4th Subir Raha Memorial Lecture

EXPANDING PARADIGM OFCORPORATE GOVERNANCE

1st July 2013New Delhi

by

Mr. U.K.Sinha Chairman

Securities and Exchange Board of India

4thSubir RahaMemorial Lecture

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4TH SUBIR RAHA MEMORIAL LECTURE

The Global Compact Network, India was formed in November 2003 and was registered as a non-profit society to function as the Indian local network of the UN Global Compact programme. It is the first local network in the world to be established with full legal recognition. Global Compact Network India (GCNI) is a country level platform for businesses, civil society organizations, public sector and aids in aligning stakeholders’ practices towards the Ten Universally Accepted Principles of UNGC in the areas of Human Rights, Labour, Environment and Anti – corruption. At present, the India network ranks among the top 3, out of the 101 local networks in the world, and has emerged as the largest corporate citizenship and social responsibility organization in the country with a pan India membership of 126 organizations, who have strengthened their commitment to the UN’s Global Compact Principles by becoming proud signatories of the local network, GCNI.

Visit www.globalcompact.in

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The Global Compact Network India OfficeScope Complex, Core 5, 6th Floor (ONGC Office), 7 Institutional AreaLodhi Road, New DelhiEmail: [email protected]

Disclaimer: This publication is intended strictly for learning purposes. The inclusion of company names and/or examples does not constitute an endorsement of the individual companies by the Global Compact Network India Office. The material in this publication may be quoted and used provided there is proper attribution.

About Global Compact Network India

Late Mr. Subir Raha 1948-2010

In Memory

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Introduction

The Subir Raha Memorial Lecture is an annual event held to honour Late Mr. Subir Raha, former CMD, ONGC and the Founder President, Global Compact Network India. Mr. Raha set up the organization in November 2003 and led it till May 2006. His visualization and forethought has been instrumental in leading the GCNI to become one of the first networks of the United Nations Global Compact, a legal entity. Late Mr. Subir Raha, led ONGC towards the achievement of multiple milestones during his tenure. He also led ONGC from a sectoral E&P company to become an Integrated Energy Major on a global scale; acquiring many equity assets overseas. His vision and foresight made ONGC the first Indian Corporate to lead the agenda on responsible business in India.

In memory of Late Mr. Subir Raha, an annual lecture series was started by Global Compact Network India

(GCNI) in 2010 and since then three memorial lectures have been organized by GCNI. On 7th July, 2010, the first Subir Raha Memorial Lecture was delivered by Mr. Nandan Nilekani, Chairman, UIDAI, Govt. of India, at Scope Complex in New Delhi. He addressed a packed auditorium wherein he talked about ‘Unique Identification Project – Experiences and Lessons for Transparency’, along with Mr. R S Sharma, CMD, ONGC and President, GCNI and Governing Council members, senior and eminent corporate executives and students. The event received wide coverage in regional and national press. Subsequently, on 27th June, 2011, GCNI hosted the Second Subir Raha Memorial Lecture at Scope Complex, New Delhi. The Vice Chairman of Tata Steel Limited and a longtime friend of Mr. Raha, Mr. B Muthuraman was the keynote speaker and he focused on issues of corporate governance and responsibility of companies towards community as well as his personal experiences with Mr. Raha. The Third Subir Raha Memorial Lecture was held on 6th November 2012, where Dr. Sam Pitroda, Adviser to the Prime Minister of India on Public Information Infrastructure and Innovations addressed a full house on the critical theme of ‘Sustainable Development and Inclusive Growth in 21st Century: Possibilities and Challenges for India’.

The lecture since its inception has been attended by Corporate Leaders, CMDs and Senior Managerial Personnel from leading private and public sector companies. The informative value of the lecture has also drawn students from leading academic institutes and development professional from non-governmental organizations.

The memorial lecture coincides with Annual General Body Meeting (AGM) of the GCNI.

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Mr. U.K. Sinha, Chairman, SEBI, Ms. Lise Grande, UN Resident Coordinator in India, Dr. Uddesh Kohli, Senior Adviser, United Nations Global Compact, members of the Global Compact Network India, colleagues from ONGC, friends from the media, my young friends from the student community, ladies and gentlemen.

As President of Global Compact Network India, it is my pleasant duty to welcome you to the 4th Subir Raha Memorial Lecture to honour the memory of the erstwhile charismatic and beloved Chairman and Managing Director of ONGC as well as Founding President of the Global Compact Network India. Though he has left us for a better world, his vision, deeds and actions continue to inspire and motivate us even today.

Each year, two institutions that have benefited immensely from the leadership of Mr. Raha, PETROTECH Society and GCNI, host a memorial lecture to honour his memory. Later this year, on August 28, PETROTECH Society will also host its 4th Subir Raha Memorial Lecture that will be delivered by Dr. Anil Kakodkar, Chairman, Solar Energy Corporation India, while we at the Global Compact Network India are indeed honoured to welcome Mr. U.K. Sinha to deliver today’s lecture.

The hydrocarbon sector knew Mr. Raha well as an industry leader who straddled both the upstream and downstream sectors, a rare combination, with great expertise and distinction. My colleagues from the hydrocarbon sector know Mr. Raha well; however

colleagues from the Global Compact fraternity may not be so well acquainted and therefore allow me a brief introduction of this illustrious industry leader.

