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Thursday, March 25, 2021

Towards better enforcement by regulatory agencies in India

by Trishee Goyal and Renuka Sane.

India is on the verge of establishing yet another regulator, the Data Protection Authority (DPA), to implement the provisions under the Personal Data Protection Bill, 2019. As per the Bill, the DPA will regulate anyone who collects data for commercial use with a turnover of more than INR 20 lakh annually. This would cover entities from small time telemarketers to social media behemoths. The scope of its regulated entities will thus be more extensive than any of the regulators previously established in India. The DPA has the power to either suo motu or on a complaint take action against a data fiduciary or a data processor who may be violating the law. It can, inter alia, issue directions, call for information, conduct inquiries, issue orders for injunctive relief, suspend or cancel the registration of businesses.

With such an expansive responsibility, it is important to get the design of the enforcement processes of the DPA right. Failure to follow due process in enforcement would be damaging to the ease of doing business, to the digital and start-up ecosystem and damage India's chances of dominance in these spheres. More importantly, such failures will have adverse consequences on the justice and dignity of the regulated entities.

In a new working paper, Towards better enforcement by regulatory agencies, we study the gaps in enforcement at the Securities Exchange Board of India (SEBI) and the Competition Commission of India (CCI). The gaps pertain to whether processes of natural justice have been adhered to during the conduct of enforcement activities. We reflect on the lessons this might have for the DPA.

In India, there exists a small literature on the problems with the legislative functions (some examples include Burman and Zaveri, 2018; Bhandari and Sane, 2019), and the judicial functions (see Datta et. al., 2019). In this paper we focus on the executive, or the enforcement, functions of a regulator. Our paper also connects to a larger literature across the world on the dilution of accountability at the 'new administrative state'. Administrative agencies are increasingly built with legislative, executive and judicial mandates. Such agencies are expected to draft subordinate legislation, be responsible for licensing and enforcement actions, and also adjudicate on investigations usually carried out by itself. Questions on checks and balances and due process that were reasonably settled in liberal democracies when it came to government functioning are now being debated once again w.r.t regulators.

Why SEBI and CCI?

Before we discuss questions on natural justice, a word on why we chose to study SEBI and CCI. The Justice Srikrishna Committee Report on data protection suggests that the DPA will be modeled along the lines of other Indian regulators such as TRAI, SEBI, CCI etc. Among the regulators discussed in the report, we found that SEBI has been considered the most effective, as far as its enforcement actions are concerned. CCI is relevant as it is a more recently established regulator. A study of CCI comes at an interesting checkpoint in the development of regulatory governance. As the DPA will be modeled on these regulators, it is important to understand how enforcement is currently taking place and whether there is an inherent problem in the structure of enforcement. For example, Roy, Shah, Srikrishna, and Sundaresan (2019) argue that Indian regulators have too often veered into controlling as opposed to regulating, and that enforcement has been selective and weak, and failed to adequately follow the rule of law, especially on due process. State capacity is known to be weak in India, suggesting the need to move beyond existing models of regulatory design.

Three elements of natural justice

Natural justice is a vast area. We focus on the three most basic elements of natural justice - how are notices served, whether parties are allowed to examine material and cross-examine witnesses, and whether there is separation of powers, especially between the investigation and adjudication functions.

Procedural failures at SEBI and CCI

In the case of SEBI, we studied orders of the Securities Appellate Tribunal (SAT) for a six month period (October, 2019 to March, 2020) where we found that 33% of SEBI orders were over-ruled on failure to adhere to principles of natural justice. Of the cases over-ruled, 86% were related to issues of notice and 14% to issues of examination of materials. SEBI fares poorly on separation of powers. With respect to CCI, a survey of appellate orders passed by the Competition Appellate Tribunal and the Supreme Court, pointed to the lack of due process being ingrained in enforcement procedures. However, CCI maintains separation of powers with a far greater degree as compared to SEBI. The design of the enforcement structure also allows for application of mind by the Commission at multiple stages - at the time of formation of prima facie opinion, at the time of issuance of direction for investigation and lastly, at the time of penalty proceedings.

