Capital market plays an important role in maintaining the economic growth of the
country. Hence, it is important that there are regulations in this field. In
India, SEBI acts as the guardian and protects the interest of the investors and
protects the investors from any trade malpractices and market manipulations. It
also penalizes the corporations who involve in such malpractices. However there
are weaknesses that SEBI entails.
Introduction
Capital market is one of the markets that plays a crucial role in maintaining
the economic growth of the country. The legal framework governing the capital
market plays a crucial role in determining the market integrity. In this
context, in India, there comes various laws that governs the same.
Firstly the company law governs the issue of prospectus in the capital market.
As per section 26 he document invites the public at large to purchase share and
debenture. This basically ensures transparency to the prospective investors
which helps in maintaining the market integrity.
Now when it comes to companies act, section 23 talks about two methods of
raising capital. It basically classifies it on the basis of the type of company
which is private and public company. When it comes to private company, it can
raise capital by private placements, price issue and bonus issue. On the other
hand, for public company, the company raises capital by all the tree mentioned
above and additionally by public offer by IPO, FPO and Private Placements.
So a company can choose to raise capital by any of them as it is flexible in
nature. Hence, the section 23 of the companies act empowers the company to raise
capital. But at this point the jurisdiction of SEBI arises. Under section 24 of
the Companies act, the responsibility to extended to SEBI for the protection of
investor. Hence, SEBI ow acts as the guardian.
Jurisdiction of SEBI
To begin with, the jurisdiction of SEBI arises in two scenarios:
- Issue of securities
- Transfer of securities
The term securities has been hereby defined under section 2(h) of SCRA which
says that includes Shares, scrips, stocks, bonds, debentures, debenture stocks
etc. in or of any incorporated company or another body corporate. So, SEBI
basically regulates the issue and transfer of these securities. In this context
there are two regulations that come to play, which is SEBI ICDR and SEBI LODR
regulations.
SEBI ICDR deals with the issue of prospectus and disclosure requirements which
can be done at different places by issue of security by IPO, FPO, OFS and
private placements. Whereas, on the other hand, SEBI LODR regulation deals with
the listing obligations and disclosure.
So, the SEBI ICDR regulations provides comprehensive details about the guidline
od capital market. An issuer of specified securities must satisfy all
requirements for such issues in order to register or file the final offer
document with the Registrar of Companies (ROC) or designated stock exchange, as
applicable, and to submit the draft offer document to the Securities and
Exchange Board of India (SEBI).
Only if an issuer satisfies the following requirements prior to initiating a
rights offering or public offering of certain securities. It has been provided
in accordance with SEBI ICDR regulations section 26:
- Its promoters, directors, and individuals in charge were not, and are not, involved in the promotion, direction, or control of any other company that is barred from the capital market by any SEBI decision or directive.
- It has chosen one of the respectable stock exchanges to be the designated stock exchange and has applied to one or more of them for the listing of certain securities on those markets.
- In the event of an initial public offering (IPO), the issuer has filed an application to list specific securities on at least one respectable stock exchange with nationwide trading terminals.
- All of the issuer's partially paid-up equity shares that are presently outstanding have either been fully paid for or have been forfeited.
- Firm financial arrangements, excluding the amount to be raised, have been reached for 75% of the identified funding modalities through verifiable means, either through the intended rights issue or public issue or through clearly identifiable internal accruals that currently exist.
Further for listed entities, SEBI LODR regulation comes to play. The chapter 4
of the regulation deals with the same. It says once a company is listed the
corporation must choose a company secretary who would coordinate with and inform
SEBI, accredited stock exchanges, and depositories on adherence to their
policies, guidelines, and other directives (in the format that may be updated
periodically).
Once all the compliance are done with, the companies act under section 123 talks
about the payment of dividend. But if the dividends are not paid, Section 127
comes to picture that talks about the punishment in case of non-payment. It
again gives jurisdiction to SEBI.
Market Manipulations
One of the problems that affects the market integrity is Market Manipulations.
It basically deceives the buyers by artificially affects the price of the share
and affects the market. The well-known US case
Cargil Inc. v. Hardin from 1971
established the classic definition of market manipulation as any action, plan,
or device that purposefully manipulates the price of a financial asset to
produce a different price than what would have happened in the absence of such
intervention. A trader can raise the price of stock, for instance, by making big
purchases of it.
