7 Corporate Social Responsibility and Its Disclosure: An Analysis of Present Legal Provisions in India Debansu Das, Associate Professor, Department of Commerce, University of Kalyani, West Bengal, India ABSTRACT The objective of this paper is to examine and analyse the present legal provisions regulating corporate social responsibility and its disclosure in India. For the first time in August 2013, corporate social responsibility (CSR) in India was brought under the purview of legal requirements through the Companies Act, 2013. The present Act has mandated CSR spending for specified companies. It has specified the role of the Board of directors in approving CSR Policy and ensuring incurrence of 2% of net profit of the company every year on CSR activities in pursuance of its CSR Policy. Schedule VII to the Act has provided a list of CSR activities in respect of which companies may incur CSR expenditure. Companies (Corporate Social Responsibility Policy) Rules, 20I4 lays down the meaning of corporate social responsibility, specifies the manner of undertaking CSR activities and has provided format of disclosure of such activities in the Board s report, etc. However, the present Act does not provide any oversight mechanism by independent agency on compliance with CSR provision. Moreover, in case of failure to spend specified percentage of net profit on CSR activities in any financial year, the Act does not prescribe any penal provision for the same, nor does it provide opportunity to carry forward the unspent amount to be spent in subsequent years. In case of failure to make CSR expenditure, the Board is required to specify the reasons for not spending the amount in its report. Thus, the new provision on CSR spending is based on the principle of comply or disclose and is not legally enforceable. But this is expected to create pressure on applicable companies to make some amount of CSR expenditure and thereby contribute to equitable and sustainable development of India. Keywords: CSR, CSR Policy, CSR Spending, CSR Activities, Companies Act 2013, Companies (Corporate Social Responsibility Policy) Rules 20I4, India. 1. INTRODUCTION The present Companies Act, 2013 was enacted in India in August 2013. The earlier Companies Act, 1956 did not contain any specific provision for corporate social responsibility (CSR). So far as disclosure of CSR is concerned, a few pieces of social information like conservation of energy, technology absorption, etc. were required to be reported in the Directors Report in terms of the provision of section 217 of the Companies Act, 1956 read with the Companies (Disclosure of Particulars in the Report of Board of Directors) Rules, 1988. The majority of the social responsibility activities performed by Indian companies and their disclosure were voluntary in nature. The new Companies Act, 2013, for the first time, introduces both implicit as well as explicit provisions regarding corporate social responsibility (CSR). Section 166(2) of the Act contains an implicit provision for CSR which is applicable to all companies. This section requires a director of a company to act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, shareholders, and the community. It asks the directors for the protection of environment also. Section 135 of the Act contains explicit provision for CSR which makes it obligatory for certain types of companies to spend a specified percentage of net profit for performing their social responsibility. The Schedule VII to the Companies Act, 2013 specifies certain social responsibility activities in respect of which companies are required to make their spending. In exercise of the powers conferred under section 135 and sub-sections (1) and (2) of section 469 of the Companies Act, 2013, the Central Government has made the Companies (Corporate Social Responsibility Policy) Rules, 20I4 which requires such companies to make disclosure of certain CSR information. In this backdrop, the paper has discussed and analysed the present legal requirements governing corporate social responsibility and its reporting. The rest of the paper proceeds as follows. Section 2 specifies the objectives of the present study. Section 3 speaks about research methodology. Section 4 discusses and analyses relevant provisions of the Companies Act, 2013 and related Rules regarding corporate social responsibility. Section 5 discusses and analyses current legal provision relating to disclosure of
8 corporate social responsibility. Section 6 concludes the paper. 2. OBJECTIVES OF THE PRESENT STUDY The objectives of the present study are the following: (i) To discuss and analyse legal provisions regarding corporate social responsibility under the Companies Act, 2013 and related CSR Rules and (ii) To discuss and analyse legal requirements regarding disclosure of corporate social responsibility. 3. RESEARCH METHODOLOGY The present research is theoretical in nature and is based on relevant provisions of the Companies Act,1956, the Companies Act, 2013, Companies (Accounts) Rules, 2014, Companies (Disclosure of Particulars in the Report of Board of Directors) Rules, 1988, Companies (Corporate Social Responsibility Policy) Rules, 20I4 and other relevant literature. Findings of the study have been made from the examination and analyses of the abovementioned literature. 4. CORPORATE SOCIAL RESPONSIBILITY UNDER THE COMPANIES ACT, 2013 The new Companies Act 2013 makes it obligatory for specified companies to spend, in every financial year, at least two per cent of the average net profits of the company made during the three immediately preceding financial years, in pursuance of their Corporate Social Responsibility Policy [Section 135(5)]. 