Sectoral Regulatory Laws And The Competition Commission Of India: Revisiting The Interface After The Amendment Act Of 2023

India has two regulatory layers- sector regulators since the 1990s and the CCI, which alone handles competition matters since 2002, and this has created real gaps and clashes, as seen in telecom, electricity, aviation, and conflicting court rulings. The article argues this isn’t a genuine conflict but a design flaw as the CCI is best placed to judge competition consistently, while sectoral regulators bring technical expertise the CCI lacks. This gap was flagged back in 2011 in a policy draft that was never implemented. The article proposes practical fixes, mandatory coordination, sunset clauses for outdated rules, and a revived regulator forum.

I. INTRODUCTION

Two waves shaped India’s economic regulation- sector regulators from the early 1990s (each with some competition mandate), then the CCI as sole national competition watchdog. Twenty-three years on, the overlap between them remains unresolved.

This article argues three propositions. First, the CCI has the exclusive mandate to adjudicate on competition issues and has accumulated competence to assess the market landscape and market conduct through the lens of competition, across sectors and on a consistent analytical basis. Second, the sectoral regulators possess technical, engineering, actuarial, prudential and tariff expertise. Third, both derive their legitimacy from the same source, namely the welfare of consumers/users and the protection of stakeholders. There is, therefore, no conflict of purpose but a gap in design, and it is remediable.

Every proposition set out above was recorded, in terms, in the draft National Competition Policy of 2011, which stated that the promotion of competition “may not be high on” a sectoral regulator’s agenda, that a sectoral regulator “may not have an overall view of the economy as a whole” and may apply yardsticks differing from those of other regulators, and that the Commission, having developed core competence in the field, “will be able to apply uniform competition principles across all sectors of the economy. “ The draft Policy went further and recommended, without qualification, that coordination between the two “should be made mandatory through suitable provisions in the Competition Act, 2002, and the relevant sectoral laws.” Attempts have been made from time to time to ensure more effective coordination between the CCI and sectoral regulators.²

II. THE STATUTORY ARCHITECTURE: SECTIONS 21, 21A AND THE SECOND PROVISO TO SECTION 18

1. Section 21: reference by a statutory authority- Section 21(1) provides that where, in the course of a proceeding before any statutory authority, an issue is raised by any party that a decision which that authority has taken or proposes to take is or would be contrary to any of the provisions of the Competition Act, the statutory authority may make a reference in respect of that issue to the Commission.³ The proviso, as substituted in 2023, now permits any statutory authority to make a reference suo motu on any issue that involves any provision of the Act or is related to promoting its objectives. The Commission is to give its opinion within sixty days, and the referring authority is to consider that opinion and pass such order as it deems fit.
2. Section 21A: reference by the Commission- Section 21A is the mirror image. It was inserted only in 2007, and it states that where an issue arises before the Commission that a decision it has taken or proposes to take is or would be contrary to any provision of an Act whose implementation is entrusted to a statutory authority, the Commission may refer that issue to the authority, and, since 2023, may do so suo motu as well.⁴ The same sixty-day clock and non-binding character of the opinion apply, and “may” remains the operative word even after the amendment, rather than “shall.”

The change is real and should be acknowledged. Before 2023, the trigger under Section 21 was the raising of an issue by a party in a pending proceeding. A regulator that identified a competition problem on its own motion, outside any adversarial proceeding, had no clear statutory vehicle for taking it to the Commission.

1. The second proviso to Section 18⁵- Two features of the 2023 insertion have received less attention than they deserve. The first is that, unlike the first proviso, which requires the prior approval of the Central Government for arrangements with foreign agencies, the second proviso requires no approval at all. The second inserted proviso extends not merely to a “statutory authority” but also to a “department of Government” the language which Sections 21 and 21A do not contain. Thus, post the 2023 amendment, the CCI can also enter into an MoU with a department of the Government (i.e., bodies not run as independent statutory regulators), such as the Directorate General of Civil Aviation, the Directorate General of Shipping, or the Drugs Controller General of India.

