A primer on Foreign Exchange Management Act (FEMA)

January 5, 2023

Foreign exchange management is essential to any organisation’s risk management strategy. It involves implementing controls to ensure that the organisation maintains a predetermined financial and operational safety level. Foreign exchange management aims to ensure sufficient funds are available for operations and risk appetite needs and to minimise the organization’s exposure to foreign exchange risks.

In 1973, the central government enacted the Foreign Exchange Regulation Act (FERA) to regulate foreign exchange transactions. This act made most activities related to foreign exchange illegal, except for the direct sale of currency. It provided a legal framework for regulating these activities as long as essential public interests were met. It led to greater liberalisation, as recommended by international aid agencies such as the World Bank, which provided financial aid to India during the 1990-91 fiscal years.

The Foreign Exchange Management Act (FEMA) was then promulgated in 1999 to consolidate and update previous laws related to forex transactions. FEMA regulates financial institutions, commodity exchanges, individuals involved in market making or dealing in derivatives contracts, and spot foreign exchange trading. In addition to regulating these entities, FEMA also provides a framework for anti-money laundering and counter-terrorism financing compliance.

Difference between FERA and FEMA

The Foreign Exchange Regulation Act (FERA) and the Foreign Exchange Management Act (FEMA) are two laws that regulate forex transactions in India. FERA was replaced with FEMA. There are several key differences between the two acts:

Purpose: FERA was enacted in 1973 to regulate foreign exchange transactions and to prevent the illegal use of foreign exchange. On the other hand, FEMA was enacted in 1999 to consolidate and update the previous foreign exchange laws and provide a framework for regulating these transactions.
Scope: FERA applied to all activities relating to foreign exchange, except for the direct sale of currency, and made these activities illegal unless they were permitted under the act. FEMA, on the other hand, applies to a broader range of activities, including external trade transactions involving foreign currency or gold, the conversion of rupee deposits and withdrawals into foreign currency, and the regulation of financial institutions, commodity exchanges, and individuals engaged in market making or dealing in derivatives contracts.
Penalties: FERA carried harsh penalties for violations of the act, including imprisonment and fines. FEMA, on the other hand, has more flexible penalties that can include fines, detention, and confiscation of assets, depending on the severity of the violation.
Liberalization: FERA was seen as a restrictive and punitive law that hindered India’s foreign investment and economic growth. As a result, FEMA replaced it in 1999 as part of a more excellent liberalization process recommended by international aid agencies such as the World Bank. This liberalisation process aimed to encourage foreign investment and economic growth in India by removing the restrictive provisions of FERA and replacing them with more flexible and modern regulations under FEMA. As a result, FEMA is generally seen as a more modern and forward-looking law better suited to the needs of a modern and globalised economy.

The objectives of FEMA

The objectives of the Foreign Exchange Management Act (FEMA) are as follows:

To regulate external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India.
To regulate the conversion of rupee deposits and withdrawals into foreign currency, re-export of goods, import/export of gold, and more.
To ensure financial integrity, prevent money laundering, curb smuggling of foreign currencies, protect the interests of depositors, regulate payment systems, and safeguard payment instruments such as credit cards and checks.
To require entities dealing with foreign currency to obtain prior permission from the Reserve Bank of India (RBI).
To consolidate and update previous laws related to foreign exchange transactions.
To regulate financial institutions, commodity exchanges, individuals involved in market making or dealing in derivatives contracts, and spot foreign exchange trading.
To provide a framework for anti-money laundering and counter-terrorism financing compliance.

Protect the interests of Indian investors abroad

The Foreign Exchange Management Act (FEMA) protects the interests of Indian investors abroad in several ways:

It regulates external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India. It helps to ensure that Indian investors are not taken advantage of in foreign trade transactions.
It regulates the conversion of rupee deposits and withdrawals into foreign currency, which helps to protect Indian investors from exchange rate fluctuations.
It requires entities dealing with foreign currency to obtain prior permission from the Reserve Bank of India (RBI). It helps to ensure that Indian investors are dealing with reputable and trustworthy entities when investing abroad.
It provides a framework for anti-money laundering and counter-terrorism financing compliance, which helps to ensure that Indian investors’ funds are not being used for illegal or illicit activities.
It regulates financial institutions, commodity exchanges, and individuals involved in market making or dealing in derivatives contracts. This helps ensure that Indian investors deal with reputable and well-regulated entities when investing abroad.

