The long wait for the Competition Commission of India to start functioning seems to be coming to an end.
The Supreme Court has disposed of the petitions that challenged the constitutional validity of the Commission and has ruled that the Centre could go ahead with its plans to amend the Competition Act.
This might mean that the country's apex court is satisfied with the Centre's plans to set up an appellate body, whose chairperson is to be chosen by a panel headed by the Chief Justice or his nominee.
It could also mean that the Supreme Court would like to wait and watch how the Centre goes about implementing the other promised changes and how effective they turn out to be in reducing the executive's alleged encroachment into areas reserved for the judiciary.
But in practice if the Commission is seen as coming in conflict with the role of the judiciary, the apex court might intervene once again.
Nevertheless, the visible impact of the Supreme Court order last week is that the Commission officials, many of whom have been working there since its establishment in October 2003, look rejuvenated and are readying themselves to implement some of the innovative ideas that they have been devising to make the Commission an effective regulatory body. Indeed, the Competition Act, 2002 had incorporated many new features in the way a regulatory body ought to function.
For instance, the directorate general of investigations, attached to the Competition Commission, has been given special powers that were denied to its counterpart under the Monopolies and Restrictive Trade Practices Act.
The Office of the Registrar and Investigations under the MRTP Act could not enforce its summons to witnesses since it did not have any powers of a civil court.
But the directorate general of investigations under the Competition Act can summon witnesses or any party relevant for any investigation.
These summons cannot be ignored since dishonouring them could be punishable in a court of law. So be careful when you get summoned by the directorate general of investigations of the Competition Commission.
Similarly, the Office of the Registrar and Investigations under the MRTP Act could issue suo motu inquiry orders and keep its investigation reports confidential.
But the directorate general of investigations under the Competition Act cannot institute any inquiry without completing the investigation.
Moreover, all its investigation reports have to be mandatorily made public. The problem with the investigation wing under the MRTP Act used to be that too many inquiries would be instituted without any proper groundwork.
Also, once the investigations were over, cases would often get dropped even before being referred to the MRTP Commission. This gave rise to doubts about the motive of instituting such inquiries.
Industry and trade could now seek comfort from the fact that the investigation wing under the Competition Act cannot act so irresponsibly.
The Competition Commission has already given final touches to the rules and regulations to be enforced under the new act. A big relief is the fact that the Competition Act does not bind the Commission to the procedures laid down by the Civil Procedure Code of 1908.
Thus, the regulations of the Competition Commission will be guided by the principles of natural justice in consistence with the provisions of the Competition Act.
Officials in the Commission have proposed several other innovative features in the draft regulations that have been finalised and are waiting to be cleared by the government.
Allocation of equal time to each party for pleadings and provision of a conference of parties with a view to ascertaining facts to arrive at prima facie conclusions and serving notices through electronic mail are among the new features in the proposed rules.
Special efforts have been made to ensure that cases are settled without inordinate delay. So, not more than three adjournments are permitted during the investigation stage. A maximum time limit is being prescribed to pass an interim and a final order once the arguments have concluded.
There is also a provision for a "consent order" in case the parties involved in a case decide to settle the case amicably. Filing of complaints through e-mails and deposit of fees through the electronic system are being proposed.
While the Commission officials are ready with their draft regulations to get cracking, the department of company affairs should move on some crucial aspects quickly if the new regulatory body has to become truly functional.
A decision on appointing a chairman of the Commission has to be taken. And the choice has to be such that does not give further credence to the impression that regulatory bodies are used to reward bureaucrats at the end of their service.
Equally important for the government is to issue the notification to wind up the MRTP Commission, so that its staff and resources can be gainfully employed by the Competition Commission of India.
