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Sumit Agrawal and Sreenidhi G S write in the National Law University, Delhi Journal of Legal Studies on the right to legal representation during SEBI investigation.

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The SEBI Act, rules & regulations allow Advocates / Authorised persons to be present on behalf of the Noticees before the Adjudicating Officer, Whole-Time Member following issuance of SCN in Adjudication proceedings, Enforcement Proceedings, & Proceedings under Section 11, 11B of SEBI Act; & also in appeal before SAT.

However, during the course of Investigation, where the Authority has the power to record statements, issue summons, all of which are used in the subsequent proceedings against the Noticees, SEBI is reluctant in allowing Advocates to be present. The provision is unique in the sense that the IA, not even being a quasi-judicial authority, has the power to record evidence. Further, Section 11C(7) states that such information may be used in evidence against the party (effectively amounting to self-incrimination), which poses questions on the constitutionality of this provision.

The piece analyses the law and precedents in context of different regulators and administrative bodies and makes a case for the need for SEBI to come out with a policy decision in this regard and uphold due process.

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