V. CASE COMMENT: SAMIR AGARWAL v.

CCI, 2020 SCC ONLINE NCLAT 811

- Sidharth Chauhan

ABSTRACT

Recently, the National Company Law Appellate Tribunal in the case of Sameer Agarwal v.
Competition Commission of India & Ors. decided on the locus standi of the third-party
informants to provide information and initiate proceedings before the CCI under Section
19(1)(a) of the Competition Act, 2002. The decision of the NCLAT has been criticised for
not being in consonance with the provisions and the legislative intent behind the Competition
Act, and violating the principles established by prior decisions. However, the decision of the
NCLAT must also be scrutinised in light of the practices followed by the anti-trust watchdogs
of other nations. This paper is an attempt in that direction as it seeks to briefly outline the
details of the decision, and evaluate the decision of the NCLAT not only from a national
perspective, but also from a comparative perspective. In this paper, the authors have
extensively analysed and considered the practices followed in the European Union, United
Kingdom, and the United States of America regarding the rights of the informants to provide
information to their respective competition authorities. The comparative analysis provides the
readers with a much more well-rounded approach to critically analyse the decision given by
the NCLAT, and the fundamental flaws that are needed to be corrected pursuant to this
decision.

Introduction .......................................... 89 Contravention to the precedents .. 96

Background................................. 90 Chilling Effect on Informants ..... 96
Order given by the CCI ............... 90 Supreme Court comes to the
The grounds of appeal ................. 91 rescue…………………………...97
NCLAT’s decision ...................... 91 Comparative Analysis ........................... 97
Critical Analysis of the NCLAT’s Practice in the EU ....................... 98
Judgement ............................................. 92 Practice in the UK ..................... 100
Analysing the provisions and the Practice in the USA................... 102
legislative intent behind the Act ..92 Conclusion .......................................... 103
Excessive fear regarding frivolous
litigation ...................................... 95


The author is an LL.M. candidate at Harvard Law School. He was assisted by Mr. Talin
Bhardwaj, a third-year student of B.A.LL.B. (Hons.) at RGNUL, Punjab. Views stated in this
paper are personal.
2021] SAMIR AGARWAL v. CCI 89

I. INTRODUCTION

Indian competition law makes a commitment to preserve the interests

of ‘consumers at large’. On May 29, 2020, the National Company Law
Appellate Tribunal (“NCLAT”) delivered a decision in the case of Samir
Agarwal v. Competition Commission of India (“CCI”) & Ors., which chips
away at this commitment through its fettered stance on the locus standi of
informants under Section 19(1)(a) of the Competition Act, 2002 (“Act”).1 The
recent decision given by the NCLAT has been severely criticised, as it not
only limits the rights of the informants, but also contravenes precedents, and
the provisions of the Act.2 This article provides a brief background of the
initial order passed by the CCI, the grounds of appeal against the CCI’s
decision, as well as the recent decision given by the NCLAT. An attempt has
been made to critically analyse the NCLAT’s decision with respect to prior
precedents and the legislative intent behind the Act. In addition, this article
provides a comprehensive comparative analysis pertaining to the rights of the
informants in other anti-trust jurisdictions, namely – The European Union
(“EU”), the United Kingdom (“UK”), and the United States of America
(“USA”).

1
The Competition Act, 2002, No. 13, Acts of Parliament, 2002 (India).
2
Niti Richhariya, Unsettling the Settled: Who Has The Locus Standi To Approach
Competition Commission of India? NCLAT Answers, KLUWER COMP. L. BLOG (Jul. 17, 2020)
http://-competitionlawblog.kluwercompetitionlaw.com/2020/07/17/unsettling-the-settled-
who-has-the-locus-standi-to-approach-competition-commission-of-india-nclat-
answers/?doing_wp_cron=1594983357.3348379135131835937500&print=print.
90 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

