SORRY, MY FRIENDS, SORRY 

(By K. Ramakumar, Sr.Advocate, High Court of Kerala)

I was taken aback when a public interest litigant, a Lawyer, was zealously arguing that Article 220 of the Constitution of India forbids registration of a case against retired Judges. The Bench, which was hearing the matter, naturally, got perturbed. The argument was outrageous, if not, near nonsensical. It is difficult to contain oneself on such occasions in spite of the warning administered by the Supreme Court in Lanka Venkateswarlu v. State of Andhra Pradesh  ((2011) 4 SCC 363):

“It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice”.

In another court a Counsel who stood up when the case was called was asked by the Judge “What are the prayers in the Writ Petition?” May be a greenhorn, he appeared to fumble and not able to comprehend what is meant by a prayer.

I am afraid such instances are not only on the increase but are becoming the order of the day. Counsel, whatever be his standing, are not expected to appear before the High Court, without understanding the nuances of Law, at any rate without adequate preparation. Counsel’s job is to render assistance to the Court and not to hinder speedy disposal of cases. Equipping oneself therefore, is of paramount importance, which these days is altogether forgotten.

If I may be permitted to recount a personal event, when I appeared in my first Writ Petition, which related to the validity of dismissal of a Peon from the Indian Institute of Technology, Meenambakkom, the Judge asked me whether a writ will lie against the IIT. To be frank, I was not able to understand what the Judge was asking me. Articles 12 and Article 226 of the Constitution of India, were then Greek and Latin to me. Finding me fumbling the Judge was gracious enough to grant me time to work up and ultimately it was held that no writ will issue, but later the view was upturned.

Fortunately in the High Court of Kerala such questions are rarely asked and therefore counsel are emboldened to seek writs against private bodies, social clubs and the like with the Registry not even raising objections how a petition under Article 226 of the Constitution of India is maintainable. Will you believe me or not ? When an application was presented under the Travancore Cochin High Court Act, the Registry made a note on the docket that there is no such Act and it is repealed. Even now the High Court of Kerala functions under that Act, which was intended to run a Part-B High Court under the Constitution of India.

The fall out ? Standards in the legal profession become lower and lower costing the litigant public heavily as callous carelessness, ineptitude, indifference to quality etc., increase at all levels.

Speaking again personally, the first ten years of my practice was thrilling, adventerous and challenging as learning and hard work then were respected and recognized. It counted as well, until the “How to win cases and influence Judges” syndrome surfaced. (Due apology to Dale Carnegie). Some people perfected it. Though an aberration of yester years, the damage remains to be repaired even now leaving legal practitioners with a craving for hard and sustained work with no job satisfaction and the poor litigant with uncertainties, delays and conflicting decisions.

What is the role of a counsel in Court ? See what the Supreme Court said in A.S. Mohammed Rafi v. State of Tamil Nadu (2011 (1) KLT  39 (SC):

“Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

This therefore is a sacred duty. It is not for nothing that the only profession that finds a place in the Constitution of India is that of Legal Practitioners (Article 22). Long back Justice Hugo Black of the United States Supreme Court declared “Lawyers in Criminal Courts are necessities, not luxuries”.

How then can a Lawyer forget the fact that he is representing the cause of a fellow citizen and go unprepared and ill-equipped in a Court of Law particularly in the High Court which should be a place of excellence and of no help or assistance to the Judge, who is doing a sacred duty as the functions of the Court are also for “Parithranaya Sadhoonam”. Recently again in Lanka Venkateswarlu case, the Supreme Court severely criticized the following observations of the Andhra Pradesh High Court:

“This is a classic case how the Government Pleaders appointed on the basis of merit and ability” (emphasis supplied) are discharging their function protecting the interest of their clients.

The Apex Court said this about the aforesaid observations:

“We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.”

Do, we, the Lawyers of the High Court of Kerala, the highest court of the State (architectural too) deserve also only such sarcasms? Are we there to receive reliefs or rebuffs? And can we call each other learned as we do now? If not, equip yourself first, only then attempt to appear in the High Court, or for that matter in any Court which is now guaranteed by the notification implementing the provisions of the Advocates’ Act.

I have also half a mind to implore the inimitable Sri Kelu Nambiar, the doyen of Kerala Bar not to stop with his last page but to continue to write in his racy style.

