Regulations
Dr Mohan Gopal’s explosive exposé of SEBI’s functioning under Bhave

Dr G Mohan GopalThe former member of the SEBI Board, in a letter to the prime minister, alleges how an "informal clique of current and serving bureaucrats, SEBI officials, lawyers and corporate interests orchestrated a subversion of the due process of law". It vindicates Moneylife's stand on various regulatory issues that large media houses have been ignoring 

Dr G Mohan Gopal, who heads the National Judicial Academy (NJA) at Bhopal, is in the news for his letter to the prime minister, pointing to “the gross abuse of power and corrupt practices in the SEBI board” to “protect SEBI Chairman CB Bhave”. Moneylife Foundation has accessed the letter written to Dr Manmohan Singh on 24 December 2010, which was obtained by activist Subhash C Agarwal using the Right to Information Act (RTI).

The letter, we find, is far more explosive and detailed than has been indicated by media reports so far. Dr Gopal has not only described the manner in which SEBI systems and processes were vitiated to protect Mr Bhave, but it also highlights four “structural flaws” in the “legal framework for securities regulation”, something that other self-appointed market experts have been labelling as perfect and getting favourable mention in the media.

Moneylife has already reported at length on the NSDL issue, which Dr Gopal describes as “ ’Sebi-under-Bhave’ judged and exonerated ‘NSDL-under-Bhave’ through a process that was thinly disguised as independent, but was, in fact, deeply vitiated and subverted”. 

Here are highlights of the many larger issues raised by Dr Gopal, on which the prime minister’s office has remained silent for the past five months.

On subversion of the action against NSDL: Dr Gopal says, “an informal clique of current and serving bureaucrats, SEBI officials, lawyers and corporate interests orchestrated this subversion of the due process of law. They illegally interfered with independent SEBI adjudication, manipulated legal opinions, suppressed and misrepresented facts and misled the SEBI Board and Government officials about the legality of the Orders. Law, regulations and established precedent were violated. NSDL was given undue special treatment. NSDL was relieved of a fine of crores of rupees, and SAT decisions adverse to SEBI but favouring NSDL, were not appealed to the Supreme Court as they should have been”.

On how the SEBI Board declared orders against NSDL as void: Dr Gopal says, “One of the most shocking and unprecedented actions taken by SEBI to exculpate NSDL was the board–for the first time in SEBI’s history–setting aside quasi judicial orders which are, under the law, subject only to judicial review. He goes on to describe how the SEBI board “entirely disregarded” a statement by one of India’s most eminent and respected jurists (former chief justice of India, J S Verma) who had said that SEBI’s action “violated established legal and Constitutional principles”.

