74
                            CHAPTER-3
                                    THE SECURITIES AND EXCHANGE BOARD OF INDIA
                            -------------------------------------------------------------------------------------------
                            1. INTRODUCTION
                            The Securities and Exchange Board of India (SEBI) was constituted on 12 April
                            1988  as  a  non  statutory  body  through  an  administrative  Resolution  of  the
                            Government for dealing with all matters relating to development and regulation
                            of the Securities market and investor protection and to advise the government on
                            all  these  matters.  SEBI  was  given  statutory  status  and  powers  through  and
                            ordinance  promulgated  on  January  30,  1992.  SEBI  was  established  as  a
                            statutory body on 21 February 1992. The ordinance was replaced by an Act of
                            Parliament as 4th April 1992. The Preamble of SEBI Act, 1992 enshrines the
                            objectives of SEBI - to protect the interest of investor in securities market and
                            to  promote  the  development  of  and  to  regulate  the  securities  market. The
                            statutory  powers  and  functions  of  SEBI  were  strengthened  through  the
                            promulgation of the Securities Laws (Amendment) Ordinance on 25th January
                                                                                           84
                            1995, which was subsequently replaced by an Act of Parliament.
                                 Before SEBI Act, 1992, the three principal Acts governing the securities
                            market were: (a) the Capital Issues (Control) Act, 1947, which restricted
                            issuer's access to the securities market and controlled the pricing of issues;
                            (b)  the Companies Act, 1956, which sets out the code of conduct for the
                            corporate sector in relation to issue, allotment and transfer of securities, and
                            disclosures  to  be  made  in  public  issues;  and  (c)  the  Securities  Contracts
                            (Regulation)  Act,  1956,  which  provides  for  regulation  of  transactions  in
                            securities through control over stock exchanges. The Capital Issues (Control)
                            Act, 1947 had its origin during the war in 1943 when the objective was to
                            channel resources to support the war effort. The Act was retained with some
                            modifications as a means of controlling the raising of capital by companies
                            and to ensure that national resources were channelled into proper lines, i.e.,
                            84
                              working paper series no. 7: Price Discovery and Volatility on NSE future Market: By M T
                            Raju and Kiran Karnade.
                                                                  75
                            for desirable purposes to serve goals and priorities of the government, and to
                            protect the interests of investors. Under the Act, any firm wishing to issue
                            securities had to obtain approval from the Central Government, which also
                            determined the amount, type and price of the issue.
                                 Major  part  of  the  liberalisation  process  was  the  repeal  of  the  Capital
                            Issues (Control) Act, 1947 in May 1992. With this, Government's control over
                            issue of capital, pricing of the issues, fixing of premia and rates of interest on
                            debentures etc. ceased. The office which administered the Act was abolished
                            and the market was allowed to allocate resources to competing uses. However
                            to ensure effective regulation of the market, SEBI Act, 1992 was enacted to
                            empower  SEBI  with  statutory  powers  for  (a)  protecting  the  interests  of
                            investors in securities, (b) promoting the development of the securities market,
                            and  (c)  regulating  the  securities  market.  Its  regulatory  jurisdiction  extends
                            over corporate in the issuance of capital and transfer of securities, in addition
                            to all intermediaries and persons associated with securities market. SEBI can
                            specify the matters to be disclosed and the standards of disclosure required for
                            the  protection  of  investors  in  respect  of  issues;  can  issue  directions  to all
                            intermediaries and other persons associated with the securities market in the
                            interest of investors or of orderly development for securities market; and can
                            conduct  enquiries,  audits  and  inspection  of  all  concerned  and  adjudicate
                            offences under the Act. In short, it has been given necessary autonomy and
                            authority to regulate and develop an orderly securities market.
                            2. IMPORTANT DEFINITIONS UNDER THE ACT:-
                            (1) The Board - Board means the Securities and Exchange Board of India
                                                     85
                            established under the act . The Board shall be a body corporate by the name
                            aforesaid, having perpetual succession and a common seal, with power subject
                            to the provisions of this Act, to acquire, hold and dispose of property, both
                            movable and immovable, and to contract, and shall, by the said name, sue or
                            be sued.
