A recent PIL in the Supreme Court over FDI in retail may have thrown the industry into a tizzy, but lawyers, constitutional experts and government officials indicated that the multi-brand policy was unlikely to get derailed even as amendment to FEMA (Foreign Exchange Management Act) Regulations will get placed in Parliament during the winter session. While there could be some trouble if objections are raised by MPs on the issue, eventually the government is likely to cross the hurdle.
Department of Industrial Policy & Promotion (DIPP) secretary Saurabh Chandra told Business Standard, “it is clear that procedures laid down by law have to be followed. It is clearly stated in the Section 48 of the FEMA Act that any amendment has to be cleared by both houses of Parliament."
However, when asked whether the policy could be blocked if there's an opposition to the FEMA regulation amendment in Parliament, Chandra said, "I do not comment on speculative matters.” DIPP, which is the administrative ministry for retail FDI, is learnt to have already consulted the top lawyers on the FEMA issue after protests against the government policy, citing violation of the rulebook. Another government official argued that since it was an amendment of a regulation, and not that of a law, there’s no chance of the retail FDI policy getting grounded on a technical issue like amendment of FEMA regulation. “It does not materially alter FEMA,” the official stressed. Constitutional expert Subhash Kashyap told Business Standard that amendment to any rules and regulations under an Act must be placed in Parliament for a period of 30 days, and that this clause was not specific to FEMA or retail FDI. Following the Supreme Court PIL by lawyer Manohar Lal Sharma, members of the Opposition and traders’ associations had pointed out that FDI in retail could not be implemented unless the FEMA regulation dealing with the prohibition of foreign investment was amended by placing it in Parliament. Explaining the procedure, Kashyap said rules and regulations are made by the government under any Act. It is an executive function. While an amendment of a law has to go to Parliament for discussion and voting, that of a rule or a regulation needs to be tabled in both the Houses for 30 days, he said. The amendment of the rule or regulation is automatically referred to the Committee on Subordinate Legislation. If the committee feels the government has over-stepped its function or if there’s a violation of the law, it raises objections and sends the report to the House. If the objection is technical and minor, the government usually sets it right. “Fundamentally, the policy remains the same,” Kashyap said. Although the amendment of a regulation, like in this case relating to FEMA and retail FDI, does not call for a debate in Parliament, a member can give notice for a debate. If the notice is admitted by the Speaker of the House under Rule 193, there’s a discussion but no voting. And if the notice is accepted under Rule 184, there’s a voting.
According to Kashyap, only in an extremely rare case, there could be a notice of motion for a regulation amendment. “Normally, no policy gets stuck over technical issues,” he said. According to Suhaan Mukerji, Partner, Amarchand Mangaldas, a prominent law firm, the recommendations of the committee on subordinate legislation, if any, will not be binding on the government in the case of a regulation amendment. However, the government will need to offer sound reasons for that, Mukerji said. The Reserve Bank of India (RBI) spokesperson told the newspaper that the notification on amendment to FEMA (Transfer of Security by a Person Resident Outside India) Regulations, 2012, had already been gazetted, and the Supreme Court was informed about it. In fact, Attorney General G Vahanvati had told the court recently that three amendments had been notified on October 30, enabling the government to allow FDI into the multi-brand sector. The apex court adjourned the hearing of the case till January 22, 2013. The Union Cabinet had in September partially opened up the multi-brand retail sector, allowing up to 51 per cent FDI. International chains including Walmart, Tesco and Carrefour have been waiting for India’s retail sector to open up, but none of them has made any proposal to the government yet to open stores in the country. Complex conditions attached to the policy and other hurdles such as states getting the power to say yes or no to retail FDI have kept global players from making any announcements so far. With the talk of Parliament vetting a FEMA regulation amendment linked to retail FDI policy gaining prominence, the industry has started fearing a rollback. IKEA Proposal Reaches FIPB The proposal of Swedish furniture giant, IKEA, to invest Euro 1.5 billion in India for opening stores in the single-brand retail category, will be discussed at the November 20 meeting of the Foreign Investment Promotion Board (FIPB). The application of Ingka Holding Overseas, a group company of IKEA, is part of the agenda for FIPB next meeting. IKEA had sent its proposal to the Department of Industrial Policy and Promotion (DIPP) on June 22, and has been engaged with the government for simplification of rules in single brand retail, where up to 100 per cent FDI has been permitted. In September, the Cabinet made changes in the conditions related to FDI in single brand retail, mainly linked to sourcing from the small sector industries in India. For the India market, Inter IKEA System, the owner of the IKEA brand, had recently signed a franchisee agreement with group company Ingka Holding Overseas.