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SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 1992
15 of 1992
An Act to provide for the establishment of a Board to protect the interest of investors in securities and to promote the development of, and to regulate, the securities market and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Forty-third Year of the Republic of India as follows:-
CHAPTER 1 PRELIMINARY
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called the Securities and Exchange Board of India Act, 1992.
(2) It extends to the whole of India.
(3) It shall be deemed to have come into force on the 30th day of January, 1992.
SECTION 02: DEFINITIONS
(1) In this Act, unless the context otherwise requires,-
(a) "Board" means the Securities and Exchange Board of India established under section 3-;
(b) "Chairman" means the Chairman of the Board;
1(ba) "collective investment scheme" means any scheme or arrangement which satisfies the conditions specified in section IIAA;
(c) "existing Securities and Exchange Board" means the Securities and Exchange Board of India constituted under the Resolution of the Government of India in the Department of Economic Affairs No. 1(44) SE/86, dated the 12th day of April, 1988;
(d) "Fund" means the Fund constituted under section 14-;
(e) "member" means a member of the Board and includes the Chairman;
(f) "notification" means a notification published in the Official Gazette;
(g) "prescribed" means prescribed by rules made under this Act;
(h) "regulations" means the regulations made by the Board under this Act;
2(ha) "Reserve Bank" means the Reserve Bank of India constituted under Section 3 of the Reserve Bank of India Act, 1934 (2 of 1934).
(i) "securities" has the meaning assigned to it in section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).
3[(2) Words and expressions used and not defined in this Act but defined in the Securities Contracts (Regulation) Act, 1956 (42 of 1956)2[or the Depositories Act, 1996], shall have the meanings respectively assigned to them in that Act.]
CHAPTER 2 ESTABLISHMENT OF THE SECURITIES AND EXCHANGE
BOARD OF INDIA
SECTION 03: ESTABLISHMENT AND INCORPORATION OF BOARD
(1) With effect from such date as the Central Government may, by notifica- tion, appoint, there shall be established, for the purposes of this Act, a Board by the name of the Securities and Exchange Board of India.
(2) 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.
(3) The head office of the Board shall be at Bombay.
(4) The Board may establish offices at other places in India.
SECTION 04: MANAGEMENT OF THE BOARD
(1) The Board shall consist of the following members, namely:-
(a) a Chairman;
(b) two members from amongst the officials of the 4["Ministry"] of the Central Government dealing with Finance5["and administration of the Companies Act, 1956(1 of 1956)"];
(c) one member from amongst the officials of the Reserve Bank of India constituted under section 3 of6["the Reserve Bank"] ;
7(d) five other members of whom at least three shall be the whole-time members,
(2) The general superintendence, direction and management of the affairs of the Board shall vest in a Board of members, which may exercise all powers and do all acts and things which may be exercised or done by the Board.
(3) Save as otherwise determined by regulations, the Chairman shall also have powers of general superintendence and direction of the affairs of the Board and may also exercise all powers and do all acts and things which may be exercised or done by that Board.
(4) The Chairman and members referred to in clauses
(a) and (d) of sub-section (1) shall be appointed by the Central Government and the members referred to in clauses
(b) and (c) of that sub-section shall be nominated by the Central Government and the8["Reserve Bank"] respectively.
(5) The Chairman and the other members referred to in clauses (a) and (d) of sub-section (1) shall be persons of ability, integrity and standing who have shown capacity in dealing with problems relating to securities market or have special knowledge or experience of law, finance, economics, accountancy, administration or in any other discipline which, in the opinion of the Central Government, shall be useful to the Board.
SECTION 05: TERM OF OFFICE AND CONDITIONS OF SERVICE OF CHAIRMAN AND MEMBERS OF THE BOARD
(1) The term of office and other conditions of service of the Chairman and the members referred to in clause (d) of sub-section (1) of section 4-shall be such as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), the Central Government shall have the right to terminate the services of the Chairman or a member appointed under clause (d) of sub-section (1) of section 4-, at any time before the expiry of the period prescribed under sub-section (1), by giving him notice of not less than three months in writing or three months' salary and allowances in lieu thereof, and the Chairman or a member, as the case may be, shall also have the right to relinquish his office, at any time before the expiry of the period prescribed under sub-section (1), by giving to the Central Government notice of not less than three months in writing.