Prevent illegal transactions

The Foreign Exchange Management Act (FEMA) helps to prevent illegal transactions in several ways:

It requires entities dealing with foreign currency to obtain prior permission from the Reserve Bank of India (RBI). It helps ensure that only legitimate entities engage in foreign exchange transactions.
It provides a framework for anti-money laundering and counter-terrorism financing compliance, which helps to identify and prevent illegal transactions that may be used to fund illegal or illicit activities.
It regulates financial institutions, commodity exchanges, and individuals involved in market making or dealing in derivatives contracts, which helps to ensure that these entities are operating legally and transparently.
It regulates external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India, helping to ensure that these transactions are legitimate and not being used to facilitate illegal activities.
It regulates the conversion of rupee deposits and withdrawals into foreign currency, helping to prevent illegal transactions related to currency exchange.

Facilitate tax and regulatory compliance

The Foreign Exchange Management Act (FEMA) helps to ensure tax and regulatory compliance in several ways:

It requires entities dealing with foreign currency to obtain prior permission from the Reserve Bank of India (RBI). It helps to ensure that these entities operate within the boundaries of Indian tax and regulatory laws.
It provides a framework for anti-money laundering and counter-terrorism financing compliance, which helps to identify and prevent illegal transactions that may be used to evade taxes or avoid regulatory compliance.
It regulates financial institutions, commodity exchanges, and individuals involved in market making or dealing in derivatives contracts, which helps ensure that these entities comply with tax and regulatory laws.
It regulates external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India, helping to ensure that these transactions are conducted in compliance with tax and regulatory laws.
It regulates the conversion of rupee deposits and withdrawals into foreign currency, helping to ensure that these transactions are conducted in compliance with tax and regulatory laws.

The statutory framework of FEMA

Who is covered under FEMA?

The Foreign Exchange Management Act (FEMA) applies to a wide range of individuals and entities, including:

Financial institutions, including banks, insurance companies, and investment firms.
Commodity exchanges include trade in oil, gold, and wheat commodities.
Individuals engaged in market making or dealing in derivatives contracts, including brokers, traders, and investment advisers.
Spot foreign exchange traders, including individuals or entities that buy and sell foreign currency for immediate delivery.
Any entity or individual dealing with foreign currency in India, including individuals or entities that engage in external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India, or individuals or entities that convert rupee deposits and withdrawals into foreign currency.
Any entity or individual must obtain prior permission from the Reserve Bank of India (RBI) to deal with foreign currency.

Definition of foreign exchange

According to the Foreign Exchange Management Act (FEMA), foreign exchange refers to any currency other than the Indian rupee. It includes all forms of foreign currency, including cash, drafts, travellers’ checks, and electronic funds transfer. Foreign exchange also consists of any instrument denominated in a foreign currency, such as a bond or a loan, as well as any transaction involving the conversion of rupee deposits or withdrawals into foreign currency. Foreign exchange transactions regulated by FEMA include external trade transactions involving foreign currency or gold between Indian entities and entities or individuals based outside India, as well as the conversion of rupee deposits and withdrawals into foreign currency.

Definition of an ‘investment’

According to the Foreign Exchange Management Act (FEMA), investment refers to purchasing an asset with the expectation of earning a return on that asset in the future. It can include purchasing stocks, bonds, real estate, or other assets. Investment may also refer to the purchase of a business or the acquisition of a controlling interest in a company. Under FEMA, certain investments by Indian entities or individuals in foreign entities or assets may be subject to certain regulations or restrictions, depending on the nature of the investment and the country in which it is being made. In addition, foreign investors may also be subject to certain regulations or restrictions under FEMA when investing in India.

What are the forms of investment covered under FEMA?

