Thursday 12 September 2013

Market Manipulations Regulatory Framework in Indian Capital Market

Stock Market and how it works:
Basically the stock market is a place where you can buy and sell shares in a company. When a company makes shares available for the public to buy they are called stocks and this is what you are trading. In most cases what you get when you buy a stock is a very small piece of the company. You are an owner of that company and as it grows the company should become more valuable which means that your stocks should become more valuable as well. At least that is the theory but in practice there are other things that affect the stock price as well.

Like anything that is being bought and sold stocks are subject to the law of supply and demand, since the number of shares is limited when the number of people who want to buy them increases the price will go up. On the other hand when the number of buyers declines, or the number of people who want to sell increases then the price will go down. In theory the demand is based on how profitable the company is but in practice it is based mainly on expectations of what the company will do in the future.

Since the goal of investors is to get the maximum return on their investment the goal is to buy the stock before the price goes up and then to sell it before it goes back down. This means that you have to pay attention to what the value of the company you are buying stock in will be in the future. This is why you often see the price of the stock go up before an earnings announcement and then decline even if the earnings were higher than expected. People bought the stock in the expectation of good earnings which drove the price up and then sold when the good earnings were announced since it was likely that the stocks value had peaked, at least temporarily.
Bombay Stock Exchange:
Bombay Stock Exchange is a corporatized and demutualised entity, with a broad shareholder-base which includes two leading global exchanges, Deutsche Bourse and Singapore Exchange as strategic partners. BSE provides an efficient and transparent market for trading in equity, debt instruments, derivatives, mutual funds. It also has a platform for trading in equities of small-and-medium enterprises (SME). More than 5000 companies are listed on BSE making it world's No. 1 exchange in terms of listed members. The companies listed on BSE Ltd command a total market capitalization of USD Trillion 1.32 as of January 2013. BSE Ltd is world's fifth most active exchange in terms of number of transactions handled through its electronic trading system. It is also one of the world’s leading exchanges (3rd largest in December 2012) for Index options trading (Source: World Federation of Exchanges).
BSE also provides a host of other services to capital market participants including risk management, clearing, settlement, market data services and education. It has a global reach with customers around the world and a nation-wide presence. BSE systems and processes are designed to safeguard market integrity, drive the growth of the Indian capital market and stimulate innovation and competition across all market segments. BSE is the first exchange in India and second in the world to obtain an ISO 9001:2000 certification. It is also the first Exchange in the country and second in the world to receive Information Security Management System Standard BS 7799-2-2002 certification for its On-Line trading System (BOLT).
National Stock Exchnage:
NSE has a market capitalisation of more than US$0.989 trillion and 1,635 companies listed as of July 2013. Though a number of other exchanges exist, NSE and the Bombay Stock Exchange are the two most significant stock exchanges in India, and between them are responsible for the vast majority of share transactions. NSE's flagship index, the CNX NIFTY 50, is used extensively by investors in India and around the world to take exposure to the Indian equities market.
NSE was started by a clutch of leading Indian financial institutions. It offers trading, clearing and settlement services in equity, debt and equity derivatives. It is India's largest exchange, globally in cash market trades, in currency trading and index options. NSE has diversified shareholding. There are many domestic and global institutions and companies that hold stake in the exchange. Some of the domestic investors include LIC, GIC, State Bank of India and IDFC Ltd. Foreign investors include MS Strategic (Mauritius) Limited, Citigroup Strategic Holdings Mauritius Limited, Tiger Global Five Holdings and Norwest Venture Partners X FII-Mauritius, who have a stake in NSE. As of June 2013, NSE has 1673 VSAT terminals and 2720 leaselines, spread over more than 2000 cities across India.
Reforms:
Equity trading in India was dominated by floor–based trading on India’s oldest exchange, the Bombay Stock Exchange (BSE) up to late 1994. This process had several problems. The floor was non– transparent and illiquid. The non– transparency of the floor led to rampant abuse such as investors being charged higher prices for purchases as compared with the prices actually traded on the floor. It was not possible for investors to crosscheck these prices. Investors were forced to pay high brokerage fees to  undercapitalized individual brokers, who had primitive order processing systems.

According to critics some of the key challenges were

a) Indian stock market is highly speculative,

b) Indian investors are dissatisfied with the services provided to them by the brokers,

c) margins levied by the stock exchanges are inadequate and

d) liquidity in a large number of stocks in Indian markets is very low.

