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The Insolvency and Bankruptcy Code, 2016 is listed for passage in Rajya Sabha today.  Last week, Lok Sabha passed the Code with changes recommended by the Joint Parliamentary Committee that examined the Code.[1],[2]  We present answers to some of the frequently asked questions in relation to the Insolvency and Bankruptcy Code, 2016. Why do we need a new law?Time resolve insolvency1 As of 2015, insolvency resolution in India took 4.3 years on an average.  This is higher when compared to other countries such as United Kingdom (1 year) and United States of America (1.5 years).  Figure 1 provides a comparison of the time to resolve insolvency for various countries.  These delays are caused due to time taken to resolve cases in courts, and confusion due to a lack of clarity about the current bankruptcy framework. What does the current Code aim to do? The 2016 Code applies to companies and individuals.  It provides for a time-bound process to resolve insolvency.  When a default in repayment occurs, creditors gain control over debtor’s assets and must take decisions to resolve insolvency within a 180-day period.  To ensure an uninterrupted resolution process, the Code also provides immunity to debtors from resolution claims of creditors during this period. The Code also consolidates provisions of the current legislative framework to form a common forum for debtors and creditors of all classes to resolve insolvency. Who facilitates the insolvency resolution under the Code? The Code creates various institutions to facilitate resolution of insolvency.  These are as follows:

  • Insolvency Professionals: A specialised cadre of licensed professionals is proposed to be created. These professionals will administer the resolution process, manage the assets of the debtor, and provide information for creditors to assist them in decision making.
  • Insolvency Professional Agencies: The insolvency professionals will be registered with insolvency professional agencies. The agencies conduct examinations to certify the insolvency professionals and enforce a code of conduct for their performance.
  • Information Utilities: Creditors will report financial information of the debt owed to them by the debtor. Such information will include records of debt, liabilities and defaults.
  • Adjudicating authorities: The proceedings of the resolution process will be adjudicated by the National Companies Law Tribunal (NCLT), for companies; and the Debt Recovery Tribunal (DRT), for individuals. The duties of the authorities will include approval to initiate the resolution process, appoint the insolvency professional, and approve the final decision of creditors.
  • Insolvency and Bankruptcy Board: The Board will regulate insolvency professionals, insolvency professional agencies and information utilities set up under the Code.  The Board will consist of representatives of Reserve Bank of India, and the Ministries of Finance, Corporate Affairs and Law.

What is the procedure to resolve insolvency in the Code? The Code proposes the following steps to resolve insolvency:

  • Initiation: When a default occurs, the resolution process may be initiated by the debtor or creditor. The insolvency professional administers the process.  The professional provides financial information of the debtor from the information utilities to the creditor and manage the debtor’s assets.  This process lasts for 180 days and any legal action against the debtor is prohibited during this period.
  • Decision to resolve insolvency: A committee consisting of the financial creditors who lent money to the debtor will be formed by the insolvency professional. The creditors committee will take a decision regarding the future of the outstanding debt owed to them.  They may choose to revive the debt owed to them by changing the repayment schedule, or sell (liquidate) the assets of the debtor to repay the debts owed to them.  If a decision is not taken in 180 days, the debtor’s assets go into liquidation.
  • Liquidation: If the debtor goes into liquidation, an insolvency professional administers the liquidation process. Proceeds from the sale of the debtor’s assets are distributed in the following order of precedence: i) insolvency resolution costs, including the remuneration to the insolvency professional, ii) secured creditors, whose loans are backed by collateral, dues to workers, other employees, iii) unsecured creditors, iv) dues to government, v) priority shareholders and vi) equity shareholders.

What are some issues in the Code that require consideration?

  • The Bankruptcy Board (regulator) will regulate insolvency professional agencies (IPAs), which will further regulate insolvency professionals (IPs).  The rationale behind multiple IPAs overseeing the functioning of their member IPs, instead of a single regulator is unclear. The presence of multiple IPAs  operating simultaneously could enable competition in the sector. However, this may also lead to a conflict of interest between the regulatory and competitive goals of the IPAs.  This structure of regulation varies from the current practice where the regulator directly regulates its registered professionals.  For example, the Institute of Chartered Accountants of India (which regulates chartered accountants) is directly responsible for regulating its registered members.
  • The Code provides an order of priority to distribute assets during liquidation. It is unclear why: (i) secured creditors will receive their entire outstanding amount, rather than up to their collateral value, (ii) unsecured creditors have priority over trade creditors, and (iii) government dues will be repaid after unsecured creditors.
  • The smooth functioning of the Code depends on the functioning of new entities such as insolvency professionals, insolvency professional agencies and information utilities.  These entities will have to evolve over time for the proper functioning of the system.  In addition, the NCLT, which will adjudicate corporate insolvency has not been constituted as yet, and the DRTs are overloaded with pending cases.

