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  • 8/13/2019 Mrtp and Competition




    Since attaining Independence in 1947, India, for the better part of half a century thereafter,adopted and followed policies comprising what are known as Command and Control! laws,rules, regulations and e"ecuti#e orders$ %he competition law of India, namely, the&onopolies and 'estricti#e %rade (ractices )ct, 19*9 +&'%( )ct, for brief was one such$It was in 1991 that widespread economic reforms were undertaken and conse-uently themarch from Command and Control! economy to an economy based more on free market

    principles commenced its stride$ )s is true of many countries, economic liberalisation hastaken root in India and the need for an effecti#e competition regime has also been recognised$+.or a history of e#olution of competition policy in se#eral countries, see /wing, 0 2 $

    In the conte"t of the new economic policy paradigm, India has chosen to enact a newcompetition law called the Competition )ct, 0 0 +)ct, for brief $ %he &'%( )ct hasmetamorphosed into the new law, Competition )ct, 0 0$ %he new law is designed to repealthe e"tant &'%( )ct$ )s of now, only a few pro#isions of the new law ha#e been broughtinto force and the process of constituting the regulatory authority, namely, the CompetitionCommission of India under the new )ct, is on$ %he remaining pro#isions of the new law will

    be brought into force in a phased manner$ .or the present, the outgoing law, &'%( )ct, 19*9and the new law, Competition )ct, 0 0 are concurrently in force, though as mentionedabo#e, only some pro#isions of the new law ha#e been brought into force$

    This paper, therefore, addresses both the enactments and a so o!t ines the o"ic behind

    the metamorphosis#

    T RI$$ER C A%SE

    Competition 3aw for India was triggered by )rticles 2 and 29 of the Constitution of India$%hese )rticles are a part of the 5irecti#e (rinciples of State (olicy$ (egging on the 5irecti#e(rinciples, the first Indian competition law was enacted in 19*9 and was christened theMONOPO&IES AN' RESTRICTI(E TRA'E PRACTICES ACT, )*+* +&'%( )ct $)rticles 2 and 29 of the Constitution of India mandate, inter alia, that the State shall stri#eto promote the welfare of the people by securing and protecting as effecti#ely, as it may, asocial order in which 6ustice social, economic and political shall inform all the institutions

    of the national life, and the State shall, in particular, direct its policy towards securing

    8 5r$S$Chakra#arthy is a ci#il ser#ant by profession and a &ember of the Indian ar$ :e was &ember,&onopolies and 'estricti#e %rade (ractices Commission and &ember, :igh 3e#el Committee on Competition(olicy and 3aw, 5ept$ of Company )ffairs, ;o#t$ of India and also on the Committee to draft a newCompetition 3aw for India$ %ill recently, he was )d#isor

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    distributed as best to subser#e the common good? and0$ that the operation of the economic system does not result in the concentration of

    wealth and means of production to the common detriment$

    In line with the )ntitrust legislation being an integral part of the economic life in many

    countries, [email protected] outgoing law, namely, the &'%( )ct is regarded as the competition law ofIndia, because it defines a restricti#e trade practice to mean a trade practice, which has, ormay ha#e the effect of pre#enting, distorting or restricting competition in any manner$ utthe &'%( )ct, in comparison with competition laws of many countries, is inade-uate forfostering competition in the market and trade and for reducing, if not eliminating, anticompetiti#e practices in the [email protected] domestic and international trade$

    %he &'%( )ct drew hea#ily upon the laws embodied in the Sherman )ct and the Clayton)ct of the Anited States of )merica, the &onopolies and 'estricti#e %rade (ractices +In-uiryand Control )ct, 194 , the 'esale (rices )ct, 19*4 and the 'estricti#e %rade (ractices )ct,19*4 of the Anited Bingdom and also those enacted in apan, Canada and ;ermany$ %heA$S$ .ederal %rade Commission )ct, 1914 as amended in 192 and the CombinesIn#estigation )ct, 191 of Canada also influenced the drafting of the &'%( )ct$

    (remises on which the &'%( )ct rests are unrestrained interaction of competiti#e forces,ma"imum material progress through rational allocation of economic resources, a#ailability ofgoods and ser#ices of -uality at reasonable prices and finally a 6ust and fair deal to theconsumers$ )n interesting feature of the statute is that it en#elops within its ambit, fields of

    production and distribution of both goods and ser#ices$


    %hree areas informed till 1991 +when the &'%( )ct was amended the regulatory pro#isionsof the &'%( )ct, namely, concentration of economic power, competition law and consumer

    protection$ ) criticism is often #oiced that the statute was designed to prohibit growth$ %hisis fallacious and erroneous$ %he statute, till 1991 regulated growth but did not prohibit it$/#en in its regulatory capacity, it controlled the growth only if it was detrimental to thecommon good$ In terms of competition law and consumer protection, the ob6ecti#e of the&'%( )ct is to curb &onopolistic, 'estricti#e and Anfair %rade (ractices which disturbcompetition in the trade and industry and which ad#ersely affect the consumer interest+&onopolistic, 'estricti#e and Anfair %rade (ractices are described later in this paper $ )

    parallel legislation known as the Consumer (rotection )ct, 19 * has also come into being,

    which pre#ails essentially in the realm of Anfair %rade (ractices$Dne could argue that the consumers need no special protection as they can be left to themarket forces$ ut a perfectly competiti#e market is 6ust an utopia and the consumerso#ereignty a myth$ (roducts are of great #ariety, many of them are comple" and theconsumer has imperfect product knowledge$ %he supplier often has a dominant position #isE #is the buyer who has little or no bargaining power in the market$ %here has been agrowing realisation for not depending on the old doctrine of Ca#eat /mptor let the buyer

    beware!$ %he consumer, therefore, needs and deser#es legal protection against certain trade practices, business methods and unscrupulous forces$

    In many countries and in particular de#eloping countries like India, a large number ofconsumers are illiterate and ill informed and possess limited purchasing power in an


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    i control production, supply, etcii control pricesiii pre#ent, reduce or eliminate competitioni# limit technical de#elopment# retard capital in#estment

    #i impair the -uality of goods$

    %he &'%( )ct, before the 1991 amendments sought to curb such power arising out of amonopoly$

