Legislating Around The Court: The IBC Amendment Act, 2026 And The Erosion Of Ex-Ante Antitrust Scrutiny In Insolvency Resolution
- IJLLR Journal
- 7 days ago
- 1 min read
Ashika Chauhan, BA LL.B. (Hons), University School of Law & Legal Studies, Guru Gobind Singh Indraprastha University.
ABSTRACT
In January 2025, the Supreme Court of India in the case of Independent Sugar Corporation Ltd. v. Girish Sriram Juneja ruled that the provisions of Section 31(4) of the Insolvency and Bankruptcy Code, 2016 which mandates sanction of a resolution plan by the Committee of Creditors after first securing an approval by the Competition Commission of India for a “combination”, is compulsory and not directory. After fifteen months, the Parliament passed the Insolvency and Bankruptcy Code (Amendment) Act, 2026, making an amendment in the same proviso that the Court had interpreted as requiring CCI approval before the vote of CoC, to now instead allow CCI approval to be taken after the vote of CoC but before filing the Plan before the Adjudicating Authority. This article examines whether the amendment, in force from 26 May 2026, functionally reopens the sequencing gap the Supreme Court closed. It states that although the amendment addresses real concerns about delay and the costs associated with duplicative filing of applications, it does so by moving the substantive antitrust review to a point where the CoC’s commercial position is already settled, thereby watering down the nature of merger control as an ex-ante factor as the Court had earlier considered it to be an integral part of Section 31(4). It places this change in the context of the fundamental conflict between the time-bound resolution goal of the IBC and the gatekeeping role of the Competition Act, and suggests a narrower solution that will continue to maintain both.
