ABUSE OF DOMINANT POSITION IN INDIA UNDER COMPETITION

ACT, 2002 - A CRITICAL STUDY

Synopsis submitted in the partial fulfilment of the

requirement for the award of Research Degree of the
Master of Laws

FOR THE DEGREE

OF
MASTERS IN LAW (LLM)

Miss. Shambudi Sujatha

Roll no: 2581-21-836-008

UNDER THE GUIDANCE OF

Dr. M. BENJAMIN

BHASKAR LAW COLLEGE

Affiliated to OSMANIA UNIVERSITY, HYDERABAD
(2021-2023)
 INTRODUCTION

The Competition Act1, which had been enacted in 2002, was signed into law by the
President on January 13, 2003. On May 15, 2009, Section 4 of the Competition Act,
which addresses "Abuse of Dominant Position," went into effect. A dominating firm is
one that has risen to the top of its market as a result of technological innovation 2 or
financial superiority3.

The public tends to infer that a company in a dominating position would use its power
to unfairly suppress other businesses. According to the Competition Act of 2002, a
dominating business is not automatically considered to be involved in anti competitive
behaviour. Abuse of a dominating market position is a hallmark of anti competitive
behaviour.

To have a dominating position in a market means that a business may take unilateral
action regardless of the strength or weakness of other firms in that market. In the
absence of competitive pressures, such a firm may ignore market norms and impose its
own terms of trade, pricing, etc. The extent of the abuse will determine whether or not
competition is limited or banned. Abuse may manifest itself in a number of different
ways, such as via price-fixing, the imposition of discriminatory or predatory pricing,
the restriction of product supply, or the barring of entry to the market.

Abuse of a company's dominating position is illegal under section 4(1) of the

Competition Act, 2002. As defined under subsection (2), "abuse of dominance" is a
phrase used in competition law to describe actions taken by a dominant corporation that
have the effect of stifling competition and, by extension, lowering the quality of life for
consumers. It enumerates anti-competitive actions like:

1 Act No. 12 of 2003

2 When a company has developed a groundbreaking new method of producing a commodity at a lower price than its
competitors, it has gained a competitive advantage. The Apple Company, maker of the iPhone, is an excellent
illustration of this phenomenon. Apple goods are favoured because of their cutting-edge engineering.
3 If a business is located near a port or a railway track, it will save money on transportation expenses. Compared to
a rival that is located farther inland and must pay more to get its goods to the port, this business has a distinct
financial advantage.

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 1. A trading condition or price that is unfair, discriminatory or predatory

2. Limiting the supply of goods or services

3. Restricting the development of goods or services on a technical or scientific basis

4. Access to the market is denied

5. The imposition of obligations that do not relate to the basic contract on other
contracting parties

6. By gaining entry into one market or protecting another market using a dominant
position.

A dominant position consists of the following elements:

1. Having a strong position;

2. Possessing a relevant position in a relevant market in India (both geographically

and as a product);

3. Positions such as these give enterprises the capability to operate independently of

their competitors.

In the event that the Competition Commission of India concludes that a dominant
position has been abused, it may issue orders under Section 27 of the Act, including
those that require the enterprise to stop abusing its dominant position, impose penalties,
award compensation, or recommend that the Central Government divide the enterprise.

Welfare of consumers and competition

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 Consumers benefit from competition. The price of a particular product will not be
competitive if only one enterprise sells it in a city. Prices for the same product will
usually be competitive if several enterprises are selling it. Several companies can form
a cartel to fix uniform prices, which is also anti-competitive under Section 3 of the
Competition Act. As an example, let us consider vegetables who are sold by street
vendors, which are more expensive than vegetables sold at urban markets. Due to the
city market's numerous vendors and competitive prices, the veggies are cheaper there.
Better products and lower prices are the results of competition between the various
sellers.

Trade Competition on an International Scale

The Sherman Antitrust Act4, the first piece of contemporary competition law, was
enacted in the United States in 1890. For a long time, other nations didn't have to worry
about enacting comprehensive laws to encourage trade competition. Fifty-three nations
signed the Havana Charter in 1948. The Charter's Article 46 addresses the
encouragement of international commerce and the prohibition of anti-competitive
practices. The International Trade Organisation (ITO) that was supposed to be founded
as a result of this Charter never materialised. After being agreed in 1947, the General
Agreement on Tariffs and Trade (GATT) took effect the following year. The goal of
this pact was to facilitate international commerce by lowering barriers to entry between
countries. This Agreement may be seen as the germinal instrument from which global
competition policy eventually grew.