    (rior to the 1991 amendments, the &'%( )ct essentially was implemented in terms ofregulating the growth of big siGe companies called the monopoly companies$ In other words,there were pre entry restrictions therein re-uiring undertakings and companies with assets ofmore than 's$1 crores +about AS H00 million to seek appro#al of ;o#ernment for settingup new undertakings, for e"pansion of e"isting undertakings, etc$

    &a6or amendments were effected to the &'%( )ct in 1991$ (ro#isions relating toconcentration of economic power and pre entry restrictions with regard to prior appro#al ofthe Central ;o#ernment for establishing a new undertaking, e"panding an e"istingundertaking, amalgamations, mergers and take o#ers of undertakings were all deleted fromthe statute through the amendments$ %he causal thinking in support of the 1991 amendmentsis contained in the Statement of Db6ects and 'easons appended to the 1991 )mendment illin the (arliament, e"tract in part of which, runs as follows=

    ith the growing comple"ity of industrial structure and the need for achie#ing economies ofscale for ensuring higher producti#ity and competiti#e ad#antage in the international market,the thrust of the industrial policy has shifted to controlling and regulating the monopolistic,restricti#e and unfair trade practices rather than making it necessary for certain undertakingsto obtain prior appro#al of the Central ;o#ernment for e"pansion, establishment of newundertakings, merger, amalgamation, take o#er and appointment of 5irectors$ It has been thee"perience of the ;o#ernment that pre entry restriction under the &'%( )ct on thein#estment decision of the corporate sector has outli#ed its utility and has become ahindrance to the speedy implementation of industrial pro6ects$ y eliminating the re-uirementof time consuming procedures and prior appro#al of the ;o#ernment, it would be possible forall producti#e sections of the society to participate in efforts for ma"imisation of production$JJJ$$%he criteria for determining dominance, JJJJ is proposed to be determined only on the

    basis of market share of 0KL of the total goods produced, supplied, distributed or ser#icesrendered in India or substantial part thereof$!

    ith the restructuring of the &'%( )ct through the 1991 amendments, the thrust thereof ison curbing &onopolistic, 'estricti#e and Anfair %rade (ractices with a #iew to preser#ingcompetition in the economy and safeguarding the interest of consumers by pro#iding them

    protection against false or misleading ad#ertisements and

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    eha#ioural and reformist doctrines inform the &'%( )ct$ In terms of the beha#iouraldoctrine, the conduct of the entities, undertakings and bodies which indulge in trade practicesin such a manner as to be detrimental to public interest is e"amined with reference to whetherthe said practices constitute any &onopolistic, 'estricti#e or Anfair %rade (ractice$ In termsof the reformist doctrine, the pro#isions of the &'%( )ct pro#ide that if the &'%(

    Commission, on en-uiry comes to a conclusion that an errant undertaking has indulged eitherin 'estricti#e or Anfair %rade (ractice, it can direct such undertakings to discontinue or not torepeat the undesirable trade practice$ %he &'%( )ct also pro#ides for the acceptance of anassurance from an errant undertaking that it has taken steps to ensure that pre6udicial effect oftrade practice no more e"ists$ %he #eneer of the &'%( )ct is essentially based on anad#isory or reformist approach$ %here is no deterrence by punishment$

    ith this backdrop, some of the important pro#isions of the &'%( )ct are listed in thenarrati#e that follows, wherein the dimensions relating to 'estricti#e %rade (ractices, Anfair%rade (ractices, &onopolistic %rade (ractices, ;oods and 5ominance are co#ered$

    ) Restrictive Trade Practice (RTP) is generally one which has the effect of pre#enting, distorting or restricting competition$ In particular, a practice, which tends toobstruct the flow of capital or resources into the stream of production, is a '%($ 3ikewise,manipulation of prices, conditions of deli#ery or flow of supply in the market which mayha#e the effect of imposing on the consumer un6ustified costs or restrictions is regarded as'estricti#e %rade (ractice$ Certain common types of 'estricti#e %rade (ractices enumeratedin the &'%( )ct are=

    i 'efusal to dealii %ie up salesiii .ull line forcingi# /"clusi#e dealings# (rice discrimination#i 'e sale price maintenance#ii )rea restriction

    )ll 'estricti#e %rade (ractices under the &'%( )ct are deemed legally to be pre6udicial to public interest$ %he onus is, therefore, on the entity, body or undertaking charged with the perpetration of the 'estricti#e %race (ractice to plead for gateways pro#ided in the &'%()ct itself to a#oid being indicted$

    If the gateways are satisfactory to the Commission and if it is further satisfied that therestriction is not unreasonable ha#ing regard to the balance between those circumstances andany detriment to the public interest or consumers likely to result from the operation of therestriction, the Commission may arri#e at the conclusion that the '%( is not pre6udicial to

    public interest and discharge the en-uiry against the charged party$ .urthermore, if a trade practice is e"pressly authorised by any law for the time being in force, the Commission is barred from passing any order against the charged party$

    (rior to 19 4, the &'%( )ct contained no pro#isions for protection of consumersagainst false or misleading ad#ertisements or other similar unfair trade practices and a needwas felt to protect them from practices, resorted to by the trade and industry, to mislead or

    dupe them +Sachar Committee, 197 $ %o -uote the Sachar Committee= )d#ertisement andsales promotion ha#e become well established modes of modern business techni-ues$ %hat


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    ad#ertisement and representation to the consumers should not become decepti#e has always been one of the points of conflicts between business and consumer!$ %he Sachar Committeetherefore recommended that a separate Chapter should be added to the &'%( )ct defining#arious Anfair %rade (ractices so that the consumer, the manufacturer, the supplier, the traderand other persons in the market can con#eniently identify the practices, which are prohibited$

    /ssentially Anfair %rade (ractices +A%( falling under the following categories wereintroduced in 19 4 in the &'%( )ct =

    +i $ &isleading ad#ertisement and false representation$+ii $ argain sale, bait and switch selling$

    +iii $ Dffering of gifts or priGes with the intention of not pro#idingthem and conducting promotional contests$

    +i# (roduct safety standards$+# :oarding or destruction of goods$

    &aking false or misleading representation of facts disparaging the goods, ser#ices or trade ofanother person is also a prohibited trade practice under the Indian law$

    %he &onopolistic %rade (ractice +&%( came into the statute by an amendment to the)ct in 19 4$ )n &%( is a trade practice which has or is likely to ha#e the effect of=

    i maintaining the prices of goods or charges forthe ser#ices at an unreasonable le#el by limiting,reducing or otherwise controlling the production,supply or distribution of goods or the supply ofany ser#ices or in any other manner?

    ii unreasonably pre#enting or lesseningcompetition in the supply or distribution of anygoods or in the supply of any ser#ices?

    iii limiting technical de#elopment or capitalin#estment to the detriment or allowing the-uality of any goods produced, supplied or anyser#ices rendered, in India, to deteriorate?

    i# increasing unreasonably= a the cost of production of any goods? or b charges for the pro#ision, or

    maintenance, of any ser#ices?

