SC slams Centre: it’s our turf, lay off

The PIL had challenged the appointment of a bureaucrat, Commerce Secretary Deepak Chatterjee, as chairman of the commission which is meant to replace the quasi-judicial Monopolies and Restrictive Trade Practices Commission (MRTPC) set up at the height of the socialist phase in 1969.

At the instance of the bench, Attorney General Soli Sorabjee gave an undertaking that till the court gives its go-ahead, the Competition Commission will not perform anything that can be construed as a judicial function.

Three years ago there was a similar turf war between the executive and the judiciary over the appointment of a retired judge as the MRTPC chairman. The then Chief Justice of India A S Anand declined to swear in the chairman as he had been selected by the then Law Minister Ram Jethmalani without consulting the Supreme Court.

Earlier today, calling the appointment a ‘‘direct onslaught on the high courts,’’ the bench said: ‘‘If these things were allowed to continue, then the day is not far when the bureaucrats will replace all the judges in the country.’’

The court said that when the High Court was the executing court for the orders passed by the commission, how could a bureaucrat head the commission?

‘‘It is a direct encroachment on judicial functioning. It is a direct onslaught on the High Courts. Some years later, the government will say that it will replace all the 26 judges of the Supreme Court with bureaucrats. You must restrain your hand,’’ the Chief Justice observed.

This sudden development forced Finance Minister Jaswant Singh to cancel his programme the same afternoon of swearing in Chatterjee as chairman and Company Affairs Secretary Vinod Dhall as member-secretary of the Competition Commission.

That the petition popped up precisely on the day the two were scheduled to take charge of the Competition Commission is curious given that their names were announced more than four months ago and the law allowing a non-judge to be appointed as its chairman was enacted last year.

Section 8 of the Competition Commission of India Act 2002 provides that the chairperson or a member can be either a former high court judge or somebody who has ‘‘special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accounting, management, industry, public affairs, aministration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission.’’

A selection committee headed by law minister Arun Jaitley chose Chatterjee and Dhall for the two posts on the strength of their association with the ongoing process of liberalisation.

Appearing for the PIL petitioner, senior advocate R K Jain took umbrage to the fact that the executive appointed the chairman of a ‘‘tribunal’’ without consulting the Chief Justice of India. More importantly, citing Supreme Court judgments, Jain questioned the legality of appointing a non-judge as the head of a body that will ‘‘primarily dischage judicial functions.’’

Referring to Section 8 of the Act, Jain also pointed out the possibility of a former high court judge being appointed as a member of the Competition Commission to serve under the bureaucrat-turned-chairman.

This prompted Chief Justice Khare to comment sarcastically that the Government at this rate might one day think of appointing bureaucrats to the bench of the Supreme Court as well.

The Government will in due course file a counter affidavit in which it is expected to justify Chatterjee’s appointment by arguing that the Competition Commission is more a regulatory body calling for specialised knowledge than an adjudicatory body requiring judicial expertise.

The Competition Commission is akin to regulatory bodies such as SEBI, IRDA and TRAI which are not headed by retired judges.

The Government will also stress on the radical shift in outlook post-liberalisation. While the old MRTPC Act was aimed at preventing ‘‘the concentration of economic power to the common detriment,’’ the new Competition Commission Act only seeks to check ‘‘practices having adverse effect on competition.’’

In other words, the Competition Commission will not discourage any company from growing big; it is only meant to restrain the company from abusing its ‘‘dominance’’ or resorting to any ‘‘anti-competition’’ practices. Its mandate covers mergers, acquisitions, amalgamations and takeovers of big corporate bodies with assets worth at least Rs 1,000 crore or whose annual turover is more than Rs 3,000 crore.