III. THE OVERLAP MAPPED: SECTOR BY SECTOR

The overlap is not incidental or occasional. In sector after sector, Parliament has written into the sectoral statute a duty to regulate competition, without addressing how that duty is to be reconciled with the Act, which confers the same or a somewhat similar function on the CCI. A few examples are:

1. Telecommunications- The Telecom Regulatory Authority is required, among its recommendatory functions, to address measures facilitating competition and promoting efficiency, and to ensure compliance with licence conditions. The Supreme Court held that where the substance of a dispute turns on licence conditions and interconnection obligations, the Authority must first return findings on licence conditions before the CCI takes up its competition analysis.⁶
2. Electricity- This is the clearest instance of duplicated substantive jurisdiction in Indian law. The Electricity Act expressly includes the promotion of competition among its objectives, and Section 60 empowers the Appropriate Commission to issue directions where a licensee or generating company “enters into any agreement or abuses its dominant position or enters into a combination” likely to cause an adverse effect on competition in the electricity industry. That single provision replicates, within one sector, the three substantive limbs of the Competition Act. Sections 23, 61(c) and 66 add further competition-oriented mandates.⁷
3. Petroleum and natural gas- The Board’s first statutory function is to protect the interests of consumers “by fostering fair trade and competition amongst the entities”, and it is separately required to regulate access to common and contract carriers and to city gas distribution networks so as to ensure fair trade and competition, specifying a pipeline access code for the purpose. Access regulation of this kind maps directly onto the essential-facilities and refusal-to-deal analysis which the Commission conducts under Section 4.⁸
4. Securities- The Board is charged with protecting investors and regulating the securities market, and administers both the takeover code and the prohibition on fraudulent and unfair trade practices. The takeover regime and the combination provisions of the Competition Act apply to the same transactions on different tests and to different ends. Separately, the market infrastructure institutions are themselves natural monopolies or duopolies, and the Commission has adjudicated on the conduct of an exchange in a segment simultaneously regulated by the Board.⁹
5. Banking- Amalgamation of banking companies requires the sanction of the Reserve Bank, and the Central Government has from time to time exempted specified categories of banking amalgamation from the combination provisions.¹⁰ Large bank consolidations accordingly proceed through parallel clearance processes applying different criteria, with no statutory mechanism for reconciling them.
6. Insurance- The Authority’s duty is to regulate, promote and ensure the orderly growth of the insurance business. The Commission has nonetheless found cartelisation by public sector general insurers in a State Government tender, demonstrating that a sectoral mandate to promote orderly growth does not by itself detect or deter bid rigging. The sector now presents the interface question in a newer form: with the establishment of an electronic insurance marketplace designed and licensed by the regulator, the regulator becomes the architect of market structure, and competitive neutrality in the design of that architecture is a question no sectoral mandate is well placed to answer.¹¹
7. Coal- The Supreme Court has held that the Competition Act applies to State monopolies, Government companies and public sector undertakings notwithstanding a nationalisation statute which created the monopoly, and that a Government company is not a department discharging sovereign functions.¹² The reasoning proceeds from competitive neutrality and asks whether the special statute expressly excluded the operation of the Act.
8. Intellectual property- Section 3(5) creates a limited exception for reasonable conditions necessary to protect intellectual property rights, and there is no corresponding exception in Section 4.¹³ Notwithstanding that asymmetry, a Division Bench of the Delhi High Court has held the Patents Act to be a complete code which displaces the Commission’s jurisdiction over the conduct of a patentee. The consequences are traced in Part V.
9. Real estate- The Commission’s early jurisprudence on builder-buyer agreements preceded the enactment of the sectoral statute. Since 2016, the promoter’s obligations have been codified and are enforced by authorities constituted at the level of each State.¹⁴ Individual allottee grievances have accordingly migrated to those authorities, but structural questions (tie-ins with preferred lenders and contractors, control of land banks, conditions of transfer) remain competition questions which State authorities have neither the mandate nor the analytical apparatus to address.
10. Aviation, shipping and pharmaceuticals- In these sectors the contrast is starkest, because there is no independent sectoral regulator at all. The Commission has adjudicated a cargo fuel surcharge cartel among airlines¹⁵, a substantial line of cases concerning no-objection-certificate requirements imposed by chemists’ and druggists’ associations, and has operated alongside a pricing regime administered by a body distinct from the licensing and standards authority. Vessel-sharing arrangements in liner shipping have been dealt with by executive exemption rather than by regulatory coordination. In none of these sectors does the departmental regulator have a competition mandate, and in none of them do Sections 21 and 21A apply.

