Corporate Social Responsibility (CSR) has been a favourite topic of discourse in the public domain over the past decade or so. With instances coming to light in recent years where actions of companies have impinged on the environment and the lives of local communities and with a far more discerning and voluble public, companies, and more so, governments, are aiming for responsible policies that, while promoting commercial interests, also take into account the sensitivities of the populations that will be affected, directly or indirectly, by these policies. The Government of India spelt out these obligations as far back as 2011 when it issued National Voluntary Guidelines (NVGs) listing out the social, environmental and economic responsibilities of businesses in India. The NVGs were, however, advisory rather than mandatory. It was only with the new Companies Act, 2013 (“Companies Act”) that Corporate Social Responsibility (CSR) spending was formally made a statutory obligation for companies incorporated under the Companies Act. The objective was that companies deriving commercial benefit from their business operations should, as good corporate citizens, give back something to communities.
Section 135 of the Companies Act has laid down the procedure for companies to develop a CSR policy. However, the only specific issue mentioned in this section (that has a financial implication for the company) is the obligation for companies exceeding a threshold limit of net worth, turnover or net profit to spend, in a financial year, at least two percent of the average net profits of the preceding three financial years on any of the activities listed in Schedule VII of the Companies Act. These range from eradication of extreme hunger and poverty to promotion of education and gender equality, reducing child mortality, ensuring environmental sustainability and social business projects. As mentioned in the Report of the High Level Committee (“HLC Report”) appointed by the Government of India to suggest measures to improve monitoring of implementation of CSR policies, it is for the first time in the world that a provision for CSR spending has been made part of a statute. The HLC Report “…is convinced that the main thrust and spirit of the law is not to monitor but to generate conducive environment for enabling the corporates to conduct themselves in a socially responsible manner, while contributing towards human development goals of the country.” The first few years would necessarily be a learning experience for all stakeholders, including the government. It may, therefore, be instructive to focus on some of the key areas of implementation to see how this unusual piece of legislation could work out in the coming years.
It is quite clear that the intention of the CSR legislation was not to supplement public resources for social and human development; government could as well have taxed the companies to raise additional resources for this purpose, as has recently been done with the 0.5% enhancement in service tax rates to meet the costs of the Swachh Bharat campaign. Too often, non-governmental organisations (NGOs), particularly the larger ones based overseas, tend to wrongly visualise their roles as substituting the efforts of government. They tend to invest significantly in manpower and other resources in projects they take up on a pilot basis in certain parts of the country. The major drawback in such efforts is the failure to integrate the project with the local, especially public, resources already on the ground in a specific social sector. The result is that excellent outcomes reported in a very localised area almost never attain either scalability or sustainability. They are not scalable because of a lack of buy-in from the public service delivery machinery and the failure to enthuse/convince governments to adopt similar approaches in other areas. With NGO resources being finite, the initiative cannot be sustained even in the initial success area, leave alone extend it to other areas. There are lessons in such previous initiatives which need to be drawn by corporates if they are not to squander their CSR resources on small local projects that do not survive the withdrawal of the initial sponsor. It may make more sense for companies, especially larger ones, to link up their CSR spending with activities that complement ongoing programmes of the government. This view finds support from the HLC Report recommendation that companies with annual CSR spends of over Rs. 5 crores should undertake programme based sustainable CSR activities, with some measurable outcomes, while companies below this limit can go in for project-based activities. In fact, companies should, where resources permit, link their CSR activities to ongoing development programmes of the government. This would benefit such government programmes in two ways: (a) pilot initiatives could be started in selected areas, with the lessons learnt from such pilots being used to improve public programme implementation; and (b) governments could benefit from the innovative ideas and new concepts that corporate involvement brings to social ventures. This has been the rationale for at least one such multi-stakeholder partnership in the state of Maharashtra a few years back, the Bhavishya Alliance. This Alliance, comprising leading corporates, the Government of Maharashtra and NGOs/community based organisations, focused on reducing under-6 child malnutrition in Maharashtra state between 2006 and 2011.
