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Critical analysis: Abortion rights in US being regressive while in India are progressive

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The US Supreme Court recently in the case of Dobbs v. Jackson women’s health organization, has shown a lack of Constitutional courage in disregarding the legal precedent as well as the elimination of a constitutional regime that weighed both federal and pregnant persons’ interest by overruling its historical judgment of 1973 in the case of Roe Vs Wade, thus having serious implications for sexual and reproductive health rights of the Individual. This article aims to critically discuss the upturning of the Roe Vs Wade Judgment which not only has grave consequences but has also faced severe criticism not only within the United States but throughout the world. The article also aims for a reader to draw its attention towards comparing the situation of United States post its recent judgment with the abortion laws in India while briefly discussing the Medical Termination of Pregnancy Act, 1971 amended in year 2021. It further analyses how abortion laws in India encompasses the wide and deep-rooted ideology while maintaining a balance between the fundamental right of a women and the Right to life of a foetus. The article also aims to describe that the Indian abortion laws are more progressive, while the situation in US is regressive and conservative.

 Abortion rights in the US

no more a part of right to privacy The US Supreme Court in its landmark ruling in Roe v. Wade had recognized that the right to abortion is a fundamental liberty duly protected by the Fourteenth Amendment of its Constitution. The right to privacy was also recognised in the USA in 1891, and in 1973, in Roe v. Wade, the right to abortion was read into the woman’s right to privacy and also been regarded as a constitutional right. Since the said judgement, the Court has repeatedly reaffirmed the Constitution’s protection for this essential liberty, which guarantees each individual, the right to make personal decisions about family and childbearing. Over the decades, the US Court first held that the Constitution encompasses protection for the right to abortion, including in its earlier decision of 2016 in the case of Whole Woman’s Health v. Hellerstedt, therein it has also recognized that without access to abortion, the right to privacy is meaningless. That recently US supreme Court vide its judgement dated 24th June, 2022 in the case of Dobbs v. Jackson women’s health organization has overturned the Judgement of Roe v. Wade, which has lead to depriving the fundamental right which includes right to privacy of the Individual and thus leading to its violation which is guaranteed by the fourteenth amendment of the US constitution. Earlier as per the judgement of Roe V. Wade the individual had the fundamental right to terminate the pregnancy, which now with the subsequent judgement has been taken away and the choice of the individual to terminate the pregnancy is no more available, hence declaring abortion as illegal.

Implications and consequences of the Recent Judgement 

Roe v. Wade, the landmark decision that established a constitutional right to abortion for both pregnant individuals and women, has been overturned by the US Supreme Court in the case of Dobbs v. Jackson. By doing so, the Court disregarded medical data, as well as issues pertaining to public health and human rights. The provision of abortion services is now the responsibility of each individual state, which has resulted in a hodgepodge of abortion laws throughout the country with some states outrightly prohibit abortion in all circumstances. By imposing such decision making to its states, the United States of America will no longer be cohesive, but would instead inhabit a balkanized world fraught with interstate conflict. Thereby, twenty-six states within US will ban abortion immediately and also there will be a return of criminalization of abortion in most of the states. The states will prosecute options that are cherished by most Americans. In addition, the ramifications of Dobbs extend far beyond the realm of abortion. The freedom that was recognised in the cases, whether it was called “privacy” as in the Roe v. Wade decision or “liberty interests” as in the Casey decision, is the very foundation of the clinician–patient relationship. This freedom is the ability to explore medical options and the patient’s values in order to make decisions that profoundly affect the patient’s life and well-being. The potential for wide-ranging consequences comes from the fact that the Court not only reversed Roe and Casey, but also assailed their core rationale and relevance as long-standing decisions. Dobbs also raises the spectre of state regulation of other health care decisions, such as those pertaining to contraception, end-of-life care, care for LGBTQ patients, in vitro fertilisation, and other fertility treatments. These are all examples of decisions that the States could potentially regulate. Some jurisdictions have already begun to criminalise commonly used birth control methods as “abortifacients,” including intrauterine devices (IUDs) and emergency contraception. State laws that declare that life starts at fertilisation may possibly provide rights to thousands of embryos that have been frozen and will create responsibilities that are difficult to bear on both fertility institutions and the people who seek their services.

