As a company scales, especially into the public space or handles significant external investment, governance becomes just as important as growth. That’s where independent directors step in, professionals who are not involved in the company’s daily business but are legally empowered to hold the board accountable.
Under the Companies Act, 2013, they are defined as non-executive directors with no material or financial ties to the company.
In this blog, we’ll break down the definition, eligibility, appointment process, responsibilities, and legal framework governing independent directors in India.
Table of Contents
1. Who is the Independent Director?2. Applicability of Appointing an Independent Director3. Criteria for Independent Directors, Companies Act 20134. Role of an Independent Director5. Conduct of an Independent Director6. Duties of an Independent Director7. Procedure to Appoint an Independent Director for a Company8. How long does an independent director remain in his position?9. Conclusion10. Frequently Asked QuestionsWho is the Independent Director?
The Companies Act, 2013 mandates the appointment of independent directors for certain classes of companies to improve governance standards. An Independent Director is a non-executive board member unrelated to the promoters or management and has no financial or material interest in the company that could affect their independence.
They are expected to bring an impartial voice to boardroom decisions, safeguard the interests of all stakeholders, particularly minority shareholders, and maintain high standards of integrity and objectivity
Applicability of Appointing an Independent Director
Listed Companies
All listed public companies are required to have at least one-third of the total number of directors as independent directors.
Unlisted Public Companies
The following unlisted public companies must appoint at least two independent directors:
- Paid-up share capital of Rs. 10 crores or more;
- Turnover of Rs. 100 crores or more;
- Outstanding loans, debentures, and deposits exceeding Rs. 50 crores.
These thresholds are calculated based on the latest audited financial statements. Independent directors must declare their independence at the time of appointment and thereafter annually. Details of their appointment, including terms and roles, must be published on the company’s website.
Certain companies are exempt, including:
- Joint ventures
- Wholly-owned subsidiaries
- Dormant companies
Criteria for Independent Directors, Companies Act 2013
Key eligibility conditions under the Companies Act, 2013 include:
- Must possess a valid DIN (Section 152(3)).
- Must not be disqualified under Section 164.
- Should adhere to the Code of Conduct as per Schedule IV.
- Cannot hold directorships in more than 20 companies (Section 165), with a maximum of 10 public companies.
- Must register in a databank maintained by a government-authorised body (Section 150).
- Shareholders must approve the appointment via a special resolution (as per SEBI regulations).
- Disclosure requirements include their professional profile, relationship with other board members, existing directorships, and skill set relevant to the board.
Role of an Independent Director
Independent directors are essential for maintaining the credibility of a company’s governance. Their responsibilities include:
- Providing unbiased opinions on company strategies, operations, and risk.
- Participating in various board committees such as audit, nomination, and remuneration.
- Monitoring the performance of executive management.
- Ensuring the interests of minority shareholders are protected.
- Involvement in succession planning and key managerial evaluations.
- Overseeing the integrity of financial reporting and compliance with laws.
Conduct of an Independent Director
Independent directors are expected to adhere to the highest standards of professional conduct. Their responsibilities include:
- Exercising independent judgment in the best interest of the company.
- Avoiding conflicts of interest and disclosing any potential conflicts.
- Acting objectively without bias or influence.
- Ensuring the confidentiality of sensitive boardroom discussions.
- Upholding ethical standards and promoting transparency.
- Informing the board if their independence is compromised.
Duties of an Independent Director
The Companies Act and SEBI's corporate governance norms outline several duties for independent directors:
- Attend all board and committee meetings.
- Remain informed about the company’s business and industry.
- Safeguard the interests of stakeholders, particularly minority shareholders.
- Report unethical behaviour or suspected fraud.
- Maintain confidentiality of non-public information.
- Participate in the functioning of the vigil mechanism and whistleblower policies.
- Guide management on strategic direction and risk management.
