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Independent directors are now a crucial part of Indian company law

Independent directors are now a crucial part of Indian company law

DeepaMookerjee_CompaniesBillContinuing with our series of posts on the Companies Act, 2013 (“2013 Act”), let us now turn our attention to the role of independent directors in a company, an issue that has become increasingly important after the Enron and the Satyam scandals. As I will discuss below, India’s new company law has recognised independent directors as a vital facet in the operation of a company.

Independent directors are considered the watchdogs of a company. Appointed to the board of directors of a company to oversee its business, they should be free of all external influences. To ensure their complete autonomy, an independent director should not have any material or pecuniary relationship with the company.

IndependentDirector_CorporateGovernanceWatchdogInterestingly, the Companies Act, 1956 did not contain any reference to independent directors. Further, the reference found in Clause 49 of the listing agreement is only applicable to listed companies.

Definition: The 2013 Act, for the first time, defines an “independent director”. Interestingly, the definition in Section 2(47) is similar to the one provided in the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009, a regulation applicable only to listed companies. The principle of impartiality is embedded in this definition. An independent director can only be a person:

– who is not a managing director, whole-time director, or a nominee director;

– who is not or was not a promoter of the company or its holding, subsidiary, or associate company;

– who is not related to the promoters or the directors of the company, its holding, subsidiary, or associate company; and

– who has or had no pecuniary relationship with the company, its holding, subsidiary, or associate company, or their promoters, or directors, during the two immediately preceding financial years or during the current financial year.

Keeping in mind that an independent director must be free from all influence, the 2013 Act also places limits on the amount of shares that can be held in the company by a relative of such a director. Independent directors are also not entitled to any remuneration in the form of stock options.

Number of independent directors: Under Section 149 of the 2013 Act, there is a specific obligation on every listed public company that at least one-third of the board of directors should comprise of independent directors. This mirrors the requirement in Clause 49 of the listing agreement, and marks the first time that corporate governance norms have been recognised in company law in India. Additionally, Section 177(3) states that the majority of the members of an audit committee (in a listed company) must be comprised of independent directors.

In fact, Section 173(2) of the 2013 Act states that any board meeting held at shorter notice (to transact urgent business) requires the presence of at least one independent director. If such a director is not present, the matter discussed at the board will be considered approved only once an independent director ratifies it.

Protection from liability: Finally, in order to encourage a healthy environment where learned and well-respected individuals become independent directors in a company, the 2013 Act has, to a certain extent, protected independent directors from liability. Section 149 states that independent directors are liable only if any fraudulent act has been committed with the consent of such a director or where such director has not acted diligently and if such an act is attributable to the board process.

These are all welcome changes, and indeed, they will help improve the manner in which business is run in India by instilling strong corporate governance norms in a company.

(Deepa Mookerjee is part of the faculty on myLaw.net.)

9 comments

  • completely unrelated to the post, but relevant to the blog.

    Can I suggest you to have a wordpress plugin that allows the blogpost to come to us via email. or at least inform is that there is a new blog now.

    that ways we may not miss any blog post.

  • Pls tell me if independent directors who are not (now) eligible for stock option under company act 2013, is it means the clause 49 rule of holing of max 2% shares will be null and void. Does it mean the they can not have any share captial holing in the comapny pls reply it is urgent

    • Dear Mita,

      Currently the Companies Act, 2013 clearly states that independent directors cannot participate in any stock option. Also, it states that the independent directors cannot have any pecuniary relationship with the company. The SEBI has also stated that it is planning on revising its norms (which may include Clause 49) to be in line with the requirements of the Companies Act, 2013.

      Therefore, if this section is notified in its current form, it is correct to state that independent directors cannot hold any stock options in the company.

      Cheers

  • Hi,

    As per Sec 149(3) “Every company shall have at least one director who has stayed in India for a total
    period of not less than one hundred and eighty-two days in the previous calendar year”.

    My query is when should such director be appointed?
    What is the effective date for calculation of previous calender year?

    Thanks in advance.

    • Hi Raghav,

      Thanks for your comment. A director can be appointed at any time during the year.

      Assume you are appointing the director anytime between January 2013- December, 2013. A plain reading of the section would indicate that the director should have stayed in India for a total period of not less than one hundred and eighty-two days in the previous calendar year, that is from January 2012- December 2012.

      Trust this clarifies.

      Cheers
      Deepa

  • hie
    my query is that since when is the section applicable as in since when will it be started as soon as the director joins the office or will he be given duration of some months to complete the time limit after joining. please rply as soon as possible.
    thank you

    • Hi Komal,

      I am a little unsure of which time limit you are referring to. If it is in relation to the 182 days residence requirement, remember that the director should have been in India for atleast 182 days in the previous financial year. So, when a director is appointed he or she should have already fulfilled this requirement as this pertains to the previous calendar year. No additional time can be given after the director is appointed to fulfill requirements with respect to the last calendar year.

      Trust this clarifies.

      Cheers
      Deepa

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