Mr. Raha started his career in the Indian Oil Corporation Limited as a graduate trainee and rose to become its Director (Human Resources) before joining ONGC as its Chairman and Managing Director in 2001 and led India’s largest Public Sector Enterprise for five years. Under his watch, ONGC’s market capitalisation zoomed to become the highest among Corporate India. With intimate knowledge of the refining and marketing sector, he led the acquisition of Mangalore Refineries and Petrochemicals Limited, a Private Sector Company, led an aggressive deep water exploration campaign that placed ONGC amongst the few operators globally that had undertaken such deep exploration forays and initiated action on arresting declining production from our ageing producing oil fields, and initiated Improved Oil Recovery and Enhanced Oil Recovery projects. Thanks to his initiative, today ONGC has not only managed to arrest its declining production, but actually added nearly 80 MMT of oil from these projects. One of his pioneering ‘Gas – to – Wire’ projects, ONGC Tripura Power Company’s 726 MW facility at Palatana was recently inaugurated by the Hon’ble President of India.

All this was achieved in his term of five years and it is the momentum that he provided to the organisation that continues to serve us well even today. I was privileged to serve with Mr. Raha as Chief of Corporate Communications of ONGC at Delhi reporting directly

Welcome Speechby Mr. Sudhir VasudevaPresident, Global Compact Network India andChairman & Managing Director, ONGC

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to him. The learning for me during this was profound. I treasure this legacy each day and thank.

Our guest today, Mr. U.K. Sinha, Chairman, Securities & Exchange Board of India, quite honestly, needs no introduction as he is a newsmaker practically every single day. I approached Mr. Sinha during SEBI’s Silver Jubilee celebrations in Mumbai to deliver this lecture and sir, I am extremely grateful to you that you graciously accepted our invitation.

As host, I reserve the privilege of a formal, albeit brief introduction of Mr. Sinha to the House. Mr. Sinha was appointed Chairman, SEBI on February 18, 2011. Prior to this assignment, he was Chairman & Managing Director of UTI Asset Management Company Ltd. and Chairman of Association of Mutual Funds in India. As an IAS officer, he earlier held several key positions with distinction in the Ministry of Finance, Government of India and actively contributed to financial sector reforms in the country. He is also credited with starting the micro pension movement in India. He has served as Chairman of the Working Group on Foreign Investment in India formed by the

Government of India, and was member of several committees set up by the Government of India including the Committees on Liquidity Management, Foreign Institutional Investors, Corporate Bond Market and Investor Protection.

Just the other day it was reported in the national press that at Mr. Sinha’s initiative, SEBI has allowed small and medium enterprises to list their shares without an initial public offer. This move will surely boost sentiment across the country’s start-up ecosystem and is also a welcome news for entrepreneurs from the Global Compact fraternity focused on sustainable development initiatives.I am hopeful that with todays interaction, Mr. Sinha’s connect with the Global Compact fraternity will strengthen further and lead to a better understanding of the work we do. This tether will surely strengthen going forward and we will seek SEBI’s support for some of our key initiatives that we are presently working on that include Global Compact Awards and composite ranking of industry on the triple bottom line concept.

Today, Mr. Sinha has chosen to speak on ‘Expanding Paradigm of Corporate Governance’, a subject close to his heart. Corporate Governance is now slowly but surely

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migrating from the time when this exotic sounding phrase was much bandied about in Board Rooms, but was invariably given the go – by in implementation. The last decade has witnessed much progress as norms and formal guidelines have emerged, and gradually from the ‘desirable’ it is moving toward mandatory compliance.

Spencer Stuart, a US based executive search firm has tracked progress on corporate governance issues for more than two decades and publishes each year an annual Spencer Stuart Board Index of ‘S & P 500 Companies’. It is now in its 27th edition released in 2012 in which it presents the inter-temporal performance of companies for the past decade i.e. since 2002 to 2012.

Allow me to share a few of its findings.

• On gender diversity of the Board, it reports that in 2012 the figure stood at 17%, up from 12% in 2003.

• The percentage of independent directors has increased from 79% in 2002 to 84% in 2012.

• In 2002, the CEO was the only non-independent director on 31% of S&P 500 boards compared with 59% of boards today.

• In 2002, one-quarter of S&P 500 boards separated the chairman and CEO roles, compared with 43% today.

• Meanwhile, 23% of S&P 500 boards in 2012 have a non-executive chairman who is truly independent.

The financial oversight of boards has increased as is evident from the following findings:

• The percentage of chief financial officers, treasurers or other financial executives serving as the audit committee chair increased from 4% in 2002 to 33% in 2012.

• In 2003, 21% of boards reported having a financial expert — 146 financial experts in total — versus in 2012, when 100% of S&P 500 boards report having at least one financial expert for a total of 1,096.

• Fewer active CEOs and other top corporate leaders are serving as audit committee chair. Active CEOs, chairs, presidents and COOs made up 27% of audit committee chairs in 2002 versus 10% in 2012.

A few other notable findings are:

• Audit committees met more often than in 2002. On average, S&P 500 audit committees had five meetings in 2002 versus 8.7 in 2012.

• CEOs are now much more focused on managing their own companies as the average S&P 500 CEO in 2012 sat on 0.6 outside boards that is half the 1.2 average in 2002.

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• The percentage of S&P 500 boards with a nominating committee made up entirely with independent directors rose from 75% in 2002 to 99.6% in 2012.

• Average number of board meetings each year increased from 7.5 to 8.3, up by 3%.

• One-quarter of new independent directors are active CEOs, COOs, chairmen, presidents and vice chairmen, down from 41% a decade ago.

• Division / subsidiary presidents and other line and functional leaders now make up 22% of all new directors, versus 7% a decade ago.

• Retired executives and those with financial and global experience also grew popular.

In addition, the report lists the following top five Governance issues that required most attention from Boards in 2012:

• Executive Compensation• Board’s role in corporate strategy discussions• CEO succession planning• Director recruitment• Say on Pay

Though there are other reports that capture findings of annual surveys, I chose this report as it captures the 10

years trend and gives us incremental change over a decade. This is a small sliver from the report, but is indicative of progress that corporate governance has made over the past decade. In US public company boards today, are more independent from management, more financially savvy, more diverse and older. I could not access a similar report on Indian companies, but I suspect that the trend may be somewhat similar, though the pace may be a tad slower as the pace of change in the US was prompted primarily by enactment of the Sarbanes-Oxley Act and new exchange listing requirements and though in India Clause 49 stipulations came into force in 2003, we still await the new Companies Act to come into force shortly.

