Contributed By AZB & Partners
The following chapter featured in Banking Regulation 2024 and is awaiting update from the firm.
Principal Laws and Regulations Governing the Banking Sector
The Banking Regulation Act, 1949 (BRA) is the primary legislation that regulates banking in India. It lays down the licensing requirements, businesses that a bank may engage in, capital requirements, requirements relating to the constitution of board of directors of banks, among others.
Rules, regulations, directions and guidelines on issues relating to banking and the financial sector are issued by the Reserve Bank of India (RBI) under the Reserve Bank of India Act, 1934 (the “RBI Act”) and the BRA. These guidelines/directions lay down prudential norms on income recognition, asset classification and provisioning, know-your-customer directions, rules regarding acquisition/holding of shares in banking companies, fit and proper criteria for directors on the board of banking companies, guidelines for securitisation of assets, transfer of loan exposures, among others.
The Foreign Exchange Management Act, 1999 governs cross-border transactions and related issues, and provides, among other things, the framework for licensing of banking and other institutions as authorised dealers in foreign exchange.
Other legislation relevant to the banking sector includes:
Regulators Responsible for Supervising Banks
The RBI is the central bank of India and the primary regulatory authority for supervising banks. The RBI has wide-ranging powers which include prescribing prudential norms, laying down requirements for setting up and licensing banks (including branches of foreign banks in India), corporate governance related norms, among others.
India has several other financial sector regulators, including:
Broadly, the types of licences can be split into two categories:
No company is allowed to carry on banking business in India unless it has obtained a licence from the RBI in accordance with the BRA and the RBI Guidelines for “on-tap” Licensing of Universal Banks in the Private Sector, 2016 (the “On-Tap Guidelines”). The On-Tap Guidelines prescribe eligibility requirements for the promoters of the applicants, shareholding requirements including minimum capitalisation requirements, etc.
Dealing in foreign exchange requires a separate licence as an authorised dealer which is issued by the RBI under the Foreign Exchange Management Act, 1999.
Activities and Services Covered
A licensed banking company can also engage in certain other forms of business such as guarantee and indemnity business, factoring, equipment leasing and hire purchase, underwriting, insurance business with risk participation through a subsidiary/joint venture and securitisation, among others, in accordance with the terms of the BRA and the RBI’s Master Direction on Reserve Bank of India (Financial Services provided by Banks) Directions, 2016.
Licence Application Process
The licensing window is open on-tap, and the applications can be submitted in the prescribed form to the RBI at any point of time.
The RBI assesses whether the applicant meets the eligibility criteria laid down in the On-Tap Guidelines (as described below).
Following this, the application is referred to a Standing External Advisory Committee (SEAC) set up by the RBI. The SEAC comprises of eminent persons with experience in banking, financial sector and other relevant areas. The tenure of the SEAC is three years. The SEAC has the right to call for more information as well as have discussions with any applicant/s and seek clarification on any issue as may be required by it.
The SEAC submits its recommendations to the RBI for consideration. The Internal Screening Committee (ISC), consisting of the governor and the deputy governors, examines all the applications and then submits its recommendations to the Committee of the Central Board of the RBI for the final decision to issue in-principle approval.
Some of the key requirements under the On-Tap Guidelines include the following.
Conditions for Authorisation
While considering a licence application, the RBI considers the following factors as per the BRA, among others:
The On-Tap Guidelines also specify that the bank should get its shares listed on the stock exchanges within six years of the commencement of business by the bank.
The application form is provided in the Banking Regulation (Companies) Rules, 1949.
Foreign Applicants
In addition to the requirements specified above, in the case of foreign entities the RBI must also be satisfied that:
The RBI has also issued additional guidelines and requirements for foreign banks seeking a licence to operate through a branch or a wholly owned subsidiary.
Timing and Basis of Decision
No specific timeline is prescribed for deciding on an application but, typically, the process can be expected to take about 18 months or longer.
Cost and Duration
There are no specific ongoing costs associated with a bank licence. Usually, bank licences issued by the RBI are not subject to an expiry date.
Requirements on shareholdings and change of control in banks in India are governed by the BRA and the RBI (Acquisition and Holding of Shares or Voting Rights in Banking Companies) Directions, 2023.
Key requirements/restrictions relating to acquisition or increasing control over a bank are the following.
The following limits apply on shareholding.
Foreign Banks (Operating Through a Branch in India)
There are no specific requirement relating to change in shareholding of a foreign bank operating through a branch in India. However, this may be subject to a condition in its licence.
The corporate governance requirements for banks are primarily provided under:
These laws, regulations and guidelines mainly cover issues such as the following.
Key requirements applicable to registration and oversight of senior management of banks are under the BRA include the following.
The BRA prohibits employment of any person whose remuneration or part of whose remuneration takes the form of commission or a share in the profits of the company, or whose remuneration is, in the opinion of the RBI, excessive. Under the BRA, the remuneration of a chair, a managing or whole-time director, manager or CEO and any amendment thereto requires prior approval of the RBI.
RBI “Guidelines on Compensation of Whole Time Directors/Chief Executive Officers/Material Risk Takers and Control Function staff, 2019” (the “Compensation Guidelines”) also govern the remuneration of directors and bank executives. These apply to private and foreign banks operating in India.
