SEBI’s Disgorgement Dilemma: A Critical Study of Theoretical Underpinnings and Practical Implications

Banking & Finance laws By 0

This project explores the concept of disgorgement and its utilisation by the Securities and Exchange Board of India (“SEBI”). The research and analysis done through this research project reveals that SEBI’s rationale for employing disgorgement is based on its ‘equitable’ and ‘remedial’ authority, aiming to recover ill-gotten gains from wrongdoers and restore the situation to its original state. However, this differs from disgorgement practices elsewhere, which aim to strip wrongdoers of their gains without necessarily restoring the status quo.

The author observes that SEBI’s disgorgement orders do not consistently align with its stated justification, as none of the orders of the SEBI, till now, actually return the wrongdoer to their original position. Moreover, disgorgement decisions are made at the discretion of whole-time members (“WTMs”), who hold executive authority within the government. This exercise of public power without clear legislative or judicial boundaries raises significant concerns regarding regulatory governance.

Complicating matters further is the destination of disgorgement proceeds, which are directed to the Investor Protection and Education Fund controlled by the SEBI, unlike penalties that contribute to the Consolidated Fund of India. The findings suggest that SEBI needs to reassess how it conceptualises disgorgement, its underlying objectives, and the procedures governing its application. This analysis of disgorgement has implications beyond India and is pertinent to similar discussions in other jurisdictions, including the United States.

Reliable Ocular Evidence and POCSO Convictions: Supreme Court’s Approach

Human Rights By 0

The Supreme Court has reaffirmed that convictions under the POCSO Act need not fail for want of medical evidence if ocular testimony is credible and consistent. In Dinesh Kumar Jaldhari v. State of Chhattisgarh (2025), the Court upheld a conviction for aggravated sexual assault on a four-year-old child, relying on consistent parental testimony and trauma-induced behaviour, despite the absence of external injuries. The ruling underscores that medical evidence is corroborative, not substantive, and that courts must adopt a sensitive, victim-centric approach where child victims may be unable to fully articulate their trauma. This jurisprudence ensures that justice is not defeated by technical gaps in forensic proof.

Secularism in the Indian Constitution: The Role of the Forty-Second Amendment

Constitutional law By 0

The insertion of the word “Secular” into the Preamble of the Indian Constitution through the Forty-Second Constitutional Amendment Act, 1976 remains one of the most debated developments in Indian constitutional history. Introduced during the period of Internal Emergency, the amendment has often been questioned for its political context and legitimacy. This article examines whether the introduction of “Secular” represented a fundamental shift in constitutional philosophy or merely a formal recognition of an already existing constitutional principle. By analysing the historical background of the amendment, the constitutional status of the Preamble, and landmark Supreme Court judgments, the article argues that secularism was always implicit in the Indian Constitution and was later made explicit through the amendment. It concludes that the Forty-Second Amendment did not create secularism but reaffirmed it as an integral part of India’s constitutional identity.