Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India

Synopsis for Seminar Paper

On the Topic
Right to Judicial Review: Scope of Judicial Control
over Competition Proceedings in India
Submitted towards the partial fulfilment of grading for
the
3rd semester of LL.M. Degree course for the subject
Competition Law
Submitted To:

Submitted By:

Prof. Ravikannt Bharadwaj

Rupendra Singh

Faculty- in- Charge

LL.M - Corporate Law

National Law University

3rd Semester,
Roll no: 442

NATIONAL LAW UNIVERSITY, JODHPUR.

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India

Table of Contents
1. Subject of Research
2. Area of Research
3. Research Topic
4. Object of Study
5. Introduction.
6. Research Objectives and Research Questions.
7. Hypothesis.
8. Identification proposed Data Collection Methods.
Research Technique.
Research Data.
Research Sources.
Research resources.
9. Identification of Literature for Study.
Enactments & Legal Instruments.
Reports and Research work.
Articles
Websites
Cases.
10. Proposed Chapterization

1. Research Subject: This proposed research paper is rooted to procedure of and practice
developed by Competition Act, 2002 and application of Judicial Review over such practice
as mandated by the Competition Commission of India.

2. Area: Present research proposal falls within the Competition Act, 2002 and Constitution
of India, within there is an apparent correlation.

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India

3. Research Topic:

Right to Judicial Review: Scope of Judicial Control over

Competition Proceedings in India

4. Object of Study: The object of this term paper proposal is to make legal analysis of the
provisions of Competition Act, 2002 and scope of Judicial Control over Competition
Proceedings in India.
5. Hypothesis: Excessive judicial control will frustrate the object of Competition Act,
2002.

6. Introduction of Research Topic:

In any democratic set up, the control over the government is exercised by the people as the
democracy is known as Government of the people, by the people, for the people.1 But it has
been witnessed that this control is weak, fragile as many democratic societies does not permit
frequent checks of the administrative actions. This control is not effective enough as the
majority of the people exercising it are disempowered. It is an accepted axiom that the real
kernel of democracy lies in the courts enjoying the ultimate authority to restrain the exercise
of absolute and arbitrary power.2 Hence, auxiliary control becomes imperative and this
auxiliary control is the Judiciary with a power of judicial review.3 Judicial review which is
based on the fundamental principles of administrative law (Separation of Power, Rule of
Law, and Fundamental Rights) has been declared as the integral part of the Constitution
which cannot be abolished, whittled down even by the amendment of the Constitution.4
Therefore, all actions administrative, judicial or quasi- judicial of different institutions
irrespective of their nature are subject to the Judicial Review.
In order to ensure a perfect competition and to prevent practices adverse to competition,
Competition Act, 202 was enacted. The primary purpose of competition law is to remedy
some of those situations where the activities of one firm or two lead to the breakdown of the
free market system, or, to prevent such a breakdown by laying down rules by which rival
businesses can compete with each other. The model of perfect competition is the 'economic
model' that usually comes to an economist's mind when thinking about the competitive
1

U.S. president Abraham Lincoln (1809-1865)

M.P. Jain, S.N. Jain, Principles of Administrative Law, P. 493, 6th Ed. 2 Lexis Nexis Butterworths Wadhawa
Nagpur, 2011.
3
I.P. Maisey, Administrative Law, P. 283, 7th Edition, Eastern Book Company, Lucknow, 2008.
4
Keshawanand Bharati v State of Kerla, (1973) 4 SCC 225, AIR 1973 SC 1461
2

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India
markets.5 In order to discharge above functions and to curb the negative aspects of the
competition this legislation provides an institution called Competition Commission of India
(Herein after CCI). CCI has the power to perform different kinds of functions, including
passing of interim orders and even awarding compensation and imposing penalty. Under the
scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory,
adjudicatory and to a limited extent even advisory jurisdiction. Vast powers have been given
to the Commission to deal with the complaints or information leading to invocation of the
provisions of Sections 3 and 4 read with Section 19 of the Act. Section 3 and 4 respectively
define Anti- Competitive Agreement and Abuse of Dominant Position whereas section 19
provides the mechanism of inquiry and procedure thereof is provided under section 26 of the
Act in order to combat such anti- competitive activities. Therefore, commission is vested with
the inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory
jurisdiction. Commission is termed as the expert body whereas Competition Appellate
Tribunal is a quasi judicial body. Commission has wide discretionary power in order to
exercise its functions.
It is accepted fact that the in a democratic society judicial review is the soul of system it
maintained the democracy and protect the rule of law.6 Present paper is aimed to analyse
scope of judicial review and judicial control over the competition proceedings as commission
has wide discretionary power in terms of section 19 and 26 and the subordinate regulations of
the Act. It also aimed to analyse the true nature of the CCI. Therefore, the basic aim is to
closely scrutinise the procedure followed by the commission in discharging their function and
scope of judicial review over those administrative, adjudicative and regulatory function of the
commission. In order to achieve the said aim this paper also aim to analyse the judicial
pronouncement of various courts in India on this issue. This paper will also demonstrate the
reasonability and feasibility of application of judicial review based on the practice followed
in other nations.

Competition Commission of India V Steel Authority of India, (2010)4CompLJ1(SC),JT2010(10)SC26,

(2011)2MLJ271(SC)
6
Minerva Mills v Union of India, (1980) 3 SCC 625.

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India

6. Research Objectives and Research Questions:

To study, understand and analyse the aim and object of Competition Act, 2002.
1. What are the aim and object of Competition Act, 2002?
2. What are the reasons of repealing the MRTP Act, 1969?

