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Law, Finance, and Politics: The Case of India

Published online by Cambridge University Press:  01 January 2024

John Armour  and
Priya Lele
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Abstract

The liberalization of India's economy since 1991 has brought with it considerable development of its financial markets and supporting legal institutions. An influential body of economic scholarship asserts that a country's “legal origin”—as a civilian or common law jurisdiction—plays an important part in determining the development of its investor protection regulations, and consequently its financial development. An alternative theory claims that the determinants of investor protection are political, rather than legal. We use the case of India to test these theories. We find little support for the idea that India's legal heritage as a common law country has been influential in speeding the path of regulatory reforms and financial development. Rather, we suggest there are complementarities between (1) India's relative success in services and software; (2) the relative strength of its financial markets for outside equity, as opposed to outside debt; and (3) the relative success of stock market regulation, as opposed to reforms of creditor rights. We conclude that political economy explanations have more traction in explaining the case of India than do theories based on “legal origins.”

Type
Articles
Information
Law & Society Review , Volume 43 , Issue 3 , September 2009 , pp. 491 - 526
Copyright
© 2009 Law and Society Association.

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Footnotes

This research was funded by a grant from the ESRC's World Economy and Finance program. We are most grateful to our interviewees in India. We also owe particular thanks to Mr. P. B. Kulkarni and to Arun and Siddharth Bhatnagar for their assistance. This article has benefited from comments following presentations at the Bank of England, Birmingham University, Columbia Law School, CLEF, and the LSE. We thank Arun Thankom, Sumon Bhaumik, Bob Cooter, Simon Deakin, Panicos Demetriades, Joshua Getzler, Curtis Milhaupt, Richard Nolan, Katharina Pistor, Prabirjit Sarkar, Mitra Sharafi, Mathias Siems, and Ajit Singh for helpful comments and discussions. The views expressed in this article are those of the authors alone and should not be taken as reflecting the views of any individual interviewee(s) or their organization(s).