This situation was transformed by the arrival of the new National Stock Exchange (NSE) in 1994. A consortium of government–owned financial institutions, owned NSE. NSE built an electronic order–matching system, where computers matched orders without human intervention. It used satellite communications to make this trading system accessible from locations all over the country. Trading in equities commenced at NSE in  November 1994. The removal of License Raj especially in areas related to private sector financing options, led to a direct increase in market based financing of industrial investments through an expansion in three broad channels, FDI, Global depository receipts (GDR’s) in the international market and the last being the Capital market which consists of the secondary market and the new issue market. One important factor that led to the growth of the new issue market was the growing significance of financial assets, with increase in the saving rate and monetization of the economy. Further,  the government and SEBI have initiated a number of healthy measures to develop the capital market.

The efficiency of a capital market which can be defined in terms of its ability to reflect the impact of all relevant information in the prices of the securities and the large number of profit driven individuals who act dependently on one another grew tremendously in the Indian context. The number of issues enlisted before and after 1991 has been exponential in nature. Some of the major reasons for their growth are advent of SEBI and abolishment of Capital Issues Control Act, new regulations for protection of  investors, online trading, depositories and credit rating system etc.

To enable the capital market to mobilize and allocate the resources efficiently, it must be appropriately broadened and deepened. This calls for establishing an institutional framework capable of attracting domestic savings and channelizing them into productive investments. The efficient allocation of savings flow entail s development of appropriate mechanism of pricing ,intermediation and settlement of financial transactions.

A wide spectrum of instruments designed to meet various risk reward levels and liquidity preferences are needed to meet the requirements of  issuers and investors. An enabling legal  and regulatory framework  coupled with necessary enforcement is necessary for the  market to function in a fair and transparent manner.

The capital  market reforms have been  at the forefront  reform agenda of various Governments since 1991. As greater faith was placed on the allocative efficiency of the markets, they progressively  liberalized controls  that had created severe distractions and impeded the market f functioning  in the past.

The capital market is the barometer of any country’s economy and provides a mechanism for capital formation. Across the world there was a transformation in the financial intermediation from a credit based financial system to a capital market based system which was partly due to a shift in financial policies from financial repression (credit controls and other modes of primary sector promotion) to financial liberalization. This led to an increasing significance of capital markets in the allocation of financial resources. The Indian capital market also went through a major transformation after 1992 and the sensex is hovering around the 18000 mark by the  2012, which seemed a dream just a decade back.  Since then the market has been growing in leaps and bounds and has aroused the interests of the investors. The reason for such a development was an increasing uncertainty caused due to liberalization and standardization of the prudential requirements of the banking sector for global integration of the Indian financial system. Further, rise in their non-performing assets led to a decrease in credit from banks to the commercial sector.

The major reform in the capital market was the abolition of capital issues control and the introduction of free pricing of equity issues in 1992. Simultaneously the Securities and Exchange Board of India (SEBI) was set up as the apex regulator of the Indian capital markets. In the last five years, SEBI has framed regulations on a number of matters relating to capital markets. Some of the measures taken in the primary market include:

•  Entry norms for capital issues were tightened

•  Disclosure requirements were improved

•  Regulations were framed and code of conduct laid down for merchant bankers, underwriters, mutual funds, bankers to the issue and other intermediaries

•  In relation to the secondary market too, several changes were introduced:

•  Capital adequacy and prudential regulations were introduced for brokers, sub-brokers and other intermediaries

•  Dematerialization of scrips was initiated with the creation of a legislative framework and the setting up of the first depository

•  On-line trading was introduced at all stock exchanges. Margining system was rigorously enforced.

•  Settlement period was reduced to one week; carry forward trading was banned and then reintroduced in restricted form; and tentative moves were made towards a rolling settlement system.

•  In the area of corporate governance

•  Regulations were framed for insider trading

•  Regulatory framework for take-overs was revamped

•  Grant of legal status to SEBI for protecting investor’s interest and regulating the market.

•  Pricing of issues was left free.

•  Permission to FII’s (foreign institutional investors) to enter the primary and secondary market.

•  Equity issue in foreign markets by Indian companies through ADR’s and GDR’s.