The GATT dominated international trade policy until 1994. The World Trade
Organisation (WTO) was created in April 1994 by an agreement of 123 countries and
began operating on January 1, 1995. Nondiscrimination 5, reciprocity, binding and

4 Senator John Sherman, a major contributor to the Antitrust Act, was honoured with the Act's namesake. During
the American Civil War and into the late 19th century, Ohioan politician John Sherman (May 10, 1823 - October 22,
1900) played a significant role.
5 Most-favored-nation treatment and national treatment are examples of the non-discrimination principle in action.
To put it simply, the concept states that no country may provide preferential treatment to one nation over another in

3
 enforceable obligations, and openness are some of the pillars on which the World Trade
Organisation (WTO) rests. The overarching goal of these principles is to facilitate
international commerce and ensure that all countries have a fair playing field on which
to compete. Many formerly protectionist countries have switched to a market economy
since the advent of the World Trade Organisation. During the 1990s, India was one of
several countries that threw up their markets to international commerce. Thus, it
became important for governments to enact legislation designed to safeguard and
encourage domestic competition. However, before 2002, no Indian government had
ever enacted a comprehensive legislation on competition.

Constitutional Dimensions

The Constitution guarantees citizens the right to pursue any lawful profession, trade, or
economic activity under Article 19(1)(g)6. Freedom of commerce and industry does not,
however, exclude governmental monopolies, as stated in Article 19(6)(ii). 7 The 'free
trade and competition economy' clause makes it quite apparent that free trade and
competition are required. The second clause suggests that the Constitution provides
unique protection for State monopolies. According to Article 39(c), the government
must implement measures to ensure that the accumulation of wealth and the means of
production do not serve private interests above the public good. According to the
aforementioned section of the Indian Constitution, "Abuse of Dominant Position" is
strictly forbidden. The market's wealth is concentrated among a few large corporations.

Historical Background

international commerce. It is only fair that other nations get the same treatment as those given by a country that is
treated favourably.
6 Article 19(1)(g) – “All citizens shall have the right to practise any profession, or to carry on any occupation, trade
or business.”
7 Article 19(6)(ii) – “Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State … from making any law relating to the carrying on by the State, or by a
corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.”

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 The Monopolies and Restrictive Trade Practises Act of 1969 8 controlled market entry
and exit until 2002. With the previous law, monopoly control took precedence over
market competition. Since 1991, when India's economy and market were liberalised
and opened to free trade, the country's industrial strategy has been all over the place,
leading to the failure of the MRTP Act. For close to a decade, the MRTP Act served as
the market's guiding law. On May 22, 2000, the Raghavan Committee suggested a new
legislation to govern competition. As a direct result of this study, the Competition Act
of 2002 was enacted.

Competition Act, 2002

The Act principally prohibits anticompetitive agreements and the misuse of dominant
positions. It also governs the process of merging two companies into one. The Act
consists of IX chapters. The Chapter I Preliminary sets the stage by outlining the
document's abbreviated title, scope, effective date, and definitions. Regulatory
combinations and anticompetitive practises are covered in Chapter II. In Chapter III,
the Competition Commission of India is established and its make-up is described. The
authority, responsibilities, and roles of the commission are laid forth in Chapter IV. The
director's responsibilities are laid forth in Chapter V. Punishments may be found in
Chapter VI of the Competition Act.

The abuse of dominating positions: decisions

In Surinder Singh Barmi v. Board for Cricket Control in India (BCCI) 9, To what
extent BCCI abused its market dominance was the issue before the commission. The
BCCI argued that it should not be classified as a business since it is a nonprofit
organisation. Nonetheless, the DG found that the BCCI was operating as a business due
to the economic roles it played. The Board of Control for Cricket in India (BCCI)
argued that it is not dominant since it regulates cricket in India. Based on its analysis,

8 Act 54 of 1969
9 Case No. 61/2010, available at: http://www.cci.gov.in/May2011/OrderOfCommission/612010.pdf (last visited
03.06.2023).