A. Background

1. Order given by the CCI

In the case of Samir Agrawal v. ANI Technologies Pvt. Ltd.,3 the
informant alleged that cab aggregators such as Ola and Uber were using
algorithms to facilitate price-fixing, and the drivers were accepting those
prices set by the aggregators. According to the informant, this led to the
formation of a Hub and Spoke cartel,4 whereby, the cab aggregators were the
Hub and various drivers were the Spokes. Moreover, it was contended that
since the cab drivers were not employees of the cab aggregators, but
independent third parties, the actions of the cab aggregators resulted in a
collusive practice in contravention of Section 3 of the Act. However, the CCI
opined that in the present case there was no agreement or an understanding
between the drivers and the cab aggregators, or between the drivers themselves
to indicate that a Hub and Spoke cartel existed. Further, the CCI clarified that
the creation of a Hub and Spoke cartel is contingent on whether there is an
exchange of sensitive information between competitors through a third-party
platform in order to facilitate price-fixing. Moreover, the existence of a Hub
and Spoke cartel is dependent on the conspiracy by the drivers to agree to a
fixed price, and the intention to collude ab initio. According to the CCI, the
drivers merely acceded to the prices set by the algorithms, and there was no
usage of third-party platform by the drivers to exchange sensitive information.

3
Samir Agrawal v. ANI Technologies Pvt. Ltd., Competition Commission of India, Case No.
37 of 2018, https://www.cci.gov.in/sites/default/files/37of2018.pdf [hereinafter CCI Order].
4
Basu Chandola, NCLAT Rules on Algorithmic Collusion by Cab Aggregators, IND. CORP. L.
BLOG (Jun. 8, 2020), https://indiacorplaw.in/2020/06/nclat-rules-on-algorithmic-collusion-
by-cab-aggregators.html.
2021] SAMIR AGARWAL v. CCI 91

Thereby, there was no prima facie violation of Section 3 of the Act by the cab
aggregators.5

2. The grounds of appeal

The informant, aggrieved by the decision given by the CCI, decided to
file an appeal against this decision to the NCLAT,6 on various grounds. First,
the appellant contended that the decision of the CCI was erroneous and
paradoxical, as on one hand, it acknowledged that the cab aggregators fixed
prices which the drivers were bound to accept; while on the other hand, the
CCI opined that acceptance of these unilaterally determined prices by the cab
aggregators is not anti-competitive. Second, the appellant submitted that the
CCI was erroneous in treating aggregators and drivers as a single economic
enterprise, and observing that there is no agreement between the aggregators
and the cab drivers. Third, the appellant opined that the CCI’s decision was
fallacious because it did not consider the ongoing investigation against Uber
for its collusive activities in the USA, in the case of Meyer v. Kalanick.7

3. NCLAT’s decision
The NCLAT upheld the observations made by the CCI in its order, and
thereby, rejected the appellant’s claims regarding any collusion between the
drivers and the cab aggregators. However, the NCLAT also observed that at
the outset, the informant did not have any right to approach the commission
and initiate an action against the cab aggregators on the basis of this
information. The NCLAT interpreted8 Section 19(1) of the Act, which

5
CCI Order, supra note 3.
6
Samir Agarwal v. Competition Commission of India, 2020 SCC OnLine NCLAT 811
[hereinafter NCLAT judgement].
7
Meyer v. Kalanick, Case No. 1:2015cv09796 (S.D.N.Y. 2016).
8
NCLAT judgement, supra note 6.
92 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

enumerates that the CCI has the right to enquire into anti-competitive
activities either on its own volition, or on the basis of information provided
by ‘any person’, ‘consumer’, or ‘their association or trade association’. In
furtherance of this, the NCLAT opined that the usage of the term ‘any person’
approaching the commission for highlighting anti-competitive practices, must
be restricted in scope, and should include only the persons who have suffered
a direct or an indirect injury through those anti-competitive practices under
consideration. The NCLAT believed that even though the concept of Public
Interest Litigation has broadened the scope of locus standi, the term ‘any
person’, under Section 19(1)(a) of the Act cannot be broadly interpreted. The
NCLAT’s rationale behind the narrow interpretation of this term was majorly
attributable to the objective of restraining/minimising frivolous litigation by
‘unscrupulous people’ having ‘oblique’ motives.9

II. CRITICAL ANALYSIS OF THE NCLAT’S JUDGEMENT

The recent judgement passed by the NCLAT has been severely

criticised, majorly on the grounds that it was in contravention of the provisions
of the Act, the legislative intent behind the Act, and the precedents. For these
reasons, this decision was overturned by the Supreme Court. In this section,
the authors have critically analysed the NCLAT’s judgement, and elucidated
the landmark decision by the Supreme Court.