•  Dematerialization of shares.

•  Compulsory credit rating.

•  Promotion of the concept of corporate governance.

•  Permission for buy back of shares.

•  Participation of foreign partners with equity in all industries.

•  Reduction in interest rates.

Liberalization and opening of the gates led to an expansion of three broad channels of financing the private sector namely, a) Domestic capital market b) International capital market (American depository receipts and Global depository receipts) and c) Foreign direct investment.

SEBI has been going through a protracted learning phase since its inception. The apparent urgency of immediate short term problems in the capital market has often seemed to distract SEBI from the more critical task of formulating and implementing a strategic vision for the development and regulation of the capital markets.

KEY REFORMS

Now let us discuss some of the key reforms

-  Disintermediation

-  Institutionalization

-  Globalization

-  Modernization

Disintermediation

The major fallout of the reform is the increasing  disintermediation in the capital markets. There has been a marked shift form staid and conventional source of funding  to bold initiatives in the capital markets. The corporate sector directly accesses the market rather than rely excessively on institutional and bank borrowings. The abolition of controller to capital issues has given a big boost to this process.

The institutionalization of the market has had a positive impact on the quality of intermediation services

and disclosure standards. The institutional investors have become an important source of pressure on companies they invest into improve the quality of their corporate governance.

Institutionalization

Another  most visible trend is the instituti0onalsisation of the market  The market is being increasingly pervaded by the institutional entities. The dominant players in the market are mutual funds, FII’s, financial institutions, Venture capital funds, private equity funds, debt funds, banks etc. intermediaries such as brokers and merchant bankers  are in the process of becoming corporate entities.  The system of 

Book building and proportionate allotment  has strengthened the market. According to experts the proposed entry of pension funds and provident funds into the market will further accelerate the process.

Globalization

Another notable feature is the integration of Indian market with the global market. The process started with the opening of our markets to foreign portfolio investment. Initial conditions and the ceilings for investments were progressively liberalized. The ceilings for investment by non-Resident Indians (NRIs) and Overseas Corporate Bodies (OCBs) have also increased. The government also permitted the Indian corporate to tap the international markets for raising capital. This measure enabled listing of Indian paper on the international stock exchanges. The government has also allowed the Indian mutual funds to invest in the foreign markets as a part of global diversification of their portfolios.

MODERNSIATION

The impact of reforms is more pronounced in the areas of modernization of the market .The main drawback of the Indian capital markets was the prevalence of the obsolete systems and practices.Modernisation involved replacing them with the new systems which are line with those existing in the advanced capital markets. Technology has played a vital role in the whole process.

The changes are aimed at establishing transparent trading system, efficient  clearing and settlement system, reducing transaction costs, introducing of risk management products, eliminating paper by setting up depository.

MAJOR CHANGES IN THE PRIMARY MARKET

The major changes include

•  Free pricing

•  Entry norms

•  Disclosures

•  Book building

•  Streamlining  the Procedures

•  Registration of Intermediaries

•  Free pricing

The abolition of capital of the controller of capital issues resulted in the emergence of the new era in the primary markets. All controls on the pricing, designing, tenure of the instruments were abolished. A wide variety of instruments were designed to meet the specific requirements of the issuers and investors. The issuers were also given the freedom to price the instruments. It was left to the market forces to decide the appropriateness of the pricing.

Entry norms

Hitherto there were no restriction for the companies to tap the capital markets. This resulted in the massive surge of small cap issues. Many of the companies were promoted by spurious persons with dubious credentials. Most of these shares were not even traded in the secondary markets after listing. Several investors have lost heavily by investing in these shares. The need for transparent entry barriers were felt. SEBI introduced eligibility norms in the form of dividend track record for existing companies and compulsory appraisal of projects for new companies.

Disclosures

The quality of disclosures in the offer documents were extremely poor. Several vital pieces of adverse information was not disclosed in the offer documents. SEBI has introduced stringent disclosure norms. The Malegam committee was appointed to suggest measures to increase the level of disclosures by Indian issuers. Most of the recommendation of the committee have been implemented. The attempt is to make Indian disclosure norms to confirm to global standards.

Book building

Book building is the process of price discovery.  One of the drawback of the free pricing  was the pricing mechanism. The issue price has to be decided around 60-70 days before the opening of the issue. Further the issuer has no clear idea about the market perception of  the price determined.  Introduction of book building helps in overcoming the limitation and results in market driven pricing of securities.

