The NSEL fiasco is part of a wider problem: poor financial market regulations across capital market, insurance and banking. The government is apparently considering a new regulation for commodity markets. Why wasn’t this a given higher priority than arming a corrupt and inefficient SEBI bureaucracy with draconian powers?

A massive Silver Jubilee celebration has been followed by a quick ordinance, with minimal public discussion, to give the Securities and Exchange Board of India (SEBI) sweeping new powers. Of these, the only area where some action was urgently required is on the clarity to regulate collective investment schemes (CIS). The ordinance does that and much more. It allows SEBI to decide what is a CIS, especially if it is a money pool of Rs100 crore or more.

It is now empowered to call for information (retrospectively from March 1998) as well as search and seizure, criminal prosecution, attachment of assets and disgorgement of wrongful gains. The ordinance also validates SEBI’s ‘Consent Order’ regime, which is a matter of litigation.

Was the regulator really hobbled by an absence of these powers? Will its extensive new mandate benefit stakeholders or merely create a larger bureaucracy to harass legitimate businesses? Time will tell how SEBI wields its new powers, but a look at how it had acquitted itself so far, only causes concern and discomfort.

Stock market regulation, registration of intermediaries as well as the automation of trading with settlement guarantees was seen as such a big deal that every regulator after 1992, was modelled on SEBI. But wouldn’t you think that a government as beleaguered as the United Progressive Alliance (UPA-2) would call for clear, unambiguous assessment of SEBI’s achievements before rushing ahead with an ordinance that grants it sweeping powers?

In fact, the current action seems just over a year old—starting from the time Pranab Mukherjee went over to the Rashtrapati Bhavan. Until then, the thinking was different. In March 2011, the Financial Sector Legislative Reforms Commission (FSLRC) was set up to review legal and institutional structures of the financial sector. According to Wikipedia, this was because “piecemeal amendments have generated unintended outcomes including regulatory gaps, overlaps, inconsistencies and regulatory arbitrage.”

FSLRC submitted its report in March 2013 and one of its key recommendations was the setting up of a Unified Financial Authority (UFA). However, it turns out that FSLRC itself may have been an exercise in futility and a waste of taxpayers’ money. Each of its key members—YH Malegam (well-known chartered accountant and director on the Reserve Bank of India board for over 19 years), Kishori J Udeshi (ex-RBI deputy governor), PJ Nayak (ex-bureaucrat and former chief of Axis Bank and JR Varma (academic)—voiced formal dissent against its core recommendations. FSLRC itself made no attempt to engage with core stakeholders—the consumers of financial services—who have been getting a raw deal under every financial regulator. Consider these issues.

•  After 25 years of its existence, the number of retail investors has shrunk from 20 million to 8 million (D Swarup Committee report) and this includes mutual fund investors;

•  RBI has not been able to make any headway in reaching over 300 million unbanked Indians. In fact, it has to share the responsibility for viewing the microfinance sector through rose-tinted glasses even as their aggressive sales and usurious interest rates pushed people to suicide and bankruptcy, nearly killing this business segment.

•  The creation of an insurance regulator only encouraged rampant mis-selling of equity-linked mutual fund products; the regulator did nothing, until three years ago. RBI and the Insurance Regulation and Development Authority (IRDA) are yet to initiate action against misleading advertisements and rampant mis-selling of insurance by banks. Result: India remains one of the most under-insured countries in the world.

•   The pension regulator has made no headway because of its foolish decision not to compensate distributors, because the pension Bill has yet to be passed and there is no clarity on its regulatory powers.

The FSLRC report didn’t even touch on these issues. Since the government chose the ordinance route to make SEBI more powerful, one assumes that the FSLRC report has been dumped. Otherwise, the ordinance should have been preceded by a transparent assessment of whether SEBI was even using its existing powers of regulation and supervision effectively. In our experience, SEBI’s performance is especially lacking in the area of grievance redress and is the single biggest reason for retail investors’ exit.

Let’s turn to regulatory and statutory changes that were probably more urgent than the ordinance to empower SEBI. The consequence of regulatory confusion was evident in the blind panic in connection with the National Spot Exchange Ltd (NSEL), which was asked to suspend all its contracts (except e-contracts). NSEL must be hauled up for wrongdoing, if any, but nobody seems to realise that the buck, in this case, should stop right at the top—with the ministry of consumer affairs (M-Con), which allowed a commodity spot exchange to be set up with just a government notification.

The M-Con, with no experience of regulating a market (or consumer issues for that matter), triggered chaos with an order that virtually shut down an exchange overnight. This, after it sat on concerns about NSEL’s ready-forward trades (conducted openly and transparently by the bourse), for more than a year. When NSEL suspended all contracts other than e-series, and decided to merge settlements, it triggered a panic. The shares of Financial Technologies, NSEL’s promoter, crashed over 60% and those of the Multi Commodity Exchange (MCX) dropped 20%.

Will someone tell us who at M-Con took the decision to permit and regulate a spot exchange in commodities? Was there any attempt to create a framework or infrastructure to regulate the bourse? Why weren’t spot exchanges started under the Forward Markets Commission, which regulates commodity trading? According to media reports, the government is now considering a new regulation for commodity markets—if this is true, why wasn’t this a given higher priority than the SEBI ordinance?

Then there is the Companies Bill 2012, which has been cleared by the Lok Sabha seven months ago, but remains in suspended animation because the Rajya Sabha has yet to clear it. Has the government forgotten the Bill? Or is the young minister of corporate affairs (M-Corp), Sachin Pilot, unable to make his voice heard? Sources say that it is deliberately, and repeatedly, sidelined, but it is not clear why.

Could it be that SEBI is considered a better regulator because M-Corp failed to check the rampant fund-raising by Sahara, Saradha and a host of other collective investment and chain-money schemes? If yes, then there is still no clarity about whether the new SEBI ordinance will also cover chain marketing or multi-level marketing (MLM) companies (MMM, floated by a Russian citizen, QNet by a Malaysian, Pearls or PACL and hundreds of others), which fall between the Prize, Chits & Money Circulation Act, 1978 and the Companies Act.

As we said before, the SEBI ordinance is extensive in its scope but there is little clarity about what this means for ordinary people who are victims of various scams and mis-selling. The effectiveness of a statute depends on how well it is implemented.

Unfortunately, neither SEBI nor any of the other independent regulators modelled on it have really delivered. SEBI is seen as a slothful, non-transparent, arrogant and corrupt bureaucracy, packed with officials on deputation, looking for their next sinecure. Now, it will only be bigger and more powerful. Its senior appointees are on a career extension and have little interest in making a mark or fulfilling their primary mandate of protecting investors and developing markets. They rarely interact with public stakeholders, probably afraid of exposing their sketchy knowledge about markets, financial products and investors’ issues. They get away because there is almost no accountability to the finance ministry, parliament or the people. Very few MPs have either the domain knowledge or an interest in the slowly diminishing tribe of investors; they are more interested in companies and powerful market intermediaries which hardly makes for a healthy capital market.

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]