We in the public sector space have been governed by Clause 49 stipulations since 2003 when it came into force as well as by the DPE guidelines on Corporate Governance that came into force in 2010. On performance appraisal of Boards on corporate governance, many rating companies have been offering services almost since a decade, but principally on account of process of non–uniformity, they have not gained much acceptance. However, The Institute of Company Secretaries of India (ICSI) has broached the idea of a standardised corporate governance rating model and is in discussion with SEBI on its design and implementation. Mr. Sinha will surely speak more about this in his address.

In summation, corporate governance has been making steady progress and is driven more by stipulation and compliance rather than volunteerism and this trend is likely to continue. This subject has a natural convergence with the Ten Universal Principles of the United Nations Global Compact movement on Human Rights, Labour, Sustainability and Anti–corruption, and we therefore offer to undertake outreach and capacity building initiatives in association with SEBI.

Sir, I thank you again for so graciously accepting our invitation and welcome all patrons once again to the 4th Subir Raha Memorial Lecture.

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Theme Setting Speechby Ms. Lise GrandeUN Resident Coordinator and UNDPResident Representative in India

Allow me to start my comments by paying respect to distinguished colleagues at the podium Mr. U.K. Sinha, Chairman, Securities and Exchange Board of India, Mr. Sudhir Vasudeva, CMD, ONGC, Dr. Uddesh Kohli and Dr. S.P.S. Bakshi, CMD, Engineering Projects India Limited. As the head of 27 United Nation agencies that have the privilege of working in India, it’s an honour for me to be a part of 4th Subir Raha Memorial Lecture. I had the privilege of being at the 3rd Memorial Lecture last year not long after I first arrived in India and I was deeply impressed with the tributes that were paid to a person of remarkable vision, drive and passion.

Subir Raha was the man with the mission who settled for nothing short than the best and brought those values to bear at the enterprise he led. Today ONGC is not only India’s most valuable public sector enterprise but also the one that is respected globally. It features on Fortune 2012’s Most Admired list and ranked high on the Forbes 2000 list of world’s largest companies last year.

All of us look forward today to hear the keynote address from Mr. Sinha, the Chairman of SEBI on the important theme of ‘Expanding the Paradigm of Corporate Governance’. This opportunity perhaps in my capacity as the head of UN family in India will allow me to share my reflections of the many reasons why governance the theme of this lecture is so important globally. It is long been the view of UN and other members that democratic governance is the necessary foundation for sustainable transformative development. The historical record and fact

is very clear on this point. The countries where governance is in deficits the gains that are made through development are often either superficial or worst, and are at risk of being reversed. The record confirms that the only way to ensure that development is both transformative and irreversible is by entering democratic governance in all aspects of the public domain and also in the public sector. Democratic governance is the key to development because of the reasons we all know. Human rights are exercised and protected best in countries with high level of governance. Public participation and policy making is highest and inclusivity is broadest in countries with high levels of democratic governance. The delivery of public goods is almost better in countries with high level of democratic governance and corruption is better kept in check to improve accountability and transparency and citizen participation. Studies done by the UN conform on the flip side that in countries where, there are problems of deficits in governance, development is slower and is less sustainable. Study shows the governance deficit which usually takes the form of corruption, we all know about this divert of public resources for private gain, but it perhaps would be beneficial to remind ourselves just how high the cost is globally of this form of corruption. The UN estimates that it would take 94 billion dollars to meet globally all the Millennium Development Goals targets on education, health and poverty, every year however at least 1 trillion dollar is lost through elicit financial flows. This is more than 10 times the amount required to meet the basic needs of the people living in poverty, across the world. The economic cost of corruption is only part of the story. The true story and the true cost are far deeper and far higher.

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There is no question about this. Corruption is devastating for a country trying to develop. It corrodes the social value. It undermines the trust of people, the government and the people who serve. Corruption impacts the core the hardest and it impacts them the most. It means less access to jobs, justice and fewer opportunities. In the past, we have lost the most due to rapid degradation of natural resources that happens when environmental laws and regulations are circumvented. Since corruption globally undermines development, the governments and corporations across the globe are working towards putting in place mechanisms that promotes and ensures good governance.

There is a major debate underway about what should replace now the Millennium Development Goals of 20Gs which is due to expire on 2015. The goals were agreed by all the countries of the world in year 2000. The goals talk about 8 specific commitments that countries have made to reduce poverty, provide education, to improve health and reduce environmental degradation. With the goals about to expire, people all over the place are debating what should replace them. In fact UN as a part of this is facilitating the largest ever global consultation. There are 750 million people from around the world including India who are talking about what kind of goals should be agreed for the next generation. In the 100 countries where this consultation is taking place, the one thing that absolutely everybody agrees upon is that governance has to be the necessary foundation for development. Everywhere people want transparency and accountability from their public officials and from the private sector. And they all want to participate in policy making. This demand cannot be ignored. Even now across the globe, millions of people are coming out on the streets demanding better governance. Meeting the demands of the people for better governance in public and private sector is becoming the highest priority of the companies, that’s why this lecture is so important to all of us tonight.

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Ladies and gentlemen, I am indeed very grateful to Global Compact Network India and particularly Mr. Vasudeva for inviting me to this event today.

I didn’t have occasions to meet Mr. Raha frequently but I had a few opportunities to interact with him particularly when I was working with the Ministry of Finance in the capital market division. That was also the time when ONGC went for its Initial Public Offering (IPO). I noticed that Mr. Raha exuded energy and a lot of commitment and that he always looked at the big picture. We all know that he was responsible for transforming ONGC from an organization working in one particular sector to a global energy player. My homage to Mr. Raha in particular and my good wishes and compliments to ONGC .

