The Corporate & Commercial Law Society Blog, HNLU

Category: Capital market

  • ESG Labels, Real Impact: Accountability and Incentives in India’s ESG Debt Securities Market

    ESG Labels, Real Impact: Accountability and Incentives in India’s ESG Debt Securities Market

    BY ANSHIKA SAH AND ABHAVYA SHARAN, FOURTH – YEAR STUDENTS AT RMLNLU, LUCKNOW

    INTRODUCTION

    Using the term “sustainability” merely as a marketing label, without any supporting regulations or uniform standards, results in purpose-washing and, consequently, loss of credibility in sustainable finance and corporate practices. In recent times, there has been a rapid increase in the ESG finance landscape across the globe, with the market projected to reach approximately $7.02 trillion in 2025. However, a litany of high-profile purpose-washing cases has made this market vulnerable to increased scrutiny over credibility and enforcement.

    India’s exploration into this      arena has gained momentum with the release of a dedicated Framework for Environment, Social and Governance (‘ESG’) Debt Securities (other than green debt securities) by the Securities and Exchange Board of India (‘SEBI’). This article examines the proposed framework and discusses      the strategic incentives involved for Indian corporates in integrating ESG considerations in their core business strategies. By analyzing the challenges involved in the implementation of the same, the article concludes with a few policy recommendations to address these challenges for a more comprehensive and better-suited framework.

    OVERVIEW OF THE FRAMEWORK 

    While India has had an environmental bond program since 2015, the newer instruments lacked the consistent regulation they required. SEBI in June 2025 introduced a comprehensive framework (‘the framework’)     , redefining ESG Debt Securities to include social bonds, sustainability bonds, and Sustainability-linked bonds or (‘SLBs’), as the demand for sustainable finance grew. In social bonds, funds are used for projects addressing social issues, such as affordable housing and job creation     , whereas in sustainability bonds, funds are raised for a combination of green and social projects. SLBs, on the other hand, are tied to the issuer achieving certain pre-set sustainability goals. These bonds guide private investment towards achieving the United Nations’ Sustainable Development Goals (‘SDGs’). They also provide investors with a practical means to combine financial gains with environmental and social benefits. The significance and momentum of these instruments are highlighted by the      expanding global ESG bond market, while India’s own issuance of over USD 13.07 billion on IFSC exchanges by the end of September. Globally accepted and recognised standards, like the Climate Bonds Standard, ASEAN standards, EU Green Bond Standard, and International Capital Market Association (‘ICMA’) Principles, must be followed by these ESG Debt securities to protect against the risks of ‘purpose-washing’ and guarantee comparability.

    ENFORCEMENT AND ACCOUNTABILITY MECHANISMS  

    Disclosure, reporting, and third-party review are significant prerequisites. Transparency needs to be maintained by the issuers, and quantifiable proof of impact has to be provided under the new framework. Significant information, such as how the proceeds are going to be utilised, target population, project selection, and whether the bond will finance new or ongoing projects, needs to be disclosed. For SLBs, issuers must specify the key performance indicators (‘KPIs’) and sustainability performance targets (‘SPTs’). There has to be constant reporting subsequent to the issue of securities of the fund allocation progress, and its impact on the environment and society.

    An independent third-party review is a mandatory requirement in order to ensure that, after the issue, the bonds are accurately classified into the four categories which are ‘green bonds’, ‘social bonds’, ‘sustainability bonds’ and ‘sustainability-linked bonds’ and to confirm that disclosures and results align with the commitments made. For this, the issuer must have a review by an independent third-party with relevant expertise, such as SEBI-registered ESG ratings providers. In order to combat non-compliance, SEBI has also included safeguards like early redemption clauses and penalties. Such provisions enable investors to redeem their securities if a try-out is attempted to purpose-wash or if the commitments entered into are not met.

    Purpose-washing is defined as making false, misleading, unsubstantiated, or otherwise incomplete claims about a bond’s purpose, often by misrepresenting how the money will be used. SEBI’s rules are explicitly designed to combat this by mandating that social or sustainability bonds must fund only the projects and objectives disclosed at the time of issue, and any deviation must be disclosed immediately.      SLBs carry a heightened risk of purpose-washing as compared to green or sustainability bonds, owing to their structure of performance-based incentives, as issuers may set low or easily attainable KPIs simply to label instruments as sustainability-linked, without delivering meaningful impact. SEBI’s earlier February 2023 Green Bond Guidelines mandated ‘dos and don’ts’ to combat greenwashing by prohibiting misleading labels, data cherry-picking, and unverified environmental assertions. However, one of the most glaring issues is the implicit exclusion of SLBs from the applicability of measures to mitigate purpose-washing, given the international standard of penalizing non-compliance.

    INCENTIVE FOR ESG INTEGRATION

    The new framework by SEBI      incentivizes Indian companies to integrate ESG considerations into their core strategies. With the global ESG asset pool sizing up to more than $35 trillion, the framework positions India to tap into this pool, to attract global capital and long-term finance. This is evident from Larson & Toubro’s debut ESG bond, which demonstrated huge investor demand and received a AAA CRISIL rating, and was priced at a lower interest rate      of 6.35%, compared to 6.45–6.50% for similar non-ESG instruments in the secondary market, indicating clear financial advantages for compliant issuers.

    Further, SEBI’s requirement of standard ESG disclosure through the Business Responsibility and Sustainability Reporting (‘BRSR’) core and the proposed India-specific ESG parameters improve the scope of sectoral comparison while aligning ESG reporting with domestic priorities. A higher ESG rating encourages businesses to improve corporate governance and performance because it signals increased market credibility and a lower cost of capital. Leading examples are Infosys and L&T, which have incorporated ESG principles in their core business strategies to gain a competitive edge by leveraging innovation and sustainability.

    Furthermore, businesses can use their credible ESG governance and disclosure practices to gain access to global markets and secure preferred vendor status with multinational buyers, particularly in export-driven industries like automobiles, electronics, textiles, etc. Moreover, Developmental Financial Institutions (‘DFIs’) like NABARD and SIDBI also provide facilities like concessional finance and targeted incentive schemes for companies that demonstrate ESG performance and compliance with SEBI’s framework.

    COUNTER ARGUMENTS AND CHALLENGES IN THE INDIAN MARKET

    Despite the benefits, as the ESG finance market expands, it presents significant challenges for issuers. One primary challenge is that there is no universally accepted definition for ‘Social’ or ‘Sustainable’, leading to a lack of clarity in application and also inhibiting standardization. Issuers run the risk of being falsely accused of purpose-washing in the absence of any uniform standards. Huge compliance costs for third-party verification and detailed disclosure requirements are compounded by this, which may discourage small and first-time issuers from participating because they often lack the infrastructure and budget to meet these requirements. Additionally, the ESG-rating market is highly fragmented and opaque, which makes it difficult for investors to evaluate and contrast the issuances across sectors. Investor confidence is further undermined by a lack of standard evaluation tools and unclear information on impact metrics.

    Although some critics have expressed concerns that the introduction of rigid taxonomies and standard KPIs may hinder innovation, and possibly put small and regional issuers at a disadvantage. Though valid, these concerns do not negate the broader need for uniformity in general. The same could be addressed through a phased implementation of the framework, starting with voluntary compliance and then gradually moving towards mandatory requirements. Similarly, inference can be drawn from the EU’s experience with the Green Taxonomy, which demonstrated that proportionality and standardization can go hand-in-hand.

    PROPOSED REFORMS TO STRENGTHEN THE FRAMEWORK

    However, this is only the beginning, and there is scope to counter these obstacles and to turn them into an opportunity to strengthen the ESG Finance landscape in India by learning from global best practices and tailoring them to suit India’s development needs. SEBI should move beyond international standards and introduce an India-specific ESG taxonomy tailored to national priorities and SDG commitments. This could draw inspiration from the EU Green Taxonomy but be adapted for India’s socio-economic development. For this, SEBI should promote the use of sector-specific templates and model KPIs to enable comparison without compromising local relevance. Though the disclosure burden is high and compliance requirements are complex, it must be noted that these are essential to eliminate the misuse of ESG labelling or purpose washing and ensure genuine impact is made. Leveraging public infrastructure and targeted support from DFIs like NABARD, SIDBI, etc., should be sought to alleviate this burden. Moreover, coalitions of the private sector, like the Confederation of Indian Industries (CII) and the Federation of Indian Chambers of Commerce and Industry (FICCI), can assist in ESG-related capacity building and provide technical and financial support.

    A central ESG oversight body under SEBI should be created to monitor disclosure, enforce accountability, ensure market discipline, and serve as an institutional safeguard for all the different stakeholders. Penalties for non-compliance should be clearly articulated to deter purpose-washing. Credit rating agencies must be mandated to follow a uniform ESG-scoring criterion. Additionally, integrating the ESG Bond market with blockchain technology and the smart contract system can enhance transparency and automate compliance by tracking the use of proceeds in real-time.

    CONCLUSION

    The framework is a timely step in aligning the Indian financial market with the UN SDGs and introduces baseline standards, opening a pathway for credible ESG capital mobilization. While it is built on good intent, this will all be meaningful when it is backed by strong enforcement and accountability mechanisms that go beyond mere disclosure formalities. The current framework leaves several gaps that require further attention. For India to become a global hub for sustainable financing, its ESG regulatory infrastructure must be built on pillars of credible enforcement, integrity, real impact, and alignment with sustainable principles.

  • Expanding The Meaning of Sufficient Cause under Section 58 (1)

    Expanding The Meaning of Sufficient Cause under Section 58 (1)

    BY PRIYAM MITRA, THIRD- YEAR STUDENT AT NLSIU, BANGALORE

    INTRODUCTION

    Through judicial pronouncements and legislative clarifications, the seemingly unbridled power of free transferability of public companies is constrained by two clauses: one stating that any contract between two or more persons would be enforceable as a contract (proviso to Section 58(2)) and; secondly, the public company may refuse to register this transfer of shares by showing sufficient cause (Section 58(4)).

    There is considerable literature on why employee stock option schemes are introduced in various different ways. Specifically in firms where there are capital constraints, which is often the case in unlisted public companies, these strategies are often deployed for the purposes of “employee retention and sorting”. It is also well established that after the lock-in period of these schemes, these shares are to be treated in the same way as other equity shares; this means that for public companies this would lead to principles of free transferability being applicable thereon upon such shares given to employees.