On securities law: Dr Gopal says, four structural fault lines in the legal framework for securities regulation made this abuse of power possible. These are:
1. Inadequate transparency, public accountability; and parliamentary oversight: Dr Gopal points out that unlike in India, the US Securities Exchange Commission meetings are open to the public and the US Senate exercises close scrutiny over its workings. There is nothing comparable in India. There is also no framework for whistleblower protection. Dr Gopal points out how he was subjected to retaliation and attack without any protection. (It is stunning commentary of the poor governance in India that an extremely privileged and connected member of society, who heads a premier institution like the National Judicial Academy should complain of such harassment). Importantly, Dr Gopal joins voices like ours at Moneylife when he says, that there is ‘a serious deficit in investor voice’, essential for effective governance. He says, ‘SEBI needs to encourage investor voices instead of being hostile to them unless they are friendly, in which case selective patronage may be extended to them’. Some of the friendly voices which receive selective patronage are large media houses.
2. Lack of protection against conflict of interest: Dr Gopal says that a Code of Conduct for the SEBI board was evolved at his instance, but the “mechanism was violated and then dismantled in the context of the NSDL matter”. He says, that whole-time members of the SEBI board who were to be explicitly excluded from NSDL matters (since they report to the SEBI chairman operationally) were included in the decisions to favour Mr Bhave. Dr Gopal points to the role of Mr Mohandas Pai, who represented a SEBI-regulated entity, to chair the meeting that finally exonerated NSDL. The SEBI board, he says, “generously excused the conflict of interest arising out of the business relationship between Infosys and NSDL”. Also, “it was perhaps for the first time in Indian history that judicial power was exercised by a serving private sector corporate official”. As a result of these conflicts of interest, an influential bureaucrat-corporate-media nexus has emerged that has immense power to influence SEBI decision-making to its own advantage.
3. Ineffective framework for law enforcement: Dr Gopal says that the structure for law enforcement in SEBI is seriously flawed (something that Moneylife has repeatedly pointed out). There are overlapping enforcement and punitive provisions in the Act, which need to be rationalised. This subjects a regulated entity to multiple proceedings without a clear distinction between them. He also says, as we have in the past, that “major violations” established through investigation “are excused without punitive action through opaque consent orders and faulty adjudicator orders favouring wrongdoers–in such cases review by SAT (Securities Appellate Tribunal) would never be sought” because neither SEBI nor the wrongdoer want it. Consequently, “investors at large and the market are the voiceless victims”. Dr Gopal points out to how a company guilty of “criminal market manipulation” was let off by a whole-time member asking it to “be more careful in future” (we believe this refers to the Zee group’s role in the Ketan Parekh scam). He says, SEBI does not have “adequate focus and priority on law enforcement”, with the result that it bent “backwards and violated the law to protect a favoured regulated entity rather than pursue it to enforce the law”.
4. Outdated governance structure: Under this head, Dr Gopal says that the SEBI Act badly needs to be redesigned. It contains “too many explicit and implicit levers of bureaucratic and political control of the regulator on one hand and too little public oversight, transparency and public accountability on the other hand. SEBI in effect is run by an informal caucus of serving or former civil servants rather than domain experts”. Having said that, Dr Gopal accuses the finance ministry representative (Dr KP Krishnan) of exercising “undue influence in the functioning of an independent regulator through informal back channels, through which SEBI officials were funneling information and documents to him, which he legally should not have access to. Dr Gopal says, “the government’s interaction with the regulator would be ‘over the counter’ and not ‘below the table’.” Apart from this stunning indictment, the former SEBI board member, also says how SEBI and the National Institute of Securities Management (its education affiliate) “command huge financial resources with little accountability and transparency in its use”. Further, the SEBI board “lacks relevant expertise” because it is “dominated by babus–serving and ex-bureaucrats”.

Dr Gopal ends his five-page letter by asking the prime minister to order a high-level inquiry into SEBI decisions in relation to NSDL during Mr Bhave’s tenure and to look into the structural issues raised by him.

What did the Prime Minister do? He merely forwarded the letter to the finance ministry. Frankly, even today, this explosive letter by Dr Gopal will probably attract some media attention, only because SEBI has been forced to do an about-turn due to the activist interest shown by the Supreme Court of India into the manner in which SEBI has been subverting regulations.

Here is a copy of the letter written by Dr Mohan Gopal to the prime minister


 

Dr Mohan Gopal's letter to the PM -

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COMMENTS

Dr Vaibhav G Dhoka

5 years ago

SEBI has become WHOLLY CORRUPT regulator.The move should to SCRAP SEBI.to save investors from Financial sharks

Rohit shah

5 years ago

sebi should take the opinion of distributors as well as investor before deciding about entry load

BHALACHANDRA SINGDE

5 years ago

SEBI do not help the investors who are in difficulty. I have a complaint against ICICI Bank since 2001 that I lost Rs.5 lacs due to their mishandling my Demat account and due to their faulty Internet system. SEBI had given me 4 acknowledgements for the same complaint during the last 6 years but done nothing. The complaint was forwarded by RBI to SEBI. NSDL also is keeping quiet about the wrong doings of their participant/agent; even though they know that ICICI Bank is responsible to recoup my loss which also known to SEBI.