The trader will make money if they are able to sell shares at
that point and the price does not change in response to their sales. Naturally,
we should anticipate that this approach will fail. When shares are sold, the
stock price will drop, allowing the trader to buy at higher prices and sell at
lower ones overall. This appears to rule out the idea of manipulation based on
commerce, and that is the unraveling problem. It can take place in various forms
like insider trading, artificially increasing or decreasing the price, spreading
rumors and many more.
Information based manipulation is one of the methods through which the market
manipulations can be done successfully by spreading fake news in the market.
This kind of manipulation involves traders organizing a pool to buy shares,
spreading rumors about the stock after the buy, and then selling at a higher
price (Allen and Gale, 1992).
Allen and Gorten argue that the natural asymmetry
between liquidity purchases and liquidity sales leads to an asymmetry in price
responses. In the same context Van Bommel in 2003 talks about the manipulations
by dissemination of information by gurus, analysts, investment newsletters, and
other potentially informed parties. The rumor hence causes a tremendous impact
on the market as it creates reactions in terms of prices and create overpriced
phenomena in the markets.
Further internet also proves to be another method of disseminating information
which done majorly by disseminating price sensitive information.
The other manipulation can be trade based manipulation. It is specifically done
through price change. It can be understood by the given example. Imagine a
trader who is prepared to engage in a formal, person-to-person transaction with
an institutional investor for the sale of one million shares of ABC stock.
The
two parties sign a contract in the morning specifying that the transaction price
would be determined by taking the closing price of the ABC shares on the
exchange. The trader purchases 10,000 shares of ABC on the market in the
afternoon with the sole intention of inflating the price from $10 to $11, which
will raise the closing price to his advantage.
It goes without saying that the
trader gains at the institutional investor's expense. In this way the price
inflates. Yet another method can be action based manipulation. In this the value
of the forms changes by their actions. Takeover bids is yet another example of
the action based manipulation.
Market manipulations hence results in skewed pricing. This in return misleads
the investors and hampers the market integrity. Meaning thereby, the investors
who purchased or sold the assets at the inflated or deflated price have to
suffer the loss. Hence, the term of market manipulation is subject to several,
more or less inventive interpretations and a concise description of market
manipulation includes a intentional deceptive act or omission to create an
artificial price.
Regulatory framework for Market Manipulation in India
Market manipulation is one of the issue that needs to be regulated because it
creates market volatility. In India, in order to secure the interest of the
investor the SEBI acts as the guardian. There had been certain recent amendments
in order to ensure that the market it not mislead due to fake information and
the investors are protected. SEBI has the power to investigate and penalize the
corporation in case there is any market manipulation.
The core functions of SEBI includes:
- Policy formulation for the setting up of risk protection and surveillance systems at the stock exchanges to restore integrity, safety, and stability to the Indian securities markets
- Supervision of the stock exchanges' surveillance operations, including their monitoring of market movements;
- Examination of the exchanges' surveillance commencements of investigations
- Preparation of market movement reports and studies, which SEBI periodically circulates to the Government of India's Ministry of Finance as well as foreign securities market regulators.
Section 3 of the act talks about the formation of the board that would look
after the investors in securities and and regulate the securities market. the
section 11 (2)(e ) gives power to the board to keep an eye on the fraudulent and
unfair trade practices relating to securities market.
Further the sub-clause (i) gives power to conduct inquiries and audit of the
securities market. In this regard the section 11 C of the SEBI Act empowers the
board to conduct any investigation in case there in any malpractice in the
securities market. Further it may also direct every manager, managing director,
officer and other employee of the company to submit any document that may be
required in such inquiries.
By the 2002 amendment, Section 12 A was incorporated that talks about the
prohibition of manipulative and deceptive devices, insider trading and
substantial acquisition of securities or control. Further Section 15G prescribes
penalty for engaging in insider trading.
The penalty might reach a maximum of 10 lakh rupees. It might go up to 25 crore
rupees, or three times the gains from insider trading or whichever is higher.
Section 15 HA also penalizes the unfair practices whereby the penalty can extend
up-to five lakh rupees or three time the amount of profit.
Hence, in this way SEBI acts as the guardian of securities market and protects
the interest of the investor in India.
Conclusion
Despite the laws and the regulations that protects the investors and market
integrity there are shortcomings associated with it. There can be myriad reasons
for the same. One of the probable reasons could because of limited resources
that SEBI accounts. The huge stock market of India makes it challenging for SEBI
to look after it. Another reason could be the legal framework has inherent
weaknesses.
It does not hence deter the manipulators to refrain from such an activities as
the penalties are not very high. So, in order to deal with these issue SEBI must
coordinate with other regulatory bodies such as RBI and IRDAI.
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