    It is the argument of the paper that in this context, the meaning given to the term “sufficient cause” under section 58(4) must be read in an expansive manner so as to cover instances where allowing further transfer of these allotted shares would be perverse to the interests of the company. To do this, the NCLAT judgement of Synthite Industries Limited v. M/s Plant Lipids Ltd. (2018), which emphasises directors’ duties under Section 166(2) would be relied on.

    FOUNDATIONS OF EMPLOYEE STOCK OPTION PROGRAMS AND POSSIBLE ROADBLOCKS

    A. Reasons for ESOP Schemes

    As mentioned before, there has been a growing trend in industries where rather than providing incentives to employees to work, ESOPs are used for sorting and selection of those who are optimistic about the future of the company. This is why it makes sense for even public companies to get the benefit of ESOPs even though traditionally there should have been no restrictions on the transferability of public company shares. However, what is often overlooked in analysis is then how do those who receive these options exercise them and whether these transactions can be restricted in view of other important consideration as out lined later (namely whether there is sufficient cause to believe that the transfer would result in harming the interest of all shareholders).

    B. Nominee Directors

    Before the enactment of the Company Act 2013, there had been academic concerns expressed with respect to independent directors receiving stock options. The reason for this was rooted in the fact that independent directors, by the nature of their role, had to be independent of any pecuniary interest in order to perform their function. Stock options in this context would dampen this independence and rightfully, Indian law averted this error through the SEBI (Share Based Employee Benefits) Regulations, 2014. The rules define “employees” as explicitly not including “independent directors” (Rule 2(1)(f)(ii)).

    However, inadvertently, the category of nominee directors has been categorically excluded from the category of independent directors under Section 149(6) of the Companies Act, 2013, and this means that they are covered under the definition of employee for the purpose of stock option schemes. To understand why this is a possible roadblock to achieving the purpose of stock option schemes, the peculiar role of nominee directors has to be analysed.

    Nominee directors have become a regular part in corporate structures in India. Due to them owing their duty to the nominator but sitting on the board of directors. There is always a speckle of concerns related to conflict of interest. Indeed, it has been observed in decisions that in a situation where these two interests are at conflict, they would be placed in an “impossible position”. Coming back to why this is an issue in the context of ESOPs, it must be understood that while the ESOPs cannot be transferred to any third party (the option to buy (Rule 9)), the shares issued to nominee directors pursuant to ESOPs, however, may be transferred to the nominating institutions. This conspicuously places the nominee directors in such a position where the nominating institutions may meddle in the functioning of these directors pushing for transfer of these lucrative shares.

    There could be an argument that there is a solution already implicit in the rules. That is, the companies may choose any period as the lock-in period (the period during which these shares cannot be transferred). However, unlike the provisions on sweat equity (3 years), there is no such minimum lock-in period prescribed. It is difficult for companies to deploy one single lock-in period for all kinds of employee and having such a strict period would be prejudicial to the employees’ interests. Therefore, it is argued, in exceptional circumstances Section 58(4) must be used to restrict transactions on a case-to-case basis.

    SUFFICIENT CAUSE UNDER 58(4)

    To solve the issues identified in the previous section, this paper proposes an expansive reading of sufficient cause under Section 58(4) as a possible solution. To understand the contemporary legal position, analysis must start from before the introduction of the Companies Act in 2013. Section 58(4) of the 2013 Act clarifies the position established by Section 111A of the Companies Act, 1956. Section 111A (3) provided an exhaustive list of instances (contravention of and law in India) wherein such refusal would be upheld. It was consistently held by the Courts that sufficient cause had to be read in this narrow manner.

    The recent line of cases starting from Mackintosh Burns v. Sarkar and Chowdhury Enterprises, recognise the wider ambit of sufficient cause under the Companies Act 2013. Mackintosh’s reasoning was based on simple facts of a competitor trying to buy shares in a company, a simple case of conflict of interest, hence, the Supreme Court concluded that at least in such cases, sufficient cause would entail something more than mere contravention of law. Synthite goes further and provides more robust reasoning even though the fact scenario here was very similar to Mackintosh. The court accepts the appellants arguments and holds the wisdom of the Board of Directors in high regard by forming a link between their fiduciary duty (Section 166(2)) to act in a bonafide manner and advance the company’s interests, to their refusal of registration of transfer (under Section 58(4)) (paras [10],[16],[22]). This effectively means that their refusal to register shares in this case was deemed reasonable because the board acted in a bonafide manner to advance the interests of the shareholders.

    In fact, a recent case heard by the Delhi High Court in Phenil Sugars Ltd. v Laxmi Gupta, was decided in a similar vein as that of Synthite (though the NCLT decision is not cited) wherein the Court held that registration of shares can be restricted where:

    “[27]There is an apprehension that the transfer is not in the best interest of the company and all its stakeholders including the shareholders;

    ii. The said apprehension is reasonable and there is material on record to support the apprehension.”

    The case is a monumental step forward. Till now, the cases primarily dealt with the transfer being done to a competing company, however, in this case, the court considered the refusal to be reasonable as the transferees had a history of meddling in the corporate affairs of the company through constant complaints. On the twin test laid down, the High Court considered the cause to be sufficient.                                                                                           

    CONCLUSION: RESTRICTING TRANSFER OF ESOP SHARES THROUGH SECTION 58(4)

    Realising the purpose behind ESOPs, that is, rewarding and more importantly retaining employees and shares within the company, leads to the conclusion that the board must be given the power to refuse registration of transfer. This is solidified by the emerging jurisprudence in India with respect to the ambit of sufficient cause under Section 58. It is argued that this determination would vary greatly with the unique facts and circumstances of each case.

    In case of nominee directors transferring the shares to their nominating institutions, one must look at the standard put forth by Synthite (invoking the directors’ fiduciary duty in making this decision)and the courts should not be constrained by the restrictive interpretation that sufficient cause would exist only when shares are transferred to competing companies (Phenil Sugars). It must be accepted that “deferring to the Board’s wisdom” would surely encompass such situations where a transfer would defeat the purpose of ESOPs and indirectly derogate the interests of all stakeholders. If nominee directors transfer shares to their nominating company, then they would be put in a precarious situation caught in between conflicts on interests.

    However, this does not mean that all ESOP receivers would be estopped from transferring their shares, this determination has to be made considering all the terms of the ESOP and the relationship that the company shares with the employee. What this paper has argued is that sufficient clause has to be interpreted in a wide way so as to restrict any transaction that would be prejudicial to the interests of all shareholders. Transfer of ESOP shares (usually) at a lower price needs to be maintained within the company and its employees, specifically when it is at a nascent stage; this should surely constitute sufficient cause.

  • India’s Social Stock Exchange: How Compliance Strains Impact NPOs and Social Impact Assessors?

    India’s Social Stock Exchange: How Compliance Strains Impact NPOs and Social Impact Assessors?

    BY DHARSHAN GOVINTH R AND SIDDHARTH VERMA, FOURTH- YEAR AT GNLU, GANDHINAGAR

    INTRODUCTION

    India’s Social Stock Exchange (‘SSE’) is a trend-setting initiative introduced by the Securities and Exchange Board of India (‘SEBI’) in 2022, which by aiming to align capital markets and philanthropic purposes intended to give a fund-raising ground for non-profit organizations (‘NPO’) and other social entities. But this initiative is displaying some strains especially after the SEBI circular issued in late September 2025 which made some modifications in SSE’s compliance framework bringing forth the credibility-capacity paradox, which would be examined in this research work.

    This article explores this paradox of credibility and capacity, by first outlining the recent modification brought out by SEBI. Secondly it is followed by a thorough analysis of the modified compliance architecture is done to assess as to what makes this framework problematic. Thirdly, an analysis of SSEs in different countries is done to highlight upon potential modifications which can be done in India.  Finally, it gives some ideas of reform to balance the rigor and inclusivity in the present framework.

    THE MODIFIED FRAMEWORK AND ITS FAULTLINES

      The circular of SEBI has established a compliance framework, where the modifications as follows are of significance. The circular mandates 31st October of each year as the deadline to submit a duly verified Annual Impact Report (‘AIR’) by all fundraising non-profits. It also mandates those non-profits which have been registered on SSE but haven’t listed their securities to submit a self-reported AIR covering 67% of the program expenditure. Then, there is a mandate that all the above AIRs need to be assessed by Social Impact Assessors (‘SIA’).

      Although initially these modifications may show that there is a sense of strengthened transparency, three problems emerge upon implementation. Firstly, the dual-track approach—which creates unequal degrees of credibility by having separate compliance requirements for two types of NPOs. Secondly, there is a problem of supply-demand as the limited supply of SIAs (approximately 1,000 nationwide) is insufficient to meet demand as hundreds of NPOs enter the SSE. Finally, smaller NGOs with tighter finances are disproportionately affected by compliance expenses, such as audit fees and data gathering. These concerns need to be analyzed further inorder to determine whether the SSE can provide both accountability and inclusivity.

      HOW THE PRESENT COMPLIANCE ARCHITECTURE LEADS TO CREDIBILITY-CAPACITY PARADOX?

        The present modification of the compliance framework by SEBI has in its core, the aim to grow the trust of the investors by means of mandating independent verifications. Nevertheless, this framework exhibits inconsistencies which need to be undone. The first gap that is visible is the problem of credibility. This modification proposes a dual-track SEBI’s modification institutes a dual-track compliance: NPOs that raise funds must file an auditor-verified AIR, whereas SSE-registered entities that have not listed securities (mostly smaller NPOs) may submit a self-verified AIR. This distinction creates a clear credibility gap where investors and donors will reasonably rely on audited AIRs, effectively privileging well-resourced organisations and marginalising smaller, self-reporting grassroots NPOs that lack access to auditors or the capacity to procure independent verification. Another issue is the mandatory coverage of 67% of the program expense in the AIR by the non-listed NPOs , which on one hand may lead to extensive coverage of the financials of those NPOs, but on the other hand pose a heavy operational burden on these NPOs which manages diverse programmes.  The expenses of fulfilling this duty may be unaffordable for NPOs without baseline data or technological resources.

        Moving from the issue of credibility, the challenge of capacity—stemming from the scarcity of SIAs—presents a more significant concern. The industry faces a supply-demand mismatch as there are only around 1,000 qualified assessors across India in self-regulatory organizations (‘SRO’) like ICAI, ICSI, ICMAI, etc., who are selected through qualification examinations conducted by National Institute of Securities Market. The problem is that compliance becomes contingent not on the diligence of NPOs but on the availability of auditors.

