International Journal of Engineering, Management and Humanities (IJEMH)

Volume 4, Issue 6, Nov.-Dec., 2023 pp: 185-189 www.ijemh.com

Jurisdictional Issues of Competition Commission of India:

A critical Analysis
Ananta Chopra
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Date of Submission: 22-11-2023 Date of Acceptance: 06-12-2023
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I. INTRODUCTION practices that are unfair in nature. Though the

The renowned Anglo-Irish Economist, commission was enacted on 14th October 2003, it
Edmund Burke, had once said,” Free trade is not became fully operational in May of the 2009.
based on utility, but on justice. The makers of the Dhanendra Kumar was its first chairman.
Indian Constitution were ardent supporters of free The Competition Commission of India has
flow of trade.They believed it was more so been in limelight for the unending controversies
necessary as in a country like India, which is so pertaining to its jurisdiction. The competency of the
diverse, the working of a single economic unit commission to try out certain matters has been
would prove to be a source of sustaining stability of challenged time and again, in courts. In India,
the federal polity1 .The 1990s were a momentous Competition Commission possesses exclusive
time for our country globalization and liberalization jurisdictionover complaints with regards to any
were introduced and an overhaul of the economic breach of the competition act ,2002.Judicial courts
structure was in full swing. Meanwhile, of the country do not have any primary jurisdiction
theMonopolistic and Restrictive Trade Practices Act over these matters. Moreover, there is no “Private
(MRTP),1969was observed to have loopholes and right of action” under the competition act.2The gist
proved to be inadequate at several instances during of Section 61 of the competition act 2002 is that it
this time of change. In 1999, Governmentof India confers upon the commission exclusive power to
appointed a committee under the chairmanship of deal with matters that are forbidden to be heard by
SVS Raghavan, entrusting upon it the task of civil courts in the country.
framing modern competition laws for the country
that would be aligned with international Which sections of the Competition Act are
developments. The committee was also expected causing friction?
toformulate a legislative framework that would Section 62,60,21A,21,18 are the most
either amend the existing MRTP (1969 )or give a commonly contested in courts as these sections may
new law altogether. Deriving its authority from the cause jurisdictional issues between competition
Competition act 2002, Competition Commission Of commission and the sectoral regulators. These
India has as its primary function elimination sectoral regulators were introduced with the similar
ofdiscriminatory practices that have adverse effect purposes as those of the competition commission.
on competition, to aid domestic industries that may So it comes as no surprise that ,CCI often finds itself
face suppression due to increased globalization and in amidst of jurisdiction controversies and lawsuits.
liberalization as well as protecting interests of The plethora of cases that have been filed stand
consumers by ensuring no enterprise exploits its testimony to this.In 2018,the competition
position in the market, specifically those enjoying commission of India made serious allegations of
dominance in their particular arena.The preamble of anti-competitive conduct against taxi aggregators,
the Competition Act, itself, declares its commitment OLA and Uber .It was stated that the price fixing
towards development of India’s economy by agreement between the two was in contravention of
promotive constructive competition and avoid section 3 (1) when read in consonance with section
3 (3)(a) and their engagement in resale of price
maintenance was in contravention with section 3 (1)
1
—— ‘Freedom of Trade, Commerce and read with Section 3(4)(e) of the competition
Intercourse: Articles 301 - 307 of the Indian
Constitution’ (iPleaders)
<https://blog.ipleaders.in/freedom-trade-commerce- 2
—— ‘The Competition Act, 2002 - iPleaders’
intercourse-articles-301-307-indian-constitution/> (iPleaders) <https://blog.ipleaders.in/the-
accessed 2 August 2023 competition-act-2002/> accessed 4 August 2023
www.ijemh.com Page 185
 International Journal of Engineering, Management and Humanities (IJEMH)
Volume 4, Issue 6, Nov.-Dec., 2023 pp: 185-189 www.ijemh.com