4.1 Applicability According to section 135(1), specified companies to which CSR provisions apply are those companies which have net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more, or a net profit of rupees five crore or more during any financial year. If a company satisfies any of these three criteria, then it comes under the ambit of section 135. Thus, a loss making company having a net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more, is under CSR obligation. This obligation is applicable to companies covered by section 135(1) irrespective of their listing status (whether they are listed or unlisted companies) and nature (Whether they are public or private companies). Rule 3(1) of Companies (Corporate Social Responsibility Policy) Rules 20I4 provides that every company including its holding or subsidiary, which fulfills any one of the criteria specified under section 135(1) is covered by the provision for spending on corporate social responsibility. This rule also requires a foreign company having its branch office or project office in India to comply with the provisions of section 135 of the Act and CSR rules which fulfills any one of the above criteria specified under section 135(1). The term foreign company has been defined under 2(42) of Companies Act, 2013. According to the proviso to rule 3(1) net worth, turnover or net profit of a foreign company shall be computed in accordance with the balance sheet and profit and loss account of such company prepared in accordance with the provisions of section 381(1)(a) and section 198 of the Companies Act, 2013. 4.2 Meaning of Corporate Social Responsibility under Indian Law Though the Companies Act has not defined corporate social responsibility, Companies (Corporate Social Responsibility Policy) Rules 20I4 has provided an inclusive definition of it. As per this Rules, corporate social responsibility means and includes but is not limited to: (i) Projects or prograrns relating to activities specified in Schedule VII to the Act or (ii) Projects or programmes relating to activities undertaken by the board of directors of a company in pursuance of recommendations of the CSR Committee of the Board as per declared CSR Policy of the company. However, CSR Policy should cover subjects enumerated in Schedule Vll of the Act. 4.3 Corporate Social Responsibility Activities The Schedule VII to the Companies Act 2013 originally specified eight social responsibility activities in respect of which companies were required to make their spending under section 135(5). Such activities were related to (i) eradicating extreme hunger and poverty. (ii) promotion of education, (iii) promoting gender equality and empowering women, (iv) reducing child mortality and improving maternal health, (v) combating human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases, (vi) ensuring environmental sustainability, (vii) employment enhancing vocational skills and (viii) social business projects. Besides the above activities, the Schedule VII allowed companies to spend on other social activities which were to be prescribed under Rules. Apart from spending on social activities, companies could make contribution to the Prime Minister's National Relief Fund or any other fund set up by the Central Government or the State Governments for socio-economic development
9 and relief and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women. Subsequently, the Schedule VII has been amended a number of times by several notifications [namely, Notification Nos. G.S.R. 130(E), dated 27-2-2014, G.S.R. 261(E), dated 31-3-2014, G.S.R. 568(E), dated 6-8-2014 and G.S.R. 741(E) dated 24-10-2014]. These amendments have deleted some CSR activities which were originally included in Schedule VII and at the same time added some new CSR items in the said schedule. Presently, the amended Schedule VII includes the following CSR activities: (i) Eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swach Bharat Kosh set up by the Central Government for the promotion of sanitation and making available safe drinking water: (ii) Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly, and the differently abled and livelihood enhancement projects; (iii) Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups; (iv) Ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agro forestry, conservation of natural resources and maintaining quality of soil, air and water including contribution to the Clean Ganga Fund setup by the Central Government for rejuvenation of river Ganga; (v) Protection of national heritage, alt and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional arts and handicrafts: (vi) Measures for the benefit of armed forces veterans, war widows and their dependents; (vii) Training to promote rural sports, nationally recognised sports, Paralympic sports and Olympic sports; (viii) Contribution to the Prime Minister's National Relief Fund or any other fund set up by the Central Government for socio-economic development and relief and welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women; (ix) Contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government; (x) Rural development projects. (xi) Slum area development. For the purposes of this item, the term slum area shall mean any area declared as such by the Central Government or any State Government or any other competent authority under any law for the time being in force. It should be noted that above list of activities provided in Schedule VII is not exhaustive. The circular No. 21/2014, dated 18.6.2014 issued by the Ministry of Corporate Affairs clarifies that while activities undertaken in pursuance of the CSR policy must be relatable to Schedule VII of the Companies Act 2013, the entries in the said Schedule VII must be interpreted liberally so as to capture the essence of the subjects enumerated in the said Schedule. This circular claims that the items enlisted in the amended Schedule VII of the Act, are broad-based and are intended to cover a wide range of activities as illustratively mentioned in the Annexure in the said circular. 