        Financial strain completes the triad of challenges. Impact audits are resource-intensive, requiring field verification, outcome measurement, and translation of qualitative change into quantifiable indicators. These tasks incur substantial fees, particularly in rural or remote contexts. Unlike corporations conducting corporate social responsibility activities (‘CSR’), which under Section 135 of Companies Act 2013 caps impact assessment costs at 2% of project outlay or ₹50 lakh, SSE-listed NPOs do not enjoy any such relief. The absence of stronger fiscal offsets weakens the fundraising advantage of SSE listing, making the cost-benefit calculus unfavorable for many small organizations.

        These dynamics create what may be described as a credibility–capacity paradox. The SSE rightly seeks to establish credibility through rigour, but the costs of compliance risk exclude the very grassroots non-profit organizations it was designed to support. Larger, urban, and professionalized NPOs may adapt, but smaller entities operating at the community level may find participation infeasible. Nevertheless, it would be reductive to see the SSE’s framework as wholly burdensome. Its emphasis on independent audits is a landmark reform that aligns India with global best practices in social finance. The challenge is to recalibrate the balance so that transparency does not come at the expense of inclusivity.

        LEARNING FROM GLOBAL SSES: AVOIDING EXCLUSIONS, BUILDING INCLUSION

          India’s SSE is not the first of its kind. Looking at examples of abroad helps us see what works and what doesn’t. For instance, Brazil’s SSE, established in 2003 raised funds for about 188 projects but mostly attracted larger NPOs, leaving smaller groups behind. In the same way, the SSE of UK, established in 2013 favored professional entities as it operated more as a directory than a true exchange, raising €400 million. Both examples show how heavy compliance rules can narrow participation leaving small NPOs and eventually these SSEs failed to be in the operation in due time.

          The SSEs of Canada and Singapore, both established in 2013 also set strict listing criteria but unlike the above, paired them with direct NPO support, including capacity-building and fundraising assistance, especially for small scale NPOs. This made compliance more manageable. India can learn that it can prevent these exclusions of certain non-profits and create an SSE that is both legitimate and inclusive by combining strict audit regulations with phased requirements and financial support.

          BRIDGING GAPS THROUGH REFORM: MAKING INDIA’S SSE MORE EQUITABLE

          A multi-pronged reform agenda can address these tensions. Firstly, SEBI could ease compliance costs for small NGOs by creating a centralized digital platform with standardized reporting templates and promoting shared auditor networks to spread expenses. Further, in order to breakdown entry barriers to smaller NPOs, a phased-tier system of compliance could be implemented to the requirements for audits in the initial years. This phased tier system can be achieved for instance by first mandating 40-50% of coverage of expenditures in the audit in the initial years and then gradually rising the threshold to the 67% requirement as per the recent modification to ease compliance.

          Secondly, the creation of a SSE Capacity Fund, which could be funded by CSR allocations would be a viable step for reducing the burden of compliance and to preserve the resources of NPOs which are already limited. These subsidies and grants through these funds could maintain both financial stability and accountability of NPOs.

          Third, SROs have to develop professional capacities in a short time, which could be done by the increase in accelerated certification programmes among people who have pertinent experience. In addition, in order to protect credibility, the SROs must require the auditors to undergo rotation and then make sure that the advisory and auditory functions are never combined. Lastly, expenditure on digital infrastructure will help diminish compliance costs greatly. This could be done for instance by establishing a common platform of data collection and impact reporting which might allow small NPOs to be prepared to comply effectively. These systems could assist in bridging the gap between the professional audit requirements and the small capacity of smaller NPOs.

          CONCLUSION

          India’s SSE has undoubtedly increased the credibility of the social sector by instituting mandatory audits and transparent reporting for listed social enterprises, thereby strengthening the confidence of investors and donors. This is a significant achievement in formalizing social finance. However, this audit-driven transparency also illustrates a “credibility–capacity paradox”: rigorous accountability measures, while necessary, impose high compliance burdens on smaller grassroots nonprofits with limited resources. If there is no support or mitigation mechanisms, the SSE may inadvertently narrow the field of participants and undermine its inclusive mission. In contrast, international peers show more balanced regulatory models, thereby showing a way forward for India as well. For instance, Canada’s SSE combines stringent vetting with tailored capacity-building programs, and Singapore’s SSE employs a social-impact framework and supportive ecosystem to enforce accountability while nurturing small social enterprises. Ultimately, a mature SSE should balance oversight with inclusivity and support. If India implements this balance, which it lacks, its SSE could be an equitable, inclusive, digitally integrated and resource-efficient platform in the coming decade. Such an SSE would leverage digital reporting to cut costs and uphold rigorous transparency standards, while genuinely empowering grassroots impact.

        1. SEBI’s AI Liability Regulation: Accountability and Auditability Concerns

          SEBI’s AI Liability Regulation: Accountability and Auditability Concerns

          AYUSH RAJ AND TANMAY YADAV, FOURTH AND THIRD-YEAR STUDENTS AT GUJARAT NATIONAL LAW UNIVERSITY, GANDHINAGAR

          INTRODUCTION

          Securities and Exchange Board of India’s (‘SEBI’) February 2025 amendments (Intermediaries (Amendment) Regulations, 2025) inserted Regulation 16C, making any SEBI-regulated entity solely liable for AI/ML tools it uses, whether developed in-house or procured externally. This “sole responsibility” covers data privacy/security, the integrity of artificial intelligence (‘AI’) outputs, and compliance with laws. While this shift rightfully places clear duties on intermediaries, it leaves unaddressed how AI vendors themselves are held to account and how opaque AI systems are audited. In other words, SEBI’s framework robustly binds intermediaries, but contains potential gaps in vendor accountability and system auditability. This critique explores those gaps in light of international standards and practice.

          SCOPE OF REGULATION 16C AND ITS LEGAL FRAMEWORK

          Regulation 16C was notified on Feb 10, 2025 with immediate effect. In substance, it mirrors SEBI’s November 2024 consultation paper: “every person regulated by SEBI that uses AI…shall be solely responsible” for (a) investor data privacy/security, (b) any output from the AI it relies on, and (c) compliance with applicable laws. The rule applies “irrespective of the scale” of AI adoption, meaning even small or third‑party use triggers full liability. SEBI may enforce sanctions under its general powers for any violation.

          This framework operates within SEBI’s established enforcement ecosystem. Violations can trigger the regulator’s full spectrum of penalties under the Securities and Exchange Board of India Act, 1992, ranging from monetary sanctions and cease-and-desist orders to suspension of operations. The regulation thus creates a direct enforcement pathway: any AI-related breach of investor protection, data security, or regulatory compliance automatically becomes a SEBI violation with corresponding penalties.

          The legal significance lies in how this shifts risk allocation in the securities ecosystem. Previously, AI-related harms might fall into regulatory grey areas or involve complex questions of vendor versus user responsibility. Regulation 16C eliminates such ambiguity by making intermediaries the single point of accountability, and liability, for all AI deployments in their operations.

          VENDOR-ACCOUNTABILITY GAP

          In practice intermediaries often rely on third-party models or data, but the regulation places all onus on the intermediary, with no parallel duties imposed on the AI vendor. If a supplier’s model has a hidden flaw or violates data norms, SEBI has no direct rulemaking or enforcement channel against that vendor. Instead, the intermediary must shoulder penalties and investor fallout. This one-sided design could dilute accountability: vendors might disclaim liability in contracts, knowing enforcement power lies with SEBI, not with the provider. As a result, there is a regulatory blind spot whenever AI harms stem from vendor error.

          Moreover, industry and global reports warn that relying on a few AI suppliers can create systemic risks. The Bank for International Settlements (BIS) Financial Stability Institute notes that “increased use of third-party services (data providers, AI model providers) could lead to dependency, disruption of critical services and lack of control,” exacerbated by vendor lock-in and market concentration. In other words, heavy dependence on external AI technologies can amplify risk: if one vendor fails, many intermediaries suffer concurrently. The US Treasury likewise highlighted the so‑called “vendor lock-in” problem in financial AI, urging regulators to require vendors to enable easy transitions between competing systems. SEBI’s framework currently lacks any mechanism to counteract lock‑in, such as mandated data or model portability requirements that would allow intermediaries to switch between AI providers without losing critical functionality.

          The recognition of these risks inherently places a responsibility on intermediaries to secure strong contractual controls with AI suppliers. This requires regulated entities to perform thorough due diligence and establish back-to-back arrangements with AI vendors to mitigate risk. Such agreements must include provisions like audit rights, data access, and vendor warranties. However, because explicit legal requirements are absent, the onus falls entirely on intermediaries to negotiate these terms. A failure to do so means SEBI’s liability framework itself provides no enforcement of vendor-side transparency.

          In practice, this gap means an intermediary could satisfy SEBI’s rule on paper (having liability assigned), yet still face failures or disputes with no legal recourse beyond its own contract. The regulator’s approach is asymmetrical: intermediaries have all the incentives to comply, while vendors have none. SEBI’s choice to rely on intermediaries may have been pragmatic, but it is a potential weakness if vendors operate without accountability.

          Consider an AI-driven trading recommendation system supplied by Vendor X. If X’s model generates a flawed recommendation that causes losses, Regulation 16C makes the brokerage (user) fully liable. Yet Vendor X could escape sanction if it sold the software “as is.” Under OECD principles, both the user and the supplier are expected to manage risk cooperatively, but SEBI’s text does not reflect that partnership.

          The foregoing points suggest that SEBI may need to clarify how vendor risks are handled. Potential solutions could include: explicitly requiring intermediaries to contractually compel vendor compliance and audit access, or even extending regulatory standards to cover AI vendors serving Indian markets.

          AUDABILITY AND TRANSPARENCY OF AI SYSTEMS

          A related issue is auditability. Even if intermediaries are liable, regulators must be able to verify how AI systems operate. However, modern AI, especially complex Machine Learning (ML) and generative models, can be “black boxes.” If SEBI cannot inspect the model’s logic or data flows, apportioning entire liability to an intermediary could be problematic.

          Regulators worldwide emphasize that AI systems must be transparent and traceable. The OECD’s AI Principles state that actors should ensure “traceability … of datasets, processes and decisions made during the AI system lifecycle, to enable analysis of the AI system’s outputs and responses to inquiry”. Similarly, a UK financial‑services review emphasizes that auditability “refers to the ability of an AI system to be evaluated and assessed, an AI system should not be a ‘black box’”. In practical terms, auditability means maintaining logs of data inputs, model versions, decision rationales, and changes to algorithms, so that an independent reviewer can reconstruct how a given outcome was reached.