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 the DG concluded that the BCCI was in a dominant position and had utilised that power
to engage into anti-competitive agreements. This exemplifies the principle that any
entity that generates economic benefit in the course of its operations may be considered
a business, even if its primary purpose is not profit.

In Maharashtra State Power Generation Company Ltd. (MAHAGENCO) &

Gujarat State Electricity Corporation Limited (GSECL) v. Coal India Limited
(CIL) and Ors10, in this case Fuel Supply Agreements (FSAs) between Coal India
Limited (CIL) and power generators were at the centre of the commission's
investigation into whether or not CIL had exploited its dominating position. Due
diligence by the Director General (DG) led him to the conclusion that Coal India
Limited abused its market dominance by engaging into Fuel Supply Agreements. The
DG noted that discriminatory and unreasonable terms had been negotiated by Coal
India Limited in a number of contracts. To prevent further violations of the
Competition Act, 2002, the Commission issued a stop and desist order to Coal India
Limited. The Commission also mandated a re-negotiation of the agreements' conditions
to ensure equality.

The free market economy is at danger when dominant businesses abuse the competitive
process. Abuse of dominant position charges have been handled by the Competition
Commission of India (CCI) since the introduction of Section 4 11 in 2009. CCI's orders
must be examined to see whether they comply with the language and spirit of the
Competition Act, 2002. The concepts used by the CCI in making its decisions on
competition problems need close scrutiny. Consumers will benefit from efforts to
increase market competition and efficiency. The wellbeing of the public is identical to
that of the consumers. We're all purchasers of something, at some point in time. This
research is so significant and timely.

10 Case No. 03/2012, 11/2012, 59/2012 available at:

http://www.cci.gov.in/May2011/OrderOfCommission/27/592012.pdf (last visited 04.06.2023).
11 Sec. 4 Abuse of dominant position

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 SCOPE OF THE STUDY

The 'abuse of dominant position' under Indian Competition Law shall be the subject of
this research. The focus is narrowed to an examination of the legal and policy concepts
governing competition. Case laws pertaining to "abuse of dominant position" will be
studied with a focus on the most significant cases in this area.

SIGNIFICANCE OF THE STUDY

Since its independence, India has maintained a "socialistic" 12 or "mixed economic

system"13 economy. Free trade and market liberalisation began in 1991. The principles
of free market competition form the basis of this system. However, a complete
competition legislation was not enacted until 2002 and finally became effective in
2009. For almost 18 years, from 1991 to 2009, no legislation was in place to safeguard
and encourage unrestricted market competition. With the economy shifting, the
Competition Commission of India has a difficult challenge in its responsibility to
regulate and prevent monopoly abuse.

OBJECTIVES OF THE STUDY

1. To Examine the concepts behind competitive policy;

2. To do comparative research of the 'abuse of dominating position' case statutes of

the United States of America and India.

12 According to the Cambridge Advanced Learners' Dictionary (Third Edition), 2008, socialism is "the set of
beliefs which states that all people are equal and should share equally in a country's money," while socialist political
regimes are "based on these beliefs." Article 39(c) of the Indian Constitution mandates that the government prevent
the accumulation of wealth by any one individual or group. Other directing principles are "welfare oriented," and
taking them together reveals that India has a socialist society. In fact, the term "socialist" may be found in the
preamble of our Constitution.
13 In a mixed economic system, individuals may own property and start their own enterprises, but the government
still has considerable influence over the economy. The economic model followed by India is not a "capitalist" one. It
also doesn't adhere completely to socialist economic principles. It combines elements from many distinct economic
models. That's why it's called a "mixed economic system."

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 3. To analyse and contrast how 'abuse of dominance' is handled by the judiciary in
India and the United States.

HYPOTHESIS

1. Whether India's current laws against "abuse of dominant position" aim to increase
market competition, productivity, and new ideas.

2. To examine the rules regarding "abuse of dominant position" whether it is

essentially the same in India and the United States, notwithstanding minor
differences in terminology and expression.

3. To interpret the judicial concepts of India "abuse of dominant position" are

identical with United States.

RESEARCH METHODOLOGY

The primary focus of this research is doctrinal. Since the research question is grounded
in a statute (Section 4 of the Competition Act, 2002) that is implemented by regulatory
bodies and judges, doctrinal research is an appropriate methodology. In such a case, it
is essential to examine the reasoning behind the Competition Commission's ruling and
how the higher courts have interpreted it.

