The Competition Commission of India is the regulatory body for competition / antitrust law in the country. The CCI ensures that activities having adverse effect on competition in the country are kept in check and a fair environment for healthy competition is created. Naturally, it conducts cases and proceedings when businesses contravene the law. But, are the proceedings before it judicial in nature?
The scheme of the Competition Act, 2002 ('the Act') at the time of its enactment was that Competition Commission of India ('CCI') would be a quasi-judicial body and adjudicate on the matters entrusted to it. The Act provided that appeals against the orders of the CCI were to be filed directly with the Hon'ble Supreme Court.
Section 36 of the Act granted CCI with the power to regulate its own procedure. Sub-section 3 of Section 36 inter alia provided that the proceedings before the CCI would be deemed to be judicial proceedings. Section 36 of the Act as originally enacted is reproduced below:
"Power of Commission to regulate its own procedure
...
(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.
..."
Since the CCI was created as a quasi-judicial body, the appointment of Chairperson and other members to the CCI by the Appointments Committee of the Cabinet was immediately challenged before the Courts by way of writ petitions. It was argued that since the CCI was a quasi-judicial body having adjudicatory powers, the Chairman of the CCI necessarily had to be a retired Chief Justice or Judge of the Supreme Court or of a High Court, to be nominated by the Chief Justice of India or by a Committee presided over by the Chief Justice of India. In response, the Government submitted before the Hon'ble Supreme Court that it will bring about certain changes to the Act in light of the issues raised in the writ petitions. (For details, please refer Page 10-11 of the report of 44th Standing Committee on Finance)
In light of the above, Competition (Amendment) Act, 2007 was passed which led to the creation of a separate quasi-judicial body i.e., Competition Appellate Tribunal. The amendment sought to make the CCI a regulator and expert body having advisory and advocacy functions. The relevant extract of the Statement of Objects and Reasons of the Competition (Amendment) Act, 2007 is reproduced below:
"2. The Competition Commission of India was established on the 14th October, 2003 but could not be made functional due to filing of a writ petition before the Hon'ble Supreme Court. While disposing of the writ petition on the 20th January, 2005, the Hon'ble Supreme Court held that if an expert body is to be created by the Union Government, it might be appropriate for the Government to consider the creation of two separate bodies, one with expertise for advisory and regulatory functions and the other for adjudicatory functions based on the doctrine of separation of powers recognised by the Constitution. Keeping in view the judgment of the Hon'ble Supreme Court, the Competition (Amendment) Bill, 2006 was introduced in Lok Sabha on the 9th March, 2006 and the same was referred for examination and report to the Parliamentary Standing Committee. Taking into account the recommendations of the Committee, the Competition (Amendment) Bill, 2007 is being introduced.
3. The Competition (Amendment) Bill, 2007, inter alia, provides for the following :-
(a) the Commission shall be an expert body which would function as a market regulator for preventing and regulating anti-competitive practices in the country in accordance with the Act and it would also have advisory and advocacy functions in its role as a regulator;
...
(c) for establishment of the Competition Appellate Tribunal, which shall be a three member quasi-judicial body headed by a person who is or has been a Judge of the Supreme Court or the Chief Justice of a High Court to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission;"
The procedure and powers of the Competition Appellate Tribunal was provided in a newly inserted section 53-O, which was quite similar to erstwhile Section 36 of the Act. Section 53-O is reproduced below:
53-O. Procedure and powers of Appellate Tribunal.-(1) The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Appellate Tribunal shall have power to regulate its own procedure including the places at which they shall have their sittings.
(2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him
on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act,
1872 (1 of 1872), requisitioning any public record or document or copy of
such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for default or any
order passed by it ex parte;
(i) any other matter which may be prescribed.
(3) Every proceeding before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228, and for the purposes of Section 196, of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Further, Section 36 of the Act was also substituted, and the newly substituted section did not have the deeming fiction as provided under erstwhile Section 36(3) of the Act. The substituted section 36 is reproduced below:
36. Power of Commission to regulate its own procedure.-
(1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure.
(2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him
on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses or documents;
(e) requisitioning, subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office.
(3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry by it.
(4) The Commission may direct any person-
(a) to produce before the Director General or the Secretary or an officer authorise by it, such books or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;
(b) to furnish to the Director General or the Secretary or any other officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person as may be required for the purposes of this Act.
In view of the above, since CCI was to be a market regulator and expert body having advisory and advocacy function (it appears that after the amendment), the proceedings before the CCI were not to be regarded as judicial proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