          SEBI’s 16C does not itself mandate audit trails or explain ability measures. It only requires the intermediary to take responsibility for the output. There is no explicit requirement for intermediaries (or their vendors) to preserve model logs or allow regulator inspection. Without such provisions, enforcement of output accuracy or compliance with laws is hampered. For example, if an AI-generated trade signal caused a regulatory breach, SEBI (or a forensic auditor) needs access to the system’s internals to determine why.

          Industry guidance suggests that firms should make auditability a contractual requirement when procuring AI. This could involve specifications on data retention, explainability reports, and independent testing. In the SEBI context, best practice would be for intermediaries to demand from AI providers any data necessary for SEBI audits.

          In essence, two main concerns arise that are closely interconnected. BIS notes that “limits to the explainability of certain complex AI models can result in risk management challenges, as well as lesser … supervisory insight into the build-up of systemic risks“. If AI outcomes cannot be easily audited, SEBI risks being unable to verify compliance, and lacking explicit audit provisions, regulators and investors may lack confidence in the system’s integrity. Additionally, without mandated audit provisions, firms may neglect this in vendor agreements, though the operational reality for firms should be to include audit clauses and perform due diligence. SEBI should consider guidance or rules requiring regulated entities to ensure audit rights over AI models, just as banks must under banking third-party rules.

          CONCLUSION

          SEBI’s insertion of Regulation 16C is a welcome and necessary move: it recognises that AI is now mission-critical in securities markets and rightly puts regulated entities on notice that AI outputs and data practices are not outside regulatory reach. Yet the regulation, as drafted, addresses only one side of a multi-party governance problem. Making intermediaries the default legal backstop without parallel obligations on vendors or explicit auditability requirements risks creating enforcement illusions, liability on paper that is difficult to verify or remediate in practice.

          To make the policy effective, SEBI should close the symmetry gap between users and suppliers and make AI systems practically observable. At a minimum this means clarifying the standard of liability, requiring intermediaries to retain model and data audit trails, and mandating contractual safeguards (audit rights, model-version logs, notification of material model changes, and portability requirements). If SEBI couples its clear allocation of responsibility with enforceable transparency and vendor-accountability mechanisms, it will have moved beyond a paper rule to a practical framework that preserves market integrity while enabling safe AI adoption.

        2. SEBI’s Rights Issue Amendments 2025: Streamlined Issues or Regulatory Labyrinth?

          SEBI’s Rights Issue Amendments 2025: Streamlined Issues or Regulatory Labyrinth?

          BY Devashish Bhattacharyya and Sadhika Gupta, FOURth- Year STUDENT AT Amity Law School, Noida
          Introduction

          A Rights Issue enables companies to offer existing shareholders the opportunity to purchase additional shares directly from the company at a price lower than the prevailing market rate. According to the Securities and Exchange Board of India (‘SEBI’) Annual Report, the number of companies that raised funds through rights issues declined from 73 in 2022–23 to over 67 in 2023–24. It was observed that numerous companies opted for alternative fundraising methods, as the existing Rights Issue process was considered protracted.

          SEBI, in exercise of the powers conferred under Section 11 and Section 11A of the SEBI Act, 1992, read with Regulation 299 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 (‘SEBI ICDR Regulations’), notified amendments under the framework of Rights Issue on 8 March 2025. The purpose of these Amendments was to improve the efficacy of capital raising by companies, as outlined in the Consultation Paper published by SEBI on 20 August 2024.

          Key Amendments in Rights Issue

          I. No more fast track distinction

          Pursuant to the Rights Issue Amendment 2025, regulations for Rights Issue now apply to all issuers regardless of their size. There is no longer a distinction in the documentation required for Rights Issue as SEBI has removed fast track eligibility requirements.

          II. SEBI Drops DLoF Requirement

          Draft Letter of Offer (‘DLoF’) and Letter of Offer (‘LoF’) must contain material disclosures to allow applicants to make a well-informed decision.  Since the issuer is listed, much of the DLoF/LoF information is already public, causing unnecessary duplication. Examining the aforesaid concerns, SEBI, through its recent amendments discontinued the requirement of filing DLoF with SEBI for the issuance of its observation.

          III. Disclosure Requirements under LoF

          Pursuant to the Recent Rights Issue Amendments 2025 , now an issuer undertaking a Rights Issue is required to comply with the updated Part-B of Schedule VI of the SEBI ICDR Regulations, eliminating the differentiation of Part B and Part B-1 of Schedule VI.

          IV. Removal of Lead Managers

          SEBI has lifted the necessity for the appointment of Lead Managers, i.e., Merchant Bankers (‘MBs’), in a Rights Issue process under the Recent ICDR Amendments 2025. The SEBI ICDR Regulations fail to define timelines for the completion of the due diligence and filing of DLoF/ LoF resulting in a prolonged duration.

          These ancillary activities that MBs perform are generic in nature and can be performed by the Issuer, Market Infrastructure Institutions, and Registrar and Transfer Agents. Therefore, the elimination of MBs will have a significant impact in expediting the issue process.

          V. Allotment to Specific Investors

          SEBI has promoted the allocation of securities through the renouncement of Rights Entitlements (‘Res’) to specific investors outside the promoters and promoter group under the Rights Issue Amendments 2025.

          A promoter must renounce REs within the promoter group. The Rights Issue Amendment 2025 eases these restrictions on the renunciation of REs to promoters and promoter group, allowing issuers to onboard specific investors as shareholders by inserting Regulation 77B.

          VI. Revised timeline for Rights Issues

          SEBI published a circular on 11 March 2025 requiring the completion of a Rights Issue within 23 days. This revised timeline is specified vide Regulation 85.

          The new timeline has been explained below:

          ActivityTimelines
          1st board meeting for approval of rights issueT
          Notice for 2nd board meeting to fix record date, price, entitlement ratio, etc.T* (Subject to Board’s/ shareholders’ approval)
          Application by the issuer for seeking in-principle approval along with filing of DLoF with stock exchangesT+1
          Receipt of in-principle approval from Stock ExchangesT+3
          2nd Board meeting for fixing record date, price, entitlement ratio etc.T+4
          Filing of LoF with Stock Exchanges and SEBIT+5–T+7
          Record DateT+8
          Receipt of BENPOS on Record date (at the end of the day)T+8
          Credit of REsT+9
          Dispatch/Communication to the shareholders of LoFT+10
          Publication of advertisement for completion of dispatchT+11
          Publication of advertisement for disclosing details of specific investor(s)T+11
          Issue opening and commencement of trading in REs (Issue to be kept open for minimum 7 days as per Companies Act, 2013)T+14
          Validation of BidsT+14–T+20
          Closure of REs trading (3 working days prior to issue closure date)T+17
          Closure of off-market transfer of REsT+19
          Issue closureT+20

          *If the Issuer is making a rights issue of convertible debt instruments, the notice for the 2nd board meeting to fix record date, price, entitlement ratio, etc. will be issued on the approval date of the shareholders, with the timeline adjusted accordingly.

          Rights Issue Amendments 2025: What SEBI Forgot to Fix?

          I. Erosion of Shareholder Democracy

          A listed company shall uphold a minimum public shareholding (‘MPS’) of 25% under Rule 19A of the Securities Contracts (Regulation) Rules, 1957. Prior to the Rights Issue Amendments, promoters and promoter group had restrictions to renounce rights within the promoter group, except for adherence to MPS requirements. The recent amendments have lifted this restriction. The promoters may renounce their rights in both manners without restrictions to related parties, friendly investors, strategic allies, etc. Such a specific investor may seem to be a public shareholder on paper, yet they effectively align their voting and acts with the interests of promoters. This creates a grey zone indirectly enhancing the control of promoters without formally increasing their share ownership. Since, SEBI has relaxed restrictions on the renunciation of REs; it shall consider introducing a cap limit on promoter renunciations in favour of specific investors. This would help prevent over-concentration of control, thereby safeguarding the interests and voice of public shareholders.

          II. Circumventing Takeover Code Intent

          Promoters are permitted to renounce their REs in favour of specific investors and allow issuers to allot unsubscribed shares to them, as per the Rights Issue Amendments 2025. This creates a vulnerability in which a specific investor can acquire a substantial stake, potentially exceeding 25%, without triggering an open offer under Regulation 3(1) of the SEBI Takeover Regulations. The exemption, which typically pertains to Rights Issues, is not applicable in this instance due to the following reasons: the acquisition is not pro-rata, it is the result of renunciation by another party, and it is not equally accessible to all shareholders. Consequently, the spirit of the SEBI Takeover Regulations may be violated if control is transferred stealthily without providing public shareholders with an exit opportunity. The Rights Issue Amendments 2025 facilitate backdoor takeovers and undermine investor protection unless SEBI clarifies that such selective acquisitions elicit open offer obligations. SEBI may consider introducing  a ceiling for acquisitions through rights issue renunciations (for e.g., 5% maximum through RE-based allotment unless open offer is made). This would prevent backdoor takeover route.

          III. Unmasking Preferential Allotment under the Veil of Rights Issue

            Under the SEBI Rights Issue Amendments 2025, companies conducting a rights issue can allocate the REs to specific investors rather than existing shareholders, provided that their identities are disclosed at least two working days prior to the opening of the issue, thereby contravening Regulation 90(2) of the SEBI ICDR Regulations. Under the veil of a rights issue, issuers can circumvent the more stringent and transparent process of preferential issue under Chapter V of SEBI ICDR Regulations by directing REs to specific investors. Further, the SEBI ICDR Regulations lack a framework that mandates issuers to justify why such specific investors were chosen.

            Pricing formula and lock-in restrictions applicable to preferential issue under Regulations 164 and 167 of the SEBI ICDR Regulations, respectively, should be applied to all discretionary allotments of REs. Any such allotment exceeding a defined threshold should require prior approval through a special resolution as specified under Section 62(1)(c) of the Companies Act, 2013. In addition, the SEBI ICDR Regulations should set a framework obligating issuers to disclose the rationale for selecting any specific investor.

            IV. Mandatory Lock-in Period for Specific Investors

              While the SEBI’s proposed framework on allotment of specific investors allows promoters to renounce their REs in favour of specific investors, and issuers to allot unsubscribed portions of the rights issue to such investors, it fails to mandate a lock-in period for the shares so allotted. Short-term arbitrageurs or entities allied with insiders may exploit this lacuna by acquiring shares at a discount and subsequently selling them in the secondary market to realise quick profits without a long-term obligation to the issuer.