4.4 Modes of Incurring CSR Expenses Rule 4 of the Companies (Corporate Social Responsibility Policy) Rules 20I4 allowed following mode of incurring CSR expenses: 4.4.1 CSR Projects or Programs or Activities Carried On by Self The CSR activities may be undertaken by the company as projects or programs or activities in terms of its stated CSR Policy. These projects or programs or activities may be either new or ongoing [Rule 4(1)]. 4.4.2 CSR Activities Undertaken Through a Registered Trust or a Registered Society or a Company Established Under Section 8 of the Companies Act Instead of carrying out CSR activities by itself, on fulfillment of certain conditions, a company may decide to undertake such activities approved by the CSR committee through a registered trust or a registered society or a company established by the company or its holding or subsidiary or associate company under section 8 of the Act or otherwise [Rule 4(2)]. According to first proviso to this sub-rule if such trust, society or company is not established by the company or its holding or subsidiary or associate company, it shall have an established track record of three years in undertaking similar programs or projects. The second proviso to this sub-rule requires that the company should specify the project or progams to be undertaken through these entities, the modalities of utilization of
10 funds on such projects and programs and the monitoring and reporting mechanism. Circular No. 21/2014, dated 18.6.2014 issued by the MCA clarifies that contribution to corpus of a trust or society or section 8 companies etc. will qualify as CSR expenditure as long as (a) the trust or society or section 8 companies etc. is created exclusively for undertaking CSR activities or (b) where the corpus is created exclusively for a purpose directly relatable to a subject covered in Schedule VII of the Act. 4.4.3 Collaboration with Other Company A company may also collaborate with other company for undertaking projects or programs or CSR activities jointly. In this case, collaboration should be made in such a manner that the CSR committees of respective companies are in a position to report separately on such projects or programs [Rule 4(3)]. 4.4.4 Capacity Building of Own Personnel and Personnel of Implementing Agencies Companies may build CSR capacities of their own personnel as well as those of their Implementing agencies through Institutions with established track records of at least three financial years. But such expenditure should be restricted to five percent of total CSR expenditure of the company in one financial year [Rule 4(6)]. According to Circular No. 21/2014, dated 18.6.2014 issued by the MCA, following two expenses would qualify as CSR expenses: (i) Salaries paid by the companies to regular CSR staff as well as to volunteers of the companies (in proportion to company s time/hours spent specifically on CSR) can be factored into CSR project cost as part of the CSR expenditure and (ii) Expenditure incurred by foreign holding company for CSR activities in India will qualify as CSR spend of the Indian subsidiary if, the CSR expenditures are routed through Indian subsidiaries and if the Indian subsidiary is required to do so as per section 135 of the Act. 4.5 Restriction on CSR activities Rule 4 of the Companies (Corporate Social Responsibility Policy) Rules 20I4 has imposed certain restrictive provisions in respect of CSR activities. First, CSR activities exclude activities undertaken in pursuance of its normal course of business [Rule 4(1)]. Second, CSR expenditure shall include expenditure on the CSR projects or programs or activities undertaken in India only [Rule 4(4)]. Third, the CSR projects or programs or activities that benefit only the employees of the company and their families shall not be considered as CSR activities [Rule 4(5)]. Fourth, contribution of any amount directly or indirectly to any political party shall not be considered as CSR activity [Rule 4(7)]. According to the circular No. 21/2014, dated 18.6.2014 issued by the MCA, following expenses would not be qualified as part of CSR expenditure: (i) One-off events such as marathons/ awards/ charitable contribution/ advertisement/ sponsorships of TV programmes etc. and (ii) Expenses incurred by companies for the fulfillment of any Act/ Statute of regulations (such as Labour Laws, Land Acquisition Act etc.) would not count as CSR expenditure under the Companies Act. 4.6 Formation of CSR Committee Every company meeting the specified threshold limit in respect of profit, net worth or turnover, is required to constitute a Corporate Social Responsibility Committee of the Board consisting of at least three directors, out of which one must be an independent director [Section 135(1)]. However, as per Rule 5 of the Companies (CSR Policy) Rules, 2014, an unlisted public company or a private company which is not required to appoint an independent director pursuant to section 149 (4) of the Act, shall have its CSR Committee without such independent director. In case of a private company having only two directors on its Board shall constitute its CSR Committee with two such directors. With respect to a foreign company covered under these rules, the CSR Committee shall comprise at least two persons of which one person shall be a person resident in India (who is authorised to accept on behalf of the company service of process and any notices or other documents required to be served on the company as specified under section 380(1)(d) of the Act) and another person shall be nominated by the foreign company. 4.7 Functions of CSR Committee Section 135(3) of the Act spells out the following functions of Corporate Social Responsibility Committee: (a) to formulate and recommend to the Board, a Corporate Social Responsibility Policy which shall indicate the activities to be undertaken by the company as specified in Schedule VII; (b) to recommend the amount of expenditure to be incurred on the activities referred to in clause (a); and (c) to monitor the Corporate Social Responsibility Policy of the company from time to time.
