Independent Directors are hardly independent

DIRECTORS
“Director” includes any person occupying the position of director, by
whatever name called;
It is not the name by which a person is called but the position he occupies
and the functions and the duties which he discharges that determine
whether in fact he is a director or not.
An executive of the company, who is designated as executive director, but
who is not a member of the Board, is not a director.

TYPES OF DIRECTORS

Companies Act
 Rotational Director

 Permanent Director (not liable to retire by rotation)

 Special Director – appointed by the Central Government when

empowered by the Tribunal under Section 408. He shall hold the

office till the pleasure of the Central Government and shall not be
liable to retire by rotation nor shall he be liable to hold any
qualification share.

Listing Agreement [Clause 49]

 Executive Director

 Non-executive directors

LEGAL POSITION OF DIRECTORS

Directors as agents - Directors may correctly be described as agents of

the company. Cairns, LJ observed: "The company itself cannot act in its
own person; it can only act through directors, and the case is, as regards
those directors, merely the ordinary case of principal and agent".
Directors as trustees - Directors are regarded as trustees of the company's
assets, and of the powers that vest them because they administer those
assets and perform duties in the interest of the company and not for their
own personal advantage.
Directors as managing partners - The persons holding this view consider
company as large partnership, directors being charged with the
responsibility of managing the affairs. The other shareholders are
virtually dormant partners. By virtue of the various provisions in the
Memorandum and Articles, they enjoy vast powers of management and
act as the supreme policy and decision-making body.

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CONSTITUTION OF BOARD OF DIRECTORS

Minimum number of directors (Section 252)

• Every public company shall have at least three directors:
• The small shareholders of a public company may elect a director
(Small shareholder Director), —
 a paid-up capital of Rs. 5 Crore or more;

 1,000 or more small shareholders,

“Small shareholders” means a shareholder holding shares of nominal

value of Rs. 25,000 or less in a public company.
• A private limited company shall have at least two directors.

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 Independent Directors are hardly independent

According to Clause 49 of SEBI

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Sl Existing provisions ofProposed amendments Rationale for the proposed

no. Clause 49 amendments
1. Board composition and
Disclosures:

Clause 49.I.A.ii states that

where the Chairman of theIt is proposed that a provision beSEBI is in receipt of views /
Board is a non-executiveadded stating that if the non-representations that in certain
director, at least one-third ofexecutive Chairman is a promotercompanies the promoters or
the Board should compriseor is related to promoters orpromoters of the promoter company
of independent directors andpersons occupying managementor their close relatives designate
in case he is an executivepositions at the Board level or atthemselves as non-executive
director, at least half of theone level below the Board, heChairman of the listed company and
Board should comprise ofwould not be treated ashence, they cannot be considered
independent directors. independent director and thetruly “non-executive” in the sense of
company in such a case, would bethe term.
required to have 50% independent
directors on its Board.

2. Relation between
independent directors:

There is no existing
provision in Clause 49 whichIt is proposed to stipulate thatViews/representations have been
speaks about the relationcompanies shall disclose thereceived by SEBI stating that some
amongst independentrelation between independentcompanies have independent
directors. directors inter-se as well as otherdirectors who are related to each
directors of the company notother. They further state that such
holding management position, inpractices are only technical
all documents where the details ofcompliance and do not uphold the
the Board of directors arespirit of the clause and hence such
incorporated/ given forpersons should not be considered
information of the public/independent.
shareholders. It may not be
possible to mandate a blanket
provision that independent
directors should not be related to
each other.

3. Time gap between the

resignation /removal of an
independent director and
the appointment of
another in his place:

There is no existing
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 Independent Directors are hardly independent

I. Independent Director
Previous Definition Amended Definition

'Independent Director' means apart from Now besides the existing definition
receiving director’s remuneration, does not following additional requirements have
have any material pecuniary relationships been introduced:
or transactions with the company, its Independent Director is one who:
promoters, its senior management or its ♦ is not related to promoters or
holding company, its subsidiaries and management at the board level or at
associated companies; one level below the board;
♦ has not been an executive of the
company in the immediately preceding
three financial years;
♦ is not a partner or an executive of the
statutory audit firm or the internal audit
firm that is associated with the
company, and has not been a partner
or an executive of any such firm for the
last three years. This will also apply to
legal firm(s) and consulting firm(s) that
have a material association with the
entity.
♦ is not a supplier, service provider or
customer of the company. This should
include lessor-lessee type relationships
also; and
♦ is not a substantial shareholder of the
company, i.e. owning two percent or
more of the block of voting shares.

