Lost in Translation: Legislative Drafting and Judicial Discretion

by Madhav Goel and Renuka Sane.

Precisely drafted legislation that reflects its objective and boundaries, and judicial discretion that confines itself to legislative intent are critical pillars of a rule of law economy. There are concerns that both are broken in India. In a new paper, Lost in Translation: Legislative Drafting and Judicial Discretion we discuss these issues in the context of the decision of the Supreme Court in Vidarbha Industries Power Ltd. v. Axis Bank Ltd. (Vidarbha) pertaining to the Insolvency and Bankruptcy Code, 2016 (IBC, or Code).

The IBC sought to introduce an objective test for initiating insolvency, providing that as long as a financial creditor files for insolvency and the objective criteria of "debt" and "default" are established, the National Company Law Tribunal (NCLT) is expected to initiate the corporate insolvency resolution process (CIRP). Until 2022, this intent had been respected. However, Vidarbha conferred discretion on the NCLT to not accept an insolvency petition by relying on the use of the word may in the phrase, may admit the petition, in Section 7. This has opened the gates to increased discretion in the admission of IBC petitions, potentially derailing the entire reform process. In fact, in a majority (56%) of the reported cases the NCLT has chosen to not admit the application for initiation of CIRP. These range from instances where the corporate debtor is owed money, to where the Court suspects the intention of the creditor to file for insolvency. Furthermore, there are two instances where the NCLT/NCLAT has exercised the discretion conferred by Vidarbha in respect of applications by operational creditors under Section 9 of the Code. This is despite the fact that the statutory language of Section 9 as well as the decision in Vidarbha nowhere confers such discretionary powers upon the NCLT/NCLAT. By doing so, the NCLT/NCLAT have potentially opened the door to further expansion of the scope of discretion conferred by Vidarbha to extend to applications under Section 9 as well, an outcome fraught with its own issues.

The Vidarbha judgement raises three questions:

1. Quality of drafting: The Bankruptcy Legislative Reform Commission's recommendation on lack of discretion was clear. The legislation, however, provided no rationale for why it chose to ignore the BLRC report and allow for the possibility of discretion by using the word may in Section 7. If it was an inadvertent change in the language of the provision, then that highlights the need to make the drafting process more robust. If the change was deliberate, then the lack of publicly available reasoning is harmful as it not only goes against the fundamental tenet of rule of law that material decisions ought to be accompanied with reasons, but also because the lack of reasoning has led to uncertainty in the law. Interestingly, the Government itself is pushing for a review of the decision in Vidarbha, a situation that could have been avoided if the drafting processes were more robust, transparent, and accompanied with reasons.
2. Legislative intent: The jurisprudence on the treatment of the words "may" and "shall" has been fairly fluid. The rule of thumb is that the former implies conferral of discretion, while the latter implies a mandatory obligation. However, the rule can be dispensed in certain cases, and the courts can interpret "may" as "shall" and "shall" as "may". These are cases where an analysis of the real intention of the legislature points to dispensing with the rule of thumb. In these instances, the Courts have gone beyond the statutory language and treated the legislative intent as its north star in interpreting the words "may" and "shall". That approach was missing in Vidarbha, and it is unclear why.
3. Tests for applying discretion: The Court did not provide guidelines for exercise of this discretion or for determining insolvency. Unchecked discretion eventually leads to abuse of power. In Vidarbha, the Court failed to provide tests for exercise of discretion to admit/not admit an insolvency petition, thus creating a situation that will lead to greater uncertainty of law. Consequent to Vidarbha, NCLTs will devise their own methods to assess whether a corporate debtor is financially healthy and solvent, thus leading to greater uncertainty and lesser consistency of law. This can already be seen from the fact that the NCLT/NCLAT has exercised discretion in 13 cases to dismiss the CIRP initiation applications for myriad reasons, whereas there are at least 10 other cases where the NCLT/NCLAT has expressly declined to exercise the discretion.

The economic effect of unguided discretion and lack of certainty in the law will be that prolonged litigation and delayed timelines will result in erosion of the economic value of the corporate debtor's assets, reducing the chances of it being brought back to life. As a consequence, the Ministry of Corporate Affairs has proposed a series of amendments to the IBC, one of which seeks to clarify the law that it is mandatory for the NCLT to admit petitions under Section 7 once "debt" and "default" are established. While it fixes the obvious mistake in the initial drafting, it does not guarantee that the judiciary will take cognizance of legislative intent. There is therefore a need for deeper reform, both of legislative drafting, and of the way the judiciary interprets economic and commercial laws.

The authors are researchers at TrustBridge.

Author: Karthik Suresh

Karthik Suresh is a researcher at XKDR Forum, Mumbai.

On this blog:

• Are startups engaging in innovation in India?, 25 April 2023.
• Revising the Information Technology Act, 2000, 4 April 2023.
• History of disinvestment in India, 21 March 2022.
• Grievance Redress in the Financial Sector in India: Lessons from the field, 26 February 2021.
• Applicability of the IBC to public sector enterprises: The case of Hindustan Antibiotics Ltd, 18 February 2020.

Author: Rishab Bailey

Rishab Bailey is a Lawyer, Technology Policy Researcher and Visiting Fellow, XKDR Forum, Mumbai.

On this blog:

• Revising the Information Technology Act, 2000, 4 April 2023.
• Backdoors to Encryption: Analysing an Intermediary's Duty to Provide 'Technical Assistance', 10 May 2021.
• Analysing India's KYC Framework: Can We Do Things Better?, 13 April 2021.
• Response to the Consultation Whitepaper on 'Strategy for National Open Digital Ecosystems (NODEs)', 12 July 2020.
• Comments on the draft Personal Data Protection Bill, 2019: Part II, 10 April 2020.
• Comments on the draft Personal Data Protection Bill, 2019, 3 April 2020.
• Fiduciary relationships as a means to protect privacy: Examining the use of the fiduciary concept in the draft Personal Data Protection Bill, 2019, 13 January 2020.
• Data localisation in India: Questioning the means and ends, 22 February 2019.
• Disclosures in privacy policies: Does 'notice and consent' work?, 19 February 2019.
• Response to the Draft Personal Data Protection Bill, 2018, 20 October 2018.
• Placing surveillance reforms in the data protection debate, 6 August 2018.

Announcements

We in XKDR Forum are recruiting in both policy & quantitative-research roles.

Quantitative research: we integrate multiple datasets (household survey data, firm data, macroeconomic and financial time-series, satellite imagery, legal systems data, other custom datasets) to obtain insights into the world aiming for academic research and real world applications. Along the way, we innovate on methods. Here are some examples: self reported health, informational efficiency of credit ratings, the working of financial markets, improved methods for nighttime lights radiance satellite imagery. We build open source packages in Julia and R, partly to do better computation around existing methods, and partly to express our innovations in statistical and computational methods.

The right persons for quantitative research at XKDR Forum are those who have knowledge of mathematics, statistics, computer science and economics, and take interest in the world, in applying quantitative tools to obtaining insights into the world. Existing capabilities with contributions to open source projects are a plus. Of great importance is collaboration with the policy oriented researchers in XKDR Forum.

Policy oriented research: we build knowledge on the working of government and how improvements can be made, and carry the knowledge through into connections into the real world reform process. We stand on the modern understanding of the Indian state and the difficulties of the Indian development journey, that fuses public economics, law and public administration, as seen in the ISOTR book. The X in XKDR Forum stands for Inter-disciplinary: we integrate diverse strands of knowledge into innovating on the question at hand. Of particular importance are the fields of government contracting, legal system reform, household finance, and climate change. Our thinking in each of these fields takes from and feeds into the big picture of Indian development strategy.