    # increasing unreasonably=a the prices at which goods are, or may be,sold or re sold, or the charges at whichthe ser#ices are, or may be, pro#ided? or

    b the profits which are, or may be, deri#ed by the production, supply or distribution+including the sale or purchase of anygoods or in the pro#ision or maintenanceof any goods or by the pro#ision of anyser#ices?

    #i pre#enting or lessening competition in the

    production, supply or distribution of any goodsor in the pro#ision or maintenance of any


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    ser#ices by the adoption of unfair methods orunfair or decepti#e practices$

    In the &'%( )ct, the basis of determining dominance is whether an undertaking hasa share of 0KL or more in the production, supply distribution or control of goods or ser#ices$

    ;oods include products manufactured, processed or mined in India, shares and stocks andgoods imported into India$ (rior to the 1991 amendments to the &'%( )ct, dominance hadrele#ance in that, a dominant undertaking could not e"pand or commence a new undertakingwithout the appro#al of the ;o#ernment under the said )ct$ )fter 1991, with the deletion ofthe pro#isions relating to dominant undertakings, the concept of dominance has lost itssignificance$

    5uring the year 1991, a notification was issued by the ;o#ernment that the &'%()ct shall apply to public sector undertakings whether owned by the ;o#ernment or by;o#ernment companies, statutory corporations, undertakings under the &anagement of#arious controllers appointed under any law, cooperati#e societies and financial institutions$%hus, there is no distinction now between the public sector undertakings and pri#ate sectorcompanies in the matter of &onopolistic, 'estricti#e and Anfair %rade (ractices$ Indian)irlines, Mationalised anks, Indian 'ailways, (ost and %elegraphs and %eleCommunications Andertakings, :ousing and Arban 5e#elopment )uthorities are allaccountable if they indulge in &%(, '%( or A%($ %here are of course a few entities like5efence undertakings which are still outside the ambit of the &'%( )ct$ It may also bementioned here that after the amendment to the definition of ser#ice,! it includes the

    business of builders and real estate operators$ %his has brought a large number of buildingsacti#ity operators under the mischief of the &'%( )ct$

    %he &'%( )ct is administered by the &'%( Commission, which is assisted by the5irector ;eneral of In#estigation and 'egistration for carrying out in#estigations, formaintaining register of agreements and for undertaking carriage of proceedings during theen-uiry before the &'%( Commission$ %he powers of the Commission include the power#ested in a Ci#il Court and include further power=

    i to direct an errant undertaking to discontinue a trade practiceand not to repeat the same?

    ii to pass a cease and desist order?iii to grant temporary in6unction, restraining an errant undertaking

    from continuing an alleged trade practice?

    i# to award compensation for loss suffered or in6ury sustained onaccount of '%(, A%( or &%(?# to direct parties to agreements containing restricti#e clauses to

    modify the same?#i to direct parties to issue correcti#e ad#ertisement?

    #ii to recommend to the Central ;o#ernment, di#ision ofundertakings or se#erance of inter connection betweenundertakings, if their working is pre6udicial to public interest orhas led or is leading to &%( or '%($

    %he &'%( Commission can be approached with a complaint on 'estricti#e or Anfair

    %rade (ractices by= a an indi#idual consumer, b a registered association of consumers, or


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    c a trade association$ %he Commission can be mo#ed by an application from the 5irector;eneral of In#estigation and 'egistration +5; or by a reference by the Central or State;o#ernments$ %he law pro#ides for self initiated action on the part of the Commission, if itrecei#es information from any source or on its own knowledge$ %he procedure followed bythe Commission is that on receipt of a complaint, the matter is, in many cases referred to the

    5; for in#estigation and report$ &ore often than not, the complainee is called upon to gi#ehis

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    electricity generation and distribution etc$ Such measures are a part of a tripod architecturewith the three #ertices, one may christen as 3iberalisation, (ri#atisation, and ;lobalisation+3(; $ ) #eneer running common to the 3(; measures is the element of competition$ %he3(; syndrome seeks to make competition a dri#ing force in the economic and commercialacti#ities of the world$ )s obser#ed by (rofessor olfgang Bartte, the Chairman of the

    ;erman .ederal Cartel Dffice, Competition is the engine of market economy! +-uoted inrusick, 1990 $ %he thinking of policy makers in many countries, particularly the de#elopingones and the hitherto centrally planned economies, is towards factoring competition into theeconomic and market policies$ Some of the countries ha#e embarked on structuralad6ustment programmes in#ol#ing competition driven reforms and competition oriented


    India is undergoing the process of transition into a market economy through measures set bythe broad frame work of 3(;$ hile planned economic de#elopment had been the strategyadopted by India, since 19K @s, it is in the last more than a decade since 1991, that thestrategy has undergone significant metamorphoses$ %he economic reforms since 1991 andthe e#olution of the new strategy ha#e been well documented + hagwati and 5esai, 197 ,hagwati and Srini#asan, 197K and )hluwalia, 1991 $

    In the pre 1991 reforms period, [email protected] planned strategy and economic de#elopment stressedthe broad policy ob6ecti#es of +i the de#elopment of an industrial base with a #iew toachie#ing self reliance and +ii the promotion of social 6ustice$ %he specific policy measurestowards these ob6ecti#es were across the board substitution of Indian goods and ser#ices forimports, controlling the pattern of in#estment and controlling the utilisation of foreigne"change$ %he thrust of the policy instruments were the industrial licensing that affected the

    pri#ate sector and creating of a large public sector$ %he entire e"ercise was, as describedearlier, the Command and Control! economy$

