The Central Government got freehand under Section 108 of the Companies Act, 2013 which simply reads, “The Central Government may prescribe the class or classes of companies and manner in which a member may exercise his right to vote by the electronic means.”
The Rule 20 of the Companies (Management and Administration) Rules 2014 has all power to administer voting through electronic means.
Every listed company or a company having not less than one thousand shareholders shall provide, to its members facility to exercise their right to vote at general meetings by electronic means. [Rule 20 (1)]
There is no option for a listed company or a company with one thousand or more shareholders to provide electronic voting facility.
According to General Circular 20/2014 dated 17th June 2014, this Rule related to e- voting is not mandatory up to 31st December 2014. However Listed companies may continue to comply e – voting requirement as per listing agreement.
‘‘Voting by electronic means’’ or ‘‘electronic voting system’’ means a ‘secured system’ based process of display of electronic ballots, recording of votes of the members and the number of votes polled in favour or against, such that the entire voting exercised by way of electronic means gets registered and counted in an electronic registry in a centralized server with adequate ‘cyber security’.
‘‘secured system’’ means computer hardware, software, and procedure that –
(a) are reasonably secure from unauthorized access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures.
“Cyber security” means protecting information, equipment, devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosures, disruption, modification or destruction.
A member may exercise his right to vote at any general meeting by electronic means and company may pass any resolution by electronic voting system in accordance with the provisions of this rule. [Rule 20 (2)]
(3) A company which opts to provide the facility to its members to exercise their votes at any general meeting by electronic voting system shall follow the following procedure, namely;
(i) the notices of the meeting shall be sent to all the members, auditors of the company, or directors either –
i. by registered post or speed post ; or
ii. through electronic means like registered e-mail id;
iii. through courier service;
(ii) the notice shall also be placed on the website of the company, if any and of the agency forthwith after it is sent to the members;
(iii) the notice of the meeting shall clearly mention that the business may be transacted through electronic voting system and the company is providing facility for voting by electronic means;
(iv) the notice shall clearly indicate the process and manner for voting by electronic means and the time schedule including the time period during which the votes may be cast and shall also provide the login ID and create a facility for generating password and for keeping security and casting of vote in a secure manner;
(v) the company shall cause an advertisement to be published, not less than five days before the date of beginning of the voting period, at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and having a wide circulation in that district, and at least once in English language in an English newspaper having a wide circulation in that district, about having sent the notice of the meeting and specifying therein, inter alia, the following matters, namely:-
i. statement that the business may be transacted by electronic voting;
ii. the date of completion of sending of notices;
iii. the date and time of commencement of voting through electronic means;
iv. the date and time of end of voting through electronic means;
v. the statement that voting shall not be allowed beyond the said date and time;
vi. website address of the company and agency, if any, where notice of the meeting is displayed; and
vii. contact details of the person responsible to address the grievances connected with the electronic voting;
(vi) the e-voting shall remain open for not less than one day and not more than three days.
In all such cases, such voting period shall be completed three days prior to the date of the general meeting.
(vii) during the e-voting period, shareholders of the company, holding shares either in physical form or in dematerialized form, as on the record date, may cast their vote electronically.
Once the vote on a resolution is cast by the shareholder, he shall not be allowed to change it subsequently.
(viii) at the end of the voting period, the portal where votes are cast shall forthwith be blocked.
(ix) the Board of directors shall appoint one scrutinizer, who may be chartered Accountant in practice, Cost Accountant in practice, or Company Secretary in practice or an advocate, but not in employment of the company and is a person of repute who, in the opinion of the Board can scrutinize the e-voting process in a fair and transparent manner.
The scrutinizer so appointed may take assistance of a person who is not in employment of the company and who is well-versed with the e-voting system;
(x) the scrutinizer shall be willing to be appointed and be available for the purpose of ascertaining the requisite majority;
(xi) the scrutinizer shall, within a period of not exceeding three working days from the date of conclusion of e-voting period, unblock the votes in the presence of at least two witnesses not in the employment of the company and make a scrutinizer’s report of the votes cast in favour or against, if any, forthwith to the Chairman;
(xii) the scrutinizer shall maintain a register either manually or electronically to record the assent or dissent, received, mentioning the particulars of name, address, folio number or client ID of the shareholders, number of shares held by them, nominal value of such shares and whether the shares have differential voting rights;
(xiii) the register and all other papers relating to electronic voting shall remain in the safe custody of the scrutinizer until the chairman considers, approves and signs the minutes and thereafter, the scrutinizer shall return the register and other related papers to the company.
(xiv) the results declared along with the scrutinizer’s report shall be placed on the website of the company and on the website of the agency within two days of passing of the resolution at the relevant general meeting of members;
(xv) subject to receipt of sufficient votes, the resolution shall be deemed to be passed on the date of the relevant general meeting of members.
The scheme here give impression that a member may exercise his right to vote at any general meeting by electronic means in a electronic voting completed three day prior to the date of general meeting and result may have been known before actual meeting.
This is not proper to vote a resolution before any debate taking place in the general meeting. What corporate governance we are expecting where members are discouraged from sharing their views. This may possible that a good number of members may change their after an informed debate. [Unlike Indian parliament, there is not whip system in corporate voting].
I propose amendment in the rules; electronic voting just after resolution was moved and debated in a general meeting. The result of the voting may be declared within three days of the date of general meeting.
Please note: I welcome your comments and feedback. This blog post is not a professional advice. Readers may share this post on social media by using buttons given here.