A. Analysing the provisions and the legislative intent behind the Act

Section 19(1)(a) clearly provides the right to ‘any person’ to bring

forth information to the CCI regarding anti-competitive practices. A literal

9
Id.
2021] SAMIR AGARWAL v. CCI 93

interpretation of this provision suggests that there is prima facie nothing to

suggest that the term ‘any person’ shall only encompass an informant who has
been aggrieved by anti-competitive activities, or him being directly affected
by the dispute. Moreover, the words “receipt of complaint” were replaced by
“receipt of information” under Section 19(1) of the Act through the 2007
amendment,10 which is indicative of the fact that the Act empowers the public
at large to bring forward any information about either actual or potential anti-
competitive activities in the economy.11 The NCLAT also failed to consider
the importance of the information furnished by a whistle-blower informant,
which was also substantiated by the CCI’s annual report of 2018-19.12

The NCLAT’s predecessor, the erstwhile, Competition Appellate

Tribunal (“COMPAT”), in the case of Shri Surendra Prasad v. CCI & Ors.,13
held that the legislative intent behind Sections 18, 19(1) and 26(1) clearly
suggest that there are no pre-requisites or conditions that need to be fulfilled
for ‘any person’ to bring any information before the commission. Further, the
preamble read along with Section 18 of the Act, entrust the CCI with the
responsibility to eliminate anti-competitive activities. In furtherance of this,
the Delhi High Court in the case of Telefonaktiebolaget Lm Ericsson v.
Competition Commission of India,14 held that the commission’s proceedings
are in rem rather than in personam, which implies that these proceedings do

10
The Competition (Amendment) Act, 2007, No. 39, Acts of Parliament, 2007 (India).
11
Richhariya, supra note 2.
12
Competition Commission of India, Annual Report 2018-19, COMP. COMM’N OF IND. (2018-
19),
https://www.cci.gov.in/sites/default/files/annual%20reports/ENGANNUALREPORTCCI.pd
f.
13
Shri Surendra Prasad v. CCI & Ors., COMPAT, Appeal No. 43 of 2014 [hereinafter
Surendra Prasad case].
14
Telefonaktiebolaget lm Ericsson v. Competition Commission of India, 2016 S.C.C. OnLine
Del. 1951.
94 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

not merely affect the parties, but everyone in general. This position was
upheld in Re: Indian Motion Picture Producers’ Association v. Federation of
Western India Cine Employee,15 whereby, the CCI was of the opinion that
every decision should accrue benefit to the public at large, and not merely the
aggrieved individual/party.

Finally, even the Delhi High Court adopted the stance of broader
interpretation when in Google Inc & Ors. v. Competition Commission of India
& Ors.,16 it held that the powers of investigation of the CCI are wider than the
powers of Police of investigation under the Code of Criminal Procedure
(“Cr.P.C.”); in that while the Police cannot begin or continue an investigation
without the existence of a complaint,17 the Commission need not commence
or continue an investigation merely upon receipt of information, but upon
believing that a violation of the Act has occurred; thereby, yet again
highlighting the liberal approach to how information can be received by the
CCI by going a step beyond the 2007 Amendment to Section 19(1)(a) of the
Act.18 Therefore, a narrow interpretation of the term ‘any person’ is neither in
consonance with the Act nor the legislative intent behind the Act. Each of
these precedents underlines or at least implies the impact of anti-competitive
activities on not just consumers at large, but also the public at large. When
liability can be imposed so generally, access to justice must also be
unobstructed.