Streamlining  the Procedures

All the procedural formalities were streamlined. Many of the operational aspects were hitherto unregulated and different practices were being followed.SEBI has issued guidelines to ensure uniform procedures.

Registration of Intermediaries

 SEBI started the process of registration of some of the intermediaries associated with the process of issue management. This is done to ensure the professionalize of the intermediaries and to curb  the malpractices indulged  buy some of the intermediaries. Registration has become mandatory for the  following primary market intermediaries:

•  Merchant banker

•  Registrars and share transfer agents

•  Brokers to the issue

•  Bankers to the issue

•  Debenture trustees.

MAJOR CHANGES IN THE SECONDARY MARKET

The major changes in the secondary markets include

•  Trading systems

•  Depository

•  Clearing mechanism

•  Settlement system

•  Carry forward system

•  Trading systems

For a long time the trading on the stock exchanges were carried out by “ public outcry” in the trading ring. This system lacked transparency. The introduction of information technology in the working of the stock exchanges is a landmark in the history of capital markets. Some of the major changes include

Introduction of screen based trading systems in all the exchanges namely

a)  The Over The Counter Exchange of India (OTCEI)

b)  NATIONAL STOCK EXCHANGE (NSE)

c)  The Bombay Stock Exchange (BSE)

Depository

One of the major drawback was/is that the securities were/are held in the form of certificates. This led to the problem in physical storage and transfer of certificates. The transaction costs were also higher due to physical movement of paper and the incidence of stamp duty. National Security Depository Ltd (NSDL) was set up in 1996 as India’s first depository. A depository is an entity  which holds the securities in electronic form on behalf of the investor. This is done through the dematrialsisaion of the holdings at the request of the investor. Dematerialization is the process by which physical certificates of the investor are destroyed and an equalent number of securities are created to the amount of investor. This also enables the transfer of securituties by book entries. The risk of bad deliveries are also eliminated. The transaction costs are also reduced due to less flow of paper and transfer of security through depository does not attract stamp duty. Further the depository also handles all the  corporate actions like exercising for rights, collection of dividends, credit for bonus, exercising of warrants, conversion of option etc, on behalf of the investor.

Clearing mechanism

The clearing houses attached to the stock exchanges functioned only as conduits to delivery of securities and money. The NSE was the first stock exchange to set up  a clearing corporation. The National Securities Clearing Corporation ( NSCC)assumes the counterparty risk in all trading deals made on the exchange.NSCC acts as a counterparty for all the trades and  the default risk in the deal is borne by it .NSE has created a special Trade Guarantee fund for this purpose and loss due to defaults will be met by  drawing from its corpus.

Settlement system

Trading in securities is internationally done on rolling settlement basis. one of the key areas of change was the change in the settlement time duration in the stock exchange transactions.  The settlement duration was reduced to T+2  system (i.e. the trade will be settled on the 2nd day from the date of execution of the transaction).

Carry forward system

The Indian stock exchanges have been an amalgam of cash market and forward market. the prices  of the steps on the exchange did not reflect their ‘true’ price in the underlying cash market. Further there was indiscriminate and rampant speculation in the market. Defaults were common and other members were forced to “accommodate” the defaulting member. Often, the defaults had  a snowballing effect and the entire market would be in the throes of a major payment crisis.  This frequently resulted in the closure  of the exchanges for a few days. In order to curb the prevailing malpractices,SEBI banned carry forward transactions on all stock exchanges.

Progress since reforms

The market capitalization of the Bombay Stock Exchange (which represents about 90% of the total market capitalization of the country) has quadrupled from Rs 1.1 trillion at the end of 1990-91 to Rs 4.3 trillion at the end of 1996-97. As a percentage of GDP, market capitalization has been more erratic, but on the whole this ratio has also been rising. Total trading volume at the Bombay Stock Exchange and the National Stock Exchange (which together account for well over half of the total stock market trading in the country) has risen more than ten-fold from Rs 0.4 trillion in 1990-91 to Rs 4.1 trillion in 1996-97. The stock market index has shown a significant increase during the period despite several ups and downs, after reached its peak in 1994-95, the stock market index has been languishing at lower levels apart from a brief burst of euphoria that followed an investor friendly budget in 1997. For the primary equity market too, 1994-95 was the best year with total equity issues (public, rights and private placement) of Rs 355 billion. The market has been undergoing many low and up swings since the 2008 subprime crisis. There has been as surge of equity issues by the public sector and by banks.

