Independence and Autonomy of Competition Authority of India

Competition litigation is not necessarily adversarial in character. It is adversarial in cases of private action, in which there is a complainant and a respondent/defendant. The latter is the offending party, who faces charges of having perpetrated an offence under the competition law. In litigation not adversarial in character, the charge against the offending party is generally one of having acted against consumer interest and of having trenched competition in the market. The investigative agency or the Competition Authority (Authority) itself may initiate action in such non-adversarial litigation cases.

It is therefore imperative in this context that the Authority needs to be independent and autonomous in its functioning. Besides equity, fair play and justice which are the basic pillars of judicial (and quasi-judicial) adjudication, an underpinning that is equally an important pillar is the character of independence and autonomy for the Authority. Independence can generally be presumed in private litigation which is adversarial in character. But where the Government itself or a Government undertaking is the perpetrator of a competition offence and where action is brought against it under the competition law, independence of the Authority may not be presumed.

But some competition laws have provisions to ensure that the Authority inheres independence and autonomy.

Independence and autonomy constitute the cornerstone of an effective and efficient Authority. At the same time, one should not obfuscate the possibility of the Authority having unbridled power to question and annul Government policies and objectives thus diluting the sovereignty of the Executive. There should be a balance. The paper will address the said balance after reviewing the character of independence and autonomy of the Competition Authority in the new Indian competition law namely, Competition Act, 2002.