Apar Gupta
A few months ago, with the ink still not dry on the notification enforcing the Competition Act, 2002, I drafted a moot court problem for the students of my alma matter on the statute. The problem essentially concerned the jurisdictional hurdles which the Competition Commission of India will have to pass. The factual matrix of the problem was one which I noted will indubitably arise as we enter the age of the regulatory state. The basis of this were the teething problems of the statute establishing the tribunal or the regulator when it tries to balance the core interests it serves (eg. in the case of DRT the recovery of debts, TRAI/TDSAT consumer welfare in telecoms and broadcasting services) with the well developed norms of judicial accountability and natural justice.
One sees this pattern emerge, with the TRAI / TDSAT litigation where persons aggrieved with the regulator/ adjudicator first challenged its jurisdictional powers. The pattern seems be repeating with the CCI with parties, to whom notices have been issued, rather than getting into the merits of their specific case, through intelligent game-play which are challenging the powers of the CCI itself. The Bar and Bench Blog cites two such viz. Aamir Khan and Kingfisher.
Treading on a similar thread, another issue which is likely to arise in future is the jurisdictional tension amongst the regulators themselves to establish their supremacy in their domains. As I noted before, “Regulatory functionaries hungry for more bounty will battle in court to draw and conquer jurisdictional boundaries.” What is likely to make the case of the CCI more curious, is the language of Secs. 60 and 62 of the Competition Act, 2000. As noted by Prof. Rahul Singh, in his article “the teeter-totter of regulation and competition: why Indian competition authority must trump sectoral regulators ”, the two sections are clearly illogical as one provides for mandatory supremacy whereas the other mandatorily derogates that exclusivity by stating the powers will not be in derogation of other enactments.
When this is mixed with an interplay of the Telecom Regulatory Authority of India Act, 1997 which itself provides for exclusive jurisdiction with regards to the subject matter of disputes worded broadly in Sec. 2(K), the result is a jurisdictional quandary. If this sounds too complicated, or unlikely, the moot problem which has been drafted provides for a ready hypothetical. Please find it on the following link.