New capital raised from the market by public limited companies

S.L. No.                    Period      Capital raised (Rs. Crore)       Yearly average            Growth rate (Per Cent)
1                              1951-60   285      28.5     155.4
2                              1961-70   728      72.8     36.3
3                              1971-80   992      99.2     2254.5
4                              1981-90   23,357 2,335.70          457.2
5                              1991-99   1,06,799          13,349.80       
Source : based on data in the The Report on Currency and Finance, RBI, India, various years

Number of investors
S.L. No.                    Yearly      No. of Investors (in lakh)
1                              1990         90-100
2                              1993         140-150
3                              1997         200
4                              1999         128
Source: The Report on Currency and Finance, RBI, India, 1990 to 1999

STOCKS AND SCAMS

Controller of Capital Issues Act in 1992, enabled issuers to freely access the market and enabled a flurry of activities in the primary market which attracted a large number of households to invest in equity issues, but there were also a plethora of poor quality public issues both at par and at premium. These issues saw a rapid decline in valuations on the stock market when trading commenced and there was a substantial loss of wealth of the households who had invested in them. In some cases there were companies who vanished completely after gobbling people’s hard  earned money. Such companies were termed as fly by night operators. By 1995- 96 there was worrisome erosion of investor confidence and investors turned away from direct investment in equity shares to safer fixed income instruments and bank deposits. Primary market activity diminished significantly and the market remained dull till about the third quarter of 1999. The high interest rates prevailing since 1995-96 further encouraged this trend. In order to gain investor confidence a lot of initiatives was taken and the SEBI was bestowed with more power. Some of the major crises, which occurred in the equity market during the period were:

• In 1995, the BSE closed for three days in the context of payment problems on M.S.Shoes.

• In 1997 there was a scandal where CRB mutual fund defrauded its investors, which cast doubts upon the supervisory and enforcement capacity of SEBI and RBI.

• In summer 1998 there was an episode of market manipulation involving three stocks (BPL, Sterlite and Videocon). In this case a variety of questionable methods were employed at the BSE to avoid a failure of settlements. The actions partly led to the dismissal of the BSE President by SEBI.

• crisis, in march 2001, led to the second dismissal of a BSE President, the dismissal of all elected directors on the BSE and the Calcutta stock exchange(CSE), and payment failures on the CSE (Thomas 2001).

Some of the biggest stock market scams include

-  The scam involving stock broker Harshad Metha

-  Scam involving stock broker Ketan Parikh

Volatility in the Indian stock markets- theory and experience

A number of times in the past, it has been observed that investments by FIIs and the movements of Sensex are quite closely correlated in India and FIIs wield significant influence on the movement of Sensex. But it could be a classic case of bullish market psychology snapping back after being stretched to extreme.

It is to be noted that in India, almost all previous experiences with high phases of stock market volatility have been associated with some form of irregularities and corruption. Generally there is a belief that stock markets movements actually reflect real economic performance. But studies have shown that it may not be completely true.  Stock market indices are indicators of the expectations of finance capital, and they can move up and down for a variety of reasons, may not be related even to the current profitability of productive enterprises. Theoretically, the major determinants of stock prices are corporate earnings and interest rates. But, they are prone to irrational bubbles and sudden collapses that reflect all sorts of factors, ranging from international forces to domestic political changes, and may have very little relation to economic processes within the economy. The movements of stock markets and Sensex may not necessarily imply any fundamental changes in the economy as these movements affect a very small minority of the country’s population. Stock prices are more variable than prices of most other assets, which mean that the returns can change dramatically from year to year.

Even though trends across the world have shown that, the stock market almost always falls before recession, it is also prone to giving false alarms. These false alarms appears to have increased in the post war period. Shifts in sentiment and psychology can sometimes cause substantial changes in the market.

It is important to note that the prices of securities react very quickly to new information about their value. Efficient capital markets are commonly thought as markets in which security prices fully reflect all relevant information that is available about the fundamental value of securities. Because the security is a claim on future cash flows, this fundamental value is the present value of the future cash flows that the owner of the security is expected to receive. The study of capital market efficiency examines how much, how fast, and how accurately available information is incorporated into security prices.