References

References

Ahluwalia, Montek S. (1995) “India's Economic Reforms,” in Cassen, R. & Joshi, V., eds., India: The Future of Economic Reforms. New Delhi: Oxford Univ. Press.Google Scholar
Ahluwalia, Montek S. (2002) “Economic Reforms in India since 1991: Has Gradualism Worked?,” 16 J. of Economic Perspectives 67–88.CrossRefGoogle Scholar
Allen, Franklin, et al. (2006a) “Does Economic Structure Determine Financial Structure?” Working paper, Wharton School, University of Pennsylvania, December.CrossRefGoogle Scholar
Allen, Franklin, et al. (2006b) “Financing Firms in India.” World Bank Policy Research Working Paper 3975, Washington, DC, August.CrossRefGoogle Scholar
Allen, Trevor R. S. (2000) The Right to Property in Commonwealth Constitutions. Cambridge, UK: Cambridge Univ. Press.CrossRefGoogle Scholar
Armour, John, & Cumming, Douglas J. (2006) “The Legislative Road to Silicon Valley,” 58 Oxford Economic Papers 596–635.CrossRefGoogle Scholar
Athreye, Suma S. (2005) “The Indian Software Industry,” in Arora, A. & Gambardella, A., eds., From Underdogs to Tigers: The Rise and Growth of the Software Industry in Brazil, China, India, Ireland, and Israel. Oxford, UK: Oxford Univ. Press.Google Scholar
Bala, Madhu (2006) “Economic Policy and State Owned Enterprises: Evolution Towards Privatisation in India.” Working paper, Indira Gandhi National Open University, November, http://ssrn.com/abstract=944423. Accessed on March 20, 2009.CrossRefGoogle Scholar
Batra, Sumant (2003) “The Asian Recovery: Progress and Pitfalls: The Position of India.” Paper prepared for World Bank Global Forum on Insolvency Risk Management, Washington, D.C., http://siteresources.worldbank.org/GILD/ConferenceMaterial/20157508/Batra%20-%20India%20-%20FINAL.pdf (accessed 20 March 2009).Google Scholar
Beck, Thorsten, et al. (2003) “Law and Finance: Why Does Legal Origin Matter?,” 31 J. of Comparative Economics 653–75.CrossRefGoogle Scholar
Berger, Allen N., & Udell, Gregory F. (1998) “The Economics of Small Business Finance: The Roles of Private Equity and Debt Markets in the Financial Growth Cycles,” 22 J. of Banking and Finance 613–73.CrossRefGoogle Scholar
Bhagwati, Jagdish N. (1993) India in Transition. Oxford, UK: Clarendon Press.CrossRefGoogle Scholar
Bhattacharya, Saugata, & Patel, Urjit R. (2005) “New Regulatory Institutions in India: White Knights or Trojan Horses?,” in Kapur, D. & Mehta, P. B., eds., Public Institutions in India: Performance and Design. New Delhi and New York: Oxford Univ. Press.Google Scholar
Bhaumik, Sumon K., & Dimova, Ralitza (2004) “How Important Is Ownership in a Market with a Level Playing Field: The Indian Banking Sector Revisited,” 32 J. of Comparative Economics 165–80.CrossRefGoogle Scholar
Black, Bernard S., & Khanna, Ralitza (2007) “Can Corporate Governance Reforms Increase Firm Market Values? Event Study Evidence from India,” 4 J. of Empirical Legal Studies 749–96.CrossRefGoogle Scholar
Botero, Juan C., et al. (2004) “The Regulation of Labor,” 119 Q. J. of Economics 1340–82.CrossRefGoogle Scholar
Carlin, Wendy, & Mayer, Colin (2002) “How Do Financial Systems Affect Economic Performance?” in McCahery, J. A. et al., eds. Corporate Governance Regimes: Convergence and Diversity. Oxford, UK: Oxford Univ. Press.Google Scholar
Carpenter, Robert E., & Petersen, Bruce C. (2002) “Capital Market Imperfections, High-Tech Investment, and New Equity Financing,” 112 Economic J. F54–F72.Google Scholar
Cheffins, Brian R. (2001) “Does Law Matter? The Separation of Ownership and Control in the United Kingdom,” 30 J. of Legal Studies 459–84.CrossRefGoogle Scholar
Claessens, Stijn, & Laeven, Luc (2003) “Financial Development, Property Rights, and Growth,” 58 J. of Finance 2401–36.CrossRefGoogle Scholar
Coffee, John C. Jr. (2001) “The Rise of Dispersed Ownership: The Role of Law in the Separation of Ownership and Control,” 111 Yale Law J. 1–82.CrossRefGoogle Scholar