The Foreign Exchange Management Act (FEMA) covers a wide range of investment forms, including:

Purchase stocks, bonds, or other securities in foreign companies.
Acquisition of a controlling interest in a foreign company.
Purchase of real estate or other assets in foreign countries.
Investment in foreign businesses or ventures.
Investment in foreign joint ventures or partnerships.
Investment in foreign funds or investment trusts.
Investment in foreign pension plans or retirement accounts.
Investment in foreign insurance policies or annuities.
Investment in foreign mutual funds or other investment vehicles.

Under FEMA, certain investments by Indian entities or individuals in foreign entities or assets may be subject to certain regulations or restrictions, depending on the nature of the investment and the country in which it is being made. In addition, foreign investors may also be subject to certain regulations or restrictions under FEMA when investing in India.

Capital account and Current account transactions and their treatment as per FEMA

Under the Foreign Exchange Management Act (FEMA), capital account transactions refer to transactions that involve the movement of capital between countries, such as investments, loans, and the purchase or sale of assets. On the other hand, current account transactions involve the exchange of goods, services, and income between countries, such as exports and imports.

Capital account transactions are generally subject to more restrictions under FEMA, as they involve the movement of capital and can significantly impact the balance of payments between countries. Indian entities or individuals may be required to obtain prior approval from the Reserve Bank of India (RBI) before engaging in certain capital account transactions. There may be limits on the amount of foreign exchange used for these purposes.
On the other hand, current account transactions are generally more liberalized under FEMA, as they involve the exchange of goods and services rather than moving capital. Indian entities or individuals are generally allowed to engage in current account transactions without prior approval, although certain reporting requirements or restrictions may exist.
In addition, both capital account and current account transactions may be subject to regulations or restrictions related to anti-money laundering and counter-terrorism financing, as well as tax and regulatory compliance.

Restrictions on dealings in securities etc.

Under the Foreign Exchange Management Act (FEMA), certain restrictions exist on dealing in securities and other investments. These restrictions may vary depending on the nature of the investment and the country in which it is being made.

Indian entities or individuals may be required to obtain prior approval from the Reserve Bank of India (RBI) before investing in certain foreign securities or assets.
There may be limits on the amount of foreign exchange that Indian entities or individuals can use for investment purposes.
There may be restrictions on the types of foreign securities or assets that Indian entities or individuals are allowed to invest in, such as certain industries or sectors considered sensitive or strategic.
There may be reporting requirements for Indian entities or individuals investing in foreign securities or assets, including the need to disclose the nature and value of the investment to the RBI.
Foreign investors may also be subject to certain restrictions or regulations under FEMA when investing in India, including obtaining prior approval from the RBI and certain reporting requirements.

Know your beneficiary

Under the Foreign Exchange Management Act (FEMA), the “know your beneficiary” (KYB) requirement is a due diligence measure that requires entities dealing with foreign currency to verify the identity and legitimacy of their clients or beneficiaries. It helps to ensure that foreign exchange transactions are being conducted with reputable and trustworthy parties and to prevent using foreign exchange for illegal or illicit purposes.

To comply with the KYB requirement, entities dealing with foreign currency must collect and verify certain information about their clients or beneficiaries, such as their name, address, contact details, and identification documents. They must also assess the purpose of the transaction and the source of the funds being used and ensure that the transaction is consistent with the client’s or beneficiary’s known business or financial activities.

Entities that fail to comply with the KYB requirement may face regulatory penalties or other consequences under FEMA. The KYB requirement is an important part of the act’s efforts to promote financial integrity and prevent money laundering.

Intermediary liability under FEMA

Under the Foreign Exchange Management Act (FEMA), intermediary liability refers to the legal responsibility of intermediaries, such as banks, brokers, or other financial institutions, for their clients or customers’ actions concerning foreign exchange transactions.

Intermediaries may be liable under FEMA for the actions of their clients or customers if they fail to comply with the act’s regulations or requirements or if they facilitate or assist in illegal or illicit foreign exchange transactions. It includes the requirement to verify their clients’ or beneficiaries’ identity and legitimacy through the “know your beneficiary” (KYB) process and the requirement to report suspicious or unusual transactions to the appropriate authorities.

Intermediaries may also be liable under FEMA for their actions or omissions concerning foreign exchange transactions if they fail to comply with the act’s regulations or requirements or engage in illegal or illicit activities.