Financial economists often classify efficiency of capital markets into three category based on what is meant as available information- the weak, semi strong, and strong forms. Weak form efficiency exists if security prices reflect information contained in the history of past prices and returns. Some public information about fundamentals may not yet be reflected in the prices. Here investors can earn excess profits from trading rules based on past prices and returns. Under semi strong security prices fully reflect all public information. Thus traders with access to nonpublic information can earn excess profits. Finally, under strong form efficiency all information even apparent company secrets- is incorporated in security prices; thus, no investor can earn excess profit trading on public or nonpublic information.


Thursday 22 November 2012

Land Acquisition, Rehabilitation And Resettlement Bill, 2011

Demand for land has gone up drastically over the past few years, due to rapid infrastructural development, setting up of new industries and mining plants, and fast urbanisation including real estate. Before 1990, land was acquired by government for clear public purposes; yet, the last two decades have seen an boost in land acquisition for private industry and real estate—which is solely driven by profit motives. In many cases, the acquisition has been forced and without paying landowners adequate compensation. And because the present Land Acquisition Act, 1894 has been quite hostile to the interests of the landowner, the acquisition of land has increased conflicts. The problem thus, warrants fundamental changes in the present Land Acquisition law. The Ministry of Rural Development, Government of India, in consultation with the National Advisory Council (NAC), introduced a new Bill in the Parliament in 2011 to address this problem. The salient features of the Bill are:
(1) In case of land acquisition by government for public sector companies,  or PPP projects, or for private companies for the production of public goods or provision of public services, written consent of at least 80% of the project affected people (including agricultural labour, tenant, etc.) is necessarily to be taken through a prior informed process; compensation of the land, as has been stipulated in the Bill, should be to a minimum of four times the present registered value for land in rural areas and double in urban areas, excluding solatium; provision for guaranteed compensation in future, for at least twenty years, to the original landowner over further escalation in the prices of the land.

(2) All project-affected people, irrespective of their areas of acquisition, who lose their livelihood would be entitled for R&R package which includes Subsistence Allowance of Rs. 3,000 pm per family for over 12 months; one time Resettlement Allowance of  Rs. 50,000; Rs. 50,000 for transportation; allotment of constructed house in case of house loss in rural as well as urban areas, or equivalent cost in lieu of the house; allotment of one acre of land in lieu of land acquired for irrigation project; a job or Rs. 5 lakh per family or Rs. 2,000 pm for 20 years per family will be provided to the displaced landowner; and
(3) Fixed timeline for awarding compensation. Moreover, there are many other changes in the Bill which will help in safeguarding landowner’s interests.

Friday 9 November 2012

Legislative Measures for the Protection of Rights of Minority Shareholders


I.            Protection of minority shareholders

Company law provides that a company can be wound up if the Court is of the opinion that it is just and equitable to do so. This is, of course, the ultimate resort for a shareholder to enforce his ownership rights. Rather than let the value of his shareholding be frittered away by the enrichment of the dominant shareholder, he approaches the court to wind up the company and give him his share of the assets of the company. In most realistic situations, this is hardly a  meaningful remedy as the break-up value of a company when it is wound up is far less than its value as a “going concern”. It is well known that winding up and other bankruptcy procedures usually lead only to the enrichment of the lawyers and other intermediaries involved.

Company law also provides for another remedy if the minority shareholders can show that the company’s affairs are being conducted in a manner prejudicial to the interests of the company or its shareholders to such an extent as to make it just and equitable to wind it up. Instead of approaching the Court, they can approach the Company Law Tribunal). The Company Law Tribunal which is a quasi-judicial body can make suitable orders if it is satisfied that it is just and equitable to wind up the company on these grounds, but that such winding up would unfairly prejudice the members. In particular, the Tribunal may regulate the conduct of the company’s affairs in future, order the buyout of the minority shareholders by the other shareholders or by the company itself, set aside or modify certain contracts entered into by the company, or appoint a receiver. The Tribunal could also provide for some directors of the company to be appointed by the Central Government, or by proportional representation. The Tribunal normally entertains such complaints only from a group of shareholders who are at least one hundred in number or constitute 10% of the shareholders by number or by value.