The data utilised in this study from secondary sources. Books, periodicals, newspapers,
and other internet media are consulted for broad overviews of Competition policy and
legislation. The decisions of the Competition Commission of India, the Competition
Appellate Tribunal, and the Supreme Court of Appeal are used to evaluate the
effectiveness of the legislation in practice.

REVIEW OF LITERATURE

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BOOKS

Singh, V. K. (2017). Competition Law and Policy in India: The Journey in a

Decade.

Nearly a decade after its commencement, India's competition legislation enters into full
effect with the notification of sections 43A and 44 of the Competition Act, 2002.
Competition law and policy in India have been actively interpreted during this decade
of change. This article provides a brief history of competition law and policy in India,
explores the key problems plaguing the field, and raises questions about its future.

Basant, R., & Morris, S. (2000). Competition Policy in India: Issues for a
Globalising Economy.

The goals of competition policy in India are to encourage a more competitive business
climate and the development of innovative companies that can compete on a global
scale. These goals can only be attained if the government takes an active role. All
policy tools that have an effect on fostering competition in markets are taken into
account by the writers, who do not limit themselves to the topics typically addressed by
competition law. Therefore, competition policy encompasses trade, investment, and
technological development policies to the extent that they affect competition.
Contextually, it is challenging to formulate and execute an effective competition
strategy since it must be in line with other policies that are evolving India's economy
into a liberal open one.

Ucaryilmaz, T. (2021). Morality in Competition Law: The Culture of Honesty and

Trust in Consumer Protection.

Competition law is increasingly being studied as an economic phenomenon in recent

legal literature. However, we are once again confronted with the issue of fairness in

9
competition policies. This article explores the interconnected nature of competition law
and consumer protection legislation as a subset of the more fundamental link between
law and morality. Thus, the purpose of this article is to reexamine their original intent
and argue that economic bases for justice and equality do exist. Private property and
honouring commitments made via contracts are crucial to a well-functioning market
framework. As the moral heart of competition and consumer protection regulations, this
essay seeks to examine the latter while demonstrating its objective criteria: honesty,
trust, and rationality. Without jeopardising their economic underpinnings, these criteria
offer efficient methods of addressing moral dimensions of fairness in competition law,
as it is best exemplified within its link to consumer protection. Fairness, good faith,
honesty, and trust are all key concepts in competition law and consumer protection.

Berry, D. S. (2014). Competition Law and Consumer Protection. In Caribbean

Integration Law (pp. 312–336). Oxford University Press.

Competition law and consumer protection are generally seen as complementary. This
idea appears to have no major objections. A mutually beneficial relationship between
the two is taken for granted, so when disagreements do emerge they are usually
resolved on an ad hoc basis. A thorough and consistent analysis of the synergies and
conflicts between the two policy domains is essential. Dr. Cseres's exhaustive research
and analysis yields this comprehension. She thoroughly considers the role of
competition law and consumer law in a free market economy; the concept of consumer
welfare; the effect of the modernization of EC competition law for consumers;
economics theories of information, bounded rationality, and transaction costs; the spe
The book focuses mostly on recent and developing EC legislation, where a thawing of
relations between member states and the European Union is evident. Dr. Cseres gives a
competent introduction to the many schools of thought and legal and policy experience
in both Europe and the United States that (she demonstrates) need to be considered in
the process. One of the book's most remarkable aspects is a dedicated chapter on
Hungary, whose post-1989 legislation and practise show a new and clearly futuristic
perspective of the subject. Standing on its own, "Competition Law and Consumer

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Protection" is a dedicated contribution to filling a knowledge gap whose importance
rises everyday. Professionals in the fields of competition law, consumer protection
advocacy, economic theory and planning, corporate administration, and different
relevant government bodies will find this book of incalculable use.

Saraswathy, B. (2019). The flipkart-walmart deal in India: A look into competition

and other related issues. Antitrust Bulletin, 64(1), 136–147.