Cunningham, Clark D. (2003) “The World's Most Powerful Court: Finding the Roots of India's Public Interest Litigation Revolution in the Hussainara Khatoon Prisoners Case,” in Sathe, S. P. & Narayan, S., eds., Liberty, Equality and Justice: Struggles for a New Social Order. Lucknow, India: Eastern Book Company.Google Scholar
Dam, Kenneth (2006) The Law-Growth Nexus. Washington, DC: Brookings Press.Google Scholar
Deakin, Simon, et al. (2008) “Creditor Protection and Banking System Development in India.” Working paper No. 08/25, University of Leicester, Department of Economics, August.Google Scholar
Debroy, Bibek (2000) “Some Issues in Law Reform in India,” in Dethier, J.-J., ed., Governance, Decentralization, and Reform in China, India and Russia. London: Kluwer Academic Publishers, 339–68.Google Scholar
Desai, Ashok H., & Muralidhar, S. (2000) “Public Interest Litigation: Potential and Problems,” in Kirpal, B. N. et al., eds., Supreme But Not Infallible: Essays in Honor of the Supreme Court of India. New Delhi: Oxford Univ. Press, 159–92.Google Scholar
Dharmapala, Dhammika, & Khanna, Vikramaditya (2008) “Corporate Governance, Enforcement, and Firm Value: Evidence from India.” University of Michigan Law & Economics Olin Working Paper No. 08-005.Google Scholar
Djankov, Simeon, et al. (2002) “The Regulation of Entry,” 117 Q. J. of Economics 1–37.CrossRefGoogle Scholar
Djankov, Simeon (2008a) “Debt Enforcement Around the World,” 116 J. of Political Economy 1105–49.CrossRefGoogle Scholar
Djankov, Simeon (2008b) “The Law and Economics of Self-Dealing,” 88 J. of Financial Economics 430–65.CrossRefGoogle Scholar
Eradi, Justice V. B. (2000) Eradi Committee Report on Law Relating to Insolvency of Companies. Delhi: Department of Company Affairs.Google Scholar
Farrell, Diana, et al. (2006) “India's Financial System: More Market, Less Government,” McKinsey Quarterly (August) 86–89.Google Scholar
Freear, John, & Wetzel, William E. Jr. (1990) “Who Bankrolls High-Tech Entrepreneurs?,” 5 J. of Business Venturing 77–89.CrossRefGoogle Scholar
Galanter, Marc, & Krishnan, Jayanth K. (2003) “Debased Informalism: Lok Adalats and Legal Rights in Modern India,” in Jensen, E. G. & Heller, T. C., (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law. Stanford, CA: Stanford Univ. Press.Google Scholar
Ghosh, Arunabha (2006) “Pathways Through Financial Crisis: India,” 12 Global Governance 413–29.CrossRefGoogle Scholar
Goswami, Omkar (2003) “India: The Tide Gradually Rises,” in Oman, C., ed., Corporate Governance in Development. Paris: OECD.Google Scholar
Gourevitch, Peter A., & Shinn, James J. (2005) Political Power and Corporate Control: The New Global Politics of Corporate Governance. Princeton, NJ: Princeton Univ. Press.Google Scholar
Hall, Peter A., & Soskice, David (2001) “An Introduction to Varieties of Capitalism,” in Hall, P. A. & Soskice, D., eds., Varieties of Capitalism. Oxford, UK: Oxford Univ. Press.CrossRefGoogle Scholar
Hayek, Friedrich A. (1978) Law, Legislation and Liberty: Rules and Order (Vol. 1). Chicago: Univ. of Chicago Press.Google Scholar
Hazra, Arnab K., & Micevska, Maja B. (2004) “The Problem of Court Congestion: Evidence From Indian Lower Courts.” Royal Economic Society Annual Conference 2004 #2, http://repec.org/res2004/MicevskaHazra.pdf (accessed 20 March 2009).Google Scholar
Jain, Mahabiv. P. (2000) “The Supreme Court and Fundamental Rights,” in Verma, S. K. & Kumar, K., eds., Fifty Years of the Supreme Court of India: Its Grasp and Reach. New Delhi: Oxford Univ. Press.Google Scholar
Joshi, Vijay, & Little, Ian. M. D. (1996) India's Economic Reforms 1991–2001. Oxford, UK: Clarendon Press.CrossRefGoogle Scholar
Khanna, Tarun, & Palepu, Krishna G. (2005) “The Evolution of Concentrated Ownership in India: Broad Patterns and a History of the Indian Software Industry,” in Morck, R. K., ed., A History of Corporate Governance Around the World. Chicago: National Bureau of Economic Research.Google Scholar