15
Re: Indian Motion Picture Producers’ Association v. Federation of Western India Cine
Employee, Competition Commission of India, Case No. 45 of 2017,
https://www.cci.gov.in/sites/default/files/Case%20No.%2045%20of%202017.pdf.
16
Google Inc & Ors. v. Competition Commission of India & Ors., W.P. (C) No. 7084/2014
(Del.).
17
Id. at 45.
18
Id. at 39.
2021] SAMIR AGARWAL v. CCI 95

B. Excessive fear regarding frivolous litigation

The NCLAT opined that a narrow interpretation of the term ‘any

person’ was sine qua non for constraining frivolous litigation. As already
mentioned, the Act provides the authority to the CCI to oversee and enquire
into any anti-competitive activities on its own, or with the help of information
provided by the informant.19 However, Section 26(1) of the Act also
empowers the CCI from refusing to order a further investigation and not
considering the information provided by the informant(s), in cases where the
CCI reaches a conclusion that there are no anti-competitive activities.20
Furthermore, Section 45 of the Act acts as a deterrent against frivolous
litigation.21 The COMPAT in the case of Alkem Laboratories Ltd. & Ors. v.
CCI & Ors.,22 supported the powers given to the CCI by Section 45 of the Act
to impose a fine up to Rs. 1 crore on the informants who provide the
commission with false information and misrepresent the facts, and/or the
documents. Thus, the NCLAT’s view to narrowly interpret the provisions of
Section 19(1)(a) of the Act is misguided, as the Act already spells out
mechanisms to ward off frivolous litigation.

19
Vinod Dhall, NCLAT judgement: CCI can’t be made hostage to locus standi, FINANCIAL
EXPRESS (Jun. 12, 2020), https://www.financialexpress.com/opinion/nclat-judgment-cci-
cant-be-made-hostage-to-locus-standi/1988913/.
20
Competition Commission of India v. Steel Authority of India and Another, (2010) 10 SCC
744 (India).
21
Parash Biswal, Samir Agrawal v. CCI: NCLAT's Misstep in Interpreting Locus Standi of
Whistle-blower Informants, IND. REV. OF CORP. & COMM. L. (Sept. 12, 2020),
https://www.irccl.in/single-post/2020/09/13/samir-agrawal-v-cci-nclat-misstep-in-
interpreting-locus-standi-of-whistle-blower-informan.
22
Alkem Laboratories Ltd. & Ors. v. CCI & Ors., COMPAT, Appeal No. 9 of 2016 and
Appeal No. 14 and 15 of 2016.
96 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

C. Contravention to the precedents

The NCLAT’s order also contravened various precedents. In the case

of Shri Saurabh Tripathy v. Great Eastern Energy Corporation Ltd.,23 the CCI
considered the issue of locus standi, and clarified that the provisions of the
Act made it abundantly clear that ‘any person’ can furnish information to the
CCI, irrespective of whether that person has suffered a direct injury/harm from
the alleged anti-competitive practices. Similarly, in the case of Shri Surendra
Prasad v. CCI & Ors.,24 the COMPAT held that the provisions, along with
the legislative intent behind the Act do not put an impediment on any person
to bring forth information before the commission. The case of Nagrik Chetna
Manch v. SAAR IT Resources Pvt. Ltd. & Ors.25 is also illuminative in this
regard. The CCI in this case acted on the information furnished by a charitable
trust, even though it was not directly injured. The CCI acknowledged and
appreciated the information provided, and further encouraged people and
organisations to provide information to the CCI in order to preserve consumer
interests at large. Therefore, the decision given by the NCLAT was in
contravention to the established precedents.