Within the first round of examination alone, the Competition Commission of India
authorised India's most valuable purchase, Flipkart by Walmart, saying it is "not likely
to have an appreciable adverse effect on competition in India." Unlike with earlier retail
acquisitions, merchants and retailers' organisations have been vocal in their opposition
to this one, calling for the establishment of a separate policy and regulator for online
commerce. Also in 2018, the Draught National E-Commerce Policy proposed tighter
regulation of deals that might harm competition, like as mergers and acquisitions. The
current research investigated the competitive implications of the transaction and
associated matters. The research recommends adapting the evaluation of competition to
better meet the demands of the digital revolution, and it also calls for the development
of a regulatory structure with a long-term vision to preserve and foster homegrown
ideas.

Stylianou, K., & Iacovides, M. (2022). The goals of EU competition law: a

comprehensive empirical investigation. Legal Studies, 42(4), 620–648.

Every facet of the implementation and interpretation of a body of legislation is

informed by the purpose it was created to serve. This is especially true when the law
itself is vague and quiet on key points, as is the case with competition law, which
centres on a handful of very abstract articles and leaves much room for interpretation
and application. Therefore, it is not surprising that a lot of research has been done to try
to pin down what exactly competition legislation is supposed to achieve. Textual,
historical, and teleological approaches have dominated most of these efforts. Here, we

11
present the first empirical study of the goals and purposes of EU competition law, as
they emerge from the full body of case law from the European Court of Justice,
Advocate General opinions, Commission decisions, and speeches from Competition
Commissioners. This over 4,000-source corpus presents a complete picture of the basic
aims of EU competition law, and helps definitively corroborate certain prior ideas while
debunking others, all of which advances the current application and future development
of competition law.

Cengiz, F. (2021). The conflict between market competition and worker solidarity:
Moving from consumer to a citizen welfare standard in competition law. Legal
Studies, 41(1), 73–90.

Using case studies from the European Union and the United States, this study analyses
the legal and economic aspects of competition law enforcement in labour disputes. The
legal quagmire that freelancers and contract employees face has drawn widespread
attention to the tension between worker solidarity and market competitiveness. In view
of the stringent consumer welfare criterion underpinning competition regulations, this
study demonstrates how competition law has evolved into a global disciplining
mechanism inhibiting worker collective action outside of the gig economy. This study
uses a multi-faceted theoretical framework that includes neoclassical economics and
Marxist exploitation theory to argue that putting solidarity ahead of competitiveness is
the most economically prudent course of action. After demonstrating that the consumer
welfare standard ignores the unique characteristics of labour as a 'fictitious' commodity,
the study proposes an innovative and all-encompassing 'citizen welfare' standard that
considers the effects of anti-competitive action on both employees and customers.
Thus, the article adds to the post-2008 discussion of whether and how competition law
should promote equality by clarifying how it now handles employees' rights and
benefits.

Journal Articles

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N, Parmesh. (2018). An Overview of Competition Laws in India. International
Journal of Trend in Scientific Research and Development, Volume-2(Issue-5),
1705–1712.

The Competition Act of 2002 (the Act) and the creation of the Competition
Commission of India (CCI)1 as its central enforcement body have been among the most
transformative developments in the Indian regulatory sphere. The primary goals of the
Act, which governs markets in India, are the promotion and maintenance of
competition and the protection of consumer interests. Anticompetitive behaviour, abuse
of power, unilateral behaviour, and combinations are all governed under India's
competition law, which is similar to those of more developed countries. The
implementation of rules pertaining to unilateral conduct of businesses is the primary
topic of this article, which also delves into the changing trends in this area via an
examination of specific cases.

Gouri, G. (2020). Convergence of competition policy, competition law and public

interest in India. Russian Journal of Economics, 6(3), 277–293.

With the evolution of the economy and the maturation of the competition authority
come the necessity to define and reframe the goals of competition policy and the
implementation of competition legislation. When it comes to economic research, the
market structures connected with digital technology and globalisation don't always line
up with the established norm. As with the Competition Commission of India and the
Competition Act of 2002, antitrust interventions by the competition authorities find
themselves in a dilemma. In contrast to the monopolistic structures of platform markets
or technology corporations and the market for ideas, the early days of adoption of
competition laws placed a focus on monopolistic competition or on oligopolistic
marketplaces as anti-competitive. Antitrust regulators are unable to pinpoint the
specific behaviours of these marketplaces that contribute to their monopolistic
tendencies. There has been a churning of potential different types of antitrust abuses in
the process, and another churn is slowly developing as a serious concern: the

