Article by MM Sharma, Head Competition Law & Policy Practice, Vaish Associates, Advocates, New Delhi, India

Has the Competition Commission of India ("CCI") gone overboard by restricting the advocates from sitting "within hearing distance" with their clients during recording of evidence by the Director General (DG) or CCI designated officers ? Did CCI not overreacted and selectively applied the passing observations made by the Division Bench of the Delhi High Court vide its judgment dated 24.05.2018 in Competition Commission of India v Oriental Rubber Industries Private Ltd and ignored the obiter dicta of the said judgment, which upheld the legal right of parties to be defended by lawyers and right of lawyers to practice before the DG and CCI ? Does CCI have the power to supersede the authority of the Bar Council , the statutory regulator of the legal profession , by debarring the advocates from appearing before the DG and the CCI for any time or even indefinitely, without even affording hearing to the concerned advocate on ground of perceived "misconduct"? Can the DG direct the authorised Counsel to sit outside his chamber while recording the oral statement of the witness and watch the proceedings from a glass window beyond hearing distance and not protect his client from any possible threat or coercion that may be used by the recording officer to intimidate the witness? Can the DG even stop the authorised counsel from noting down the statement being recorded in his own note book without causing any disturbance to the proceedings?

AND more importantly , can the CCI justifiably impose such restrictions ONLY ON ADVOCATES leaving aside other professionals such as Chartered Accountants , Company Secretaries and the Cost and Works Accountants , who are also authorised to appear before the DG or the CCI under Section 35 of the Competition Act,2002 (the Act) , particularly , when no such restrictions have been imposed on these other professionals under Regulation 46 of the Competition Commission of India (General) Regulations, 2009 ("General Regulations")?

These are some pertinent questions that have either arisen or are likely to arise before the Madras High Court where the apparently harsh amendment in the General Regulations has been challenged by a conscious lawyer practicing before the CCI by way of writ petition being WP(C) NO. 34313/2018. The writ petition has challenged the recent amendment in the General Regulations by inserting Regulation 46A by way of notification dated 06.12.2018 . A brief overview of the "overtly restrictive" provisions , which applies only to advocates , will be just in place .

Sub regulation (1) clause (c ) of the newly inserted Regulation 46A states " The Advocate shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person , during his examination on oath."

Sub regulation (2) of the Regulation 46A, states – "No misconduct on the part of the Advocate, accompanying the person summoned during continuance of his presence before the DG shall be permitted. In case of any misconduct, the DG for reasons to be recorded in writing shall forward a complaint to the Commission. The Commission, if satisfied with the complaint of the DG, may pass necessary order debarring the Advocate, guilty of misconduct, from appearing in the proceedings before the DG as well as before the Commission in future or till such time as the Commission deems necessary." (emphasis supplied).

The Madras High Court vide its order dated 04.01.2019 has stayed the operation of sub-regulation (2) of Regulation 46A of the General Regulations. The matter is now listed for hearing on 20.03.2019.

Although the matter is sub-judice and one should avoid becoming judgmental yet it needs to be highlighted as to how the CCI has selectively chosen the observations passed in the last but one paragraph (23) of the judgment dated 24.05.2018 of the Delhi High Court in Competition Commission of India v Oriental Rubber Industries Private Ltd 1and ignored the obiter dicta of the said judgment, which upheld the legal right of parties to be defended by lawyers and right of lawyers to practice before the DG and CCI. The following observations of Hon'ble High Court in this judgment substantiate the same.

"The right of a party to be represented through counsel in legal proceedings, and the corresponding rights of an Advocate to practice are so well entrenched as to not required further analysis. This right is provided under Section 30 of the Advocates Act, 1961......." (Paragraph 17).

"That being the case, the DG would fall under section 30(ii) of the Advocates Act, as being a person "legally authorized to take evidence" . Therefore, Advocates under Section 30 would have the right to practice before such individual. That being the case, what the Court must then discern is whether the Act contains any restriction or prohibition on advocates from appearing before the DG during its investigations. Facially, the Court notices that there is no such restriction in the Act or the Regulations. Neither does the appellant's argument that the Act in specifically providing for the right of legal representation before the Commission (through Section 35), impliedly rejects such a right before the DG, persuade this Court. The right of practice of an advocate and the right of a litigant to engage the service of an advocate being firmly entrenched in the Advocates Act and through the Constitution, restrictions on such a right must be clearly spelt out in the legislation. In the absence to such express stipulation, this Court cannot impliedly read in such a restriction in the statute." (Paragraph 19). (Emphasis supplied).

"Since the DG's powers are so far-reaching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. His Court, therefore, finds that the Learned Single Judge's reliance on Google (supra) as well as the decision in Punjab National Bank (supra), to hold that when the consequences of an enquiry or investigation are severe and drastic, the right of a person to be accompanied or represented by an advocate cannot be extinguished, stands to reason and cannot be faulted with." (Paragraph 22) (Emphasis supplied).

However, the same High Court, in the penultimate para no 23 of the same judgment while noticing some concerns raised by the appellant CCI apparently allowed the Commission to prescribe in an order on the application of a party seeking representation by a counsel that "when a request for representation by counsel is made, in appropriate procedure to be followed during such investigation, where the counsel may be allowed to accompany the party, but not continuously confer with him when the DG is taking his or her testimony or asking questions. Therefore, while the party is allowed his right to be accompanied by an advocate, the DG's investigations are not unnecessarily hindered." Further, the Hon'ble Court also stated that "The Commission, having regard to the appropriate best practices across jurisdictions in antitrust matters may formulate such procedures an incorporate them in regulations." (Paragraph 23) (Emphasis supplied).

Interestingly, the Hon'ble Court in the last sentence of the paragraph 23 in the said judgment observed that "Therefore, the DG shall ensure that the counsel does not sit in front of the witness; but in some distance away and the witness should not be able to confer or consult her or him."

When the above observations of the Hon'ble High Court are compared with the new Regulation 46A inserted by CCI in the General Regulations, does it not appear that the CCI has gone slightly over board and mis interpreted the "some distance away" as "beyond the hearing distance" thereby reducing the role of advocates as mere spectators in the proceedings before the DG? How can an advocate provide assistance to his client when he cannot even hear the proceedings is a pertinent question that should be asked by all conscious lawyers practicing before CCI or DG?

The CCI, in my humble view, has over reacted to the authority granted by the Hon'ble Delhi High Court in the above judgment and has framed the impugned new Regulation 46A without studying the best practices across other jurisdictions as were also noticed by the High Court in the said judgment.

Anyway, the matter is sub-judice and let us wait and watch.

This article first appeared on the Antitrust & Competition Law Blog, 27th March 2019 .


1. LPA 607/2016, CM Appl. 41020/2016

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