So far, both Houses of Parliament have been witnessing disruptions. At the beginning of the session, 23 Bills were listed for passage, and 20 were listed for introduction. Two weeks in, one Bill has been passed by both Houses, and three others by Lok Sabha. These include Bills dealing with the re-haul of consumer protection laws, regulation of surrogacy, and recognition of transgender persons. Six Bills have been introduced. These include three Bills which replace the Ordinances currently in force, and a Bill to regulate dam safety. In this blog, we discuss the key features of some of these Bills.
Enhancing rights of consumers
The Consumer Protection Bill, 2018 replaces the Consumer Protection Act, 1986. It was introduced in view of the significant changes in the consumer market landscape since the 1986 Act. It introduces several new provisions such as enabling consumers to make product liability claims for an injury or harm caused to them, nullifying unfair contracts which impact consumer interests (such as contracts which charge excessive security deposits), and imposing penalties for false and misleading advertisements on manufacturers, as well as on the endorsers of such advertisements.
The Bill also sets up Consumer Dispute Redressal Commissions (or courts) at the district, state, and national level, to hear complaints on matters related to deficiencies in services or defects in goods. While these Commissions are also present under the 1986 Act, the Bill increases their pecuniary jurisdiction: District Commissions will hear complaints with a value of up to one crore rupees; State Commissions between one and ten crore rupees; and National Commission above 10 crore rupees. The Bill also sets up a regulatory body known as the Central Consumer Protection Authority. This Authority can take certain actions to protect the rights of consumers as a class such as passing orders to recall defective goods from the market, and imposing penalties for false and misleading advertisements.
Recognising transgender persons and their rights
Last week, Lok Sabha also passed the Transgender Bill, 2018. This Bill seeks to recognise transgender persons, confers certain rights and entitlements on them related to education, employment, and health, and carves out welfare measures for their benefit. The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and includes persons having such socio-cultural identities as kinnar, hijra, aravani, and jogta. The Bill requires every establishment to designate one person as a complaint officer to act on complaints received under the Bill.
The Bill provides that a transgender person will have the right to self-perceived gender identity. Further, it also provides for a screening process to obtain a Certificate of Identity, certifying the person as ‘transgender’. This implies that a transgender person may be allowed to self-identify as transgender individual, but at the same time they must also undergo the screening process to get certified as a transgender. Therefore, it is unclear how these two provisions of self-identification and an external screening process will reconcile with each other.
Regulating surrogacy and overhauling the Medical Council of India
The Surrogacy Bill, 2017 which regulates altruistic surrogacy and prohibits commercial surrogacy was also passed in Lok Sabha. Surrogacy is a process where an intending couple commissions an eligible woman to carry their child. In an altruistic surrogacy, the surrogate mother is not given any monetary benefit or reward, and the arrangement only covers her medical expenses and health insurance. The Bill sets out certain conditions for both the intending couple and the surrogate mother to be eligible for surrogacy. The intending couple must be Indian citizens, be married for at least five years, and at least one of them must be infertile. The surrogate mother must be a close relative of the couple, must be married and must have had a child of her own. Further, a surrogate mother cannot provide her own gametes for surrogacy.
The surrogate mother has been given certain rights with regard to the procedure of surrogacy. These include requiring her written consent to abort the surrogate child, and allowing her to withdraw from the surrogacy at any time before the embryo is implanted in her womb.
Another key Bill which was listed for passage in Lok Sabha this session but could not be taken up is the National Medical Commission Bill, 2017 (NMC Bill). Several amendments to this Bill were introduced in Lok Sabha last week. The NMC Bill seeks to replace the Medical Council of India, with a National Medical Commission. It introduces a common final year undergraduate medical examination called the National Exit Test which will also grant the license to practice medicine. Only medical students graduating from a medical institute which is an institute of national importance will be exempted from qualifying this National Exit Test. The Bill also gives the NMC the power to frame guidelines to decide the fees of up to 50% of seats in private medical colleges and deemed universities. The NMC may also grant limited license to certain mid-level practitioners connected with the medical profession to practice medicine. The qualifying criteria for such mid-level practitioners will be determined through regulations, and they may prescribe specified medicines in primary and preventive healthcare.