The right persons for policy research at XKDR Forum are those who take interest in the world, and bring social science and humanities insights into the world. Of great importance is collaboration with the quantitative researchers in XKDR Forum. 

In both categories, we care more about knowledge and passion, and less about the credentialism. High levels of intrinsic motivation are essential. Please look us up at: website, youtube channel, open source releases, annual conference, newsletter on substack.

The remuneration offered will be commensurate with your skill and experience and will be comparable with what is found in the Indian research ecosystem.

Interested candidates must email their resume with the subject line: Application for "Research Associate" at XKDR Forum, to Ms. Jyoti Manke at careers@xkdr.org by 31st May, 2023.

Are startups engaging in innovation in India?

by Aneesha Chitgupi, Karthik Suresh and Diya Uday.

Introduction

What is a startup? The academic literature takes a broad view --- startups:

• have a high growth rate (Moogk 2012),
• have a lower number of employees (Beck et al. 2008),
• are at the early stage of the life cycle of a firm (Eisenmann 2013, Stevenson and Jarillo 1990), and
• are drivers of innovation (Cohen and Klepper, 1996).

However, governments across the world focus on the link between startups and innovation. In the Netherlands, a startup is defined as "a business that translates an innovative idea into a scalable and generic product or service, using new technology." In the United States, a startup is one that "has never been an SEC reporting company, uses invested capital, often from venture capital investors, to build an innovative growth focused, scalable business." The Israeli "innovation model" is "largely based on the creation of technological value, mainly in start-up companies and multinational corporations R&D centres".

This is true of the Indian government as well. The stated objective of the Startup India Action Plan of 2016 is to promote innovation. The idea that startups are innovative is also reflected in the draft Science, Technology and Innovation Policy of 2020) as well as foreign policy initiatives like the Engagement Group on startups at the ongoing G-20 Summit.

The Startup India Policy offers a suite of regulatory exemptions and incentives linked to innovation by startups. Two key components of this policy are: (i) reduced fees and priority in processing patent and design applications for startups, and (ii) full exemptions on income tax to the startup following approval from an Inter-ministerial Board (IMB). The Startup India Policy has been amended several times. Key changes relating to the definition of a startup have been:

1. February 2016: a startup is (i) not older than five years from the date of its incorporation/registration, (ii) turnover in any of the previous five financial years has not exceeded INR 250 million, and (iii) it is working towards innovation, development, deployment or commercialisation of new products, processes or services driven by technology or intellectual property. The startup should develop and commercialise "a new or a significantly improved product or service or process that will create or add value for customers or workflow".
   To be registered with the DPIIT, as well as to qualify for the tax exemption, a startup needs to be recommended by a registered incubator, or an angel/private equity/ accelerator fund with at least 20 per cent funding, or by the Union or state government as part of a scheme to promote innovation, or it should have filed a patent.
2. May 2017: the age of an eligible firm and the period for calculation of turnover was increased from five to seven years from the date of its incorporation/registration (ten for firms in the biotechnology sector).
   In addition to the definition, a startup may now also have scalable business models with a high potential of employment generation or wealth creation to gain benefits.
   To register as a startup and avail of the tax exemption from the IMB, a firm now only has to make an online application by providing the details of (i) certificate of incorporation/ registration and "other relevant details as may be sought", and (ii) a write-up about the nature of business highlighting how it meets the criteria in the definition. The DPIIT would consider "innovativeness" from a domestic standpoint. DPIIT may grant or reject recognition after review.
3. February 2019: age requirement of an eligible startup was relaxed to ten years for firms across all sectors. The turnover limit was increased to INR 1 billion.

Given the emphasis on "innovation", we consider it important to examine whether India's policies are incentivising innovation by startups by asking the following questions:

1. Are startups in India engaging in innovation?
2. How innovative are Indian startups compared to non-startup firms?

To answer this, we require some well-accepted measure for studying startup innovation. We adopt the most popular method i.e. using patent fillings and grants as proxies to measure innovation (Wang 2018; de Rassenfosse 2019; Katila 2000). We chose this over other proxies like expenditure on R&D (Rothwell and Ziegler, 1981; Geroski, 1989). We examine our questions using patent filings and grants to startups. We also use a novel measure i.e. the benchmarks for innovation as defined under the Startup India policy. We found that startups are not driving "innovation" in the conventional sense of the term in India.

We lend new insights into the conventional wisdom on startups and innovation in India and highlight the need for a re-look at the current policy on startups in India.

Methodology

We use two methods to determine whether startups are engaging in innovation:

(i) Measuring innovation using patent applications and grants: We hand-collected data on patent filings and grants from the Indian Patent Office across different categories of entities for the years 2016-17 to 2020-21. We substantiate this data using the annual reports of the Department of Promotion of Industry and Internal Trade (DPIIT). We examined the fraction of patents filed and granted by startups over the years compared to other entities.

(ii) Measuring innovation using startup registration and granted Income Tax (IT) exemptions under the Startup India Policy: The Startup India Policy 2015 requires startups to be innovative to (i) register as a startup and (ii) be granted IT exemptions under the Startup India Policy read with section 80-IAC of the Income Tax Act. We collected data on the number of startups that have successfully received tax benefits (after being classified as innovative). We then calculated the fraction of startups that were granted exemptions versus total startup registrations. For this, we collected data on startup registrations, applications for IT exemptions and approvals to applications of IT applications for all states and UTs in India between 2016-2022. We aim to gain insights into how many startups are "innovative" according to the policy definitions of "innovation".

We also collect currently available data on the total number of startups in India with the number of startups that are registered with the DPIIT. However, this is only available for the current year. We aim to examine how many startups in India qualify under the policy definition of a recognised startup to examine the stringency of the definition of a startup.

We conducted a detailed analysis of startup policies in India to give us further insight into our results from (i) and (ii) above.

Results

Impressive growth rate in patent filings by startups but their overall share remains small: We examined patents filed and granted by Indian startups versus other Indian entities which include small firms, private and public firms, and natural persons. We did not include foreign firms and institutions filing for patents in India or Indian entities filing for patents abroad. We found, across the years, that the number of patents filed by startups has increased possibly on account of the fee waiver and fast-tracking of applications. We also see specific increases in the years in which these interventions were made (May 2017, February 2019) when patent filings doubled (see Figure 1). The CAGR for patents filed by startups and other entities show a disproportionate growth rate for startups at 54 per cent for the period between 2016-17 to 2020-21 which was nearly 12 per cent for other entities for the same period. We found that startups constitute a small proportion of the total patents filed in India when compared to other entities. Patent filings were largely driven by large firms and universities.

Figure 1: Fraction of patents filed by startups over non-startups (2016-17 to 2020-21)

Disproportionately fewer startups were granted patents: The share of patents granted to startups peaked at 8.8 per cent during 2017-18, remained the same the following year and has declined since then. One reason for this could be that startups were obliged to file for a patent to receive registration under DPIIT as well as for applying for IT exemption. The reason for the drop in shares of both patents filed and granted during 2020-21 could be the removal of patents as a condition for registration of a startup and for IT exemption (in May 2017). We also believe that there could be an overall decline in the quality of patents filed. It appears that while the current policy has incentivised firms to file patents, their applications do not pass the more stringent test of proving innovation and hence they fail. The threshold required to grant a patent is strict and requires a firm to prove novelty, which is not the case at the application stage where anyone may file for a patent.

