Law Project

CORPORATE GOVERNANCE

Relevance of Corporate Governance in Modern India

“Frequently, a man of great fortune, sometimes even a man of small fortune is willing to purchase a thousand pounds share in India stock merely for the influence which he expects to acquire by a vote in the court of proprietors. It gives him a share, though not in the plunder, yet in the appointment of the plunderers of India ... Provided he can enjoy this influence for a few years, and thereby provide for a certain number of his friends, he cares little about the dividend, or even the value of the stock upon which his vote is founded” – Adam Smith, 1776, Book V, Chapter I, Part III, Article 1 ABSTRACT: Issues of corporate governance have been debated and have raised eyebrows across various jurisdictions. The most crucial point facing corporate bodies today is the protection of the rights of minority shareholders, and the prevention of abuse of rights by the dominant shareholder. This brings to the forefront issues of oppression and mismanagement. The dominant shareholder may not always be the majority shareholder – a shareholder holding minimum stake may still be in a position to influence the decision making to a large extent. Thus this paper is an endeavour to recognize the corporate governance controls over such abuse of power by the dominant shareholder. The author recognizes the existing legislation which maintains a strong stranglehold over the dominant shareholder. The various provisions of Indian Acts help in preventing the abuse of power by the majority shareholder, and hence establish corporate governance norms as a means to discipline such dominant shareholders. INTRODUCTION: Issues of corporate governance have been debated in the United States and Europe over the last decade or two. In India, these issues have come to the fore only in the last couple of years. An important issue in Indian corporate governance is improving the performance of the Board. But a close analysis of the ground reality in India would force 1

one to conclude that the Board is not really central to the corporate governance malaise in India.1 The central problem in Indian corporate governance is not a conflict between management and owners as in the U.S and the U.K, but a conflict between the dominant shareholders and the minority shareholders. The Board cannot even in theory resolve this conflict. One can in principle visualize an effective Board which can discipline the management. At least in theory, management exercises only such powers as are delegated to it by the Board. But one cannot, even in theory, envisage a Board that can discipline the dominant shareholders from whom the Board derives all its powers. Some of the most glaring abuses of corporate governance in India have been defended on the principle of “shareholder democracy” since they have been sanctioned by resolutions of the general body of shareholders.2 The Board is indeed powerless to prevent such abuses. Thus, it is self evident that the remedies against these abuses can lie only outside the company itself. This paper discusses the role of the regulator through its legislation that helps in disciplining the dominant shareholder. Therefore, corporate governance comes into play through the regulator, which indirectly is a practice to prevent the abuse of rights by the dominant shareholder. PROBLEM OF DOMINANT SHAREHOLDERS: The problem of dominant shareholder arises in three large categories in the Indian companies. They are: 1. PUBLIC SECTOR UNITS (PSU): The government is the dominant shareholder and the general public holds a minority stake (often as little as 20%). The role of the Board is wholly irrelevant in the governance of the PSUs today. It has very Mariassunta Giannetti & Luc Laeven, ‘Corporate Governance: Shareholder Discipline or Entrenchment of Control?’, October 25, 2007 c.f. \ 2 Jayant Rama Varma, ‘Corporate Governance in India: Disciplining the Dominant Shareholder’, IIMB Management Review, October-December 1997, 9(4), pp. 5-18 c.f. 1

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little say in the selection of the CEO or in the composition of the Board. The government as the majority shareholder takes these decisions through the concerned ministry with the help of the Public Enterprises Selection Board. The Board cannot fire the CEO nor can it vary his compensation package. As far as audit is concerned, again the dominant role is that of the Comptroller and Auditor General (CAG). There is very little that an Audit Committee could add to what the CAG does.3 2. MULTI-NATIONAL CORPORATIONS (MNC): The foreign parent is the dominant shareholder. Government regulations have required most MNCs in India to operate through subsidiaries which are not 100% owned by the parent. The Government liberalized the law in the 90s and now 51% is permitted in most industries while 74% or even 100% ownership is allowed in some cases. These regulations have created severe corporate governance problems in several key areas. There have been allegations that the most profitable brands and businesses have been transferred from the long established 51% subsidiary to the newly formed 100% subsidiary at artificially low prices. This implies a large loss to the minority shareholders of the 51% subsidiary who have contributed, in equal measure to the investments that were made in the past to build up these businesses.4 3. INDIAN BUSINESS GROUPS: The promoters (together with their friends and relatives) are the dominant shareholders with large minority stakes, government owned financial institutions hold a comparable stake, and the balance is held by the general public. Because the promoters’ shareholding is spread across several friends and relatives as well as corporate entities, it is difficult to establish the total effective holding of this group. Also, the promoters may not hold majority stake, but may exercise control through political and governmental influence. Ibid. Gérard Charreaux & Philippe Desbrières, ‘Corporate Governance: Stakeholder Value Versus Shareholder Value’, Journal of Management and Governance, Volume 5, Number 2 / June, 2001, pp. 107-28. 3 4

