Tuesday, August 16, 2011

Relevant Legal Forms

The right of all citizens to form associations or unions is guaranteed by the Constitution of India, Article 19(1)(c).  

There are three pertinent legal forms of not-for-profit entities under Indian law:  trusts, societies, and section 25 companies (as well as cooperatives and trade unions, which, as mutual benefit organizations, are not discussed in this note).  Many state and central government agencies have regulatory authority over these not-for-profit entities.  For example, all not-for-profit organizations are required to file annual tax returns and audited account statements with various agencies.  At the state level, these agencies include the Charity Commissioner (for trusts), the Registrar of Societies (referred to in some states by different titles, including the Registrar of Joint Stock Companies), and the Registrar of Companies (for section 25 companies).  At the national or federal level, the regulatory bodies include the income tax department and Ministry of Home Affairs (only for not-for-profit organizations receiving foreign contributions). 

1.   Trusts 
Public charitable trusts, as distinguished from private trusts, are designed to benefit members of an uncertain and fluctuating class.  In determining whether a trust is public or private, the key question is whether the class to be benefited constitutes a substantial segment of the public.  There is no central law governing public charitable trusts, although most states have "Public Trusts Acts."  Typically, a public charitable trust must register with the office of the Charity Commissioner having jurisdiction over the trust (generally the Charity Commissioner of the state in which the trustees register the trust) in order to be eligible to apply for tax-exemption. 

In general, trusts may register for one or more of the following purposes: 
Relief of Poverty or Distress; 
Medical Relief; 
Provision for facilities for recreation or other leisure -time occupation (including assistance for such provision), if the facilities are provided in the interest of social welfare and public benefit; and 
The advancement of any other object of general public utility, excluding purposes which relate exclusively to religious teaching or worship.

At least two trustees are required to register a public charitable trust.  In general, Indian citizens serve as trustees, although there is no prohibition against non-natural legal persons or foreigners serving in this capacity.  

Legal title of the property of a public charitable trust vests in the trustees.  Trustees of a public charitable trust may not, however, in any way use trust property or their position for their own interest or private advantage.  Trustees may not enter into agreements in which they may have a personal interest that conflicts or may possibly conflict with the interests of the beneficiaries of the trust (whose interests the trustees are bound to protect).  Trustees may not delegate any of their duties, functions or powers to a co-trustee or any other person, except that trustees may delegate ministerial acts.  In essence, trustees may not delegate authority with respect to duties requiring the exercise of discretion. 

Trustees of religious or charitable trusts are charged with discharging their duties with the degree of care that an ordinarily prudent person would exercise with respect to his personal property.  This is a slight variant on the duty of care applicable in many U.S. jurisdictions, which requires directors and officers to act with the degree of diligence, care and skill that ordinarily prudent persons would exercise under similar circumstances in like positions (as opposed to in the management of their personal affairs).  Public charitable trusts are highly regulated.  For instance, in many states, purchases or sales of property by a trust must be approved in advance by the Charity Commissioner. 

Indian public charitable trusts are generally irrevocable.  If a trust becomes inactive due to the negligence of its trustees, the Charity Commissioner may take steps to revive the trust.  Furthermore, if it becomes too difficult to carry out the objects of a trust, the doctrine of cy pres, meaning "as near as possible," may be applied to change the objects of the trust.  Thus, it appears that grantors can feel fairly secure that the charitable nature of a trust will be honored, even if the original, specific purposes of the trust cannot be carried out.

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