Three conclusions follow. First, the legislature has repeatedly conferred competition-flavoured functions on sectoral bodies without conferring the analytical apparatus needed to discharge them. Second, where those bodies have not acted, the Commission has, and its intervention has generally been vindicated on the merits. Third, the boundary has been drawn almost entirely by litigation. The draft National Competition Policy anticipated precisely this, attributing conflict to “legislative ambiguity or jurisdictional overlap or legislative omission” and expressing concern that resolution by a court of law should be “ the last alternative.”¹⁶

1. THE REFERENCE MECHANISM IN PRACTICE: TWO DECADES OF DISUSE

The Sections 21 and 21A machinery has been invoked so seldom that it ought not to be described as part of the statute.

A reference is widely perceived as an admission that the Regulator lacks the competence to resolve the matter itself. And there is a litigation risk which it is entirely rational to avoid: a Regulator that asks the Commission for its opinion hands the regulated entity an argument that the regulator itself doubted its own jurisdiction. This gives rise to avoidable litigation. Incidentally, enforcement is significantly undermined by legal challenges.

V. THE JURISPRUDENCE: TWO METHODOLOGIES, FOUR WEEKS APART

1. Bharti Airtel: The decision in Bharti Airtel is not an ouster of jurisdiction but a rule of sequence founded on comity and on respect for specialised competence.¹⁷ It remains the most useful Indian articulation of the relationship. Its weakness is that it is judge-made, fact-specific, and has since been over-read by regulated entities as authority for exclusivity.
2. Coal India: On 15 June 2023, the Supreme Court held that the Competition Act applies to Coal India Limited notwithstanding the Coal Mines (Nationalisation) Act, 1973.¹⁸ The test applied was whether the special statute expressly excluded the operation of the Act; concurrence was presumed unless excluded.
3. Ericsson: Four weeks later, on 13 July 2023, a Division Bench of the Delhi High Court reached the opposite destination by a different route. Applying generalia specialibus non derogant and lex posterior derogat priori, it held the Patents Act, as amended in 2003, to be a later and special enactment constituting a complete code, and held the Commission accordingly to be without jurisdiction over abuse arising from patent assertion.¹⁹ Displacement was presumed rather than concurrence.

VI. THE BLIND SPOT: DEPARTMENTAL REGULATORS AND THE STATES

1. Regulation by department- A significant portion of the Indian economy is regulated not by an independent statutory regulator but by a department or directorate of Government. Civil aviation safety and much of the economic conditioning of air transport rests with the Directorate General of Civil Aviation; maritime and coastal shipping with the Directorate General of Shipping; drug approvals, licensing and standards with the Drugs Controller General of India. The architecture is mixed rather than principled: airport and major port tariffs sit with statutory authorities while adjacent and equally economic functions in the same sectors remain departmental.
2. The dual-role problem- Departmental regulation raises a difficulty of a different order. A department is simultaneously the maker of policy, the grantor of licences and, in several of these sectors, the administrative parent of a State-owned incumbent competing in the market it regulates. The draft National Competition Policy identified this precise vice and recommended institutional separation.
3. The States-The position at the State level is more consequential still and receives the least attention. State electricity regulatory commissions exercising powers under Section 60, State real estate regulatory authorities, State transport authorities administering permits and route allocations, market committees constituted under agricultural produce marketing legislation, State excise regimes governing the manufacture and distribution of liquor, and State-level mineral concession administration together generate a very large share of the restrictions on entry, pricing and distribution.