              To prevent speculative arbitrage and ensure regulatory parity with preferential allotment norms, it is suggested that SEBI implement a mandatory 6-12 months lock-in on equity shares allotted to selective investors through promoter renunciation or unsubscribed portions in rights issues.

              Conclusion

              The Rights Issue Amendments 2025 mark a progressive shift in streamlining the Rights Issue process, which ameliorates procedural challenges and compliance requirements. However, the amendments also open a Pandora’s box of regulatory blind spots. What was once a pro-rata, democratic mechanism of capital raising now runs the risk of becoming a “Preferential Allotment in Disguise.” The unrestricted renunciation of REs to specific investors, the absence of a mandatory lock-in, and the circumvention of the Takeover Code’s spirit collectively enable promoters to strengthen their control, potentially sidelining public shareholders and eroding market fairness. While SEBI has turbocharged the rights issue vehicle, it needs to make sure no one drives it off-road so that it remains equitable and transparent.

            1. Inside the SEBI Intervention: Anatomy of Jane Street’s Derivatives Manipulation

              Inside the SEBI Intervention: Anatomy of Jane Street’s Derivatives Manipulation

              BY HIMANSHU YADAV, THIRD-YEAR STUDENT AT MNLU, CS.

              INTRODUCTION

              India is the world’s largest derivatives market, accounting for nearly 60% of the 7.3 billion equity derivatives traded globally in April, according to the Futures Industry Association. Amid growing concerns over market integrity and transparency, the Securities Exchange Board of India (‘SEBI’) took decisive action to protect the interests of investors. On July 3, 2025, the SEBI banned Jane Street from Indian markets for manipulating indices. The US-based global proprietary trading firm, Jane Street Group, operating in 45 countries with over 2,600 employees, is banned from trading until further notice. The order marks a significant regulatory action against market manipulation. Jane Street reportedly earned ₹36,502 crore through aggressive trading strategies, facing ₹4,843 crore in impounded unlawful gains.

              In April 2024, based on prima facie evidence, SEBI initiated an investigation against entities of Jane Street for alleged market abuse. The firm’s activities were found to have violated SEBI’s Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market Regulations, 2003 (‘PFUTP’). The further investigation by SEBI led to findings that on the weekly index options expiry dates, the firm was holding extremely large positions in cash equivalents in the Future and Options (‘F&O’) market. Based on prima facie evidence, the SEBI issued a caution letter to Jane Street and its related entities.

              The activity of Jane Street, mostly done on expiry dates, allowed the firm to influence the settlement outcomes. On expiry day, the closing price of an index (like Nifty or Bank Nifty) determines the final settlement value of all outstanding options and futures contracts. Even a small change in the index’s closing value can lead to huge profits or losses, especially when large positions are involved. Due to the large position held by Jane Street, it allowed the firm to easily conceive the motive.

              SEBI held Jane Street accountable for the two-phase strategy on January 17, 2024 intensive morning buying of Bank Nifty stocks/futures and simultaneous bearish options positioning, followed by aggressive afternoon sell-off to push the index lower at close. These trades directly influenced Bank Nifty’s settlement value, disproportionately benefiting Jane Street’s option positions at the expense of others.

              HOW JANE STREET’S JANUARY 17, 2024 TRADES MANIPULATED THE BANK NIFTY INDEX ON EXPIRY DAY

              The SEBI analysed the top 30 profitable trades of Jane Street, out of which 17 days were shortlisted for detailed analysis concerning derivative expiry day trades. The critical analysis of these days resulted in 15 days with the same deployed strategy for manipulation of indexes, which can also be termed as “Intraday Index Manipulation Strategy”.

              The manipulation strategy was deployed in such a manner that JS Group held a large position. In Patch-I, the net purchases of JS group were INR 4,370.03 crore in cash and future markets. As the purchases in the Index stocks in the morning were executed, it raised the prices of Bank Nifty constituents and the index. The purchases were so high, it made the index move upward. Now that the index moved upward, the put option would become cheaper and the call option would become expensive. This sudden surge gives a misleading signal of bullish interest in Bank Nifty. Based on this delusion of a bullish trend, the JS group purchased the put positions at a cheaper rate quietly. In Patch-II, the JS group sells all the futures positions that were purchased in Patch-I, as the volume bought and sold was so large that it resulted in pushing the index downward. Now, the premium of put prices rises, and there is a drop in the value of call options. This sole movement by JS group entities misled the retail investors, resulting in a loss booked by the retailers, as they were the single largest net buyer across Bank Nifty during this patch. This price upward movement reflects that the Jane Street group was creating an upward pressure during Patch-I.

              EXTENDED MARKING THE CLOSE STRATEGY ADOPTED BY JANE STREET

              On July 10, 2024, the entity was again held liable for “Extended Marking the Close” manipulation. The tactic used under this strategy is to aggressively give a sell or purchase order in the last trading session, upon which the final closing price of a security or index is reflected.  On the last day of trading (called expiry day), the final value of an index like Bank Nifty is very important because all option contracts are settled based on that final number, known as the closing price. Jane Street had placed bets that the market would fall (these are called short options positions, like buying puts or selling calls). If the market closed lower, they would make more money. So, in the last hour of trading on July 10, 2024, Jane Street sold a lot of stocks and index futures very quickly. This sudden selling pushed the Bank Nifty index down, even if only slightly. Even a small drop in the index at the end of the day can increase the value of their bets and bring in huge profits. This tactic is called “marking the close” It means influencing the final price at which the market closes to benefit your trades.

              THE LEGAL PERSPECTIVE ON THE STRATEGIES ADOPTED BY JS GROUP

              In trading, manipulating the market effectively creates and uses monopolistic power.  Order-Based Manipulation (‘OBM’) by high-frequency  traders have several negative effects, such as heightened price volatility in both frequency and size, unfair and monopolistic profit from manipulated investors’ losses and instability potential.

              The JS group and its entities are allegedly held liable for the Intra-day Index Manipulation strategy and Extended Marking the Close strategy. Regulations 3 and 4 of the SEBI PFUTP Regulations, 2003, prohibit any act that manipulates the price of securities or misleads investors. The JS Group was held liable under section 12A(a), (b) and(c) of the SEBI Act, 1992; regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) and (e) of the PFUTP Regulations, 2003.

              The SEBI, which acts as a market watchdog, is well within its jurisdiction to initiate criminal proceedings as well as impose penalties against entities of the JS group under Section 24 of the SEBI Act, 1992. Section 11 of the SEBI Act 1992 empowers SEBI “to protect the interests of investors in securities and to promote the development of, and to regulate, the securities market.” Section 11B – Directions by SEBI gives SEBI quasi-judicial powers to issue directions “in the interest of investors or the securities market,” even in the absence of specific wrongdoing. It allows the regulator to: Restrain trading activities, modify operational practices, and Direct intermediaries and related entities to cease and desist from certain actions.

              Further, the defence of arbitrage cannot be validly exercised by Jane Street. The activity incurred by Jane Street cannot be termed as a traditional arbitrage practice, as arbitrage means taking advantage of existing price gaps naturally. Jane Street was not only finding pricing gaps and making fair profits rather Jane Street was also manipulating the pricing of some index options and futures to change the market in a way that isn’t normal arbitrage.

              Jane Street artificial price moves through high-frequency, manipulative trading to mislead the market.

              WAY FORWARD

              The Jane Street ‘Soft Close’ Strategy and SEBI’s delayed discovery of such transactions highlight the extent to which a system can lag in evaluating manipulative actions by traders at machine speed. It was actually in 2023, the U.S. Millennium, a prominent global hedge fund, filed a lawsuit against Jane Street after poaching its employees. These employees disclosed a previously covert Indian market strategy centred around artificially influencing expiry-day closing prices to benefit Jane Street’s derivatives positions, a tactic akin to a “soft close.” Only upon the filing of such a suit, the SEBI launched a full-fledged investigation, and the regulator analyzed the 3-year expiry trades of the JS Group. The SEBI’s long-term sustained efforts over the years to safeguard the retail investors from losing their money, at this juncture, a much more advanced regulatory scrutiny is required. Jane Street, being a high-frequency trader, the tactics deployed by such an entity shock the market and have a grave impact on the retail investors. High-frequency Trading (‘HFT’),  has the potential to bring the most worrisome instability to the market. The Flash Crash 2010, which was triggered by automated selling orders worsened by HFT, is one of the most severe events that disrupted market stability. Going forward, SEBI must adopt a more agile and tech-driven oversight model, capable of detecting unusual volumes, timing-based trade clusters, and order book imbalances in real time. It should also consider making a special HFT Surveillance Unit that works with AI-powered systems. This isn’t to replace human judgment, but to help with pattern recognition and rapidly identify anything that doesn’t seem right.

              CONCLUSION

              The regulator recently released statistics showing that the number of retail investors in the derivatives market is close to 10 million. They lost 1.05 trillion rupees ($11.6 billion, £8.6 billion) in FY25, compared to 750 billion rupees in FY24. Last year, the average loss for a retail investor was 110,069 rupees ($1,283; £958). Due to such manipulative trading activities, it is the retail derivative traders who face a tight corner situation and end up losing their money.  SEBI, in its report published on July 7, 2025, highlights that 91% of retail investors lose their money in the Equity Derivative Segment (‘EDS’) The regulatory check and stricter analysis on the trading session are the need of the hour. But on the contrary, cracking down on the practice of such a global level player is what SEBI should be praised for. More dedicated and faster technology should be adopted by SEBI to carry out such an investigation in a swifter manner. 

            2. Navigating RBI’s Revised Framework for Downstream Investments by FOCCs

              Navigating RBI’s Revised Framework for Downstream Investments by FOCCs

              BY PURNIMA RATHI, FOURTH-YEAR STUDENT AT SYBIOSIS LAW SCHOOL, PUNE

              On January 20, 2025, the Reserve Bank of India (‘RBI’) released a comprehensive revision of the Master Direction on Foreign Investment in India (‘Master Direction’). The update represents a landmark regulatory revision, particularly for Foreign Owned and/or Controlled Companies (‘FOCCs’) pursuing downstream investments. The updated Master Direction has attempted to resolve a number of ambiguities, align regulatory treatment with the Consolidated Foreign Direct Investment (‘FDI’) Policy, 2020 and the Foreign Exchange (Non- Debt_ Instruments) Rules, 2019 (‘NDI Rules’) and thus, stream lining the compliance requirements for both investors and companies.