Importance of codification

Why is it that there are such procedural failures? Legislation in India confers certain powers of a civil court to a regulatory agency, and expects that the regulator will comply with the principles of natural justice. There is, however, no guidance on how regulators should comply with these principles (Burman & Krishnan, 2019; Sundaresan, 2018). Common law in India has held the view that principles of natural justice are not considered embodied rules -their application has been made dependent on a variety of factors such as the nature of the tribunal in question, the controversy in question and the facts and circumstances at hand. As a result, the development around principles of natural justice in administrative law has been in an ad hoc manner. There is very little by way of standardised procedures that an administrative body can source from common law.

What would improve these processes? We look at the structure of regulators in other countries - namely the US and the UK. We find that the processes that Indian law just assumes will be followed, are actually codified in laws, regulations and process manuals in these countries. Codification is important as a study of CCI also shows - while the CCI does better in terms of structural separation, issues of due process continue to remain due to scanty guidance available in the Competition Commission of India (General) Regulations, 2009 on other aspects. Codification of processes on legislative powers, such as having more prescriptive rules on the requirements of consultation, have led to better regulation making processes (Burman & Zaveri, 2018).

Lessons for the DPA

We have the following recommendations for the DPA. The objective is to provide adequate guidance to the regulator as it discharges the enforcement function, as well as to the broader community as it continuously evaluates the performance of the regulator on these counts.

  1. There should be an inclusion of the procedural rights in the statute itself. These provisions would specify a detailed outline of the show cause notice, the scope of the right of examination of materials, the procedure to be followed in case of ex-parte orders and the timelines of providing representation against each of the processes where such representation can be made.

  2. Further, regulations should include the manner in which notice is to be served, the manner of providing opportunity of hearing (written submissions), the form in which materials are to be submitted to the regulated entity under its right of examination of materials etc.

  3. The law, regulations, as well as detailed manuals should be available in the public domain.

  4. At the very least, there should be a cadre of administrative law officers who would not be engaged in any functions of the regulator except performing the quasi judicial functions. There should be an Administrative Law Member in the Board of the agency whose specific task would be to manage the cadre of administrative law officers. This would lead to the insulation of quasi judicial functions of the regulator from executive, investigation and inspection functions.

Conclusion

The concerns raised by us have begun to get recognised in India. For example, in 2011, the Financial Sector Legislative Reforms Commission (FSLRC) Report laid out a regulatory framework imbibing the principles of natural justice. More recently, in 2019, the Report of the Competition Law Review Committee, reviewed the enforcement processes in the CCI. Similarly, the Sahoo Committee Report set up to examine development and regulation of valuation professionals, while laying out the regulatory design for the said purpose, emphasised the need of principles of separation of powers, reasoned orders, independence and accountability. The follow through on the recommendations, however, has been scarce. We think that a statutory formulation of the administrative law requirements would strengthen the rule of law in enforcement actions.

References

Bhandari, V., and Sane, R. (2019) A Critique of the Aadhaar Legal Framework. 31 NSLIR Rev 1-23.

Burman, A., & Krishnan, K. (2019). Statutory regulatory authorities: Evolution and impact.

Burman, A., & Zaveri, B. (2018). Regulatory responsiveness in India: A normative and empirical framework for assessment William & Mary Policy Review , 9 (2), 1-26.

Datta et. al. (2019), How to Modernise the Working of Courts and Tribunals in India. NIPFP Working paper 258.

Roy, S., Shah, A., Srikrishna, B. N., & Sundaresan, S. (2019). Building state capacity for regulation in India. Devesh Kapur and Madhav Khosla (eds.), Regulation in India: Design, Capacity, Performance, Oxford: Hart Publishing.

Sundaresan, S. (2018). Capacity building is imperative. Column titled Without Contempt in the editions of Business Standard dated August 2, 2018.


The authors are researchers at NIPFP. This paper was produced as part of the Data Governance Network. We thank Somasekhar Sundaresan for useful discussions.

Tuesday, March 23, 2021

Strategic patience and flexible policies: How India can rise to the China challenge

 by Gautam Bambawale, Vijay Kelkar, Raghunath Mashelkar, Ganesh Natarajan, Ajit Ranade, Ajay Shah.

A paper, Strategic patience and flexible policies: How India can rise to the China challenge, has been released by the Pune International Centre. Key ideas of this paper are presented here.

After the war in 1962, the India-China relationship was frozen till 1988. After that, both sides agreed on a framework of holding border disputes in abeyance and pursuing increasing economic engagement. Procedures and protocols were established for handling situations on the border, if they should arise.

