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The concerns over the bill have arisen due to the following reasons. Though it has a very broad title in reality it focuses only on a narrow set of institutions acting as MFIs. There is a view that entrusting the responsibility of regulation to the National Bank for Agricultural and Rural Development (NABARD) is not a sound idea as NAB-ARD has many limitations as a regulator. Further, critics say that self-help groups (SHGs) may become subservient to MFIs which could siphon off their savings for their own lending needs leading to disempowerment. Doubts have been raised over the ability of NGOs to ensure safety of the deposits of the poor. Finally, there is the argument from the women’s lobby that women being the major stakeholders of microfinance the bill has not made any attempt to give adequate representation to them. The manner of drafting the bill and the way it has been introduced by the government has also drawn serious flak. The entire process has left much to be desired in terms of transparency and wider consultation.

Regulation of financial intermediaries in general is attempted to prevent failure and to protect the interest of the depositors in the case of any failure. Another major concern of regulation is to ensure the stability of the financial system as failure of some intermediaries may turn contagious affecting the whole system [Shylendra 2002]. At the same time it is argued that by setting clear rules, regulation can enable the emergence and development of financial institutions. Hanning and Omar (2000) argue that a regulatory framework for MFIs becomes necessary only in the case of voluntary deposit-taking by MFIs; that the MFIs to be regulated must have the ability to attain sustainability, and if the regulator has the required resources and capacities to regulate MFIs. Only under the presence of such conditions, it is argued, can regulation play an important role in promoting microfinance. Similarly, Christen, Lyman and Rosenberg (2003) argue that the microfinance sector must eventually be regulated if it has to reach its potential. To regulate MFIs successfully, Christen, Lyman and Rosenberg suggest that microfinance regulation should avoid using burdensome prudential norms when the objective can be achieved through application of non-prudential norms and as cost recovery is important for MFIs, there need not be any cap on interest rates charged by MFIs. The above principles are mainly based on neo-classical economics as applied to regulation of financial intermediaries. The emphasis is on reducing the supervisory burden by focusing on only deposit taking and financially sound MFIs. These principles preclude any proactive regulation aimed at development of the microfinance sector. They do not also address explicitly the regulatory needs and peculiarities of NGOs [Shylendra 2005].

The present paper is an attempt to critically assess the overall merits and demerits of the bill and to draw relevant implications for regulation of microfinance in the country. The assessment of the bill is carried out mainly by focusing on the major issues like need for a legal framework for MFIs; scope of the regulation attempted by the bill; regulatory norms specified; role of NABARD and other agencies, and the issue of ceilings on interest rates.

Need for Legal Framework

Is there need for legislation to promote the microfinance sector in the country? As per the bill, the major goal is to ensure financial inclusion of poor who continue to face difficulties in accessing the formal banking system. To bring about financial inclusion, the bill aims at developing the microfinance sector which is faced with many constraints including absence of legal framework for its growth. The aim as stated in the bill is “to provide for promotion, development and orderly growth of the microfinance sector in rural and urban areas for providing an enabling environment for ensuring universal access to financial services, especially to women and certain disadvantaged sections of people, and thereby securing prosperity of microfinance organisations not being regulated by any law for the time being in force and for matters connected therewith or incidental thereto”.

Financial inclusion of the poor continues to be a major challenge. The recent All India Debt and Investment Survey has revealed that only about 13.4 per cent of the rural households had access to institutional credit [GoI 2005]. For the households in the lower four asset holding classes, the same proportion varied from 3.6 to

10.9 per cent indicating a very low outreach of the poor by the institutional agencies. Further, though institutional credit accounted for about 57 per cent of the debt incurred by all the households, for the households in the lower four asset holding classes, it is the non-institutional agencies which accounted for the major share (ibid). Similarly, the Rural Finance Access Survey (RFAS) conducted by NCAER [Basu and Verma 2004] had also revealed the acuteness of

Economic and Political Weekly July 14, 2007

the financial exclusion of the poor. The RFAS had found that nearly 87 per cent of the poor households were without access to any formal credit and about 70.4 per cent of the poor did not have any deposit account. Given the enormity of the problem of financial exclusion, any attempt to reverse the trend therefore assumes importance. It is from the above angle that the relevance of the bill may be seen. However, what is more important to be assessed is in what way the bill tries to pursue its goal. For attaining the stated goal, the bill is focusing on regulating hitherto unregulated organisations delivering microfinance. But there is no clear explanation in the bill as to how the absence of a legal framework is constraining these MFIs and in what way the provision of such framework would help attain the goal of financial inclusion.