Figure 2: Fraction of patents granted to startups over non-startups (2016-17 to 2020-21)

Source: Annual reports of Indian Patents Office

Figure 1 showed that the share of patents filed by startups in total patents filed was rising during the period 2016-17 to 2019-20. This is not the case for the share of patents granted (Figure 2).

Less than two-fifths of startups registered with DPIIT qualify for benefits: We find that since 2016, the number of companies registered as startups under the Startup India Policy with the DPIIT has increased in absolute terms. However, the growth rate over time has reduced. We further find that out of all the startups that exist in India, only a percentage of them qualify as "startups" under the Startup India Policy and have been registered as such. For instance, there are 2,49,107 startups in India (as on February 2023) out of which only 90,939 (36.5 per cent) are registered by the DPIIT as startups. It is possible that the unregistered startups have either not applied to be registered or have not qualified as startups as per the definitions. This raises the question: is our current definition of a startup under the Startup India Policy the right one? Should we rethink the definition to extend the benefits of the policy to more startups on the ground?

Low grant percentage of IT exemptions for startups: We found that out of the total number of registered startups, less than 2 per cent of startups have been granted the IT exemption, signifying that few startups have been certified as innovative as described in the Startup Policy on external scrutiny by the IMB. We validated this with data on the number of applications for the IT exemption for the year in which this data is available (2017) and found that 90 per cent of registered startups applied for the IT exemption in that year. This indicates that the low fraction of startups receiving IT exemptions is not for the lack of application on the part of registered startups. This has even prompted questions in Parliament.

To be registered as a startup under DPIIT, a startup has to only declare that they are working towards innovation, whereas to obtain an IT exemption, the fact of innovation is scrutinised by the IMB based on specific criteria because of which a startup may not qualify. It is possible that, at registration under the policy a startup need not demonstrate innovation but only declare it, however, for the IT exemption it must now demonstrate and prove innovation in the manner specified in the policy. It appears that few startups are actually being innovative according to the Startup India Policy. Table 1 summarises our findings.

Table 1: Total startups registered and granted IT exemptions based on whether they are "innovative" (2015-2016 to 2020-21).

Year	Number of startups registered	Growth rate (%)	No of startups granted 80-IAC	Fraction of total (%)
2015-16	471	--	7	1.5
2016-17	5233	1011	69	1.3
2017-18	8775	68	18	0.2
2018-19	11417	30	162	1.4
2019-20	14596	28	83	0.6
2020-21	20160	38	70	0.3

Source: Authors' calculations from DPIIT data

Limitations: (i) We do not have access to consistent yearly data on the number of total startups v. those which are registered. (ii) We do not have data on the pre-policy period. (iii) Our present study is not focused on industry-level features. We intend to pursue this in the next leg of our study.

Discussion

Our findings indicate that both measures --- IT exemption grants based on innovation and patents filings and grants --- suggest that innovation in India does not consistently emerge from startups. Instead, our findings are in line with studies in other jurisdictions which suggest that large firms undertake most innovation on account of their risk appetite and R&D capacity (Cohen and Klepper 1996, Symeonidis 1996). Our findings are also aligned with reports that indicate large firms and universities engage most in innovation if measured by patent filings in India. Is this, however, a true picture of innovation on-ground? And what are the implications of our findings for current innovation policies for startups?

The literature makes the case for government intervention on startup innovation citing the disparity in the ability to compete as a market failure (Wang 2018, Symeonidis 1996). The argument is that startups require a boost to even out the playing field as they are unable to compete with larger firms with more resources. Our findings lend some support to this by demonstrating that (i) startups in India are not innovating as much as large firms, and (ii) patent filings by startups have increased since the Startup India policy came into effect. We also, find that patent grants to startups have not increased. Therefore, despite government intervention in India, startups are not driving innovation. Some explanations for this are as follows:

• The current set of incentives may not be sufficient to drive startups to innovate more. We find some support for this in the literature that finds that supply-side policies alone (e.g. subsidies) are not sufficient to stimulate innovation (Geroski 1989). Focusing on additional demand-side measures such as public procurement of innovation from startups may trigger greater innovation as it reduces the market risk for innovators (Rothwell et al. 1981; Tiwari 2017).
• Conventional notions of innovation are linked to "novelty" through patenting which is a very high standard for measuring innovation. In reality, startups in India may be engaging in innovation which is not eligible for conventional patents such as technological improvements or modifications suited to the domestic context. Reports suggest that startups in India adopt rather than innovate in the conventional sense. For instance, India is using the technology adoption route for developing Web3.
  Another reason could be that Indian firms are innovating but are not registering patents in India. Reasons for this range from poor enforcement in India to sector-specific commercial preferences. An example of the latter is the semiconductor sector --- India has a large chip design industry but this work is done on a contract basis for US semiconductor firms which file their patents in the US.
  Therefore, patents may not be the best way to measure innovation in India. Current startup policies in India should re-think the definition of "innovation" and make it more suited for the Indian context.

We gain some insights from the innovation-linked incentives that are offered by other countries. In South Korea, which has the highest per-capita granting of patents in the world, all startups irrespective of how innovative they are qualify for reduced fees in patent filings and certain tax exemptions available to SMEs. South Korean policy appears to focus more on promoting linkage between large and small firms to promote networking and market access. In the Netherlands, which ranks ninth in the world in patent filings, vouchers are given to SMEs for patent filing that cover up to 75% of costs. The Dutch Tax Office evaluates and grants specific tax incentives for "technical-scientific research" and "development projects". Both these countries, considered to be highly innovative, have tax schemes that are targeted at specific outcomes and there are some general exemptions for patent filings. India could perhaps learn from these policies.

Conclusion

We set out to answer two questions in this article: Are startups engaging in innovation? How innovative are startups compared to non-startup firms? Our findings using both measures indicate that startups are not driving "innovation" in the conventional sense of the term in India. However, many Indian startups have scaled up by engaging technology towards creative solutions in many industries such as payments (Paytm), e-commerce (Meesho), credit cards (CRED) and healthcare delivery (PharmEasy). While these firms may not do well on the conventional measures of "innovation", they have played a role in encouraging entrepreneurship to solve everyday challenges, all while benefiting their shareholders.[1] Policy in India must, therefore, be suitably modified to recognise such contributions towards innovation. This is an emerging idea that Indian policymakers are increasingly acknowledging. For instance, the Economic Advisory Council to the Prime Minister of India noted the importance of FDI from tech transfers as a key source of promoting innovation in India. We need to think harder about what "innovation" means in India and what role should the government play in encouraging innovation.

In further research, we will analyse the pattern of patents filed and granted across various industries to understand which sectors are more innovative in the traditional sense. We will also examine the firms that have received the IMB's certification of being "innovative" to (i) study the characteristics of these firms and the industries to which they belong, and (ii) study the trends in the grant of certification by the IMB for innovation to startups. This will help us gain a more nuanced understanding of what drives innovation among startup firms in India.

Footnotes

[1] According to its Red Herring Prospectus filed at the time of its IPO (November 2021), Paytm does not own any patents.

