ASIAN LAW AND ECONOMICS ASSOCATION 3 RD ANNUAL CONFERENCE

Transcription

1 LAW GOVERNING ELECTRONIC BANKING: FAVOURING ECONOMIC GROWTH- THE INDIAN SCENARIO Paper presented by: B. Gopalakrishnan Senior Vice President (Law), UTI Bank Limited INTRODUCTION The face of the banking sector has changed rather considerably in recent years. One of the major contributors to this changing face has been the increasing use of the internet and other electronic channels for effecting banking and financial transactions. Today, banks offer services like internet banking, mobile-banking, payment of bills, ATM withdrawals etc. which have had a major impact on the economic growth especially because they have led to the reduction of transaction times and increased the reach of banking and financial sector to sections of people previously unexposed to banking and financial services. All these new range of services are offered under the umbrella of e-banking or electronic banking. Simply put, electronic banking can be defined as a process by which banking services and products are delivered through electronic channels such as internet, telephone, mobile phone, etc., and it encompasses internet banking, telephone banking, mobile banking, etc. The increasing utilisation of electronic banking by banks and financial institutions in India has led to the development and transformation of Information Technology law and traditional banking and financial regulation so as to firstly, provide legal recognition to such electronic transactions. The apparent lack of safety and security of use of the electronic channels has also led to the regulation of such electronic transactions through the modicum of law and regulations to ensure the sound implementation of information technology to effectuate banking and financial transactions in a safe and secure manner. The enactment of the Information Technology Act, 2000 in India has helped usher in the IT revolution in the country by providing legal recognition to electronic transactions and by providing minimum safety and security requirements. This paper thus attempts to understand the development of IT Law and its interface with banking law and regulation to understand its impact specifically on electronic banking and the 1

2 role played by such a development on the rapid economic growth seen in India in the recent past. MAIN ELECTRONIC BANKING CHANNELS This chapter delves into the main channels of electronic banking and how they function. It discusses the variety of electronic channels through which banks and financial institutions in India offer products and services to their customers/clients. ELECTRONIC FUNDS TRANSFER Electronic Funds are of two types i.e. credit and debit transfers. A credit transfer is called push of funds by the payer to the payee. The payer instructs the bank to debit his account and cause the account of payee, at the same bank or another, to be credited. In Electric Clearing Scheme (ECS) credit a series of electronic payment instructions are generated to replace paper instruments. The system works on the basis of one single debit transaction triggering a large number of credit entries. These credits or electronic payment instructions which possess details of the beneficiary s account number, amount and bank branch, are then communicated to the bank branches through their respective service branches for crediting the accounts of the beneficiaries either through magnetic media duly encrypted or through hard copy. User instructions, usually corporate bodies/ government departments, which have to affect payments to large number of beneficiaries, submit details of payments in magnetic media to the bank managing the clearing house, through a sponsor bank. The user institutions are required to obtain mandates from beneficiaries, for clearing their accounts under ECS. The corporate bodies too should, on their own, advise the beneficiaries about the due date of credit under ECS. ECS Debit envisages a large number of debits resulting in a single credit simultaneously. ECS debit works on the principle of pre-authorized debit system under which the account holder s account is debited on the appointed date and the amounts are passed on to the utility companies. The scheme thus facilitates: 1. Faster collection of bills by companies. 2. Better cash flow management; and 3. Eliminates the need to go to collection centers/ designated banks by the customers. ATM (Automated Teller Machine) 2

3 ATM machines are electronic terminals that permit you to bank at almost anytime to withdraw cash, or to transfer funds. To operate the ATM Card provided by the banks, it has to be inserted into the slot in the ATM and PIN (Personal Identification Number) has to be entered and then the machine dispenses the cash or carries out other functions like balance enquiry, funds transfers, etc.. Verification of the customer s PIN is a vital part of the ATM security. Presently most ATM s are online i.e. they are directly linked to the bank s central computer. It allows the PIN inserted by the computer to be compared with a PIN stored on the bank s central computer. PIN is not stored on the computer s card. If there is an error on the part of the customer to enter PIN, the ATM will capture the card which can be retrieved by the customer in accordance with each bank s procedures. PHONE BANKING Electronic transactions also take place through Mobile banking. Mobile banking uses SMS facility to alert customers about actions based on mobile instructions. Some of the recent initiatives undertaken to address potential security risks for mobile banking and home content access are: (i) smart phone access based on SIM authentication; (ii) (RF) ID (Radio-Frequency Identification) based authentication, based on SIM stored user name/password; (iii) PC based access with user name/password; and (iv) PC based access through mobile phone presence. DEBIT CARDS Debit Card is a card issued by a bank that can be used like a credit card for making payments at any establishments that are called Point of Sale (PoS). The process is that as soon as the card is swiped at the processor, your bank account is connected by the network system (terminal) and the amount that you have expended is debited and credit is given to the PoS establishment. It is instant is a sense for everybody i.e. purchaser, seller and both their banks. CREDIT CARDS Banks also issue credit cards. In this operation, when the payment is made, the card has to be tendered to the PoS. the card is processed at the network and if everything is in order, the authorization slip is printed. You are then expected to sign the same. Your signature should be similar to the one on the Credit Card itself. You make payment when the statement arrives. In 3