To identify and analyse the power and function of Competition Commission of India.
1. What are the various authorities under the Act?
2. What are the power and functions assigned to those authorities?

To find out the real nature of Competition Commission of India based on the power
and functions assigned to the Commission of India.
1. Whether the CCI is a quasi judicial body or administrative body, or regulatory
body or expert body?

To study and identify the scope of judicial review over the Competition proceedings
in India.
1. What is judicial review?
2. When can judicial review be sought by a person?

To study, understand the implication and viability of Judicial Review in Competition

Proceedings.
1. Is judicial review is beneficial in Competition proceedings?
2. How far as judicial review should be allowed in the competition proceedings?
3. Will the excessive judicial intervention in the competition proceedings by the
judicial proceedings frustrate the basic purpose of the Competition Act, 2002?

To carry out the same study in the other jurisdictions and practice and procedure
followed by those countries.
1. Which are the countries where judicial review is allowed in the competition
proceedings?

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India
2. How far those countries have allowed judicial intervention in the competition
proceedings?

To identify and examine a similar institution vested with the same adjudicatory,
regulatory and inquisitorial jurisdiction as assigned to the CCI and application of
judicial control over its proceedings?
1. Is there any other institution or body which has similar power and function as
vested to the CCI? If yes then, what is the scope of Judicial Review therein?

To study, identify and examine the power and limitations of judicial review of
competition proceedings in India.
1.

What are the various limitations of judicial review?

2.

Whether same limitations can be transported in the competition proceedings?

7. Identification of Proposed Data collection Methods:

I have decided to adopted following Research aspects in my term paper proposal in order to
research on the above mentioned Objectives and Questions on the Topic.
(i)Research Technique:

The term paper is prepared using deductive methodology of

research. Primary surveys and observations and review of articles, records and reports of
various eminent persons, organisation would be examined and the challenges which has been
faced by the other nation who already have the concept of One Person Company and then
come to a concluding point as which regime is the effective one and serves the interest of
larger number of society.
(ii)Research Data: This paper will be based on collecting of secondary data as well as at
the same time preparing, recording and making an observation and comments by various
authorities such as Ministry of Corporate Affairs, Income Tax Authorities, Competiton
Commision of India.
(iii)Research Source: The paper will be based on analysing and collecting data from various
books, articles in the magazine, newspapers articles and publications, use online data base
also.

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India
(iv)Research Resource: This paper is being prepared at an individual level. The National
Law University, Jodhpur library will be made use of and journal subscription will be utilised.

8. Identification of literature for study: In the limited time limit for the literature
survey it has been found out that in India at large there has been no in depth research on the
Topic owing to its characterstict of being new but many articles, comments and proposals
have been written on similar aspects of the topic but that too in prospect of International
character. The titles and sources of those are mentioned below as follows:
(i)Enactments & Other Legal Instruments:
1.

Competition Act, 2002

2. MRTP Act, 1969

3. Constitution of India, 1950
4. TRAI Act, 1997

(iii)Reports and Research Work and Books Referred:

1. Judicial Review of Administrative Action: The Problem of Remedies
<http://www.lawreform.ie/_fileupload/consultation%20papers/wpJudicialReviewAd
minAction.html>
2. Judicial Activism Under the Indian Constitution Address by Honble Mr. K.G.
Balakrishnan, Chief Justice of India (Trinity College Dublin, Ireland October 14,
2009)
3. Due Process in EC Competition Cases: A Distinguished Institution with Flawed
Procedures The European Law Review (2009) 817.
4. Vinod Dhall, Competition Law Today, Concepts, Issues and the law in practice, P. 4
(Oxford University Press, New Delhi,2008).
5. Dr. V.K.Agarwal, Bharatas Competition Act, 2002, Bharat Publishing House, New
Delhi ed, 2012.
(iv) Cases Refered
1. Minerva Mills v Union of India, (1980) 3 SCC 625.
2. Keshawanand Bharati v State of Kerla, (1973) 4 SCC 225, AIR 1973 SC 1461
3. Competition Commission of India V Steel Authority of India, (2010)4CompLJ1(SC)
4. Brahm Dutt Vs. Union of India (UOI)

Right to Judicial Review: Scope of Judicial Control over Competition Proceedings in

India
5. Automec Srl v. Commission of the European Communities (1990) ECR II 00367;
6. IBM v. Commission [1981] ECR 2639; Bossi v. Commission [1989] ECR 303;
7. Green v. Premier Glynrhonwy Slate Co.(1928) 1 KB 561;
8.

Mersey Docks and Harbour Board v. Henderson Bros. (1888) 13 AC603;

9. Municipal Corporation of Delhi v. Tek Chand Bhatia : (1980) 1 SCC 158

10. S.P. Sampath Kumar v. Union of India and Ors
(v) Website visited
1. http://www.jstor.org/stable/1333402?seq=3
2. http://en.cnki.com.cn/Article_en/CJFDTOTAL-ZSKY200506019.htm
3.http://heinonline.org/HOL/Page?handle=hein.journals/tulr48&div=54&g_sent=1&collectio
n=journals
4. http://www.cci.gov.in/
5. http://ec.europa.eu/competition/index_en.html
6. http://www.ftc.gov/bc/
7. www.westlaw.co.in
8. www.manupatra.com

9. Proposed Chapterization:
This research paper will compromise of the following chapters of study.
1. Introduction
2. Meaning and Concept of Judicial Review
3. Nature of Proceedings before the Commission
4. Scope and Application of Judicial Review over the Competition Proceedings
5. TRAI and Scope of Judicial Review
6. Competition Proceedings and Limitations of Judicial Review
7. Conclusion