Khatkhate, Dinananth (2002) “India: Evaluating Bank Assistance for Financial Sector Development: A Country Assistance Evaluation.” World Bank Operations Evaluation Department, http://lnweb90.worldbank.org/oed/oeddoclib.nsf/DocUNIDViewForJavaSearch/42F0FB4EFEFD548E85256B26005D5798/$file/Finance.pdf (accessed 20 March 2009).Google Scholar
Kochhar, Kalpana, et al. (2006) “India's Pattern of Development: What Happened, What Follows?,” 53 J. of Monetary Economics 981–1019.CrossRefGoogle Scholar
Krishnan, Jayanth (2003) “Social Policy Advocacy and the Role of the Courts in India,” 21 American Asian Rev. 91–124.Google Scholar
La Porta, Rafael, et al. (1997) “Legal Determinants of External Finance,” 52 J. of Finance 1131–50.CrossRefGoogle Scholar
La Porta, Rafael, et al. (1998) “Law and Finance,” 106 J. of Political Economy 1113–55.CrossRefGoogle Scholar
La Porta, Rafael, Lopez-de-Silanes, Florencio, & Shleifer, Andrei (2008) “The Economic Consequences of Legal Origins,” 46 J. of Economic Literature 285–332.CrossRefGoogle Scholar
Lal, Deepak (2005) The Hindu Equilibrium. Oxford, UK: Oxford Univ. Press.Google Scholar
Lele, Priya, & Siems, Mathias (2007) “Shareholder Protection: A Leximetric Approach,” 7 J. of Corporate Law Studies 17–50.CrossRefGoogle Scholar
Love, Inessa, & Peria, Maria S. M. (2005) “Firm Financing in India: Recent Trends and Patterns.” Technical Report WPS 3476, World Bank Working Paper Series 3476, Washington, DC, January.CrossRefGoogle Scholar
Mahoney, Paul G. (2001) “The Common Law and Economic Growth: Hayek Might be Right,” 30 J. of Legal Studies 503–25.CrossRefGoogle Scholar
Milhaupt, Curtis, & Pistor, Katharina (2008) Law and Capitalism: What Corporate Crises Reveal About Legal Systems and Economic Development Around the World. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Ministry of Home Affairs (India) (2003) Committee on Reforms of Criminal Justice System: Report Volume I. New Delhi: Ministry of Home Affairs.Google Scholar
Ministry of Law, Justice and Company Affairs (India) (2002) “Civil Procedure Code as Amended Enforced from Today.” Press Release, 1 July, http://pib.nic.in/archieve/lreleng/lyr2002/rjul2002/01072002/r010720022.html (accessed 20 March 2009).Google Scholar
Mohan, Rakesh (2007) “Capital Account Liberalisation and Conduct of Monetary Policy: The Indian Experience,” RBI Monthly Bulletin 1129–54 (July)Google Scholar
National Stock Exchange of India (2006) Indian Securities Market: A Review, Vol IX. Mumbai: NSE. Also available at http://www.nseindia.com/archives/us/ismr/us_ismr2006.htm (accessed 20 March 2009).Google Scholar
North, Douglass C. (1990) Institutions, Institutional Change and Economic Performance. Cambridge, UK: Cambridge Univ. Press.CrossRefGoogle Scholar
Pal, Parthapratim (2001) “Stock Market Development and its Impact on the Financing of the Indian Corporate Sector.” National Stock Exchange of India (NSE) Research Initiative, Working Paper No. 4, Mumbai, April.Google Scholar
Panagariya, Arvind (2008) India: The Emerging Giant. Oxford, UK: Oxford Univ. Press.Google Scholar
Rajan, Raghuram G., & Zingales, Luigi (2003) “The Great Reversals: The Politics of Financial Development in the Twentieth Century,” 69 J. of Financial Economics 5–50.CrossRefGoogle Scholar
Reserve Bank of India (2008) Handbook of Statistics on Indian Economy. Mumbai: Reserve Bank of India. Also available at http://www.rbi.org.in/scripts/AnnualPublications.aspx?head= Handbook of Statistics on Indian Economy (accessed 20 March 2009).Google Scholar
Rodrik, Dani, & Subramanian, Arvind (2008) “From ‘Hindu Growth’ to Productivity Surge: The Mystery of the Indian Growth Transition,” in Subramanian, A., India's Turn: Understanding the Economic Transformation. Oxford, UK: Oxford Univ. Press.Google Scholar
Roe, Mark J. (2003) Political Determinants of Corporate Governance. Oxford, UK: Oxford Univ. Press.Google Scholar