4 credit card transaction the purchaser gets credit but the seller gets his payment from the card issuer upon submission of counter-signed slips. It is also a kind of EFT. CHAPTER 2: DEVELOPMENT OF LAW IN INDIA AND THE ROLE OF RBI IN FOSTERING ELECTRONIC BANKING The first initiative taken in relation to electronic banking in India was way back in The Reserve Bank of India ( RBI ) with the assistance of Department for International Development (DFID), UK, the upgraded its supervisory system and adapted its supervisory functions to the computerised environment in It also issued guidelines on risks and control in computer and telecommunication system, advising the banks to evaluate the risks inherent in the systems and put in place adequate control mechanisms to address these risks. Three broad categories of risks were addressed, viz., IT environment risks, IT operations risks and product risks. In India, the law governing electronic banking has developed in such a manner that the existing banking law principles have been applied to electronic banking as well. Apart from also enacting new law such as the Information Technology Act, 2000 which generally govern IT processes, the traditional banking law and regulations have been extended to electronic transactions as well. RBI has also clarified that the 1998 Guidelines apply to internet banking. In addition to these, in 2001 the RBI issued specific guidelines on internet banking based on the recommendations of a Working Group set up for the same purpose. The Working Group had focused on three major areas of internet banking, i.e., (i) technology and security issues, (ii) legal issues and (iii) regulatory and supervisory issues. The existing regulatory framework over banks has also been extended to internet banking. It must also be noted that Virtual banks, which have no offices and function only online are not permitted to offer e-banking services in India and only banks licensed under the BRA and having a physical presence in India are allowed to offer such services. Further, banks are required to report to the RBI about every breach or failure of security systems and procedures in internet banking, while the RBI at its discretion may decide to commission special audit/inspection of such banks. 4

5 As regards the credit card business of banks, based on the recommendations of the Working Group on Regulatory Mechanism for Cards, RBI has also issued circulars regulating credit card operations of banks/nbfcs. These guidelines require banks and NBFCs issuing credit cards to do the following among other things: adopt the Fair Practices Code of Conduct issued by the IBA in March 2005, have a well documented policy, provide information, instruction and bills clearly and timely to customers, have independent risk assessment, ensure confidentiality of private information, take responsibility of acts of their agents, establish a grievance redressal machinery with periodic review of complaints and avoid unnecessary harassment and intimidation of customers. Thus, the regulation attempts to do two major things:- a) it attempts to regulate credit card operations in fiscal terms by regulating the amount of credit that can be issued, persons to whom credit can be issued, etc. b) it attempts to protect the rights of the consumer by requiring adequate disclosure of possible liabilities and regular billing. It must be noted that banks no longer need any prior approval of the RBI for offering the internet banking services. Nevertheless, banks must have their internet policy and they need to ensure that it is in line with parameters as set by the Working Group on Internet Banking in India in Considering the scope for fraud in e-transactions and the inherent lack of security, the RBI has not only issued guidelines for secure e-banking but also advises the banks from time to time on control mechanisms to combat frauds. A Fraud Reporting and Monitoring System (FRMS) was introduced in 2003 to enable banks to report data relating to frauds in electronic form. This was done keeping in mind that timely reporting of information on occurrence of frauds helps in disseminating the same to other banks which helps in curbing further perpetration of fraud by the fraudsters. The FRMS Package was revised in January 2006 to capture granular details of frauds under different categories, viz., housing loans, credit cards, ATM-debit cards and internet banking, so as to discern the emerging trends in frauds and enable the entities to focus their oversight on more vulnerable areas. In addition to the above the RBI has also been working consistently for the consolidation of electronic payment and settlement systems such as Real Time Gross Settlement ( RTGS ), 5