 


 

  1. The Insolvency and Bankruptcy Code, 2016, http://www.prsindia.org/administrator/uploads/media/Bankruptcy/Bankruptcy%20Code%20as%20passed%20by%20LS.pdf.
  2. Report of the Joint Committee on the Insolvency and Bankruptcy Code, 2015, April 28, 2016, http://164.100.47.134/lsscommittee/Joint%20Committee%20on%20Insolvency%20and%20Bankruptcy%20Code,%202015/16_Joint_Committee_o n_Insolvency_and_Bankruptcy_Code_2015_1.pdf

A version of this blog appeared in the Business Standard on May 7, 2016.

As of April 26, Rajasthan has 2,083 confirmed cases of COVID-19 (fifth highest in the country), of which 493 have recovered and 33 have died.  On March 18, the Rajasthan government had declared a state-wide curfew till March 31, to check the spread of the disease.  A nation-wide lockdown has also been in place since March 25 and is currently, extended up to May 3.  The state has announced several policy decisions to prevent the spread of the virus and provide relief for those affected by it.  This blog summarises the key policy measures taken by the Government of Rajasthan in response to the COVID-19 pandemic.

Early measures for containment

Between late January and early February, Rajasthan Government’s measures were aimed towards identification, screening and testing, and constant monitoring of passenger arrivals from China.  Instructions were also issued to district health officials for various prevention, treatment, & control related activities, such as (i) mandatory 28-day home isolation for all travellers from China, (ii) running awareness campaigns, and (iii) ensuring adequate supplies of Personal Protection Equipments (PPEs).  Some of the other measures, taken prior to the state-wide lockdown, are summarised below:

Administrative measures

  • The government announced the formation of Rapid Response Teams (RRTs), at the medical college-level and at district-level on March 3 and 5, respectively.

  • The District Collector was appointed as the Nodal Officer for all COVID-19 containment activities.  Control Rooms were to be opened at all Sub-divisional offices.  The concerned officers were also directed to strengthen information dissemination mechanisms and tackle the menace of fake news.

  • Directives were issued on March 11 to rural health workers/officials to report for duty on Gazetted holidays.  Further, government departments were shut down between March 22 and March 31.  Only essential departments such as Health Services were allowed to function on a rotation basis at 50% capacity and special / emergency leaves were permitted. 

Travel and Movement

Health Measures

  • Advisories regarding prevention and control measures were issued to: (i) District Collectors, regarding sample collection and transportation, hotels, and preparedness of hospitals, (ii) Police department, to stop using breath analysers, (iii) Private hospitals, regarding preparedness and monitoring activities, and (iv) Temple trusts, to disinfect their premises with chemicals. 

  • The government issued Standard Operating Procedures for conducting mock drills in emergency response handling of COVID-19 cases.  Training and capacity building measures were also initiated for (i) Railways, Army personnel etc and (ii) ASHA workers, through video conferencing. 

  • A model micro-plan for containing local transmission of COVID was released.  Key features of the plan include: (i) identification and mapping of affected areas, (ii) activities for prevention control, surveillance, and contact tracing, (iii) human resource management, including roles and responsibilities, (iv) various infrastructural and logistical support, such as hospitals, labs etc, and (v) communication and data management.

  • Resource Management: Private hospitals and medical colleges were instructed to reserve 25 % of beds for COVID-19 patients.  They were also instructed to utilise faculty from the departments of Preventive and Social Medicine to conduct health education and awareness activities. 

  • Over 6000 Students of nursing schools were employed in assisting the health department to conduct screening activities being conducted at public places, railways stations, bus stands etc.

  • Further, the government issued guidelines to ensure the rational use of PPEs.

Welfare Measures

During the lockdown

State-wide curfew announced on March 18 has been followed by a nation-wide lockdown between March 25 and May 3. However, certain relaxations have been recommended by the state government from April 21 onwards.  Some of the key measures undertaken during the lockdown period are: 

Administrative Measures

  • Advisory groups and task forces were set up on – (i) COVID-19 prevention, (ii) Health and Economy, and (iii) Higher education.  These groups will provide advice on the way forward for (i) prevention and containment activities, (ii) post-lockdown strategies and strategies to revive the economy, and (iii) to address the challenges facing the higher education sector respectively. 