    %he Command and Control! triggered policies meant that ;o#ernment inter#ention per#aded almost all areas of economic acti#ity in the country$ .or instance, there was nocontestab e mar/et $ %his meant that there was neither an easy entry nor an easy e"it forenterprises$ ;o#ernment determined the plant siGes, location of the plants, prices in a numberof important sectors, and allocation of scarce financial resources$ %heir further inter#entionswere characterised by high tariff walls, restrictions on foreign in#estments and -uantitati#erestrictions$ It may thus be seen that free competition in the market was under se#ere fetters,mainly because of ;o#ernmental policies and strategies, specifically, +1 industrial policy, +0trade and commercial policy, +2 foreign in#estment policy, and +4 financial sector policy$

    In this paper, the reforms since 1991 are not listed for want of space and as they may not bedirectly rele#ant to the title of this paper$ Suffice it to say that the industrial policy, trade andcommercial policy, foreign and in#estment policy and financial sector policy were all deregulated and liberalised to embrace the 3(; process$ .or instance, licensing has beenabolished in all but si" industries$ &a6or industries including iron and steel, hea#y electricale-uipment, aircraft, air transport, shipbuilding, telecommunication e-uipment and electric

    power are now open for pri#ate sector in#estments$ %he monopoly of the public sectorindustries was abolished in 1991 e"cept for those, where security and strategic concerns stilldominated$ %he system of price preference for public sector has been discontinued$'eser#ation of certain goods for production in the small scale sector is gradually being

    phased out$ %ariffs are being reduced in a phased manner$ )s a result of liberalisation of


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    regulatory controls, rationalisation and mergers, there is more effecti#e competition in the banking sector$

    %he &'%( )ct concei#ed and legislated more than 2 years ago, was a conse-uence ofCommand and Control! policy approach of the ;o#ernment$ %he so call &'%( firms with

    assets more than 's$ 1 crores +about AS H 00 million were prohibited from entering ande"panding in any sector e"cept those listed in )ppendi" I of the Industrial +5e#elopment and'egulation )ct, 19K1$ /#en, in respect of such listed sectors, the &'%( firms were re-uiredto obtain &'%( clearances in addition to the usual industrial licenses$ In other words, the&'%( firms, generally considered big in siGe, were allowed to grow only under ;o#ernmentsuper#ision$ SiGe, therefore, was a pe6orati#e factor in the thinking of the ;o#ernment, the

    premise being big becoming bigger is ugly!$

    It is after 1991 reforms that the said premise big becoming bigger is ugly! yielded to ametamorphosed approach, namely, big becoming bigger may not be handsome but certainlyis not ugly!$ In other words, siGe is not a pe6orati#e factor$


    5uring the administration of the &'%( )ct o#er three decades since its inception in 19*9,many difficulties were encountered, particularly in regard to interpretations of e"pressionsand pro#isions therein$ %here has been a large number of binding rulings of the SupremeCourt of India and also ench decisions of the &'%( Commission$ %hese decisions ha#einterpreted the #arious pro#isions of the &'%( )ct from time to time and ha#e constituted

    precedents for the future$ %hus, where the wording of the e"isting law has been consideredinade-uate by 6udicial pronouncements, it became necessary to redraft the law to inhere thespirit of the law and the intention of the lawmakers$

    ) perusal of the &'%( )ct will show that there is neither definition nor e#en a mention ofcertain offending trade practices which are restricti#e in character$ Some illustrations of theseare=

    )buse of 5ominance Cartels, Collusion and (rice .i"ing id 'igging oycotts and 'efusal to 5eal (redatory pricing

    Dften an argument has been ad#anced that one particular general pro#ision NSection 0+o O ofthe &'%( )ct may co#er all anti competition practices, as it defines an '%( as a trade

    practice which pre#ents, distorts or restricts competition and that therefore there is no needfor a new law$ hile complaints relating to anti competition practices could be tried underthe generic definition of restricti#e trade practice +which pre#ents, distorts or restrictscompetition , the absence of specification of identifiable anti competition practices ga#eroom to different interpretations by different Courts of 3aw, with the result that the spirit ofthe law often escaped being captured and enforced$ hile a generic definition might benecessary and might form the substanti#e foundation of the law, it was considered necessary

    to identify specific anti competition practices and define them so that the scope for a #al#e oropening on technical grounds for the offending parties to escape indictment would not obtain$


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    :ence, the need for a new and better law was recognised, which ga#e birth to theCompetition )ct, 0 0$

    .urthermore, some of the anti competition practices like cartels, predatory pricing, bidrigging etc$ are not specifically mentioned in the &'%( )ct but the &'%( Commission, o#er

    the years, had attempted to fit such offences under one or more of its sections by way ofinterpretation of the language used therein$

    )nother dimension that marked the thinking of the ;o#ernment particularly after the 1991economic reforms was the dynamic conte"t of International trade and market as well as thedomestic trade and market$ hen the &'%( )ct was drafted in 19*9, the economic and trademilieu pre#alent at that time constituted the premise for its #arious pro#isions$ %here has beensubse-uently a sea change in the milieu with considerable mo#ement towards liberalisation,

    pri#atisation and globalisation$ %he law needed to yield to the changed and changing scenarioon the economic and trade front$ %his was one important reason why a new competition lawhad to be framed$ &any countries like the A$B$, Canada, )ustralia and the /uropeanCommunity ha#e, in line with this thinking, enacted new competition laws and repealed theirearlier laws go#erning fair trading, etc$

    %he e"perience in administering the &'%( )ct, for about three decades since 19*9, thedeficiencies noted in the said )ct, the difficulties that arose out of different interpretationsand 6udgments of the &'%( Commission and the superior Courts of 3aw and the new andchanging economic milieu spurred by the 3(; paradigm and the economic reforms of 1991+and thereafter impelled the need for a new competition law$

    %he need for a new law has its origin in .inance &[email protected] budget speech in .ebruary, 1999=

    %he &'%( )ct has become obsolete in certain areas in the light of international economicde#elopments relating to competition laws$ e need to shift our focus from curbingmonopolies to promoting competition$ %he ;o#ernment has decided to appoint a committeeto e"amine this range of issues and propose a modern competition law suitable for ourconditions$!