References

1. Tom Eisenmann, Entrepreneurship: A Working Definition. Harvard Business Review, January 10, 2013.
2. Stevenson, H. H., and Jarillo, J. C., A Paradigm of Entrepreneurship: Entrepreneurial Management. Strategic Management Journal, 11 (1990), 17-27.
3. Dobrila Rancic Moogk, Minimum Viable Product and the Importance of Experimentation in Technology Startups, Technology Innovation Management Review, March 2012.
4. Beck, Thorsten and Demirguc-Kunt, Asli and Maksimovic, Vojislav, Financing patterns around the world: Are small firms different?, Journal of Financial Economics, Volume 89, Issue 3, September 2008, Pages 467-487.
5. Jue Wang. Innovation and government intervention: A comparison of Singapore and Hong Kong. In: Research Policy 47.2 (Mar. 2018), 399-412.
6. Wesley M Cohen and Steven Klepper, A Reprise of Size and R&D. In: Economic Journal (1996), 106 (437), pp. 925-51.
7. Gaetan de Rassenfosse, Adam Jaffe, and Emilio Raiteri. The procurement of innovation by the U.S. government. In: PLOS ONE 14 (Aug. 2019), pp. 1-11.
8. Katila, R. Measuring innovation performance. In: International Journal of Business Performance Measurement (2000), 2: 180-193.
9. P. A. Geroski. Entry, Innovation and Productivity Growth. In: The Review of Economics and Statistics 71.4 (1989), 572-578.
10. R Rothwell and W Zegweld. Industrial Innovation and Public Policy: Preparing for the 1980s and the 1990s. In: London: Francis Pinter Publications (1981).
11. G. Symeonidis, Innovation, Firm Size and Market Structure: Schumpeterian Hypotheses and Some New Themes, OECD Economics Department Working Papers, 161 (1996).
12. S.A. Low and M.A. Isserman. Where Are the Innovative Entrepreneurs? Identifying Innovative Industries and Measuring Innovative Entrepreneurship. In: International Regional Science Review 38.2 (2015), 171-201.

Aneesha Chitgupi, Karthik Suresh and Diya Uday are researchers at XKDR Forum. We thank Devendra Damle, Josh Felman, Dr. R. A. Mashelkar, Amey Mashelkar, Megha Patnaik, Arjun Rajagopal, Anjali Sharma and the anonymous referees for their feedback and comments.

The place of short selling in the financial markets

by K. P. Krishnan, Renuka Sane, Ajay Shah, Anjali Sharma, Harsh Vardhan, Bhargavi Zaveri-Shah.

The Hindenburg report has reopened the Indian debate on regulatory restrictions on short selling. Is there market failure with activist short selling, that is, the practice of short sellers disseminating information (usually adverse) about the firms whose stocks they have shorted? Activist short sellers have the incentive to release negative information, which may be misleading or even false, aiming for maximal visibility. Does responding to adverse information impose an unreasonable burden of time and effort upon managers of the firm, and consequently higher costs on their customers? Is there a role for financial regulation to proscribe activist short selling or all short selling?

We argue that short seller activism improves market quality. The focus of financial regulation should be upon market abuse, and this includes market-based abuse and information-based abuse. In India, much of the policy discussion on short-selling is moot, given that short-selling, as is widely understood in the financial industry, is largely infeasible. In any case, in this globalised world, there is nothing that an Indian regulator can do about these activities taking place overseas.

Defining short selling

When a person has a negative view about the outlook for a financial price, she wants to sell. What happens when she does not own these shares? Short selling refers to the procedures on the market through which a person with a negative view can achieve a profit from successfully forecasting a price decline, even without directly owning the shares. There are roughly three ways to do this:

1. Sell stock futures.
2. Buy put options (or to sell call options).
3. Borrow shares and sell them.

The #3 is termed “short selling”. This involves (a) Borrowing shares (b) Selling them (c) Waiting (d) Buying back the shares from the market (at a hoped-for lower price) and (e) Returning the shares with interest.

In India, for all practical purposes, short selling is infeasible. While the institutional mechanisms for borrowing shares exist on websites of exchanges (such as the `Securities Lending and Borrowing Mechanism’ (SLBM) which was first operationalised in 2008), the liquidity available is negligible.

Methods #1 and #2 are constrained by a variety of regulatory restrictions, such as small position limits and high margin requirements. As an example, the position limit on the stock futures for Infosys (which has a market capitalisation of Rs.5.86 trillion) is Rs.30.8 million. This is 0.000526% of its market capitalisation. If a person successfully predicts a 50% stock price decline in Infosys, but is only permitted to have a position of Rs.30.8 million, the profit from a correct prediction is just Rs.15.4 million. This maximal profit (under extreme assumptions) is not large enough for professionals such as Hindenburg. One can only do such India-linked financial activities outside India.

The symmetry between longs and shorts

Everything that has been said above about short selling is true in reverse. When a person has a positive view about the outlook for a financial price, she wants to buy. Here too, the person can choose to act on her information in three ways: (1) Buy stock futures, (2) Buy call/Sell put options, and (3) Borrow money and buy shares.

The freedom to transact in the securities markets is analogous to the freedom to speak. A healthy arrangement is one where both positive and negative views are expressed. The market price is the outcome of both kinds of persons transacting with each other, and financial policy should be neutral between these two kinds. One has a long position, who may speak in the public domain about the stock being undervalued and likely doing well in the future. The other has a short position, who may speak in the public domain claiming that a stock is overvalued.

At present, in India, there is full symmetry between longs and shorts when it comes to expressing views through the futures and options (in that both optimists and pessimists have limited possibilities to put their money where their mouth is). On the #3 path, however, it is easier to borrow money when compared with borrowing shares.

A marketplace of ideas

The securities market is a classic example of a ‘marketplace of ideas’. There are many lines of reasoning which lead to diverse predictions about whether prices will go up or down. Each trader chooses an information set and an analytical strategy which makes sense to her. As Milton Friedman emphasised, there is a Darwinian process where those who forecast poorly lose their capital and end up having a lower influence on prices, and vice versa.

Sometimes, the phrase “market efficiency” is overstated to expect perfect forecasts. It is more useful to think of the market as a human construct, as an aggregation mechanism where multiple individuals, each with different sets of incomplete information, try to forecast better than each other. If this process is to deliver efficiency, it requires an environment of freedom: freedom to enter the market, to obtain and process information, to express views through trades, and through speech.

Current regulatory approach

The present Indian thinking on the role of having skin-in-the-game is confusing. On some occasions, the Indian state has held the lack of skin-in-the-game against market participants. In fact, if the person had no skin in the game, then she could say anything, and face no consequences. When she can lose money if she is wrong, the quality of the forecasts backing the speech is likely to be higher.

The Indian debate on government control upon short selling also needs to recognise that in the globalised world, the constraints on this activity in India have helped push it overseas, beyond the reach of Indian regulators.

Benefits for society from short selling

The resource allocation of the market economy is controlled by financial prices. As the old saying goes “finance is the brain of the economy”. When this brain works better, the scarce resources of the society get put into better use, thus improving the translation of savings/investment into growth.

Prices constantly fluctuate, frequently becoming a bit too high or a bit too low. The job of continuously correcting them is done by traders, who constantly look at these prices, and who form a judgement about whether a certain price is too high or too low. The people with forecasts are often not the people with the securities or money. It is efficient for society to create mechanisms through which people with forecasts are able to take buy or sell positions, thus feeding their information into prices. These activities continuously push prices towards fair value. It is best for these activities to be symmetric: buying and selling are both equally legitimate as both over-priced and under-priced securities are equally a problem.

Consider a share with a fair value of Rs.100. When mispricing takes place in the lower direction, i.e. the market is underpricing the share, the price can go as low as Rs.0. On the other side, however, the mispricing can go up without constraints. There is no arithmetic limit on how high prices can go, to Rs.1,000 or Rs.10,000 or beyond. Some entrepreneurs have pursued get-rich-quick schemes, where over-pricing of share leads to benefits such as achieving power in a society that glorifies financial success, obtaining enlarged loans against overvalued shares as collateral, and raising capital through primary issuance at elevated securities prices.