SECTION 06: REMOVAL OF MEMBER FROM OFFICE
9[***].The Central Government shall remove a member from office if he-
(a) is, or at any time has been, adjudicated as insolvent;
(b) is of unsound mind, and stands so declared by a competent court;
(c) has been convicted of an offence which, in the opinion of the Central Government, involves a moral turpitude;
(d)10[***]
(e) has, in the opinion of the Central Government, so abused his position as to render his continuation in office detrimental to the public interest : Provided that no member shall be removed under this clause unless he has been given a reasonable opportunity of being heard in the matter.
SECTION 07: MEETINGS
(1) The Board shall meet at such times and places, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including quorum at such meetings) as may be provided by regulations.
(2) The Chairman or, if for any reason, he is unable to attend a meeting of the Board, any other member chosen by the members present from amongst themselves at the meeting shall preside at the meeting.
(3) All questions which come up before any meeting of the Board shall be decided by a majority, votes of the members present and voting, and, in the event of an equality of votes, the Chairman, or in his absence, the person presiding, shall have a second or casting vote.
SECTION 07A: MEMBER NOT TO PARTICIPATE IN MEETINGS IN CERTAIN CASES
Any member, -who is a director of a company and who as such director has any direct or indirect pecuniary interest in any matter coming up for consideration at a meeting of the Board, shall, as soon as possible after relevant circumstances have come to his knowledge, disclose the nature of his interest at such meeting and such disclosure shall be recorded in the proceedings of the Board, and the member shall not take any part in any deliberation or decision of the Board with respect to that matter.]
SECTION 08: VACANCIES, ETC., NOT TO INVALIDATE PROCEEDINGS OF BOARD
Not act or proceeding of the board shall be invalid merely by reason of
(a) any vacancy in, or any defect in the constitution of, the Board; or
(b) any defect in the appointment of a person acting as a member of the Board; or
(c) any irregularity in the procedure of the Board not affecting the merits of the case.
SECTION 09: OFFICERS AND EMPLOYEES OF THE BOARD
(1) The Board may appoint such other officers and employees at it considers necessary for the efficient discharge of its functions under this Act.
(2) The term and other conditions of service of officers and employees of the Board appointed under sub-section (1) shall be such as may be determined by regulations.
CHAPTER 03: TRANSFER OF ASSETS, LIABILITIES, ETC., OF THE
EXISTING SECURITIES AND EXCHANGE BOARD TO THE BOARD
SECTION 10: TRANSFER OF ASSETS, LIABILITIES, ETC., OF EXISTING SECURITIES AND EXCHANGE BOARD TO THE BOARD
(1) On and from the date of establishment of the Board,-
(a) any reference to the existing Securities and Exchange Board in any law other than this Act or in any contract or other instrument shall be deemed as a reference to the Board;
( b) all properties and assets, movable and immovable, of, or belonging to, the existing Securities and Exchange Board, shall vest in the Board;
( c) all rights and liabilities of the existing Securities and Exchange Board shall be transferred to, and be the rights and liabilities of, the Board;
(d) without prejudice to the provisions of clause ( c), all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the existing Securities and Exchange Board immediately before that date, for or in connection with the purpose of the said existing Board shall be deemed to have been incurred, entered into, or engaged to be done by, with or, for, the Board;
(e) all sums of money due to the existing Securities and Exchange Board immediately before that date shall be deemed to be due to the Board;
(f) all suits and other legal proceedings instituted or which could have been instituted by or against the existing Securities and Exchange Board immediately before that date may be continued or may be instituted by or against the Board; and
(g) every employee holding any office under the existing Securities and Exchange Board immediately before that date shall hold his office in the Board by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement and other terminal benefits as he would have held such office if the Board had not been established and shall continue to do so as an employee of the Board or until the expiry of the period of six months from that date if such employee opts not to be the employee of the Board within such period.
(2) Notwithstanding anything contained inthe Industrial Disputes Act, 1947 (14 of 1947), or in any other law for the time being in force, absorption of any employee by the Board in its regular service under this section shall not entitle such employee to any compensation under that Act or other law and no such claim shall be entertained by any Court, Tribunal or other authority.
CHAPTER 04 POWERS AND FUNCTIONS OF THE BOARD
SECTION 11: FUNCTIONS OF BOARD
(1) Subject to the provisions of this Act, it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit.
