The Telegraph
Since 1st March, 1999
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Judiciary holds sway in competition panel tussle

New Delhi, Nov. 21: The Centre has finally caved in to pressure from the judicial brigade and agreed to allow a judicial person to head the Competition Commission — the new entity that will rule on India Inc’s mergers and acquisitions.

The Centre agreed to amend a proviso in the Competition Commission Act — specifically Section 39 — which would have allowed it to appoint a non-judicial person as the chairman of the proposed entity.

Just a few weeks ago there was a brouhaha over the move to appoint commerce secretary Deepak Chatterjee as the head of the entity, which sparked protests from the judicial circles. The groundswell of protests prompted the Supreme Court itself to issue a sharply-worded reproof to the government against what it saw as a sinister move to undermine the role of the judiciary itself.

This is the first time that the Centre has agreed to strike down a proviso in an Act passed by Parliament in the face of judicial protests.

Earlier, if an entire Act or certain provisions were found to be unconstitutional, the courts of law, especially the Supreme Court, struck down enactment and different provisions in the law.

But this time the government itself came forward to strike down a provision in an enactment which now would warrant drafting of a fresh bill for amendment to be passed by both the houses of Parliament.

When Attorney-General Soli J. Sorabjee told a division bench of Chief Justice V. . Khare and Justice S. B. Sinha that the government would strike down section 39 of the Competition Commission Act, the judges observed, “We expected that it would be scrapped before we took up further hearing of the petition.”

The petitioner, one Brahm Dutt challenged the appointment of commerce secretary Deepak Chatterjee as chairman of the Competition Commission, which has replaced the Monopolies and Restrictive Trade Practises Commission (MRTPC).

The new commission is modelled along the lines of similar bodies in the US and Britain.

In fact, the attorney general filed a 20-page detailed “extracts from the Competition Act (UK)” along with his affidavit actually justifying the appointment of a “non-judicial person” in a commission of “this nature” involving the entire gamut of knowledge on “world economy” and the changing economic scenario.

The judges observed “India need not mindlessly adopt the methods employed in the US or the UK.”

Quickly, Sorabjee started submitting before the court that the government would delete section 39 of the Act and further that the respective high courts would not be made the executing courts for the awards given by the commission.

Senior counsel R. K. Jain, appearing for the petitioner, contended that the government was actually misleading the court by stating something in the affidavit and orally submitting something else in the court.

After Sorabjee gave the undertaking to delete section 39, the bench posted the matter for further hearing on December 16.

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