    In Dctober, 1999, the ;o#ernment of India appointed a :igh 3e#el Committee onCompetition (olicy and Competition 3aw 1 to ad#ise a modern competition law for the

    country in line with international de#elopments and to suggest a legislati#e framework whichmay entail a new law or appropriate amendments to the &'%( )ct$ %he Committee presented its Competition (olicy report to the ;o#ernment in &ay 0 Nthe report will bereferred to hereinafter as :igh 3e#el Committee +0 O$ %he draft competition law wasdrafted and presented to the ;o#ernment in Mo#ember 0 $ )fter some refinements,following e"tensi#e consultations and discussions with all interested parties, the (arliament

    passed in 5ecember 0 0 the new law, namely, the Competition )ct, 0 0$

    R %-RIC OF THE NE1 &A1 , C OMPETITION A CT , 2332 4A CT 51 The author was a Member of the Committee.


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    %here are three areas of enforcement that pro#ide the focus for most competition laws in theworld today$ 0

    )greements among enterprises )buse of dominance &ergers or, more generally, combinations among enterprises

    %here are, howe#er, differences in emphasis and interpretations across countries and o#ertime within countries$ %he abo#e mentioned three areas are not mutually e"clusi#e and thereis considerable o#erlap between them$ ) number of actions that constitute abuse ofdominance could infringe the law regarding agreements among enterprises$ %he actions aresimilar though the causes might be different$ In one case, it may be the 6oint action of one ormore undertakings that is in -uestion, whereas in another, it may be the action of onedominant undertaking that is the dri#ing force$ %he concern with mergers is ultimately a

    concern with market power and the possible abuse of that market power by the merged entity$In spite of this, most laws deal with this separately$ Dne reason for this is that it might bedifficult to deal with the situation after the fact$ In spite of the ine#itable duplication thatfollows from this classification, it pro#ides a useful ta"onomy for organising the thinkingabout competition law$

    %he rubric of the new law, Competition Act, 2332 +)ct, for brief has essentially fourcompartments= )nti Competition )greements )buse of 5ominance Combinations 'egulation Competition )d#ocacy

    %hese four compartments are described in the narrati#e that follows=


    .irms enter into agreements, which may ha#e the potential of restricting competition$ ) scanof the competition laws in the world will show that they make a distinction betweenhoriGontal! and #ertical! agreements between firms$ %he former, namely thehoriGontal agreements are those among competitors and the latter, namely the #ertical

    agreements are those relating to an actual or potential relationship of purchasing orselling to each other$ ) particularly pernicious type of horiGontal agreements is thecartel$ Fertical agreements are pernicious, if they are between firms in a position ofdominance$ &ost competition laws #iew #ertical agreements generally more lenientlythan horiGontal agreements, as, prima facie, horiGontal agreements are more likely toreduce competition than agreements between firms in a purchaser sellerrelationship$


    Although it does not directly form a part of competition law, legislation regarding variousRegulatory Authorities falls under the larger ambit of competition policy.


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    )greements between two or more enterprises that are at the same stage of the productionchain and in the same market constitute the horiGontal #ariety$ )n ob#ious e"ample thatcomes to mind is an agreement between enterprises dealing in the same product or products$ut the market for the product+s is critical to the -uestion, if the agreement trenches the law$%he )ct has taken care to define the rele#ant market$ 2 %o attract the pro#ision of law, the

    products must be substitutes$ If parties to the agreement are both producers or retailers +orwholesalers , they will be deemed to be at the same stage of the production chain$

    ) specific goal of competition policy

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    illegality is rooted in the pro#isions of the AS law and has a parallel in most legislations onthe sub6ect$ %he )ustralian law prohibits price fi"ing arrangements, boycotts and some formsof e"clusi#e dealing$ %he new AB competition law, namely, Competition )ct, 0 ,endorses certain agreements to ha#e an appreciable effect on competition +presumption ishowe#er rebuttable $ ) per se illegality would mean that there would be #ery limited scope

    for discretion and interpretation on the part of the prosecuting and ad6udicating authorities$%he underlying principle in such presumption of illegality is that the agreements in -uestionha#e an appreciable anti competiti#e effect$ arring the aforesaid four types of agreements,all the others will be sub6ect to the rule of reasonP test in the )ct$


    y and large, as noted earlier, #ertical agreements will not be sub6ected to the rigours ofcompetition law$ :owe#er, where a #ertical agreement has the character of distorting or

    pre#enting competition, it will be placed under the sur#eillance of the law$

    .or instance, the following types of agreements, inter alia , will be sub6ected to the rule ofreason! test$

    %ie in arrangement? /"clusi#e supply agreement /"clusi#e distribution agreement? 'efusal to deal? 'esale price maintenance$

    %he )ct lists the following factors to be taken into account for ad6udicatory purposes to

    determine whether an agreement or a practice has an appreciable ad#erse effect oncompetition, namely,a creation of barriers to new entrants in the market,

    b dri#ing e"isting competitors out of the market,c foreclosure of competition by hindering entry into the market,d accrual of benefits to consumers,e impro#ements in production or distribution of goods or pro#ision of ser#ices, andf promotion of technical, scientific and economic de#elopment by means of production or

    distribution of goods or pro#ision of ser#ices$


    %he pro#isions relating to anti competition agreements will not restrict the right of any person to restrain any infringement of intellectual property rights or to impose suchreasonable conditions as may be necessary for the purposes of protecting any of his rightswhich ha#e been or may be conferred upon him under the following intellectual propertyright statutes?

    the Copyright )ct, 19K7? the (atents )ct, 197 ? the %rade and &erchandise &arks )ct, 19K or the %rade &arks )ct, 1999? the ;eographical Indications of ;oods +'egistration and (rotection )ct, 1999? the 5esigns )ct, 0 ? the Semi conductor Integrated Circuits 3ayout 5esign )ct, 0 $


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    %he rationale for this e"ception is that the bundle of rights that are subsumed in intellectual property rights should not be disturbed in the interests of creati#ity and intellectual

