I OVERVIEW OF GOVERNANCE REGIME
Corporate governance is an increasingly important issue in the Indian economy. The past decade has seen a number of scandals2 and shareholder disputes,3 all of which indicate lacunae, if not lapses, in governance.
Regulators have responded to these challenges by amending and, in some cases, introducing new legislation, and shareholders are resorting to activist intervention in companies to secure their rights. This, coupled with the closely held shareholding of Indian companies,4 as well as the several factors that contribute to India's ranking on the Transparency Index, keep corporate governance on the radar.
The Indian corporate governance framework focuses on:
- protection of minority shareholders;
- accountability of the board of directors and management of the company;
- timely reporting and adequate disclosures to shareholders; and
- corporate social responsibility.
The regime emphasises transparency through disclosures and a mandatory minimum proportion of independent directors on the board of each company.5
However, as is common in India, the corporate governance regulatory framework is composed of statutes and regulations that require supervision by multiple regulators:
- the Securities and Exchange Board of India (SEBI) is the principal regulator for listed companies;
- the Ministry of Corporate Affairs (MCA) and the registrar of companies (Registrar) administer the Companies Act 2013 and the relevant rules that apply to all companies, including listed companies; and
- additionally, sector-specific regulation also applies, and this can have a significant impact on the governance regime.6
Perhaps the most significant issue that Indian regulators must address is ensuring that independent directors can fulfil their obligations in the closely held and controlled world of Indian corporates.
II CORPORATE LEADERSHIP
i Board structure and practices
Indian law prescribes a one-tier board,7 with additional stipulations as to the constitution of the board depending on whether or not the company is listed and, for unlisted companies, the quantum of paid-up share capital.
Private companies must have a minimum of two directors and unlisted public8 companies must have at least three directors. In each case, at least one director must be a person who stays in India for a total period of not less than 182 days during the relevant financial year.
All listed companies, as well as all unlisted public companies having paid-up share capital of 1,000 million rupees or more or a turnover of 3,000 million rupees or more, must have at least one female director.9
Additionally, for listed companies:10
- a minimum of one-third of the directors of all listed companies are to be independent directors;11
- there should be a mix of executive and non-executive directors, with at least half the board composed of non-executive directors;
- at least one-third of the board should be composed of independent directors if the chair is a non-executive director who is also neither a promoter nor a relative of a promoter of the company, failing which (i.e., if the chair is an executive director) at least half the board must be composed of independent directors; and
- where the non-executive chair is a promoter of the company or is related to any promoter or person occupying management positions at the level of the board of directors or at one level below the board of directors, at least half the board of directors of the listed company must consist of independent directors.
Disqualifications from appointment as director
A person does not qualify for appointment if that person:
- is of unsound mind, an undischarged insolvent;
- has been sentenced to imprisonment for at least six months, and less than five years has lapsed from the end of that sentence;
- has been convicted of an offence concerning related-party transactions; or
- has not paid call money on shares of the company.
A company may prescribe additional disqualifications in its articles of association.
Every director must submit a list of entities in which he or she has an interest12 when taking office, and update that list when necessary and at least annually.
Listed companies and unlisted public companies with paid-up share capital of 100 million rupees or more, or a turnover of 1 billion rupees or more, or an aggregate of outstanding loans, debentures and deposits exceeding 500 million rupees, must appoint at least two independent directors.
An independent director is a non-executive director who:
- is not and should not have been a promoter;13
- does not and should not have had, directly or through a relative,14 any pecuniary relationship15 with the company16 during the immediately preceding two financial years where the transactions exceed the lower of 2 per cent or more of the company's gross turnover or total income or 5 million rupees; and
- individually, or with relatives:
- does not hold 2 per cent or more of the total voting power of the company;
- does not hold or has not held a key managerial personnel position, nor is or has been an employee of the company17 in the immediately preceding three financial years;
- is not nor has been an employee, proprietor or partner, in any of the three immediately preceding financial years, of a firm of auditors or company secretaries in practice or cost auditors of the company;18 or any legal or consulting firm that has or had any transaction with the company19 amounting to 10 per cent or more of the gross turnover of the firm; or
- is not a chief executive or director, by whatever name called, of any non-profit organisation that receives 25 per cent or more of its receipts from the company, any of its promoters, directors, or its holding, subsidiary or associate companies, or that holds 2 per cent or more of the total voting power of the company.