Undue Influence -- Principles Laid Down in Some Old Decisions which

Continues to be the Back Bone of the Law on the Subject

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. One of the vitiating grounds rendering contracts and transfers voidable is undue influence.

2.   Undue influence is sometimes described as ‘moral coercion’ as distinguished from ‘physical coercion’. In Allcard v. Skinner’ Lindley L.J.(L.R. 1887 (36) (L.D.145) observed “As no Court has ever attempted to define fraud, so no Court has ever attempted to define undue influence. The equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual influence, tyranny and with infinite varieties of fraud.” Sir F. Pollock says that “Undue influence consists in any influence brought to bear upon a person entering into an agreement or consenting to a disposal of property which having regard to the age and capacity of the party, the nature of the transaction and all the circumstances of the case appears to have been such as to preclude the exercise of free and deliberate judgement.”

3. Undue influence is defined in Section 16 of the Indian Contract Act. The scope of that section is somewhat narrow and hence the equitable  principles laid down in English cases have been applied to Indian cases. In Rama Pattar and sons v. Manickam (ILR 58 Mad. 454) it was ruled that the English authorities also should furnish a guidance in the application of the rule.

4. To understand the true import of the plea and the law on this subject, one will be advised to look into some of the leading cases. The leading English case is that of Allcard v. Skinner (L.R. 1887 (36) (L.D.145). Here Miss Allcard joined a sisterhood of which the defendant was a religious superior. Miss Allcard made large gifts to the religious superior and then left the sisterhood and some years after she repudiated the gifts and brought an action for the return of her properties. The Court expressed that the relationship between Miss Allcard and the religious superior was such as to raise a presumption of undue influence. Lindley L.J. said “To protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws.” Cotton L.J. said “The Court interferes not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy.” Lindley L.J. says that the doctrine is based on the principle that persons should not be victimized by others and not on the ground that persons should be saved from the consequences of their own folly and imprudence. Cotton L.J. enunciates the same principle and says “that the doctrine is based on public policy in order to prevent the relations which existed between the parties and the influence arising therefrom from being abused.”

5. Rhodes v. Bate (l.R. 1886 (1) CL.252 is another English case. Here, Rhodes was living with her brother in law, who became indebted to Bate in a large sum of money and for this debt Rhodes along with her brother in law signed bonds in favour of Bate charging almost the whole of her estate. Subsequently she complained that the documents were obtained by undue influence exercised on her by her brother in law as well as Bate who stood in confidential relations to her. Turner L.J. set aside these transactions holding that “where confidential relations exist, those standing in such relations cannot entitle themselves to hold the benefits unless they can show that the persons who have conferred the benefits had competent and independent advice. The Lord Justice stated this to be “ a settled general principle of the Court.” In such cases neither does the age nor the capacity of the person conferring the benefit affect the principle.

6.   Besides the English cases cited above, there are some important Indian cases on this topic, in Sita Prasad v. Prabhu Lal (1888) ILR 10 ALL.535) the plaintiff who was wrongly deprived of all his properties by his relations sought the help of a rich man in order to recover his properties and while living under the protection of the latter he made to sale and gift of all his properties to the rich man. It was held that the relationship between the parties was such as to cast upon the latter the obligation of satisfying that the transactions were honest and bona fide. Here Straight J. observed “Free and voluntary contracts of persons will not be interfered with or disturbed by Courts of law” however ill considered or foolish the contracts might be. “What the Courts will do is to see that where one person is so situated as to be under the control and influence of another, such other does not unduly and unfairly exercise that influence and control over such person for his own advantage or benefit.”

