBI is a Regulator and not a Settlement Commission. Now is the time for the watch dog to bite real hard and not merely growl.
The consents/settlements meant to dispense speedy remedies have been grossly abused.
To ensure that it means business and convey the message depending upon the severity of the irregularity the maximum penalty laid down has to be imposed not on the legal entities but the Directors of the offenders in their personal capacities beginning with ADA, may be debarment for life.
The Hindu Business Line reports that the there has been no response to MCA queries seekingt information from RIL and SEBI on subsidiarization and de-subsidiarization of 123 companies. Since the RIL accounts for 2010-11 are signed, sealed and delivered the Statutory Auditors and Co. Secretaries who have signed compliance Reports ought to be brought in the loop and their regulating Institutes directed to issue notices for their members' lapses.
Our offenders with big names are getting away lightly. When SEC can fine PwC $25m in Satyam what stops SEBI?

Atul

5 years ago

In terms of the original, High Powered Committee consisting of three independent persons was to decide on consent terms.

But in practise, for the reasons best known to SEBI Board, this High Powered Committee is now termed as High Powered Advisory Committee and the consent terms are worked by SEBI officials only leading to the arbitrariness/ arms twisting methods in its implementation as now observed by Moneylife.

In the public interest and to give transparency, SEBI should be made to periodically publish reports giving various information which Moneylife can suggest.

Implementation safeguards against notorious agents are an imperative for the proposed microfinance bill

While macroeconomic changes are essential to iron out the chinks inherent in the industry, a close look is needed to look at the ground realities and the current agent-led decentralised microfinance model

As policymakers are trying to solve the Indian microfinance regulatory puzzle, let us look at a specific field-level problem that led to the present microfinance crisis and ask the question as to how the bill will prevent such occurrences in the future.

Let me start with the 'agent' led decentralised microfinance model. Many people have brought up the aspect of broker agents driving Indian microfinance but their (loud) voices seem to have fallen on deaf years. Several stakeholders including regulators have not even taken cognisance of this (serious) agent phenomenon. Further, more often than not, industry experts describe any such aspect brought up as just an aberration. They are however sadly mistaken, as agents seem to be becoming more of the rule than the exception, based on what I have been observing at the ground level since 2005/6.

The attached emails (Dated January 2011), in circulation among MFIs, inadvertently reached the mail box of this writer and they clearly articulate what I have been saying all along about the increasingly widespread use of agents in Indian microfinance, perhaps to turbo-charge growth, create efficiencies, increase profits and the like.

As the first email suggests, this seems to be the story of (agent/ring leader) Ms Eshwari of Kulithalai in Tamil Nadu. At one level it appears to explain the context in which Ms Eshwari operated. In the meantime, it is also indicative of her representation to the district administration that she is being coerced (by MFIs) into making repayments. The 2nd email is a clear admission by MFIs about the havoc being caused by agents on the ground all over Tamil Nadu.



I keep hearing of other notorious members in Vellore District in Tamil Nadu (where the MFIs have run into a lot of problems recently)-Jayalakshmi and Nagalaksmi-who also double up as agents. I can provide similar stories from other states as well. Further, other stakeholders like N Srinivasan (Author of State of The Sector Report) and Micro-finance Focus (MF) have also made a mention of these agents. Mr. Srinivasan noted in the State of the Sectori  Report (2010),

"As in the example from Karnataka, MFIs in other states too have tended to concentrate around the same towns and peripheries, serving the same set of households. The deluge of availability of loans from several institutions has led to multiple borrowing and, in some cases, excessive debt. The pressure to achieve performance targets and breakeven within a short period of time has pushed the relatively new staff of MFIs to look to centre leaders who are in the know of MFI operations. These centre leaders have become a critical rallying point and are today termed as 'ring leaders: In state after state (Madhya Pradesh, Rajasthan, Orissa, West Bengal, Andhra Pradesh, Karnataka and Tamil Nadu), stories abound of how ring leaders informally register new customers promising loans for a fee. Most new MFIs setting up operations in such areas approach these centre leaders as an easy and natural entry point. This provides the necessary influence to the ring leaders to deliver on the promise made to several registrants for loans. The centre leaders are also in a position to obtain loans in the name of others, advantageously using the relative unfamiliarity of new field staff and new MFIs. The resultant ghost loans have a tendency towards default. The clients that pay the registration fee in order to get a loan feel justified in holding up repayments. This behaviour has an adverse effect on repayment rates and necessitates stronger recovery efforts. Some MFIs (including those in the list of top 10) had to wind down operations in some pockets of states such as West Bengal, Chhattisgarh, Rajasthan and Maharashtra without making an attempt to consolidate."

Likewise, Micro-finance Focus writes (Dec 22, 2010),   

"Moulding business models to meet their growth targets, some of the largest microfinance institutions are using group leaders as interface agents between borrowers and loan officers. Popularly called as 'Ring Leaders', these agents are responsible for conducting meetings in their premises and collecting weekly repayments from the borrowers... Borrowers of microfinance institutions in townships of Mehndipatnam, Begumpet and Dilkhushnagar of Hyderabad (capital of Andhra Pradesh) told the microfinance focus team that now these ring leaders have become a major cause of distress for them. The principle of 'Know Your Customer' is one of the keystones around which microfinance practices have been evolved. However, with the introduction of the 'ring leaders' into the process, it seems that this essential requirement of lending is being compromised. The end borrowers interact with the ring leaders who maintain their passbooks and repayments. The loan officers, in turn, collect these from the ring leaders, reducing the amount of their interaction with the borrowers to almost neglible levels. Another disturbing practice which came to light was the charging of 'membership fees' by the ring leaders from the borrowers to join an MFI group. Ranging in the amounts of Rs300-Rs500, these membership fees are over and above the interest paid to service the loan. This fee was pocketed entirely by the ring leaders and is their 'commission' for allowing a prospective borrower to be part of the group. "Ring leaders have become a major cause of distress for us but as we need money and don't have any better sources, we give in to their demands," one of the borrowers said." As Microfinance Focus further writes, "in the last few years of unbridled growth, the MFIs have been guilty of compromising on processes to achieve their targets. However, given the current circumstances where the entire microfinance sector is being subjected to a minute regulatory examination, it is high time that the MFIs undertake a thorough introspection and attempt to correct the flaws which have crept into their processes."ii