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Who are Independent Directors

As per Clause 49 of the Listing Agreements an ‘independent director’

shall mean non-executive director of the company who
a. apart from receiving director’s remuneration, does not have any
material pecuniary relationships or transactions with the company,
its promoters, its senior management or its holding company, its
subsidiaries and associated companies;
b. is not related to promoters or management at the board level or at
one level below the board;
c. has not been an executive of the company in the immediately
preceding three financial years;
d. is not a partner or an executive of the statutory audit firm or the
internal audit firm that is associated with the company, and has not
been a partner or an executive of any such firm for the last three
years. This will also apply to legal firm(s) and consulting firm(s)
that have a material association with the entity.
e. is not a supplier, service provider or customer of the company. This
should include lessor-lessee type relationships also; and
f. is not a substantial shareholder of the company, i.e. owning two
percent or more of the block of voting shares.

[Institutional directors on the boards of companies shall be considered as

independent directors whether the institution is an investing institution or
a lending institution.]

Other Definitions:

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♦ Higgs’ definition: “that a non-executive director is considered

independent when the board determines that the director is
independent in character and judgement and there are no
relationships or circumstances which could affect, or appear to
affect, the director's judgement”.
• Such “relationships” are enumerated
♦ NYSE definition: Director or immediate family member -
– not to be an executive of the company receiving $100000
– Not to affiliated in professional capacity
– Not to be one who or whose immediate family members
work on another company where the executives of the
company serve on the compensation committee.
– A director or his immediate family member is an executive
officer, of a company that makes payments to, or receives
payments from, the listed company for property or services
in an amount which, in any single fiscal year, exceeds the
greater of $1 million, or 2% of such other unit’s three years
company's consolidated gross revenues, would not be
independent
– “Family” defined to include person's spouse, parents,
children, siblings, mothers- and fathers-in-law, sons- and
daughters-in-law, brothers- and sisters-in-law, and anyone
(other than domestic employees) who shares such person's
home.
♦ To state simply the expression ‘Independent Directors’ has been
defined to mean directors who apart from receiving director’s
remuneration, do not have any other material pecuniary relation or
transactions with the company, its promoters, its management or its
subsidiaries, which in the judgement of the board may affect
independence of judgement of directors.

Selection of Independent Director

♦ The selection and appointment of independent directors should be

transparent and on certain valued basis.
♦ Therefore, the companies should have an entirely independent
nomination committee which should determine the qualifications
for Board membership and should identify and evaluate candidates
for nomination to the Board.
♦ It would be more appropriate that the code of Corporate
Governance of a company should specifically include the

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qualifications and attributes that the company seeks of an

independent director.
♦ A critical element of a director being independent is his
independence to the management both in fact and perception by the
public.
♦ In considering the independence, it is necessary to focus not only
on whether a director's background and current activities qualify
him as independent but also whether he can act independently of
the management.
♦ In other words, the independent directors must not only be
independent according to the legislative and stock exchange listing
standards but also independent in thought and action i.e.
qualitatively independent.
♦ Such qualitative independence will ensure that directors think and
act independently without regard to management's influence.

Role and responsibilities of Independent

directors under the Companies Act

♦ The role and responsibility of an individual director, of course,

would depend upon the nature of his directorship.
♦ Broadly, there are three types of directors.
♦ Full time, executive director who is normally a paid employee of a
company having some functional responsibility.
♦ Non executive but non independent director who is normally a
promoter of the company or having high stakes in the company.
♦ And finally independent directors who are not full time directors.
There is another class of directors known as nominee directors
representing some interests like lending institutions etc.
♦ An executive director, by very nature has much more
responsibilities than non executive directors. In law it is their
responsibility to ensure compliance with provisions of law failing
with they could be held liable as officers in default. As far as
independent directors are concerned, the position of law is
nebulous.

Role of Independent Directors

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♦ Independent directors broadly fit into the overall structure of

corporate governance, and are necessary to ensure effective,
balanced boards
♦ The board is the most significant instrument of corporate
governance
♦ Role Of Independent Directors

The non-executive directors should:

* Contribute to and constructively challenge development of
company strategy.
* Scrutinize management performance.
* Satisfy them that financial information is accurate and ensure that
robust risk management is in place.
* Meet at least once a year without the chairman or executive
directors - and there should be a statement in the annual report
saying whether such meetings have taken place.
* Be prepared to attend AGMs and discuss issues relating to their
roles (especially chairmen of committees).
* Have a greater exposure to major shareholders (particularly the
senior independent director).

♦ Effectiveness of the board as the oversight body to oversee what

the management does
♦ Is there a better way to do it, in view of
– Recent scandals of disclosures and audits
– Size and scope of present day enterprise
– Complexity of operations

Responsibilities of Independent Directors

♦ Independent Director shall however periodically review legal
compliance reports prepared by the company as well as steps taken
by the company to cure any taint. In the event of any proceedings
against an independent director in connection with the affairs of the
company, defence shall not be permitted on the ground that the
independent director was unaware of this responsibility.
♦ To function to properly according to the spirit of corporate
governance as o director on the board and as Member/Chairman
across various committees viz. the Audit Committee, the

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Shareholders’ Grievance Committee and the Remuneration

Committee of the company.
♦ A director shall not be a member in more than 10 committees or act
as Chairman of more than five committees across all companies in
which he is a director. Furthermore it should be a mandatory
annual requirement for every director to inform the company about
the committee positions he occupies in other companies and notify
changes as and when they take place.
♦ At least one independent director on the Board of Directors of the
holding company shall be a director on the Board of Directors of
the subsidiary company.