7. In Inche Noniah Bine Mahommad Tahir v. Allie Bin Omar Bin Abdulla Bahashuan, (C 1928) 56 MLJ 349 P.C.) the plaintiff, an old lady made a gift of almost the whole of her properties in favour of the defendant who was her relation and who was managing her affairs and then she repudiated the gifts and claimed to recover the properties. In this case, the donee had the advice of a lawyer who received instructions from her and read out and explained the contents of the deed to her and also informed her that the deed was irrevocable. This lawyer was one engaged by the donee. Their Lordships found that this Lawyer acted in perfect good faith. Another lawyer on the instruction of one of the donor's relatives, saw the donor in order to caution her and perhaps to dissuade her from making the gifts. The old lady was angry at the coming in of this lawyer and said she had made the deed voluntarily. In spite of all this evidence their Lordships set aside the deed holding that there was undue influence. They held that the former lawyer called in by the donee was not an independent and disinterested adviser and the advice of the second lawyer was not a substitute for independent advice. They referred to Rhodes v. Bate, and said “It is not sufficient that the donor should have an independent advisor unless he acts on his advice. The same influence that produced the desire to make the gift would produce disregard of the advice to refrain from executing it and so defeat the rule.” The facts of this case show with what strictness the principle of law is enforced. Their Lordships set aside the gift and stated “that they regard it as most important from the point of view of public policy to maintain the rule of Law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption.” The Judicial Committee followed the decision in Allcard v. Skinner which divided the gifts into 2 classes “first, where the gift was the result of influence expressly used by the donee. Secondly, where the relationship between the donor and the donee have been such as to raise a presumption that the donee had influence over the donor. In the first class of cases, gifts are set aside on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Courts interfere not on the ground that any wrongful act was committed by the donee but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”

8. Tungabai v. Yeshwant (ILR 1945 Bom.189 P.C.) is a direct case on this point. Here a husband was heavily involved in debts and his submissive wife gave security of all her Sridhanam property to her husband’s creditor. Their Lordships held that these facts raised a presumption that the wife was acting under the influence of her husband for whose benefit the security was executed. They relied on the principle enunciated in Allcard v. Skinner and added “It is unnecessary to decide whether there was actual fraud by the husband; it is enough to show that the wife was acting under his influence and not as a free agent.”

9. There are many cases, where persons heavily involved in debts have roped in their dependant relations and made them to stand surety or give security for their relations, signed documents undertaking the liability. In all these cases the documents have been set aside and relief was granted to the dependant relations. Narayandoss Balakrishna Doss v. Buchraj Chordia Socar, Rama Patter and Brothers v. Manikkam and Tunga Bai v. Yeswant, are cases of this type. In all these cases the creditors who obtained the security were not allowed to retain the benefits of the security on the ground that they were aware of the existence of the fiduciary relationship between the debtor and the surety and that they (the creditors) are under the same disability as the party who occupied the position of confidence.

10. Yet another decision of the Privy Counsel reported in A.N. Palanivel Mudaliar v. Nelavathy Ammal (1937) (i) MLJ 719 (P.C.) is noteworthy. In this case there were three sisters. Their large estate was under litigation. The husband of the eldest sister took the management of the estate and carried on the legal proceedings and recovered the estate. As remuneration for his services the husband of the eldest sister obtained a promissory note for a sum of `15,000/- from all the three sisters and subsequently filed a suit to recover the money. The  eldest sister admitted the claim and suffered a decree for a third of the amount. So far as the younger sisters were concerned their Lordships refused to pass a decree against them holding that the eldest sister was in a position to influence her younger sisters and that the plaintiff as their agent stood to them in a position of active confidence and was in a position to dominate their will and that necessary proof of good faith on his part was wanting. The claim on the pronote was dismissed against the two younger sisters but the alternative claim for remuneration for services rendered was granted. In this case also the plaintiff was not guilty of fraud and there was not proof of fraud or exercise of any influence. The contract was set aside on the ground that plaintiff was in a position of active confidence.

11. These cases lay down the principle that persons who have influence over others cannot retain the benefits of the transactions unless they prove that the persons who conferred the benefits had independent and disinterest advice. It is not necessary to prove by direct evidence that any deception or fraud was practiced. There need be no proof of fraud or imposition or any specific act of undue influence. It is enough to establish that confidential or fiduciary relationship existed between the person conferring the benefit and the person deriving the benefit. When once you establish this relationship and when the transaction in question was to the detriment of the person conferring the benefit, you have made out a case of undue influence and then it will be incumbent on the person who derived the benefits to prove his good faith by establishing that the other party had independent and disinterested advice.