act,2002.It was further alleged that no room for sectoral regulators like TRAI. In particular, it cast a
possible negotiation was possible for individual trips spotlight on the conundrums that arise when issues
between the riders and customer ,owing to the strict simultaneously fall under the purview of both
algorithmic pricing .The rationale behind this was regulatory bodies.
that such pricing takes away freedom of the Ultimately, this landmark decision played a
customers to make an informed decision with significant role in shaping the evolving landscape of
regards to the best price possible and was, therefore telecommunications regulations in India. It
anti-competitive. The Apex Court ,in its judgement underscored the importance of delineating the roles
dated 15th December 2020,post analyzing the of regulatory bodies, especially when faced with
provisions of competition act,2002 and Competition complex issues that straddle their respective
Commission of India (General) Regulations, jurisdictions. As the curtains fell on this legal saga, a
2009,stated that the definition of “person” under newfound clarity emerged, providing a roadmap for
section 2 (1) was an inclusive one, which is addressing similar challenges in the future.
extremely wide and would contrast with the
definition of consumer under section 2(f) of the act Analysis of Delhi High Court's Verdict on ICAI's
which states that only persons who buy goods for CPE Program Investigation
any consideration, or hire or avail of services for a In a truly momentous verdict ,the Delhi
consideration, are recognized as consumers.Further High Court in June 2023 held that the decisions
,the court upheld the rejection of National Company taken by regulatory authorities while in course of
Law Appellate Tribunal (NCLAT) allegation of use their regulatory functions are not subject to be
of algorithmic pricing forfacilitating price fixing reviewed by the competition commission of India
cartel made against taxi aggregators, Ola and Uber. .This decision by the court rules out the
Investigation initiated by the CCI against the
Tussle of Jurisdiction between CCI and Telecom Institute of Chartered Accountants of India
Regulatory Authority Of India (ICIA)alleging that the Continuing Professional
In 2017, Reliance Jio Infocom Limited Education Programme ,that requires professionals to
(RJIL), a promising newcomer in the undertake continuous training in order to retain their
telecommunications arena, embarked on a legal license of certified professional ,was an abuse of
journey that would shape the dynamics of whole dominant position 3.It was said that this programme
industry. RJIL's approach to the Competition does not allow other players to get a fair chance to
Commission of India (CCI) marked a pivotal conduct similar courses.One of the contentions put
moment, as it lodged a complaint against incumbent forward was that the institute of ICIA must allow
players, accusing them of orchestrating a cartel to members enrolled to obtain CPE credits by
stifle market entry. attending seminars of their own discretion, which
Before coming to this decision, RJIL had may be conducted by other Associations or
already knocked the doors of the Telecom institutes. However ,the recent judgement of High
Regulatory Authority of India (TRAI). Their plea to Court highlights that the Competition Commission
TRAI had focused on the incumbents' alleged of India (CCI) can only assess real-world economic
refusal to provide sufficient points of effects on the market, as it is a market regulator and
interconnection, a move which was seen by RJIL as not assess hypothetical scenarios created solely for
a obstacle to fair competition. examination. The CCI's jurisdiction does not extend
The subsequent order passed by the to redress of grievances against arbitrary actions
Competition Commission of India (CCI) in favor of done by governmental bodies. The ICIA being a
RJIL marked a momentous turning point. However, statutory body is empowered with requisite powers
the plot thickened as the decision was met with to make decisions regarding CPE Programme for
opposition. The order was swiftly challenged in the maintaining certain professional standards and this
esteemed Bombay High Court, and eventually, the is not a subject matter of the CCI.A regulator is
case found itself in the chambers of the Supreme normally authorized to use its statutory powers and
Court of India.
This legal odyssey breathed a breath of
3
fresh air into every tier of the Indian judiciary, —— ‘CCI vs ICAI: Delhi HC quashes CCI
leaving an indelible mark on the country's legal investigation against ICAI’ (Business Line)
framework. The case not only spotlighted the <www.thehindubusinessline.com/economy/cci-vs-
telecommunications sector's intricacies but also icai-delhi-hc-quashes-cci-investigation-against-
spotlighted the delicate interplay between CCI and icai/article66924689.ece> accessed 14 August 2023
www.ijemh.com Page 186
 International Journal of Engineering, Management and Humanities (IJEMH)
Volume 4, Issue 6, Nov.-Dec., 2023 pp: 185-189 www.ijemh.com