Generally, an independent director is a person who has significant expertise relevant20 to the company.
Indian legislators and regulators have emphasised the requirement for, and role of, independent directors as a significant factor contributing towards good corporate governance.21 While there is no doubt that reducing promoter nominees on the board necessarily reduces direct promoter control of the board, there is reason to continue to monitor the real impact of independent directors given the concentration of promoter control in the Indian economy.22
The fact that shareholders retain the ultimate authority to appoint and remove a director is not uncommon, but poses unique challenges in India.23
Who can represent companies?
The board of directors is entitled to perform all acts and things that the company itself is authorised to do, provided the acts of the board of directors shall always be subject to:
- the Companies Act 2013;
- the memorandum and articles of association of the company;
- restrictions and conditions that may follow from resolutions passed in a general meeting; and
- applicable law.
Of course, no director may act on behalf of the company unless duly authorised by a resolution of the board.24
The Companies Act 2013 sets out a list of matters that mandatorily require shareholder approval. These include, inter alia:
- the sale, lease out or disposal of the whole or substantially the whole of the undertaking of the company, or, where the company owns more than one undertaking, of the whole or substantially the whole of any of the undertakings;
- investing otherwise in trust securities the amount of compensation received by the undertaking as a result of any merger or amalgamation; and
- borrowing money, where the money to be borrowed, together with the money already borrowed by the company, will exceed the aggregate of its paid-up share capital and free reserves and securities premium, apart from temporary loans obtained from the company's bankers in the ordinary course of business.
Note also that for listed companies, the SEBI (Listing Obligations and Disclosure Requirements), 2015 (Listing Regulations) set out specific responsibilities for the boards of listed companies including, inter alia, selecting, monitoring, compensating and replacing key managerial personnel to run the affairs of the company; ensuring the integrity of the accounting and financial reporting systems of the company; and monitoring and managing potential conflicts of interest.
Subject to these requirements and any additional stipulations set out in a company's articles of association, the board may delegate its responsibilities to a committee of the board, an individual director, a key managerial person or such other person as the board deems fit.
Typically, officers of the company are authorised to execute routine operational matters,25 and the board may also issue a standing authority to a director or senior managerial personnel, inter alia, to execute contracts. It is paramount only that where the subject matter of the authority is expressly stated to be subject to shareholder approval, then that approval must be sought before the authority is exercised.
Chair's control of the board
Indian companies may designate a chair of the board who holds office for the duration of the appointment, or not make such a designation, in which event any director must be appointed chair for the purpose of each meeting.26
A designated chair may or may not exercise a casting vote: the determination must be set out in each company's articles of association.
A chair presides over the meetings of the board and the shareholders. The Companies Act 2013 provides the chair with the discretion to finalise the contents of the minutes of the meetings of the board and the shareholders, and to finally determine any disputes relating to the contents of the minutes.27
The effective executive responsibility vests with a managing director28 or an executive director.29 A chief executive officer (CEO) is a recognised designation, but a CEO need not necessarily be a director.
No person can hold office30 as chair and managing director or chief executive officer of the company, except when the articles of association of the company provide otherwise; or the company does not carry on multiple businesses.
Generally, a designated chair is accorded significant respect as the leader of the board but, subject always to the determination of each company, does not necessarily exercise significant authority.