Although it is rather early to start analysing the implications of specific provisions relating to CSR spending in the Companies Act and Companies (CSR Policy) Rules, 2014 (“CSR Rules”), certain issues may perplex companies and bedevil smooth implementation of CSR activities, unless greater clarity is forthcoming in the coming days and months on interpretation of some of the provisions:
- Section 135 requires companies to give preference in CSR spending to the local areas where their operations are based. While this does not necessarily circumscribe company discretion to extend CSR activities to geographical areas not necessarily contiguous to their operational areas, it can give rise to interpretation conflicts. The HLC Report talks of companies with over Rs. 5 crores annual CSR expenditure being allowed to go in for programme-based activities. A number of such activities may not always be feasible in the immediate vicinity of company operational areas. Also, companies (especially family-owned ones) may wish to spend their CSR funds in the areas from where the founder came (Gujarat, Rajasthan, etc.) though there are no company operations in these areas. Most importantly, this may limit CSR spending in areas sorely in need of such human capital investments (in education, health, nutrition, etc.), such as remote tribal areas. In fact, there is need for governments to specifically encourage CSR investments in the most backward regions of the country, which often receive far less than their due share of budgetary resources.
- There is a specific provision in the CSR Rules that CSR activities should not include those pursued in the normal course of business. Schedule VII of the Companies Act, which lists the eligible CSR activities, has been expanded three times already since the Act was notified in February 2014. It is well-nigh impossible to fully anticipate the nature of activities that qualify for CSR spending. Development priorities and needs can vary across time and geographies; hence, the HLC Report recommends an omnibus clause which covers all activities that serve a public purpose and enhance public welfare. Alternatively, the Companies Act should be amended to provide for specification of such activities in the CSR Rules, so that the Department of Corporate Affairs can amend the Rules as and when necessary.
- In its present form, the Companies Act does not prescribe any penalty for non-compliance with the provisions of Section 135. It provides for what in regulatory parlance is termed “comply or explain”. The annual report of the Board of Directors of a company simply has to explain why the required amount could not be spent. Of course, in this age of social media, a multi-billion rupee company that trotted out silly reasons for its inability to spend on CSR activities would face public scorn, not to mention the adverse impact on its social image and the loss of goodwill. And yet, there could be valid reasons, like major business downturns, for a company’s failure to meet its CSR expenditure obligations. Rightly, then, the Companies Act has refrained from penalising non-compliance in spite of the mandatory nature of Section 135. However, Sections 450 and 451 of the Companies Act prescribe punishments ranging from fines to imprisonment for contraventions of provisions of the Companies Act for which no penalty or punishment is provided elsewhere in the Companies Act. In the absence of a specific clarification that these punitive sections do not apply to actions under Section 135, it is not impossible to visualise some overzealous bureaucrat bringing the might of the state to bear on infractions by companies under this section.
In the final analysis, the CSR legislation, despite its mandatory tone, is more self-regulatory rather than punitive, requiring a mature approach from both companies and governments. Both parties need to see how they can collaborate in using company resources to achieve the greatest public good. Companies need to shed their earlier approach of deeming that they have met their social obligations if they contribute to a schoolroom or a balwadi. Rather, the emphasis should be on CSR investments that contribute to ongoing improvements in the social and economic status of communities for which the CSR expenditure is intended. Companies should also interact on a regular basis with government departments and agencies to jointly examine how they can contribute to building managerial capabilities of the public service delivery machinery and introducing innovations in ongoing government programmes to ensure better outcomes. On their part, governments (especially state and local governments) should proactively assess and list programmes and activities where government efforts will be positively boosted by private support. The objective should be to develop a menu of activities which can be posed to various private sector partners for participation along with the government in improving standards of life. The Upanishadic exhortation “Vasudhaiva Kutumbakam” (the whole world is one family) has special relevance in the context of these efforts to improve the lot of one’s brothers and sisters.