In recent years, China has dismantled this arrangement and established a more hostile stance towards India with simmering military conflict. This raises important questions for policy in India. How should India navigate this landscape? When the conflict became kinetic in Doklam and then Ladakh, the immediate impulse was of course about mobilising troops. There was an outcry in the press, nationalistic fervour, and emotional boycotts of Chinese goods.


It is important to see these problems on a larger scale, in terms of space, time and force. It is not just about a few weeks in Ladakh involving a few thousand troops. There is much more at play. If India merely responds with troop movements and winter gear, this may set the stage for future reverses. Indian thinkers need to address deeper questions. What are the forces shaping Chinese behaviour? What is the best path for India in the short term and the long term? How can diplomacy and economic policy work in an intertwined fashion, to best further India's interests?


At present, India is in a weak position when compared with China. Whether we look at raw GDP, state capacity, the capabilities of the best firms, the extent of internationalisation, the mastery of science and technology or the quality of the top intellectuals: at present, China is significantly ahead of India. This superiority can be used by China to put pressure on India in many ways. Some examples of this include a sheer display of military strength to grab land at the border, the use of a variety of levers to foster friction for India with neighbouring countries, and nudging decision making at international organisations in ways that hinder India's interests.

Looking into the future, if the gap between Chinese and Indian economic growth rates continues, these problems will be amplified. As an example, we must visualise a future scenario where Chinese carrier groups prowl the Indian ocean, and the Indian navy is out-matched.

In this scenario, how best should India proceed? There is a useful distinction between the short run and the long run.


In the short run, Indian diplomacy faces a new situation. Never before has India faced a hostile nation with significantly superior strength. China in 1962 was at roughly Indian levels of GDP; Pakistan is a smaller country. This is the first time that India has   hostilities with a substantially stronger nation. Confronting China alone would be unwise. It is essential to build coalitions.

There are three groups of natural allies for India: the great democracies of the world, who worry about the global prominence of an authoritarian China; the countries on China's borders, who are all facing difficulties just as India is; and the countries in India's region who can potentially have positive exposure to Indian success given that proximity matters greatly in cross-border economic and cultural activities.

India needs to embark on a process of building deep ties with about 20 countries. The genuine depth of these relationships requires linkages in trade, finance, investment, education, travel, migration and shared values. India will need to modify domestic policy positions in ways that suit the interests and values of these partners. Diplomacy needs to play a much bigger role in domestic policy making, than has ever been the case in Indian history. The coming decades need to become a golden age of diplomacy.

In the short run, there is debate about protectionist measures that will harm Chinese exports or investment in India. A significant proportion of those moves are self-defeating in that they harm India more than they harm China. There is a case for three groups of restrictions : Limit companies controlled by the Chinese state from a controlling stake in a hotlist of sensitive infrastructure assets; steering clear of Chinese-controlled technological standards; and blocking surveillance of Indian persons.

Strategic thinkers in Indian firms need to rethink business plans in the light of these complexities. In some areas, China-centric sourcing and technological dependance can elevate business risk. For these, a selective retreat from economic engagement with China, and increased emphasis upon the global market, is optimal. In other areas, India can become the dominant alternative to the China-centric supply chains of the past, addressing the desire of global firms to reduce their exposure to China.


In one scenario, India remains smaller than China for an indefinite future, and the strategy of coalition-building will remain central. There is, however, the possibility that India can roughly match Chinese strength in about 20 years. This is not just wishful thinking, and this is not predicated upon Chinese stumbles. It requires reversing the growth malaise of the post-2011 period. This requires foundational change in public policy frameworks around three main ideas: the increasing scale of government micro-management of the economy, the expanding administrative state and the growing erosion of the rule of law. A critical element of this 20-year journey lies in innovation policy. India needs to match and improve upon China's achievements in fostering research institutions and the intellectuals that inhabit them.

Becoming an advanced economy has always been the objective in India, right from the freedom movement and the creation of the Republic. What has changed in recent years is Chinese hostility, which has given a fresh dimension of urgency on solving the growth malaise, on learning how to be a mature market economy located in a liberal democracy. The judicious use of self reliance ("atmanirbhar") grounded in self confidence ("atmavishwas"), where a confident India engages with the world without insecurity, forms alliances with like minded countries, and leverages democracy and a skilled workforce to good effect, is the path through which the China challenge can be addressed.