Independent Directors under Listing Agreement in

India
♦ Composition of the Board:
– Not less than 50% of the board to be non-executive directors
– Independent Directors:
• If the chairman executive:
– At least half of the board should comprise of
independent directors
• If Chairman non-executive:
– At least one- third of the board should comprise
of independent directors
♦ Non-executive directors’ remuneration to be approved by
shareholders
♦ Board meetings – to meet at least 4 times, with gap not exceeding 3
months. Minimum information for board meetings laid down
♦ Committees of Directors –
– Audit Committee: requirements other than those u/s 292A
• shall have minimum 3 members all of them being
non-executive and majority of them being independent
• Chairman of the committee shall be an independent
director

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• To meet at least thrice a year

• Company Secretary to act as secretary to the
committee
– Remuneration Committee
– Shareholders/Investors Grievance Committee
– Limits on committee memberships and chairmanships

Derek Higgs report on independent directors:

♦ Average age of non-executive directors in FTSE 100 companies is

59, with 75% at 55 or over
♦ Average age of the chairman is 62; almost 40% are over 65
♦ The average remuneration of FTSE non-executive director is GBP
44000 in FTSE 100 companies; average remuneration of FTSE 100
chairman is GBP 426000.
♦ Average time in post is 4.3 years
Companies Act and Independent Directors
♦ The Companies Act looks at all directors alike:
– Throws some extra compliances in case of whole time
directors
– Requires some disclosures by interested directors
– Defines “officer in default” giving a degree of immunity to
directors other than the whole time directors
♦ Does not exempt independent directors from any of the duties,
liabilities, responsibilities of the Board
♦ Independent directors as much as part of the corporate governance
team as any other director
♦ Independent directors have the same power that other directors
have

Legal provisions
♦ Sec 5: officer in default:
– Independent directors are treated as such only where the
company does not have a wholetime director, or no specific
director is charged with a particular compliance:
• Alas – this provision is not applicable for compliances
under any other law
♦ Sec 267-269 applicable only to wholetime directors

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♦ Sec 274: applicable to all directors

♦ Sec 284: procedure for removal of directors applicable to all
directors
♦ Sec 291 – general powers exercisable through board meetings
♦ Sec 292 – certain powers may be delegated to wholetime directors
♦ Sec 292A – composition of the audit committee to include a
majority of directors other than wholetime directors
♦ Sec 297, 299, 300 – applicable to all directors
♦ Sec. 309 (4):
– Separate limits and restrictions applicable on remuneration
of independent directors
♦ Explanation IV to Schedule XIII: Managerial remuneration:
– Appointment and remuneration of managerial personnel to
be decided upon by the remuneration committee. Committee
to consist of at least 3 non-executive independent directors

Recent examples of liability of independent

directors
♦ In case of Worldcom and Enron, directors settled liabilities:
– $ 18 million by 10 outside directors in Worldcom
– $ 13 million by 10 directors in Enron
♦ In Walt Disney case, the court did not impose liability on directors:
– Ruling based on Delaware law
– Duty of care, fiduciary duty and gross negligence discussed
at length
♦ India:
– The conclusion is inevitable that the liability arises on
account of conduct , act or omission on the part of a person
and not merely on account of holding an office or a position
in a company. SC ruling in SMS Pharmaceuticals Ltd, Sept
2005

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CONCLUSION

The Independent Directors are expected to be knowledgeable man with

adequate skill and expertise but to ensure early contribution and to build
their knowledge about particular organization proper training on risk
management strategies of the organization is necessary. They should be
properly made aware of the standing of the particular company in the
market, future planning for growth, new products and service going to be
introduced.

One important aspect, which hinders the effectiveness of independent

directors, is the non availability of information. Many a times, such
directors do not have free access to information required to accomplish
their role in monitoring and controlling the activities of the companies
they are representing. It should be realized that the professionalism of
such directors will help them to increase overall value of the business by
looking at the business independently from the family. This change of
attitude is very vital for achieving excellence, as attitude determines
altitude.

Also there has been a considerable change in the attitude of the corporate
management in recent times and they are coming forward to implement
good corporate governance practices, realizing their importance.

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Bibliography

www.google.com

www.sebi.gov.in

www.vinodkothari.com

Notes of Mr. S. N. Ghosh

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