              The blog shall analyse key regulatory changes made through the Master Direction and its effects on downstream investments made by FOCCs. This analysis is made by comparing the recent update to the earlier versions of the Master Direction.

              WHAT ARE FOCCs AND DOWNSTREAM INVESTMENTS ?

              To understand the significance of the Master Direction, it is first necessary to understand the meaning and the context in which FOCCs and downstream investments operate. A FOCC is defined in the Foreign Exchange Management Act, 1999 (‘FEMA’) and the NDI Rules as an Indian entity that is:

              •  Owned by non-resident entities (more than 50% shareholding); or

              •  Controlled by non-residents (in the sense of a non-resident entity or person is empowered to appoint a majority of directors or is empowered to influence decisions which are deemed to be strategic business decisions).

              Downstream investment is defined collectively, in this context, as an investment in capital instruments (equity shares, compulsorily convertible preference shares, etc.) made by said FOCC in another Indian entity. It is essentially an investment made by a company already partly or wholly owned by foreign investors, into another Indian entity.

              Analysis of Key Changes

              The updated Master Direction has important amendments which are aimed at reducing compliance complexities, providing legal clarity, and allowing flexibility with transaction structures. Analysed below are the key revisions from the Master Direction:

              1. Consistency with General FDI Norms

              The most important change is the explicit consistency of downstream investments by FOCCs with general FDI norms. Downstream investments are treated as a different investment category and require separate compliance obligations.  However, now it requires that FOCCs must comply with the same entry routes (automatic or government), sectoral restrictions, price restrictions, and reporting requirements as any direct foreign investment investor. The guiding principle of “what cannot be done directly, shall not be done indirectly” has the intention to place downstream investments on an equal level with FDI.

              This is particularly advantageous in sectors where the automatic route is available and removes unnecessary bureaucratic hurdles. For example, if a FOCC is investing in an Indian startup that provides services to the technology sector, they may now invest and treat it the same as a direct foreign investment provided that the sector cap and conditions are adhered to.

              2. Share Swaps Approved

              Another important change is the recognition of share swap transactions by FOCCs. Before the recent change, it was unclear whether share swaps were permitted for FOCCs at all, and companies tended to either seek informal clarifications or err on the side of caution.

              The updated direction explicitly provides that FOCCs can issue or acquire shares in lieu of shares of another company (either Indian or foreign) subject to pricing guidelines and sectoral limitations. This is an important facilitative measure for cross-border mergers, joint ventures, and acquisition deals where share swaps are the predominant form of consideration.

              This reform enhances transactional flexibility, encourages capital growth and will reduce friction in structuring deals between Indian FOCCs and foreign entities, thereby promoting greater integration with global capital market. 

              3. Permissibility of Deferred Consideration

              The RBI now formally recognizes deferred consideration structures such as milestone-triggered payments, escrows, or holdbacks. However, they are still governed by the ’18-25 Rule’, which allows 25% of total consideration to be deferred, which must be paid within 18 months of execution of the agreement. This represents a pragmatic acceptance of the commercial acknowledgment that not all transactions are settled upon completion.

              RBI shall have to give additional clarifications as the Master Direction still does not specify the extent to which provisions are applicable to downstream investments in comparison to the FDIs.

              4. Limitations on the Utilisation of Domestic Borrowings

              In an effort to safeguard the integrity of foreign investment channels and to deter round-tripping, or indirect foreign investment through Indian funds, the RBI continues to restrict FOCCs from utilising domestic borrowings for downstream investment. This implies that FOCCs can only downstream invest with foreign funds introduced through equity investments or through internal accruals. The restriction aims that downstream investments are made through genuine foreign capital introduced in the country through abroad, rather than through domestic borrowings.

              Practically this means that if the FOCC receives a USD 5 million injection from the parent organization abroad, then they can utilize such funds for downstream investment, but not if they were to borrow the same amount in INR through a loan from an Indian financial institution. This maintains investor confidence and enhances transparency in capital flows.

              5. Modified Pricing Guidelines for Transactions

              The revised framework reiterated pricing guidelines in accordance with the different types of company:

              •  For listed companies: The pricing must comply with the Securities and Exchange Board of India (‘SEBI’) guidelines,

              •  By unlisted companies: The price cannot be lower than the fair market value determined by internationally accepted pricing methodologies.

              Additionally, in all rights issues involving non-residents, if the allotment is greater than the investor’s allotted entitlement, price has to comply with these guidelines. In this case, the rights issue would protect minority shareholders and mitigate the dilution that would occur by no listings from unlisted companies.

              6. Reporting and Compliance via Form DI

              An excellent innovation is the new compliance requirement of filing on Form DI within 30 days of the date an Indian company becomes a FOCC or makes a downstream investment. This will assist the RBI in maintaining regulatory visibility and better tracking of foreign investment in India. Companies will have to implement stricter internal compliance mechanisms and timely reporting as failure to do so could result in penalties under FEMA. The RBI’s emphasis on transparency reflects a continuing trend toward digitization and live reporting of capital flows by Indian regulators.

              7. Clearer Application of the Reporting Forms (FC-GPR, FC-TRS, DI)

              In addition, the RBI has further clarified the documents to use the following forms:

              • Form FC-GPR: is for reporting the issuance of shares by an Indian entity to a FOCC. • Form FC-TRS: is for any transfer of shares involving FOCC as the non-resident and between residents and non-residents.

              • Form DI: is for downstream investments made by FOCC into any other Indian entity.

              This clarity will help eliminate confusion around these procedures and synchronize the reporting regime of the RBI with the reporting systems of the Ministry of Corporate Affairs (‘MCA’) and SEBI. FOCC should implement strong internal controls to monitor and track when these filings will become due.

              8. Classification of FOCCs based on Share Movement

              The new regulations will also provide clarity on how the status of a FOCC will influence a regulatory classification. Specifically:

              •  if a FOCC receives shares from an Indian entity, it will be treated as a ‘Person Resident Outside India’; and

              •  if it transfers shares to an Indian entity, it will be deemed to be domestic in nature but needs to comply with the repatriation norms.

              These classifications have an important bearing on the route and pricing of transactions especially in exits or complex internal restructuring transactions. Through these classifications, RBI intends to clarify the confusion from mischaracterizing transactions and reducing risk for the investors in the event of any enforcement action.

              Conclusion

              The amendments to the Master Direction represent a measured and thoughtful change in the foreign investment regulatory framework in India. The RBI has set the tone in favour of enabling policy predictability and investor confidence by clarifying FOCC structures’ downstream investment norms to be consistent with FDI, allowing for more sophisticated structures like share-swap transactions and deferred consideration, and imposing effective operational compliance requirements. Going forward, these refinements have set the foundation for deeper capital integration and increased investor trust in India’s FDI regime.

            3. Navigating SEBI’s Upstreaming Clients’ Funds Framework

              Navigating SEBI’s Upstreaming Clients’ Funds Framework

              BY AISHANA AND NIKITA SINGH, THIRD-YEAR STUDENTS AT GNLU, GUJARAT

              Introduction 

              In the past few years, The Securities and Exchange Board of India (SEBI) has taken several steps to safeguard investors’ securities and funds, but a significant amount of investor funds may still be vulnerable to the risk of potential misuse. To mitigate the same, in a recent regulatory move, it has released a circular that lays out a crucial framework for stock brokers (SBs) and clearing members (CMs) to upstream their clients’ funds to clearing corporations (CCs). The circular is a strategic step to protect customers’ money and guarantee its prudent use, with important ramifications for investors and the securities market alike.

              The SEBI circular mandates the upstreaming of all client funds received by SBs and CMs to CCs in the form of cash, lien on fixed deposit receipts (FDRs), or pledge of units of mutual fund overnight schemes (MFOS). Specific conditions are outlined for creating FDRs, including the requirement that FDRs should be pre-terminable on demand and lien-marked to one of the clearing corporations (CCs) at all times. Guidelines for pledging MFOS units are introduced to ensure minimal risk transformation of client funds and exposure to risk-free government securities. The circular also emphasizes measures to improve operational efficiency and reduce transaction costs, along with compliance and monitoring mechanisms for stock exchanges and CCs. 

              In this article, the authors will explain the conditions outlined for creating FDRs including the guidelines introduced for pledging MFOS units, aiming to mitigate risk transformation and limit exposure to risk-free government securities, which will be examined in detail. Moreover, the article also encompass the circular’s overarching goals of improving operational efficiency, reducing transaction costs, and establishing robust compliance and monitoring mechanisms for both stock exchanges and CCs. 

              The Purpose and Rationale of the Framework

              The principle behind the framework for upstreaming of clients’ funds by SBs and CMs to CCs is that no clients’ funds should be retained by SBs and CMs on end of the day basis. This means that all the clear credit balances of the clients, i.e., the funds that are not required for meeting the margin or settlement obligations of the clients, should be transferred to the CCs every day. The CCs are the entities that facilitate the clearing and settlement of trades in the securities market. They act as the central counterparties and guarantee the settlement of trades, thereby reducing the counterparty risk and enhancing the market integrity. The sole purpose of the framework is to protect client funds from abuse or misappropriation on the part of SBs and CMs. Additionally, it seeks to guarantee that the clients’ money is placed in low-risk or risk-free products, like government bonds, and that it is accessible to fulfil their obligations as needed. By including procedures for collateral utilisation and margin adjustment, the framework also aims to lower transaction costs and increase operational efficiency for market players. In addition, it also aims to improve upstreaming process compliance and oversight by requiring reporting and audits from stock exchanges, CMs, CCs, and SBs.

              The Forms and Conditions of Upstreaming

              The framework allows three forms of upstreaming of clients’ funds to CCs: cash, lien on Fixed Deposit Receipts, or pledge of units of MFOS. It also specifies certain conditions for creating FDRs out of clients’ funds such as FDRs must be pre-terminable on demand, allowing redemption without any penalty or loss of interest. Secondly, it should be consistently lien-marked to one of the CCs, serving as collateral and necessitating CCs’ consent for withdrawal or transfer by SBs or CMs. Thirdly, It also must be issued by scheduled commercial banks with a minimum A1+ credit rating, excluding co-operative and regional rural banks and should be in the name of the SB or CM, explicitly mentioning “client funds.” Furthermore, these FDRs should exist in dematerialized form within a depository, with daily reports sent to CCs by the depository, ensuring transparent oversight and compliance with the SEBI circular. These stringent conditions underline SEBI’s commitment to meticulous risk management and client fund protection within the securities market. 