C H Mehta

5 years ago

Hanging SEBI and Mr Bhave without a trial.

There are lies,damned lies and statistics. I wonder what has led a legal luminary like Dr Mohan Gopal to resort to some of these tactics in order to lead a personal attack on Mr Bhave, one of the finest and honest product of the Indian Civil Service. In the process, Dr Gopal has conveniently forgotten how SEBI became the real champion of small investors under Mr Bhave’s regime and how transparency and objectivity became the hallmark of this regulatory agency. Let us therefore examine the facts which Dr Gopal has forgotten to mention:

1. Dr Gopal accuses Mr Bhave of not being investor friendly and of providing selective patronage. The reality is that it was only under Mr Bhave that interests of the small investors were truly promoted at the cost of big business houses and institutions. For instance, introduction of ASBA saved more than Rs 100 cr for the investors. The ban on entry load saved Rs 2500 cr for the investors. The allotment time for IPOs was reduced from 21 days to 10 days and the preferential treatment to Qualifying Institutions, which was grossly unfair to small investors, abolished. What is more, for the first time SEBI recovered more than Rs 25 cr from wrong doers and actually disbursed it to the investors. And while pursuing the cause of investors, Mr Bhave tread on many big shoes and displeased many big houses and institutions without any fear or favour. If this is not investor friendliness, then Dr Gopal has to provide us with a new definition in this regard.

2. Dr Gopal complains about lack of transparency in SEBI’s working. How far is this statement away from truth can be gauged from the fact that SEBI today is the only regulator that puts out its Board agenda and minutes on its web site. All its major decisions as well as compounding decisions are available on its web site for every one to see and criticise. In fact, SEBI which was a fortress of secretiveness earlier, became an open book under Mr Bhave whose own public career too has been like a open book. Through its compounding schemes which Dr Gopal criticises , SEBI has reduced litigation and pendency of proceedings significantly, and in the process has collected fines up 40 to 50 times the earlier levels. If this is a crime, then many of the Indian laws are flawed as they all have built in compounding schemes!

The big question is why Dr Gopal is resorting to such mud- slinging without facts and figures to back up his accusations. The reason probably lies in the fact that the SEBI Board which had met to discuss the report of Gopal & Leeladhar on the SEBI-NSDL controversy decided to reject the report. That this happened so even though Mr Bhave had reclused himself from its proceedings might have piqued Dr. Gopal all the more. He needs to understand that SEBI is a statutary institution created by an act of parliament. Both SEBI and its Chairman act under this Act. If Dr Gopal had serious misgivings about SEBI’s structure, its working and its decisions, he should not have served his full term of 3 years on its Board. Why wait for his term to get over before launching his so-called crusade against SEBI? I would also like to ask him, as the self appointed champion of governance, as to how many SEBI Board meetings he attended during his tenure with SEBI !

The pity is that Money Life has adopted the same vendetta type behaviour against Mr Bhave as Dr Gopal. I really wonder why?
C. H. Mehta
Dehradun

Suresh Vaideeswar

5 years ago

Kudos to Dr. Mohan Gopal on this expose. That takes courage and conviction to speakup about corruption at high levels of governance. As one of the 'stupid' Indians who has been praising Bhave and Sebi, for their great work in MF area, I want to thank you for catching them with their pants down. I am still just a Subject in the SEBI Empire.

Tira T

5 years ago

Bhave undoubtedly had extremely high contacts and networked connections, as one reader has rightly pointed out, to be planted as SEBI chief with an agenda ignoring the right persons required at this post in national interest. A corrupt country naturally will opt only for corrupt prople at the top. And that exactly is the present situation. The persons who are/to be subject to investigation must have already transferred their booyu ti the tax havens with the knowledge of the authorities.

K B Patil

5 years ago

When you have a PM like Manmohan Singh, what do you expect? He may probably go down as the worst PM India has ever had, beating other worthy competitors like IK Gujral and Deve Gowda. Now, even the mask of being an honest man has been removed. It is no wonder that you see guys like Kalmadi, Raja and Bhave heading every government organisation.