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    )ct seeks to ensure that only when dominance is clearly established, can abuse of dominance be alleged$ )ny ambiguity on this count could endanger large efficient firms$


    efore assessing whether an undertaking is dominant, it is important, as in the case ofhoriGontal agreements, to determine what the rele#ant market is$ %here are two dimensions tothis the prod!ct mar/et and the "eo"raphica mar/et $ Dn the demand side, the rele#ant

    product market includes all such substitutes that the consumer would switch to, if the price ofthe product rele#ant to the in#estigation were to increase$ .rom the supply side, this wouldinclude all producers who could, with their e"isting facilities, switch to the production ofsuch substitute goods$ %he geographical boundaries of the rele#ant market can be similarlydefined$ ;eographic dimension in#ol#es identification of the geographical area within whichcompetition takes place$ 'ele#ant geographic markets could be local, national, internationalor occasionally e#en global, depending upon the facts in each case$ Some factors rele#ant togeographic dimension are consumption and shipment patterns, transportation costs,

    perishability and e"istence of barriers to the shipment of products between ad6oininggeographic areas$ .or e"ample, in #iew of the high transportation costs in cement, therele#ant geographical market may be the region close to the manufacturing facility$

    %he )ct posits the factors that would ha#e to be considered by the ad6udicating )uthority indetermining the 'ele#ant (roduct &arket! and the 'ele#ant ;eographic &arket!,reproduced herein below=


    physical characteristics or end use of goods? price of goods or ser#ice? consumer preferences? e"clusion of in house production? e"istence of specialised producers? classification of industrial products$


    regulatory trade barriers? local specification re-uirements? national procurement policies? ade-uate distribution facilities? transport costs? language? consumer preferences? need for secure or regular supplies or rapid after sales ser#ices$

    %he determination of Rrele#ant [email protected] by the ad6udicating )uthority has to be done, ha#ing

    due regard to the Rrele#ant product [email protected] and the Rrele#ant geographic [email protected]$


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    d makes conclusion of contracts sub6ect to acceptance by other parties of supplementaryobligations which, by their nature or according to commercial usage, ha#e no connectionwith the sub6ect of such contracts? or

    e uses its dominant position in one rele#ant market to enter into, or protect, other rele#antmarket$

    It may therefore be seen that the )ct does not frown upon dominance as such but frownsupon abuse of dominance$


    Combinations, in terms of the meaning gi#en to them in the )ct, include mergers,amalgamations, ac-uisitions and ac-uisitions of control, but for the purposes of thediscussion that follows, mergers regulation has been reckoned$ )s in the case of agreements,mergers are typically classified into horiGontal and #ertical mergers$ In addition, mergers

    between enterprises operating in different markets are called conglomerate mergers$ &ergersare a legitimate means by which firms can grow and are generally as much part of the natural

    process of industrial e#olution and restructuring as new entry, growth and e"it$ .rom the point of #iew of competition policy, it is horiGontal mergers that are generally the focus ofattention$ )s in the case of horiGontal agreements, such mergers ha#e a potential for reducingcompetition$ In rare cases, where an enterprise in a dominant position makes a #erticalmerger with another firm in an ad6acent market to further entrench its position of dominance,the merger may pro#ide cause for concern$ Conglomerate mergers should generally be

    beyond the pur#iew of any law on mergers$

    ) merger leads to a bad! outcome only if it creates a dominant enterprise that subse-uentlyabuses its dominance$ %o some e"tent, the issue is analogous to that of agreements amongenterprises and also o#erlaps with the issue of dominance and its abuse, discussed earlier$Fiewed in this way, there is probably no need to ha#e a separate law on mergers$ %he reasonthat such a pro#ision e"ists in most laws is to pre empt the potential abuse of dominancewhere it is probable, as subse-uent unbundling can be both difficult and socially costly$

    %hus, the general principle, in keeping with the o#erall goal, is that mergers should bechallenged only if they reduce or harm competition and ad#ersely affect welfare$


    %he )ct makes it #oluntary for the parties to notify their proposed agreement or combinationsto the &ergers Commission, if the aggregate assets of the combining parties ha#e a #alue ine"cess of 's$ 1 crores +about AS H 00 million or turno#er in e"cess of 's$ 2 crores+about AS H ** million $ %he combination as defined by the )ct includes mergers,amalgamations, ac-uisitions of shares, #oting rights or assets and ac-uisitions of control$ Inthe e#ent either of the combining parties is outside India or both are outside, the thresholdlimits are HK million for assets and H1K million for turno#er$

    If one of the merging parties belongs to a group, which controls it, the threshold limits are's$ 4 crores +about AS H million in terms of assets and 's$ 10 crores +about AS H0*4 million in terms of turno#er$ If the group has assets or turno#er outside India also, the

    threshold limits are H0 billion for assets and H* billion for turno#er$ .or this purpose a groupmeans two or more enterprises which directly or indirectly ha#e=


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    %he ability to e"ercise 0*L or more of the #oting rights in the other enterprise? or %he ability to appoint more than half the members of the oard of 5irectors in the other

    enterprise? or %he ability to control the affairs of the other enterprise$

    Control +which e"pression occurs in the third bullet defining [email protected] abo#e , has also beendefined in the )ct$ Control includes controlling the affairs or management by

    +i one or more enterprises, either 6ointly or singly, o#er another enterprise or group?+ii one or more groups, either 6ointly or singly, o#er another group or enterprise$

    %he threshold limits of assets and of turno#er would be re#ised e#ery two years on the basisof the holesale (rice Inde" or fluctuations in e"change rate of rupee or foreign currencies$

    %he )ct has listed the following factors to be taken into account for the purpose ofdetermining whether the combination would ha#e the effect of or be likely to ha#e anappreciable ad#erse effect on competition$

    %he actual and potential le#el of competition through imports in the market?

    %he e"tent of barriers to entry to the market?

    %he le#el of combination in the market?

    %he degree of counter#ailing power in the market?

    %he likelihood that the combination would result in the parties to the combination beingable to significantly and sustainably increase prices or profit margins?

    %he e"tent of effecti#e competition likely to sustain in a market?

    %he e"tent to which substitutes are a#ailable or are likely to be a#ailable in the market?

    %he market share, in the rele#ant market, of the persons or enterprise in a combination,indi#idually and as a combination?

    %he likelihood that the combination would result in the remo#al of a #igorous andeffecti#e competitor or competitors in the market?

    %he nature and e"tent of #ertical integration in the market?

