A Shot in the Arm for the Competition Commission

By Zerick Dastur, Senior Associate of J. Sagar & Associates, Advocates & Solicitors

The Competition Commission of India is up and rolling. Recent judicial pronouncements in the field have acted as a shot in the arm for the regulator entrusted to promote economic efficiency and free and fair competition within the economy. The Commission has already commenced investigations in sectors including civil aviation, stock markets, private sector banks, housing finance companies, DTH service providers and disputes between film producers and multiplex owners. Recently, the Director General i.e. the investigating authority under the Act, has stated in its report that it appeared that the reality major DLF Ltd had violated the provisions of the Competition Act. Appropriate proceedings may be adopted by the Commission and action may be taken after completion of inquiry and affording the concerned party an opportunity to be heard. An order passed by the Competition Commission may be appealed before the Competition Appellate Tribunal constituted under the Competition Act, 2002. Any appeal against an order of the Appellate Tribunal will lie directly before the Supreme Court.

The recent judgment of the Supreme Court in an appeal filed by Competition Commission of India against the order of the Appellate Tribunal in the matter of Steel Authority of India Ltd. serves as an authoritative interpretation on a number of open issues. The judgment in effect enables the regulator to overcome a number of hurdles in conducting the process of investigation in a time bound manner. Not only does it provide that the a direction of the Commission to cause an investigation to be made on formation of an opinion by the Commission cannot be appealed before the Tribunal, it also provides that it is not mandatory for the commission to hear the parties affected prior to arriving at such a prima facie opinion. Thus the possibility of investigations being interrupted at the threshold with long drawn legal battles in the form of appeals to the Tribunal have been done away with. It has also been held that the Commission is a necessary and /or a proper party in every case before the Appellate Tribunal, thus giving the Commission an opportunity to put forth its perspective in every appeal before the Tribunal. The ruling could assist the Tribunal to arrive at a just and fair conclusion after hearing all concerned.

Similarly, the recent decision of the Bombay High Court in the writ petition filed by Kingfisher Airlines Limited is a landmark judicial pronouncement in context of a legislation which is in its nascent stage. The writ petition had been filed challenging the notices issued by the Commission in respect of an alliance between Kingfisher Airlines Limited and Jet Airways. While dismissing the writ petition the court observed that, though the Competition Act is not retrospective, it would cover all agreements entered into prior to the commencement of the Act which are sought to be acted upon by the parties after the commencement of the Act. The implications of this judgment could be widespread, covering a range of similar arrangements between corporate business houses. A special leave petition filed before the Supreme Court by Kingfisher was recently dismissed as withdrawn. 

Though the Competition Act was enacted in 2002, substantive provisions of the Act relating to anti competitive agreements and abuse of dominance were brought into force only on May 20, 2009. The Act inter alia provides that any agreement having an appreciable adverse effect on competition in India is void. The thrust of the Competition policy relating to anti competitive agreements is directed towards detecting and combating cartels. Agreements fixing prices or limiting or control production, supply or output of goods or services and market sharing arrangements are presumed to be void.

The Act empowers the Commission to initiate inquiry suo moto on its own motion or on receipt of any information from any person. Stringent penalty provisions have been prescribed. For instance, the Commission may impose penalties not exceeding 10% of the average turnover of the offender for the three preceding financial years. In case of a cartel, the Commission may impose upon each member of the cartel a penalty of up to three times the profits for each year of the continuance of the agreement, or 10% of turnover for each year of continuance of the agreement, whichever is higher. The Commission is also empowered to direct enterprises to terminate an agreement which is found to be anti competitive and direct the parties not re-enter into such an agreement. The Commission may further direct modification of an agreement which is perceived to have an anti competitive effect.

Like other developed economies, now India too has a comprehensive anti trust regime. The law will continue to evolve with experience in order to meet with the needs of a dynamic market and the then prevailing market situation. A lot has to be learnt from the experience of countries like the United Kingdom and the United States in dealing with similar situations. It can perhaps be said that the advent of the new law has opened up new dimensions to commercial law, regulatory practice and corporate compliances.

Zerick Dastur is a Senior Associate of J. Sagar & Associates, Advocates & Solicitors. He is a part of the Firms Competition Law practice and specializes in Corporate, Commercial & Securities Law.

Decriminalizing Homosexuality : Supreme Court to Hear Petitions in April

Source : Sify

The Supreme Court Monday fixed April 19 for hearing a bunch of petitions challenging a Delhi High Court judgment decriminalising homosexual relationship among consenting adults.

'It is pure question of law and the interpretation of the statute,' said Justice G.S. Singhvi and Justice Asok Kumar Ganguly while directing all the parties to file their pleadings within eight weeks.

The bench also directed the court registry to complete all services of the notices relating to the case and gave it two months time.

The court said that it was fixing two days for hearing the matter and might consider extending the same depending on the 'vastness and extent of the arguments'.

When senior counsel Fali Nariman suggested that let the court grant leave and allow parties to complete their pleadings, the court said then it will take two to three years for the case to reach the regular hearing stage.

The court said that every petitioner would get time to present the case.

The court rejected the plea by one of the petitioners to implead the armed forces. The Army Act describes homosexuality as an act of 'unbecoming conduct' and 'any disgraceful conduct of a cruel, indecent or unnatural kind'. The offenders are liable to face court martial.