D. Chilling Effect on Informants

By the adoption of a restrictive approach to the locus standi of

informants without considering the (lack of) malevolent incentive or intent,
the NCLAT tried to get itself of good Samaritans in an arena as complex and

23
Shri Saurabh Tripathy v. Great Eastern Energy Corporation Ltd., Competition Commission
of India, Case No. 63 of 2014, https://www.cci.gov.in/sites/default/files/632014_0.pdf.
24
Surendra Prasad case, supra note 13.
25
Nagrik Chetna Manch v. SAAR IT Resources Pvt. Ltd. & Ors., Competition Commission
of India, Case No. 12 of 2017, https://www.cci.gov.in/sites/default/files/12-of-2017.pdf.
2021] SAMIR AGARWAL v. CCI 97

far-reaching as competition law, which made it important for the Supreme

Court to overrule the NCLAT’s decision to disqualify informants without
consideration of incentive or intent inter alia. While the instinct to be wary of
informants as wolves in sheep’s clothing as a principle was not wrong, it was
misplaced in this case and was bound to set a harmful precedent in these ways.

E. Supreme Court comes to the rescue

The Supreme Court in its recent judgement26 was critical of the

NCLAT’s decision, and after analysing the provisions of the Act, decided to
overrule it. The Court was of the opinion that the scope of Section 19(1)(a)
and Section 35 of the Act is to be construed in a broad sense, which
demonstrates that the definition of ‘any person’ should not be limited. Further,
the Court observed that the subsequent changes brought about by the 2007
amendment27 are not without significance as when the words “receipt of
complaint” were replaced by “receipt of information”, it was intended to not
restrict the ability of a person to furnish information to the CCI.

III. COMPARATIVE ANALYSIS

Even though the NCLAT’s judgement has now been overturned, it

necessitated the re-evaluation of the rights of whistle-blowers or informants
to bring forth information regarding anti-competitive activities before the
competition authorities. The perspectives and the practices followed by the
EU, the UK, and the USA in relation to the locus standi of the informants in
competition cases is discussed below.

26
Samir Agrawal v. Competition Commission of India & Ors, 2020 SCC OnLine SC 1024.
27
The Competition (Amendment) Act, 2007, supra note 10.
98 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

A. Practice in the EU

Article 230 (4) of the Treaty Establishing the European Community

(“EC Treaty”) provides that any natural or legal person as third-parties have
the right to institute proceedings if they are directly and individually
concerned by a dispute.28 The interpretation of ‘direct and individual concern’
was first dealt with by the European Court of Justice (“ECJ”) in the Plaumann
v. Commission29 case whereby, the applicant, Plaumann & Co. was seeking to
reverse the decision of the European Commission (“Commission” or “EC”)
regarding its refusal to approve Germany’s actions to impose custom duties
on mandarins and clementines imported from third-countries.30 The ECJ held
that the third parties may only have a locus standi in cases where they are
individually concerned, and such claim may only arise “where the decision
affects them by reason of certain attributes which are peculiar to them, or by
reason of circumstances in which they are differentiated from all other
persons.31” This position held in the Plaumann case came to be referred as the
Plaumann test, and was consequently upheld in many other decisions.32

Thus, the ECJ held that when a party claims that they are individually
concerned by a dispute, they are required to demonstrate and justify as to how

28
Liana Aleshkina, Third Party Rights to Appeal Merger Decisions according to EC and
Swedish Rules, UPPSALA UNIVERSITY Faculty of Law (2007),
https://www.konkurrensverket.se/globalassets/-forskning/uppsatser/aleshkina_08-0099.pdf.
29
Plaumann & Co v. Commission, Case C-25/62, (Jul. 15, 1963), https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0025.
30
J.H.H. Weiler, The Locus Standi of Private Applicants under article 230 (4) EC and the
Principle of Judicial Protection in the European Community, JEAN MONNET WORKING PAPER
12/03 (2003), https://jeanmonnetprogram.org/archive/papers/03/031201.pdf.
31
UNECE, Appendix 1 Detailed Analysis of The Courts’ Jurisprudence, (2011),
https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-
32/communication/Appendixes.doc.pdf.
32
Weiler, supra note 28.
2021] SAMIR AGARWAL v. CCI 99

they are distinguished and specifically affected by that decision. Further, the
ECJ in the case of Glencore Grain Ltd v. Commission,33 held that a case before
the commission would be of a direct concern if it “directly affects the legal
situation of the individual.”

