Insolvency regime needs hard reform

Deccan Herald

06-06-2025

The Supreme Court's recent annulment of JSW Steel's Rs 19,700-crore acquisition of Bhushan Power and Steel Ltd (BPSL) under the Insolvency and Bankruptcy Code (IBC) has reignited a deeper question about the balance between legal form and economic function. The Court's reasoning was sound: material deviations from the approved resolution plan were made without returning to the Committee of Creditors (CoC) or the NCLT for consent. Legally, the process mattered. But the implications of this decision go far beyond legality. They touch the foundations of India's financial system..This case serves as a reminder that while India's insolvency regime has made significant progress, the broader financial infrastructure on which it relies remains incomplete. The JSW-BPSL outcome isn't a failure of law; it's a signal that the institutions surrounding it must evolve to support more complex economic realities..JSW's resolution plan used a Special Purpose Vehicle, a standard acquisition structure, and financed part of the deal through Optionally Convertible Debentures, an established instrument globally. Yet, under Indian insolvency procedure, such post-approval changes must receive renewed creditor and tribunal consent. The absence of that step rendered the plan invalid, despite repayment having begun..The message isn't one of malfeasance or manipulation, but of a system that hasn't yet adapted to the evolving needs of modern restructuring. JSW acted within widely accepted financial logic but discovered that process constraints flexibility. The broader lesson is that strategic capital may hesitate to engage with distressed assets unless resolution mechanisms allow for well-regulated innovation. That holds consequences not only for bidders but also lenders, employees, and the economy..The JSW case reveals the need for deeper institutional capacity in insolvency governance. The CoC, composed mainly of banks, brings financial skin in the game, but often lacks the commercial restructuring expertise to evaluate unconventional plans. Meanwhile, the NCLT, pivotal to resolution, continues to face resource constraints..Compared to advanced economies, where restructuring decisions are shaped by capital market actors, specialist advisers, and commercial courts, India's process leans heavily on legal formalism. India must bring in independent expertise and strengthen the interplay between legal and financial perspectives to enable effective resolution. Encouragingly, these gaps are not insurmountable; they are reform opportunities..Zooming out, this episode reflects a broader challenge in India's financial evolution. The post-liberalisation decision to convert Development Finance Institutions into commercial banks was bold, but it assumed the rise of a vibrant corporate bond market. That market remains shallow..Today, most long-term credit still flows through banks and NBFCs, intermediaries not designed to handle complex risk-pricing over time. Corporate bond issuances are often private, illiquid, and difficult to trade. The result is that bankruptcy resolution ends up doing work that well-functioning capital markets would normally share: absorbing risk, repricing assets, and enabling exits..The JSW case demonstrates that even when operations resume and creditors are paid, a procedural lapse can unwind a resolution. For capital to engage sustainably, investors need assurance not just of legality, but of finality..What must evolve.The solution is not to weaken the IBC but to fortify it with institutional and market reforms. A regulated, liquid secondary market for distressed debt would allow for dynamic pricing, risk-sharing, and investor entry without the delays of judicial resolution..Equally vital is enhancing the capability of the NCLT. Resolution decisions with major economic impact should benefit from commercial expertise and capital market insight. The process must evolve beyond a legal tribunal into a financially informed platform..Additionally, once a resolution plan is approved and executed in good faith, it should enjoy legal stability, subject to apparent exceptions like fraud. This would strengthen investor trust. And as India continues its financial modernisation, it's worth reconsidering the current ban on leveraged buyouts, which are globally standard tools that, if properly regulated, can enable efficient asset turnaround..Encouraging thoughtful financial structuring should be seen not as a risk, but as a route to economic recovery. Mergers and acquisitions during insolvency are not loopholes but part of the solution..The JSW-BPSL episode is not a story of legal overreach or corporate miscalculation; it is a moment of reckoning for how far India's financial ecosystem has come and how much farther it needs to go. It calls for the next chapter of reform: one that builds out institutional capacity, deepens capital markets, and ensures that law and finance move in step, not in conflict. India has made bold strides in building an insolvency regime. With the right reforms, the regime can now deliver not just resolution but real renewal..(The writer teaches finance at IIT Kharagpur)