12. What is confidential or ‘fiduciary relationship’? A parent stands in a fiduciary relation to his child, a guardian to his ward a physician to his patient, a lawyer to his client, a husband to wife, an agent or manager to the pardanashin women, a spiritual advisor to his disciple, a trustee to his beneficiary. The list is not exhaustive. These and other similar relations where one owes a duty and is bound to take care of the other, will come under the category of fiduciary relations. The relationship itself attracts the applicability of the rule.

13. Where no confidential or fiduciary relationship exists, then age and capacity are important elements in determining whether the consent was free. Section 16 of the Indian Contract Act is deals with this subject.

14. The presumption of undue influence arising from the special relationships mentioned above is rebuttable. It is open to the transferee to show that the transaction was clearly understood by the transferor and “that it was the result of his mental or conscious act and that he really understood and meant to make the transfer and was a free agent in the transaction.” The relationship between the donor and the donee does not necessarily preclude the making of a transfer.” In Ismail Mussajee Mookerda v. Hafiz Bon, the mother who was living with her daughter made a gift of her properties to the daughter disinheriting her son whose antecedents were not good and who was on terms of hostitlity to the mother. In view of these facts the gift in favour of the daughter was considered natural and affirmed. Their Lordships said that the “mere relation of daughter to mother suggested nothing in the way of special influence or control by the daughter.”

15. Burden of proof --  The burden of proving that a contract is vitiated by undue influence is on those who set up the plea. Section 16(3) of the Indian Contract Act deals with the three aspects. (1) that the relation subsisting between the parties should be such that one of the party is in a position to dominate the will of the other, (2) the dominant party obtains an unfair advantage over the other and (3) that the dominant party uses the dominant position to obtain that unfair advantage. The party who pleads undue influence has in the first instance to prove only the first and second ingredients.

16. The leading case on this question of onus is Ragunath Prasad v. Sarju Prasad. (1923) L.R.51 I.A.101 : 46 M.L.J. 3 to (P.C) Here Lord Shaw says “Error is sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Were they such as to put one in a position to dominate the will of another?” In other words it is only when you establish that the party deriving the benefit was in a position to dominate the other, the question will arise whether the position has been used to obtain an unfair advantage.

17. Section 111 of the Evidence Act enunciates the rule. It says “Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.”

18. The foregoing principles are also embodied in Section 61 of the Indian Succession Act and in Section 89 of the Indian Trust At. The undue influence which renders contracts or transfers voidable will invalidate Wills under Section 61 of the Indian Succession Act. Under Section 89 of the Indian Trusts Act, trustees are similarly prevented from retaining the advantages gained by them as trustees to the detriment of the beneficiary.

Indian Competition Law : An Overview

(By Shiju Varghese Mazhuvanchery)*

The merger and acquisition provisions of the Competition Act, 2002, came into force on 1st June, 2011 (Act No. 12 of 2003, as amended by the Competition (Amendment) Act, 2007. S.O. 479 (E) Ministry of Corporate Affairs dt.4.3.2011 appointed 1st June, 2011 as the date for coming into force of Sections 5,6,20,29,30 and 31 (All these sections deal with mergers and acquisitions)). With this, all the provisions of Indian competition law have been notified and enforced. India is one among the hundred odd countries that adopted a ‘modern’ and ‘effective’ competition law in the last two decades. Competition law is often defined as the framework for regulating competitive activity (M. Furse, Competition Law of the EC and UK (4thed, Oxford: Oxford University Press, 2004), p.l.). It protects the process of competition. The common features of competition laws all over the world are: Provisions relating to the prohibition of anti-competitive agreements including cartels, abuse of dominant position and scrutiny of mergers from a competition stand point; and creation of an independent quasi-judicial body for an efficient enforcement of the law.

Framing  of  Indian  Competition  Act,  2002

Competition Act, 2002 cannot be called the first competition law in India. The Monopolies and Restrictive Trade Practices Act, 1969 addressed similar issues as the 2002 Act. When one analyses the history of competition law in India, three distinct phases can be discerned (For a detailed account of the history of Indian competition law see, Mazhuvanchery, “The Indian Competition Act: A Historical and Development Perspective”, Law and Development Review, Vol.3, No. 2, Article 8, (2010).).The first phase is the initial years of independence, which is characterized by an absence of competition law. The requirement of obtaining licenses for establishing and expanding of industrial operations resulted in entry barriers to new entrants. Similarly, the control on raising funds from the market also limited the entry of new players. This led to the emergence of a number of industries exercising monopoly power in many sectors. The second phase, beginning in the Sixties saw the unraveling of many political events that led to the enactment of a number of legislations in the field of economic activity. Controlling big business was the major aim of all these enactments.

