The Competition Appellate Tribunal

Deepti Kant
Author:

Introduction 

The Competition Act of 2002 led to the establishment of The Competition Appellate Tribunal, which is a statutory body to hear and dispose of those appeals which arise against the decisions or orders passed under Sections 26(2), 26(6), 27, 28, 31, 32, 33, 38, 39, 43, 43A, 44, 45 or 46 of the Competition Act, 2002 by the Competition Commission of India. The Appellate Tribunal also adjudicate the claims for compensation which arises from the findings of the Competition Commission of India or which arises from the orders of the Appellate Tribunal against the appeal from the findings of the Competition Commission or under section 42A or 53Q (2) of the said Act and pass those orders which are for recovery of compensation specified under section 53N of the Competition Act,2000. The headquarters of the Competition Appellate tribunal is in New Delhi. Every appeal is required to be filed within 60 days from the date of receiving the order or decision by the Competition Commission of India except in certain exceptional situations wherein appeal is allowed if there existed sufficient reason for the delay. The Appellate Tribunal is not bound by the procedures which are laid down in the Code of Civil Procedure, 1908.1 


Enforcement of orders of the Appellate Tribunal: 

Every order of the Appellate tribunal should be enforced in the same manner as if it is a decree which is passed by a court about a suit pending therein. In case of violation of the orders passed by the Appellate Tribunals without any reasonable cause, the person would be liable for a penalty which does not exceed 1 crore rupees or imprisonment extending up to three years or with both as deemed fit by the Chief Metropolitan Magistrate of Delhi.2 Aim: The Appellate Tribunal aims to hear and dispose of the appeals arising against the direction issued or against the decision made or against any order passed by the Competition Commission of India (hereinafter referred to as CCI). It also aimed at adjudicating the claims for compensation that arises from CCI’s findings. 


The Competition Appellate Tribunal as an Administrative Body: 

A tribunal is the only such administrative body that is set up for discharging quasi-judicial duties. It generally follows procedures that are established by the statutes or the rules framed under such statutes. They are subject to some safeguards of the maxim Audi alteram partem, also the tribunal has been bestowed with powers to regulate procedures that are independent of the Code of Civil Procedure and those under the Evidence Act. In case there is no procedure laid down in the statute then the tribunal has the power to regulate its procedure as per the rules and the principles of natural justice. The Competition Appellate Tribunal (hereinafter referred to as COMPAT) was established as a statutory organization under the Competition Act of 2002 for hearing and disposing of appeals as authorized. But all orders of CCI are not appealable as per section 53A, as the legislature wanted to cut down on the unnecessary excessive litigation. ● In the case of Super Cassettes Industries Ltd. V. State of UP, the Hon’ble Supreme Court stated that as the appeal is a statutory right a party may lose about relevant provisions of such laws which are not mentioned in the statute.3 


Organogram: 

The tribunal has two members and one chairperson. The chairperson of this tribunal is appointed by the selection committee, constituting of Chief Justice of India and Secretaries of Ministry of Corporate Affairs and Ministry of Law and Justice. a) Qualification of Chairperson: The chairperson should be a judge of the Supreme Court or should be the Chief Justice of a High Court. b) Qualification of members: The members of the COMPAT should be such persons who have the ability, integrity and also special knowledge of professional experience which should not be less than that of 25 years in competition matters, international trade, competition law and policy, economics, commerce, business, industry, accountability, finance, etc. By looking at the above composition we may say that though the chairperson of COMPAT needs to be a member of the judiciary the members are not necessarily from the judicial background as COMPAT is an appellate body that also requires such skills other than that required by adjudicating body. The selection trend of members had been mainly from the IAS and IRS cadre, which fulfils both administrative and enforcement qualities required under COMPAT. 