Global impact 

That now due to the recent decision, the Constitution no more confers a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Thus this will raise an alarming consequence since it will create a controversy and difference of opinions amongst the States. That the impact of this decision would not remain only within the United States but could even be beyond its territories and affect the abortion rights globally. Several developing countries can use the same as a precedent and curb the abortion rights of the individuals and may raise a question of debate whether the unborn child’s right to life is to be weighted more in comparison to the fundamental right of the women, which can create a havoc in countries where there is already an established law for right to abortion. Further, there are secondary effects and excess to safe abortion is further restricted, the result will not be fewer abortions globally, but just more unsafe and unregulated Abortions, leading to serious mental and physical repercussions. This could be deadly as there are chances that all these unsafe abortions could be a leading cause of maternal death, which could be more common in developing countries. If such precedent is followed by the developing countries then it will amount to forcing girls/women to keep pregnancy will also have negative impact on poverty reduction and economic growth.

Comparison of the US abortion laws with Indian abortion laws

That now the US Supreme Court has held the Right of abortion after fifteen weeks as illegal and have restricted the same, further leaving the discretion to the individual States in respect of framing laws relating to Abortion. The ruling reversing the 1973 roe v. wade decision lays the stage for almost half of the fifty states to prohibit or severely limit women’s access to abortions.The first limitation will go into effect in 13 states with so-called “trigger legislation” that will be established after the verdict is reversed.Some trigger laws prohibit abortions nearly entirely, while others prohibit abortions after six or fifteen weeks. Under the Indian Penal Code, 1860, abortion remains a criminal offence under Section 312. However, the Medical Termination of Pregnancy Act, 1971 (MTP) and its amendment pf 2021 simply provides an exception to the criminalization. The MTP Act, 1971 allowed abortion until 20 weeks of pregnancy. Through an amendment in 2021, the ceiling for abortions was raised to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors, that too, with the approval of two registered doctors. In the case of fetal disability, there is no limit to the timeline for abortion, but that is allowed by a medical board of specialist doctors set up by the governments of states and union territories.

Discourse raised:Unborn child’s right to life Vs fundamental rights of the women 

The main contention that has divided the people, the country and the courts for years is: What takes precedence, a woman’s right to have an abortion and have the last word over her reproductive autonomy or an unborn child’s right to life. According to legal precedent, courts have repeatedly attempted to strike a balance between the two parties’ rights, and the resulting legal jurisprudence is straightforward: before a woman reaches viability, the state has virtually no influence on her decision to abort a child; however, after viability, regulations are necessary, but prohibitions are not. In the medical community, abortion is as divisive as in the rest of the world. Analysis of the legal frameworks and political debates in the US and India on abortion has shown a preference for foetal viability and finding a balance between mother and child’s rights in America. On the other hand, women’s liberty is highly valued in India.The right of liberty in the United States and the constitutional protection of a woman to terminate her pregnancy is derived from the due process clause of the Fourteenth Amendment. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court heard the basic argument for the right to life: the viability test must be rejected. A foetus is now recognised by the Court as a living thing, regardless of whether or not it is viable outside the womb, even though it was previously declared by the Court to be at most the potentiality of life. If the Court is obligated to preserve a woman’s “life inside,” then they may do so by law. They can’t achieve this, though, by making it illegal for a woman to end her pregnancy before it reaches viability. To put it another way, the Supreme Court has ruled that every choice taken by a woman must be fully aware of all implications, including those she may face physically or emotionally.

Dilemma and contention raised : When does life begin

Advocates for the unborn child’s right to life contend that the Fourteenth Amendment to the United States Constitution employs the term “person” and applies to an unborn person, despite the fact that this argument was rejected in Roe v. Wade. Intriguingly, although rejecting the argument in Roe v. Wade and in subsequent decisions, the Supreme Court has not looked into the question – When precisely does life begin? The Supreme Court of US stated that we need not resolve the difficult question of when does life begins since those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, thereby the judiciary, at this point is not in a position to speculate the answer. Thus the following statement “When does life begin” remain unanswered and therefore the unborn child’s right to life remain in contention since we cannot determine when does the life of the foetus begins.