Remuneration of directors
Private limited companies have no cap on the remuneration that may be paid to directors and senior management. However, the Companies Act 2013 prescribes the following conditions with respect to the remuneration that may be paid by public companies to their directors and managers:
- the total managerial remuneration payable by a public company to its directors, including the managing director and whole-time (i.e., full-time) director, and its manager in respect of any financial year shall not exceed 11 per cent of the net profits of that company for that financial year. However, this limit may be exceeded if the excess is approved by the shareholders;
- further, unless authorised by the shareholders in a general meeting via a special resolution:
- the remuneration payable to any one managing director, or whole-time director or manager, cannot exceed 5 per cent of the net profits of the company and, if there is more than one such director, remuneration shall not exceed 10 per cent of the net profits to all such directors and managers taken together; and
- the remuneration payable to directors who are neither managing directors nor whole-time directors shall not exceed 1 per cent of the net profits of the company if there is a managing or whole-time director or manager; and 3 per cent of the net profits in any other case; and
- directors may also receive sitting fees subject to prescribed caps.
Note that the remuneration paid to a director is deemed to include the consideration paid to the director for any services that a director provides to the company, save and except where those services are professional services and the consideration paid is the fee for the services. Remuneration payable to the directors of listed companies is further regulated, requiring, inter alia, the remuneration to be approved by the shareholders.
Directors drawing remuneration above the limits prescribed by the Companies Act 2013 are required to refund the excess remuneration to the company.
Remuneration of independent directors
Independent directors of listed entities are not entitled to any stock option in the company, and independent directors may receive remuneration by way of a fee for attending meetings, reimbursement of expenses incurred for participation in meetings and profit-related commissions as approved by the shareholders.
Code of conduct
Independent directors are required, inter alia, to:
- uphold ethical standards of integrity and probity;
- act objectively and constructively;
- devote sufficient time and attention to the company;
- not abuse office as a director to the detriment of the company; and
- refrain from any action that would lead to the loss of independence.
Roles and functions of independent directors
The duties of independent directors include, inter alia:
- undertaking the appropriate induction of and regularly updating directors' skills, knowledge and familiarity with the company and the environment in which the company operates;
- seeking appropriate clarification or amplification of information and, where necessary, take external expert advice at the cost of the company;
- striving to attend all board meetings of the company;
- ensuring that their concerns are addressed by the board or at least recorded in the minutes of the relevant board meetings;
- participating constructively and actively in the committees of the board in which they are chairpersons or members;
- ensuring that related-party transactions are in the interests of the company;
- ascertaining and ensuring that the company has adequate and functional vigil mechanisms that do not prejudice a person who uses those mechanisms; and
- reporting concerns about unethical behaviour, actual or suspected fraud or violation of the companies.
In the ongoing management dispute at Tata Sons Limited, the holding company of the Tata Group, an independent director31 was removed by the shareholders following comments he made in favour of Cyrus Mistry.32 This has invited significant comment on the role of independent directors and their capacity to genuinely influence governance.33
Committees of the board
Indian law mandates committees for companies that meet specified criteria:
- audit committee: every listed company34 must have an audit committee. The audit committee must consist of a minimum of three directors, with independent directors forming a majority of this committee. The audit committee must, inter alia, confirm all related-party transactions for public listed companies;
- nomination and remuneration committee: every listed company35 must have a nomination and remuneration committee comprising three or more non-executive directors, of which not less than half should be independent directors;
- stakeholders relationship committee: every company that has more than 1,000 shareholders, deposit holders or holders of other securities must have a stakeholders' relationship committee to consider and resolve the grievances of security holders of the company. The chair of this committee must be a non-executive director; and
- risk management committee: pursuant to the Listing Regulations, every listed company must have a risk management committee, the specific duties of which are defined by the board.
The board of a target company must act in compliance with the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 2011 and the fiduciary duty each director owes the company.36 Where the board believes that a takeover is not necessarily in the best interests of the company, it may seek a counter-offer from a white knight or otherwise act within the scope of the law to better protect the company.