Functions and Powers: 

The proceedings conducted before COMPAT are considered to be judicial proceedings that are executed by a decree given by the court. For execution, COMPAT can send the order directly to a civil court for the order to be executed. The order is then executed by that Court in a manner such that it is that Court’s decree. The COMPAT has powered to hear and also to dispose of any kinds of appeals which are against any orders, directions or decisions that are made by the Competition Commission of India. The powers of COMPAT extends to hearing and disposing of matters pending before the MRTPC and also has the power to adjudicate such claims which are related to compensation. The statutory provisions also require the COMPAT to regulate its procedures which is based on principles of natural justice that includes giving opportunities of being heard, with given reasoned orders, having the right to cross-examination, right of unbiasedness of any kind, etc. The COMPAT powers also include certain powers of the Civil Court concerning evidence collection, summoning, etc. that functions under section 53O. 


Orders: 

It has the power to grant any interim relief to the concerned parties in cases where the tribunal feels it necessary. It can modify, quash or even set aside the directions given by the Competition Commission of India as and when it deems fit as per section 53B. It can also award compensation to recover any loss or dam, an age that has been suffered by the concerned party in contravention done by the CCI. The COMPAT can also impose a penalty on concerned parties for contravening any of its orders that amount to a fine amounting to 1 crore and imprisonment of 3 years as per section 53Q. For any contempt which is made before COMPAT, the tribunal has the power to punish where the tribunal exercises its power as a High Court in cases related to contempt as given under section 53U. 


Discretionary Power of COMPAT: 

Certain discretionary power is also vested in the Competition Appellate Tribunal with regards to the directions that can be given by the tribunal to the commission, as in the case of Cement Cartel, the Compat directed CCI to pass an order after three months of a disposal of the concerned appeal. The tribunal also exercised its discretionary power in the case of Shri. Surendra Prasad v. Competition Commission of India & Ors. In that case, instead of remanding the matter back to the Competition Commission of India, the COMPAT directed the DG itself to conduct to start an investigation afresh in the matter involved. This power of COMPAT by which it directed the DG to conduct such investigation could be said to be outside or beyond the scope of powers given under section 53B (3) of the Competition Act,2002. But it is believed by the researchers that certain tribunals have such discretionary powers that can be applied when they cross a balance existing between the rights and liberties of the concerned parties related to any kind of violation that is done thereto. Generally, the courts do not have the power to direct the investigating agency about how to carry out such an investigation as the power of courts are limited in this regard. But in case certain discretionary power of such nature is exercised by COMPAT then, as believed by the researcher, certain parameters should be set or certain conditions should be satisfied before such exercise of more power by COMPAT so that they do not become arbitrary. 


Jurisdiction of COMPAT: 

The jurisdiction of COMPAT is limited under the Competition Act, 2002 by6 section 53A that excludes certain orders explicitly which cannot be made appealable, and under the judgment of Sail, the right to appeal was said to be statutory right in case where the intent of the legislatures was towards excluding certain provisions that could not be made appealable, in such situations the jurisdiction cannot be exercised by any court. The Supreme Court opined that under the Competition Act, 2002, section 53A indicates that every order, decisions, and direction are not appealable. This jurisdictional inadequacy leaves a high burden on the Apex Court because of reason that the order of the Competition Appellate Tribunal will be appealable only by a writ petition or a special leave petition before the Court. 4 


Role of the Competition Appellate Tribunal under the due process contained in the Competition Act, 2002: 

While hearing the parties, the tribunal must give both the parties equal opportunity to hear and also cross-examining while the process of hearing goes on and, as a need is felt, confirm, modify, remand, or set aside the order of the Competition Commission of India. The COMPAT should state the reason in the order itself to ensure that it’s a reasonable order. The final appeal that accrues after the order of COMPAT lies with the Apex Court of India. But in certain matters, such as a writ of certiorari and leniency petitions, a writ petition can also be laid before the Delhi High Court. The COMPAT, while referring to certain landmark judgements of the Supreme Court, laid down that imbibing natural law principles enables to prevent any kind of biasness and to eliminate any possibility of such bias. But COMPAT also emphasized that these principles related to natural justice should not be stretched too far. Almost at every state, the Competition Commission of India and the Competition Appellate Tribunal need to abide by the facets related to natural justice. 