Gautam Bambawale is former Ambassador of India to China, Pakistan and Bhutan. Vijay Kelkar is Vice-President, Pune International Centre. Raghunath Mashelkar is President, Pune International Centre. Ganesh Natarajan is Chairman of 5F World and of Lighthouse Communities. Ajit Ranade is Chief Economist, Aditya Birla Group. Ajay Shah is Research Professor of Business, Jindal Global University.

Grievance Redress by Courts in Consumer Finance Disputes

by Karan Gulati and Renuka Sane.

India has made progress on financial inclusion through the use of digital payments and fintech. As more and more consumers interact with the consumer finance industry, there will invariably be greater frictions and an increasing number of grievances. In an environment with a good consumer complaints system, these should get resolved by the financial service provider (FSP), and if not the FSP, then the regulator. However, this is not so in India. Courts are often the preferred recourse for retail consumers. For example, in the ongoing dispute regarding Yes Bank's written off AT-1 bonds, consumer courts seem like the last remaining alternative for retail investors. Unless grievances are satisfactorily resolved, we may hurt the progress made on financial inclusion. While India needs to set up good regulator-based grievance redress mechanisms such as a Financial Redress Agency, it also needs to improve the functioning of courts to provide effective relief in consumer finance (and other)disputes. In a recent paper, Grievance Redress by Courts in Consumer Finance Disputes, we review 60 judgments on consumer finance to study the position that courts have taken on these disputes. We also describe the challenges in court functioning that have a bearing on the efficiency of courts in dealing with issues of grievance redress.

The structure of courts

In 2020, India enacted a new Consumer Protection Act (CPA). The Act aims to protect consumers' interests and provide timely and effective settlement of disputes. It entrusts courts to redress consumer grievances. A complainant can approach specialised courts i.e. consumer commissions established by the CPA. However, these are additional remedies. Cases may also be decided by the High Court of various States and the Supreme Court of India.

The powers to grant relief depend on which court the complainant approaches. Consumer commissions are bound by the CPA. They may order a party to: (i) remove defects, (ii) return the price of the goods or the charges for the services along with interest, (iii) pay compensation or punitive damages, and (iv) withdraw the goods or services from the market. High Courts are bound to decide cases either within the confines of a statute under which they are approached or the constitution. Going one step further, the Supreme Court has held itself not restricted in any way to grant adequate relief.

Banking and insurance disputes

Litigation is disproportionately costly and troublesome for small consumers. Very rarely can an ordinary consumer go through the prolonged ordeal of fighting with a bank. For this reason, courts have granted relief to individual consumers, given that they come with clean hands.

This has not been the case when interpreting insurance contracts. If consumers knew about the terms, courts have enforced the terms of the contract, regardless of whether the terms themselves were unfair, one-sided, or opaque. On the other hand, if the terms were kept hidden from the consumer, courts have granted relief to consumers. This is true both while entering the contract and settling claims.

Several consumers have been introduced to complex products and contracts, but these consumers have insufficient know-how. They are vulnerable to mis-selling. The strategy in Indian finance has historically focused on the caveat emptor doctrine -- let the buyer beware. Though the new CPA gives consumer commissions the power to declare certain unfair terms as void, it does not address the ability to understand the terms. Thus, consumers have been left to their own devices, and unaware consumers are unlikely to get their desired remedy if they approach a court.

Challenges to court functioning

We find the following challenges in court functioning as they deal with consumer finance disputes.

  1. Low Compensation: Courts tend to award low compensation that does not adequately compensate the complainant. For example, in Dr Virendra Pal Kapoor v. Union of India and Ors, a senior citizen had invested INR 50,000 in a unit-linked product in 2007. Upon payout in 2012, he had lost the entire sum except INR 248 on account of hidden charges. Though the insurer was directed to repay the original Rs. 50,000, no interest was awarded. The reason for low compensation seems to be that there are no guidelines for courts to follow. There is no expert analysis of the loss. In the absence of financially prudent legislation, courts often tend to award compensation that only makes sense when the legislation is enacted.