There are small steps to make the life of the small investor better. For instance, SEBI should have made all listed companies to post their financial results for atleast the last five years on their website. I guess they are taking some steps now. Some companies dont even bother to have a website. For instance, Artson Engineering didnt have a website. The link took me to a "Under Construction" page for months. I bought this stock in 2007. It was taken over by Tatas. On being fed up of seeing the same page for months, I sent two emails to the company. They did not even bother to acknowledge. I followed up with a complaint to SEBI. What was the response from them? Nothing. They were too busy signing consent orders for moneybags. SEBI is only doing the bare minimum to justify its existence. It can easily do more.

Samuel

5 years ago

Mr Bhave brought absolutely incompetent people to SEBI just to suit his designs. These persons could only say yes to him. This facilitated audaciously arbitrary functioning of SEBI under him. There should be a thorough probe into the working of the Members and EDs brought by him to SEBI and they should be punished for all their wrongs.

REPLY

Renu

In Reply to Samuel 5 years ago

I fully agree. But we should not forget that Bhave was made SEBI Chairman by Mr Chidambaram. He picked him from nowhere and not only this Mr chidambaram forced PMO to send a letter to finance ministry in Dec 2010 to extend the tenure of Bhave. SO all in all Congress is bent upon having the most corrupt people as its various ministers. Probably this is the ideology they are following. After all Sonia needs most loyal people around her who gives her the best cover.

Samuel

In Reply to Renu 5 years ago

Renu please do not forget that every body can not carry arrogance. Only the most competent may. Unfortunately the bunch brought by Mr Bhave was / is thoroughly incompetent also.... "KARELA, AUR NEEM CHADHA".......

jk

5 years ago

1) BHAVE DID EXCELLENT JOB OF ELIMINATING ENTRY LOAD IN MUTUAL FUNDS, WHICH SHOULD HAVE BEEN DONE FROM DAY1 IN EARLY 90'S WHEN MF STARTED. BY NOW, LAKHS OF INVESTORS' THOUSANDS OF CRORES HAVE BEEN EATEN AWAY BY 95% OF UNDESERVING/INCOMPETANT MIDDLEMEN CALLED FINANCIAL ADVISORS WHO THEMSELVES NEED ADVICE ON INVESTMENTS!

SEBI'S MANY OTHER POLICIES ARE SHEER NONSENSE & GRINDS THEINVESTOR BEYOND TOLERANCE. IN INDIA, THE REGULATORS ARE ALL USELESS - SEBI, TRAI, IRDA ETC. THEY ARE SENSELESS BODIES NOT AT ALL BOTHERED ABOUT COMMON PUBLIC.THEY ARE HYPOCRATIC & OUT OF SYNC WITH CUSTOMER NEEDS!

ALL REGULATORS IN INDIA MUST CONSIST OF INDEPENDENT BODIES & NOT A SINGLE BUREAUCRAT FROM GOVT. PRSENT SEBI CHIEF IS NO GREAT GUN EITHER! BHAVE WAS ANY DAY BETTER THOUGH NOT IN GOOD BOOKS OF MONEYLIFE!

REPLY

gn

In Reply to jk 5 years ago

are u a mutual fund investor (if yes the since?) or are u a member of 5% deserving/competant middleman called financial advisor??????

K B Patil

In Reply to jk 5 years ago

Maybe that's one of the rare good things that Mr. Bhave did. Can you name a decisive step by him to help small investors. SEBI is like a corpse as far as interaction with small investors are concerned. Now, even when a villager knows what a PC is, the small investor cannot expect to lodge an online complaint with SEBI and expect prompt response. What does that prove? That Bhave was a messiah for small investors?

Vijay

5 years ago

The major benefit also goes to CDSL which too had actively facilitated opening and operations of demat accounts.

Besides, one should have been present during SAT hearing to see in what feeble manner SEBI presented its case against NSDL & CDSL. The counsel who appeared for SEBI had also earlier appeared from the Appellant's side in this IPO scam.