Notwithstanding the strict and narrow interpretation of the principle of

locus standi by the ECJ, the EU member states have allowed34 whistle-blower
informants to bring forth information before their respective competition
authorities. Competition authorities of some EU member states provide
incentives to the whistle-blower informants.35 The Hungarian Competition
Council provides financial rewards to informants for encouraging individuals
to furnish the council with information regarding anti-competitive activities.36
Moreover, other member states of the EU like Slovakia also provide monetary
rewards and incentives to the whistle-blower informants for uncovering
information on anti-competitive activities.37

Further, the EC also allows individuals to provide sensitive

information about cartelisation and other anti-competitive activities. The
commission may choose to pursue an action based on this information,38 and

33
Glencore Grain Ltd v. Commission, (May 5, 1998), Cases C-24/01, C-25/01, ¶ 43.
34
May Lyn Yuen, Individuals As Whistleblowers, MONDAQ (Jul. 24, 2019),
https://www.mondaq.com/uk/cartels-monopolies/828744/individuals-as-whistleblowers.
35
Ingrid Vandenborre & Thorsten C. Goetz, Cartels & Leniency 2019 (The Proposed
Whistleblowers Directive), MONDAQ (Oct. 31, 2018), https://www.mondaq.com/uk/cartels-
monopolies/750238/cartels-leniency-2019-the-proposed-whistleblowers-directive.
36
Yuen, supra note 34.
37
Mary Inman et al., Whistleblower programmes – making cartel detection more effective,
FINANCIER WORLDWIDE MAGAZINE (Aug. 2020),
https://www.financierworldwide.com/whistleblower-programmes-making-cartel-detection-
more-effective#.X6t428gzY2w.
38
Vincent Brophy & Scott McInnes, Competition Law and Cartel leniency, JONES DAY
(2012), https://www.jonesday.com/files/Publication/ea8b8609-7015-4f63-b65e-
100 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

it guarantees the anonymity of the informant in consonance with the EU

Directive on the protection of persons who report breaches of the Union
Law.39 In the case of Evonik Degussa GmbH v. Commission,40 the EC
recognised the rights of third-party informants to provide information to the
commission and clearly stated that it was very imperative to keep receiving
information from the citizens and other third-party undertakings for triggering
investigations.41 Moreover, the EC also emphasised heavily on the right to
anonymity for the informants in this case. The EC has also clarified that
consumers/consumer groups that are third-parties should be allowed to file
their complaints and intervene in the proceedings against anti-competitive
conduct.42 Therefore, competition authorities of member states of the EU, as
well as the commission, encourage the whistle-blower informants to come
forward and provide information regarding anti-competitive activities.

B. Practice in the UK

The erstwhile anti-trust watchdog of the UK, Office of Fair Trading

(“OFT”) published its Guidelines on Involving third parties in Competition
Act investigations43 in 2006. These guidelines clearly stated that the OFT had

b54898096805/-Presentation/PublicationAttachment/d69e64c0-1d8b-4a45-95d5-
8d8d04ed1106/Competition%20EU.pdf.
39
OJ L305/17, Directive (EU) 2019/1937 of the European Parliament and of the Council of
23 October 2019 on the protection of persons who report breaches of Union law, (2019).
40
Case C‑162/15P, Evonik Degussa GmbH v. Commission, (Mar. 14, 2017),
http://curia.europa.eu/juris/document/document.jsf?text=&docid=188851&pageIndex=0&do
clang=EN&mode=lst&dir=&occ=first&part=1&cid=4270470.
41
Dhall, supra note 19.
42
Case C-229 and 288/82R, Fordwerke AG and Ford of Europe Inc v. Commission, [1982]
E.C.R. 3091, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:61982CJ0228&from=HR.
43
Office of Fair Trading, Involving third parties in Competition Act investigations, OFT (Apr.
2006),
2021] SAMIR AGARWAL v. CCI 101

the power to conduct an investigation on the basis of the information provided

by an informant.44 Nonetheless, these guidelines followed the principles laid
down in the Plaumann case, as these guidelines stated that a person shall only
be granted the status of a formal complainant in competition cases if the
complainant is materially affected by the anti-competitive agreement or
conduct. However, at the same time, these guidelines did not put any
impediment on ‘any person’ to come forward and provide information to the
competition authority. Further, Section 15(2)(c) of the Competition Act,
199845 clearly mentions that a third-person can make a complaint to the
Competition and Market Authority regarding an anti-competitive agreement
signed between two parties.