                            This definition is analogous to section 34(2) of the Companies Act, 1956 and
                            like  a  company  incorporated  under  the  Companies  Act,  SEBI  is  a  body
                            85
                              "Act" means The Securities and Exchange Board of India Act, 1992
                                                                  76
                            corporate  but  unlike  a  company,  SEBI  does  not  have  corporators,  i.e.
                            shareholders. Apart from this attribute, SEBI has by virtue of sub section (2)
                            of this section, all the attributes of an incorporated company or corporation,
                            the chief one being independent legal entity. As per Companies Act, 1956,
                            Body corporate means - Body corporate of corporation includes a company
                            incorporated outside India but does not include -
                            (a) a corporation sole ;
                            (b)  a  co  operative  society  registered  under  any  law  relating  to  cooperative
                            societies ; and
                            (c) any other body corporate (not being a company as defined in this act),
                            which the Central Government may, by notification in the official Gazette,
                            specify in this behalf;
                                                                                                         86
                            In  State  Trading  Corporation  Vs  Commercial  Tax  officer  (1963)
                            Hidayatullah , J, defined the body corporate as : Unlike an unincorporated
                            company,  which  has  no  separate  existence  and  which  the  law  does  not
                            distinguished  from  its  members,  an  incorporated  company  has  a  separate
                            existence and the law recognizes it as a legal person separate and distinct from
                            its  members.  This  new  legal  personality  emerges  from  the  moment  of
                            incorporation and from that date the persons subscribing to the memorandum
                            of association and other persons joining as member are regarded as a body
                            corporate or a corporation aggregate  and the new person begins to function as
                            an entity.
                                                                87
                            (2) Collective investment scheme       - Any scheme or arrangement made or
                                offered by any company under which:-
                                a) the  contributions,  or  payments  made  by  the  investors,  by  whatever
                                    name called, are pooled and utilized solely for the purposes of the
                                    scheme or arrangement;
                                b) the contributions or payments are made to such scheme or arrangement
                                    by the investors with a view to receive profits, income, produce or
                                    property,  whether  movable  or  immovable  from  such  scheme  or
                                    arrangement;
                            86
                               1963, 33 comp case 1057(SC) : AIR 1963 SC 1811,
                            87
                              Section 11 AA , Inserted by the Securities Laws (Amendment) Act, 1999, w.e.f. 22-02-2002
                                                                  77
                                c) the  property, contribution  or  investment  forming  part  of  scheme  or
                                    arrangement, whether identifiable or not, is managed on behalf of the
                                    investors;
                                d) the investors do not have day to day control over the management and
                                    operation of the scheme or arrangement.
                            However, any scheme or arrangement shall not be a collective investment
                            scheme -
                                a) which made or offered by a co-operative society registered under the
                                    cooperative societies Act,1912 or a society being a society registered
                                    or  deemed  to  be  registered  under  any  law  relating  to  cooperative
                                    societies for the time being in force in any state;
                                b) under which deposits are accepted by non-banking financial companies
                                    as defined in clause (f) of section 45-I of the Reserve Bank of India
                                    Act, 1934;
                                c) being a contract of insurance to which the Insurance Act,1938, applies;
                                d) providing for any scheme, Pension Scheme or the Insurance Scheme
                                    framed  under  the  Employees  Provident  Fund  and  Miscellaneous
                                    Provisions Act, 1952;
                                e) under which deposits are accepted under section 58A of the Companies
                                    Act, 1956;
                                f)  under which deposits are accepted by a company declared as a Nidhi or
                                    a mutual benefit society under section 620A of the Companies Act,
                                    1956(1 of 1956);
                                g) falling within the meaning of Chit business as defined in clause (d) of
                                    section 2 of the Chit Fund Act, 1982;
                                h) under which contributions made are in the nature of subscription to a
                                    mutual fund;
                            (3) The existing Securities and Exchange Board- means the Securities and
                                Exchange  Board  of  India  constituted  under  the  Resolution  of  the
                                                                                            88
                                Government of India in the Department of Economic Affairs .
                            88
                              No.1 (44)SE/86, dated the 12th day of April, 1988;