Independent directors play an increasingly important role in India. While their engagement is in the ordinary course limited to board meetings, they have the right to call for all documents and records, and also to visit company premises and interact with the executives other than simply at board meetings. While all directors are treated on equal terms, an executive director will necessarily be more aware of management proposals and initiatives even while those proposals and initiatives are at nascent stages, whereas independent directors will generally receive notice of these matters only when the management seeks board approval in respect of the proposals and initiatives.
Appointment, term and succession
Directors are appointed by shareholders. The board may appoint a director subject to that appointment being approved by the shareholders in due course.37 Of course, every person being appointed as director must qualify as such.38
While it is possible for private limited companies to appoint permanent directors, two-thirds of the directors in public companies must mandatorily retire by rotation annually.
Independent directors may be appointed for a term not exceeding five consecutive years, which can be extended for a further five-year period. Thereafter, reappointment is possible only after three years during which the independent director must not associate with the company.
Liabilities and duties of directors
Indian law is clear that every director is a fiduciary and is principally obliged to protect the interests of the company. A director nominated by a shareholder or a lender must nonetheless act in the best interests of the company.39
Indian jurisprudence is clear that a director of the company is liable for the acts of the company only to the extent that the director was actively involved in the relevant act. However, increasingly Indian regulators and investigating agencies follow the principle that the burden of proof lies on each director to demonstrate the absence of responsibility, and this principle also finds place in the Companies Act 2013. It is, therefore, imperative that each director fully discharges the duty of care that the law imposes, and ensures that dissent, if any, is appropriately recorded.
All companies must make periodic filings with the Registrar with respect to changes in directors, audited financial statements and shareholding patterns.
Listed companies are subject to the following significant disclosure requirements,40 which are event-based and periodic:
- outcomes of board meetings must be disclosed within 30 minutes of the closure of the meeting where the meeting was held to consider, inter alia, fundraising, financial results, buy-back of securities, voluntary delisting and other such prescribed matters. In other circumstances, all material information must be disclosed within 24 hours of the occurrence of the relevant event;
- specified transactions41 must be disclosed irrespective of any threshold or materiality;
- other transactions that are material in terms of the policy adopted by the board must be disclosed;
- related-party transactions must be approved by the audit committee, and any omnibus approval granted must be limited to one year. Additionally, all material related-party transactions require shareholder approval and the related party, if a shareholder, must not vote on that resolution;
- the annual report must set out, inter alia, a corporate governance report;
- promoters, key managerial personnel, directors and employees of every listed company must disclose to that company the number of securities acquired or disposed of by that promoter, key managerial person, director or employee, as the case may be, if the value of the securities traded over any calendar quarter aggregates to a traded value in excess of 1 million rupees; and
- substantial acquisitions of shares or voting rights42 of a listed company must be reported to the relevant company as well as to the stock exchange. Further, any change in shareholding or voting rights of any person who, together with persons acting in concert, holds shares entitling them to 5 per cent or more of the shares or voting rights in a company must also be disclosed.43
i Auditor's responsibility
The Companies Act 2013 casts an obligation on statutory auditors to report any instances of fraud noticed by them during the course of their audit that have been or are being committed against a company by its officers or employees. Where the fraud involves or is expected to involve an amount of 10 million rupees or more, the auditor must report this to the MCA, and where it involves a lesser amount, the auditor must report this to the audit committee.
In 2009, SEBI issued a show cause notice to 11 Indian partnership firms (the PWC auditing entities)44 affiliated with Price Waterhouse as to why an action under the Securities and Exchange Board of India Act 1992 and the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations 2003 should not be taken against them with respect to their involvement, as statutory auditors of Satyam Computer Services Limited, in the Satyam scam.45
This show cause notice was appealed before the Bombay High Court, which remanded the matter back to SEBI. On 10 January 2018, SEBI released its order holding the PWC auditing entities guilty of gross negligence and fraudulent misrepresentation. SEBI ruled that these firms failed to abide by the standards and guidelines issued by the parent body of chartered accountants in India, the Institute of Chartered Accountants of India, and also failed to follow the minimum standards of diligence expected from statutory auditors.