COMPARATIVE ANALYSIS WITH OTHER COUNTRIES 

Other countries also have rules and regulations related to competition laws, some of them are: European Competition Commission: Due Process Under the European UnionThe performance of administrative authorities, along with their functions, in the EU depends upon the nature of all the member countries of the EU which they serve. There are multiple identities contained within the EU such as bring a Union of citizens, an internal market, and an international block. All these authorities require easily accessible administration that has a minimum barrier for any commercial activity and also require good governance so that it promotes the rights of the citizens and ensures fair proceedings. In case of shortcomings, the commission took action to rectify the situation. They have introduced reforms at the level of Community to improve procedures. The court always emphasized the fairness of procedures and in case of failure in the exercise of good administration which results in injury should be compensated. Article 6 of ECHR and also Article 48(2) of the Charter of Fundamental Rights protects the ‘right to be heard as a fundamental right of defense. The Commission has a duty according to which it has to ‘act within a reasonable time’ as per the general principle related to sound administration. An important formal requirement related to Commission’s decisions is the duty to ‘state reasons. Under the competition authorities of India, the parties are also given the opportunity for cross-examining, along with the right to a legal representation and basic rule of providing opportunities to party for defending themselves. As per the provisions of ECC, the procedures involved are inquisitorial instead of being adversarial. Thus, the right to defence and also of cross-examination are curtailed by such parties. 


Due Process Under the Federal Trade Commission, USA: 

There is a need of considering certain requirements by the Competition agencies in the USA to ensure that sufficient procedural safeguards procedural safeguards related to the environment promoting a healthy and level playing field and also the legitimacy in eyes of both the public and the regulated entities. The competition authorities have reiterated the judgment of the USA’s Supreme Court related to adhering to due process. The competition agencies are required to act expeditiously as per the need of the circumstances. There is still debate for framing guidelines that give procedural safeguards to the parties and the competition agencies such as the FTC and DOJ of USA. Some orders of COMPAT which contains excerpts of the principle of natural justice: 1) Kerala Film Exhibition Association vs. Competition Commission of India: In this case, the COMPAT highlighted explicitly section 36 of the Act which makes the Commission bound by the principle associated with natural justice. 2) Steel Authority of India Limited vs. Jindal Steel and Power Limited: In this case, the Appellate Tribunal declared that the principles related to natural justice are essential and thus the opportunity for hearing was mandatory. 


The road from The Competition Appellate Tribunal to National Company Law Tribunal: 

The notification issued by the government on 26 May 2017 had ended the Competition Appellate Tribunal which was established under the Competition Act of 2000 and was replaced by the National Company Law Appellate Tribunal (NCLAT). The notification of government brought Part XIV of the Finance Act of 2017 into operation, which contained the provision for the merger of various tribunals, including the Competition Appellate Tribunal. From 26 May 2017, the Competition Appellate Tribunal ceased to exist and NCLAT started operating under the Competition Act, 2002 as the appellate body.5 The decision regarding whether to continue the pending cases or to start the cases afresh.6 


Conclusion: 

By a survey conducted by Ernest and Young, it was found that more than 80% of the enterprises in India were not aware of the Competition law. Along with this, other issues that are there associated with the Competition Appellate Tribunal are related to regulations and functioning. Also, frequent appointments and retirements weaken the institutional memory. Though there are many issues, the relevancy of the tribunal cannot be denied. With the coming of the National Company Law Appellate Tribunal, the Competition Appellate Tribunal has been replaced ant its functions are now taken care of by NCLAT, but still, COMPAT remains relevant as it played a very important role in the evolution and development of the Competition laws in India. Even after the constitution of NCLAT, there is huge scope to improve upon the competition law in India. These laws should always cater to the contemporary needs of the country.



Footnotes-

1http://compatarchives.nclat.nic.in/About.aspx#:~:text=The%20Competition%20Appellate%20Tribunal%20is,o f%20section%2026%2C%20section%2027%2C (last visited on 28th July 2021). 

2 Ibid. 

3 http://14.139.58.147:8080/jspui/bitstream/123456789/235/1/40LLM15.pdf (last visited on 28th July 2021).

4 Ibid. 

5 https://www.chandhiok.com/compat-replaced-with-nclat (last visited on 28th July 2021). 

6 Ibid.]