As in many other countries, NGOs in India have played a crucial role in the spread of microfinance. Their success in delivering microfinance has made many of them explore the possibility of scaling up their operations further. The success is also attracting many newer NGOs to enter the field. It is estimated that in India as of 2006 there are about 800 NGOs involved in the delivery of microfinance with an outreach of about 7.3 million households[Ghate 2006]. However, these NGOs are mainly involved in providing credit by borrowing from outside. What is constraining them in scaling up their outreach is the inability to provide integrated services (credit plus savings). Enabling NGOs to provide integrated services is likely to contribute to financial inclusion in the following ways.

Like credit, the poor need savings services to meet various contingencies they face in their livelihood. However, the poor find it difficult to save with the formal banks for many reasons. In the absence of formal savings mechanism, the bulk of the poor adopt various unsafe and inconvenient methods of savings. The bill hopes that this problem can be addressedbyenablingNGOs to offer savings services to the poor and that the success achieved by NGOs in delivering credit is replicated in the case of savings too.

For the NGOs, the inability to accept savings from their clients is considered to be a major hindrance in mobilising cheaper funds needed for scaling up. This in turn is supposed to have contributed to the problem of high lending rates charged by the NGO-MFIs. Easing the restriction on savings mobilisation by NGOs is likely to help address the problem of fund constraint along with helping them in providing affordable loan services to the poor. Moreover, with the rapid growth of their microfinance activity, NGO-MFIs are faced with the dilemma which emanates from the nature of their organisational form. Increased outreach and loan business has created scepticism about the not-for-profit nature of the NGOs. NGOs are increasingly finding that their present form is not conducive for up-scaling and attaining sustainability of microfinance operations [Shylendra 2005]. Microfinance being an activity required to be pursued on a cost recovery basis, the not-for-profit form is found to be operationally constraining and inherently contradictory by the NGOs. At the same time, the uncertainty over the tax status of the surplus generated from microfinance operations has created serious concern among NGOs. Many of them are looking for a suitable form of organisation which can help them take up microfinance in a full-fledged way with low capital requirement and without any dilemma over profit. However, due to the restrictive nature of existing regulatory norms for commercial form of organisation (like NBFCs), NGOs are finding it difficult to attain the required transformation. Though many of them have found a way out by promoting a not-for-profit company under Section 25 of the Companies Act of 1956, they are still constrained in providing integrated services to the poor. It is here that the bill is expected to help the NGOs to overcome the above constraints and dilemmas.

The bill may thus be seen as an attempt to recognise the role of NGOs in financial intermediation and help them play a more effective role. However, since it is talking about the overall development of the microfinance sector it is essential for the bill to simultaneously emphasise the role of formal financial institutions in attaining financial inclusion. Also, while the argument about absence of a legal framework appears to hold good for NGOs, the same is not true for cooperatives. The bill wrongly assumes that cooperatives lack legal framework for providing integrated services. Hence the inclusion of cooperatives can only be construed as an intrusive step.

Scope of the Bill

The bill tries to cover broadly two category of institutions, namely, NGOs and cooperatives. The institutions proposed to be regulated are called microfinance organisations (MFOs). The NGOs proposed to be regulated include both societies and trusts established under central and state enactments. Cooperatives include all thrift and credit cooperatives except urban cooperative banks established under various cooperative acts of both the state and central governments. It excludes from its purview other institutions like NBFCs, section 25 companies and scheduled banks including RRBs. The proposed regulation therefore is more institution-based than activity-based.