SEBI's order reiterated the position that auditors have a duty towards their clients as well as a larger duty to the public, which relies on the reports of the auditors in making investments.
SEBI, inter alia, prohibited the PWC auditing entities from issuing audit certificates for listed companies and imposed a penalty of about 130 million rupees.
While this matter is presently pending appeal before the appellate authority, it marks a watershed in terms of imposing professional liability on professionals, not part of a company, who have contributed to lapses in governance. Understandably, the order has caused significant alarm among capital market players and audit professionals.46
IV CORPORATE RESPONSIBILITY
i Risk management
Each company must formulate a risk management policy with respect to risks, if any, that threaten the existence of the company.
Of course, the requirements are more robust for listed companies, especially the top 500 listed companies determined on the basis of extant market capitalisation. These companies must mandatorily constitute a risk management committee whose role and responsibilities are set by the board.
ii Vigil mechanism
Listed companies47 must establish a vigil mechanism to facilitate whistle-blowing. The vigil mechanism is supervised by the audit committee48 and must operate to preclude prejudice to whistle-blowers. Equally, frivolous complaints will not be entertained, and complainants may be censured.
iii Corporate social responsibility
Companies meeting specified criteria49 must establish a corporate social responsibility (CSR) committee comprising at least three directors, of which at least one must be an independent director if the company is required to appoint one, and two or more directors if the company is not required to appoint an independent director (CSR Committee). The CSR Committee formulates and monitors the CSR policy, and ensures that the company spends at least 2 per cent of the average net profit for the three immediately preceding financial years on CSR activities.
i Shareholder rights and powers
Indian law recognises equality of voting rights subject to contract between shareholders. It is not uncommon for certain identified matters to require an affirmative vote from identified shareholders or a class of shareholders.
Indian law also recognises preference shares (which are common) and equity shares with differential rights (which are not as prevalent).50 Preference shareholders are entitled to vote only on matters that affect their rights or, on all matters, if a dividend due is not paid to them. Equity shares with differential rights are entitled to vote in accordance with their terms; for example, non-voting shares do not carry a vote.
Indian law requires mandatory shareholder approval for certain matters.51 A company's articles may stipulate additional matters that require shareholder approval. Additionally, dissenting minority shareholders may seek redress from the National Company Law Tribunal if the majority shareholders are mismanaging the company or oppressing the minority. Necessarily, each petition is evaluated on facts. The MCA may also prefer the petition, but as a matter of fact will exercise this power only in unique circumstances.
ii Shareholders' duties and responsibilities
Indian law does not prescribe any legal duties or responsibilities for shareholders, as the board of directors is primarily responsible for managing the affairs of the company. Shareholders are held liable for acts done by the company only where circumstances warrant piercing the corporate veil: for example, in closely held companies where the actions of a company are effectively determined by one person or a small collective of persons. Courts may pierce the corporate veil and impose personal liability if it can be proved that the relevant persons have formed the company solely to conduct an unlawful activity and to avoid personal liability, or where circumstances indicate, inter alia, fraud or tax evasion.
iii Shareholder activism
Shareholder activism is still a relatively underdeveloped concept in the Indian corporate sector partly because most of India's large corporates remain closely held. Derivative actions, while not expressly provided for at law, are seen in few cases, and Indian courts have held that a shareholder will be allowed to sue on behalf of a company if he or she is bringing the action bona fide for the benefit of the company for wrongs to the company for which no other remedy is available.52 A derivative action is not maintainable if the plaintiff has an ulterior motive in bringing the action as it cannot then be regarded as bona fide in the interest of the company. It has also been held that derivative actions may be entertained, provided there exists valid cause of action.53
iv Takeover defences
The primary defence available to Indian companies is the white knight defence, where the board invites counter-offers. Other takeover defences include embedded defences such as conferring rights to promoters under the articles of the company. The crown jewel strategy is not viable in the Indian context as a target entity cannot alienate or transfer its assets during the offer period unless such alienation or transfer is approved by the shareholders via a special resolution.54 The golden parachute strategy may also not prove fully adequate, as formal compensation for loss of office is available only to managing directors, whole-time directors or managers.55
Given the prevalence of concentrated shareholding in Indian companies, hostile takeovers are rare.