Regulating dam safety
The Dam Safety Bill, 2018 was introduced in Lok Sabha and applies to all specified dams across the country. These are dams with: (i) height more than 15 metres, or (ii) height between 10 metres to 15 metres and subject to certain additional design and structural conditions. It seeks to provide for the surveillance, inspection, operation and maintenance of specified dams for prevention of dam failure related disasters. It creates authorities at the national and state level to formulate policies and regulations on dam safety and implement them. It also puts certain obligations on dam owners by requiring them to provide a dam safety unit in each dam, among other things.
When the Bill was being introduced, few opposition members raised objections on the grounds of Parliament’s legislative competence to make a law on dam safety which applies to all states. They gave the example of the previous Dam Safety Bill, 2010, which applied only to the states of Andhra Pradesh and West Bengal who had adopted resolutions requiring Parliament to pass a law on dam safety.
So far the winter session has seen poor productivity with Lok Sabha working for 14% of its scheduled time, and Rajya Sabha for 5%. This is one of the least productive sessions of the 16th Lok Sabha. This is also the last major session before the dissolution of the 16th Lok Sabha. Both Houses will meet tomorrow after the Christmas break. With a packed legislative agenda, it is essential for Parliament to function in order to discuss and deliberate the Bills listed. However, with a limited number of sitting days available in the ongoing session and continued disruptions, it remains to be seen if Parliament will be able to achieve its legislative agenda.
- This post is a modified version of an article published by The Wire on December 26, 2018.
Need for Urban Co-operative Banks
The history of UCBs in India can be traced to the 19th century when such societies were set up drawing inspiration from the success of the co-operative movement in Britain and the co-operative credit movement in Germany. Urban co-operative credit societies, were organised on a community basis to meet the consumption-oriented credit needs of their members. UCBs are primary cooperative banks in urban and semi-urban areas. They are co-operative societies that undertake banking business. Co-operative banks accept deposits from the public and lend to their members. Co-operative banks are different from other co-operatives as they mobilise resources for lending and investment from the wider public rather than only their members.
Concerns regarding the professionalism of urban cooperative banks gave rise to the view that they should be better regulated. Large cooperative banks with paid-up share capital and reserves of one lakh rupees were brought under the scope of the Banking Regulation Act, 1949 with effect from March 1, 1966. Prior to this, such banks were regulated under the scope of state-specific cooperative laws. The revised framework brought them under the ambit of supervision of the RBI. Till 1996, these banks could lend money only for non-agricultural purposes. However, this distinction does not apply today.
The Expert Committee noted that UCBs play a key role in financial inclusion. It further observed that the focus area for UCBs has traditionally been communities and localities including workplace groups. They play an important role in the delivery of last-mile credit, even more so for those sections of the population who are not integrated into the mainstream banking framework. UCBs primarily lend to wage earners, small entrepreneurs, and businesses in urban and semi-urban areas. UCBs can be more responsive than formal banking channels to the needs of the local people.
Over the years, concerns have been raised about non-professional management in UCBs and that this can lead to weaker governance and risk management in these entities. RBI has also taken regulatory action on several UCBs. For instance, in September 2019, RBI placed Punjab and Maharashtra Co-operative Bank under restrictions on allegations of serious underreporting of non-performing assets. The bank could not grant loans, make investments or accept deposits without prior approval from RBI. While these restrictions were originally put in place for six months, the time frame was extended several times and has now been extended till December 31, 2021. In addition, low capital base, poor credit management and diversion of funds have also been issues in the sector.
Shrinking share in the banking sector
There were 1,539 UCBs in the country as of March 31, 2020, with deposits worth Rs 5,01,180 crore and advances worth Rs 3,05,370 crore. Even though 94% of the entities in the banking sector were UCBs their market share in the banking sector has been low and declining and stands at around 3%. UCBs accounted for 3.24% of the deposits and 2.69% of the advances in the banking sector. The Committee noted that state-of-the-art technology adopted by new players, such as small finance banks and fintech entities, along with commercial banks can disrupt the niche customer segment of the UCBs.
Figure 1: Growth in deposits of UCBs (in Rs crore)
Figure 2: Growth in advances of UCBs (in Rs crore)
Burden of non-performing assets
UCBs had the highest net non-performing asset (NNPA) ratio (5.26%) and gross non-performing asset (GNPA) ratio (10.96%) across the banking sector as of March 2020. These levels correspond to around twice that of private sector banks, and around five times that of small finance banks. The Committee noted that, as of March 2020, UCBs have the lowest level of net interest margin (difference between interest earned and interest spent relative to total interest generating assets held by the bank) and negative return on assets and return on equity.