              Moreover, the guidelines are also laid down for the pledging of Mutual Fund Overnight Scheme (MFOS) units derived from clients’ funds. To ensure transparency and effective oversight, these MFOS units must exclusively exist in dematerialized form within a depository, with daily reports dispatched to CCs by the depository. Pledging procedures involve the units being pledged in favour of CCs through the depository system, with the pledge remaining valid until released by the CCs. Valuation of the MFOS units is pegged at the previous day’s net asset value , and the application of a haircut by CCs is capped at 10% of the unit’s value, exemplifying a cautious approach to risk management. Crucially, upon the release of the pledge by CCs, the redemption of MFOS units must occur on the same day, with the proceeds seamlessly credited to the client nodal bank account of the SB or  CMs. These guidelines underscore SEBI’s commitment to meticulous risk mitigation, transparency, and ensuring the seamless utilization of clients’ funds within the regulatory framework of the securities market.

              The Applicability and Monitoring Mechanisms of the Circular

              The framework applies to all SBs and CMs in all segments of the securities market but also holds some noteworthy exceptions include Bank-CMs, encompassing clearing members that are banks providing clearing and settlement services, and the proprietary funds of SBs and CMs, specifically reserved for their individual trading pursuits. Augmenting the effectiveness of this framework are various monitoring mechanisms outlined within the circular. To ensure meticulous implementation, stock exchanges and CCs are tasked with creating systems capturing daily details of clients’ funds received and upstreamed by SBs and CMs, with reconciliation against reports from depositories and banks. Periodic inspections and audits of SBs and CMs, conducted by stock exchanges and CCs, serve as a means to verify compliance, with a commitment to take appropriate action against any defaulters. Additionally, these regulatory bodies are obligated to submit quarterly reports to SEBI, offering insights into the circular’s implementation status, any deviations encountered, and the corresponding corrective measures taken. Simultaneously, SBs and CMs are entrusted with maintaining meticulous records of clients’ funds, readily providing them to stock exchanges, CCs, and SEBI upon request. With an effective date set for July 01, 2023, this framework reflects SEBI’s proactive stance in fostering transparency, accountability, and adherence to regulatory norms within India’s dynamic securities market.

              The Impact and Implications of the Circular

              The framework also necessitates the compliance of SBs and Clearing Members (CMs) in upstreaming all clients’ funds to CCs on a daily basis, following prescribed forms and conditions. This requirement curtails the flexibility and discretion of SBs and CMs in managing clients’ funds, potentially impacting their liquidity and profitability. They are also burdened with the operational costs and risks associated with the upstreaming process, including charges for creating FDRs or pledging MFOS units, and the risk of default or delay in the redemption of these instruments. Furthermore, they must adhere to the reporting and audit requirements imposed by the circular, facing consequences for non-compliance.

              On the other hand, CCs stand to benefit from an increased inflow of funds from SBs and CMs in the form of cash, FDRs, or MFOS units, thereby expanding their collateral pool and enhancing their risk management capabilities. However, they are tasked with building mechanisms for collateral utilization and margin adjustment to facilitate the upstreaming process and reduce transaction costs for market participants. Additionally, they are responsible for monitoring the compliance of SBs and CMs with the circular and reporting the same to the Securities and Exchange Board of India (SEBI).

              From the clients’ perspective, the framework offers several advantages. Their funds are safeguarded from misuse or misappropriation by SBs and CMs and are invested in risk-free or low-risk instruments. The pre-terminable nature of FDRs and MFOS units ensures that clients have access to their funds whenever required, with the possibility of same-day redemption. Moreover, the oversight of stock exchanges, CCs, and SEBI over the upstreaming process ensures greater transparency and accountability in the management of their funds. Thus, while the framework imposes certain constraints on SBs and CMs, it ultimately serves to protect the interests of clients and enhance the robustness of the financial system.

              Concluding thoughts 

              It can be concluded that the implementation of the circular’s guidelines will require concerted efforts from all stakeholders in the securities market. SBs and CMs must ensure strict adherence to the conditions for creating FDRs and pledging MFOS units. Stock exchanges and CCs, on the other hand, must bolster their compliance and monitoring mechanisms to ensure the effective implementation of these guidelines. Moreover, continuous dialogue and feedback mechanisms should be established to address any challenges that may arise during the implementation phase. This will not only ensure the smooth execution of the circular’s mandates but also contribute to the overarching goal of safeguarding investors’ securities and funds. The circular represents a significant step towards a more secure and efficient securities market. By ensuring the prudent use of customers’ money and reducing potential misuse, it paves the way for a more robust and investor-friendly securities market in India.

            4. Regulating Through Litigating: Quandary of SEBI

              Regulating Through Litigating: Quandary of SEBI

              BY ANSH CHAURASIA, A THIRD-YEAR AT RMLNLU, LUCKNOW

              Introduction

              Recently, the securities market regulator Securities and Exchange Board of India (‘SEBI’), equipped with broad powers, had difficulty defending its quasi-judicial orders. For instance, the Supreme Court (‘SC’) rejected SEBI’s appeal against the order of the Securities Appellate Tribunal (‘SAT’) in the matter of Apollo Tyres. SEBI was reprimanded by the SC for imposing a penalty for violation of SEBI (Buy Back of Securities) Regulations, 1998, but only after the show cause notice was issued to the respondent after more than a decade in 2014 for a cause of action that arose way back in 2003. SEBI passed the order imposing the maximum penalty in 2016, which was set aside by the SAT on grounds that it was not justified in imposing the maximum penalty. Subsequently, the revised penalty was quashed by SAT, against which SEBI approached the apex court. The SC affirmed the decision of SAT on the grounds of inordinate delay, a point of law entirely overlooked by the SEBI during the whole proceedings, right from the commencement of the investigation in 2014 to its appeal before the court on 4 December 2023. Although the SEBI Act has no limitation period per se for the issuance of show cause notice or the completion of the adjudication proceedings, the court’s earlier decision settled the position that such exercise of power must be done within a reasonable time.

              The aforementioned failure of SEBI in appealing before SC is part of a larger trend. At the heart of this regulatory struggle lies the legally untenable orders of SEBI and consequential litigation before SAT and SC. The redundancy of SEBI’s regulatory role resulting from such orders being litigated and decided against affects its credibility and has far-reaching implications for the key market regulator.

              The detrimental litigation

              The legislative history and precedent of the SC lucidly point to the cases appropriate for the appeal. The unamended Section 15Z, the appellate remedy to the High Court, was provided on any question of law or fact. After the amendment in 2002, the appellate court was changed from the High Court to the Supreme Court, and the grounds for appeal were limited to only questions of law, making it the current position. The SC interpreted the phrase ‘question of law’ in the backdrop of Section 15Z to arise when there is either erroneous construction or interpretation of the legal provisions of the statute or the general principles of law. The court also held that the power under Section 15Z has to be exercised while keeping in mind the sectorial laws and policy evolved by the tribunal acting under Section 15T through its interpretation of the Acts, Rules and Regulations. Therefore, the scope of the appeal and criteria of the cases appropriate for appeal are settled propositions of law.

              In its attempt to enforce its order, SEBI has appealed multiple times to the apex court despite a clear scope. In WhatsApp leaks case, SEBI imposed a penalty upon noticees for forwarding messages containing information about financial results. However, the order lacked any finding with respect to the originator of the message. SEBI’s order completely overlooked the fact that noticees merely forwarded the messages with sensitive information, which resulted in SAT overturning the order and vindicating SAT’s finding by the SC.

              In Tata Steel case, SEBI appealed to SC after its order to impose a penalty was set aside by SAT. SC refused to interfere because the order of SAT clearly established that the show-cause notice did not impute any charge upon the noticees. Consequently, the penalty was set aside. SC also remarked whether SEBI appealed only because their ‘ego was hurt’.

              In NSE Dark fibre case, SEBI appealed to SC after a setback from SAT when the disgorgement order for Rs 625 crore with interest was quashed due to a lack of nexus between the disgorgement order and the wrongdoing as required under Section 11B. Another order of fine was set aside by SAT in this case due to inadequate reasons to impose a maximum fine under Section 15J. Consequently, SAT reduced the quantum of the penalty. The move of SEBI demanding a stay on SAT’s order delineates an approach centred on recourses to enforce its orders rather than introspecting on its quasi-judicial adjudication process. Frequent dismissals in appeals whose fate could have been easily determined pinpoints the obdurate nature of the regulator.

              The ramifications of SEBI donning a litigator’s mantle

              The inefficiency of the adjudicatory process becomes apparent when shortcomings in SEBI’s order are pointed out by SAT and vindicated by SC. This directly dents the investor confidence that SC regards to be directly dependent upon the effectiveness of the regulatory mechanism. In SEC v Zandford, investor confidence was held to be the key objective behind the introduction of the Securities Exchange Act. Investors should not perceive the market as a system stacked against them. The Sisyphean undertones in SEBI’s approach to taking the case to the apex court, which has now been frequently falling to the ground, negate the fundamental credibility that the legislature intended to imbibe in the eyes of the investors.

              The SC interpreted the statutory right of appeal incorporated under Section 15T as scrutiny of SEBI’s broad power and emphasised the crucial role of the tribunal in the structural and consistent evolution of sectorial laws. Overlooking the shortcomings pinpointed by the order of SAT or requesting a ‘stay’ on its order before the apex court erodes the parliamentary intent and development of sectorial law.

              Against this backdrop, the problem of complying with basic technicalities is also a glaring issue. A lackadaisical approach in passing orders without providing adequate and sound reasons and bypassing the jurisprudence enunciated by SAT decisions is concerning.

              However, at the outset, SEBI incurs a financial burden every time it decides to go against an order of SAT, and the imposition of a similar burden on the opposite party is problematic. Justice Madan B. Lokur lamented this approach of government agencies litigating for the sake of litigating in a 2018 judgment. SEBI itself passed a proposal in 2019 mandating the appellants before SAT to deposit 10 per cent of the penalty so it could curb the appeals solely aimed at delaying the execution of its order. Therefore, SEBI does acknowledge the hardened mindset to resort to appeal, if not within itself yet among the parties aggrieved by its order, and it rightly points to the consequences of such an approach.

