§166(3) of the Companies Act, 2013: Filling the Gaps of an Incomplete Provision

§166(3) of the Companies Act, 2013: Filling the Gaps of an Incomplete Provision

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Volume 15 Issue 2 ()

Companies are the predominant vehicle through which businesses operate. They have a tremendous impact on the society, and in this context, it is important to understand the responsibility placed on the decision-makers – the directors – of companies. In India, the key provision that places responsibility on company directors is §166(3) of the Companies Act, 2013 (‘the Indian Companies Act’), which codifies the duty of care owed by company directors. In this paper, we analyse §166(3) of the Indian Companies Act in detail. In our analysis, we note that §166(3), in its current form, leaves important gaps in the director’s duty of care. First, §166(3) does not specify to whom the duty of care is owed, which significantly impacts the nature of the obligation. Second, the provision does not provide a standard for the duty of care. In this paper, we argue that the duty of care is and should only be owed to the company. This is in contrast to the duty of good faith in §166(2) of the Indian Companies Act and the duty of care in the United Kingdom (‘UK’), which is owed to all stakeholders. Further, we argue that absent any express standard for the duty of care, India would be best served in adopting the ordinary reasonable man standard developed under tort law, which is objective in nature. We argue that standards found elsewhere, such as the subjective standard, the subjective-objective standards of agency law, the UK Companies Act, 2006, and the business judgement rule in the United States of America, are not suitable for India. We conclude by postulating the objective reasonable man standard as best-suited to the Indian corporate landscape, which will bring much-needed clarity to the duty of care of the directors.

Cite as: Rishabh Mohnot & Hrithik Merchant, §166(3) of the Companies Act, 2013: Filling the Gaps of an Incomplete Provision, 15 NUJS L. Rev. 154 (2022)