v Contact with shareholders
Communication with shareholders is ordinarily conducted at the general meetings of the company. The Companies Act 2013 requires all companies to have a minimum of one general shareholders' meeting in each financial year. Several significant items of business, including the appointment or reappointment, as the case may be, of statutory auditors or directors and the approval of financial matters, are transacted at this meeting. Shareholders of the company are also entitled to call for extraordinary general meetings of the company. While it is uncommon, direct communication from the top management to shareholders, by way of letters and press releases, is also seen.
Generally, there is no direct contact between directors and shareholders, and while a shareholder may address correspondence to the company and the board, generally direct contact between directors and shareholders is limited to their interaction at a general meeting. On the rare occasion that there is direct contact, this usually occurs in circumstances where a company is addressing a specific issue.56
vi Recent developments
The Tata dispute
Corporate governance regularly features in Indian public discourse, most recently with reference to the dispute at the Tata Group. Tata Sons Ltd is the principal holding company of the Tata Group, and the Tata Trusts and the Pallonji Group are the majority shareholders in Tata Sons.57 While that seems to have abated, it reiterated a number of issues such as the constraints under which independent directors must function and the relative silence of regulators and institutional investors. The Tata Dispute has been appealed before the National Company Law Appellate Tribunal.
Kotak Committee report
In June 2017, SEBI constituted the Kotak Committee to recommend amendments to the Listing Regulations with the intent to enhance fairness, transparency and standards of governance. The Committee submitted its report on 5 October 2017.58
The report has received significant criticism from market players59 as well as the MCA – the latter alleging that, should the recommendations be implemented, SEBI will make it more difficult to do business in India, and that this is contrary to a significant policy objective of the government.
SEBI has accepted several recommendations of the Kotak Committee and made consequent changes to relevant regulations, including, inter alia:
- an enhanced role for the audit committee, nomination and remuneration committee, and risk management committee;
- additional disclosures relating to the utilisation of funds from preferential issues and expertise of directors; and
- enhanced obligations on listed companies with respect to subsidiaries. Certain other recommendations have been accepted with some modifications, and consequent changes have been made to relevant regulations.
The report has reignited the debate around governance in the Indian context. The paradigm that governance derogates from business efficiency is, arguably, not unique to India, but in our view, India could easily absorb a more robust governance framework without derogating from any material business concerns. The apprehension to the contrary, perhaps, speaks to the systemic issues that the Kotak Committee sought to address.
The biggest challenge to implementing a sound corporate governance regime in India is the fact that a large number of Indian listed companies continue to remain significantly controlled by promoters who exercise suzerainty in no small measure.
Despite this, the 'meta' is changing, and India is slowly moving to adopt and, more importantly, implement standards of governance that address the issues unique to our jurisdiction.
1 Justin Bharucha is a partner and Mita Sood is an associate at Bharucha & Partners.
2 Starting with the Satyam issue in 2009. See www.thehindu.com/specials/timelines/satyam-scandal-who-what-and-when/article7084878.ece.
3 Most recently in the Tata group. Also see, for example, https://www.livemint.com/Companies/6kicwU0vBindbn2q9Up9PN/2017-The-year-of-the-minority-shareholder.html.
4 See, inter alia, Securities and Exchange Board of India, 'Report of the Takeover Regulations Advisory Committee', dated 19 July 2010; and Umakanth Varottil, 'The Advent of Shareholder Activism in India', Journal on Governance, Vol. 1, No. 6 (2012). Also note that in 2010, a new requirement was introduced for all listed companies (and those seeking to list) to maintain a minimum level of public shareholding of 25 per cent.