SEBI order records that CDSL had distributed to various DPs including Centurion Bank of Punjab with almost 25,000 BO ids by using excel calculator in advance without following the system driven procedure. In this entire alleged scam there is no mention about these over 25,000 demat accounts opened by Centurion Bank of Punjab [CBPL] and who benefited therefrom. Another SEBI order records that CBPL had solicited business from various brokers with strong customer base evidencing the role played by such brokers and possible benefits they got. CDSL senior management has admitted that they extended End of Day timing to facilitate opening of demat accounts by Karvy DP.

What Dr. Gopal says may possibly be a tip of ice berg. The functioning of SEBI needs to be revamped.

Madhusudan Thakkar

5 years ago

Please go through following link also. http://www.livemint.com/2011/05/10000326...

REPLY

ABanerjee

In Reply to Madhusudan Thakkar 5 years ago

Thank you, Mr. Thakkar, for the link to Livemint.

radhika menon

In Reply to ABanerjee 5 years ago

i saw this an remembered that livemint always projected bhave as the greatest. so i searched and found i was right. check this too... its nice to know http://www.livemint.com/2011/01/31221944...

CJyoti

5 years ago

A really scintillating piece, though I recall having come across a similar article elsewhere by one M.R.Venkatesh. The antics of the subject person were too wellknown all through and that is why he was handpicked for the position making him superior in rank to some of the members of the SEBI Board. There was one Anantharaman, for instance, from the Indian Revenue Service of the 1968 batch who was known as an excellent administrator and expert investigator of frauds with wide and varied exoperience. He was made to serve as a mere member under a rank junior for the latter's networked clout. As a result, SEBI became a goldmine for a band of looters who paid hefty sums of money to get deputations to it. One stockbroker once lamented to me that, even the lowest of the functionaries in SEBI returns home at the end of every working day with a minimum of Rs. 1 lakh in his bag and his information to this effect to the CBI was never acted upon. The standard of SEBI's internal affairs are unthinkably low, but with high voltage direct hotline connections with some of topmost political heavyweights actively interested as players in the money (stock) market, it is above law and CBI is really helpless. This in any case is the condition in any Regulator's office, with the slot of the top positions being on auction or going to the best facr loked by the powers that be! I suggest, Moneylife reprints the above referred piece by MR Venkatesh too in its issue.

Dinipc

5 years ago

What a joke of a prime minister Manmohan Singh is! Now that the scam has been exposed and is out in the open and there is prima facie evidence of wrongdoing on the part of CB Bhave, what does "Honest" Singh do? He forwards the file to the department next door! What a shame of a man you are, Mr Prime Minister! A weak and cowardly leader like you is the reason this country has continued to go to the dogs.

Rakesh

5 years ago

For those interested in relentless boot-licking reports by other media houses:
http://www.livemint.com/2011/02/17002429...
http://www.business-standard.com/india/n...
http://articles.economictimes.indiatimes...
http://www.mydigitalfc.com/careers/bhave...
http://www.financialexpress.com/news/col...
http://www.livemint.com/2011/01/31221944...

Shame on them.

Moneylife, a tiny publication, truly stands out for exceptional clarity, courage and commitment

Thanks for choosing to be the lone voice

REPLY

Madhusudan Thakkar

In Reply to Rakesh 5 years ago

Team Moneylife deserves sincere gratitude for this expose.Radia Tapes have shown how mainline media is manipulated by unscrupulous and powerful people.

Rahul

In Reply to Madhusudan Thakkar 5 years ago

thank you money life.. this is really an eye opener..

SWATI S AMYEKAR

5 years ago

WE ARE ALSO INVESTORS WHO ARE HELPLESS AT THE HANDS OF SEBI WE HAVE REQUESTED YOUR PUBLICATION TO PUBLISH OUR CASE AND HELP US GET JUSTICE FROM NSE AND SEBI

We are listening!

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