Overall, the concept of intermediary liability under FEMA is intended to ensure that intermediaries are held accountable for their clients’ or customers’ actions and to prevent foreign exchange used for illegal or illicit purposes.

Reporting and disclosure obligations under FEMA

Under the Foreign Exchange Management Act (FEMA), entities dealing with foreign currency may have certain reporting and disclosure obligations. These obligations may vary depending on the nature of the transaction and the type of entity involved.

Financial institutions, such as banks and insurance companies, may be required to report certain foreign exchange transactions to the Reserve Bank of India (RBI) or other regulatory authorities. It may include disclosing the transaction’s nature and value and the parties’ identity.
Commodity exchanges may be required to report certain foreign exchange transactions to the RBI or other regulatory authorities. It may include disclosing the transaction’s nature and value and the parties’ identity.
Individuals engaged in market making or dealing in derivatives contracts may be required to report certain foreign exchange transactions to the RBI or other regulatory authorities. It may include disclosing the transaction’s nature and value and the parties’ identity.
Spot foreign exchange traders may be required to report certain foreign exchange transactions to the RBI or other regulatory authorities. It may include the need to disclose the nature and value of the transaction and the identity of the parties involved.

Overall, the reporting and disclosure obligations under FEMA are intended to ensure transparency and accountability in foreign exchange transactions and to prevent the use of foreign exchange for illegal or illicit purposes.

Trading activities under FEMA

Under the Foreign Exchange Management Act (FEMA), trading activities refer to the buying and selling of foreign currency or other financial instruments to make a profit. It may include spot foreign exchange trading, which involves the immediate purchase and sale of foreign currency for delivery within two business days, or derivatives trading, which involves the buying and selling of contracts based on the future value of an underlying asset, such as a currency, commodity, or index. To ensure the stability and integrity of the foreign exchange market, FEMA may also regulate margin requirements for trading activities. It means traders may be required to maintain a certain level of collateral or security to cover potential trade losses.

FEMA regulates various trading activities to prevent the foreign exchange from being used for illegal or illicit purposes. It includes regulating financial institutions, commodity exchanges, individuals engaged in market making or dealing in derivatives contracts, and spot foreign exchange traders. These entities may be required to comply with certain regulations or requirements under FEMA, such as obtaining prior approval from the Reserve Bank of India (RBI) or reporting suspicious or unusual transactions.

Overall, the regulation of trading activities and margin requirements under FEMA is intended to promote financial stability and integrity and to protect the interests of investors and other stakeholders in the foreign exchange market.

Registration under FEMA

Under the Foreign Exchange Management Act (FEMA), certain entities or individuals may be required to register with the Reserve Bank of India (RBI) to engage in certain foreign exchange activities. It may include financial institutions, commodity exchanges, individuals engaged in market making or dealing in derivatives contracts, and spot foreign exchange traders.

To register under FEMA, entities or individuals must apply to the RBI, along with supporting documentation such as proof of identity, business or professional qualifications, and other relevant information. The RBI will review the application and may grant or deny a registration based on the entity’s or individual’s compliance with the act’s regulations and requirements.

Entities or individuals registered under FEMA may be subject to ongoing reporting and disclosure requirements and other regulations and requirements related to their foreign exchange activities.

Overall, the registration process under FEMA is intended to ensure that entities and individuals engaged in foreign exchange activities are operating legally and transparently and to protect the interests of investors and other stakeholders in the foreign exchange market.

Obligations of registered entities

Under the Foreign Exchange Management Act (FEMA), entities or individuals registered with the Reserve Bank of India (RBI) to engage in certain foreign exchange activities may be subject to certain obligations and requirements. These may include:

Reporting and disclosure obligations: Registered entities may be required to report certain foreign exchange transactions to the RBI or other regulatory authorities, including the nature and value of the transaction and the identity of the parties involved.
Compliance with regulations and requirements: Registered entities must comply with all regulations and requirements under FEMA that apply to their foreign exchange activities. It may include obtaining prior approval for certain transactions or following certain processes and procedures to ensure compliance with the act.
Know your beneficiary (KYB) requirements: Registered entities must verify the identity and legitimacy of their clients or beneficiaries through the KYB process to ensure that foreign exchange transactions are being conducted with reputable and trustworthy parties and to prevent the use of foreign exchange for illegal or illicit purposes.
Intermediary liability: Registered entities may be liable under FEMA for the actions of their clients or customers if they fail to comply with the act’s regulations or requirements or if they facilitate or assist in illegal or illicit foreign exchange transactions.