Rothermund, Dietmar (1988) An Economic History of India. London: Croom Helm.Google Scholar
Sarkar, Prabirjit (2006) “Stock Market Development, Capital Accumulation and Growth in India Since 1950.” Working paper, Jadavpur and Cambridge Universities, http://ssrn.com/abstract=952153 (accessed 20 March 2009).Google Scholar
Shah, Ajay, & Thomas, Susan (1996) “How Automation and Competition Have Changed the BSE.” Technical report, Centre for Monitoring Indian Economy, Mumbai, January.Google Scholar
Shah, Ajay (1999) “Developing the Indian Capital Market,” in Hanson, J. A. & Kathuria, S., eds., India: A Financial Sector for the Twenty-First Century. Oxford, UK: Oxford Univ. Press.Google Scholar
Shirai, Sayuri (2002) “Banking Sector Reforms in India and China: Does India's Experience Offer Lessons for China's Future Reform Agenda?,” 9 Asia-Pacific Development J. 51–82.CrossRefGoogle Scholar
Shirai, Sayuri (2004) “Assessing the Impact of Financial and Capital Market Reforms on Firms' Corporate Financing Patterns in India,” 5 South Asia Economic J. 189–208.CrossRefGoogle Scholar
Siems, Mathias (2007) “Reconciling Law & Finance and Comparative Law,” 52 McGill Law J. 55–81.Google Scholar
Spamann, Holger (2006) “On the Insignificance and/or Endogeneity of La Porta et al.'s ‘Anti-Director Rights Index’ Under Consistent Coding.” European Corporate Governance Institute Law Working Paper No. 67/2006, Brussels, March.CrossRefGoogle Scholar
Securities and Exchange Board of India (SEBI) (2000) SEBI (Disclosure and Investor Protection) Guidelines 2000. Mumbai: Securities and Exchange Board of India. Available at: http://www.sebi.gov.in/guide/sebidipguide.pdf. Accessed March 20, 2009.Google Scholar
Tendulkar, Suresh D. (2004) “Organised Labour Market in India: Pre and Post Reform.” Working paper presented at MacArthur Research Network conference, Anti Poverty and Social Policy in India, Neemrana Fort Palace, Alwar, Rajasthan, January, http://globetrotter.berkeley.edu/macarthur/inequality/papers/TendulkarLabor.pdf (accessed 20 March 2009).Google Scholar
Thiruvengadam, Arun K. (2008) “In Pursuit of ‘the Common Illumination of Our House’: Trans-Judicial Influence and the Origins of PIL Jurisprudence in India, Pakistan and Bangladesh.” Indian Journal of Constitutional Law, 67–103.Google Scholar
Thomas, Susan (2006) “How the Financial Sector in India Was Reformed,” in Narayan, S., ed., Documenting Reforms: Case Studies from India. New Delhi: Macmillan India.Google Scholar
Topalova, Petia (2004) “Overview of the Indian Corporate Sector: 1989–2002.” IMF Technical Report WP/04/64, Washington, DC, March.CrossRefGoogle Scholar
Umarji, M. R. (2004) “Trends and Developments in Insolvency Systems and Risk Management: The Experience of India.” Paper presented at Forum on Asian Insolvency Reform, Insolvency Systems and Risk Management in Asia, New Delhi, India, November, http://www.oecd.org/dataoecd/51/5/33933730.pdf (accessed 20 March 2009).Google Scholar
Vig, Vikrant (2007) “Access to Collateral and Corporate Debt Structure: Evidence from a Natural Experiment.” Working paper, Columbia University Business School, February.Google Scholar
Visaria, Sujata (2006) “Legal Reform and Loan Repayment: The Microeconomic Impact of Debt Recovery Tribunals in India.” Working paper, Boston University Department of Economics DP 157, April, http://www.bu.edu/econ/ied/dp/papers/dp157-Visaria.pdf (accessed 20 March 2009).Google Scholar
Weber, Max (1978) Economy and Society. Berkeley, CA: Univ. of California Press.Google Scholar
World Bank (2006) World Development Indicators 2006. Washington, DC: The World Bank.Google Scholar
World Bank (2007) Doing Business in South Asia in 2007. Country profile of India. http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/Publications/448813-1171300070514/india.pdf (accessed 20 March 2009).Google Scholar