In fact, the constraints identified with regard to NGOs are true of even other institutions like NBFCs and section 25 companies. Therefore, the bill takes a very narrow view. Unless it widens its scope to include other MFIs the broader objectives may not be realised. Leading MFIs in the country are in the form of either NBFC or section 25 companies and account for over 90 per cent of the total clients served by the MFIs in the country [Ghate 2006]. By focusing only on NGOs and cooperatives, the bill attempts to shift the burden of social banking away from commercial banks to civil society institutions. It is desirable to keep cooperatives out of the purview of the new regulation except for receiving any capacity building support.

All groups are kept outside the purview of regulation. These groups can continue working on the basis of their informality and autonomy. The groups linked to banks may not get affected by the bill as they would be able to continue functioning in the same way. In the case of groups coming under MFIs, there is a possibility of MFIs exercising control over their savings. Deposit mobilisation by MFIs should be largely on a voluntary basis with groups free to choose between their MFI or any nearby bank. It is also desirable that the NGOs help and encourage member-based institutions like cooperatives or SHG federations to emerge as that would help SHG members to retain ownership and control over the MFIs and their resources. Eligible clients: In the bill only members of the groups formed for microfinance purpose can become eligible clients of the MFIs. The MFIs are therefore supposed to deal only or exclusively with their target group. To that extent the risk of any failure gets confined to a limited client base. However, MFIs working with the extreme poor or in poorer regions, may find it difficult to mobilise adequate savings from the eligible clients. With regard to type of eligible clients, the bill among others, includes small farmers owning land up to two hectares and women in general. The bill seems to have given enough scope to

Economic and Political Weekly July 14, 2007 MFIs to target mainly the economically better-off among the eligible groups and exclude the core poor. Outreach of core poor may suffer unless MFIs are made to proactively target such groups. Microfinance services: The bill has made an attempt to define microfinance services. Even though the services covered by MFIs include loan, thrift insurance, pensions and any other services, the bill does not explicitly include savings/thrift under the definition of microfinance services. It is unclear as to why the term thrift has been used in the place of savings. The main reason seems to be to encourage the poor to generate thrift on a relatively long-term basis through economical ways. The bill envisages mobilsation of only savings and term deposits by MFIs. In terms of loan purpose, the bill specifies both consumption and production loan (farm and nonfarm). Inclusion of grant and loan in kind under financial assistance to be provided by MFIs is confusing. An MFI can sanction loan in aggregate of Rs 50,000 per individual for various production or consumption purposes and Rs 1.5 lakh for housing purpose. While the limits seems to be well within the loans being offered by MFIs there could be difficulties in the case of deviations in genuine cases. The bill suggests even fixing limitation on the size of savings to be mobilised. The aim appears to be to reduce the risk of failure in absolute terms. Mature groups may find the savings limitation restrictive if they mobilise large savings from the members. At the same time, while members can borrow individually from the MFI but cannot have individual savings account causing inconvenience to individual savers.

The bill has proposed both prudential and non-prudential norms for regulating the MFIs. For core regulation purposes, the bill is considering only those MFIs which want to take up thrift services and exclude credit only MFIs. Exclusion of non-deposit taking MFIs may ease the burden of supervision. However, if there is any self-exclusion by MFIs from regulation, the poor served by those MFIs may not get access to savings services.

Deposit-taking MFIs need to obtain a certificate of registration subject to satisfying conditions like being in existence for three years with a credible management team and with a minimum net owned fund of Rs five lakh. The existing MFIs offering thrift services too need to obtain the certificate within six months of the enactment of the bill. Among existing MFIs, mainly cooperatives may have to apply for this certificate which is an unnecessary requirement. How far will these provisions be effective in ensuring entry of only credible MFIs? While the requirement of three years of operation might become restrictive for newer MFIs, very small NGOs and cooperatives might find it difficult to mobilise the required entry capital. Many of them may remain unlicensed as is the case with many primary cooperative banks. The entry capital not being very high, the chances of entry of unscrupulous elements cannot be ruled out. The real test would lie in ascertaining the credibility and character of the management. It is here that NABARD may have to exercise due diligence by relying on district development managers and local civil society associations.