When Mr. Vasudeva approached me for this particular event, he kept the topic very open. I chose to select the theme “Expanding Paradigm of Corporate Governance” considering its growing relevance in today’s world. In this respect, while trying not to be very technical, I will make an attempt to explain what I understand is the emerging scenario and the direction we should be moving towards and why.

If we look at the developments during the last decade or so, both in India and outside, we will discover that society has been in a flux. We will discover that both in social and political life, demands for good governance

are being made from completely unexpected quarters. Questions are being raised from corners which nobody could have imagined even 5 years earlier. The challenges to established governance patterns are happening in unimaginable fashions, e.g. from Tahrir Square in Cairo to Taksim Square in Istanbul. The society seems to be in a state of turmoil and people are increasingly demanding good governance. They want that people at the helm should live up to the expectations bestowed on them. And this is happening in a much more structured way and with much more frequency than anybody could have ever thought. When bus fare was hiked in Brazil, more than 1 million people came on the streets in protest. Who could have anticipated such a thing to happen in the past. The final story of Tahrir Square has not unfolded because we can see that new developments are taking place every day. All this has also been aided by modern technology, by social media and by IT. If a water canon is being used at one particular corner anywhere, within seconds it goes viral all over the world and people are passing on their comments, whether it is in Alleppy or in Guwahati, almost instantaneously.

Another important thing is that if we look at the history of social change in India during the last 60-70 years or globally during the last 100 years, generally students have been at the forefront. But what we are noticing during the last 5 years is that this has now gone much beyond. Young professionals, homemakers, people who have never moved

4th Subir Raha Memorial Lecture

by Mr. U.K. Sinha Chairman, Securities and Exchange Board of India

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out of their homes for any social or political event or any social or political cause, are there on the streets today. You may perhaps be aware that if a political party had to organize any event in a city then it had to garner people by planning for their transportation and taking care of their lodging and boarding. But the events that we are seeing today have no such demands. People are coming in a spontaneous way. It was seen at the India Gate or at the Ramlila Maidan that nobody from the organizers was preparing and distributing food. In fact the people who were there to participate, themselves offered and managed the whole show. This is a major development. The people who never came out of their homes, offices and workplaces, are now coming out in a big way and they are all educated people, they have their own work, their professions but they are ready to gather to show their anger or disapproval.

What I also know is that, if I can borrow a term from pedagogy called Continuous and Comprehensive Evaluation (CCE), society now is demanding CCE from the people who they have made in charge of the society, their political life or for any assignment which they are giving to them. So, a person in charge of an organization or any place of responsibility is being continuously evaluated. And because of this, democracy is getting a new meaning. Earlier if you were appointed to a post you knew that you were there for a certain period of time and you will be evaluated after the term ends, when you were seeking re-election. However, today the right to recall, the right to reject, are the rights that are being talked about in the mainframe agenda very effectively and very loudly. What has happened is that because of all this, the voice against corruption, voice against malfeasance, etc. have become more organized. And these are happening globally, not just in India.

It seems something has evolved in the last five to ten years which is fanning these events all over the world. And what people are frowning upon is arbitrariness, they are frowning upon nepotism. Also the comfort zone in which people in position used to find themselves, is no longer there. They are getting challenged everywhere and are being challenged on a continual basis. I will take the example of civil servants and talk in the context of India to make a point. Civil servants in India have got a legal and constitutional protection for any work done by them in due discharge of their duties. Today that is getting challenged. People are being able to challenge it successfully. For example, civil servants earlier had an advantage of Conduct Rule, which prescribed who he should inform and what he should inform. There was an Official Secrets Act as well. So, there were well laid down rules and policies for what information he can share with somebody and what he cannot. But today all those things are eroding because from the Official Secrets Act, we have now come to the Right to Information Act. Now we have come to a situation where whistleblower policy is getting approved and recognized. And we have also seen scenarios where a number of senior Government functionaries both administrative and political are being prosecuted.

This only exhibits that society’s tolerance level has come to the brink. Society will no more tolerate activities which they feel are either not desirable or are not as per the rules of the game. Earlier, we elected a government, selected someone to a post and let him run the post. But now that traditional old fatalism has gone away and gone away in a big way. Now people are challenging the actions. And there are now new guardians. The new guardians are the media, courts of law, public interest litigations, RTI and so on. These things are coming out and once again when I talk about them, I am not talking about only India but all over the world.

The point is, if in our social and political life, if such established norms are getting challenged in a very evocative manner all over the world, then it is quite natural that the governance of corporates will also get challenged in a similar way. It is quite natural and quite logical that if the society at large is demanding a certain level of performance, the same yardstick, same principles and same objectives will apply when we are looking at the governance of corporates. People now want more and more effective say in decision making and now the paradigm of governance is expanding. In fact, it has expanded in such a way that many of us have failed to

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take note of its impact and the direction in which it is likely to move unless corporations start taking effective actions. I also find that, if for example, firms in Wall Street have indulged in malpractices, have indulged in activities which are not strictly legal and the CEO and senior managers expect that their bonuses should rise in the same way as in the past, it is not going to happen. This is going to be seriously challenged. And part of the reason for this feeling among shareholders, promoters and public is because of the severity and frequency of instances of market misconduct, severity of malfeasance coming to notice.