  2. Delay: Low compensation becomes more severe when it takes too long to settle disputes. The CPA provides that cases should be decided in no more than five months. However, as per the case management system of the National Commission, it takes 1.99 and 2.38 years to settle banking and insurance disputes, respectively, i.e. more than five times the statutory guideline. In fact, in February 2020, the National Commission adjourned a matter till January 2021 - almost a year after the hearing.

  3. No Class Action: If consumers cannot understand complex financial agreements, they may benefit from pooling their knowledge and approaching courts as a class. Plaintiffs can share evidence, expert witnesses, and litigation costs. However, unlike other countries, such suits are few and far between in India. This may be because of unclear substantive law and strict rules on financing litigation. This makes it difficult for class members to come together. Courts have left it to their discretion to evaluate whether the class is adequately represented and whether financing agreements are fair. Moreover, the legislature had prohibited contingency fees. This creates a system that either prohibits or disincentives class actions.

  4. Specialisation: Consumer courts in India resolve all consumer disputes. Though the members are highly qualified individuals, they lack specialization in finance. This is unlike other common law countries where sectoral experts adjudicate finance disputes. They have adopted extensive adjudicatory legislation regarding financial products and services. On the other hand, laws in India regarding finance have been restricted, leaving courts to start from a clean slate. If timeliness and predictability can make India's finance regime more appealing, specialization by adjudicators could prove valuable.

Way forward

One obvious way to improve the system is by general improvements in the judiciary's capacity and knowledge on matters related to finance. This will, however, take a long time. Policymakers should also consider adopting certain targeted interventions.

There are two types of interventions that are required. The first is on the legislative front. Like the targeted legislation in other countries, the legislature could enact separate rules for financial transactions mandating clear and understandable disclosures. Policymakers may also consider prescribing adequacy requirements in class action suits and transitioning towards contingency fees for lawyers and third-party investors. Any such changes in legislation would also benefit from an advisory council on consumer finance. The council may be responsible for making representations about policies; reviewing, monitoring, and reporting their effectiveness; and highlighting its views on new rules and regulations.

The second is on the judicial front. One problem we identify is low compensation. This may be addressed by updating and consolidating the rules governing compensation considering modern market understanding. Other jurisdictions often order disgorgement (surrender of profits earned through illegal means) or grant a remedy of restitution. This seeks to measure actual damages. On the question of delays, courts may also separate their judicial and administrative functions. This will likely reduce the time it takes to conclude hearings since members of the commission would have more time to focus on their judicial tasks. The National Commission can also exercise its power to call for statistics from State Commissions and conduct systematic reviews.

These solutions can have significant consequences, especially in India, where financial literacy is low and regulatory enforcement appears weak. Though they were developed after studying consumer finance disputes, they may have consequences outside this domain and yield better functioning courts. Market-oriented compensation, without delay, when parties can come together as a class would be beneficial in any dispute. In a growing financial landscape such as India, redress bodies such as the judiciary become increasingly important. A specialized consumer protection law is a step in the right direction, but it can benefit from targeted interventions.

References

Department of Economic Affairs, Report of the Financial Sector Legislative Reforms Commission: Volume 1, March 2013.

Dhirendra Swarup, Establishing the Financial Redress Agency, January 27 2017, The Leap Blog.

Dr Virendra Pal Kapoor v. Union of India and Ors, May 29 2014, Allahabad High Court.

Karan Gulati and Renuka Sane, Why do we not see class-action suits in India? The case of consumer finance, May 03 2020, The Leap Blog.

Karan Gulati and Shubho Roy, India's low interest rate regime in litigation, March 11 2020, The Leap Blog.

Murali Krishnan, Supreme Court urges consumer forum to look into grievance of year-long adjournments, August 16 2020, Hindustan Times.

National Informatics Centre, Computerization and Computer Networking of Consumer Forum in the Country.

Neil Borate, Those mis-sold Yes Bank AT1 bonds face long haul, May 11 2020, LiveMint.

Pratik Datta, Mehtab Hans, Mayank Mishra, and others, How to Modernise the Working of Courts and Tribunals in India, March 25 2019, NIPFP Working Paper No 258.

Reserve Bank of India, National Strategy for Financial Inclusion, January 10 2020.

Supreme Court Bar Association v. Union of India, April 17 1998, Supreme Court of India.