11 As per Rule 5(2), the CSR Committee shall institute a transparent monitoring mechanism for implementation of the CSR projects or programs or activities undertaken by the company. 4.8 Duty of the Board of Directors It is the duty of the Board, after taking into account the recommendations made by the Corporate Social Responsibility Committee, to approve the Corporate Social Responsibility Policy for the company and disclose contents of such Policy in its report and also place it on the company's website, if any [Section 135(4)(a)]. According to Rule 6 of the Companies (CSR Policy) Rules 20I4, the CSR Policy of the company should include (i) a list of CSR projects or programs which a company plans to undertake falling within the purview of the Schedule VII of the Act, specifying modalities of execution of such projects or programs and implementation schedules for the same and (ii) monitoring process of such projects or Programs. The CSR Policy of the company should specify that the surplus arising out of the CSR projects or programs or activities shall not form part of the business profit of a company. The Board of every company is also to ensure that the activities as are included in Corporate Social Responsibility Policy of the company are undertaken by the company [Section 135(4)(b)]. Rule 6 of the Companies (CSR Policy) Rules 20I4 further requires that the Board of Directors shall ensure that activities included by a company in its Corporate Social Responsibility Policy are related to the activities included in Schedule VII of the Act. The Act imposes the duty of compulsory spending on CSR activities on the Board of every specified company. Such spending is to be made in pursuance of its Corporate Social Responsibility Policy. Companies are required to give preference to the local area and areas around it where it operates, for spending the amount earmarked for Corporate Social Responsibility activities [1st proviso of Section 135(5)]. If a company fails to spend the specified percentage of its net profit on CSR activities, the Board is required to disclose in its report the reasons for not spending the same [2 nd proviso of Section 135(5)]. 4.9 Punishment for Contravention of Section 166 Section 166(2) of the Act assigns the duty to directors of company to act in good faith in the best interests of the company, its employees, shareholders, community and for the protection of environment. If a director of the company contravenes the provisions of this section such director shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees [166(7)]. 4.10 Punishment for Nondisclosure of CSR Information Under Section 134(3) (o) in board s Report If a company fails to disclose CSR information in board s report as required under section 134(3)(o),it shall be punishable with fine which shall not be less than Rs. 50,000 but which may extend to Rs. 25,00,000 and every officer who is in default shall be punishable with imprisonment for a term which may extend to 3 years or with fine which shall not be less than Rs. 50,000 but which may extend to Rs. 5,00,000, or with both as per section 134(8). 4.11 Punishment for Contravention of Section 135 There is no specific provision of punishment for failure under section 135(5) to spend specified percentage of net profit on CSR activities. For not incurring CSR expenditure, the second proviso to section 135(5) specifically states Provided further that if the company fails to spend such amount, the Board shall, in its report made under clause (o) of sub-section (3) of section 134, specify the reasons for not spending the amount. Thus, for not spending on CSR activities, the course of action directed by the Act is to explain reasons for the same in board s report but no penal provision has been prescribed. It seems that spirit of the law for CSR spending is comply or explain. 5. DISCLOSURE OF CORPORATE SOCIAL RESPONSIBILITY INFORMATION The Companies Act, 2013 as well as the Companies (Corporate Social Responsibility Policy) Rules, 20I4, lay down certain disclosure requirements in respect of corporate social responsibility. Section 135(4)(a) of the Act and rule 9 provide that the Board of Directors of the company shall disclose contents of CSR policy in its report and the same shall be displayed on the company's website, if any. Section 134(3)(o) requires that the report by the Board of Directors shall include the details of the policy developed and implemented by the company on corporate social responsibility initiatives taken during the year. If a company fails to spend the specified amount on CSR activities, the Board is required to disclose in its report the reasons for not spending the amount [2 nd proviso of Section 135(5)]. The Board's report under sub-section (3) of section 134 shall disclose the composition of the Corporate Social Responsibility Committee [Section 135(2)]. As per rule 6 the CSR Policy of the company shall specify that the