Procedure to Appoint an Independent Director for a Company
- Obtain Consent and Declarations:
- DIR-2 (Consent to act as a director)
- DIR-8 (Non-disqualification declaration)
- MBP-1 (Disclosure of interest)
- Declaration of Independence
- Nomination and Remuneration Committee Approval:
- Evaluate candidate suitability and recommend to the board.
- Board Resolution:
- Pass a board resolution for the appointment.
- Shareholders’ Approval:
- Approve the appointment via special resolution at the next general meeting.
- Post-Appointment Compliance:
- File DIR-12 with ROC.
- Make disclosures to the stock exchange (if applicable).
- Update the company’s website.
- Issue a formal appointment letter.
- Submit Form B to the stock exchange (for listed companies).
- Update registers and statutory records.
How long does an independent director remain in his position?
An independent director can be appointed for a term of up to five years. They may be reappointed for one more term (another five years) by passing a special resolution. However, they cannot hold office for more than two consecutive terms.
After serving two terms (a total of 10 years), the individual must step down and can be reappointed only after a three-year cooling-off period, during which they should not be associated with the company in any capacity.
Conclusion
In an era of high public scrutiny and fragile trust in institutions, independent directors play a vital role in reinforcing credibility. They offer a much-needed outside-in view, hold the board accountable, and ensure that shareholder value is not built at the cost of ethics.
Under the Companies Act, 2013, and SEBI norms, companies are not just expected to have independent directors- they are expected to empower them. When selected thoughtfully, these directors offer more than oversight; they provide insight, foresight, and a balanced voice at the table.
Frequently Asked Questions
What is the tenure of appointment of independent directors?
As per Section 149(10) of the Companies Act, 2013, an Independent Director can be appointed for a term of up to five consecutive years. They are eligible for reappointment for another five-year term, subject to the passing of a special resolution by shareholders.
Who is an Independent Director under the Companies Act, 2013?
Under Section 149(6) of the Companies Act, 2013, an Independent Director is defined as a non-executive director who:
- Has no material or financial relationship with the company, promoters, or directors.
- Is not a promoter or related to promoters or directors of the company.
- Has not been an employee or partner of the company, its auditors, or legal/consulting firms associated with the company in the last 3 years.
- Does not hold 2% or more of the total voting power of the company (either individually or with relatives).
- Possesses relevant expertise, integrity, and experience required for the role.
Who cannot be an Independent Director?
The following persons are disqualified from becoming an Independent Director:
- Promoters of the company or any of its group entities.
- Persons related to promoters or directors of the company.
- Any employees or former employees of the company, its holding, subsidiary, or associate in the last 3 financial years.
- Partners or employees of the company's audit, legal, or consulting firms in the past 3 years.
- Individuals holding a substantial shareholding (2% or more) in the company.
How do I register myself as an Independent Director?
To register as an Independent Director in India:
- Enroll on the Independent Directors' Databank maintained by the Indian Institute of Corporate Affairs (IICA) via www.independentdirectorsdatabank.in.
- Provide your personal, professional, and educational details.
- Submit a declaration of independence and consent forms (like DIR-2 and DIR-8) when appointed.
- If not already a director, obtain a Director Identification Number (DIN) by filing Form DIR-3 with the Registrar of Companies.
- If you do not have experience as a director, you may need to pass an online proficiency self-assessment test within one year of registration (as per MCA rules).
Who is eligible to be an Independent Director?
Eligibility criteria under Section 149(6) and SEBI (LODR) Regulations include:
- Minimum age: Generally 21 years
- Must be a person of integrity and possess relevant expertise and experience.
- Must meet all the independence criteria as listed above (no financial, employment, or family ties to the company).
- Must not be disqualified under Section 164 of the Companies Act.
- Should not be an independent director in more than seven listed companies (or three if already serving as a whole-time director in any listed company).
- Must be registered on the IICA databank and may need to clear the online test (unless exempted due to experience).