Starting from Enron to Lehman Brothers, we see how small investors have suffered. You look at the matters in 2008. Somebody was running Ponzi schemes, taking money from new investors and giving it to old investors. This was not a good business model. The promoter was thriving on this model for 15 years but someday it had to crash. You can look at the case of MF Global. Almost USD 1 Billion of the client money was used by the proprietor as his own money. It was invested badly and then the whole money was lost. You have famous examples of insider trading at Galleon, Goldman Sachs and Procter and Gamble. And you look at the furore and the public reaction that happened thereafter. Also, look at the White Whale Case involving a trader for J.P. Morgan Chase & Co. where reportedly more than USD 9 Billion were lost because there was complete failure of corporate supervision and of the authorities that were supposed to carry out risk management. And it was not as if, one day, one person decided to take away USD 9 Billion from the corpus. Rather, the whole atmosphere regarding supervision had failed. UBS is another example where USD 2.3 Billion were understood to be lost due to unauthorized speculative trading. We also have examples of Securities and Future Commission (SFC) of Hong Kong taking action against Citigroup and whole lot of other things.

In India, during the last two three years, we have examples of manipulations in GDR, manipulations in IPOs on opening day, etc. It is becoming socially difficult to accept

this. We have examples during the last year or so of collective investment schemes in West Bengal and Assam which raised money in a manner that cannot be justified. They floated a company and claimed that they were working in real estate, working in time share and they were completely unregulated, completely unregistered with any regulator in the financial sector. They were raising thousands of crores of rupees from public. Naturally the regulator had to take action, issue banning order and ask for refund of the money.

We have also found, for example, misuse of related party transactions; and when I am talking about it, it is not confined to one particular class of promoters because it is a general feeling that this happens in promoter driven companies. We have examples where a business unit, a component of a company, which had a much higher value was given off to the parent company which was outside India for a song. If these sorts of things keep happening, whether in India or outside India, naturally there will be a huge demand for change. And it is in this context that when we talk about corporate governance we have to be conscious that the discourse on corporate governance has to undergo a complete change.

Initially, there were the first generation of corporate governance reforms, where rules had to be prescribed, regulations had to be framed and guidelines that could be referred to had to be issued. In the second generation, the dialogue and discussions shifted to legal issues. The expanding paradigm is now shifting from pure rule based corporate governance regime to a regime where people are demanding true and real corporate democracy. Demand is also being raised for taking care of all the stakeholders and in a sustainable manner. It is not only about taking care of the promoter group and expecting that everybody is going to be quiet. Like the example I gave about public life where earlier you elected a person and then just relaxed, it is not about having one Annual General Meeting (AGM) and then keeping quiet throughout the year. It is not going to be the case. People will find new avenues, new methods and new ways to raise their voice. So, when we are talking about corporate governance we have to think about these

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new realities. And the board and shareholders have to start monitoring the performance. They have to monitor how the continuous voice and say of the shareholders are being heard and accepted.

In this background, there are several dimensions. One, regulations are prescribed by the regulators and then you know how those regulations have been implemented. Second, there is serious enforcement action by regulator for violations. These two are external. So far as enforcement is concerned, it has to act more as a deterrent rather than as a continuous guide. If we look at data both in India and outside, we will find more and more examples of enforcement actions becoming more and more severe. Who could have imagined that in the Galleons case, some well recognized and well respected people would be held responsible and the criminal law justice system of USA would be coming in full force. I won’t be surprised if the same things happen in India. In fact a current debate is going on that in case of defaulters, besides civil actions and civil penalty, criminal actions should also be taken. It is there in the statute in a very soft way. Let us be ready, as the demand of the society is that it should come in a very hard way now onward. Those days are not far off.

If you keenly observe the data, you will discover that year after year, month after month the number of cases that are being tried and the amounts which are being imposed as penalty, are going up substantially. Even in case of India, this amount has gone up. In some of the cases where action has been taken, you will find that it was very difficult for people to comprehend that such big corporations, such promoters can also be brought to law. On one hand, the question of deterrence through enforcement action will be there but, on the other, no society and no corporation should envisage that their activity will only be governed through deterrence. Their activities should rather be self governed. There are two aspects. One is the regulations framed by a regulator which have to be enforced, but more important is the internal governance system of the corporation. The important point here is that the internal governance system and the regulations should complement each other. They have to work together.

Some of you must have seen the report submitted by the Financial Sector Legislative Reforms Commission (FSLRC). It has made an important point in the report. Are you aware, for example, that the Capital Market

Regulator or SEBI has the components of three arms of government? Government has a legislative wing that looks into the legislation, another wing that looks after the judicial part and the third is the policy execution part. The structure of law today is that SEBI, for example, has all the three components. We are permitted by the parliament to frame regulation, and those regulations have the force of law. Then we have got powers and responsibility to investigate a matter, like a policeman investigates. And once the investigation is over, we also have power to work in a quasi judicial capacity and pass orders. So, FSLRC has said that since all these powers are in one place, it is important that it should be applied in a judicious way. So they have said, for example, that regulation making should be in consultation with the wider society. They have emphasized that there should be very active consultations on regulations. They have also said, for example, those of you who are students of law or constitutional history would understand, that not only consultation, there should be a clause by clause statement of objects and reasons as to why a particular clause has been provided for in the law, what is the intent, what is the objective, what are the recommendations. So, while regulation drafting will go on, and regulations will have to keep track of the developments as well as challenges in the society and corporate world, when so much debate is going on internal governance of a regulator, it is natural that for corporates as well, the most important thing is internal governance mechanism.

If you see the developments in the USA from the Sarbanes – Oxley Act to the Dodd Frank Act, a number of changes have happened on corporate governance and it is quite natural that we in India should also start

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preparing ourselves. I am reminded that if salaries and perks of politicians or civil servants are increased and it is increased in a manner that the society is not ready to accept, i.e. it is enhanced in a steep manner, and on the other hand the perception in the people’s mind is that they are starving and that an increasing number of people are below the poverty line, then there will be a furore in this country or any other country for that matter. So, just because you have the authority, you can no longer abrogate all the privileges to yourself or majority of the privileges to yourself. Let us apply the same principle to corporate world. It stands to reason that if a company’s bottom line or performance has not been good and year after year, the company is awarding the employees, especially senior employees, such that their bonuses are going up, there is bound to be a protest. When we are talking of corporate governance, these things have to be kept in mind. These are the new paradigms which have emerged. Same principles have to be applied.