CONCLUSION 

Thus the US Supreme Court emphasizing on the rights of the unborn child and its disregard for fundamental right of abortion, mental health hazards and other physical integrity, making abortion regulations in the United States stringent, regressive and conservative. On the contrary, in India, the 1971 MTP Act was itself forward-thinking when it was passed and thereafter the by implementation of the Amendment act 2021, the abortion barrier was raised to cover unmarried women and medical breakthroughs in the area were taken into consideration. Thus as a consequence it is anticipated that the current status of abortion laws in US is on a downward spiral while, India, on the other hand, has always taken a more progressive posture. Consider that even in this day and age; when governments are working hard to provide equal rights for women, implementing strict abortion regulations undermines women’s rights thus disregarding the status of the country. Abortion is permitted in most nations if the mother’s health or life is in jeopardy if the pregnancy continues. Nonetheless, in delicate and emotionally distressing situations like rape and incest, abortion should be permitted as fundamental right. All governments should consider the rights of women, the rights and health of unborn children, and the physical and emotional health of pregnant women while crafting abortion policy. The overruling of Roe Vs wade is the indispensable first step toward reestablishing legal protection for unborn children, but it is only the first step. Much work will remain to be donein state and federal courts, in state legislatures and in the hearts and minds of the American people.”While India stands amongst nations with a highly progressive law which allows legal abortions on a broad range of therapeutic, humanitarian and social grounds.

Authored by:- Mr Ramit Mehta, Advocate, Rajasthan High Court and Managing Partner of Mehta Chambers Co-Authored by:- Mr Rajat Rathi, Student, Institute of Law

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Policy&Politics

Govt extends date for submission of R&D proposals

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The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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Policy&Politics

India, Brazil, South Africa to press for labour & social issues, sustainability

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The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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Policy&Politics

India to spend USD 3.7 billion to fence Myanmar border

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India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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Policy&Politics

ONLY 2-3% RECOVERED FROM $2-3 TN ANNUAL ILLEGAL TRADE THROUGH BANKING: INTERPOL

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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Policy&Politics

FM defends Atal Pension Scheme, highlights guaranteed returns

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Finance Minister Nirmala Sitharaman defended the Atal Pension Yojana (APY) against Congress criticism, asserting its design based on choice architecture and a guaranteed minimum 8% return. She emphasized the scheme’s opt-out feature, facilitating automatic premium continuation unless subscribers choose otherwise, promoting retirement savings. Sitharaman countered Congress allegations of coercion, stating the APY’s guaranteed returns irrespective of market conditions, supplemented by government subsidies.

Responding to Congress’s claim of scheme misuse, Sitharaman highlighted its intended beneficiaries – the lower-income groups. She criticized Congress for its alleged elitist mindset and emphasized the scheme’s success in targeting the needy. Sitharaman accused Congress of exploiting vote bank politics and coercive tactics, contrasting it with the APY’s transparent framework. The exchange underscores the political debate surrounding social welfare schemes, with the government defending its approach while opposition parties raise concerns about implementation and efficacy.

Finance Minister Nirmala Sitharaman’s robust defense of the Atal Pension Yojana (APY) against Congress criticism highlights the ongoing debate over social welfare schemes in India. Sitharaman’s assertion of the APY’s design principles, including its opt-out feature and guaranteed minimum return, underscores the government’s commitment to promoting retirement savings among lower-income groups. The Atal Pension Yojana, named after former Prime Minister Atal Bihari Vajpayee, was launched in 2015 to provide pension benefits to workers in the unorganized sector. It aims to address the significant gap in pension coverage among India’s workforce, particularly those employed in informal and low-income sectors. The scheme offers subscribers fixed pension amounts ranging from Rs. 1,000 to Rs. 5,000 per month, depending on their contribution and age at entry, after attaining the age of 60. Sitharaman’s response comes after Congress criticism alleging the APY’s inefficacy and coercive tactics in enrolment.

Congress General Secretary Jairam Ramesh described the scheme as poorly designed, citing instances of subscribers dropping out due to unauthorized account openings. However, Sitharaman refuted these claims, emphasizing the APY’s transparent and beneficiary-oriented approach. The finance minister’s defense focuses on three key aspects of the APY: Choice Architecture: Sitharaman highlights the opt-out feature of the APY, which automatically continues premium payments unless subscribers choose to discontinue.

This design element aims to encourage long-term participation and ensure consistent retirement savings among subscribers. By simplifying the decision-making process, the scheme seeks to overcome inertia and promote financial discipline among participants. Guaranteed Minimum Return: Sitharaman underscores the APY’s guarantee of a minimum 8% return, irrespective of prevailing interest rates. This assurance provides subscribers with confidence in the scheme’s financial viability and incentivizes long-term savings.

