New Delhi: The Competition Commission of India (CCI), the nation’s anti-trust watchdog, is debating whether to continue making dissenting orders public.
N.L. Mitra, a former vice- chancellor of the National Law School of India University (NLSIU), Bangalore, argued in an August opinion note that this practice should be stopped, said a CCI member on condition of anonymity.
Mitra, who is a part of the so-called eminent persons advisory group (EPAG) of the CCI, confirmed that he had raised the issue in a letter a few weeks back.
Raising concerns: The Competition Commission of India is likely to consider Mitra’s opinion in a few weeks. Photo: Ramesh Pathania/Mint
He said that he had also raised this issue in an EPAG meeting around the same time. The CCI member cited above said that the body is likely to consider Mitra’s opinion in a few weeks.
The Competition Commission of India (CCI) is debating whether it should continue publishing dissenting orders issued by its members along with the main enforceable orders. Mint’s Aman Malik tells us more.
Typically, individual CCI members who are not in agreement with the majority view issue separate dissenting orders along with the “main order”.
Although only the main order is enforceable, the reasons cited by dissenting members can potentially be cited by a party appealing before the Competition Appellate Tribunal (Compat) against the order. There are a total of six CCI members.
“The CCI is a regulator, so there is no reason why it should issue a split order. Only tribunals or courts that follow a ‘bench system’ can issue dissenting orders,” Mitra said. “Moreover, inside dissent should not be made public. Do you ever see executive bodies like the cabinet making internal dissent public?”
He said that there is no known instance of a regulator anywhere in the world passing split orders and making dissenting opinions public.
At the heart of Mitra’s contention is the issue of how CCI’s role should be defined— whether it should be a regulator like the Securities and Exchange Board of India (Sebi) and the Telecom Regulatory Authority of India (Trai) or a quasi-judicial body.
To be sure, EPAG is only an advisory body and its members’ views can be rejected by the commission. This can’t be appealed either in Compat or in court.
Mitra, however, said that a writ petition or a public interest litigation on such a question of law can be filed by anyone either in a high court or the Supreme Court.
The apex court had observed in 2002 that CCI would be an “expert body” and the “main functions of the expert body were regulatory in nature”. The court had said that “it might be appropriate” for the government to create “two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory”.
The CCI member cited above said at least two out of the six members, including him, were opposed to Mitra’s view.
Mint could not independently ascertain the views of the other members. CCI chairman Ashok Chawla said, “We are trying to address this issue at the level of the members ourselves. I cannot say anything beyond this at this point.”
Some competition law experts didn’t share Mitra’s view.
M.M. Sharma, a New Delhi-based competition law expert with Vaish Associates Advocates, said CCI was different from other regulators.
“Sebi and Trai are sectoral regulators, while CCI is a competition authority. So, even though like the others, it has an appellate tribunal, you cannot treat them on a par with each other. Also, since unlike other regulators, CCI can pass interim orders, it is a quasi-judicial body,” Sharma said. “What is wrong with making dissent public? It gives transparency. Just because others don’t do it, why should the CCI not do it?”
M.L. Lahoty, a New Delhi-based Supreme Court lawyer, who deals with competition issues, agreed with Sharma.
“The CCI is a ‘peculiar authority’ since it has the power to register a case, investigate it and adjudicate upon it. So, it is not in the same league as other regulators,” he said. “I am therefore of the view that the dissenting member is entitled to make his dissenting view public.”
Mitra said anyone wanting to know the reason why a member dissented can always file an application under the Right to Information Act.