In advanced economies, the gains from short sellers are well established in the research literature and in policy thinking. Short sellers played a key role in calling out Enron’s accounting fraud, the Wirecard fraud and several other such situations with falsified financial statements. Researchers have found that short selling activity helps uncover firms that misreport financials faster. There is a well-known bias in favour of buy recommendations by stock analysts. Short sellers have often countered these over-optimistic valuations and often won the debate. Investigative reports by short sellers have often acted as cues for enforcement authorities to commence investigations into potential wrongdoing. For example, after Hindenburg’s 2020 report into the E.V. Maker Nikola, the SEC began an investigation into the company that led to conviction of the CEO of Nikola for fraud.

Every society suffers from problems of fake it until you make it. In the Indian institutional environment, there is certain appeal of schemes which generate meteoric financial success, which can help create financial and political capital for use in intimidation and fending off future investigations. Short selling is, then, particularly valuable in India given the limitations of state capacity in financial market regulation: the optimal space for short selling in India should be greater than that seen in advanced economies.

How does this connect up into financial markets regulation?

In the standard toolkit of financial markets regulation, e.g. as is done by the Financial Sector Legislative Reforms Commission (FSLRC), there are three classes of interventions by the state that address market failure:

• Market-based abuse: The use of market power on the market to force the price away from fundamentals.
• Information-based abuse: Falsification of the information set of the market so as to force the price away from fundamentals.
• Insider trading regulation: The use of insider information for profitable trades by insiders (which bring the price closer to fundamentals).

Regulators should enforce against all these three problems, regardless of whether short selling (or long buying) is in the picture. However, if it is felt that short selling (or long buying) always involves one or more of these three classes of problems, this is incorrect. There are many short selling (and long buying) transactions in this world which are free of these three problems.

In India, the `Prohibition of Fraudulent and Unfair Trading Practices’ (PFUTP) Regulations are designed to deal with market abuse of both kinds (market-based abuse and information-based abuse). PFUTP regulations have been one of the most frequently enforced regulations in the Indian securities market with a reasonably high conviction rate (Damle and Zaveri-Shah, 2022). SEBI may issue directions to pre-empt such conduct and impose sanctions in the form of monetary penalties, with the directions often having a punitive effect as well.

Finally, under present Indian law, defamation, including corporate defamation, is a civil and a criminal wrong. For instance, recently, Edelweiss sued Moody’s for defamation for misrepresenting the former’s financials, demanding exemplary damages. An analyst went to jail for writing about Indiabulls. A firm could choose to act against an activist short seller through these tools also. In these threats also, the Indian setting is different from that in advanced economies.

We enumerate these features of the Indian legal system to shine a light on the existing methods through which state power can be brought down upon behaviours adjacent to the short selling debate, and not to endorse them. The present frameworks need much improvement. The PFUTP regulations have imprecise drafting and leave ample scope for discretion. The economic logic of harsh penalties against insider trading is questionable, as insider trading takes the market price closer to fair value. The Indian limitations on freedom of speech -- all the way to the 1st amendment -- need to give way to the blossoming of enlightenment values. For the present discussion, however, we wish to point out that when we think of bad behaviour that might go alongside short selling (or long buying), there is an institutional apparatus (that needs much improvement) which addresses these. There is nothing special about short selling (or long buying) that calls for new work by way of state coercion.

What should managers do in the information space?

Finally, we turn to the burden upon managers to respond to rumours / allegations in the information space. Firms release a set of regulated disclosures into the public domain, and are held accountable for the veracity of these claims. It is the responsibility of the managers of listed companies to operate the information process through which these facts are created and disseminated. Firms with listed securities are coerced by the state to release a certain set of correct facts about the firm, into the public domain, to enable and assist the process of speculative price discovery that creates the public goods of an efficient price and market liquidity. Such firms are also coerced on not speaking publicly, in ways which release information, outside of the regulated processes for information release.

There is, however, no role for state coercion in favour of public release of facts about market participants. As there is no market failure, they should be free to trade and speak as they please, other than the rules about disclosure of insider trades.

The information space that shapes the stock price is populated with numerous elements outside the firm:

1. The full information space is vastly greater than the set of mandatory disclosures. There is an important information space of unregulated facts. Third parties can and do construct facts about the firm with no involvement of the firm, and outside of the regulated facts overseen by SEBI. For example, a private person can obtain private satellite imagery and count the number of cars parked at DMart locations, and thus estimate revenues of DMart. It should be the privilege of such a person to compute and/or release such estimates, and be fully free on using precise or imprecise methods in the computation.
2. Third parties knowingly or unknowingly do create false facts about the firm. This is a normal and healthy part of the information space. Freedom of speech contains the freedom to utter sentences that are wrong. Obtaining precise facts is difficult and should not be crushed under state coercion where persons are punished for uncovering or speaking false facts.
3. Third parties can apply diverse analytical techniques based on which forecasts are made about the operating performance or future stock price movements of the firm. These forecasts are subjective and (in a healthy society) will diverge greatly. All these are inputs for speculators who then come together into the process of price discovery on the financial markets.
4. In this rich landscape, the state cannot be the arbiter of what is true vs. what is false. The state does not have such institutional capacity -- this is the work of market participants -- and it would constitute censorship.

What should managers of firms do about this information space? Most firms voluntarily choose to have an investor relations capability, through which they are able to engage with some institutional investors and communicate the state of the firm to them. These conversations are, of course, limited by concerns about leaking non-public information to some investors and thereby giving them an edge.

Should managers do anything else, over and beyond these traditional investor-relations activities? Should managers monitor blogs and social media, and scotch false rumours about the firm? Once there is ample trading by diverse kinds of persons on the financial market, there will be reasonable levels of market efficiency. The astrologers and technical traders and econometricians will sort out their differences -- on the market. Liquid and efficient markets are quite able to absorb all manner of influences. The difficulties of information space reiterate the prime objective of financial economic policy as creating conditions for market liquidity - by having a stock lending mechanism that works, by not having tiny position limits, by freeing up capital controls, by not reducing exchanges into arms of the state, etc.

It is not the job of a cricket team to influence the speech or bets of spectators. We think that managers competing in the information space is a bad use of managerial time and energy. If we were members of the board of a company, we would generally favour the application of the resources of the firm towards strengthening the operations and the outputs of the firm. SEBI recently proposed amending its Listing Obligations and Disclosure Regulations to require large listed companies to confirm, deny or clarify false rumors in the market. We do not see the market failure that can motivate such state coercion: this should be the prerogative of the board and not forced by the government.

References

Damle, D., & Zaveri, B. (2022). Enforcement of Securities Laws in India: An Empirical Overview. Social Science Research Network.

Revising the Information Technology Act, 2000

by Rishab Bailey, Vrinda Bhandari, Renuka Sane and Karthik Suresh.

The Information Technology Act, 2000 ('IT Act') is a comprehensive law enacted to build trust in the digital ecosystem by regulating e-commerce, e-filing of documents, and by creating criminal offences applicable to the digital ecosystem. Despite amendments in 2009, it is widely considered that the IT Act is outdated, not least due to the proliferation of the Internet and a range of new technologies (e.g. Bahl, Rahman and Bailey 2020; Nappinai 2017; Nigam et al 2020). Recently, the government has proposed replacing the IT Act with a new legislation known as the 'Digital India Act'.