The Compensation Guidelines have adopted the Financial Stability Board Principles for Sound Compensation. Key requirements under these guidelines are set out below.
In India, the Prevention of Money-Laundering Act, 2002 (PMLA) provides the legal framework for anti-money laundering and countering financing of terrorism related requirements. Under the PMLA, banks are required to follow customer identification procedures and monitor their transactions. The RBI has issued Know Your Customer Directions, 2016 (the “KYC Directions”), which lay down the AML/CFT requirements for banks.
Some of the key requirements relating to anti-money laundering and counter-terrorist financing requirements under the KYC Directions are as follows.
The Deposit Insurance and Credit Guarantee Corporation (DICGC), a wholly-owned subsidiary of the RBI administers the Deposit Insurance Scheme. Deposits such as savings, fixed, current, recurring, at all commercial banks including branches of foreign banks functioning in India, local area banks and regional rural banks are insured by the DICGC. However, the following types of deposits are not insured:
Each depositor in a bank is insured up to a maximum of INR0.5 million for both principal and interest amount as on the date of liquidation/cancellation of bank՚s licence or the date on which the scheme of amalgamation/merger/reconstruction comes into force. The premium for the deposit insurance is borne entirely by the insured bank.
India adopted the Basel III Capital Regulations in 2013, which were fully implemented on 1 October 2021, as noted under RBI’s Master Circular on Basel III Capital Regulations dated 12 May 2023. The capital adequacy framework applies to banks at both a consolidated and a standalone level.
Banks are required to maintain a minimum Pillar 1 capital to risk-weighted assets ratio (CRAR) (a ratio of the bank’s capital in relation to its risk-weighted assets) of 9% on an on-going basis (other than capital conservation buffer and countercyclical capital buffer, etc).
Every bank needs to maintain, by way of a cash reserve, a sum equivalent to a certain percentage of the total of its Net Demand and Time Liabilities (NDTL) in India. The NDTL of a bank includes (i) liabilities towards the banking system net of assets with the banking system (as defined in the BRA and the RBI Act); and (ii) liabilities towards others in the form of demand and time deposits or borrowings or other miscellaneous items of liabilities. Currently, banks need to maintain a cash reserve ratio (CRR) of 4.50% of the bank’s total NDTL as on the last Friday of the second preceding fortnight. Every scheduled bank needs to maintain minimum CRR of not less than 90% of the required CRR on all days during the reporting fortnight, in such a manner that the average of CRR maintained daily shall not be less than the CRR prescribed by the RBI.
Every scheduled commercial is required to maintain assets (such as unencumbered government securities, cash and gold) the value of which shall not, at the close of business on any day, be less than 18% of their total net demand and time liabilities in India as on the last Friday of the second preceding fortnight in accordance with the method of valuation specified by RBI from time to time.
Banks are also required to maintain a liquidity coverage ratio (LCR) of 100%, which requires banks to maintain High Quality Liquid Assets (HQLAs) to meet 30 days net outgo under stressed conditions.
The minimum leverage ratio for domestic systemically important banks is 4% and 3.5% for other banks.
Regulatory Framework for Resolution of Insolvency of Banks
There is no specialised resolution regime for insolvency of financial firms in India. The BRA lays down the following modes of resolution for failing banks.
Yes Bank Limited’s scheme of reconstruction in 2020 provides an example of resolution of a bank through a draft RBI scheme of reconstruction under Section 45 of BRA.
The RBI had also introduced a “Prompt Corrective Action (PCA) Framework for Scheduled Commercial Banks”, which is governed by its notification dated 2 November 2021, with the objective of enabling supervisory intervention at appropriate time and requiring the bank to initiate and implement remedial measures in a timely manner, so as to restore its financial health. The corrective action taken may include restriction on dividend distribution/remittance of profits, promoters to bring in capital, restriction on branch expansion, restrictions on capital expenditure, other than for technological upgradation within board approved limits, special supervisory actions, strategy related, governance related, capital related, credit risk-related, market risk-related, HR-related, profitability-related, operations/business-related or any other specific action that the RBI may deem fit considering the specific circumstances of a bank.
Importantly, in November 2019, the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 (the “FSP Rules”) were notified under the Insolvency and Bankruptcy Code, 2016 (IBC). These rules expanded the gamut of IBC from corporate debtors to insolvency and liquidation of financial service providers. Currently, the FSP Rules are applicable to systemically important non-banking finance companies having an asset size of INR5 billion or more.
In April 2023, the RBI released a framework for the acceptance of green deposits applicable to banks with the objective of encouraging banks to offer green deposits to customers and help increase credit flow to green projects.
Some of the key features of the green deposit framework include the following.
No content provided in this jurisdiction.
Key upcoming regulatory developments that may be introduced in the near future and which may have an impact on banks in India are as follows.
The above proposals are currently in the consultation stage (ie, public comments have been sought on these proposals) and are expected to be released soon.
AZB House
Peninsula Corporate Park
Ganpatrao Kadam Marg
Lower Parel
Mumbai 400 013
India
+ 91 22 4072 9999
+ 91 22 6639 6888
aditee.dash@azbpartners.com www.azbpartners.com