In a landmark judgment July 2, 2009, the Delhi High Court ruled that section 377 of the Indian Penal Code, which criminalises gay sex among consenting adults, was a violation of fundamental rights.

That ruling followed a public interest litigation filed by NGO Naz Foundation along the activist group 'Voices Against 377'.

The high court ruled that any discrimination violated the right to equality. Section 377 outlaws any act against the order of nature. It recommends jail term of up to 10 years for violators along with fine.

Gay activists say police misuse the section to harass them.

Find the Delhi High Court's Judgment in Naz Foundation v. Govt. of NCT of Delhi & Others here.

Final Verdict on Kasab Death Penalty Appeal on February 21

Source : Indlaw

The Bombay High Court today fixed February 21 as the date for delivering its final verdict on the confirmation plea of Maharashtra government over the death penalty awarded to Pakistani terrorist Ajmal Kasab by a designated court here for his role in the 26/11 Mumbai terror attacks. 

On the same day, the court will also deliver its verdict on the state plea challenging the acquittal by a lower court acquitting two LeT suspects Faheem Ansari and Sabauddin Ahmed for lack of evidence. 

A Division bench consisting of Justice Ranjana Desai and R V More, who had reserved its order till today, after hearing three months lengthy arguments by the Defense and prosecution in which the latter on one hand urged the court to confirm the sentence to Kasab, while on the other hand defence prayed the court to convert the death sentence into Life. 

In the plea moved by state Government, the public prosecutor Ujjwal Nikam justified the death sentence awarded to Kasab and urged for its confirmation, saying that he had committed heinous crime by participating in terror strikes in which 166 persons were killed. 

Justifying the lower court verdict, the prosecution had cited certain Apex Court ruling and described Kasab as 'Shaitan, a devil' and 'a killing machine', who deserved the death penalty. 

While, on the other hand, Kasab's defence has pointed out certain loopholes in the trial faced by him and alleged that some important witnesses had not been examined and urged for a fresh trial which was rejected by the court. 

Kasab, in his appeal, against his conviction and the death sentence, denied that he had come from Pakistan along with other terrorists in a dingy. 

He said he had come by Samjhauta Express to Delhi and later went to Mumbai to see Hindi films. He was arrested at Juhu beach and was in police custody when the terror attacks took place. 

About Faheem and Sabauddin, both Indian citizens, the state had argued that the trial court had erred in acquitting them. Faheem had got a passport from Pakistan on the basis of fake documents and both were involved in preparing maps for the terrorist attacks. 

The Defence of both the accused denied their client's role in the 26/11 attacks and submitted that holding forged Pakistani passport did not prove Faheem's role in the attacks. 

The court was told about Sabauddin the prosecution had produced only one witness to prove that Faheem gave map to Sabauddin but did not provide any corroborative evidence and argued that the trial court had rightly given the benefit of doubt to both the accused. 

On May 6 lasy year, the trial court had given capital punishment to Kasab but acquitted Faheem and Sabauddin on the ground that evidence against them was doubtful.

ND Tiwari to Undergo DNA Test : No Interim Relief by Delhi HC

ND Tiwari

Source : Oneindia

Veteran Congress leader N D Tiwari will have to undergo a DNA test on a paternity suit filed by a youth claiming to be his biological son with the Delhi High Court today refusing to stay an earlier order asking him to give his blood sample.

As a result, proceedings would commence tomorrow before the court's joint registrar on the issue to ascertain the claim of 31-year-old Rohit Shekhar.

A bench of justices Vikramajit Sen and Siddharth Mridul reserved their order on an appeal by 85-year-old Tiwari challenging the High Court verdict, saying a frivolous petition had been moved against him as he was no way linked to Rohit's mother, Ujjwala Sharma, a Congress activist.

Senior advocate Jayant Bhushan, appearing for Tiwari, sought interim stay of the December 23 order ofthe single judge asking Tiwari to undergo the test. The counsel said, "there was no urgency as the petitioner (Rohit) has not sought any pecuniary relief".

"Can your client (Tiwari) file an affidavit that he would remain alive for next ten years?" the bench asked.

Bhushan, initiating the arguments, said Tiwari cannot be compelled by the court to give his blood sample and there were various Supreme Court judgements on the issue.

The single judge order asking the leader to undergo the test was erroneous as a legal and valid marriage was subsisting between Ujjwala and Bimal Prasad Sharma, the legitimate father of Rohit, he said.

Moreover, Ujjwala and Bimal had access to each other and there was conclusive proof that Rohit was their legitimate child, he said.

The words paternity and legitimacy, were interchangeable and no distinction can be drawn between them, Bhushan said.

Sudhir Nandrajog, counsel for Rohit, opposed Tiwari's plea saying the paternity and legitimacy were two distinct issues and the single judge had rightly asked him to undergo the test.

Rohit, who claims to be Tiwari''s biological son born out of the leader's relationship with his mother, had moved the court seeking a legal declaration to this effect.

The single judge bench had asked Tiwari to undergo the DNA test saying "the wider interest of a child of not being declared a bastard has to be kept in mind."

Tiwari, a former chief minister of UP and Uttarakhand who has held key ministerial portfolios at the Centre, was forced to resign as Andhra Pradesh Governor in 2009 amid allegations of sexual misconduct against him.

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