carry out its statutory tasks of regulating the United Kingdom

specialized field over which it has authority. Unless In the United Kingdom, market regulator
expressly authorized by statute, no other statutory responsible for ensuring fair competition and
authority may intervene with the judgement of such preventing anti-competitive practices is the
a regulator. According to Justice Vibhu Bakhru of Competition and Markets Authority ,which became
the Delhi High Court, the Competition Act, 2002 operational on 1st April 2014.4The introduction of
forbids the CCI from acting as an appellate court or the National Security and Investment Act 2021 (the
grievance redressal cell against decisions made by NSI Act) was an important milestone affecting life
statutory regulators in the exercise of statutory sciences in the United Kingdom. Concerns about the
authorities unrelated to trade or commerce. shifting balances of global economic and military
power, increasing competition among states, and the
Comparative Analysis Of Market Regulator in emergence of powerful non-state actors have led the
India and other countries UK government to consider modernizing its powers
United States to intervene in certain transactions that could
As Competition commission of India jeopardize the UK's national security. While the
serves the function of the same, United States also Secretary of State previously had authorities to
has a regulatory body ,called ,US Securities and intervene on national security grounds in mergers
Exchange Commission (SEC).Jurisdiction of SEC subject to the ordinary merger control regime, these
pertains to issuance of securities as well as trading were deemed insufficient to defend national
.Further, it oversees financial disclosures made by security, ensure the success of the economy, and
companies ,takes action against cases of security citizens' safety.The NSI Act's 'national security'
frauds and maintaining a just and fair market in the reach is broad and could include areas such as
country .The Securities and Exchange Commission supply security in life sciences (e.g., perhaps,
(SEC) is a broad-reaching regulatory organization vaccinations).During the early stages of the covid-
that primarily oversees the securities industry. The 19 pandemic, the CMA issued a warning to
CCI is India's major competition regulating pharmaceutical suppliers not to take advantage of
authority. Its mission is to promote fair competition, the situation, but also issued guidance, stating that it
prevent anti-competitive practices, and maintain a would not take enforcement action where temporary,
level playing field for firms of all sizes and necessary measures were taken to coordinate
industries. The CCI has authority over a wide range activities to ensure supply of essential products
of competition law issues, including anti- affected by the crisis.
competitive agreements, abuse of dominance, and An indirect effect of the epidemic has been
mergers and acquisitions that potentially harm an increase in the number of employees working
competition. It seeks to foster a competitive market from home. As a result, the government has
environment that benefits customers, encourages suggested giving the CMA the authority toseize and
innovation, and improves economic sift' evidence while conducting warranted dawn
efficiency.However, the two have similar features as raids on home properties, as well as strengthening
well. The CCI and the SEC both have the authority the CMA's ability to collect information kept
to take action against violators of their respective remotely.The CMA now has merger control
regulations. The CCI has the authority to examine jurisdiction over a deal if two businesses cease to be
and penalize anti-competitive practices, abuse of distinct and eitherthe target's UK turnover is at least
dominance, and mergers that may harm competition. £70 million; or the deal generates or enhances a
To ensure the fairness of the securities market, the 25% or greater UK share of supply in the UK or a
SEC enforces securities laws by investigating and portion of it (the share-of-supply test (SOST).The
prosecuting cases of fraud, insider trading, and other criteria for assessing mergers differs between the
infractions. Moreover, both regulatory authorities market regulators of India and UK. The CCI uses a
stress the necessity of timely and correct "substantial lessening of competition" (SLC) test to
disclosures. The CCI's emphasis on transparency evaluate whether a merger would harm competition
ensures that customers have accurate information
about products and services, allowing them to make
4
educated decisions. Companies must disclose Contributors to Wikimedia projects, ‘Competition
complete financial disclosures to the SEC, ensuring and Markets Authority - Wikipedia’ (Wikipedia, the
that investors have access to important information free encyclopedia, 1 April 2013)
before making investment decisions. <https://en.wikipedia.org/wiki/Competition_and_
Markets_Authority> accessed 16 August 2023
www.ijemh.com Page 187
 International Journal of Engineering, Management and Humanities (IJEMH)
Volume 4, Issue 6, Nov.-Dec., 2023 pp: 185-189 www.ijemh.com

