Following the Standing Committee on Finance’s report, the Lok Sabha passed the Chartered Accountants, the Cost and Works Accountants and the Company Secretaries (Amendment) Bill, 2021. According to Finance Minister Nirmala Sitharaman, India will now have an accounting firm that is equivalent to the world’s top firms, and the proposed amendments in laws governing chartered accountancy, cost accountancy and company secretary will ‘facilitate’ that.
The Amendment Bill, which sought to reform the functioning of three professional institutions — Institute of Chartered Accountants of India (ICAI), Institute of Company Secretaries of India (ICSI) and Institute of Cost and Management Accountants of India (ICoAI) — was referred last year to the Standing Committee for scrutiny.
This article briefly highlights the challenges of the self-regulatory model in the auditing profession and why the Amendment Bill is needed in today’s context.
Role of professionals
Professionals like chartered accountants, company secretaries and cost work accountants help in resolving agency problems. They are expected to provide trustworthy financial information and monitor corporate governance in companies. For instance, stakeholders of a publicly held company like shareholders, investors and taxation authorities rely upon the audited financial statements. Serious concerns arise if the auditor's independence is compromised. Eventually, this adversely affects the market economy.
In this chain of events, the role of professional institutes, like ICAI, who regulates chartered accountants, assumes huge importance. Given the global churning to address the problem of increasing conflict of interest, especially in the profession of auditors, several countries have revisited the existing regulatory approach.
While the proposed amendments in the Bill are applicable to all three professional institutions (ICAI, ICSI and ICoAI), over the years there has been an increasing demand from several quarters (like regulators, civil society) to overhaul the functioning of ICAI. Inference can be drawn from the recent recommendations of the Central Vigilance Commission to conduct a special CAG audit of ICAI to look into the alleged irregularities.
History of professional institutes
India has a long history of statutory professional institutions that are modelled on self-regulatory principles. Immediately after independence, in 1949 the Chartered Accountants Act was enacted which established ICAI as a statutory body. Drawing inspiration from the mandate of the Institute of Chartered Accountant of Wales and England, ICAI was given the authority to regulate and develop the chartered accountancy profession in India. After a gap of ten years, the Costs and Works Accountant law was passed to regulate the profession of cost accountants. And in 1980, the Company Secretaries Act was enacted.
In a self-regulatory organisation (SRO), members of the profession undertake to be a guarantor for the competence and conduct of its members. Members establish and monitor professional standards, set entry and ongoing education standards and conduct disciplinary actions. Under the self-regulatory model, rules are drafted by the market practitioners/participants using their expert knowledge. Further, the administrative cost of regulation is borne by the professional members which reduces the regulatory overheads like inspection and enforcement of the government.
Problems with SROs
SROs may claim that their interests are in line with the public interest, but in practice, it may be otherwise. In the past, the Committee of Experts on regulation of audit firms appointed by the Ministry of Corporate Affairs observed that when professional bodies self-regulate their professions, conflict of interest can arise. On one hand, they have to regulate and discipline their fellow members of the profession to safeguard the public interest, and on the other hand promote their profession to compete with other professions. Further, actions taken against the professional members may not be commensurate with the wrongdoings.
At the global level, with the increasing financial impropriety and failure of corporate governance, several countries shifted towards independent oversight of auditors. Starting with the debacle of Enron in 2001 to the global economic crisis in 2008, the audit profession came under intense scrutiny. Since then many of the developed economies acknowledged the shortcomings of the self-regulatory structure (ineffectiveness of the disciplinary mechanism) in the audit profession and switched over to independent oversight bodies. For example, the US created the Public Companies Oversight Accounting Board, the UK established the Financial Reporting Council, whereas far-east the Certified Public Accountants and Auditing Oversight Board was set up in Japan. Under the new regime, the mandate of regulating the auditors of public listed companies shifted from the SROs to the independent oversight bodies, whereas the regulation of auditors of private companies continued with the SROs.