13
convergence of competition policy and public interest as competition law struggles to
embrace these new market arrangements. The antitrust literature has not given this topic
nearly enough consideration. The fact that consumers gain from competition, which is
at the heart of antitrust action, is generally accepted and may even be taken for granted.
However, it is not taken for granted that monopolistic market arrangements may also
contribute to improving public welfare. There has to be a reevaluation of competition
policy and legislation and their convergence in the public interest in light of recent
developments that favour monopolistic market structures. This article focuses on how
new and developing markets might benefit from the convergence of competition policy,
competition law, and public interest. Concerns are warranted. Is there harmony or
discord between public interest, the law, and policy? Can we define public interest? To
what extent do consumers speak for the public good, and what kind of consumers do
they represent? Do public-interest activities like innovation and technological
advancement fall within the purview of competition policy or competition law? This is
another pressing issue that has emerged recently. Convergence of competition policy,
law, and public interest in India and the BRICS group, where smartphone internet use is
strong, implies that antitrust intervention is steered by public interest.

Singh, A. K., & Kumar, A. (2015). Genesis of Competition Law in India. SSRN
Electronic Journal.

India implemented and adhered to policies containing "Command-and-Control" laws,

rules, regulations, and executive directives for the greater part of half a century after
gaining independence in 1947. One such regulation was India's Monopolies and
Restrictive Trade Practises Act, 1969 (MRTP Act), which regulates business
competition. Widespread economic changes were initiated in 1991, marking the
beginning of the transition from a "Command-and-Control" economy to one based on
free market principles. Economic liberalisation has taken hold in India, as it has in
many other nations, and the necessity for a strong competition system has been
acknowledged. The Competition Act, 2002 (Act, for short) was passed in India as part
of the country's new economic policy paradigm. Competition Act, 2002 is the successor

14
to the MRTP Act. The previous MRTP Act has been nullified by the new legislation.
Therefore, the laws and the reasoning behind them are both discussed in this study.

M. M. Sharma. (2019). Role of Courts in Settling Conflict of Jurisdiction Between

Sector Regulators and Competition Regulator in India. US Law Review, 16(2).

In India, competition law is still in its early stages. Some instances of jurisdictional
disagreement between industry-specific regulators and CCI have prompted writ courts
to step in, most notably in the area of intellectual property rights enforcement. The
conflict of jurisdiction or "forum shopping" is expected to continue to develop in India,
and the higher judiciary in India has played a vital part in resolving it. Recent rulings by
India's highest court seem to have, however, put an end to the controversy. The article
describes how the Indian Supreme Court has helped strengthen the country's
jurisprudence on competition law over the last decade by addressing one source of
controversy during execution of the legislation.

Reports

Report of the High Level Committee on Competition Policy and Law (Raghavan
Committee Report), 2000.

For the purpose of advising a contemporary competition legislation for the country in
accordance with worldwide trends and suggesting a legislative framework, the
Government of India constituted a High Level Committee (Raghavan Committee) on
Competition Policy and Competition legislation in October 1999. The report was sent.
The current Competition Act, 2002, was enacted in response to various suggestions
given in this study.

Competition Policy and the WTO, Action Aid, 2011

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Action Aid is a global nonprofit organisation, and its latest research focuses on the
World Trade Organisation and its Competition Policy. Competition problems have been
discussed for possible inclusion in future WTO agreements. According to the research,
however, competition policy is best handled by UNCTAD and the WTO should not
include it in its activities because of philosophical differences.

CHAPTERISATION

CHAPTER I : INTRODUCTION

This chapter serves as an overview of the subject matter. The purpose of this document
is to provide a broad overview of India's Competition Policy. In this chapter, we'll talk
about how competition policy may improve the lives of consumers. The research topic,
hypotheses, research questions, study goals, research technique, data sources, and study
limits are all covered in this section.

CHAPTER II : FREE TRADE & COMPETITION LAW: A HISTORICAL

OVERVIEW

The origins of contemporary antitrust rules and regulations are discussed in this
chapter. This article traces the history of free trade from its origins in classical Greece
and India through its development in the contemporary day. The history of monopolies
and trade control is traced through antiquity, the middle ages, and the present day.