The other major prudential norm prescribed is the creation of reserve fund by the MFIs out of their net profit or surplus. MFIs are required to keep aside 15 per cent of their net profit annually to create the reserve fund. The depositors will have the first charge over the assets created out of

(An autonomous body of Ministry of Labour & Employment,Government of India)

Call for Application/Nomination for V.V. Giri Memorial Awards in Labour and Employment

V.V. Giri National Labour Institute (VVGNLI), which is an autonomous body of the Ministry of Labour & Employment, Government of India, is a premier Institute for labour research, training and education. Since its inception in 1974, the Institute has been engaged in research, training, education and publication activities to reach all those who are concerned with various aspects of labour, both in the organised and unorganised sectors.

Keeping in view of the mandated objectives of the Institute, it is proposed to introduce a special award, V.V. Giri Memorial Award in Labour and Development, which would be presented to the author of an outstanding research work in the area of labour. The award will carry a cash prize of Rs. 1 lakh and a citation. The theme for first of these awards is “Social Security Measures forLabour with special reference to India”.

Scholars are encouraged to apply for consideration of the award by providing details of their contribution in the identified area, along with copies of their published work. Applications/nominations may be forwarded to Director, V.V. Giri National Labour Institute, Sector 24, NOIDA or can be e-mailed to vvgnliawards@gmail.com within 30th September 2007.

The Institute also welcomes nominations from persons other than the scholar, which would also explain the contribution of the expert, in a detailed manner (and preferably with copies of research works under consideration). If it is required, the applicant or the proposer may be requested to furnish more detailed information, regarding the application/nomination.

The Institute and the Committee of Jury hold the right to consider any nomination other than those received through this advertisement. Further, the Committee of Jury also holds the right to consider life-time contribution of experts, if it is found appropriate.

Economic and Political Weekly July 14, 2007

the reserve fund. Is the reserve fund adequate to protect the depositors? This will depend upon the extent of surplus or profit an MFI can generate. In case an MFI is just breaking even or incurring losses it may not be able to create or augment its reserve fund. Besides the fact that the bill has not clearly clarified the charitable nature of the microfinance activity, an MFI might come under pressure to generate profit or surplus. This might force it to shift the additional expenses on to the clients. Also, any inability to create reserve fund may affect its capacity to mobilise savings as the eligible clients may become sceptical of the MFI’s ability to protect their deposits. Hence, the level and extent of protection through reserve fund may vary across MFIs. In order to give uniform protection to the deposits of poor households it is required that a suitable and affordable deposit insurance system is put in place. In addition, local monitoring mechanisms involving the clients, may also be necessary.

The bill does not provide any provision for loan losses and for maintaining risk weighted capital adequacy. It seems to be relying on the historical high recovery performance of the MFIs. Since loan default risk is integral to any lending it is necessary that the MFIs make some minimum provision for loan losses. Up to a certain level of loan business and losses, MFIs may be told to make voluntary provision for loan losses. After crossing the prescribed level, MFIs may be compulsorily required to make provisioning. Non-prescription of capital adequacy norm seems to be an appropriate measure given the constraint faced by the MFIs in raising capital on a constant basis.

The rest of the major provisions in the bill relate more to reporting, supervision and punitive measures. MFIs taking thrift are expected to prepare statements of final accounts in specified forms and get them audited by qualified auditors. NABARD may also order a special audit in case of any discrepancy. All MFIs, taking thrift or not, are supposed to file periodicreturns duly certified by qualified auditors. NABARD can also order inspection of any MFI and can take action to wind up its operations.

Offences like wilfully making false statement or non-compliance with any norms can attract fine (up to Rs 20,000) as well as imprisonment (up to two years). The bill has proposed making any offence pertaining to payment of savings a cognisable offence under criminal procedure code. The bill also provides for an ombudsman for settling disputes between clients and MFIs.