(2) Without prejudice to the generality of the foregoing provisions, the measures referred to therein may provide for-
(a) regulating the business in stock exchanges and any other securities markets;
12(i-a) calling for information and record from any bank or any other authority or board or corporation established or constituted by or under any Central, State or Provincial Act in respect of any transaction in securities which are under investigation or inquiry by the Board;
(b) registering and regulating the working of stock brokers, sub-brokers, share transfer agents, bankers to an issue, trustees of trust deeds, registrars to an issue, merchant bankers, underwriters, portfolio managers, investment advisers and such other intermediaries who may be associated with securities markets in any manner;
13[(ba) registering and regulating the working of the depositories14[, participants], custodians of securities, foreign institutional investors, credit rating agencies and such other intermediaries as the Board may, by notification, specify in this behalf;]
(c) registering and regulating the working of15[venture capital funds and collective investment schemes], including mutual funds;
(d) promoting and regulating self-regulatory organisations;
(e) prohibiting fraudulent and unfair trade practices relating to securities markets;
(f) promoting investors' education and training of intermediaries of securities markets;
(g) prohibiting insider trading in securities;
(h) regulating substantial acquisition of shares and take-over of companies;
(i) calling for information from, undertaking inspection, conducting inquiries and audits of the16[stock exchanges, mutual funds, other persons associated with the securities market] intermediaries and self-regulatory organisations in the securities market;
(j) performing such functions and exercising such powers under the provisions of17[***]the Securities Contracts (Regulation) Act, 1956 (42 of 1956), as may be delegated to it by the Central Government;
(k) levying fees or other charges for carrying out the purposes of this section;
(l) conducting research for the above purposes;
18[(la) calling from or furnishing to any such agencies, as may be specified by the Board, such information as may be considered necessary by it for the efficient discharge of its functions;]
(m) performing such other functions as may be prescribed.
19(2A) Without prejudice to the provisions contained in sub-section (2), the Board may take measures to undertake inspection of any book, or register, or other document or record of any listed public company or a public company (not being intermediaries referred to in Section 12) which intends to get its securities listed on any recognised stock exchange where the Board has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market.
18[(3) Notwithstanding anything contained in any other law for the time being in force while exercising the powers under 21["clause (i) or clause (i-a) of sub-section (2) or sub-section (2-A)"] , the Board shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:-
(i) the discovery and production of books of account and other documents, at such place and such time as may be specified by the Board;
(ii) summoning and enforcing the attendance of persons and examining them on oath;
(iii) inspection of any books, registers and other documents of any person referred to in section 12-, at any place.]
22(iv) inspection of any book, or register, or other document or record of the company referred to in sub-section (2-A);
22(v) issuing commissions for the examination of witnesses or documents.
23(4) Without prejudice to the provisions contained in sub-sections (1). (2), (2-A) and (3) and Section 11-B, the Board may, by an order, for reasons to be recorded in writing, in the interests of investors or securities market, take any of the following measures, either pending investigation or inquiry or on completion of such investigation or inquiry,
namely:—
(a) suspend the trading of any security in a recognised stock exchange;
(b) restrain persons from accessing the securities market and prohibit any person associated with securities market to buy, sell or deal in securities;
(c) suspend any office-bearer of any stock exchange or self-regulatory organisation from holding such position;
(d) impound and retain the proceeds or securities in respect of any transaction which is under investigation;
(e) attach, after passing of an order on an application made for approval by the Judicial Magistrate of first class having jurisdiction, for a period not exceeding one month, one or more bank account or accounts of any intermediary or any person associated with the securities market in any manner involved in violation of any of the provisions of this Act, or the rules or the regulations made thereunder:
Provided that only the bank account or accounts or any transaction entered therein, so far as it relates to the proceeds actually involved in violation of any of the provisions of this Act, or the rules or the regulations made thereunder shall be allowed to be attached;
(f) direct any intermediary or any person associated with the securities market in any manner not to dispose of or alienate an asset forming part of any transaction which is under investigation : has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market:
Provided further that the Board shall, either before or after passing such orders, give an opportunity of hearing to such intermediaries or persons concerned."
Provided that the Board may, without prejudice to the provisions contained in sub-section (2) or sub-section (2-A), take any of the measures specified in clause (d) or clause (e) or clause (f), in respect of any listed public company or a public company (not being intermediaries referred to in Section 12) which intends to get its securities listed on any recognised stock exchange where the Board
SECTION 11A: MATTERS TO BE DISCLOSED BY THE COMPANIES
24 Without prejudice to the provisions of the Companies Act, 1956 (1 of 1956), the Board may, for the protection of investors, specify, by regulations,-
(a) the matters relating to issue of capital, transfer of securities and other matters incidental thereto; and
(b) the manner in which such matters, shall be disclosed by the companies.
