Special leave petition in Supreme Court revives the matter of the controversial role of the SEBI board in exonerating CB Bhave’s role as NSDL chief in the IPO scam in 2006
After a publicity blitz hailing Chandrashekar B Bhave as the messiah of retail investors (not by Moneylife) and the best chairman of the Securities and Exchange Board of India (SEBI) we learn that the Supreme Court is asking questions about a big blot on SEBI's credibility, which large sections of the media chose to bury.
Hearing a special leave petition (SLP) 2801 of 2011, against a Delhi High Court order, a bench comprising Justice R V Raveendran and Justice A K Patnaik has asked SEBI to respond within two weeks, as to why the report of the Mohan Gopal-V Leeladhar Committee (comprising SEBI board members), in connection with the 2006 multiple-applications to IPO (initial public offerings) scam, was rejected outright.
Readers of Moneylife would recollect that although chairman CB Bhave had recused himself from issues related to the IPO scam, the entire board, led by whole-time directors appointed by him, had worked hard to ensure that every trace of the IPO scam, especially the indictment of the National Securities Depository Limited (NSDL) when Mr Bhave was its chairman, was expunged and erased (the Central Depository Services of India was a beneficiary of this protection to NSDL and also got away scot free). The orders of the committee were declared void based on an opinion of C Achutyan, former presiding officer of SAT.
(Read: The Curious Case of Suppressed Orders; What will SEBI decide today?; Sacrificing SEBI’s credibility to save NSDL; Reining in the Regulator )
According to a report in the Indian Express, the Supreme Court openly wondered why the report of a bench of the SEBI board was sidelined and ignored. The court was hearing an SLP filed by an NGO called the Social Action Forum For Manav Adhikar which has alleged that Mr Bhave showed "undue favours" to NSDL in the IPO 2006 scam issue. It has advocate Prashant Bhushan as its counsel. (Incidentally, a petition filed by the NGO before the Delhi High Court was dismissed and a cost of Rs50,000 imposed on it for unnecessary litigation.)
Yet, it is interesting to look at the questions of law raised by the petition, since it can have a big impact on the perception about how SEBI has functioned in the past three years under Mr Bhave's chairmanship. The SLP asks:
The petition further states that the Delhi High Court, "failed to appreciate that the SEBI board, may, without any legal authority, in an arbtirary and mala fide manner, usurp the powers of judicial review of quasi-judicial orders, which, under the SEBI Act, are subject only to review by SAT and the Supreme Court and High Courts under Articles 32, 226/227 respectively". And whether actions taken by SEBI in the exercise of judicial power were, in the words of Justice J S Verma (former chief justice of the Supreme Court) "a violation of established legal and constitutional principles".
The NGO requested the Supreme Court to direct SEBI to implement the orders issued by the committee and "order an investigation by an appropriate agency regarding various acts committed by CB Bhave in his capacity as chairman of SEBI so as to do undue favours to NSDL."
Now that the matter is in the Supreme Court, it will be interesting to see if the issue is buried once again. One thing, however, is clear-the main dramatis personae are no longer as powerful as they were under a chairman who was personally involved. Interestingly, Mr Bhave had once told this writer that SEBI has been and remains a chairman-led organisation. This was not clearly visible in its actions, when the chairman was ostensibly "ring-fenced" from the IPO scam-related issues.
(Read the complete orders of the SEBI board: http://www.sebi.gov.in/cmorder/NSDL-IPO.pdf and http://www.sebi.gov.in/cmorder/DSQSoftware.pdf)
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