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Guarding the turf from predatory professionals
August, 03rd 2006

Were you to search for `ICSI' on Google News, it is quite probable that you'd land in `Fit but infertile,' a report dated August 1 on www.dailymail.co.uk. It's about the efforts of Sharron Davies, `the former golden girl of British swimming', to become pregnant. The abbreviation is explained as `intracytoplasmic sperm injection', a technique in which `the sperm is put directly into the egg'.

Davies' story is a happy one, of hopeful wait for the baby, after four years of marriage `not to mention 70,000'. But things aren't equally happy closer home at the ICSI, the Institute of Company Secretaries of India (www.icsi.edu). The Institute is `In a fit,' you may say, because MCA21 has become a fertile ground for stirring up controversies.

For starters, MCA21 is an ambitious e-governance initiative of the MCA or the Ministry of Company Affairs (www.mca.nic.in). It is aimed at `repositioning MCA as an organisation capable of fulfilling the aspirations of its stakeholders in the 21st century'. MCA21 facilitates the filing of eForms; and the project is designed `to fully automate all processes related to the proactive enforcement and compliance of the legal requirements under the Companies Act, 1956.'

A 66-page Process Handbook on the site will tell you that in certain cases, "a certificate from the Chartered Accountant or Cost Accountant or Company Secretary in whole-time practice is also required to authenticate the particulars contained in the eForm." An example it gives is of the eForm for creation or modification of charges. "Professionals (Chartered Accountants, Company Secretaries, Cost Accountants and Lawyers) who interact with MCA and companies in the context of the Companies Act," reads a portion in the Handbook that lists the types of users of Digital Signature Certificates for MCA21 purposes.

The ICSI sees this is as a rub on the wrong side. The Institute isn't particularly pleased that the Ministry has allowed other professionals to encroach into the practice area of company secretaries. "Company law is the core competency of company secretaries," declares H. M. Choraria, president of the ICSI. "It should be the exclusive domain of company secretaries to do pre-certification and secretarial audit," he adds. "We are in the process of pursuing our views with the Ministry. `We see the merit in your arguments,' says the MCA. But there is no commitment yet from the Ministry. Perhaps, when the forms are revised, "our views may be considered," hopes Choraria.

Hopes, however, seem lost for some of Choraria's colleagues on the governing council of the ICSI. Four members of the Institute's Central Council have tendered their resignations, to put pressure on the MCA, of which the ICSI is in a way an offspring. The filial fight is on cyberspace too. "As an Institute we have done a lot for the MCA. We have gone out of the way to assist the MCA and done everything and anything it wanted us to do. The step-motherly treatment to the profession is undesirable," laments Mahesh Athavale in an e-mail.

Athavale is one of the fighting four; the other three are Bipin Acharya, S. D. Israni and Nesar Ahemad. "In a democratic set-up there are ways and means to protest. We have perhaps exhausted all the options of making representations, meeting officials of the MCA and trying to convince them. The only way to wake up the people running the system is protest resignations. We cannot wait indefinitely," proclaims Athavale.

"The office-bearers, council members and senior officers of the ICSI had been pursuing the matter in the Ministry ceaselessly for last several months, but there was no effective and positive response forthcoming from the Ministry which made us dismayed, aggrieved and frustrated by such inaction qua a professional Institute," rues Acharya in his mail.

Some statistics doing the rounds are that the ICSI gives 27 per cent weightage to company laws, whereas the ICAI (the Institute of Chartered Accountants of India) gives only 4.28 per cent. At the bottom of the heap, on this scale, is the ICWAI (the Institute of Cost and Works Accountants of India), with a measly 0.875 per cent.

"Practising company secretaries are only a few thousands, whereas the number of companies runs to lakhs," points out N. R. Moorthy, a senior company secretary based in Pune. "Company secretaries aren't available in mofussil areas where CAs play the role. Trouble started when cross membership was allowed," says Moorthy. On this, though, Choraria has a different view. "Many forms don't need pre-certification," he says. "Our existing practising membership will be able to take the workload, because the number of documents to be certified per year, per company secretary, will work out to only 70 to 80," argues the prez.

Moorthy is of the view that the resignation of the four members of the Central Council of the ICSI is a belated action. "It is like bolting the stable after the horse has bolted away. There were ICSI representatives on the Committee when this issue was discussed and decided; and as far as I know no adequate representation was made by the ICSI opposing this move." He wonders if the ICSI had protested after the notification was issued. "It was only after the rank and file of the ICSI protested vociferously over this move that a semblance of protest is being shown by way of resignation. Even in the matter of amendment of the Chartered Secretary Act, I am doubtful whether the Institute was consulted or had offered any suggestions," opines Moorthy.

Vivek Sadhale, Company Secretary and Head - Legal of Persistent Systems Pvt Ltd, Pune, has these personal views to offer: "I think that ICSI members, with their education and background, are the most eligible for certification. Secretarial Audit is the core area for practising company secretaries as provided since January 1, 1981 under Section 2(2)(c)(v) of the Company Secretaries Act, 1980. Exclusive pre-certification of company forms by practising company secretaries was provided in Clause 383C of the Companies (Amendment) Bill, 2003 introduced on May 7, 2003. So also, the New Company Law accompanying the Concept Paper pronounced on August 4, 2004, by the present Ministry specifically provided for such exclusive pre-certification in its Para 87(11). Moreover, such exclusive pre-certification was in fact duly embodied in the format of e-forms till notification-stage as has been informed by some of our members who helped the Ministry in formatting the e-forms. It is unfortunate that the right is being diluted. As for the resignation, I do not have any comments."

Kannan Srinivasan, a professional with multiple qualifications, is currently working on the implementation of the MCA21 project. He feels that the certification under the new e-governance initiative has brought all the three professions together for the first time. "Viewed from this angle, it is a welcome step. The subject matter which is certified in the eForms, does not call for expertise in company law," he says. "Wherever in-depth knowledge on company law is required, company secretaries definitely have an edge and would definitely be consulted. They need not feel apprehensive about this. In my view professionals should not needlessly insist on reserved domains for practice. I am confident that company secretaries can take on this challenge."

While only time will tell which of the three professions will outlive the other two, let's wrap the discussion on a cheerful note, with this line of Brutus from Coriolanus: "We do it not alone, sir."

D. Murali

 
 
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