VII. THE DRAFT NATIONAL COMPETITION POLICY: A DIAGNOSIS ALREADY MADE

It’s easy to dismiss a policy the Cabinet shelved in 2014 and never brought back. But Chapter 10 of that draft already says most of what today’s debate is arguing for. It said regulation only makes sense where there’s a natural monopoly, network effects, or a universal service duty- otherwise, let competition handle it. As markets become more competitive, regulation should ease up and eventually may not be needed at all. That’s why it called for sunset clauses in regulatory laws, so industries return to market forces once competition works, with the competition regulator handling all conduct-related issues. Any exception to this had to be clear, transparent, fair to public and private players alike, the least restrictive option, and time-limited with a built-in expiry.

VIII. RECOMMENDATIONS OF THE STANDING COMMITTEE ON FINANCE, 10 AUGUST 2026

The Standing Committee on Finance recommended that the CCI strengthen coordination with regulators dealing with overlapping subject matter, particularly the Ministry of Electronics and Information Technology and the data protection authority, through formal memoranda of understanding.²⁰

The 2011 document asked for mandatory statutory coordination with the utility regulators. The 2026 report asks for formal memoranda and protocols with the digital and data regulators. The consistency of the diagnosis across a decade and a half, two governments and an entirely transformed set of markets is the strongest available argument that the problem is structural rather than circumstantial.

1. LEARNING FROM OTHER JURISDICTIONS

Across both sides of the Atlantic, four devices recur: a statutory allocation rule rather than judicial comity; a duty to consult, coupled with an obligation to record and publish reasons where consultation did not occur; a periodic review or sunset test in which the operative question is whether general competition law would suffice; and a standing institutional forum producing published outputs. India presently has none of the four in enforceable form, although it has had all four on paper since 2011.

1. THE WAY FORWARD
2. Make coordination mandatory, not discretionary- Change “may” to “shall” in Sections 21 and 21A wherever the issue is genuinely one of competition assessment or sectoral regulatory competence, but let the authority decline, provided it records written reasons. The duty is to engage or explain, not to engage automatically in every case. This should apply symmetrically, with matching amendments to the sectoral statutes, not just the Competition Act.
3. Keep opinions advisory, but make departure costly- The CCI’s opinion need not bind the receiving regulator. It’s enough, and more constitutionally sound, to require that regulator to record its reasons for disagreeing, with those reasons forming part of the order and open to appeal.
4. Close the definitional gap- Amend Section 2(w), or add an Explanation to Sections 21 and 21A, to cover government departments and directorates performing economic regulatory functions, not just statutory regulators. This mirrors the second proviso to Section 18 and would bring aviation, shipping, and drug regulators within the coordination framework.
5. Build in a sunset mechanism- Require every economic regulatory statute to make the regulator reassess, at least every five years, whether its market still needs ex ante regulation, using a test centered on whether the Competition Act alone could handle the market failure. If yes, the sector-specific rules should lapse automatically by law, not by administrative discretion, and the CCI takes over conduct issues entirely.
6. A framework memorandum under the second proviso to Section 18- The Commission should prepare and offer a standard-form memorandum to every statutory authority and every departmental regulator, addressing: designated single points of contact at a specified seniority; a protocol for identifying, allocating and sequencing matters involving overlapping subject matter, including the treatment of jurisdictional facts; information sharing with express confidentiality safeguards; reciprocal secondment of officers; joint or coordinated market studies; and an annual joint statement of activity.²¹
7. Publish a register of references- The Commission shall publish, in its annual report, the number of references made and received under Sections 21 and 21A, identifying the authority concerned and the outcome. Where the number is nil, that should appear. Visibility is the cheapest available reform, and also the most effective.
8. Convert the Forum of Indian Regulators into India’s competition network- The institutional foundation exists and is better than is generally appreciated. The Forum has thirty-six members, a Secretariat and a Centre hosted at the Indian Institute of Corporate Affairs; its Inter-Regulator Working Group, drawing on the electricity, airports, ports, petroleum and telecommunications regulators, has reported on cooperation, comparative best practice and scope for inter-sectoral learning. Steps should be taken to revive and strengthen it. The Forum needs to be given statutory recognition and should be mandated to publish an annual inter-regulatory cooperation report.²²
9. Restore competition impact assessment without waiting for a Policy- A competition impact statement can be made a requirement of the pre-legislative consultation process for new economic regulation by executive instruction, with the Commission as consultee under Section 49²³, and departmental cells can be constituted by administrative order. Prevention is far more cheaper than enforcement.
10. Descend to the States- A programme of memoranda between the Commission and State electricity regulatory commissions, State real estate regulatory authorities and State transport authorities, supported by a standing State advocacy initiative and, if fiscal instruments permit, by the incentive mechanism the draft Policy contemplated, would reach the level at which most restrictions on entry and pricing are in fact created. This is where the largest unaddressed gains lie.
11. CONCLUSION:

Parliament has now given powers to the CCI and to the sectoral regulators to go ahead with memoranda of understanding (MoUs) to resolve, inter alia, existing or perceived issues. This is the exercise of a power that is already explicitly conferred. Three years on, the public record does not show that the process of entering into MoUs has even been initiated, or that “work is in progress.” Incidentally, the Forum of Indian Regulators (FOIR) is the room in which this initiative needs to begin.

Footnotes

^{1 G R Bhatia is Senior Partner & Head of Competition Law Practice, Corporate Professionals-Advisors & Advocates, New Delhi.  He is former Additional Director General, Competition Commission of India (CCI) and he was member of National Competition Committee established by the Ministry of the Corporate Affairs, Government of India and the erstwhile Monopolies & Restrictive Trade Practices Commission (MRTPC), Government of India.  The views are personal and he can be reached at gbhatia@indiacp.com. He was assisted by Adv. Gurnoor Kaur, Assessment Intern at Corporate Professionals- Advisors & Advocates, New Delhi, in the compilation of case laws and referencing for this article.}

^{2 Ministry of Corporate Affairs, Government of India, Draft National Competition Policy, 2011, Para 10 (“Coordination between the Competition Commission of India & Sectoral Regulators “). https://theindiancompetitionlaw.wordpress.com/wp-content/uploads/2013/02/draft_national_competition_policy.pdf}

^{3 The Competition Act, 2002, Sec. 21, as amended by the Competition (Amendment) Act, 2023. The Competition (Amendment) Act, 2023 (No. 9 of 2023), Gazette of India.}

^{4 The Competition Act, 2002, Sec.21A, inserted by the Competition (Amendment) Act, 2007 and amended by the Competition (Amendment) Act, 2023. The Competition (Amendment) Act, 2023 (No. 9 of 2023), Gazette of India.}

^{5 The Competition (Amendment) Act, 2023 (No. 9 of 2023), s. 13, substituting s. 18 of the principal Act and inserting the second proviso thereto (power to enter into a memorandum or arrangement with a statutory authority or department of Government, without prior Central Government approval, as distinct from the first proviso covering foreign agencies, which do require prior  approval of the Central Government: The Competition (Amendment) Act, 2023 (No. 9 of 2023), Gazette of India.}

^{6 Competition Commission of India v. Bharti Airtel Ltd. & Ors., Civil Appeal No. 11843 of 2018 (Supreme Court of India, decided 5 December 2018). https://api.sci.gov.in/supremecourt/2017/40072/40072_2017_Judgement_05-Dec-2018.pdf}

^{7 The Electricity Act, 2003 (Act No. 36 of 2003), Sections- 23, 61(c) and 66. https://cdnbbsr.s3waas.gov.in/s3716e1b8c6cd17b771da77391355749f3/uploads/2024/02/20240219885780629.pdf}