SECTION 11AA: COLLECTIVE INVESTMENT SCHEME
28 -
(1) Any scheme or arrangement which satisfies the conditions referred to in sub-section (2) shall be a collective investment scheme.
(2) Any scheme or arrangement made or offered by any company under which,-
(i) the contributions, or payments made by the investors, by whatever name called, are pooled and utilized for the purposes of the scheme or arrangement;
(ii) 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;
(iii) the property, contribution or investment forming part of scheme or arrangement, whether identifiable or not, is managed on behalf of the investors;
(iv) the investors do not have day-to-day control over the management and operation of the scheme or arrangement. .
(3) Notwithstanding anything contained in sub-section (2), any scheme or arrangement-
(i) made or offered by a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or a society being a society registered or deemed to be registered under any law relating to co-operative societies for the time being in force in any State;
(ii) under which deposits are accepted by non-banking Financial companies as defined in clause (f) of section 45-1 of the Reserve Bank of India Act, 1934 (2 of 1934);
(iii) being a contract of insurance to which the Insurance Act, 1938, applies;
(iv) providing for any scheme, pension scheme or the insurance scheme framed under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952);
(v) under which deposits are accepted under section 58A of the Companies Act, 1956 (1 of 1956);
(vi) 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);
(vii) falling within the meaning of chit business as defined in clause . (e) of section 2 of the Chit Funds Act, 1982 (40 of 1982);
(viii) under which contributions made are in the nature of subscription to a mutual fund; shall not be a collective investment scheme.
SECTION 11B: POWER TO ISSUE DIRECTIONS
Save as otherwise provided in section 11-, if after making or causing to be made an enquiry, the Board is satisfied that it is necessary-
(i) in the interest of investors, or orderly development of securities market; or
(ii) to prevent the affairs of any intermediary or other persons referred to in section 12-being conducted in a manner detrimental to the interests of investors or securities market: or
(iii) to secure the proper management of any such intermediary or person, it may issue such directions,-
(a) to any person or class of persons referred to in section 12-, or associated with the securities market; or
(b) to any company in respect of matters specified insection 11A-, as may be appropriate in the interests of investors in securities and the securities market.]
SECTION 11C: INVESTIGATION
27
(1) Where the Board has reasonable ground to believe that—
(a) the transactions in securities are being dealt with in a manner detrimental to the investors or the securities market; or
(b) any intermediary or any person associated with the securities market has violated any of the provisions of this Act or the rules or the regulations made or directions issued by the Board thereunder, it may, at any time by order in writing, direct any person (hereafter in this section referred to as the Investigating Authority) specified in the order to investigate the affairs of such intermediary or persons associated with the securities market and to report thereon to the Board.
(2) Without prejudice to the provisions of Sections 235 to 241 of the Companies Act, 1956 (1 of 1956), it shall be the duty of every manager, managing director, officer and other employee of the company and every intermediary referred to in Section 12 or every person associated with the securities market to preserve and to produce to the Investigating Authority or any person authorised by it in this behalf, all the books, registers, other documents and record of, or relating to, the company or, as the case may be, of or relating to, the intermediary or such person, which are in their custody or power.
(3) The Investigating Authority may require any intermediary or any person associated with securities market in any manner to furnish such information to, or produce such books, or registers, or other documents, or record before it or any person authorised by it in this behalf as it may consider necessary if the furnishing of such information or the production of such books, or registers, or other documents, or record is relevant or necessary for the purposes of its investigation.
(4) The Investigating Authority may keep in its custody any books, registers, other documents and record produced under sub-section (2) or sub-section (3) for six months and thereafter shall return the same to any intermediary or any person associated with securities market by whom or on whose behalf the books, registers, other documents and record are produced :
Provided that the Investigating Authority may call for any book, register, other document and record if they are needed again:
Provided further that if the person on whose behalf the books, registers, other documents and record are produced requires certified copies of the books, registers. other documents and record produced before the Investigating Authority, it shall give certified copies of such books, registers, other documents and record to such person or on whose behalf the books, registers, other documents and record were produced.
(5) Any person, directed to make an investigation under sub-section (1), may examine on oath, any manager, managing director, officer and other employee of any intermediary or any person associated with securities market in any manner, in relation to the affairs of his business and may administer an oath accordingly and for that purpose may require any of those persons to appear before him personally.
(6) If any person fails without reasonable cause or refuses—
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