RETROSPECTIVE CSR


Indian laws are interesting phenomena incrementally so in recent years. It is like the king’s wishes. If king pronounces a desire it will be treated as law and will of God. Procedure to convert that desire formally to the law may be complied with in a due course. Any donation made by a company till 26th May 2020 was not legally a CSR contribution except under ages-old pre-democracy principle of king’s wishes. Now, due course of law-making granted king’s wishes its due legal status retrospectively.

Schedule VII of the Companies Act, 2013 which list out items which might be considered as CSR may be amended without parliamentary node by way of Notification issued by concerned Joint Sectary of the Ministry of Corporate Affairs. Practically it requires official approval from concern Minister. Mere wishes of the Minister or even of the whole cabinet are not enough to change a legal position.

In the present case, Prime Minister announced a new but controversial fund almost parallel to existing and well settled “Prime Minister’s National Relief Fund”. New fund is named as the “Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)”.

The major difference in both PM funds is the audit – previous one is to be audited by a constitutional authority – Comptroller and Auditor General of Indian (CAG) which place its audit report to Public through the Parliament of India – called as the temple of Indian Democracy by the present prime minister. On the other hand, newer one is to be audited by a Chartered Accountant firm of choice of the fund and the audit report shall largely be a private affair of the fund. Hopefully, the second one shall be made public under federal transparency law called the Right of Information Act, 2005. However, nothing is clear as of now.

As soon as Prime Minister of India announced this Fund and requested contribution to this fund as part of Corporate Social Responsibility, money starts pouring into this fund. But where was the law? No due diligence was made either by the Government at the time of acceptance of the Fund as CSR nor by contributors. India particularly Corporate India has a long history of pleasing the ruling king then the compliance of the law. This was one fit case.

Soon, auditors of the contributing companies start raising queries. A national but silent whistle was blowing which was a wakeup call for the Government.

Now the notification read as under:

  1. (the number is actually missing, a familiar typo) In Schedule VII, item (viii), after the words “Prime Minister’s National Relief Fund”, the words “or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)” shall be inserted.

  2. This notification shall be deemed to have come into force on 28th March 2020.

What it actually convey? No company contributing to the fund since 28th March 2020 till 26th May 2020 is good in legal interpretation. These companies receive no proper legal advice despite hiring big law firms. They actually do not care about the written law as they understand and believe the king’s wishes are law after all.

No, I have no issue with the king’s wishes as long as it gives a positive result to the society and the Nation. Read paragraphs hereinabove in a lighter tone and just for legal understanding only. We all know this was actually a hard time for Ministers and Secretaries working on various relief packages. It was appreciable work when a good number of government officers was working from home.

Take inspiration and stay at home as far as possible. Work from Home is a buzz word.

Aishwarya Mohan Gahrana

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