Tinesh Bhasin, RBI sees 387% rise in complaints against NBFCs, 58% rise against banks, February 08 2021, LiveMint.


The authors are researchers at NIPFP.

Monday, March 22, 2021

How large is the payment delays problem in Indian public procurement?

by Pavithra Manivannan and Bhargavi Zaveri.

Payment delays are endemic in government contracts in India. Businesses generally factor payment delays into the price of public sector contracts. Measuring the size and extent of overall payment delays from the government to vendors and contractors has, however, been a challenge. In this article, we use a novel data-set put together from public sources to ascertain the size of the payment delays problem in Indian public procurement.

When a private entity delays contractual payments, the delay is factored into the price of the next vendor contract or the debt contracted by the private entity. This feedback loop naturally instills payment discipline by aligning the payer's incentives with maintaining payment discipline. This is harder to achieve for government contracts, as information about payment delays in public procurement is often sparse, difficult to discern from budgetary statements or missing altogether. The problem is compounded as the state procures goods, services and works at various levels and through various entities owned by it. Payment delays affect the working capital cycle of vendors of all sizes. However, payment delays have a particularly deleterious impact on Micro Small and Medium Enterprises (MSMEs), which often have limited access to formal financial systems to bridge their working capital requirements. Timely payments, therefore, are of crucial importance to MSMEs as they rely on their cash-flow cycle to fund their working capital requirements.

Payment delays in contracts with CPSEs

A significant proportion of overall central government procurement is undertaken by centrally owned public sector enterprises (CPSEs). Most CPSEs are incorporated as companies and many of them are listed. We use the information in the annual results of CPSEs as a proxy to ascertain the scale of payment delays in the public procurement undertaken by the central government. We study the balance sheet and annual reports of listed CPSEs for the last three financial years, 2017-18, 2018-19 and 2019-20 ("study period").

We find that CPSEs had annual average outstanding trade payables of Rs.1.3 trillion as against an annual average procurement value of Rs.1.1 trillion, during our study period. This suggests that the annual average outstanding trade payables of CPSEs were about 18% higher than the annual average procurement undertaken by the CPSEs. We also find that when taken as a percentage of the value procured, CPSEs under some ministries, such as the Railway and Defence Ministries and Ministry of Housing and Urban Affairs, fare significantly worse than others.. Further, we find that on an average, payments worth 8% of the total value procured from MSMEs are delayed for more than 45 days from their due date. Finally, we find that CPSEs demonstrate weak payment discipline towards all their vendors, and that the MSME vendors are not worse-off than the other vendors. This suggests that in the case of government contracts, the imbalance of the relative negotiating power of MSME vendors and non-MSME vendors has limited impact on the behaviour of the payer.

Our work demonstrates the potential to develop an ongoing system to measure payment discipline in public procurement, which could then act as a feedback loop for pricing vendor contracts when dealing with CPSEs and the government departments to which they are aligned.

Data and methodology

Our analysis is based on a hand collected data-set put together from the following two public sources of data:

  1. the MSME Sambandh portal set up by the the Ministry of Micro, Small and Medium Enterprise in 2017, to monitor the implementation of the Public Procurement Policy, 2012;
  2. Annual reports and annual balance sheets published by CPSEs.

Our data-set consists of firm level information about CPSEs, such as the year of their incorporation, listing date, industry classification, variables indicative of their financial health and the procurement undertaken by them. We augment the data-set with information on payments delayed by CPSEs to MSME suppliers beyond 45 days from the date on which such payments became due (hereafter, "delayed payments"). The Micro, Small and Medium Enterprises Act, 2006 (MSME Act)requires all companies that procure goods, services and works from micro, small and medium enterprises to disclose such payments in their annual report in the prescribed format.

Our data-set covers this information for 57 listed CPSEs. We collect the data for these CPSEs for three financial years beginning with the year in which the MSME Sambandh Portal was set up. This gives us data for the financial years, 2017-18, 2018-19 and 2019-20, which is our study period.

These 57 CPSEs are spread across 17 departments or ministries of the Central Government, with the largest number concentrated under the Ministry of Petroleum and Natural Gas (19.3%), followed by the Ministry of Power (10.53%) and the Ministry of Steel (8.77%). The CPSEs in our data-set are spread across 34 industries, as per the National Industrial Classification (NIC) scheme prescribed by the Ministry of Statistics and Programme Implementation (MoSPI). CPSEs in the business of 'electricity, gas, stem and hot water supply' account for the largest group (12.28%) followed by CPSEs engaged in the business of manufacturing coke, refined petroleum products and nuclear fuel (8.77%).