Figure 3: Asset quality across banks (in percentage)
Sources: Report of the Expert Committee on Urban Co-operative Banks; PRS.
Supervisory Action Framework (SAF): SAF envisages corrective action by UCB and/or supervisory action by RBI on breach of financial thresholds related to asset quality, profitability and level of capital as measured by Capital to Risk-weighted Asset Ratio (CRAR). The Committee recommended that SAF should consider only asset quality (based on net non-performing asset ratio) and CRAR with an emphasis on reducing the time spent by a UCB under SAF. The RBI should begin the mandatory resolution process including reconstruction or compulsory merger as soon as a UCB reaches the third stage under SAF (CRAR less than 4.5% and/or net non-performing asset ratio above 12%).
Constraints in raising capital
The Committee also observed that UCBs are constrained in raising capital which restricts their ability to expand the business. According to co-operative principles, share capital is to be issued and refunded only at face value. Thus, investment in UCBs is less attractive as it does not lead to an increase in its value. Also, the principle of one member, one vote means that an interested investor cannot acquire a controlling stake in UCBs. It was earlier recommended that UCBs should be allowed to issue fresh capital at a premium based on the net worth of the entity at the end of the preceding year.
Listing of securities: The Committee recommended making suitable amendments to the Banking Regulation Act, 1949 to enable RBI to notify certain securities issued by any co-operative bank or class of co-operative banks to be covered under the Securities Contracts (Regulation) Act, 1956 and the Securities and Exchange Board of India Act, 1992. This will enable their listing and trading on a recognised stock exchange. Until such amendments are made, the Committee recommended that banks can be allowed to have a system on their websites to buy/sell securities at book value subject to the condition that the bank should ensure that the prospective buyer is eligible to be admitted as a member.
Conflict between Banking Regulation Act, 1949 and co-operative laws
The fundamental difference between banking companies and co-operative banks is in the voting rights of shareholders. In banking companies, each share has a corresponding vote. But in the case of co-operative banks, each shareholder has only one vote irrespective of the number of shares held. Despite RBI being the regulator of the banking sector, the regulation of co-operative banks by RBI was restricted to functions related directly to banking. This gave rise to dual regulation with governance, audit, and winding-up related functions regulated by state governments and central government for single-state banks and multi-state banks, respectively.
2020 Amendments to the Banking Regulation Act: In September 2020, the Banking Regulation Act, 1949 was amended to increase RBI’s powers over the regulation of co-operative banks including qualifications of management of these banks and supersession of board of directors. The Committee noted that due to the amendment of the Act, certain conflicts have arisen with various co-operative laws. For instance, the Act allows co-operative banks to issue shares at a premium, but it is silent on their redemption. It noted that if any co-operative societies’ legislation provides for redemption of shares only at par, then, while a co-operative bank incorporated under that legislation can issue shares at a premium, it can redeem them only at par.
Note that on September 3, 2021, the Madhya Pradesh High Court stayed a circular released by the RBI on appointment of managing director/whole-time director in UCBs. The circular provided for eligibility and propriety criteria for the appointment of such personnel in UCBs. The petitioner, Mahanagar Nagrik Sahakari Bank Maryadit, argued that the service conditions of the managing director and chief executive officer of co-operative banks are governed by bye-laws framed under the M.P. State Cooperative Societies Act, 1960. The petition noted that co-operative as a subject falls under the state list and hence the power to legislate in the field of co-operative societies falls under the domain of the states and not the central government.
Over the years, several committees have looked at the feasibility to set up an Umbrella Organisation (UO) for UCBs. It is an apex body of federating UCBs. In 2011, an expert committee on licensing of new UCBs recommended that there should be two separate UOs for the sector. In June 2019, RBI granted an in-principle approval to National Federation of Urban Co-operative Banks and Credit Societies Ltd to set up a UO in the form of a non-deposit taking non-banking finance company. The UO is expected to provide information technology and financial support to its federating members along with value-added services linked to treasury, foreign exchange and international remittances. It is envisaged to provide scale through network to smaller UCBs. The report of the current Committee recommended that the minimum capital of the UO should be Rs 300 crore. Once stabilised, the UO can explore the possibility of becoming a universal bank. It can also take up the role of a self-regulatory organisation for its member UCBs. The Committee also suggested that the membership of the UO can be opened-up to both financial and non-financial co-operatives who can make contributions through share capital in the UO.
Comments on the report of the Expert Committee are invited until September 30, 2021.