The UK Competition and Market Authority (“CMA”) replaced the

OFT in 2014, and took a more liberal stance pertaining to the acceptance of
information provided by the third-parties/informants, and the initiation of the
proceedings by third-parties.46 The information provided by the third-party
informants has been greatly valued and relied upon by the CMA in various
cases, where the CMA has launched probes and investigated the alleged anti-
competitive practices.47 Moreover, the CMA started with an initiative to
provide incentives to informants and whistle-blowers in the form of financial

http://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data
/file/284401/oft451.pdf [hereinafter OFT Report].
44
Id.
45
Competition Act 1998, § 15(2)(c) (United Kingdom),
https://www.legislation.gov.uk/ukpga/1998/41/data.pdf.
46
OFT Report, supra note 43.
47
Giles Washington, UK anti-cartel laws and their enforcement, PINSENT MASONS (Mar. 5,
2020), https://www.pinsentmasons.com/out-law/guides/uk-anti-cartel-laws-and-their-
enforcement#:~:text=Cartels%20involve%20companies%20acting%20together,criminal%2
0offence%20in%20the%20UK.&text=This%20is%20enforced%20by%20sectoral,and%20
Markets%20Authority%20(CMA).
102 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

rewards up to GBP 100,000 where the informant furnishes information

regarding anti-competitive activities.48 The recent initiative launched by the
CMA of “Cracking down Cartels”49 is also aimed towards encouraging
people, in general, to remain vigilant, and report to the CMA regarding any
anti-competitive activities.50 Thus, by providing monetary incentives to
informants, and introducing various different campaigns to garner awareness
and encourage people to provide information regarding anti-competitive
activities, the CMA has demonstrated a pro-active approach towards
accepting and acting upon the information provided by third-parties.

C. Practice in the USA

The Department of Justice (“DOJ”), and the Federal Trade

Commission (“FTC”) in the USA have relied on information provided by
third-party informants in the past to uncover and investigate on anti-
competitive activities such as cartelisation.51 The DOJ considers that receiving
information from the public regarding anti-competitive practices has become

48
Competition & Markets Authority, Rewards For Information About Cartels, CMA (2018),
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat
a/file/888951/Informant_rewards_policy.pdf
49
Adam McCabe, Exposing cartels: rewards and the race to confession, LEXOLOGY (MAR.
29, 2017), https://www.lexology.com/library/detail.aspx?g=7baa560f-b4aa-4d4d-8536-
b55e5438a3d2.
50
Bernardine Adkins & Rory Jones, Cracking Down On Cartels - The Competition And
Markets Authority's New Marketing Campaign, MONDAQ (Feb. 22, 2018),
https://www.mondaq.com/uk/cartels-monopolies/675904/cracking-down-on-cartels--the-
competition-and-markets-authority39s-new-marketing-campaign.
51
Pariz Lythgo-Marshall, The Australian Competition and Consumer Commission Immunity
Policy for Cartel Conduct: A Critical Legal Analysis, University of Wollongong, BIICL
(2016), https://www.biicl.org/files/1211_eui_fiosele_june_2006__kovacic_paper.pdf.
2021] SAMIR AGARWAL v. CCI 103

vital in contemporary times, and provides some bounties to the informants for
providing accurate information.52

However, the USA follows a slightly strict model as only a person who
is directly affected by the anti-competitive activities/conduct shall have locus
standi to initiate proceedings before the DOJ,53 and the Civil False Claims
Act, amended in 1986 helps to curtail any frivolous litigation by the third-
party informants.54 Notwithstanding this interpretation, it is widely accepted
that the information provided by informants helps in the initiation of a suo
moto enforcement action by the DOJ against anti-competitive activities,
without the requirement for the informant to necessarily testify in court or
initiate proceedings.55