Overall, the obligations of registered entities under FEMA are intended to ensure that they are operating legally and transparently and to protect the interests of investors and other stakeholders in the foreign exchange market.

Seizure and disposal of assets under FEMA

Under the Foreign Exchange Management Act (FEMA), the Reserve Bank of India (RBI) or any other authority designated by the RBI has the authority to seize and dispose of assets in certain circumstances. It may include assets that have been acquired through illegal or unauthorised foreign exchange transactions or assets that are being used to facilitate such transactions. Assets that may be seized under FEMA include foreign currency, gold, securities, and other assets that are related to foreign exchange transactions. The RBI or other designated authority has the power to seize and dispose of assets through various means, including selling the assets at public auction or through private sale to interested buyers. Proceeds from the seizure and disposal of assets are typically used to reimburse any damages or losses that may have resulted from illegal or unauthorised foreign exchange transactions. Any remaining funds may be returned to the assets owner if appropriate. To seize and dispose of assets under FEMA, the RBI or other designated authority must follow certain procedures, including giving notice to the owner of the assets and providing an opportunity for the owner to contest the seizure.

Penalties for non-compliance with provisions of FEMA

Under the Foreign Exchange Management Act (FEMA), several penalties for non-compliance with the act’s provisions may be imposed. These penalties may vary depending on the nature and severity of the non-compliance.

Monetary penalties: The RBI or other designated authority may impose monetary penalties on individuals or entities that fail to comply with the provisions of FEMA. These penalties may be based on the amount of foreign exchange involved in the non-compliant transaction or maybe a fixed amount.
Civil penalties: In addition to monetary penalties, individuals or entities that fail to comply with FEMA may also be subject to civil penalties, including fines, injunctions, and other remedies.
Criminal penalties: In severe cases of non-compliance, individuals or entities may be subject to criminal penalties under FEMA, including imprisonment and fines.
Seizure and disposal of assets: In cases where assets have been acquired through illegal or unauthorised foreign exchange transactions or are used to facilitate such transactions, the RBI or other designated authority may seize and dispose of these assets.
Other penalties: In addition to the penalties listed above, individuals or entities that fail to comply with FEMA may also be subject to other penalties, such as blacklisting, suspension or revocation of licenses, and other remedial actions.

Functions of the Exchange Control Department

The Exchange Control Department is a division of the Reserve Bank of India (RBI) responsible for implementing and enforcing the Foreign Exchange Management Act (FEMA) provisions. The main functions of the Exchange Control Department are as follows:

Issuing guidelines and instructions for the regulation of foreign exchange transactions.
Reviewing and approving applications for foreign exchange transactions, including investments, loans, and the purchase or sale of assets.
Monitoring and enforcing compliance with the provisions of FEMA, including the detection and prevention of illegal or unauthorised foreign exchange transactions.
Investigating and taking enforcement action against individuals or entities that fail to comply with the provisions of FEMA, including imposing monetary penalties, civil penalties, and criminal penalties.
Providing guidance and assistance to individuals and entities seeking to engage in foreign exchange transactions in accordance with the provisions of FEMA.
Maintaining records and data related to foreign exchange transactions, including issuing reports and statistics.
Collaborating with other government agencies and international organizations to ensure the smooth and effective regulation of foreign exchange transactions.

Reporting and surveillance by FCRA officers

Under the Foreign Exchange Management Act (FEMA) and the Foreign Contributions Regulation Act (FCRA), individuals or entities that engage in foreign exchange transactions or receive foreign contributions are required to report certain information to the Reserve Bank of India (RBI) or other designated authorities. These reporting requirements are in place to ensure compliance with these acts’ provisions and prevent illegal or unauthorized activities.