The framing of India’s first competition law, the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) took place during this period. Prevention of the concentration of economic power to the common detriment; control of monopolies; prohibition of monopolistic trade practices; and prohibition of restrictive trade practices were the principal objectives of the MRTP Act. The MRTP Commission was established to oversee the implementation of the Act. The third phase in the development of competition law started in the year 1991. The massive fiscal and balance payment crisis that climaxed in that year led to a series of economic reform measures. The Industrial Policy, 1991 announced many far reaching changes on the economic front. The policy announced a series of reforms in industrial licensing; foreign investment; foreign technology agreements; public sector policy and the MRTP Act. The MRTP Act was identified as a major impediment to economic growth. Subsequent to the policy statement, the MRTP Act was amended in the same year. The most important amendment was the omission of Chapter III, which dealt with the concentration of economic power. This resulted in a situation where there was no prior scrutiny of mergers and acquisitions from a competition law perspective, leading to a spate of mergers and acquisitions mainly involving multinational corporations (For a detailed discussion see N. Kumar, Mergers and Acquisitions by MNEs — Patterns and Implications, 35 Economic and Political Weekly 32 (2000), 1851-1858.).Keeping pace with the reform process, the Central Government in 1999 announced the setting up of a commission to examine the relevance of the MRTP Act and to suggest an updated competition law in line with developments taking place at the international level. The High Level Committee on Competition Law and Policy (Ragahavan Committee) found that the MRTP Act was limited in its sweep and hence failed to fulfill the need for a competition law in an age of growing liberalisation and globalisation. It was noted that the MRTP Act, in comparison to the competition laws of many countries, was inadequate to foster competition in the market. The Committee recommended the scrapping of the MRTP Act and the enactment of a new competition law.

On the basis of the recommendations of the Raghavan Committee the Competition Act,2002 (the Act) was enacted replacing the MRTP Act. The Act deals with anti-competitive agreements, abuse of dominant position and anti-competitivecombinations. It establishes an independent body, the Competition Commission of India (CCI) for the enforcement of the provisions of the Act. Even before the major provisions were notified, the Act underwent major amendments in 2007. The creation of a Competition Appellate Tribunal to decide appeals against the orders of CCI was one major change brought by this amendment. The amendments were necessitated by the filing of a Writ Petition in the Supreme Court of India challenging certain provisions of the Act (See Brahm Dutt v. Union of India (2005) 2 SCC 431. See also Statement of Objects and Reasons, Competition (Amendment) Act, 2007. For a discussion on the contentions and the order of the Supreme Court in this case see, A. Bhattacharya, India’s New Competition Law: A Comparative Assessment, 4 Journal of Competition Law and Economics 3 (2008), 609-610.).After a hiatus of seven years, provisions relating to anti-competitive agreements and abuse of dominant position were notified in the month of May, 2009 (Though enacted in 2002, only provisions relating to the advocacy functions of CCI were enforced from 2003.). Section 66 which repealed the MRTP Act, 1969 was enforced on 1st September, 2009 (S.O.2204 (E) Ministry of Corporate Affairs dt.28.8.2009.). With that repeal, thirty years of MRTP regime - often described as a draconian legislation by the industry - came to an end. Now, with the coming into force of the merger and acquisition provisions, the Act has come into force in its entirety.

Salient  Features  of  the  Act

There are three ways in which the effect of monopoly can be felt in the market: competitors deciding to co-operate instead of competing (anti competitive agreements); abuse of dominant position; anti competitive mergers and acquisitions. As noted earlier, the Act contains provisions to deal with anti-competitive practices in the market. Each of these issues is discussed separately.