12 surplus arising out of the CSR projects or programs or activities shall not form part of the business profit of a company. Annexure to the Companies (Corporate Social Responsibility Policy) Rules, 20I4, requires every specified company to include an annual report on CSR in its Board's Report pertaining to a financial year commencing on or after the1st day of April, 2014. Such annual report on CSR shall contain the following particulars: i) A brief outline of the company's CSR policy, including an overview of projects or programs proposed to be undertaken and a reference to the web-link to the CSR policy and projects or programmes. ii) The Composition of the CSR Committee. iii) Average net profit of the company for last three financial years iv) Prescribed CSR Expenditure [two per cent of the amount as in item (III) above] v) Details of CSR spent during the financial year. (a) Total amount to be spent for the financial year; (b) Amount unspent, if any; (c) Manner in which the amount spent during the financial year. vi) In case the company has failed to spend the two per cent of the average net profit of the last three financial years or any part thereof, the company shall provide the reasons for not spending the amount in its Board report. vii) A responsibility statement of the CSR Committee that the implementation and monitoring of CSR Policy, is in compliance with CSR objectives and Policy of the company. Where a company is covered by section 135, aggregate amount of expenditure incurred on corporate social responsibility activities is required to be disclosed by way of notes by virtue of Item 5(i) (k) of the General Instructions for Preparation of Statement of Profit and Loss under Schedule III to the Companies Act, 2013. Since Schedule III uses the words expenditure incurred, so disclosure should be made on accrual basis and not on cash basis. 6. CONCLUSION Enactment of provision under the Companies Act, 2013 for compulsory spending on CSR by large companies and requirement for disclosure of certain CSR matters are welcome moves on the part of Indian legislators. However, disclosure of many important social information items, particularly those having negative social impact, like magnitude of pollutants generated by the company along with the amount of social cost, incidence of accidents of employees and amount of compensation provided, rate retrenchment of employees, product safety, etc. still remain at the mercy of corporate management. The Indian regulator should think to make provision for mandatory disclosure of social information items which are presently voluntary in nature but are relevant for decision making by different stakeholders. Specific provision under the companies Act should be introduced for mandatory disclosure of such social responsibility information with quantitative and financial details. The present Act does not provide any oversight mechanism by independent agency on compliance with CSR provision. Neither the Companies Act, 2013 nor the CSR Rules requires an auditor to make any explicit statement in his report regarding compliance with CSR provisions by companies coming within the purview of section 135(1). According to the requirement of Schedule III to the Companies Act, 2013, an auditor is concerned only with verification and disclosure of aggregate amount of expenditure incurred on CSR activities by way of notes to the Statement of Profit and Loss. Moreover, in case of failure to spend specified percentage of net profit on CSR activities in any financial year, the Act does not prescribe any penal provision for the same, nor does it provide opportunity to carry forward the unspent amount to be spent in subsequent years. However, the new CSR provisions have certain positive aspects like first time introduction of CSR obligation under law, collaboration with other companies to undertake big social projects by pooling together CSR contribution from a number of companies, etc. Though not legally enforceable, the new provision on CSR spending is based on the principle of comply or disclose and is expected to create pressure on all applicable companies to make some amount of CSR expenditure and thereby contribute to equitable and sustainable development of India. It will be interesting to conduct future research to examine to what extent corporate India respond to the newly introduced CSR law and contribute to the socio-economic development of India. REFERENCES [1] Companies Act, 2013. [2] Companies Act, 1956. [3] Companies (Disclosure of Particulars in the Report of Board of Directors) Rules, 1988. [4] Companies (Accounts) Rules, 2014. [5] Companies (Corporate Social Responsibility Policy) Rule, 2014.
13 [6] Notification Nos. G.S.R. 130(E), dated 27-2- 2014, issued by Ministry of Corporate Affairs, Government of India. [7] Notification Nos. G.S.R. 261(E), dated 31-3- 2014, issued by the Ministry of Corporate Affairs, Government of India. [8] Notification Nos. G.S.R. 568(E), dated 6-8-2014, issued by the Ministry of Corporate Affairs, Government of India. [9] Notification Nos. G.S.R. 741(E) dated 24-10- 2014, issued by the Ministry of Corporate Affairs, Government of India. [10] Circular No. 21/2014, dated 18.6.2014, issued by the Ministry of Corporate Affairs, Government of India.