  • Services of retiring medical and paramedical professionals retiring between March and August have been extended till September 2020. 

Essential Goods and Services

  • A Drug Supply Control Room was set up at the Rajasthan Pharmacy Council.  This is to ensure uninterrupted supply of medicines during the lockdown and will also assist in facilitating home delivery of medicines.

  • The government permitted Fair Price Shops to sell products such as masalas, sanitisers, and hygiene products, in addition to food grains.

  • Village service cooperatives were declared as secondary markets to facilitate farmers to sell their produce near their own fields/villages during the lockdown. 

  • A Whatsapp helpline was also set up for complaints regarding hoarding, black marketing, and overpricing.

Travel and Movement

  • Once lockdown was in place, the government issued instructions to identify, screen, and categorise people from other states who have travelled to Rajasthan.  They were to be categorised into: (i) people displaying symptoms to be put in isolation wards, (ii) people over 60 years of age with symptoms and co-morbidities to be put in quarantine centres, and (iii) asymptomatic people to be home quarantined.

  • On March 28, the government announced the availability of buses to transport people during the lockdown.  Further, stranded students in Kota were allowed to return to their respective states. 

  • On April 2, a portal and a helpline were launched to help stranded foreign tourists and NRIs.

  • On April 11, an e-pass facility was launched for movement of people and vehicles. 

Health Measures

  • To identify COVID-19 patients, district officials were instructed to monitor people with ARI/URI/Pneumonia or other breathing difficulties coming into hospital OPDs.  Pharmacists were also instructed to not issue medicines for cold/cough without prescriptions. 

  • A mobile app – Raj COVID Info – was developed by the government for tracking of quarantined people.  Quarantined persons are required to send their selfie clicks at regular intervals, failing which a notification would be sent by the app.  The app also provides a lot of information on COVID-19, such as the number of cases, and press releases by the government.

  • Due to the lockdown, people had restricted access to hospitals and treatment.  Thus, instructions were issued to utilise Mobile Medical Vans for treatment/screening and also as mobile OPDs

  • On April 20, a detailed action plan for prevention and control of COVID-19 was released.  The report recommended: (i) preparation of a containment plan, (ii) formation of RRTs, (iii) testing protocols, (iv) setting up of control room and helpline, (v) designated quarantine centres and COVID-19 hospitals, (vi) roles and responsibilities, and (vii) other logistics. 

Welfare Measures

  • The government issued instructions to make medicines available free of cost to senior citizens and other patients with chronic illnesses through the Chief Minister’s Free Medicine Scheme.  

  • Rs 60 crore was allotted to Panchayati Raj Institutions to purchase PPEs and for other prevention activities. 

  • A one-time cash transfer of Rs 1000 to over 15 lakh construction workers was announced.  Similar cash transfer of Rs 1000 was announced for poor people who were deprived of livelihood during the lockdown, particularly those people with no social security benefits.  Eligible families would be selected through the Aadhaar database.  Further, an additional cash transfer of Rs 1500 to needy eligible families from different categories was announced.

  • The state also announced an aid of Rs 50 lakh to the families of frontline workers who lose their lives due to COVID-19.

  • To maintain social distancing, the government will conduct a door-to-door distribution of ration to select beneficiaries in rural areas of the state.  The government also announced the distribution of free wheat for April, May, and June, under the National Food Security Act, 2013.  Ration will also be distributed to stranded migrant families from Pakistan, living in the state.

  • The government announced free tractor & farming equipment on rent in tie-up with farming equipment manufacturers to assist economically weak small & marginal farmers.

Other Measures

  • Education: Project SMILE was launched to connect students and teachers online during the lockdown.  Study material would be sent through specially formed Whatsapp groups.  For each subject, 30-40 minute content videos have been prepared by the Education Department.

  • Industry:  On April 18, new guidelines were issued for industries and enterprises to resume operations from April 20 onwards.  Industries located in rural areas or export units / SEZs in municipal areas where accommodation facilities for workers are present, are allowed to function.  Factories have been permitted to increase the working hours from 8 hours to 12 hours per day, to reduce the requirement of workers in factories.  This exemption has been allowed for the next three months for factories operating at 60% to 65% of manpower capacity.

For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.