In a new report, Revisiting the Information Technology Act, 2000, we attempt to contribute to the process of revision of the IT Act, by examining four critical issues pertaining to the online ecosystem. These are:

1. Censorship: The provisions in the IT Act pertaining to censorship and blocking were framed in an era when the digital ecosystem was not as pervasive as today and before the use of social media platforms exploded. The provisions in the IT Act that empower the government to block content from public access are largely based on Article 19(2) of the Constitution. However, the institutional framework for carrying out blocking suffers from significant lacunae, including a lack of accountability of the relevant oversight institutions. We recommend that appropriate procedural safeguards be introduced through statute, to ensure greater transparency and neutrality in the blocking processes.
2. Intermediary liability: The IT Act protects intermediaries from prosecution for content posted or transmitted by third parties upon the following three conditions: (a) that they act as passive agents (or distributors) of content, (b) they disable access to unlawful content upon receiving 'actual knowledge' thereof, and (c) they observe 'due diligence' conditions laid down by the government. The 'safe harbour'' provision was introduced at a time when the digital ecosystem was still nascent. The variety of online harms that have since proliferated raise questions about whether such a system is required. We find that there is value in retaining a safe harbour for intermediaries in contexts where they have played a passive role in the ecosystem. Removing safe harbour is likely to incentivise greater private censorship, a role that intermediaries are not well positioned to undertake. However, this does not mean that intermediaries should not be responsible for ensuring the safety of the digital ecosystem. Any further obligations (such as greater transparency, the introduction of grievance redress mechanisms, etc.) ought to be implemented outside the safe harbour framework and certainly not as part of amorphous 'due diligence' obligations. We point to how new intermediary rules introduced in 2021 and 2022 have imposed a variety of new and onerous obligations on intermediaries. Many of these obligations, such as the obligation to enable traceability of the originator of information on messaging platforms and the obligation or the need to practically police a host of proscribed content, should be done away with. Any new obligations must be introduced based on evidence of harm in a proportionate manner.
3. Surveillance: The current framework pertaining to interception and monitoring of digital communications was established before the seminal decision of the Supreme Court in Justice K Puttaswamy vs. Union of India which recognized privacy as a fundamental right. Our report builds on the literature on surveillance reform in India to suggest that significant revision is required in our legal framework. Currently, the executive is provided extremely broad powers with insufficient safeguards to mitigate abuse. Certain surveillance programs such as the Centralised Monitoring System are per se disproportionate as they conduct mass surveillance. Our primary recommendation is therefore to enact a new stand-alone surveillance-related legislation, which could harmonise surveillance processes while ensuring that appropriate procedural and institutional safeguards are implemented. In the alternative, the revised IT Act should narrow the scope of powers given to the executive, while also implementing workable oversight and accountability mechanisms, not least ensuring judicial review, legislative oversight, and greater accountability of relevant bodies involved in the surveillance apparatus.
4. Cybersecurity: While the IT Act lays down various offences pertaining to cybersecurity that are broadly in accordance with international standards, we find that there is a significant need for reform of the institutional mechanisms that manage incident reporting and response. We recommend that the revised IT Act clarify the role and powers of CERT-in and NCIIPC --- the two primar cybersecurity-related agencies in India. In particular, their rule-making powers should be clarified/limited. The law should also avoid duplicating functions of each agency while limiting incident reporting requirements to large and systemically important systems and entities --- this avoids imposing disproportionate costs.

As we move towards an economy that is ever more dependent on the digital ecosystem, it is vital that the law promotes trust in the online ecosystem. This involves finding an appropriate balance between a range of competing interests --- national security and public order, the need to protect fundamental rights, and the need to promote innovation in and development of the digital ecosystem. Finding such a balance will require the government to take a considered stance on several thorny issues. Carrying out detailed and inclusive consultations will also be a vital part of the process towards establishing the digital ecosystem on a sound legal footing.

References

Varun Sen Bahl, Faiza Rahman and Rishab Bailey, Internet intermediaries and online harms: Regulatory Responses in India, Data Governance Network Working Paper no. 6, March 2020.

N S Napinnai, Cyber security and challenges: Why India needs to change IT Act, February 2017.

Aniruddh Nigam, Kadambari Agarwal, Trishi Jindal, Jaai Vipra, Primer for an Information Technology Framework Law, Vidhi Center for Legal Policy, September 2020.

Rishab Bailey, Vrinda Bhandari, Renuka Sane, Karthik Suresh, Revisiting the Information Technology Act, 2000, XKDR Forum, March 2023.

Rishab Bailey and Karthik Suresh are researchers at XKDR Forum. Vrinda Bhandari is a practising advocate. Renuka Sane is a researcher at TrustBridge.

Announcements

TrustBridge is an organisation working in the area of rule of law in the economy. We engage in academic and policy oriented research and advocacy in the areas of Energy Transition, Financial Markets, Governance in Private Capital, and Government Contracting and Litigation.

TrustBridge is looking for full time researchers to work on projects in the area of regulation of financial markets, governance and energy transition.

Financial markets

The financial markets project involves studying the working of regulators in securities markets, banking and payments, insolvency, and insurance. This includes a study of how regulations are drafted, the impact they have on regulated entities, comparative analysis of regulatory interventions, the design of regulators, and responding to public consultations. Our recent work in the field includes:

• Sane, Shah, and Zaveri-Shah (2023), Should Consumers Be Prohibited From Storing Card Data on the Internet?, Indian Law Review (forthcoming).
• Sane and Vivek (2022), Reconsidering SEBI Disgorgement, Working paper.

Energy transition

The energy transition project involves working on the regulatory landscape for the sector at the Union and State level, understanding renewable energy policy and issues connected with India's energy transition, electricity sector reform, particularly distribution, governance, ease of doing business, tariffs and markets, political economy, systems operation, grid structure and management.

• Jaitly (2022), A fork in the road for state electricity reforms, Seminar.
• Jaitly and Shah (2022), Threats to legal certainty in government contracting by electricity distribution companies, The Leap Blog.
• Jaitly and Shah (2021), The lowest hanging fruit on the coconut tree: India's climate transition through the price system in the power sector, Working Paper.

Requirements for the position

As a research fellow you will work on project deliverables under the supervision of a senior researcher. The requirements for the role are:

• A Master's degree or a professional qualification in economics/management/law/public policy, strong written and oral communication skills.
• Prior work experience in the energy transition or the financial markets regulations domain.
• A quantitative/computational orientation will be a plus.
• The candidates must be curious and passionate about research and be comfortable working in an interdisciplinary environment. They must be ready to work on independent outputs as well as function in teams.

The remuneration offered will be commensurate with your skill and experience.

Please send an email with your CV to careers@trustbridge.in if you are interested.

Announcements

The Indian Institute for Human Settlements (IIHS) invites applications for the eighth iteration of the Urban Fellows Programme (UFP) 2023-24. The nine-month UFP is scholarship-based, nine-month, full-time, residential, interdisciplinary and based at the IIHS Bengaluru City Campus.

The UFP is a unique space that combines classroom teaching, site-based applied learning, work in live projects and external internships to introduce learners to diverse forms of urban practice. Its interdisciplinary framework encourages learners from different disciplines, and practices diversity across multiple facets.

The UFP will run from August 2023 to May 2024 and recent graduates and young professionals from varied educational backgrounds or practice domains who were born on or after 1 August 1993 are eligible to apply. The UFP is committed to providing scholarships to admitted candidates who are unable to pay the programme tuition, after a review of their financial needs.