II.            Special majority

Another safeguard in the company law is the requirement that certain major decisions have to be approved by a special majority of 75% or 90% of the shareholders by value. This may not be an effective safeguard where the dominant shareholders hold a large majority of the shares so that they need to get the approval of only a small chunk of minority shareholders to reach the 75% level. Even otherwise, it may not be a sufficient safeguard if the process of conducting shareholder meetings is not conducive to broader participation by a large section of the shareholding public. The Indian system does not allow for postal ballots. Effective participation by small shareholders is possible only if there is a cost effective way of waging a proxy campaign. This would enable dissenting shareholders to collect proxies from others and prevent measures which are prejudicial to the minority shareholders.

III.            Information disclosure and audit

Company law provides for regular accounting information to be supplied to the shareholders along with a report by the auditors. It also requires that when shareholder approval is sought for various decisions, the company must provide all material facts relating to these resolutions including the interest of directors and their relatives in the matter. Disclosure does not by itself provide the means to block the dominant shareholders, but it is a prerequisite for the minority shareholders to be able to exercise any of the other means available to them. Disclosure is also a vital element in the ability of the capital market to exercise its discipline on the issuers of capital.

IV.            Voting Rights

(i) Ten percent: The approval of at least 10% of the shareholders is required for the requisition of an extraordinary general meeting for an application to the Company Law Board (CLT) for relief, if there is oppression or mismanagement (as defined in the Companies Act, 1956 by the majority shareholders.

(ii) Fifty-one percent: The approval of a minimum of 50% of the shareholders is required for an ordinary resolution, including for alteration of the share capital; declaration of dividend; election, removal, and remuneration of directors; approval of annual accounts; appointment of external auditors; appointment of other officers; and other routine matters relating to the conduct of a company.

(iii) Seventy-five percent: At least 75% of the shareholders must approve a matter before it is passed as a special resolution, including for capital increases, alteration in the memorandum and articles of the company, changing the registered office address of the company from one state to another, change in the name of the company, buy-back of shares, proposed mergers or liquidation. Therefore, a minority shareholder with more than 25% voting rights would have the ability to block special resolutions.

V.            Qualified Minority

Minority shareholders with qualified minority may initiate action against decisions of the majority in a court of law. According to section 399 of the act, a qualified minority consists of at least one hundred shareholders or one tenth of the total number of shareholders, whichever is less, or any shareholder(s) holding one-tenth of the issued share capital of the company fully paid-up. Moreover, minority shareholders who hold more than 25% of the shares will have the ability to obstruct special resolutions, seek intervention of the CLT and, therefore, impede the functioning of the company at some level.

VI.            Company Law Tribunal (CLT)

The Indian company law shields minorities’ interest by providing an adequate platform at CLT to raise grievances in case of oppression or mismanagement by the majority shareholders of a company. In circumstances when the minority is forced to exit the company by way of offering a nominal value for the shares held by them, the minority shareholders can approach the CLT to seek appropriate relief. The latter, if satisfied, has the power to intervene in the decisions of the majority shareholders. The CLT can order the majority shareholders to purchase the shares of the minority shareholders at a fair price. Further, if the minority shareholders wish to continue to be stakeholders in the company and do not want to sell their shares, they can obtain an injunction from CLT prohibiting the majority shareholders or acquirer from taking any action that may be averse to their interest.

VII.            Minority Representation

It is important for Corporations to ensure that board membership reflects the interest of minority shareholders. In this regard, the Independent Directors (IDs) have an important role to play in ensuring minority shareholders’ interests are protected. The IDs also need to be easily accessible for minority shareholders to convey or raise their concerns. Minority shareholders can also nominate candidates for the ID position.

Monday 14 May 2012

Tax Crimes under the Money Laundering Law

The government is considering placing tax crimes at the sama level as money laundering offences that have severe criminal and financial implications. Income-tax offences could come under its anti-money laundering law, which would make prosecution, rigorous imprisonment, fines and shifting onus on the accused to prove he is not guilty a lot more easier. The offences will include concealment of income, failure to deposit tax deducted at source and false evidence.
Recommendations could be placed before Parliament and changes could be made to the Prevention of Money Laundering (Amendment) Bill, 2011.
These changes are in accordance with a global plan drawn up by the Finance Action Task force, an inter-governmental body to combat money laundering and terror financing, of which India is a member.Many countries have incorporated these offences in their money laundering laws even though the FATF adopted them as part of new standards in February this year.