IV. CONCLUSION

The NCLAT’s decision has been subjected to severe criticism on

various grounds, some of which have been mentioned above. At the outset,
the NCLAT’s decision was not in consonance with the provisions of the Act,
as it provided a completely different interpretation of the language used in
Section 19(1)(a) of the Act. The Supreme Court in its judgement clearly
opined that the usage of the word ‘any person’ is abundantly clear that the Act
provides a recourse to all people to provide information to the CCI and initiate
proceedings. Moreover, the NCLAT’s decision ignored the legislative intent

52
The Department of Justice, Report Violations, DOJ (Aug. 20, 2020),
https://www.justice.gov/atr/report-violations.
53
AZB & Partners, Conflicting views on ‘Locus Standi’ under the Competition Act, 2002,
AZB & PARTNERS (Oct. 19, 2020), https://www.azbpartners.com/bank/conflicting-views-on-
locus-standi-under-the-competition-act-2002/.
54
Lythgo-Marshall, supra note 51.
55
Id.
104 RGNUL FINANCIAL AND MERCANTILE LAW REVIEW [Vol. 8(1)

behind the Act, which is clear from a conjunctive reading of the preamble and
Section 18 of the Act, along with the 2007 amendment which replaced the
word “complaint” with “information”, as acknowledged by the Apex Court.

Apart from the recent Supreme Court decision, the importance of

analysing the legislative intent has been highlighted by various judicial
pronouncements of various Courts. In the case of Nathi Devi v. Radha Devi
Gupta56 it was held by the Hon’ble Supreme Court that the adjudicating bodies
should interpret the true legislative intent behind the statute. Further, the Delhi
High Court in the case of Kwality Ice Cream Co. & Anr. v. The Sales Tax
Officer, New Delhi,57 opined that when the words of a statute are
unambiguous, plain, and clear to interpret, then the courts should only resort
to a strict literal interpretation of the provisions, rather than providing a new
interpretation that is not in accordance with the provisions and the language
used in the statute. Further, the NCLAT’s decision also contravened the
decisions given by the erstwhile COMPAT, and the CCI regarding the
provisions of Section 19(1)(a) of the Act. Thereby, in furtherance of this, the
Apex Court was completely justified to overturn the NCLAT’s decision, as it
failed to interpret the literal meaning provided by the provisions of the Act,
and also failed to consider the legislative intent behind the Act.

The practice followed by other states is also informative in this

context. The UK provides rewards to the informants who come forward and
furnish information to the CMA regarding anti-competitive activities like the
formation of cartels. Moreover, member states of the EU like Hungary and

56
Nathi Devi v. Radha Devi Gupta, (2000) 9 SCC 249.
57
Kwality Ice Cream Co. & Anr. v. The Sales Tax Officer, New Delhi, 11 (1975) DLT 180
(Del.).
2021] SAMIR AGARWAL v. CCI 105

Slovakia follow the same model of providing monetary incentives for people
to come forward. The EU does not put a bar on any person to provide
information to the EC regarding anti-competitive activities, however, pursuant
to Article 230(4) of the EC Treaty, only such persons are entitled to have locus
standi in the proceedings that are individually concerned and directly affected
by the matter. Similarly, in the USA, there is no bar on providing information
to the DOJ and the FTC, but the concept of locus standi has been narrowly
interpreted.

However, the stance of EU and USA cannot be taken as a justification

for the NCLAT’s decision, as there is a very major and fundamental difference
between the two. In the EU and USA, the treaty/legislative provisions provide
for a restrictive interpretation of the concept of locus standi, while the Act,
and its provisions place no such impediment on ‘any person’ to initiate
proceedings in India. Moreover, despite the strict provisions in the EU and
USA, they still adopt a liberalised approach towards third-party informants,
as the information provided by them constitutes a very imperative source for
launching probes and undertaking investigations against anti-competitive
agreements and conduct. Thus, the judgement of the Supreme Court comes as
a much-needed relief against the NCLAT’s decision which created confusion.