              The ripple impact of this approach is now perceptible as affecting institutional integrity. The SC reprimanded SEBI in the Suzlon case, asking the regulator to ‘regulate rather than litigate’. Although the SC granted the relief to SEBI, clarifying that the contested order would not be treated as precedent, it proceeded to remark. In Apollo Tyres case, SEBI was criticised for appealing against every order that went against them and directed to submit an affidavit of appeals they have filed.

              Conclusion

              The SEBI is a unique statutory body that has the role of regulating, investigating, adjudicating, and deterring the offender. We see an amalgamation of executive, legislative, and quasi-judicial functions within the SEBI. The broad powers conferred upon it have to be exercised to protect the interest of the investors and inspire confidence among the public. SEBI ought to weigh the above considerations before moving to the apex court. SEBI brought itself into this position where it has been reprimanded multiple times for ascertaining the cases only to meet the on-paper requirements. However, the situation requires adherence in spirit. This obstinacy on the part of SEBI is a Faustian bargain where it is giving up institutional credibility for no change in consequences and further losing an opportunity to look into regulatory mechanisms. Any decision to appeal must pass the muster of the requirements of appeal irrespective of the fact that SEBI has been aggrieved at the hands of the SAT.

              The striking similarity in all cases challenged before SC and quashed before SAT is SEBI’s failure to substantiate its allegations and insistence on enforcing its order. Changes in its regulatory and investigatory mechanism can lower the recurrence of these defects. Recently, the SC expert committee constituted to investigate the Adani-Hindenburg made significant suggestions for the prudent and effective exercise of the broad power at SEBI’s disposal. It suggested an ‘effective enforcement policy’ to lay down criteria by which SEBI must decide whether to initiate the proceeding either to impose a monetary penalty, to take a remedial action, or to take a punitive action. Such criteria should be clear and non-arbitrary. Laying down criteria would delineate an objective requirement of specific conditions to initiate proceedings, consequently leading to a proportionate exercise of regulatory powers.

            5. SEBI’s Instantaneous Trade Settlement: Evaluating the Implications on Foreign Investors

              SEBI’s Instantaneous Trade Settlement: Evaluating the Implications on Foreign Investors

              BY PARV JAIN, A THIRD-YEAR STUDENT AT INSTITUTE OF LAW, NIRMA UNIVERSITY, GUJARAT

              Introduction

              According to SEBI’s annual report, the year 2022–23 faced a foreign portfolio investors (“FPIs”) outflow of Rs 40,936 crore. This was the third highest sell-off by FPIs during a financial year. This FPI pull-out could be driven by the opening of China post-lockdown, the Russia-Ukraine crisis, and a series of rate hikes due to inflationary pressures. But now, it is the need of the hour to ensure not to give offshore investors any reason to pull out of India, given the huge contemporary capital requirements.

              In September 2023, Securities and Exchange Board of India (“SEBI”) announced the plan for the implementation of instantaneous trade settlements, which has caused a plethora of debate regarding the future implications of such a move. SEBI Chairperson Madhabi Buch had expressed her enthusiasm for instant trade settlement, which will become a game-changer for the Indian stock market and will benefit investors greatly by making trading faster, safer, and cheaper. According to her, it will also enhance India’s position as a leading financial market in the world. This implies that the instant trade settlement plan might roll out very soon, but it is still unclear whether the regulator would resolve the potential challenges for foreign investors from such a change beforehand or not. SEBI now aims to achieve a same-day i.e. T+0 settlement system by March 2024, and then aspires to move towards a method of instantaneous settlement of trades.

              As the discussions increase, people are anticipating a withdrawal of offshore investors from the market, who fear that the settlement of equity market trade on the same day will eventually fragment the liquidity of the market. In this regard, I discuss how the instant trade settlement affects foreign investors. I argue that the demerits of such a change could outweigh its merits. Lastly, I propose certain additions and changes in the framework to ensure the inflow of foreign investment. 

              Addressing the Lacunae

              From a practical standpoint, achieving instant trade settlement might be impossible within the current financial framework.  In 2020, the Asia Securities Industry and Financial Markets Association (ASIFMA) also highlighted the difficulties for foreign investors if the settlement cycle is reduced, as this may result in inefficiencies for trade matching and end of day reconciliations. This is because the settlement of securities transactions requires a multi-faceted procedure, demanding seamless coordination and communication among a diverse array of stakeholders. Adequate time must be allocated post agreement on a trade for the underlying securities to undergo the necessary transfers and for the corresponding funds to be transferred. At the core of the settlement process, time must be allowed to guarantee legitimacy, accuracy, and adherence to regulatory standards. 

              These conceptual issues might be solved through technological alterations and mutual agreements, but the core issue would lie in the fact that such a move would require an alteration of the whole financial system. This includes the configuration of the Indian payment system as well as the framework governing pivotal banking functions, such as the facilitation of deposit accounts and the extension of credit. To achieve instant trade settlement, a substantial restructuring of the current clearing, payment, and settlement infrastructure within the Indian market would be required.

              Demystifying the Implications on Foreign Investors

              Currently, there is a set procedure followed by foreign investors to deal in the Indian stock market. For instance, if a Germany-based foreign investor wants to buy shares in India, he has to first send euros to the custodians, who will then book the forex, convert the euros into Indian rupees, and deposit the funds into the FPI’s cash account in India. By the time settlement occurs, the funds are deposited with the custodians. Currently, there is a set window of time for transferring the funds and converting them to Indian rupees, subject to market fluctuations which almost occur within a day. But the instantaneous trade settlement will reduce this time, which means foreign exchange transactions will have to be expedited as well to fast track the conversion of currency into Indian rupees. The foreign investors will have to face a lot of challenges, and this might cause a lot of unexplored issues.

              The core issue with instantaneous trade settlement arises from the time difference between Indian and foreign jurisdictions. As a result, foreign investors would need to predict the entry price of a stock in advance, and the price may also fluctuate before they make a purchase. To mitigate this, offshore investors would be compelled to prefund the transaction. Consequently, in the case of SEBI’s instant settlement plan, the law of diminishing returns applies, as the shortened time frame introduces more risk without generating additional benefits for widespread adoption across the market. This could potentially lead to a situation where capital is underinvested, making the delivery of securities more complex, fraught with increased risk and escalation of costs. Thus, the implementation of this measure could make the Indian financial markets less appealing to global investors. 

              The Way Ahead

              Ms. Madhabi Buch has said that FPI would not face any problems as they would be given the choice to opt out of instantaneous settlement if they prefer not to use it. She ensured that SEBI had ascertained the data that shows which trades are matched with each other. Based on this data, they believe that choosing not to opt for instantaneous settlement will not create any issues or problems for anyone involved. In essence, they are reassuring that the traditional settlement process will still be accommodated and will not cause any difficulties for those who prefer it. However, this optimistic model would fail when the foreign investors would be left with no option but to opt for instant trade settlement if a large share of retail volume does so. This is because, with two distinct trade settlement cycles, the liquidity could be divided in the two-way transaction. Most of the domestic investors are likely to prefer instant trade settlement creating a risk of fragmentation of liquidity and an increased likelihood of failed trades. To prevent this, SEBI should take certain measure like trade limit for a specific settlement cycle to ensure that the liquidity is sufficient, if not equal in both the trade settlement cycles.

              To bypass this hurdle, SEBI will have to formulate a mechanism similar to the one implemented in China. China, at the time of introduction of the T+0 settlement cycle for Stock Connect, was facing several challenges as it increased the operational burden for foreign investors and market participants to complete the settlement obligations. Also, when China A-shares got listed on global indexes such as Morgan Stanley Capital International and Financial Times Stock Exchange, foreign interest in the Chinese onshore equity market skyrocketed. It became very crucial to make an A-share investment channel to entice foreign investment. Thus, in partnership with Depository Trust and Clearing Corporation, Hong Kong Exchanges and Clearing Limited (“HKEX”) launched HKEX Synapse, a revolutionary settlement platform specialized to Northbound Stock Connect. 

              Synapse works as a standardized and centralized platform that efficiently transmits settlement instructions to all relevant parties concurrently. This simultaneous processing ensures full transparency in the trade processing status. After obtaining consensus and approvals, Synapse transmits settlement instructions to the Central Clearing and Settlement System (“CCASS”) for final settlement. Real-time integration with CCASS allows Synapse to provide prompt status updates to all involved parties after a matching or settlement batch run. This results in comprehensive transparency, improved control, and increased efficiency for investors and their counterparts throughout the settlement process.

              In India, if instant trade settlement has to be introduced despite having several loopholes, a platform similar to HKEX Synapse is necessary to ensure that international investors gain immediate access to the real-time status of their trade settlements. This would provide a measure of relief from the constraints imposed by the narrow settlement window. Also, this will standardize and simplify post-trade procedures and empower investors to optimize connectivity and operational efficiencies within a framework that is both transparent and secure. Custodians will be equipped with comprehensive insights regarding the parties that have endorsed and sanctioned specific trades, thereby furnishing them with the essential data needed to promptly address and rectify any trade anomalies prior to the designated cut-off time. 

              Apart from this, SEBI can also give brokers the responsibility of guaranteeing payments on behalf of foreign investors, effectively extending them credit for the interim two-day period until the transactions are duly finalized. For instance, Indian stockbrokers can vouch for foreign investors and settle their trades in instant trade settlement, and later, these investors can repay money to the brokers within two days. While the brokers would take some risks, in the long term they would benefit from the new inflows. 

              Concluding Remarks

              India has at various instances, taken the lead in terms of technological innovation by changing the digital infrastructure with platforms like CoWIN and Unified Payments Interface. Instant trade settlement might put India at the forefront of the globe in terms of trade settlement if it is proven to be the fastest and most efficient in the world. 

              However, it is crucial to recognize the complexities and potential disruptions it may introduce to the existing financial framework. Foreign investors, in particular, will face significant hurdles with the proposed instantaneous settlement. This may necessitate prefunding transactions, introducing added complexity and risk to the process. Additionally, the implementation of this measure may lead to increased operational costs for foreign investors, potentially making the Indian financial markets less attractive on a global scale. SEBI’s assurance that traditional settlement processes will still be accommodated is a positive step, but it may not entirely alleviate concerns, especially if a significant portion of retail volume opts for instantaneous trade settlement.

              Therefore, careful consideration and strategic measures are essential to mitigate potential risks and ensure a seamless transition. By adopting proven mechanisms and addressing the concerns of foreign investors, India can pave the way for a more dynamic and resilient financial ecosystem in the years ahead.