CHAPTER III : COMPETITION POLICY & ITS INTERNATIONAL

DIMENSIONS

India's competition law has benefited greatly from the international legal framework
governing competition policy. The liberalisation of the Indian market is a direct result
of the WTO and GATT accords. In this section, you'll learn about several types of legal
documents. This chapter also covers the topic of European Union Competition Law.

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CHAPTER IV : COMPETITION & CONSUMER WELFARE

Consumers win when businesses compete for their business. When businesses compete,
customers benefit from a wider selection and lower pricing. The consumers benefit
from competition legislation since it serves to safeguard all market players. Using many
examples and case studies, this chapter examines how competition policy contributes to
the actualization of consumers' rights.

CHAPTER V : COMPETITION POLICY & LAW IN INDIA

Regulation of competition in India necessitates a discussion of the policies and legal

framework governing this topic. Discussion centres on the economic policy, industrial
strategy, and the Raghavan Committee report of independent India. The Competition
Act of 2002 is discussed in this chapter as well, the key statute regulating competition.

CHAPTER VI : ROLE OF JUDICIARY IN DEALING THE ABUSES OF

DOMINANCE UNDER THE COMPETITION ACT, 2002 : USA & INDIA

This chapter focuses on how the judiciary deals with "abuse of dominant position" in
USA & India and draws parallels between the two countries. According to Subsection 2
of the Sherman Antitrust Act of 1890, "monopolisation" refers to "abuse of dominant
position" in the United States. The analysis will be based on pre existing legislation,
statutory revisions, and judicial precedent. This chapter draws parallels between the two
nations and examines their differences and similarities.

CHAPTER VII : CONCLUSION & SUGGESTIONS

The last chapter is here. All the important conclusions drawn from the study will be
recorded here. In this section, we put our theory to the test. This section addresses the
different research questions posed in the introduction. Based on the results,

17
recommendations are provided on how to strengthen India's competition law
enforcement.

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 CHAPTER II

FREE TRADE & COMPETITION LAW: A HISTORICAL

OVERVIEW

Ancient times

The present section shall expound upon the matters of unrestricted trade and rivalry in
light of the Roman Law, and Ancient Indian Law. There are indications that anti-
monopoly legislation was present within the framework of Roman law.

Roman Law

Modern-day Rome, Italy, is located on the European continent. It is now the capital of
Italy. Since its founding in 753 BC, Rome has been home to a number of different
governments. The foundations of the Roman legal system were created between 753
and the early 5th century B.C.E. The influence of Roman Law's body of case law may
be seen over the whole of Europe. The Roman Republic was founded in 509 B.C. As a
civilization, the Romans established their empire around 27 B.C. The Romans ruled the
world, both militarily and politically. The development and codification of legal norms
followed logical processes.14

There are two main categories of Roman law: jus civilis and jus gentium. In Roman
law, the concept of "individuality" was universally acknowledged. Jus civilis was a
separate body of law that only citizens of Rome were entitled to. Jus civilis emerged
between the years 753 and 31 BC. In the same way that any other abandoned property
would be disposed of, so too were aliens and other non-human strangers. But Rome
made peace treaties with other countries, and Rome protected the citizens of those
countries. These accords were signed by the vast majority of Rome's neighbours.
International traders still had some kind of protection even in the absence of
14 Robert Payne, Ancient Rome (ibooks 2001)

19
 restrictions. Citizens and non-citizens alike were bound by jus gentium, often known as
the law of the nations, by around 300 BC.15

The Roman canons were subdivided as follows:

1. Personhood and the law

2. Family
3. Corporations
4. Possession and property law
5. Delict and contract
6. The law of succession
7. The law of procedure

"All men are either free or slaves" under the law of people, to quote the Roman jurist
Gaius.18 Slaves were not considered human beings but rather "chattels," or property.
Slaves could not own property or start a company since they had no legal standing.16

The Lex Julia de Annona, written in 50 B.C.E., is the oldest legal document we have.
This legislation aimed to punish anyone who would unfairly inflate the price of maize,
a key agricultural commodity. It was illegal to obstruct or impede the passage of ships.
Similarly illegal was the collusion amongst merchants to drive up the price of corn. 17

