Rule of law: A pair of stories

by Shubho Roy.

One essential feature of the rule of law is transparency. When a government says something, it must say why it said so. This is important from three points of view:

1. A government that does not need to explain itself is one that has arbitrary power. When a policeman can tell you that you're prohibited from driving because he does not like your face, it is rule of men and not rule of law.
2. The fundamental idea of common law is that the laws enshrine principles that are unvarying for decades or centuries. But institutional and technological details of the economy change rapidly. Well reasoned orders tell the households and firms of the economy how timeless principles are to be interpreted in the present milieu.
3. The aggrieved party can appeal against the order, on the grounds that there are factual errors or errors of reasoning in the order.

A success story: A recent SEBI order

I picked up a recent SEBI order banning a brokerage services agency from operating for two weeks. The punishment is not all that bad: the firm is out of business for two weeks. Yet, before inflicting such a penalty, SEBI had to do the following hard work in the order:

1. Point out when the investigation was ordered.
2. Clearly state which rules were violated. A vague reference to a governing Act does not suffice.
3. Informs the reader about when the affected company was asked to respond. It also mentions that the copy of the investigation report was given to the company.
4. The order then mentions the advocates who appeared for the accused.
5. The findings of the enquiry officer are summarised.
6. The observations of the enquiry officer are recorded.
7. The arguments that the broker made in defense of its actions are presented.
8. The exact transactions which were found to be illegal are described.
9. The reasoning of the officer making the order is clearly laid out.
10. The amount of penalty (suspension of certificate to trade for two weeks) is clearly mentioned.

This is a nice example of legal process in operation. It is a reasoned legal order. Anyone can read and understand it. The order adds to the body of law of securities in the country. It gives an example of the transactions which are considered illegal by SEBI: everyone can learn from the order and not make the same mistake. An appellate court can read the order and decide whether the action of SEBI was fair or not. More generally, SEBI is accountable to the public at large and Parliament in particular, to behave in such controlled fashion.

The right to operate is a very valuable thing. Interfering with the life and liberty of an individual or firm must not be taken lightly. By providing a detailed order, SEBI clearly shows why this right was withdrawn from a person.

A failure story: A recent RBI order

A recent update from the Reserve Bank is a study in contrast. The order prohibits a company from providing money transfer services to India. The text just states that the company is barred from operating in India under the Payments and Settlement Systems Act, 2007. It seems that the company had applied for a licence for operating in India and that application has been rejected.

The order is not reasoned. It does not inform the reader as to why the company was banned. Did the company not comply with rules? If so, which rules did it not comply with? Were there any other reasons, such as inadequate capital, or lax oversight, or failure to enforce KYC rules, which led to RBI denying them the permission? Was there any other required disclosure that the company did not make? Was any hearing given to the affected party? The order/press release also does not state the procedure that RBI used to come to its conclusion.

This is not how common law should function. The order does not add to the body of law in the country. Prospective businesses do not learn what led to the rejection of the application and may continue to make the same mistake when they apply.

Conclusion

The agenda for legal reform in India consists of (a) writing laws rooted in the common law framework, (b) of building agencies such as SEBI which are fully imbued in this ethos, and then (c) of building top quality courts like SAT which exert checks and balances upon regulatory agencies.

Related reading

1. Rule of law and foreign venture capital
   
2. C B Bhave's 3 years at SEBI
   
3. Corporations and OTC derivatives
   
4. Chapter 4 of the Report of the Working Group on Foreign Investment discusses the importance of rule of law in financial regulation in detail.