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Another important corporate governance issue is that of mergers and restructuring of companies in the same group. The valuation of two group companies for the purpose of merger may be perceived to be biased in favour of one of the companies.5 Mergers are subject to approval by shareholder bodies of both the companies, and hence the dominant shareholder may be in a position to manipulate price. CORPORATE GOVERNANCE THROUGH THE REGULATOR: As discussed in the previous section, the regulator helps in disciplining the dominant shareholder through the control it exercises over corporate entities. Regulators face a number of difficulties in tackling the problem of corporate governance abuses by the dominant shareholders. In many cases, it is difficult to decide how far the regulator should go in interfering with the normal course of corporate functioning. However, despite these issues, the regulator controls the dominant shareholder through legislation: 1. COMPANY LAW: provides a check on abuse of rights in three ways: protection of minority rights, special majority and information disclosure. Protection of Minority Rights: Company law provides that a company can be wound up if the Court is of the opinion that it is just and equitable to do so.6 This is the ultimate resort for a shareholder to enforce his ownership rights. Rather than let the value of his shareholding be frittered away by the enrichment of the dominant shareholder, he approaches the court to wind up the company and give him his share of the assets of the company. Special Majority: Another safeguard in the company law is the requirement that certain major decisions have to be approved by a special majority of 75% or 90% of the shareholders by YRK Reddy, ‘Enforce Corporate Control’, The Financial Express, September 15, 2007, c.f. 6 Section 433 – “Circumstances in which company may be wound up by Tribunal”. 5

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value. This may not be an effective safeguard where the dominant shareholders hold a large majority of the shares so that they need to get the approval of only a small chunk of minority shareholders to reach the 75% level. Information Disclosure: Company law also provides for regular accounting information to be supplied to the shareholders along with a report by the auditors. It also requires that when shareholder approval is sought for various decisions, the company must provide all material facts relating to these resolutions including the interest of directors and their relatives in the matter. 2. SECURITIES LAW: Historically, most matters relating to the rights of shareholders were governed by the company law. Over the last few decades, in many countries, the responsibility for protection of investors has shifted to the securities law and the securities regulators at least in case of large listed companies. In India, the Securities and Exchange Board of India (SEBI) was set up as a statutory authority in 1992, and has taken a number of initiatives in the area of investor protection. The securities laws regulate the abuse of rights by dominant shareholders, again in three ways: information disclosure, insider trading and take-overs. Information Disclosure: SEBI has added substantially to the company law requirements of disclosure in an attempt to make these documents more meaningful. One of the most valuable is the information on the performance of other companies in the same group, particularly those companies which have accessed the capital markets in the recent past. 7 This information enables investors to make a judgment about the past conduct of the dominant shareholder. Insider Trading

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Supra note 2 at p. 2. 5

Most instances of insider trading have nothing to do with the dominant shareholder. Many of them involve small trades by junior employees who come to know of price sensitive information. In a few instances, insider trading may be indulged in by directors and other senior employees. However, the interesting cases are large scale trades by the dominant shareholder. Market gossip has long speculated on the prevalence of such trades in the build up to large mergers especially between group companies. Some promoters have merged small companies in which they have a large stake into a larger more widely held company at a swap ratio which is highly unfavourable to the widely held company. However, SEBI still has not passed guidelines in this respect, and this area of corporate governance remains unregulated. Take-overs Instead of directly exploiting all the privileges that his controlling block gives him, the dominant shareholder can choose to sell his entire holding to somebody else. In ordinary market conditions, he can expect to get a premium over the market price.8 But the take-over regulations in India require that the dominant shareholder share this privilege with the others. The acquirer of a controlling block of shares must make an open offer to the public for at least 20% of the issued share capital of the target company at a price not below what he has paid. This prevents the dominant shareholder from enjoying the premium. CONCLUSION: This paper has discussed the problem of the dominant shareholder and provided the existing regulatory framework to counter this problem. The solution is to improve the functioning of vital organs of the company like the board of directors. The problem in the Indian corporate sector is that of disciplining the dominant shareholder and protecting the minority shareholders. A Board which is accountable to the owners would only be one which is accountable to the dominant shareholder; this complicates the problem and the regulator needs to address such issues. 8

As in the Satyam-Maytas case. 6

Still, there remain a number of things that the government and the regulators can do to enhance corporate control: mandatory disclosure of information, regulation to promote an efficient market, reforms in bankruptcy laws etc. Therefore, though corporate governance has been a powerful tool in the hands of the regulator to discipline the dominant shareholder, the latter always has a mechanism to avoid such regulations and influence the Board. In order to check this, Indian corporate governance norms need to be strengthened.

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