5 See Section II.i on independent directors.
6 For example, the Insurance Regulatory and Development Authority, which regulates companies in the insurance sector, promulgated a discussion paper on 11 August 2016 proposing mandatory listing for insurance companies. Presently, there is no such obligation on insurance companies.
7 However, see below regarding committees of the board.
8 Under Indian law, a public company may list its securities on a stock exchange or continue as an unlisted entity. The principle distinction between a private company and an unlisted public company is that no private company may have more than 200 shareholders and there is no cap on the number of shareholders of a public company (whether or not that public company is listed). There are other distinctions, including in relation to compliance.
9 Who may or may not be an independent director; see following subsections.
10 For the top 2000 listed companies, the board of directors must comprise at least six directors: this requirement comes into effect on 1 April 2019 for the top 1,000 listed companies and on 1 April 2020 for the top 2,000 listed companies. Further, the top 500 listed companies that have an identifiable promoter must ensure that the chairperson of the board is a non-executive director and not related, as defined in the Companies Act, 2013, with the managing director or the chief executive officer. The top 500, 1,000 and 2,000 listed companies are determined on the basis of market capitalisation as at the end of the previous financial year.
11 The board of directors of the top 1,000 listed companies are required to have at least one independent female director. This requirement comes into effect from 1 April 2019 for the top 500 listed companies and 1 April 2020 for the top 1,000 listed companies. The top 500 and 1,000 listed companies are determined on the basis of market capitalisation as at the end of the previous financial year.
12 Includes directorships and shareholding interests.
13 Or its holding, subsidiary or associate companies. Additionally independent directors of listed companies cannot be members of the promoter group of the listed company or be non-independent directors of another company on the board of which any non-independent director of the relevant listed company is an independent director.
14 A relative means any person who is related to another, inter alia, by way of husband; wife; father; mother; son; son's wife; daughter; daughter's husband; brother; sister; or members of a Hindu undivided family.
15 A pecuniary relationship does not include receipt of remuneration as such director or transactions that do not exceed 10 per cent of the total income of the director.
16 Or its holding, subsidiary or associate companies, or their promoters or directors.
17 Or its holding, subsidiary or associate companies.
18 Or its holding, subsidiary or associate companies.
19 Or its holding, subsidiary or associate companies.
20 For example, with reference to finance, law, management, sales, marketing, administration, research, corporate governance and technical operations.
21 The regulatory discourse on independent directors suggests that ensuring the appointment of independent directors is an end in itself. While not incorrect, the efficacy of independent directors is subject to scrutiny and question in the Indian context and, arguably, practice must evolve to allow for increased freedom of action by independent directors.
22 Each instance of a lapse in corporate governance results in significant discussion of the relevance and role of independent directors. See, for example, http://timesofindia.indiatimes.com/business/india-business/Role-of-independent-directors-in-focus/articleshow/55123638.cms; http://economictimes.indiatimes.com/wealth/real-estate/independent-directors-in-real-estate-developers-boards-press-exit-buttons-on-rera-fear/articleshow/54574616.cms; and www.livemint.com/Companies/rcUibmcykkPea3DFnsYktI/Are-Tata-group-independent-directors-doing-justice-to-their.html.
23 See Section V.vi on the Tata dispute.
24 In Dale and Carrington Invt (P) Ltd and Anr v. P K Prathapan and Ors AIR 2005 SC 1624, the Supreme Court held that directors are agents of the company to the extent they have been authorised to perform certain acts on behalf of the company and that no director may act independently of that authority.
25 This may include the operation of bank accounts.
26 Of the board as well as general meetings.
27 Of course, a challenge alleging oppression of minorities will likely impugn this determination by the chair.
28 A managing director is a director who, by virtue of the articles of a company or an agreement with the company or a resolution passed in its general meeting or by its board of directors, is entrusted with substantial powers of management of the affairs of the company, and includes a director occupying the position of managing director, by whatever name called.
