Ministry of Corporate Affairs: Relaxation of Rules Pertaining to Conduct of Statutory Meetings
In
view of the ongoing travel restrictions to restrict the spread of COVID-19, multiple
stakeholders, including the Institute of Company Secretaries of India (“ICSI”),
had made representations to the Ministry of Corporate Affairs (MCA) requesting a
relaxation in the applicability of certain provisions of the Companies Act,
2013 (“Act”) pertaining to the conduct of board and shareholder meetings.
Section
173 of the Act permits directors to attend board meetings through
video/audio-visual conference and Section 174 states that attendance through
video/audio-visual conference counts as quorum. Rule 3 of the Companies
(Meetings of Board and its Powers) Rules, 2014 discusses procedures to be
followed if any director elects to attend a board meeting through
audio-visual/video conference.
However,
Rule 4 of the Companies (Meetings of Board and its Powers) Rules, 2014 states
that the following matters shall not be dealt with in any meeting held through
audio-visual /video conferencing provided that where there is quorum presence
in a meeting through physical presence of directors, any other director may
participate conferencing through video or other audio visual means:
(i)
the
approval of the annual financial statements;
(ii)
the
approval of the board’s report;
(iii) the
approval of the prospectus;
(iv) the
audit committee meetings for consideration of financial statement (including
consolidated financial statement if any), to be approved by the board;
and
(v)
the
approval of the matter relating to amalgamation, merger, demerger, acquisition
and takeover
On 18 March 2020, the MCA issued a
notice granting in-principle approval for relaxation of the requirement of physical
presence of directors in board meetings until 30 June 2020. On 19 March 2020, the
MCA notified the Companies (Meetings of Board and its Powers) Amendment Rules,
2020 – to insert the following in Rule 4:
“(2)
For the period beginning from the commencement of the Companies (Meetings of
Board and its Powers) Amendment Rules, 2020 and ending on the 30 June 2020, the
meetings on matters referred to in sub-rule (1) may be held through video
conferencing or other audio visual means in accordance with rule 3”
This
is a welcome step indeed and will provide some much needed relief to companies
whose directors do not operate out of the same geographic location. However,
it must be noted that no relaxation has been made for the conduct of
shareholders’ meetings.
Simultaneously,
the MCA also issued an “Advisory on Preventive Measures to Contain the spread
of COVID-19”. Here, the MCA affirmed that it was examining the Act to ascertain
other relaxations that would increase the ease of functioning for companies
under the pandemic. The MCA also stated that companies and LLPs are “expected
and strongly advised” to institute work from home policies at least until 31
March 2020, to help propagate social distancing as a weapon against the spread
of COVID-19. The MCA also recommended the institution of staggered shifts for
essential workers.
To
adjudge corporate preparedness, the MCA stated that a web-form CAR (Companies
Affirmation of Readiness towards COVID-19) would be made available from 23
March 2020 onward. This form will need to be filed by every company and LLP. The
format of web-form CAR (available here) requires
each company and LLP to self-declare its compliance with COVID-19 guidelines,
including the availability of a work-from-home policy.
However,
web-form CAR does not appear to need any attachments (such as a copy of a COVID-19
Preparedness Policy or a work from home policy. Further, the consequences of
non-compliance have not been outlined. This is probably because, as on date of writing,
no binding rule or mandate has been issued by MCA obligating companies and LLPs
to institute a work from home policy – it remains a strong suggestion.
As
India enters a rigorous lock-down phase across large swathes of the country, it may
be necessary for MCA to bolster this requirement, at least for those
enterprises where some or all of the employees can work remotely.