Each CPSE reports a target procurement value at the beginning of the financial year and the actual procurement value at the end of the financial year, on the MSME Sambandh portal. Table 1 shows the aggregate value of goods, services and works targeted and actually procured by the CPSEs in our data-set across different government departments.

Table 1: Procurement by CPSEs

No. of
CPSEs
Target
(Rs. crore)
Actual
(Rs. crore)

Department of Chemicals and Petrochemicals 2 371.66 308.38
Department of Commerce 2 17.28 18.3
Department of Defense Production 3 1963.33 2880.47
Department of Fertilisers 4 2547.34 2641.74
Department of Heavy Industry 4 16392.1 15209.25
Department of Telecommunications 2 0 0
Ministry of Coal 2 5977.39 1774.82
Ministry of Defense 3 5838.79 7066.05
Ministry of Housing and Urban Affairs 2 12.61 12.67
Ministry of Mines 2 2573 7132.09
Ministry of Petroleum and Natural Gas 11 52175.63 63849.08
Ministry of Power 6 6142.97 6608.55
Ministry of Railways 4 395.07 429.31
Ministry of Science and Technology 1 38 17.49
Ministry of Shipping 3 1725.67 1321.45
Ministry of Steel 5 4556.4 5356.22
Ministry of Tourism 1 125.07 34.85

The Ministry of Petroleum and Natural Gas is the largest procurer in our data-set, both in terms of the number of CPSEs and the value of goods, services and works procured by them. Table 1 also shows that a majority of the CPSEs have procured more than their annual targeted value. We observe this to be true across all the three financial years comprised in our study period.

Findings: CPSEs' outstanding dues

Trade payable are a rough proxy of the amounts due from a firm to vendors and service providers. We use the data on outstanding trade payable from the balance sheets of CPSEs as an estimate of payment delays in public procurement. Table 2 shows the three-year annual average outstanding trade payable due from the CPSEs in our data-set. The second column indicates the corresponding annual average value of procurement undertaken by these CPSEs, and the last column indicates the average outstanding trade payable as a percentage of the average annual procurement undertaken by the CPSEs.

Table 2: Average outstanding trade payable and procurement value

Procurement value
(Rs. crore)
Outstanding payable
(Rs. crore)
Payable/ procurement
(percent)

Department of Chemicals and Petrochemicals 308.38 106.11 34.41
Department of Commerce 18.3 1119.66 6118.36
Department of Defense Production 2880.47 3449.92 119.77
Department of Fertilizers 2641.74 1971.93 74.65
Department of Heavy Industry 15209.25 10297.54 67.71
Department of Telecommunications 0.00 2313.67 0.00
Ministry of Coal 1774.82 1898.59 106.97
Ministry of Defense 7066.05 3031.90 42.91
Ministry of Housing and Urban Affairs 12.67 2709.40 21384.37
Ministry of Mines 7132.09 1227.54 17.21
Ministry of Petroleum and Natural Gas 63849.08 82830.09 129.73
Ministry of Power 6608.55 7907.65 119.66
Ministry of Railways 429.31 1243.77 289.71
Ministry of Science and Technology 17.49 29.38 167.98
Ministry of Shipping 1321.45 1562.02 118.21
Ministry of Steel 5356.22 8739.99 163.17
Ministry of Tourism 34.85 58.94 169.12

Total 114660.72 130498.11 113.81

While the procurement value of a given financial year does not necessarily mean that the entire value of the contract becomes payable in the same financial year as the procurement contract may span across multiple years, the three year average numbers in Table 3, however, show a systemic break-down in the payment discipline of CPSEs. We speculate that these trade payable would have aggregated over time, and do not necessarily pertain entirely to the study period.

We then look at three departments/ ministries that account for the largest procurement by value in our data-set, to investigate the differences in the payment behaviour of CPSEs towards MSMEs and non-MSME vendors (Table 3). The CPSEs in these three departments also account for nearly 75% of the total outstanding trade payable of all the CPSEs in our data-set.