Coming back to India, I will tell you about the changes that SEBI has tried to bring in the area of corporate governance in the country. And we also have the Companies Bill. I said in the beginning that I will not be technical. So, I will just mention a few things to understand the direction in which the things are going on. If you see the Companies Bill or what SEBI is trying to do, you will discover that for independent directors for example, key issues are, what percentage of the board should be independent directors, what are the qualifications of an independent director, what should be their term, for how many years can they be there, what is the criteria of independence? The role of the audit committee is also becoming important, what should be

the composition of the audit committee, what role should they have in the appointment of the Chief Financial Officer (CFO), why should they need a certification from the CFO; these are the questions that are being addressed. How many committees of the boards should be there? And in these committees who should be representing and what should be the modalities of the independent directors in these committees? Disclosures are also very important. These are some of the things that are getting addressed now through the Companies Bill and SEBI’s guidelines.

About two days back, I was in Chandigarh and was addressing an investor’s conference. An elderly gentleman, who said that he was an ex-army officer, remarked that the earlier days when the Controller of Capital Issues sitting in the North Block in the Ministry of Finance used to decide the price of an IPO were good. Why has SEBI given this disclosure based system when there is no certainty about the price? He gave examples of investments that he made in some companies, names of which I have never heard. I was in fact surprised who induced him to make these investments in the companies. But his feeling was why the prices were not fixed by SEBI, which means he wanted a guaranteed return on his IPO investments, but the rule of the country is that these things are based on disclosure and our responsibility as a regulator is that everything material has to be disclosed and to ensure that everything that is being disclosed has to be correct. Disclosures have to be more and more important in the minds of the people. Company boards and managements have to be very careful and aligned with the need of disclosures and making timely disclosures. You may know that we have requirement of disclosure, some of which are event based and some of which are periodical. The important thing is, do we have a

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good culture of disclosures? In the absence of that culture, people will challenge you and people will take it up to a different level. Besides regulatory disclosures, there are some disclosures that are not regulatory requirements. So, people should ask themselves sitting on the board or as senior managers, whether they are disclosing because they intend to comply in a routine manner or are they doing it to gain trust, i.e. whatever the company says has to be trusted by the whole world. If our answer is the second one, then I think the company has an advantage.

The requirements of corporate social responsibility, requirements of rotation of auditors, and also the requirement in the Companies Bill to have a director representing the small investors are all matters of details. But what is the underlying idea? The underlying idea is that shareholder’s democracy has to be taken to the next level and if a company is found lacking in it, the company is bound to suffer. The company is bound to suffer in the business, in the interaction with the regulators and the society at large. I am also finding increasingly, both in India and outside India, that for abusive related party transaction, the focus of regulators globally is shifting away from penalizing the company to penalizing individuals. This is a very major change and I will like to focus your attention on this. If you look at things 5 years back, the companies were getting penalized and in many cases they would have a settlement with the regulators and the enforcement action would be avoided. But now the needle is changing in some other direction. Now it’s no longer confined to the company, now the individual accountability is becoming more and more, the rule of the game, not only in India but globally. One area where serious action and improvement is required is the area of related party transactions. I would urge that every company must set up the mechanism to deal with related party transactions. Because the regulators may prescribe, like take it to the board, take it to the stakeholder, let the minority shareholders vote for it, let the majority be out. All these could be prescribed but, my friends, the actual remedy is to build the real culture in your company and if we are able to build that culture, rest of the things will follow.

While part of things that I said are about the Companies Bill and what is happening outside India, a question can arise in your mind – what is SEBI’s view on these matters? To answer this, I will draw your attention to a SEBI regulation with regard to governance of stock exchanges in India which has come out last year and

those of you who would like to read it, read it in terms of corporate governance in India. SEBI has prescribed that minimum 50 % of directors should be independent, Chairman of the Board should be an independent director, the compensation committee should be headed by an independent director and it should have majority of independent directors. The risk committee and various other committees of the board have to be decided in that particular manner. This is the destination which SEBI would like corporate India to reach. I also assure you that we are not going to do what proves to be disruptive. It is not that we are going to change those things tomorrow, but if some of you want to read about SEBI’s direction of thinking in these areas then you can read The Securities Contracts (Regulation) (Stock Exchanges and Clearing Corporations) Regulations, 2012 (SECC Regulations), especially the governance part. Reading this would give anyone a fair idea about the destination and direction that we would want to reach.

Another important thing that I would like to draw your attention towards is the role of institutional investors. You will find that SEBI has come out with guidelines that mutual funds companies must have a policy of voting. And when they are voting as an investor in a company, we have also prescribed that their voting record should be displayed on their websites about what particular resolution and in what particular manner they have voted. So, the institutional investors have to play an important role. We are in dialogue with other regulators who regulate large institutional investors, and jointly we would like to act together so that institutional investors lend a voice to other minority holders and provide a counter point to promoters.

All of you know that in the Asian region, we have got a higher percentage of directors who represent shareholders with large shareholding, called as promoter directors. In India, this situation is accentuated because we have almost 50 % promoter shareholding, on an average, in the Indian listed companies. So, the role of institutional investors is going to be important. In this context, the role of proxy advisory firms would also be important, which was nowhere in existence in India till about 3 years back. But now more and more proxy firms are coming up. Globally they play a big role in lending voice to the small investors or the minority investors. In a related context, another measure that we have taken, by way of illustration, is the requirement for information and disclosure of pledged shares. This may not sound very significant, but if we see

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major scams and developments that followed, we discover that lack of disclosure about promoter’s shareholding has been a major cause of shareholder’s losing their value. So we have placed importance to pledged shares. Now we have stipulated that not only pledging of share but also creation of any kind of encumbrance should also be disclosed. And I must add here that we have firms in India with high degree of legal acumen who come out with some new name, which they say is neither a pledge nor an encumbrance. But I am sure that this cat and mouse game won’t last for long and that the regulator will be able to catch up with this.