Watch this video for a quick glimpse into what life as a Fellow looks like.

Admissions close on 24 April 2023. For queries, write to us at ufp.info@iihs.ac.in or contact us at +91 99012 55788, 96064 84336.

For more information, please visit the website.

Announcements

Call for Papers: 14^th Emerging Markets Conference

12^th - 15^th December, 2023

XKDR Forum in collaboration with Vanderbilt law School is inviting papers to be submitted for the 14^th Emerging Markets Conference, 2023. In the past, the audience for these events has comprised of academics, participants from the legal and financial industry, policy makers from government and regulators. Details of the previous conferences can be viewed at https://emergingmarketsconference.org/. The conference aims to cover presentations and discussions across the following set of research topics:

• Economics in EMs.
• Finance in EMs (households, financial markets, financial intermediaries, firms and finance, finance and growth).
• Political economy, law, public administration, regulation in EMs.
• Insights into large EMs that matter in and of themselves.
• Insights from narrow research projects that illuminate EMs in general.
• Features of a society that enable or disable convergence into the “normal” package of high levels of freedom and prosperity.
• The puzzles faced by all kinds of decision makers: individuals, civil society actors, firms, all levels of government.
• Grand challenges such as climate change: implications for EMs and ramifications of choices made in EMs.

Conference design

For EMC 2023, we intend to bring on board a wider research papers, panels on contemporary policy and keynotes by experts in the area of finance, economics and law. The conference this year will be completely in person mode.

Best Discussant Award

Each year, we award the Springer Emerging Markets Conference discussant award for the best discussant and the first runner up discussant of the papers presented on each day of the EMC. The discussants are selected by an audience poll.

Important dates

• Paper submission deadline: 31^st August 2023.
• Expected date for notification of acceptance: 29^th September 2023.
• Dates of the conference: 12^th - 15^th December 2023.

Support

Financial support for academic authors whose papers have been accepted at the conference includes travel support of up to USD 750 as well as accommodation at the conference venue for 3 nights of the conference (12^th to 14^th December).

Registration and contact details

Submissions of the papers must be sent as PDF files only, to Jyoti Manke at outreach@xkdr.org
For any clarifications, please contact Jyoti at +91-98205-20180 (cellphone).

Examining grievances and redress for pension products

by Vimal Balasubramaniam, Aishwarya Gawali, Nancy Gupta, Renuka Sane and Srishti Sharma.

In a previous article, Examining grievances and redress for banking products, we studied the nature and extent of grievances for banking and payment products in India. We also evaluated whether grievance redress mechanisms worked, and what impact grievances had on the usage of products. In this article we study similar questions for contributory pension products. The analysis is based on a survey of 21,355 respondents that we conducted in five states including Maharashtra, Bihar, Haryana, Madhya Pradesh and Andhra Pradesh.

Measuring grievances

In the survey, we first ask if the respondent is using or has ever used contributory pension products. These would typically include the General Provident Fund (GPF), the Public Provident Fund (PPF), Employee Provident Fund (EPF) and the New Pension System (NPS). The study explicitly excluded various defined benefit pension plans, such as old age pensions, widow pensions, and disability pensions. We then ask the following questions:

1. If the respondent had faced an issue with any of the contributory pension products in the last 12 months?
2. If yes, what was the latest/most recent issue with the pension product?
3. Did the respondent complain after encountering the grievance?
4. Was the issue resolved after the first complaint?
5. If no, was the complaint escalated further?
6. If the complaint was escalated, was the issue resolved upon escalation?
7. If the respondent did not complain, what was the reason for not complaining?
8. Finally, what was the impact of the grievance on their usage of pension products?

We only consider complaints registered with the financial service provider or pension regulators. We do not include complaints filed in the police station or consumer courts as this is not in the ambit of the regulatory grievance redress system. Our questions do not pertain to any specific pension product. The results, therefore, are a reflection of the overall system of grievance redress, and not of any particular scheme.

Before we describe our results, it is useful to present the existing grievance redress mechanisms in the pension ecosystem. It is also important to note that while certain pension regulatory bodies report the incidence and resolution of grievance, there is no official consolidated statistic on the number of grievances for contributory pension schemes in India. Table 1 provides a snapshot of the governing regulatory bodies and grievance redress mechanisms (GRMs) of some of the major pension products that are relevant to our study.

Table 1: Pension products, regulatory body and GRMs

Pension Product	Regulatory Body	Grievance Redress Mechanisms (GRMs)
General Provident Fund (GPF)	Department of Pension and Pensioner's Welfare under the Ministry of Personnel, Public Grievances and Pensions	Online Grievance Lodging and Monitoring System at the Office of the Comptroller and Auditor General of India
Public Provident Fund (PPF)	Department of Post of India	Centralised Public Grievance Redress and Monitoring System (CPGRAMS) along with a dedicated Grievance Handling Cell accessible via call and email
Employee Provident Fund (EPF)	Employees' Provident Fund Organisation (EPFO)	EPF i-Grievance Management System (EPFiGMS)
New Pension System (NPS) and annuity schemes	Pension Fund Regulatory and Development Authority (PFRDA)	A multi-leveled Grievance Redressal System

Our analysis thus pertains to the use of contributory plans, which include, but are not limited to the schemes mentioned above.

Results

Our sample comprises of 21,355 respondents. 622 (2.92%)individuals reported having used a pension product. This is not surprising given that coverage through mandatory occupational pensions is low. However, there appears to be growing demand for micropension among poor families. This is reflected in our sample as well. Respondents with annual family income of less than one lakh rupees formed the largest share of pension users. 50% (314 out of 622) of pension users had an annual family income of less than one lakh rupees. 30% (187 out of 622) of the pension users had an annual family income between 1 to 3 lakh rupees. The remainder 20% had an annual family income of more than 3 lakh rupees.

Extent and nature of grievances

Of the pension users, about 11.4% (71 out of 622) reported having faced grievances related to pensions in the last 12 months. 61% (43 out of 71) of the grievances pertained to irregular or delayed pension payments, while 34% (24) of individuals claimed having not received their monthly pension during the last 12 months. About 6% (4) respondents faced grievance related to paper work issues.

From grievance to complaining and resolution

Table 2 presents the life cycle of pension related grievances - this helps us understand the working of the redress mechanisms, both at the level of financial service providers (FSPs) as well as the regulators. As described earlier, 622 respondents owned a pension product, while 71 had a grievance. Out of the 71, 59 (83%) complained to the FSP. The FSP was able to resolve 33 (56%)complaints. This implies that 26 complaints were not resolved. Of these only 8 (31%) were escalated to a higher authority, leading to a resolution of 5 (63%). Overall, this suggests that 33 grievances (46%) were not resolved - either because the respondent didn't complain at all, or because the problem was not resolved either at the FSP or regulatory level.

Table 2: Grievances, complaints and resolution

Pension Product	N
Own the product	622
Had a grievance	71
Complained to FSP	59
Resolved by FSP	33
Escalated to higher authority	8
Resolved upon escalation	5

We also explore the reasons why people do not complain when faced with a grievance with pension products. We focus on those respondents who didn't complain to the financial service provider/regulator. This doesn't include those who did not escalate their complaint after it was not resolved by the FSP. As seen in Table 2, 12 out of the 71 respondents who had a grievance chose not to complain. Of these 12 respondents, four felt that their problem would not get resolved sometimes because they didn't know if their problem was valid in the first place, while four were reluctant to access the process - either because they didn't have enough knowledge of the same, or because they felt the process was too costly and complex. These are very small sample sizes, and hence the results may not be generalisable.