Cases Cited

Kameshwar Singh v. State of Bihar AIR 1951 Patna 91.Google Scholar
Mardia Chemicals Ltd v. Union of India JT 2004 (4) SC 308.Google Scholar
S. P. Gupta v. Union of India AIR 1982 SC 149.Google Scholar
State of Gujarat v. Shantilal AIR 1969 SC 64.Google Scholar
State of West Bengal v. Bela Banerjee AIR 1954 SC 170.Google Scholar
Supreme Court Advocates-on-Record Association v. Union of India 1994 SC 268.Google Scholar
Thiru. R. Gandhi President v. Union of India (UOI) 2004 120 Comp Cas 510 (Mad).Google Scholar
Vajravelu v. Special Deputy Collector AIR 1965 SC 1017.Google Scholar
Union of India v. the Medical Corporation of India AIR 1967 SC 637.Google Scholar

Indian Statutes Cited

Banking Regulation Act 1949, Act no. 10 of 1949.Google Scholar
Capital Issues Control Act 1947, Act no. 29 of 1947.Google Scholar
Companies Act 1956, Act no. 1 of 1956.Google Scholar
Companies (Second Amendment) Act 2003, Act no. 11 of 2003.Google Scholar
Companies Bill 2008.Google Scholar
Constitution (First Amendment) Act 1951.Google Scholar
Constitution (Fourth Amendment) Act 1955.Google Scholar
Constitution (Seventeenth Amendment) Act 1964.Google Scholar
Constitution (Forty-Fourth Amendment) Act 1978.Google Scholar
Constitution of India.Google Scholar
Criminal Procedure Code 1898, Act no. 5 of 1898.Google Scholar
Depositaries Act 1996, Act no. 22 of 1996.Google Scholar
Foreign Exchange Regulation Act 1973, Act no. 46 of 1973.Google Scholar
Foreign Exchange Management Act 1999, Act no. 42 of 1999.Google Scholar
General Clauses Act 1897, Act no. 10 of 1897.Google Scholar
Indian Civil Procedure Code 1908, Act no. 5 of 1908.Google Scholar
Indian Contract Act 1872, Act no. 9 of 1872.Google Scholar
Indian Evidence Act 1872, Act no. 1 of 1872.Google Scholar
Indian Penal Code 1860, Act no. 45 of 1860.Google Scholar
Indian Trusts Act 1882, Act no. 2 of 1882.Google Scholar
Monopolies and Restrictive Trade Practices Act 1969, Act no. 54 of 1993.Google Scholar
Negotiable Instruments Act 1881, Act no. 42 of 1956.Google Scholar
Recovery of Debts Due to Banks and Financial Institutions Act 1993, Act no. 51 of 1993.CrossRefGoogle Scholar
Securities Contract (Regulation) Act 1956, Act no. 42 of 1956.Google Scholar
Securities and Exchange Board of India Act 1992, Act no. 15 of 1992.Google Scholar
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act 2002, Act no. 54 of 2002.Google Scholar
Sick Industrial Companies (Special Provisions) Act 1985, Act no. 1 of 1986.Google Scholar
Sick Industrial Companies (Special Provisions) Act Repeal Act 2003, Act no. 1 of 2004 (not yet in force).Google Scholar

Indian Secondary Legislation Cited

Clause 49 of the Listing Agreement: SEBI Circular SMDRP/POLICY/CIR-10/2000, February 21, 2000.Google Scholar
SEBI (Merchant Bankers) Regulations 1992, LE/11112/92.Google Scholar
SEBI (Insider Trading) Regulation 1992, LE/6308/92.Google Scholar
SEBI (Substantial Acquisition of Shares) Regulation 1994, LE/5916/94.Google Scholar