SEBI has also provided for peer review of auditors, compulsory demat of promoter shareholdings, approval of CFO’s appointment by the audit committee, and disclosure regarding agreement with media companies. These were ways through which investors can be misled. Another recent measure that has been taken is about ensuring minimum public shareholding in listed companies. This has been under discussion since the year 2000. Listed companies in India, raising money from public, were having as low as 3 - 5 % public shareholding. Naturally the float was less. Therefore, for variety of reasons, especially from corporate governance point of view, SEBI insisted and gave 3 years as deadline to the companies to comply with minimum public shareholding norm of 25 %. Of these, 105 failed to meet the deadline. On this 4th of June, with the deadline ending on 3rd June, an order was passed against these 105 companies and the promoters or the managers who were responsible. It was also taken into account that the orders passed did not compromise the interest of the minority shareholders. SEBI has been assured by the Government of India that they would

follow these guidelines for PSUs and within the timeline stipulated for them.

Similarly, SEBI has recently taken certain decisions concerning the Buyback Regulations, which are going to help in a big way in ensuring that the corporate governance norms in that particular company are diligently followed. Our analysis shows that earlier many companies used to announce a buyback process and the time gap used to be about 1 year. Also, there was no minimum restriction on how much you can buy and it became a price support mechanism rather than a mechanism to buy back the shares and return the money to the shareholders.

I would like to end now by saying that regulations will continue to evolve and the regulators will continue to act but it is very important that the promoters, the directors and the seniors managers, all realize that it is better to develop a culture where they don’t fall on the wrong side of the regulator or the wrong side of law. If that culture is maintained and those standards are built in, then the good news is that the markets will reward such firms. It is economically advantageous in the medium to long term if a company is perceived to be a company which is ethical, which follows laws, which follows higher standards. Corporate governance makes more demand on the managers, the board and the promoters but the good thing is that it will also help rewarding the company, including the shareholders.

I once again want to thank you all and Mr. Vasudeva for inviting me and patiently listening to me. I wish you all the best.

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Q: Why can’t SEBI fix the price based on valuations of the companies rather than based on disclosures because markets are sentiment driven and they really don’t grow by the disclosure, the public in India is also sentimental and it goes by the market sentiments. So till the market really matures the public is also mature to buy certain shares whether from primary market or secondary market. Such sins will keep on happening and how SEBI really takes account and care of such issues?

If you are arguing in favour of a merit based regime where the price of an IPO is fixed by the regulator or by the government, I think you are behind the curve by more than 2 decades. This will not work. Suppose SEBI decided the price and then the price falls below the expected level and then people will want someone to compensate. People will demand their money to be compensated in case of such an occurrence. The underlying idea of asking for price determination is same. Who is going to compensate, do you expect SEBI to compensate, Government of India to compensate or the company to compensate? So let us understand the development that has taken place and you should also look outside India. Outside India in how many countries is the price fixed by the regulators? We can’t be an open market, where I welcome foreign inflows and money to come into our capital market, and fixing prices at same time. Market forces have to determine the true value of an IPO.

I have two-three deliberations on your point. One, the disclosure wasn’t perfect. Maybe as a regulator we failed in ensuring correct disclosure. If correct disclosures are made these won’t happen. I mentioned about a company which claimed that it rose close to Rs. 24,000 crores from 3 crore investors, the action against this company started because the company filed for an IPO. The public response that we have got is against it. So we shouldn’t argue about something which is not doable. What we can argue is what measure SEBI is going take to ensure that the disclosures

are made and what measures SEBI is going to take to ensure that post listing manipulation doesn’t happen.

I will finish this by putting forward one point. SEBI has taken a measure that on the opening day of an IPO the volatility will be reduced to preopen call auction market. And nine or ten issues that have come out after this rule, is that the volatility have come back to required level. There are challenges but we can’t get back to price fixation.

Q: I will like to commend the initiation of clause 55, last year, that focuses on promotion of sustainability among the corporates and that concern will need to be kept in mind by all corporates, which works for the well being of the environment and the people, while being committed to profits. How will you make sure that the investor community especially the large funds and large institutional investors also build into their decision making processes, elements of sustainable thinking? Because ultimately unless the investing community impresses upon corporate that they have to align with these larger principles the transformation will not be rapid enough or soon enough.

What you are talking is absolutely desirable but we have taken some baby steps right now, e.g., what SEBI has done is by view of providing disclosures by certain top companies. Even if you see the Companies Bill that provides for giving 2% of the average net profit of the three years to investors that is also by way of disclosure. It is not that if you don’t invest that money, the money would be impounded by the government and invested in a particular manner. I think let the Companies Bill pass, things will evolve. What I want to be with you on is that there is huge demand now that corporates have to be conscious of the social responsibility but this is an evolving area and has not reached the desired maturity level or say Finland for example.

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It’s an honor. I remember the day when Global Compact Network India was formed in 2003 and Mr. Subir Raha was the first person to sign the memorandum of association. I think we have come a long way, and the dream that Mr. Subir Raha had, I think we have tried to fulfill it to a great extent. It is very appropriate that GCNI initiated a series of lecture and today is the 4th lecture in this series. I thank Mr. Sinha for very kindly

Vote of Thanks by Dr. Uddesh KohliSenior Adviser, United Nations Global Compact

agreeing to be with us this evening and giving us some insights about how SEBI has been functioning and how it will take care of the investor’s interest as well as effective corporate governance ensuring that we follow best practices. Also I would like to thank Ms. Grande for being with us, and last but not the least I would like to thank you all for being here and making this programme a success.