29 An executive director is a director who is also working for the company in an executive capacity.
30 Nor be reappointed.
31 Nusli Wadia.
32 The former chair of Tata Sons Limited, who was removed from office.
33 See footnote 25.
34 Additionally, the following public companies, not being joint ventures, wholly owned subsidiaries or dormant companies, are also required to set up an audit committee and a nomination and remuneration committee: companies having paid-up capital of 100 million rupees or more; companies having turnover of 1 billion rupees or more; and companies having, in aggregate, outstanding loans or borrowings or debentures or deposits exceeding 500 million rupees or more.
36 See Section II.ii on liabilities and duties of directors.
37 In the event that a director is appointed by the board, his or her appointment must be regularised and approved by the shareholders on or before the final date for holding the following annual general meeting, either at the annual general meeting or at a separate extraordinary general meeting.
38 See Section II.i on disqualifications from appointment as director.
39 Without ignoring the interests of the nominator. See Firestone Rubber v. Synthetic Rubber (1971) 41 Comp Cas 377; Needle Industries v. Needle Industries AIR 1981 SC 1298; and Offshore Services v. Bombay Offshore Suppliers (1994) 2 Comp LJ 407.
41 For example, M&A activity including joint ventures.
42 Acquisition of 5 per cent or more of the shares or voting rights.
43 The obligation to disclose arises even if the change results in that person's shareholding or voting rights falling below 5 per cent.
44 Indian law precludes a foreign firm of chartered accountants from conducting an audit of an Indian company. Consequently, foreign firms establish relationships with Indian firms of chartered accountants to conduct such audits. This is permitted at Indian law and is common practice.
45 The Satyam scandal of 2008 remains one of the biggest scandals in India. Satyam, an IT company, manipulated its books of accounts for a period of eight years to the extent that it reported an operating margin of 24 per cent as opposed to its actual operating margin of 3 per cent for the quarter ending in September 2008.
46 See, for example, http://www.livemint.com/Money/ofhvmX2wEbMnE8YqOkDMOO/A-double-whammy-for-PwC-and-a-wakeup-call-for-all-auditors.html; and http://www.firstpost.com/business/sebi-bans-pwc-for-2-years-it-is-unprecedented-but-a-wake-up-call-for-auditors-others-associated-with-capital-markets-4301175.html.
47 The Companies Act 2013 also requires companies that accept deposits from the public, and that have borrowed money from banks and financial institutions in excess of 500 million rupees, to establish a vigil mechanism.
48 In cases where the company does not have an audit committee, the board of directors shall nominate a director to perform the role of the audit committee for the purpose of the vigil mechanism.
49 Companies having a net worth of 5 billion rupees or more, or a turnover of 10 billion rupees or more, or a net profit of 50 million rupees or more during the immediately preceding financial year.
50 There are no separate rights available to long-term shareholders: tenure of shareholding is not the basis for determining the extent of rights of a shareholder.
51 See Section II.i on who can represent the company.
52 Darius Rutton Kavasmaneck v. Gharda Chemicals Limited, Suit Number 2932 of 2011, decided on 12 December 2014.
53 Rajeev Saumitra v. Neetu Singh I A No. 17545/2015 in CS(OS) No. 2528/2015.
54 Regulation 26(2)(a) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 2011.
55 Section 202 of the Companies Act 2013.
56 For example, Cyrus Mistry's open letter; see below regarding the Tata dispute.
57 For details, see the India Chapter in the 2017 edition of The Corporate Governance Review.
58 For details, see the India chapter in the 2018 edition of The Corporate Governance Review.
59 See, for example, http://www.moneylife.in/article/7-flaws-that-have-killed-the-kotak-committee-report/51935.html; https://economictimes.indiatimes.com/markets/stocks/news/kotak-panel-report-on-corporate-governance-not-a-magic-wand-committee-members/articleshow/61170805.cms; and https://cfo.economictimes.indiatimes.com/news/kotak-committee-report-wasnt-needed-governance-in-spirit-more-important/61024668.