Supreme Court on “Market Abuse”

In a judgment
delivered last Friday, the Supreme Court came down heavily on “market abuse”
not just on the case at hand but more generally on the practice to the extent
prevalent in India.
The case, N. Narayanan
v. Adjudicating Officer, SEBI
, arose in the form of an appeal from the
Securities Appellate Tribunal (SAT) in relation to the appellant who was the
whole time director of Pyramid Saimara Theatre Limited (PSTL). The SAT had
confirmed an order of the Securities and Exchange Board of India (SEBI)
restraining the appellant from dealing in securities for a period of 2 years
and also an order of the adjudicating officer of SEBI imposing a monetary
penalty of Rs. 50 lacs  on the appellant.
These orders were in connection with the violation of section 12A of the SEBI Act
as well as relevant provisions of the SEBI (Prohibition of Fraudulent and Unfair
Trade Practice Relating to Securities Market) Regulations, 2003. It was found
that the financial results of the company as disclosed to the stock exchanges
were inflated and that they did not represent the true and fair state of
affairs of the company. This maintained the stock price of the company high and
enabled certain shareholders to raise financing by pledging of shares.
In an
unequivocal decision, the Supreme Court upheld the orders of  SEBI and the adjudicating officer and found
the appellant guilty of violating the SEBI Act as well as the 2003 Regulations.
The court found the existence of the required facts that support the holding
that the appellant was guilty of violating the requisite provisions of the law.
While the judgment
does not appear to lay down any new principles of law, it does place tremendous
emphasis on the importance of efficient capital markets that require a strict
disclosure regime. The judgment also seems to lament about the current state of
affairs regarding regulation of the capital markets through a proper disclosure
regime.
Three points
emerging from the Supreme Court’s decision are noteworthy:
1.  The first is the need for efficient
capital markets with a strict disclosure regime
. The court noted that where
shares of a company are quoted on the stock exchange, it is crucial to have proper
disclosure of information for accurate pricing of the companies securities and
for the efficient operation of the capital markets. It also noted the
prevalence of market abuse in India:
10. … “market
abuse” has now become a common practice in the India’ security market and, if
not properly curbed, the same would result in defeating the very object and
purpose of SEBI Act which is intended to protect the interests of investors in
securities and to promote the development of securities market. …
This must also
be read with the information requirements under the Companies Act, wherein the
books of accounts of the company must be maintained so as to provide a true and
fair view of the state of affairs of the company and also to explain
significant transactions. This is also consistent with the corporate governance
requirements under the listing agreement.
2. Given the
court’s view of the prevalence of market abuse in India, it has called for
strict measures to be applied and for more stringent enforcement by the
regulator. The court’s “word of caution” or one might say a stern
warning can be witnessed in the court’s own words:
43. SEBI,
the market regulator, has to deal sternly with companies and their Directors
indulging in manipulative and deceptive devices, insider trading etc. or else
they will be failing in their duty to promote orderly and healthy growth of the
Securities market. Economic offence, people of this country should know, is a
serious crime which, if not properly dealt with, as it should be, will affect
not only country’s economic growth, but also slow the inflow of foreign
investment by genuine investors and also casts a slur on India’s securities
market. Message should go that our country will not tolerate “market abuse” and
that we are governed by the “Rule of Law”. Fraud, deceit, artificiality, SEBI
should ensure, have no place in the securities market of this country and
‘market security’ is our motto. People with power and money and in management
of the companies, unfortunately often command more respect in our society than
the subscribers and investors in their companies. Companies are thriving with
investors’ contributions but they are a divided lot. SEBI has, therefore, a
duty to protect investors, individual and collective, against opportunistic
behavior of Directors and Insiders of the listed companies so as to safeguard
market’s integrity.
3. The court
has re-emphasised the principles applicable towards directors’ liability.  In this particular case, the appellant raised
an argument that although he was a whole-time director of the company, he was
only in charge of the human resources department, and was therefore not
responsible for the other affairs of the company, including financial matters
which were under the overall control of the managing director. The Supreme
Court rejected this argument outright. All directors carry the responsibility
to ensure that the books of accounts of the company represent a true and fair
view of the financial state of the company. That responsibility cannot be
passed on either to other directors or even to the auditors of the company. The
level of onus laid down by the Supreme Court is as follows:
33. … a
Director may be shown to be placed and to have been so closely and so long
associated personally with the management of the company that he will be deemed
to be not merely cognizant of but liable for fraud in the conduct of business
of the company even though no specific act of dishonesty is provide against him
personally. He cannot shut his eyes to what must be obvious to everyone who
examines the affairs of the company even superficially.
34. The
facts in this case clearly reveal that the Directors of the company in question
had failed in their duty to exercise due care and diligence and allowed the
company to fabricate the figures and making false disclosures. Facts indicate
that they have overlooked the numerous red flags in the revenues, profits,
receivables, deposits etc. which should not have escaped the attention of a
prudent person.
This clearly
suggests that directors cannot simply turn a blind eye to the goings on in the
company. That apart, the directors appear to have a positive obligation to seek
further information and raise further questions once a red flag becomes
visible. While this high burden seems to be applicable to an executive
director, as was the case on the present facts, it is unlikely that a non-executive
director’s burden would be substantially lower than this especially in the
presence of a red flag situation. Of course, the present case must be read in
the context of executive directors only, but it certainly suggests the attitude
of the courts towards duties and liabilities of directors of public listed
company.

In all, while the Supreme
Court’s decision is based on the facts and circumstances of the specific case
and does not lay down any new principle of law, there is overwhelming evidence
of the intention of the court to stringently apply securities laws such that
the efficiency of the capital markets be maintained. While the Supreme Court
does send a message to SEBI, a lot would depend not only on the availability of
resources to enable the regulator to carry on a more enhanced role, but it
would also depend on the robustness of various laws, particularly the procedural
laws, that would equip it to carry on its mandate in an effective manner. One
example of this is the high burden of proof that SEBI is expected to discharge
in insider trading cases, which it has only been partially successful in
discharging on average.    

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

2 comments

  • Very interesting post. Glad to note the penal provisions in the Bill, as well as their mandatory nature highlighted. The more we get rid of discretionary power in as many walks of life as we can, the better it is for the dispensation of justice at various stages. Puzzled a bit about the concerns expressed on the severity of provisions. Reminds me of the human rights sympathies for the criminal killers for getting the rights of the victims. Just as an example, consider the alleged frauds in the recent Saradha case and similar others; let's spare a thought for the victims who lost their all, and those who killed themselves. If proved, I think even the most severe punishment will be inadequate for the perpetrators. It need not be Hamurabi's eye for an eye but some thing close enough is perhaps required to deter potential fraudsters.
    Prof Bala

  • Thank you Prof Bala…

    I believe your comment relates to my post titled "Mandatory imprisonment under Companies Bill 2012" dated 29th April 2013 which has been made inadvertently here. Accordingly, I have reproduced your comment under that post and also given my reply there.

    – Jayant Thakur

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