Ok, so where does all of this lead us? As we go along, we are bound to see the agent problem cropping up in more places and states. Therefore, it is about time that we stopped pretending that there are no agents. The truth of the matter is that there are large numbers of agents who have been (and are perhaps being) used to turbo charge the growth of microfinance and they are turning into Frankenstein's monsters created by the MFIs themselves and they now need access to more and more loans to make their existing repayments. It is much like the famous Eaglesiii  song, "Hotel California" which goes 'You can check out any time you like, but you can never leave'—the same applies to most MFIs today. That is why you are seeing the microfinance crisis in states (other than Andhra Pradesh) like Tamil Nadu, as the earlier email suggests.

In fact, I see agents as the major cause of the present Indian microfinance crisis and I strongly feel that the proposed bill should prevent their nefarious operations as otherwise, the end user clients will never be known. In my opinion, the agents are all pervading and powerful and they get clients for MFIs and they can make clients disappear from an MFI's horizon and put these clients onto another set of MFIs. They (can) stop client repayments. They indulge in coercive collective practices as many of them have backing of thugs and criminals (locally). Once created by the MFIs in search of fast growth and greater efficiency, they are now turning out to be the bane of Indian microfinance and yet, we have many stakeholders pretending that agents do not exist. Therefore, it is about time that Indian microfinance wakes up and deals with them in a swift and strong manner and I hope the proposed bill will take the lead in ensuring this.

Without question, the bill must tackle the agent problem directly by building appropriate safeguards in its implementation. While it is tempting to postpone implementation arrangements, the success of the bill as a legal framework will fully depend on the implementation arrangements (to be employed) and therefore, it needs to be addressed in a transparent manner, right now. Otherwise, the bill will merely remain a document of good intentions and that takes us right back to square one. Hence, adopting a hands-off approach to the rapidly prevalent agent problem is not an appropriate option at all and it is perhaps akin to waiting for a time bomb to explode. I really hope that this is something that the various authorities, involved in drafting the microfinance bill, will not permit.


  iSource: Quoted from Microfinance in India State of the Sector Report, 2010, by N. Srinivasan, Sage Publications
  iiSource: Quoted from http://www.microfinancefocus.com/content/big-league-microfinance-institutions-using-group-leaders-agents
  iiiRock band

(The writer has over two decades of grassroots and institutional experience in rural finance, MSME development, agriculture and rural livelihood systems, rural/urban development and urban poverty alleviation/governance. He has worked extensively in Asia, Africa, North America and Europe with a wide range of stakeholders, from the private sector and academia to governments).
 

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SC extends stay on Hassan Ali’s release on bail

A bench headed by justice Altamas Kabir passed the order after hearing for two hours arguments put forth by additional solicitor general Haren Rawal, who on behalf of Enforcement Directorate, challenged the bail granted to Mr Khan by the Bombay High Court about a week back

New Delhi: The Supreme Court today extended till 26th August the stay on the bail granted to Pune stud farm owner Hassan Ali Khan, who was arrested in March on charges of money laundering, reports PTI.

A bench headed by justice Altamas Kabir passed the order after hearing for two hours arguments put forth by additional solicitor general (ASG) Haren Rawal, who on behalf of Enforcement Directorate (ED), challenged the bail granted to Mr Khan by the Bombay High Court about a week back.

The apex court fixed Wednesday for further hearing on the matter.

Earlier, in the day, the apex court expressed its ire over non-appearance of the government lawyer when the matter came up for hearing. It threatened to vacate the stay after Mr Rawal failed to appear before it.

"We don't want any such thing. You are playing with the life and liberty of a person. This is unfair on your part to obtain a stay and then cite some excuses," justice Kabir said when told that Mr Rawal was busy in another court.

The apex court said it was not a mere question of ASG but even the attorney general GE Vahanvati was present on 16th August in a connected case and hence one of them should have been present in the court.

Upset over the senior law officer's absence, the bench also rejected the profuse apology tendered by the junior government counsel.

"Apologies will not do. We will be forced to recall our order if your law officer (Haren Rawal) is not present here by 12:30pm," the bench warned.

The three-judge bench had on 16th August stayed Mr Khan's release on bail granted by the Bombay High Court.

The high court had granted bail to 53-year-old Mr Khan on 12th August, observing that the agency had failed to show that the wealth amassed by him was proceeds of crime.

"The documents reveal that Hassan Ali Khan has huge funds in his accounts to the extent of $800 million with a bank outside India," the Enforcement Directorate had said.

The agency, in its petition, alleged that various transactions led by Mr Khan through his foreign bank accounts reveal his association with international arms dealer Adnan Khashoggi.

"The documents point to deep linkage between Mr Khan and Mr Khashoggi," the agency said while pressing for stay on Bombay High Court's order granting bail to Mr Khan.

The ED had said that Mr Khan and his arrested accomplice Kashinath Tapuriah had deep links with bank officials in the US, Switzerland, Singapore, UAE and other countries.

It had alleged that Mr Khan has links with Mr Khashoggi, and in 2003, $300 million was apparently received by him from the arms dealer from weapon sales.

It had also said the accused had created a complex maze of structures and transactions to hide the true source of funds and frustrate the investigations.

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