Problems with ICAI
India was not left untouched by the global scandals. The Enron scandal triggered the debate on the need for an independent audit regulator. In 2002, a High Level Committee on Corporate Audit and Governance chaired by Naresh Chandra was constituted which reviewed the necessity of having India’s own independent oversight body similar to PCAOB in the US. But ICAI objected and the idea of an Indian version of PCAOB was dropped. Some cosmetic amendments were made to the functioning of the ICAI. For instance, a quality review board was created under the Chartered Accountants Act to conduct peer review of the audit firms. Similarly, a board of discipline and a disciplinary committee was created within all three professional institutions — ICAI, ICSI and ICWAI. Although none of these changes could bring a visible shift in the regulation of the audit profession.
Evidently, in 2009 the Satyam scam shook the Indian market, which not only raised questions on the regulatory efficacy of ICAI, but reignited the debate to move towards a PCAOB like structure. Not surprisingly, over the years ICAI vehemently opposed the need of an oversight body. However, in 2018, nine years after the Satyam scandal, India’s first independent audit regulator, National Financial Reporting Authority (NFRA) was established. With this, India upgraded the regulatory regime of auditors of public companies in line with international best practices.
However, the internal functioning (like conflict of interest in disciplinary mechanism) of the professional institutes, especially, the ICAI remained. For instance, in 2017 the Prime Minister, speaking to the chartered accountants on the foundation day of the ICAI, expressed serious concern over the efficacy of ICAI’s disciplinary mechanism. In 2017, the government constituted a High Level Committee headed by Meenakshi Dutta Ghosh to look into the working of the institutes. The recommendations of this committee have laid the foundation of the Amendment Bill.
Why is the Amendment Bill necessary?
The objective behind the Amendment Bill, 2021 could be broadly classified into three buckets, i.e., first, improve institutional autonomy, second, streamline the disciplinary proceedings (like time-bound disposal of cases, creation of multiple boards to hear disciplinary matters, making available more data on disciplinary proceedings) and thirdly but most importantly, reduce conflict of interest in the decision-making process. To illustrate, one of the strong grounds for the conflict of interest has been associated with the appointment and re-appointment of officers as part of the disciplinary proceedings. Under the new regime, the council of the institute will no longer have the prerogative in this process, and prior approval of the government would be required for appointing, re-appointing or removing the Director (Discipline) and Joint Director (Discipline). Although due caution would have to be exercised to ensure there are no executive delays and approvals are not mired in political influence.
Similarly, the role of council members in the disciplinary proceedings has always been a bone of contention. The Bill ensures that the disciplinary committee of the professional institutions will have a majority of members not belonging to the profession, including the presiding officer. This would be a major shift from the historical position where the president or vice-president of the council is the presiding officer, which defeats the doctrine of separation of executive and quasi-judicial function. Similarly, to avoid administrative conflict of interest, the Bill proposes the President of the Council to be separate from the executive ahead. Bringing these changes may align the professional institutes in India with global practices.
Consistent with its past position, ICAI has raised concerns over the changes which dilute the role of the council in disciplinary proceedings and strips the President of the executive role. Fortunately, the Standing Committee on Finance has not accepted the objections and approved the Bill in its original form and substance. Interestingly, the Standing Committee of its own accord has challenged the statutory monopoly enjoyed by ICAI and recommended multiple bodies (Indian Institutes of Accounting) to be created on the lines of IITs and IIMs for imparting education and licensing. While the Amendment Bill does not have this provision, this could be a golden opportunity to push this necessary reform to bring competition and transparency in the audit profession.
Another important proposal made is to address the long demand of the ICAI to bring the firms within their regulatory purview. This lack of statutory power had become a point of contention in the Satyam case, when ICAI penalised the individual members of the audit firm, but could not proceed against the firm.
The self-regulatory structure in India, where state capacity is limited, serves an essential purpose. However, in the absence of necessary checks and balances, this model can become counter-productive. The Amendment Bill aims to strike this balance. Past experience shows that the process of implementing changes in the audit profession has been arduous and fraught with political economy. Since these reforms are long-overdue and necessary, the Amendment Bill must be enacted at the earliest.
The writer is a public policy consultant at NCAER, a Delhi-based think tank. Views expressed are personal.