    %he possibility of a failing business?

    %he nature and e"tent of inno#ation?

    'elati#e ad#antage, by way of the contribution to the economic de#elopment, by anycombination ha#ing or likely to ha#e appreciable ad#erse effect on competition?


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    PIn #irtually e#ery member country where significant reform efforts ha#e been undertaken,the competition agencies ha#e been acti#e participants in the reform process$ %his Rad#[email protected] can include persuasion offered behind the scenes, as well as publicity outside of formal

    proceedings$ Some competition agencies ha#e the power, at least in theory, to bring formalchallenges against anti competiti#e actions by other agencies or official or -uasi official

    bodies$ &ore indirect, but still #isible, is formal participation in another agency s publichearings and deliberations$ hat is appropriate depends on the particular institutional settingP+D/C5, 1997 $

    %he 'egulatory )uthority under the )ct, namely, Competition Commission of India +CCI , interms of the ad#ocacy pro#isions in the )ct, is enabled to participate in the formulation of thecountry s economic policies and to participate in the re#iewing of laws related to competitionat the instance of the Central ;o#ernment$ %he Central ;o#ernment can make a reference tothe CCI for its opinion on the possible effect of a policy under formulation or of an e"istinglaw related to competition$ %he Commission is mandated to proffer its opinion to the Central;o#ernment within * days of recei#ing the reference$ %he Commission will therefore beassuming the role of competition ad#ocate, acting pro acti#ely to bring about ;o#ernment

    policies that lower barriers to entry, that promote deregulation and trade liberalisation andthat promote competition in the market place$ %he )ct seeks to bring about a directrelationship between competition ad#ocacy and enforcement of competition law$ Dne of themain ob6ecti#es of competition ad#ocacy is to foster conditions that lead to a morecompetiti#e market structure and business beha#iour without the direct penalty loadedinter#ention of the CCI$ Ander the scheme of the )ct, the [email protected] opinion will constitute animportant input for the ;o#ernment to finalise its law or policy, in so far as it impacts oncompetition$

    In order to promote competition ad#ocacy and create awareness about competition issues andalso to accord training to all concerned +including the Chairperson and &embers of the CCIand its officials , the )ct en6oins the establishment of a fund christened the Competition.und$ %he .und will be credited with the fees recei#ed for filing complaints and applicationsunder the law, costs le#ied on the parties, grants and donations from the ;o#ernment, and theinterest accrued thereon$

    %he four main compartments ha#ing been discussed abo#e, a description of how the CCI isdesigned, follows, which is an important part of the )ct$


    )dministration and enforcement of the competition law re-uires an administrati#e set up$%his administrati#e set up should be more proacti#e than reacti#e for the administration of thecompetition policy$ %his is not a mere law enforcement agency$ %his administrati#e set upshould take a proacti#e stand to be specified and adopted to promote competition by not only

    proceeding against those who #iolate the pro#isions of the competition law, but also by proceeding against institutional arrangements and public policies that interfere with the fairand free functioning of the markets$ It is in this conte"t that the CCI in the )ct has beenentrusted with the following two basic functions=

    a )dministration and enforcement of competition law and competition policy to foster

    economic efficiency and consumer welfare$


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    b In#ol#ement proacti#ely in ;o#ernmental policy formulation to ensure that marketsremain fair, free, open, fle"ible and adaptable$



    )d6udicati#e wing is distinct and separate from the in#estigati#e wing in the )ct$ )t the ape"le#el of the in#estigati#e wing, there is an official who has been designated as 5irector;eneral +5; $ %he 5irector ;eneral will not ha#e suo motu powers of in#estigation$ :e willonly look into the complaints recei#ed from the CCI and submit his findings to it$In#estigators will be solely responsible for making en-uiries, for e"amining documents, formaking in#estigations into complaints and for effecting interface with other in#estigati#eagencies of the ;o#ernment including &inistries and 5epartments$ %he 5; has been #estedunder the )ct with powers, which are conferred on the CCI, namely, summoning ofwitnesses, e"amining them on oath, re-uiring the disco#ery and production of documents,recei#ing e#idence on affida#its, issuing commissions for the e"amination of witnesses etc$

    %he )ct mandates that the in#estigation staff would need to be chosen from among those,who ha#e e"perience in in#estigation and who are known for their integrity and outstandingability$ %hey should ha#e knowledge of accountancy, management, business, publicadministration, international trade, law or economics$ :itherto, in terms of the dispensationunder the &'%( )ct, they were drawn routinely from those working in the 5epartment ofCompany )ffairs$ %he )ct thus induces professionalism in the in#estigati#e wing, a step inthe right direction$ $

    5epending on the load, the ;o#ernment would create 5eputy 5irectors ;eneral in all thecities where enches of CCI are situated$ %hey will in#estigate the cases referred to themfrom the )dditional +regional enches and submit their findings to them direct withoutnecessarily routing it through 5irector ;eneral at :ead-uarters$ %he )ct en#isages one(rincipal ench and )dditional enches, besides &erger ench +es $ %he schema of

    placement of the in#estigating staff and the procedure and drill for submission of their reportsto the CCI and its enches will be laid down, it is e"pected, by the CCI and the ;o#ernment,under Statutory 'ules, Statutory 'egulations or otherwise$

    It is desirable to prepare guidance manuals spelling out the nature, scope and manner of

    in#estigation$ y and large, the in#estigation staff should follow these manuals and anydeparture therefrom must ha#e the prior appro#al of the 5irector ;eneral$ %his is to ensurethat there are no fishing and rowing! en-uiries designed to threaten and harass corporates$

    A '.%'ICATION

    Central to effecti#e implementation and enforcement of competition policy and competitionlaw is an appropriate competent and effecti#e ad6udicati#e body, in the instant case, theCompetition Commission of India$ CCI will be the ad6udicating body under the )ct withautonomy and administrati#e powers$

    CCI will be a multi member body with its Chairperson and &embers chosen for theire"pertise, knowledge and e"perience in /conomics, 3aw, International %rade, usiness,


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    +a any class of enterprises if such e"emption necessary in the interest of security of the Stateor public interest?

    +b any practice or agreement arising out of and in accordance with any obligation assumed by India under any treaty, agreement or con#ention with any other country or countries ?