^{8 The Petroleum and Natural Gas Regulatory Board Act, 2006 (No. 19 of 2006). https://pngrb.gov.in/pdf/Act/ACT_PNGRB.pdf}

^{9 Securities and Exchange Board of India Act, 1992, s. 11; SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011; SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003. https://www.sebi.gov.in/legal.html}

^{10 Banking Regulation Act, 1949, s. 44A (amalgamation of banking companies, requiring sanction of the Reserve Bank of India https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/BANKI15122014.PDF}

^{11 Insurance Regulatory and Development Authority Act, 1999, Sec. 14 (duties, powers and functions of the Authority, including to “regulate, promote and ensure orderly growth” of the insurance business). https://www.wbconsumers.gov.in/writereaddata/ACT & RULES/Relevant Act & Rules/The IRDA Act’1999.htm}

^{12 Coal India Ltd. & Ors. v. Competition Commission of India, Civil Appeal No. 2845 of 2017 (Supreme Court of India, decided 15 June 2023. https://api.sci.gov.in/supremecourt/2017/5094/5094_2017_6_1501_44710_Order_15-Jun-2023.pdf}

^{13 The Competition Act, 2002, Sec. 3(5): agreements protecting intellectual property rights by way of reasonable conditions are excluded from s. 3(1).}

 ^{https://cci.gov.in/images/legalframeworkact/en/the-competition-act-20021652103427.pdf}

^{14 The Real Estate (Regulation and Development) Act, 2016, ss. 11–18 (functions and duties of promoters) https://haryanarera.gov.in/regulations/ReraActs2017.pdf}

^{15 Express Industry Council of India v. Jet Airways (India) Ltd. & Ors., Case No. 30 of 2013, Competition Commission of India (orders dated 7 March 2018. https://www.cci.gov.in/antitrust/orders/details/1030/0}

^{16 Draft National Competition Policy, 2011, para 10.2.3 (Supra 3)}

^{17 Competition Commission of India v. Bharti Airtel Ltd. & Ors., Civil Appeal No. 11843 of 2018 (Supreme Court of India, decided 5 December 2018). (Supra 7)}

^{18 Coal India Ltd. & Ors. v. Competition Commission of India, Civil Appeal No. 2845 of 2017 (Supreme Court of India, decided 15 June 2023). (Supra 13)}

^{19 Telefonaktiebolaget LM Ericsson v. Competition Commission of India, 2023 SCC OnLine Del 4078 (Delhi High Court, Division Bench, decided 13 July 2023). https://indiankanoon.org/doc/150896661/}

^{20 Standing Committee on Finance (Lok Sabha), 37th Report, presented to Parliament on 10 August 2026:  https://www.medianama.com/wp-content/uploads/2026/08/10Aug2026_ParliamentaryCommitteeFinanceReport.pdf}

^{21 The Competition (Amendment) Act, 2023 (No. 9 of 2023), s. 13, substituting s. 18 of the principal Act and inserting the second proviso thereto (power to enter into a memorandum or arrangement with a statutory authority or department of Government, without prior Central Government approval, as distinct from the first proviso covering foreign agencies, which does require such approval). https://prsindia.org/files/bills_acts/acts_parliament/2023/The%20Competition%20(Amendment)%20Act,%202023.pdf}

^{22 Forum of Indian Regulators, constituted as a society under the Societies Registration Act on 4 February 2000. It is hosted at the Indian Institute of Corporate Affairs (IICA). Forum of Indian Regulators, official website and IICA, FOIR Centre}

^{23 Competition Act, 2002, Sec. 49 (competition advocacy) https://cci.gov.in/images/legalframeworkact/en/the-competition-act-20021652103427.pdf}

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The views expressed in this article are solely those of the author in her personal capacity and are based on her understanding of the applicable legal and regulatory framework. They do not necessarily represent the views, policies or practices of organisation with which the authors is associated.