It is an established fact that the NBFC sector has risen to prominence at an unprecedented pace, and to give due credit, NBFCs have indeed played a significant role in changing the lending landscape. Whether it is through technological innovation or through structured risk based lending, NBFCs have been in the forefront and provided the much needed financial assistance to the economy. Recent events have shown that NBFCs’ increased interconnectedness to financial institutions and customers has increased the systemic risk they pose to the financial sector, thereby resulting in a review of their current regulatory framework.
Till date, RBI had consciously adopted the ‘less rigorous’ regulatory framework for NBFCs other than systemically important NBFCs. This approach has been critical in ensuring the growth of the sector and has also allowed NBFCs operational flexibility to have greater outreach and multiple (innovative) product suites.
The current regulatory approach is based on the size of the NBFC, functions it performs and sectors it operates in. In addition to asset size, the nature of business is also a distinguishing factor for the level of regulation. In comparison to banks, NBFCs are subject to less stringent prudential requirements.
According to RBI, the size of the balance sheet of NBFCs (including Housing Finance Companies (“HFC”)), in the last five years alone, has more than doubled from ₹20.72 lakh crore (2015) to ₹49.22 lakh crore (2020). In the aftermath of the IL&FS and DHFL episodes, financial systems’ vulnerability to systemic risks was evident and this manifested itself in erosion of confidence, rating downgrades and liquidity stress.
RBI’s approach to address the systemic risks posed by the current NBFC regulatory framework is evident from the discussion paper on ‘Revised Regulatory Framework for NBFCs – A Scale-Based Approach’ (“Discussion Paper”) dated January 22, 2021. Recognizing the ‘rule of proportionality’, RBI has proposed to provide for a calibrated and graded regulatory framework by adopting a four-tiered pyramid regulations based structure. The regulatory intervention being commensurate to ‘comprehensive risk perception’, ‘size of operations’ and ‘nature of activities’ of an NBFC, that is, the NBFC at base requiring the least regulatory intervention and the intervention increasing as one moves up the pyramid.
In the Discussion Paper, the RBI proposes to regulate NBFCs by dividing them into: (a) Base Layer -comprising of non-systemically important NBFCs like P2P lending platforms, Account Aggregators, and Type I NBFCs; (b) Middle Layer – comprising of systemically important NBFCs, like deposit taking NBFCs and HFCs etc.; (c) Upper Layer (“NBFC-UL”) – comprising of NBFCs which are identified as systemically significant among NBFCs and have potential to impact financial stability (regulatory framework for NBFC-UL is proposed to be bank-like); and (d) Top Layer – this layer will be empty but can comprise of such NBFC-UL which are seen to pose extreme risks by RBI, which can be put to significantly higher and bespoke regulatory/ supervisory requirements.
The Discussion Paper also proposes an increase in net owned fund requirements for an NBFC from ₹ 2 crores to ₹ 20 crores; increase in monetary threshold for determining systemically important NBFCs from ₹ 500 crores to ₹ 1000 crores and reduction in the threshold for non-performing asset classification from 180 days to 90 days. Given the NPA deluge, it is not surprising that the RBI intends to treat all financial institutions at par when it comes to asset classification. Corporate governance measures are also sought to be enhanced, coupled with the disclosure norms being strengthened. The most significant proposal is to rehash the sectoral exposures for capital markets and real estate.
The Discussion Paper draws a line between keeping the regulatory arbitrage in place, yet allowing for a more stringent framework for NBFCs. While it has been recognised that there can be no ‘one-size-fits-all’ prescription for NBFCs, a graded scale-based approach proportionate to the systemic significance of NBFCs is a step towards evolution of the financial sector as a whole, by ensuring that the economy doesn’t get plagued with issues like rising NPAs, lack of corporate governance, ever greening of assets and the like. While the amendments are awaited, the need for a change in regulatory landscape of the sector continues.
This article was originally published in Economic Times on 03 April 2021 Co-written by: Veena Sivaramakrishnan, Partner; Sumant Prashant, Principal Associate; Jasraj Narul, Associate. Click here for original article
Contributed by: Veena Sivaramakrishnan, Partner; Sumant Prashant, Principal Associate; Jasraj Narul, Associate
This is intended for general information purposes only. The views and opinions expressed in this article are those of the author/authors and does not necessarily reflect the views of the firm.
The Bar Council of India does not permit solicitation of work and advertising by legal practitioners and advocates. By accessing the Shardul Amarchand Mangaldas & Co. website (our website), the user acknowledges that: