Addressing The Long Existing Void In India’s Anti-Trust Penalty Regime

Ritesh Yadav, B.Com. LL.B., Institute of Law, Nirma University, Ahmedabad

Kushagra Raghav, B.A. LL.B., Institute of Law, Nirma University, Ahmedabad

ABSTRACT

Any legislation is not complete without a well-established and systematic procedural framework which ensures consistency and uniformity in its application. This concern is apparent when the focus is laid upon the non- existing penalty framework of the Indian Competition law regime, which since, coming into force in India, has not only been devoid of a well-laid out framework for penalty imposition but has not had any guidance whatsoever even on the basic aspects of procedure concerning penalty impositions. There are no set rules or regulations with regards to the procedure that has to be followed by the Competition Commission of India [‘hereinafter ‘commission’] in imposition of penalties.

As a result inconsistency and ambiguity have accrued in penalty imposition across cases concerning anti-competitive conduct, so much so that the constitutionality of CCI’s power to impose penalties was even put up to question before the Hon’ble Delhi High Court, on the grounds that CCI’s power to impose penalty under section 27 [power to pass orders after inquiry into agreements or abuse of dominant position] of the Competition Act, 20021 were “vague, discriminatory and arbitrary”.

In light of the same, the authors attempt to revisit the existing penalty imposition framework in India, identify its shortcomings and consequently suggest a draft penalty guidance framework that is best suitable for India, by taking reference from judicial precedents and from foreign jurisdictions which are equipped with elaborative framework on penalty imposition.