If the changes take place, the trial in these cases will be faster as offences under PMLA are tried in special courts and the onus to prove innocence lies on the accused.


Monday 7 May 2012

Amendments to the Finance Bill

Finance Minister Pranab Mukherjee has announced that the General Anti-Avoidance Rules (GAAR) will be applied from 2013-14 onwards, deferring its application by a year. He also said  that the onus of proof will lie with the tax authorities and that the proposed retrospective amendment of income tax laws will not override DTAAs with 82 countries. He also proposed an STT of 0.2% on the sale of unlisted securities. and that the capital gains tax on private equity will be halved to 10 per cent.

Reduced capital flows prompted the RBI to raise the interest rates banks can offer non-resident Indians to encourage them to bring in dollars. The Sensex ended below the 17,000 mark for the first time since January 24, 2012, closing at 16,831 -down 320 points.

The mass disparagement evoked scepticism and annoyance among officials of the finance ministry.

Wednesday 2 May 2012

Print and Electronic Media Standards and Regulation Bill, 2012

A bill on media regulation was proposed by  Meenakshi Natarajan, a Lok Sabha MP called the "Print and Electronic Media Standards and Regulation Bill, 2012",. It aims at establishing a regulatory authority with powers to impose a ban or suspend coverage of an event or an incident that may pose a threat to national security from foreign or internal sources. However, she was not present in the Lok Sabha and so the Bill was not introduced.
There has been opposition to the bill on the ground that the press should be accorded freedom and there should be no attempt to gag the media.
Though it will be appropriate to regulate the media, the regulation must not be absolute. No right can be absolute, every right is subject to reasonable restrictions in the public interest. Any action or restriction on action of the media shouldn’t adversely affect the security of the state, public order, morality, etc.

Saturday 28 April 2012

Debt Recovery Laws in India

The Debts Recovery Tribunal has been constituted under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The original aim of the Debts Recovery Tribunal was to receive claim applications from Banks and Financial Institutions against their defaulting borrowers. For this the Debts Recovery Tribunal (Procedure) Rules 1993 were also drafted.
Initially they performed really when in helping the Banks and Financial Institutions recover their bad debts and huge parts of their non – performing assets. Problems occurred when several large borrowers would create hindrances in DRT’s work primarily on the ground that their claims were pending before the civil courts and if the DRT would adjudicate the matter and auction off their properties, they would have to face irreparable damages.
The dues of work men against a company, the State dues, and the dues of other non secured creditors all got ensnared before the DRTs. Furthermore, there was clash of jurisdiction between the Official Liquidators appointed by the High Courts and the Recovery Officers of the Debts Recovery Tribunals. The Official Liquidator, an appointee of a superior authority, took into his possession all the properties, which actually belonged to secured creditors who before the Debts Recovery Tribunal. The High Courts also took offence on the activities of the Recovery Officers who took away the entire amounts and paid off to the banks leaving nothing for the other claimants, including the workmen. All this lead to drastic amendments to the Recovery of Debts Due to Banks and Financial Institutions Act by means of an amending notification in the year 2000.
While the Amendment in 2000 brought some rationalization in the mechanism of the Debts Recovery Tribunal, it was not sufficient to wheedle the big borrowers. This led to the enactment of one more drastic act titled as the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, also called as SRFAESI Act or SRFAESIA for short.
The SRFAESI Act, gave the lenders the right to take into their possession the secured assets of their borrowers just by providing them notices, and without the need to go through the rigors of a Court procedure. At the start this brought in lot of conformity from several defaulters. However the tougher ones punched whole in the new Act too. This led Supreme court striking down certain provisions and allowing the borrowers an adjudicatory forum before their properties could be taken over by the lenders.
And the adjudicatory forum turned out to be the Debts Recovery Tribunal. The Debts Recovery Tribunal now deals with two different Acts, namely the Recovery of Debts Due to Banks and Financial Institutions Act as well as the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act. While they both aim at the same thing, their procedures are different.
The Debts Recovery Tribunals have to deal with complex commercial laws within the narrow ambit of the two laws.