6 Indian Financial Network ( INFINET ), Electronic Clearing Scheme ( ECS ), National Electronic Funds Transfers ( NEFT ), National Settlement System, etc which are the backbone of electronic transactions. Another development in relation to electronic banking is Cheque Truncation System which is a method of payment processing whereunder movement of the paper instrument is truncated by substituting with electronic transmission of the cheque details or data. It reduces transaction costs for banks as well as customers. Moreover, banks also have the additional advantage of much reduced reconciliation problems and incidents of clearing frauds. In order to ensure that banks are ready with the desired infrastructure well in time, detailed guidelines were issued to banks on the hardware/ communication requirements. Also, the definition of presentment and cheque under the Indian Negotiable Instruments Act, 1881 have been amended to include electronic presentment of cheques. Thus, it can be seen that the increased usage of electronic banking channels by banks in India has led to a shift in the RBI Policy. RBI is gradually moving away from micro-management of IT related matters of banks and has begun to frame guidelines and standards which relate to common inter-bank requirements. In July 2005, the Financial Sector Technology (FST) Vision Document, was released to all banks. This document outlines the approach to be followed by the RBI as far as IT implementation for the immediate future is concerned. In July 2006, it was decided that prior approval of the RBI would not be required for offering internet banking services, subject to fulfilment of certain conditions. On August 22, 2006, banks were permitted to offer internet based foreign exchange services, for certain transactions, in addition to the local currency products already allowed to be offered on internet based platforms, subject to certain conditions. The legal regime governing banking in India has been transformed due to the increased incidence of electronic banking in India. Even the development of IT law in India has been such as to give legal recognition to electronic transactions so long as certain prescribed stipulations are fulfilled. Thus, it can be seen that the development of law governing electronic banking in India has essentially been geared towards the fostering of electronic banking in a sound, safe and secure manner while protecting the interests of the banks customers. 6

7 CHAPTER 3: IMPACT OF ELECTRONIC BANKING It has become quite clear that the advent and proliferation of electronic banking has played a sizeable and significant role in promoting economic growth and development in India. One of the major and visible benefits of the increased use of electronic banking is that of assisting in financial inclusion. It has been seen that the use of electronic banking has widened the reach of banks to the people previously excluded from the banking system thereby improving the quality of living of such people by providing access to banking and financial services. New products such as payroll cards are being offered today which would help bring poor people within the banking system. It has become well recognised that use of electronic banking helps in increasing the transparency of the banking system. This has become especially important due to the latest international initiatives in relation to anti-money laundering. The movement from paper based payment systems to electronic means of payment means that the funds being transferred are easily trackable. This also adds to the accountability of funds in an economy. In a developing economy like India, electronic banking has helped in modernising the financial systems, creating economic transparency and contributing to greater predictability, liquidity and stability. But what has been the most important advantage and the main reason for migration to electronic banking from traditional paper based banking is that of the improved operational efficiency brought about by its use. Reduction in transaction times and transaction costs has helped companies, governments and other end users of electronic banking products to improve their operational efficiencies to a great extent. VISA has estimated that electronic payment networks, by increasing the efficiency and velocity of payments has the potential to create cost savings of at least 1 percent of the GDP annually over paper based systems in any given economy. Therefore, it is becoming increasingly obvious that in he present era of globalisation, electronic banking has a major role to play especially for effecting cross border transactions. It is being widely recognised and accepted that electronic banking is catalysing economic growth in most economies across the world including India s and that electronic banking is here to stay. 7

8 However, it must be noted that electronic means inter alia including internet, cell phones, etc have an inherent lack of safety and security built into them. This is where the development of IT law and transformation of banking law and regulation in India has played a major role. While accepting the benefits of electronic banking and its beneficial impact on the economy, the policy and law makers, as discussed in the previous section, have resorted to curbing the safety and security issues involved in electronic banking so as to as to ensure that all the stakeholders of an electronic banking system are not adversely affected by the inherent problems of use of electronic means thereby assisting in the catalysing effect of electronic banking on economic growth in a sound and efficient manner. CONCLUSION At the end it can be said that even though electronic banking has a number of advantages and acts as a catalyst to economic growth, this mode of banking also comes with a number of safety and security issues. In the present scenario, it seems very likely that soon the banking system would be converted into a paperless system. However, before this occurs, it would be best to end this paper by highlighting the major issues which would have to be effectively and safely addressed so as to pave the way for a complete transfer to an electronic banking model in India: Liability issues in case of breach of security, hacking and technical problems. Issues pertaining to verifying the authenticity and finality of electronic transactions. Breach of confidentiality issues due to the various referral arrangements entered into by banks with other banks and companies. Lack of adequate and effective legal regime with special focus on technical issues to govern electronic banking transactions. Need for international co-operation to tackle cyber-crimes and money laundering issues. 8

9 REFERENCES: L. Arunachalam, The Future of Internet Banking in India at Migration of Paper based Funds movement to electronic funds transfers at Report on Trend and Progress of Banking in India , RBI, 2006 sourced from Electronic Payments Help Drive Economic Growth, Says Visa Sponsored White Paper at Address by Dr. Y.V. Reddy, Governor, Reserve Bank of India at the Banking Technology Awards Function, 2006 at the Institute for Development and Research in Banking Technology, Hyderabad on September 2,