Anti-competitive  agreements

Even if there are a number of competitors in the market, if all of them decide not to compete but to cooperate, the benefits of competition will not accrue to the consumer. Here the group of competitors is acting like a single dominant firm. Price cartel is a classic example of this. These types of agreements can be broadly divided into horizontal agreements and vertical agreements. A horizontal agreement is an agreement between firms operating in the same field.  For example, an agreement between two car manufacturers is a horizontal agreement. These agreements can be a price fixing agreement (consumer is denied competitive prices), market sharing agreements (consumer is denied a choice of products), production quota agreements (here again the consumer is denied competitive prices), bid rigging and collusive bidding agreements (the purchaser is denied the benefits of a tendering process). The Competition Act proscribes these types of agreements and casts a presumption in favour of the anticompetitive nature of these agreements (Section 3 deals with anti competitive agreements. S.3(3) specifically deals with horizontal agreements.).A vertical agreement is an agreement between firms operating at different levels of production. An agreement between a car manufacturer and a dealer is an example of such an agreement. As the anticompetitive effect of such an agreement is lesser compared to a horizontal agreement, competition law views these agreements leniently. In order to come within the prohibition of the Act, the anti competitive effects of the agreement in the market has to be demonstrated (Section 3(4).). The Act gives an inclusive list of such agreements. The agreements included in the list are: Tie in arrangement, exclusive supply agreements, exclusive distribution agreements, refusal to deal and resale price maintenance (Section 3(4)(a)-(e).).

Abuse  of  dominant  position

A dominant undertaking can abuse its dominance by resorting to a number of practices like charging high prices, restricting quantities etc. The dominant position can also be used by a firm to protect its dominance by making it difficult for potential entrants to enter the market or forcing the existing players to leave the market. Predatory pricing is an example of such a practice. These actions are prohibited as anti-competitive (Section 4.).Abusive practices by a dominant firm can broadly be divided under two categories, viz., 1) practices adopted with an aim to exploit its position of dominance, and 2) practices adopted to protect the position of dominance by making it difficult for potential competitors to enter the market. There are different yardsticks adopted by legislations in determining the position of dominance. One approach is to define dominance on the basis of market share held by the undertaking in question. The repealed MRTP Act adoptedsuch an approach. Another approach is to define dominance on the basis of the capacity of the undertaking in question to distort the market to its advantage. The Indian Competition Act, 2002 adopts such an approach (Explanation (a) to Section 4.).

Anti  competitive  mergers  and  acquisitions

Market power can be achieved through consolidation of competing enterprises. Mergers, amalgamations, acquisitions, takeovers etc., are ways of consolidating market power. As these consolidations have direct bearing on competition, the law treats this issue seriously (Sections 5 and 6.).As in the case of agreements, mergers can also be classified into horizontal and vertical. In addition to these there are conglomerate mergers that are between enterprises operating in different markets. Horizontal merger is potentially anti­competitive as it involves the integration of two firms operating in the same line of commerce. It accounts for a substantial number of all the mergers taking place across the globe. These mergers can have both anti competitive as well as pro-competitive effects. A competitor taking over a failing firm can have pro competitive effects. Similarly, merger of two competing firms can increase efficiency. A number of factors are taken into consideration in determining whether the merger is anti-competitive or not (Section  20 (4) lists out those factors.).As the cost of disentangling a merger can be prohibitive, what is generally followed is to mandatorily subject mergers above a certain threshold to compulsory pre merger scrutiny. The Indian Act also follows this approach. Section 5 of the Act prescibes the threshold limits. However, these limits have to be enhanced or reduced by the Central Government every two years on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies (Section  20 (3).  In exercise of this power the threshold limit has been enhanced by 50 % vide S.O.480 (E) Ministry of Corporate Affairs dt. 4.3.2011.).

Conclusion

CCI has been entertaining informations on anti competitive agreements and abuse of dominat position for the last two years. It has passed many orders, which are accessible on its website (www.cci.gov.in).The Competition Appellate Tribunal (CompAT) is constitued under the Chairmanship of Hon’ble. Arijit Pasayat. The Supreme Court recently decided a significant case on the respective powers of CCI and CompAT (Competition Commission of India v. SAIL, (C.A. No. 7779 of 2010, decided on 9.9.2010).). With the coming into force of merger provisions, these institutions will assume greater significance in the Indian legal regime, especially in the corporate sector.

*    Affiliated to Department of Policy Studies, TERI University, New Delhi. He is involved in the teaching and research of Competition Law and Regulatory Laws.