The bill has designated NABARD as the regulatory agency for MFIs with the responsibility of formulating policies for the development of the microfinance sector. Many doubts have been raised over this. Since most MFIs are civil society-based organisations, their regulation may require a different approach altogether. NABARD as a conventional institution may lack the orientation needed for the purpose and may end up imposing mainstream regulatory norms on these institutions making them lose their inherent strengths. It is argued that NABARD’s supervisory and institutional development role with regard to RRBs and cooperatives has not been fully satisfactory. NABARD has even overseen the transformation of RRBs which were created as “small man’s banks” into regular banks during the reforms period.

As regulator of MFIs, NABARD might face some conflicts of interest. As a promoter of SHG-Bank Linkage Programme (SBLP), NABARD might face difficulties in promoting the alternate microfinance sector. There have been quite a few incidents where SBLP has entered into conflict with MFIs as both the interventions are vying for the same target group. Another basic conflict of interest relates to NABARD’s role as lender v/s regulator. NABARD has launched direct financing of NGOs/MFIs recently. How far would NABARD, an apex lender, veering more towards marketbased operations be able to look after the developmental concerns of MFIs? It may require a major effort on the part of NABARD to transcend these conflicts. NABARD also has to enhance its ability to deal with NGO-MFIs including changing the orientation of its personnel to deal with unconventional entities. Ideally, the government should constitute a new regulatory authority which is devoid of the above conflicts.

To guide NABARD, the bill has proposed the constitution of an advisory council called Microfinance Development Council (MFDC). The council consists of representatives from the government of India, RBI, NABARD, SIDBI and the National Housing Bank. Six representatives are to be appointed from outside. Given the fact that only a certain segment of MF sector is to be regulated, the council may find it difficult to address the overall needs of the MF sector. There is only a very limited representation of women on the MFDC.

The bill has proposed the constitution of Microfinance Development and Equity Fund (MDEF) on the lines of an existing fund. The MDEF can mobilise resources from government and from other entities including donor agencies. The MDEF is to be utilised for the purpose of development of the microfinance sector including providing loan and equity capital for MFIs. Many commercial banks had made contributions to the existing fund with the intention of developing the SBLP. Can NABARD now utilise the fund for development of SBLP also? Available evidence suggests that NABARD so far has not been able to utilise the existing fund fully. The bill also provides for provision of loan or refinance from the fund to MFIs. This is a potential area of conflict. If the fund is meant for development of the sector, how relevant is it to allow NABARD to lend from it? It would be better if NABARD uses MDEF only for developmental and capacity-building purpose. Any loan out of MDEF for institutional developmental purpose should be provided only on soft terms. Further, MDEF can also be used for contribution of equity. However, none of the MFIs contemplated for regulation would require equity in a major way. It is the other form of MFIs, especially NBFCs, which are in need of such equity.

Conclusion

Microfinance is an intervention which has emerged in response to the need to address the challenge of financial inclusion. The entry of NGOs in financial intermediation has to be seen from this angle. Using strengths of social intermediation, NGOs so far have shown considerable potential in contributing to the cause. Formal institutions have failed, and therefore it has become necessary that NGOs are helped in overcoming their constraints so that they are able to play the role of financial intermediation more effectively. The bill’s relevance comes mainly from this perspective. The bill aims at creating an enabling provision for the NGOs to deliver microfinance in an integrated way and seeks to achieve this by prescribing relatively liberal prudential norms. However, the bill suffers from quite a few limitations. The aim of financial inclusion is sought to be achieved only by regulating a narrow set of institutions. The bill fails to recognise the reality that NGOs can play only a supplementary role and that formal institutions need to contribute in a major way for the cause. Further, the bill is institution-focused in nature and leaves out a certain set of MFIs like NBFCs and section 25 companies. On both counts, the bill is a case of “missing the forest for the trees”. The other major limitation is the intrusive nature of the bill. It has brought cooperatives into the fold of regulation by wrongly assuming that they lack any legal framework. Also MFIs not accepting deposits have been included for the purpose of inspection and reporting. There is a need for the bill to pay attention to safety of deposits and in ensuring affordable lending rates. Simultaneously, efforts are needed to ensure that the poor and women are able to exercise control and ownership over MFIs. Moreover, the government has to ensure that all the stakeholders are duly consulted before the bill is passed.

EPW

Email: hss@irma.ac.in