RISE OF COMPETITION LAW IN INDIA: SHORTCOMING AND SUGGESTIONS


Introduction
“There is no established jurisprudence on most substantive issues. Any legal regime this young must be considered a work in progress that requires more work to complete.”
Indian Competition law is of a very contemporary origin when compared to its contemporaries. The delay can be attributed to the reluctance of the Indian populace and political leaders towards a market-based economy. 

Statutory laws
The first Indian competition law statute, the Monopolies, and Restrictive Trade Practices Act of 1969 was replaced by the Competition Act, 2002. This statute aims at prohibiting “any agreement which causes or is likely to cause an appreciable adverse effect (AAEC) on competition within India” [2] The act presumes certain agreements to have AAEC unless they can be shown to create efficiency gains. [3] Every other agreement is presumed to be lawful unless proven to be an AAEC. The abuse of a dominant position in an agreement is also a ground for unlawfulness. [4]
Certain provisions of the CA deal with mergers and acquisitions. [5] The large companies are legally obliged to notify the government before merging or acquiring other firms. Mergers and acquisitions that have AAEC are unlawful.
CA authorizes the government to enact certain rules in order to implement the act, [6] and the government has already issued several procedural and substantial rules. 

Institutions 
In the Indian context, there are five institutions that play a major role in the implementation of competition law. These are:
  1. The Competition Commission of India (CCI) - The CCI comprises a Chair and 2 to 6 other members [7]. They are appointed by the Central govt. on the recommendation of a committee consisting of the Chief Justice of India, the Secretary of the Ministry of Corporate Affairs, the Secretary of the Ministry of Law and Justice and two reputed experts. CCI has the authority to determine any violations of the CA and to ban such practice(s) temporarily or permanently. It reserves the same powers as that of a civil court and exercises exclusive jurisdiction over the matters related to CA. It can impose civil and criminal liabilities up to three years of imprisonment.
  2. The Director-General- It is the part of CCI that assists in investigations. [8] Central govt. appoints the DG. He is legally bound to investigate in matters of violation of the CA when requested to do so by the CCI. Post-investigation, he has a duty to submit a report to the CCI that is non-binding in nature. The DG reserves several powers of a civil court including the power to demand and seize the documents. DG is also authorized to issue orders.
  3. The Competition Appellate Tribunal (COMPAT) - The Competition Appellate Tribunal reserves the exclusive jurisdiction to hear the appeals from the CCI. It is comprised of a chairman and two members who are appointed by the Central Government on the recommendation of the selection committee. 
  4. The Supreme Court - The SC has the exclusive jurisdiction to hear appeals from the Supreme Court. [9]
  5. Private Parties - They can provide information that can form the basis of inquiry by CCI and COMPAT.
Analyzing the Competitive Law Regime of India
There are several gaps in the Competitive law regime in India. It can be attributed to the recent origin of the system. The institutions are so recent in origin that most of their features have not been properly used in practicality. India can adopt ‘take the best and leave out the rest’ approach with respect to the successful and comparatively old regimes. These include systems like the US and the EU. Indians can learn from their shortcomings, work on them and construct craft a better competitive law regime. Indian scholars and officials should aim at avoiding the mistakes the US made and use it as a basis to build a competitive law regime for India. [10]
The basic elements of the competitive law structure of India are well up to the mark. The statutes were drafted in such a way that the institutions to decide on the matters when there is any bad conduct that is producing or likely to produce bad effects. The institutions are well-constructed to meet the tasks of inquiry and adjudication. The decisions of one intuition can be challenged in another institution which ensures that justice is rendered. 
The SC has issued two judgments that lay down rules applicable to CCI. In Rangi International Ltd. v. Nova Scotia Bank and Ors. [11] the court clearly held that the CCI has the responsibility to state the reasons to support its judgments. It gives the parties, the courts, and other officials an understanding as to the reasons behind decisions. 
Further, in the Competition Commission of India v. Steel Authority of India Ltd. and Anr, [12] that the CCI, while deciding on a matter must complete the hearing “most expeditiously” and in a time period even shorter than mentioned in the statute. The CCI may find it extremely difficult to implement this and the SC may find it even more difficult to enforce this. This problem was faced by the US regime. The unrealistic deadlines on agency actions were unable to be met effectively. [13]

Suggestions
For India to be a better competitive e law regime, the following steps are suggested:
  1. The composition in the institutions to be improved. The US and EU competitive regimes improved drastically when economists with more acumen were selected as members.
  2. Unnecessary delays in the process can be avoided by adopting procedural rules that put paper hearings on an equal pedestal as oral hearings for dispute resolution.
  3. COMPAT should be given the authority to award treble damages to the parties that are injured by a violation of CA as determined by CCI. Awarding treble damages is a quintessential element of the US competitive regime. [14]
References
[1] Dr. K.D. Singh, Deputy Director (Law) at the Competition Commission noted at a 2015 Symposium on Competition Law sponsored by the National Law School. 
[2] Competition Act, 2002 §3(1). 
[3] Competition Act, 2002 §3(3). 
[4] Competition Act, 2002 §4(1). 
[5] Competition Act, 2002 §5 and 6. 
[6] Competition Act, 2002 §64(1). 
[7] Competition Act, 2002 §7-12. 
[8] Competition Act, 2002 §39. 
[9] Competition Act, 2002 §53. 
[10] “TRANSCRIPT OF THE VIII NLSIR SYMPOSIUM ON COMPETITION LAW.” National Law School of India Review, vol. 27, no. 2, 2015, pp. 197–225. JSTOR, Available here 
[11] Rangi International Ltd. v. Nova Scotia Bank and Ors. (2013) 7 SCC 160. 
[12] Competition Commission of India v. Steel Authority of India Ltd. and Anr (2010) 10 SCC 744
[13] Parrillo, Nicholas R., The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power (January 12, 2018). Harvard Law Review, Volume 131, Pages 685-794 (2018). Available at SSRN: Available here or here
[14] Clayton Act, 1914 §4.

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