in Indiawhereas, CMA, considers factors like that radiate transparency. This is especially true
turnover and market share in its assessment.Market when it comes to the many criteria that govern
studies can be conducted by the CCI and the CMA search result rankings, the intricate tapestry of
to assess the competitiveness of specific sectors or discounting algorithms, the scrupulous use of user-
industries. These studies can assist in identifying generated data, and the all-important area of user
competitive impediments and recommending reviews.In essence, the convergence of legislative
governmental measures to improve market effort and regulatory encouragement
dynamics.Both organizations work with other signalswatershed moment in the internet commerce
competition authorities throughout the world to domain. It exemplifies France's commitment to
address cross-border anti-competitive practises and cultivating a landscape in which ethical
guarantee that competition rules are consistently considerations coexist happily with commercial
enforced. dynamism, ultimately providing an environment in
which informed choices reign supreme.
Singapore
Although Singapore has not yet amended Navigating jurisdiction in the age of digital
its competition law to address the challenges posed economy
by online marketplaces, the Competition and The development of India's digital
Consumer Commission of Singapore (CCCS) has economy has fundamentally changed how
taken a proactive approach in recent years, individuals communicate, transact business, and
analyzing each transaction on a case-by-case basis share information. The issue of jurisdiction becomes
and checking them by imposing deterrent fines if essential given the sizeable online user base and the
any competition law violation is found 5. flourishing e-commerce activity. Digital
The CCI has also called attention in its technologies enable cross-border data flows and the
report to its investigative jurisdiction under Section delivery of digital services by international
3(4) of the Competition Act, 2002 to investigate the enterprises without a physical presence in the
unreasonable contract terms imposed on sellers by country, blurring traditional territorial boundaries.
marketplaces due to their dominant position. The The idea of data localization is one of the main
CCI was cautious to note that exclusive agreements obstacles. comparable to many other comparable
can be both pro- and anti-competitive, and hence legislation throughout the world, India's recently
there is no blanket prohibition on them. proposed Data Protection Bill of 2023 emphasizes
tougher data localization rules to protect its
France residents' personal data. This program attempts to
France: A groundbreaking law has been improve data privacy and make regulatory
enacted by the National Digital Council and is now supervision more practical. The viability of
part of the French legal framework. This legislation implementation also comes into question with this
requires e-commerce marketplaces, which serve as strategy, especially for multinational tech
dynamic centres of economic activity, to adhere to corporations that operate across numerous
the values of justice, transparency, and informational jurisdictions.The rapid growth of India's digital
clarity. This obligation is especially relevant when economy has transformed communication,
vendor distinction extends beyond the sphere of economic transactions, and information sharing.
service quality.The resonance of this revolutionary This progress, however, has given birth to complex
project with the extensive insights supplied by the obstacles, particularly regarding jurisdictional issues
Competition Commission of France (CCI) has and the role of sectoral regulators in contrast to the
increased its relevance. The CCI has unambiguously Competition Commission of India (CCI). As India's
said that these digital marketplaces, in their capacity online user base grows and e-commerce thrives, the
as builders of their own operational frameworks, intricacies of jurisdiction become increasingly
should proactively develop and define regulations important. Because of digital technologies' potential
to promote cross-border data flows and worldwide
delivery of digital services, traditional geographical
5
—— ‘CCI’s E-commerce Report: A Cross- boundaries have blurred, forcing a reevaluation of
Jurisdictional Analysis - IndiaCorpLaw’ regulatory regimes.The Internet of Things (IoT) has
(IndiaCorpLaw) the potential to transform not only technological
<https://indiacorplaw.in/2020/01/ccis-e-commerce- landscapes, but also the settlement of jurisdictional
report-cross-jurisdictional-analysis.html> accessed concerns confronting the Competition Commission
17 August 2023 of India (CCI). The capacity of IoT to cross
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 International Journal of Engineering, Management and Humanities (IJEMH)
Volume 4, Issue 6, Nov.-Dec., 2023 pp: 185-189 www.ijemh.com

geographical boundaries to forming interconnected

networks may provide innovative solutions to the
problems of defining and enforcing jurisdiction in
the digital age.

www.ijemh.com Page 189