With the RBI and the States drawing up separate provisions for the microfinance sector, regulatory arbitrage becomes a distinct possibility.

Even while the regulatory apparatus for microfinance is under serious debate, the Reserve Bank has chosen to introduce one more classification of non-banking financial companies purveying credit to micro-finance activities — namely, NBFC-MFIs — based on the recommendations of the Malegam Committee.

This raises several concerns in the backdrop of the legislation by the Andhra Pradesh (AP) State already in vogue, the overall interest rate policy, and policies relating to financial inclusion.

RBI's position

The trigger for this move is evidently the micro-finance crisis in Andhra Pradesh, following reports about usurious lending practices combined with coercive recovery procedures adopted by microfinance institutions. The Andhra Pradesh legislation draws its powers from ‘money lending' Constitutionally coming under the States' jurisdiction. The Act applies to all entities engaged in the business of microfinance, including NBFCs regulated by the Reserve Bank.

The Reserve Bank recognises the inherent conflict of this move when it comments on AP legislation in its Trend and Progress Report thus: “If State Governments start enacting their own legislations to regulate MFIs, including the ones regulated by the Reserve Bank, there will be a plurality of regulation, leaving scope for regulatory arbitrage.

The responsibility for regulating NBFCs has been given to the Reserve Bank, thus empowering it to regulate the NBFC-MFIs. If other States also come out with legislation similar to the AP Government, it will raise concerns not only about multiple regulations but also about client protection, as borrowers would then be subject to different regulations.

If there are separate regulations governing NBFC-MFIs in individual States, the task of regulation by the Reserve Bank of MFIs operating in more than one State will become even more difficult. This may also impact the business of MFIs, which are operational in more than one State.” One question that arises is that in the case of Andhra Pradesh at least, how this inherent conflict will be handled in respect of NBFC-MFIs.

According to press reports, the Andhra Pradesh Government feels that while some aspects of the RBI norms were good, the lack of implementing mechanism would make them ineffective. The State government has taken the stance that micro-loans in the State would continue to be regulated as per the State Act.

What are the implications of this? First, there will be dual registration. Second, the codes of conduct for recovery would be different. The AP legislation prohibits recovery agents and coercive methods of recovery and all repayments have to be made at the office of the gram panchayat or at a designated public place. Third, AP legislation stipulates that loan recoveries have to be made only in monthly instalments, whereas the RBI directives have a different provision.

MFIs as a Class

MFIs as a class gained its significance in the recent past mainly because of their ability to borrow from commercial banks and, in turn, the ability of commercial banks to include such lending as part of priority sector lending. According to the Trend and Progress report, the number of MFIs increased from 581 in 2008-09 to 691 in 2009-10, but came down to 469 in 2010-11.

The loans disbursed by these institutions which went up from Rs.3,732 crore to Rs.8,063 crore but declined to Rs.7,605 crore during the same period. The total loans outstanding with commercial banks of MFIs as at end March 2011 is placed at Rs.10,689 crore.

The Reserve Bank has been expressing concerns about growth of bank lending to NBFCs because of the systemic linkage. The systemically important non-deposit-taking NBFCs' borrowing from the banking system showed a whopping growth of 46 per cent in 2010-11 to Rs.1,37,827 crore.

Though MFIs are not as systemically important, some of them may grow into that category.

For-profit MFIs

RBI has been following a policy of deregulating interest rates, and only recently the savings deposit rate was freed for the banking system. The current directives for NBFC-MFIs go against this stance. Furthermore, a ceiling of 26 per cent rate of interest would make it appear that usurious lending has RBI's blessings. Even at the peak of interest rate cycle in the past, when directed credit was the norm, never was there a norm like 26 per cent for any sector. The question is whether this will set the trend for other microfinance lenders, such as non-profit MFIs, non-governmental organisations and self-help groups.

According to former RBI Governor, Dr. Y.V.Reddy, the for-profit MFIs are no different from money lenders and hence they need to be regulated as money lenders. Also, while money lenders lend out of their own funds, the for-profit MFIs lend out of leveraged funds obtained at lower cost.

Dr. N.A. Mujumdar, in his presidential address at the Indian Society of Agricultural Economics, welcomed non-profit MFIs into the stream of microfinance, but came out with a scathing attack on for-profit MFIs, calling them rogue MFIs.

Overall, while the RBI's move brings in some equity angle of regulating for-profit MFIs, a better option would have been to apply the current regulation over non-deposit-taking NBFCs in general to MFIs, without treating them as a separate class, and disqualify commercial bank lending to NBFCs as part of priority sector, which also militates against the overall interest rate policy.

(The author is Director, EPW Research Foundation. The views are personal. blfeedback@thehindu.co.in)

(This article was published on December 8, 2011)
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