The government’s commitment to subsidizing any shortfall in actual returns further strengthens the attractiveness of the APY as a retirement planning tool. Targeting the Needy: Sitharaman defends the predominance of pension accounts in lower income slabs, arguing that it reflects the scheme’s successful targeting of its intended beneficiaries – the poor and lower-middle class. She criticizes Congress for its alleged elitist mindset and suggests that the party’s opposition to welfare schemes like the APY stems from a disconnect with the needs of marginalized communities. Sitharaman’s rebuttal also addresses broader political narratives surrounding social welfare policies in India.

She accuses Congress of exploiting vote bank politics and coercive tactics, contrasting it with the transparent and inclusive framework of the APY. The exchange underscores the ideological differences between the ruling Bharatiya Janata Party (BJP) and the opposition Congress, with each side advocating for their vision of social welfare and economic development. In addition to defending the APY, Sitharaman’s remarks shed light on the broader challenges and opportunities facing India’s pension sector.

Despite significant progress in expanding pension coverage through schemes like the APY, the country still grapples with issues such as financial literacy, informal employment, and pension portability. Addressing these challenges requires a multifaceted approach involving government intervention, private sector participation, and civil society engagement.

As India strives to achieve its vision of inclusive and sustainable development, initiatives like the APY play a crucial role in promoting economic security and social equity. Sitharaman’s defense of the scheme underscores the government’s commitment to addressing the needs of vulnerable populations and ensuring their financial well-being in the long run.

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Economic

Regulatory steps will make financial sector strong, but raise cost of capital

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India’s financial system regulator, the Reserve Bank of India (RBI), is demonstrating a serious commitment to improving governance and transparency at finance companies and banks, with the RBI’s recent measures aimed at curtailing lenders’ overexuberance, enhancing compliance culture and safeguarding customers.

While the global ratings firm has appreciated the RBI’s “diminishing tolerance for non-compliance, customer complaints, data privacy, governance, know-your-customer (KYC), and anti-money laundering issues”, it has cautioned that increased regulatory risk could impede growth and raise the cost of capital for financial institutions. “Governance and transparency are key weaknesses for the Indian financial sector and weigh on our analysis. The RBI’s new measures are creating a more robust and transparent financial system,” says S&P Global Credit Analyst, Geeta Chugh. “India’s regulator has underscored its commitment to strengthening the financial sector. The drawback will be higher capital costs for institutions,” Chugh cautions.

The RBI measures include restraining IIFL Finance and JM Financial Products from disbursing gold loan and loans against shares respectively and asking Paytm Payments Bank (PPBL) to stop onboarding of new customers. Earlier in December 2020, the RBI suspended HDFC Bank from sourcing new credit card customers after repeated technological outages. These actions are a departure from the historically nominal financial penalties imposed for breaches, S&P Global notes.

Besides, as the global agency points out, the RBI has decided to publicly disclose the key issues that lead to suspensions or other strict actions against concerned entities and become more vocal in calling out conduct that it deems detrimental to the interests of customers and investors. “We believe that increased transparency will create additional pressure on the entire financial sector to enhance compliance and governance practices,” adds Chugh. The global agency has also lauded the RBI’s recent actions demonstrating scant tolerance for any potential window-dressing of accounts.

These actions include the provisioning requirement on alternative investment funds that lend to the same borrower as the bank finance company. Amidst the possibility of some retail loans, such as personal loans, loans against property, and gold loans getting diverted to invest in stock markets and difficulty of ascertaining the end-use of money in these products, S&P Global underlines the faith of market participants that the RBI and market regulator, the Securities and Exchange Board of India, want to protect small investors by scrutinizing these activities more cautiously.

On the flip side, at a time of tight liquidity, the RBI’s new measures are likely to limit credit growth in fiscal 2025 (year ending March 2025). “We expect loan growth to decline to 14 per cent in fiscal 2025 from 16 per cent in fiscal 2024, reflecting the cumulative impact of all these actions,” says Chugh. The other side of the story is that stricter rules may disrupt affected entities and increase caution among fintechs and other regulated entities and the RBI’s decision to raise risk weights on unsecured personal loans and credit cards may constrain growth. Household debt to GDP in India (excluding agriculture and small and midsize enterprises) increased to an estimated 24 per cent in March 2024 from 19 per cent in March 2019. Growth in unsecured loans has also been excessive and now forms close to 10 per cent of total banking sector loans.

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