Under FEMA, individuals or entities that engage in foreign exchange transactions, including investments, loans, and the purchase or sale of assets, must report certain information to the RBI or other designated authorities. It may include the nature and value of the transaction, the parties involved, and any other relevant details.
Under FCRA, individuals or entities receiving foreign contributions, including donations, grants, and other forms of financial support, must report certain information to the RBI or other designated authorities. It may include the source of the contribution, the purpose of the contribution, and any other relevant details.
The RBI or other designated authorities are responsible for conducting surveillance and monitoring activities to ensure compliance with the reporting requirements of FEMA and FCRA. It may include reviewing reports, conducting audits and investigations, and taking enforcement action against individuals or entities that fail to comply with the provisions of these acts.

Definition of Specified Foreign Financial Institutions (SFIs)

Specified Foreign Financial Institutions (SFFIs) are financial institutions or other entities that are located outside of India and are designated by the Reserve Bank of India (RBI) as being subject to certain regulations or restrictions under the Foreign Exchange Management Act (FEMA).

SFFIs may include banks, insurance companies, investment firms, and other financial institutions that operate in foreign countries.
The RBI may designate certain SFFIs as subject to certain regulations or restrictions under FEMA to protect the interests of Indian investors, ensure compliance with anti-money laundering and counter-terrorism financing laws, or for other reasons.
SFFIs may be required to comply with certain reporting requirements, obtain prior approval from the RBI before engaging in certain transactions, or adhere to other regulations or restrictions specified by the RBI.
The designation of an SFFI under FEMA may be temporary or permanent, subject to review and revision by the RBI.

Notification requirements for SFIs

Specified Foreign Institutions (SFIs) are entities that are located outside of India and are designated by the Reserve Bank of India (RBI) as being subject to certain regulations or restrictions under the Foreign Exchange Management Act (FEMA).

SFIs may include banks, insurance companies, investment firms, and other financial institutions that operate in foreign countries.
The RBI may designate certain SFIs as subject to certain regulations or restrictions under FEMA to protect the interests of Indian investors, ensure compliance with anti-money laundering and counter-terrorism financing laws, or for other reasons.
SFIs are required to notify the RBI of any transactions or activities that are subject to the provisions of FEMA. It may include the nature and value of the transaction, the parties involved, and any other relevant details.
The RBI may also require SFIs to provide additional information or documentation to ensure compliance with the provisions of FEMA.
Failure to comply with the notification requirements for SFIs may result in penalties, including monetary, civil, and criminal penalties.

Anti-money laundering and counter-terrorist financing (AML&C) obligations of SFIs

Specified Foreign Institutions (SFIs) are required to comply with certain anti-money laundering and counter-terrorism financing (AML/CFT) obligations under the Foreign Exchange Management Act (FEMA). These obligations are in place to prevent the use of SFIs for illegal or unauthorised activities, such as money laundering or financing terrorism.

SFIs must implement and maintain appropriate AML/CFT policies and procedures, including customer due diligence measures, record-keeping requirements, and internal reporting procedures.
SFIs must report suspicious activities or transactions to the Reserve Bank of India (RBI) or other designated authorities.
SFIs must cooperate with the RBI and other designated authorities to investigate and prosecute money laundering and terrorism financing offences.
SFIs may require additional information or documentation from the RBI or other designated authorities to demonstrate compliance with AML/CFT obligations.
Failure to comply with AML/CFT obligations may result in monetary, civil, and criminal penalties.

Conclusion

In conclusion, the Foreign Exchange Management Act (FEMA) is a key legislation designed to regulate and control foreign exchange transactions in India. It covers a wide range of activities, including external trade transactions, investments, loans, and the purchase or sale of assets. FEMA also aims to protect the interests of Indian investors, prevent money laundering and terrorist financing, and ensure compliance with tax and regulatory requirements. The Exchange Control Department of the Reserve Bank of India (RBI) is responsible for implementing and enforcing the provisions of FEMA, including issuing guidelines, approving transactions, and conducting surveillance and enforcement activities. Non-compliance with the provisions of FEMA may result in penalties, including monetary fines, civil penalties, and criminal penalties. Individuals and entities need to understand and comply with the provisions of FEMA to avoid any potential legal or regulatory consequences.