(L to R): Mr. Sudhir Vasudeva, Mr. U.K. Sinha, Ms. Lise Grande, Dr. S P S Bakshi and Dr. Uddesh Kohli

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Profiles

U.K. SinhaChairman, Securities and Exchange Board of India

Mr. U.K. Sinha was appointed as Chairman of Securities & Exchange Board of India with effect from February 18, 2011.

Chairman Mr. Sinha, formerly from the Indian Administrative Service - the civil service in India, brings with him rich experience in the financial markets for more than a decade. Prior to taking over as Chairman at SEBI, he was Chairman & Managing Director of UTI Asset Management Company Ltd. and Chairman of Association of Mutual Funds in India. He has earlier held several key positions with distinction in the Ministry of Finance, Government of India and has actively contributed to the financial sector reforms in the country. He is also credited with starting the micro pension movement in India. He was also the Chairman of the Working Group on Foreign Investment in India formed by the Government of India. He was a member of several committees set up by the Government of India including the Committees on Liquidity Management, Foreign Institutional Investors, Corporate Bond Market and Investor Protection. Mr. Sinha is also currently Chairman of the Asia Pacific Regional Committee of International Organization of Securities Commissions (IOSCO).

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Profiles

Dr. S. P. S. BakshiChairman-cum-Managing Director, Engineering Projects (India) Ltd.

Dr. S. P. S. Bakshi, Chairman-cum-Managing Director, Engineering Projects (India) Ltd., A Govt. of India Enterprise, is an M. Tech & MBA(HRD) with nearly 33 years of rich and comprehensive professional experience in implementation of Infrastructure Projects on turnkey basis. Prior to joining EPIL, he had worked with NHAI & AAI at senior positions implementing prestigious Airport & Highway projects. He has been conferred upon Degree of Doctor of Philosophy (Honoris Causa) by Singhania University, Rajasthan.

Dr. Bakshi is an active member of various International & National professional bodies like the Institution of Engineers, India; the Institute of Transportation Engineers, USA; Indian Road Congress, etc. He holds various offices as:

Board of Director, International Road Federation, Geneva,Vice President, Construction Industry Development Council (CIDC), Vice President, Indian Building Congress, andVice President, Global Compact Network India.

Dr. Bakshi is the recipient of many prestigious awards in recognition of his contribution towards Construction industry.

Mr. Sudhir VasudevaPresident, Global Compact Network India andChairman & Managing Director, ONGC

Mr. Sudhir Vasudeva heads the country’s highest profit making firm, ONGC, and is credited with many path-breaking initiatives in complex offshore project management. Under the professional stewardship of Mr. Vasudeva, ONGC today is the highest Profit making and highest Dividend paying company of the country. It also remains among the top in the Indian bourses in terms of Market Valuation. Mr. Vasudeva’s priority is to ensure energy security by improving production from ageing fields and fast-track development of deepwater and small and marginal fields. A firm believer in transparency and ethical business practices, Mr. Vasudeva is the first business leader from Indian PSUs to be a Member of the Board of the United Nation’s Global Compact, the largest voluntary corporate citizenship initiative in the world championing the cause of responsible business behaviour through its Ten Principles in the areas of human rights, labour standards, the environment and anti-corruption. He is also the President of Global Compact Network India.

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Dr. Uddesh KohliSenior Adviser, UNGC

Dr. Uddesh Kohli, B.E. (Hons), MBA and Ph.D. in Economics, is presently the Chairman Emeritus of Construction Industry Development Council, Chairman of Construction Industry Arbitration Council and Engineering Council of India. He is also Secretary General of International Federation of Training & Development Organizations (IFTDO) and Senior Adviser in Global Compact Office of UN Secretary General, promoting this Programme in India. He is Independent Director on the Boards of several companies and a Member of the Board of Governors of IIM, Kozhikode.

Dr. Kohli has been Adviser, Planning Commission, the Chairman & Managing Director of Power Finance Corporation (PFC), Chairman of Standing Conference of Public Enterprises (SCOPE) and Consultancy Development Centre, President of Council of Indian Employers (CIE) and All India Management Association and Member of the Board of Governors of the Indian Institute of Management, Bangalore. He has worked as Consultant with several United Nations organizations and the Asian Development Bank.

His wide ranging specialization includes corporate governance, strategic management, development planning, project planning, appraisal & management, finance, energy, power systems, corporate citizenship, reforms and restructuring, public systems, and training. He is author of several books and articles.

An HRD expert, Dr. Kohli is the President Emeritus of Indian Society for Training & Development (ISTD). He has been the President of the Asian Regional Training and Development Organization (ARTDO), and President and Chairman of the Board of IFTDO.

Ms. Lise GrandeUN Resident Coordinator and UNDPResident Representative in India

Ms. Lise Grande is the UN Resident Coordinator and UNDP Resident Representative in India. She has worked for the United Nations since 1994, serving in Armenia, Angola, Democratic Republic of Congo, East Timor, Haiti, Occupied Palestine, South Sudan, Sudan and Tajikistan. She also worked for the Office for the Coordination of Humanitarian Affairs (OCHA) for seven years, and was involved in some of the United Nations’ largest humanitarian operations. She then served as Resident Coordinator and Resident Representative for the United Nations Development Programme (UNDP) in Armenia. Ms. Lise served for three years as Chief of the Integrated Office for the United Nations peacekeeping operation in the DRC. In her last assignment she served as the Deputy Special Representative of the Secretary General, Resident and Humanitarian Coordinator and UNDP Resident Representative in South Sudan.

Profiles

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4th Subir Raha Memorial Lecture

Business

Transcript of 4th Subir Raha Memorial Lecture