    +c any enterprise which performs a so#ereign function on behalf of the Central ;o#ernment

    or a State ;o#ernment$

    %he aforesaid pro#isions in the )ct relating to e"emptions should enable the ;o#ernment totake care of the country s goals, ob6ecti#es and needs$ %he )ct pro#ides fle"ibility to the;o#ernment to use this pro#ision appropriate to the needs of the country$


    )ppeals against decisions and orders of the CCI lie to the Supreme Court within thelimitation period of * days$ )ppeals can be on one or more of the grounds specified in Sec$1 of the Code of Ci#il (rocedure$ %hus, the status gi#en to the CCI is #ery high with onlythe Supreme Court ha#ing the power to o#erturn its orders$

    %he CCI has power under the )ct to re#iew its own order on an application made by the partyaggrie#ed by its order$


    %he )ct has e"tra territorial reach$ Its arm e"tends beyond the geographical contoursof India to deal with practices and actions outside India which ha#e an appreciable ad#erseaffect on competition in the rele#ant market in India$ %he Competition Commission of Indiahas the power to en-uire into an agreement, abuse of dominant position or combination, if ithas or is likely to ha#e an appreciable adverse affect on competition in the relevant market in

    India , notwithstanding that,

    an agreement has been entered into outside India? any party to such agreement is outside India? any enterprise abusing the dominant position is outside India? a combination has taken place outside India? any party to combination is outside India? or any other matter or practice or action arising out of such

    agreement or dominant position or combination is outsideIndia$

    %he abo#e pro#isions are based on what is known as the Reffects [email protected]$ %his doctrineimplies that e#en if an action or practice is outside the shores of India but has an impact oreffect on competition in the rele#ant market in India, it can be brought within the ambit of the)ct, pro#ided the effect is appreciably ad#erse on competition$

    NE1 1 INE I N A N E1 - OTT&E

    )fter the )ct was placed on the web site and came into the public domain, a -uestion

    often asked is whether it is not still the old law in substance although not in form$ ) clearanswer to this -uestion is in the title of this section$ %he )ct is a new wine in a new bottle$


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    %he differences between the old law +namely the &'%( )ct, 19*9 and the new law +theCompetition )ct, 0 0 may perhaps be best captured in the form of a table displayed below=

    MRTP A CT , )*+* C OMPETITION A CT , 2332

    1 ased on the pre reforms scenario ased on the post reforms scenario0 ased on siGe as a factor ased on structure as a factor 2 Competition offences implicit or not defined Competition offences e"plicit and defined4 Comple" in arrangement and language Simple in arrangement and language and

    easily comprehensibleK 14 per se offences negating the principles of

    natural 6ustice4 per se offences and all the rest sub6ected torule of reason $

    * .rowns upon dominance .rowns upon abuse of dominance7 'egistration of agreements compulsory Mo re-uirement of registration of agreements

    Mo combinations regulation Combinations regulated beyond a highthreshold limit$

    9 Competition Commission appointed by the;o#ernment

    Competition Commission selected by aCollegium +search committee

    1 Fery little administrati#e and financialautonomy for the Competition Commission

    'elati#ely more autonomy for theCompetition Commission

    11 Mo competition ad#ocacy role for theCompetition Commission

    Competition Commission has competitionad#ocacy role

    10 Mo penalties for offences (enalties for offences12 'eacti#e and rigid (roacti#e and fle"ible14 Anfair trade practices co#ered Anfair trade practices omitted +consumer fora

    will deal with them

    %he )ct is therefore a new wine in a new bottle$ ine gets better as it ages$ %he e"tant&'%( )ct 19*9 has aged for more than three decades and has gi#en birth to the new law +the)ct in line with the changed and changing economic scenario in India and rest of the worldand in line with the current economic thinking comprising liberalisation, pri#atisation andglobalisation$


    %he )ct co#ers all of the 09 States +and * Anion %erritories of India, e"cept for theState of ammu and Bashmir$ %hus far +as of .ebruary 02, 0 4 , the Central ;o#ernmenthas made effecti#e only the competition ad#ocacy functions of the CCI$ %he Central;o#ernment has filled certain staff positions$ %he substanti#e pro#isions of the )ct dealingwith )nti Competiti#e )greements, )buse of 5ominance, and Combinations +&erger'egulation ha#e not been made operati#e$ In the meantime, the &onopolies and 'estricti#e%rade (ractices )ct +and &'%( Commission continues to be applicable$


    %he gains sought through competition law can only be realised with effecti#eenforcement$ eak enforcement of competition law is perhaps worse than the absence of


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    competition law$ eak enforcement often reflects a number of factors such as inade-uatefunding of the enforcement authority$ %he ;o#ernment should pro#ide the re-uiredinfrastructure and funds to make the Competition Commission an effecti#e %ribunal to

    pre#ent, if not eliminate anti competition practices and also to play its role of competitionad#ocacy$


    1$ )hluwalia, I$ +1991 = R(roducti#ity and ;rowth inIndian &[email protected], D"fordAni#ersity, (ress, 5elhi, 1991$

    0# hagwati, $M and 5esai, ( +197 = R(lanning for Industrialisationand %rade (olicies since [email protected],D"ford Ani#ersity (ress, 5elhi,197 $

    2# hagwati, $M andSrini#asan, %$M$ +197K = R.oreign %rade 'egimes and

    /conomic 197K 5e#[email protected], ) Special ConferenceSeries on .oreign %rade 'egimesand /conomic 5e#elopment

    M /', Mew Qork, 197K$

    4$ hagwati agdish +1999 = R) Stream of indows

    Ansettling 'eflections on %rade,Immigration and [email protected],D"ford Ani#ersity (ress, Mew5elhi, 1999$

    K$ rusick, (hilippe +1990 = %he 199 s= %he decade of;lobal Competition, ithout'estricti#e usiness (racticesT!,Dccasional (aper, InternationalCondition for 5e#elopment

    )ction, russels, Mo#ember1990$

    *$ /wing By, +0 2 = Competition 'ules for the 01 st

    Century= (rinciples from)[email protected] e"perience!, Bluwer3aw International, %he :ague,0 2$

    7$ :igh 3e#el Committee +0 = 'eport of R%he :igh 3e#elCommittee on Competition(olicy and [email protected] 5ept$ of


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