Table 3: Outstanding trade payable of CPSEs (as percent of value procured)


2017-18 2018-19 2019-20 Total
Non-MSME MSME Non-MSME MSME Non-MSME MSME Non-MSME MSME

Department of Heavy Industry 84.02 7.87 80.87 15.82 110.63 11.81 88.89 12.22
Ministry of Petroleum and Natural Gas 182.65 7.60 187.97 3.56 143.05 4.13 171.49 4.32
Ministry of Power 116.44 14.90 161.54 15.35 292.02 21.73 175.63 17.46

In each of the three cases, the proportion of total outstanding trade payable to the value procured by the CPSEs during the study period is much higher for non-MSMEs than MSMEs. In the case of the Ministry of Petroleum and Natural Gas and the Ministry of Steel, the proportion of outstanding trade payable to non-MSME vendors exceeds 100% of the value procured, on an aggregate basis across the three years. Compared to non-MSME vendors, this proportion is significantly lower for MSME vendors (the highest being 21%).

Findings: Delayed payments by CPSEs to MSME suppliers

The final leg of our measurement involves estimating the 'delayed payments' by CPSEs to MSMEs, that is, payments delayed beyond 45 days from their due date. We aggregate the delayed payments outstanding as at year-end, by CPSEs to MSMEs, government department wise. Table 4 shows the delayed payments as a percentage of their annual procurement value from MSMEs.

Table 4: Delayed payments as percentage of procurement


2017-18 2018-19 2019-20 Average

Department of Chemicals and Petrochemicals 6.22 11.73 11.84 10.46
Department of Commerce 0.86 47.38 1.08 17.47
Department of Defense Production 5.82 3.35 5.44 4.78
Department of Fertilizers 7.58 5.25 4.82 5.38
Department of Heavy Industry 7.91 15.92 12.11 12.37
Department of Telecommunications 0 0 0 0
Ministry of Coal 9.11 5.42 8.47 7.19
Ministry of Defense 3.55 3.20 3.98 3.56
Ministry of Housing and Urban Affairs 6.72 4.86 5.49 5.70
Ministry of Mines 2.79 1.51 2.85 2.37
Ministry of Petroleum and Natural Gas 4.12 4.80 6.18 5.25
Ministry of Power 24.95 25.33 31.87 27.51
Ministry of Railways 11.03 20.58 11.02 13.62
Ministry of Science and Technology 0 0 0 0
Ministry of Shipping 14.36 3.47 2.94 5.62
Ministry of Steel 4.84 10.18 4.81 6.18
Ministry of Tourism 0 0 21.13 21.13

Total 7.36 8.06 8.70 8.16

We find that the delayed payments by CPSEs to MSMEs average at about 8% of the actual value of goods, services and works procured by them from MSMEs during the study period. This percentage has marginally increased from 2017-2018, and is higher than the average in 2019-20.

Conclusion

In this article, we take a sector-agnostic approach to measure the scale of the payment delays problem in public procurement in India. An analysis of the annual returns and balance sheets of CPSEs gives us new insights on the scale of the problem at three levels, namely, at the level of the CPSE, the industry and the government department to which the CPSE is aligned.

Our analysis provides evidence of the popular perception of CPSEs' weak payment discipline to vendors. Taken as a percentage of the average procurement undertaken by CPSEs, the payment delays by CPSEs to their vendors far exceeds their procurement values. Second, while CPSEs demonstrate weak payment discipline to both MSME and non-MSME vendors, the delay seems to be much larger towards large vendors than the small ones. Third, the delayed payments reporting requirements mandated under the MSME Act provides us an illustrative picture on the payment discipline of the CPSEs. For two out of three years of our study period, we notice that the total delayed payments to MSMEs is higher than the three-years average (Rs. 2323.42 crores).

Our approach of understanding payment delays in public procurement in India, through balance sheets of CPSEs demonstrates the possibility of setting up ongoing systems for the measurement of payment discipline of government departments through CPSEs aligned to them. Further, these delays may be indicative of either of liquidity mismatches or solvency issues, at the CPSE, or a mix of both. By approaching this problem from a balance sheet perspective, our study lays the foundation for conducting future work on the possible relationship between the financial health of the procurers and their payment discipline.


The authors are researchers at the CMI-Finance Research Group and thank Susan Thomas for valuable discussions.