Impact of grievance on usage

In Table 3, we present the impact on usage for those who had faced any grievance while using the pension products.

Table 3: Impact on usage of pension schemes

Impact on usage of pensions	N	%
Changed the provider	36	51
Stopped using the product	11	15
No change	11	15
Reduced the use of product	5	7
Do not know/wish to answer	5	7
Increased the use	3	5

Regardless of the respondent's course of action, the experience of having faced a grievance is bound to have an impact on the usage. As a result of encountering grievance, a majority of the respondents chose to change their service provider. 51% of those who had a grievance (36 out of 71) changed their service provider. 7% (5 out of 71) users having faced grievance reduced the usage of the pension products, while 15% (11 out of 71)stopped using the product.

Conclusion

GRMs in the pensions sector seem to be performing better than the banking and payments sectors. The incidence of grievances is lower, and the complaint rate is higher. However, banking and payments have a substantially larger number of users, and the products also get used more frequently than a pensions product. So it is not surprising that frictions in the banking space are higher. While the incidence of complaints may be lower in pensions, the impact of poor service may be higher on users, especially as the nature of grievances suggests that these occur later in life, when people may have limited means to solve the problem. This makes the numbers reported in the survey large enough to matter.

Vimal Balasubramaniam is a researcher at Queen Mary University, London. Aishwarya Gawali and Nancy Gupta are researchers at NIPFP. Renuka Sane is a researcher at Trustbridge. Srishti Sharma is a PhD student at Texas A&M University.

Coping with stress: Household borrowing for debt repayment

by Aishwarya Gawali and Renuka Sane.

There are concerns that household balance sheets are under stress due to rising levels of debt. An important contributor to the composition and levels of household debt is the ability to repay loans on time. Difficulty in repaying debt is also potentially a useful indicator of stress on the household balance sheets. There is already some evidence which indicates that households, and in particular rural households, are borrowing for debt repayment to cope with this stress. We present evidence on the same, from a large-scale panel survey.

Data

Our analysis is based on data from the Consumer Pyramids Household Survey (CPHS), a pan-India panel household survey of about 174,000 households carried out by the Centre for Monitoring Indian Economy. In order to capture the latest available information from the CPHS, we use data from May to August (Wave 2) of 2022 and trace back to the same months of the preceding years. That is, we study data collected in the months of May to August (Wave 2) in each year between 2015 and 2022.

The data on sources and purposes of borrowing is sourced from the Aspirational India database within CPHS. This is our primary source of data for understanding credit access. Households are asked questions on their borrowing status across multiple sources and purposes. The responses are recorded as Yes/No, that is whether households have debt outstanding, and if so, whether households have borrowed from a specific source for a specific purpose. For example, if a household has borrowed for debt repayment, we would also get information on which source they borrowed from for debt repayment.

The data on income comes from the Household Income database which we use to create income deciles. The deciles are based on average monthly income of the five years prior to 2022.

We use household weights to get population level estimates of the share of households that have outstanding debt for the purpose of debt repayment.

Q1: How many households borrow, and how many borrow for debt repayment?

Figure 1 shows the number of households with debt outstanding, and number of borrower households who have borrowed for debt repayment. The number of borrower households increased from 17 million in 2015 to 165 million in 2022. The number of households borrowing for debt repayment rose from just 0.75 million in 2015 to 23 million in 2022. The share of borrowing for debt repayment in overall borrowing rose from 4% in 2015 to 14% in 2022.

Figure 1: Borrowing for debt repayment as a proportion of overall borrowing

The pandemic year of 2020 is interesting because we find that there was a decline in the number of borrower households. However, there was an increase in the number of borrower households for debt repayment. Borrower households dropped from 154 million in 2019 to 141 million in 2020; however households borrowing for debt repayment increased from 12 million in 2019 to 14 million in 2020. As of August 2022, 165 million households in India had debt outstanding. Of these, 23 million had taken a loan to repay debt.

Q2: What is the rural-urban variation in borrowing for debt repayment?

The CPHS data suggests that rural India has a larger share of borrower households than urban India. This is also borne out by the All India Debt and Investment Survey conducted by the NSSO, which shows that 35% of rural households are indebted compared to 22% in urban centres.

Figure 2 examines the rural-urban distribution of borrowing for the purpose of debt repayment. It shows two data points: the total number of borrower households in both rural and urban India, and the number of borrower households that have debt outstanding for reasons of debt repayment.

Figure 2: Rural-Urban distribution of borrowing for debt repayment

In 2015, there were about 16 million households in rural India and 9 million households in urban India that had debt outstanding. Of the 16 million in rural India, 2.26% had borrowed for debt repayment reasons. Of the 9 million in urban India, 1.35% had borrowed for debt repayment reasons. This number had increased to 12% of rural borrower households and 14% of urban borrower households in 2022. However in terms of absolute numbers, there are a lot more borrower households (overall and for debt repayment) in rural India than in urban India.

Q3: What are the sources of borrowing for households with borrowing for debt repayment?

CPHS provides information on the source of borrowing for each purpose. Figure 3 presents the share of the main sources from which households have borrowed for debt repayment between 2015 and 2022.

Figure 3: Sources of borrowing for debt repayment

There are two interesting patterns that emerge. First, in the earlier years, the biggest source of borrowing for debt repayment were the money-lenders. In 2015, 84% of households borrowing for debt repayment had borrowed from a moneylender. This has now flipped to self-help groups.

Interestingly, we also find that borrowing for debt repayment comes largely from Andhra Pradesh and Telangana. Perhaps the reliance on self-help groups is just a reflection of the largest share of borrower households for debt repayment being located in these regions which have a higher presence of self-help groups.

The next major source is relatives, friends and family followed by banks. It is important to note that these shares may not always add up to 100 because a household can take a loan for repayment of existing debt from more than one source.

Q4: What is the relation between income and borrowing for debt repayment?

Figure 4 plots the number of households with borrowing for debt repayment, in each income decile for Wave 2 of 2015-2022. Borrowing is higher between the fourth and eighth income decile households.

Cumulatively, the fifth, sixth, seventh and eighth deciles accounted for almost 60% of the total number of households that borrowed for debt repayment in 2022. In the eighth decile, 3.93 million households borrowed for repayment in 2022. This indicates that 17% of the households that borrowed for debt repayment belonged to the eighth decile. 15% of the total household borrowing for debt repayment was from the sixth decile, with 3.47 million borrowers. The seventh and fifth deciles followed closely with shares of 14% (3.33 million) and 13% (3.10 million) respectively.

The number of households in these deciles have also grown over the years and 2022 has the highest number of households in each decile. The lines for 2015 and 2016 are almost flat which indicates the low level of borrowing for debt repayment. The rise becomes prominent from 2017 as the gaps between the lines start to widen. This is most visible in the case of 2022, where all deciles, but especially the sixth and eighth decile saw a huge rise in borrowing for debt repayment.

Figure 4: Debt repayment and Income

Conclusion

In this article we have established some basic facts about household borrowing for debt repayment in India. First, there has been an increase in the number of borrower households, as well as the number of households who borrow for reasons of debt repayment. Second, the increase is greater in rural areas as against urban areas. Third, self help groups seem to be the most prominent source of borrowings for debt repayment. Fourth, households between the fourth and the eighth decile have the highest number of households with borrowing for debt repayment. These facts are building blocks of a larger research agenda on understanding debt and distress.

Renuka Sane is a researcher at Trustbridge and Aishwarya Gawali is a researcher at NIPFP.