Diocletian was Emperor of Rome from 245 to 316 AD. His competent administration is
still praised by historians today. Before his reign, Rome was in a state of chaos and
poor management. A clause of his law enacted in 301 AD sought to lower the cost of
basic needs. New tariffs were enacted, while existing ones were made stricter. Those
who attempted to create artificial scarcity by purchasing all the goods were put to
death.18

15 Hans Julius Wolff, Roman Law: An Historical Introduction (University of Oklahoma Press 1951)
16 Zvi Yavetz, Slaves and Slavery in Ancient Rome (Transaction Publishers 1988)
17 Adolf Berger, Encyclopedic Dictionary of Roman Law (The Lawbook Exchange, Ltd 1953) 553
18 Theodor Mommsen, The Provinces of the Roman Empire from Caesar to Diocletian (Macmillan 1887).

20
 From 471 until 491, Zeno, an emperor, presided over the Eastern Roman Empire. The
Constitution of Zeno was ratified and put into effect in the year 483 A.D. This
Constitution takes seriously the threat of intentional inflation of food grain and other
need costs. The practises of monopolistic enterprises were the focus of the Constitution.
It targeted both open groups, such as guilds and clubs, and closed ones, such as
monopolies and unscrupulous business practises. The monopolies of the emperor
himself were not immune.19 Zeno's Constitution contains many of the underlying
elements of modern Competition Law.

Justinian ruled over Byzantium (the eastern part of Rome) from 527 to 565. The Codex
Justinianus, a Latin legal code, bears his name since he was a major factor behind its
creation. Under Justinian, state monopolies could be established lawfully and were
overseen by the imperial government. The Imperial Treasury provided them with
compensation. Unfortunately, this method was bound to fail due to the dishonest
administration of these monopolies by corrupt officials. 20 The problems of bureaucracy
and corruption were present all across Justinian's empire, not only in contemporary
PSUs.

India - Vedic and Gupta Period

The aforementioned entity exercises control over various industries. Notwithstanding

the allowance of private enterprises, the state imposed stringent regulations upon them.
Based on the aforementioned indicators, it can be reasonably inferred that a mixed
economic system is present. Pursuant to the principles set forth in Arthashastra, it is
incumbent upon the King to assume responsibility for the safety, well-being, and
security of his subjects. In his discourse, Kautilya delineated three discrete categories of
setbacks.21 Consumer exploitation by monopolists, hereinafter referred to as "market

19 AD Lee, From Rome to Byzantium AD 363 to 565: The Transformation of Ancient Rome (Edinburgh
University Press 2013).
20 GP Baker, Justinian: The Last Roman Emperor (Cooper Square Press 2002).
21 Balbir S Sihag, ‘Kauṭilya on Moral, Market, and Government Failures’ (2009) 13 International Journal of Hindu
Studies 83.

21
 failure," is the primary concern addressed in this discourse. Furthermore, it is
imperative to address the issues of administrative incompetence and corruption, as they
serve as the fundamental factors contributing to the failure of the government.
Furthermore, an absence of moral rectitude. As per the assertions made by Kautilya, it
is contended that the consequences of a government's failure are significantly more
catastrophic in comparison to the decline of a market. Pursuant to his perspective, there
exists no greater detriment than the omission to engage in ethical conduct. While
Kautilya does not employ identical terminology, he acknowledges the potential for
failure inherent in both socialism and capitalism, attributing such risk to a deterioration
in moral values.

United Kingdom

The modern Competition Law had its origin in the English Common Law. 22 Hence it
would be pertinent to study the origins of Competition Law in the English Common
Law. In the English Common Law, the term Competition or Antitrust was never used.
Competition Law is based on the “freedom of trade.”

In Common Law, freedom of trade is the rule and restrictions on the freedom of trade
are the exceptions. Freedom of trade was given importance because trade made
available the essential goods to the people. And restrictions on the trade would create
problems in the daily lives of the people. This is the reason, every government ensured
freedom of trade.

Magna Carta (1215 AD)

The Magna Carta, herein referred to as the "Charter," represents an enduring testament
to the preservation of individual rights and liberties, and stands as one of the earliest
documented declarations in written form pertaining to such rights. The Latin term
denoting the "Great Charter" is Magna Carta. On the fifteenth day of June in the year

22 Melvin Aron Eisenberg, The Nature of the Common Law (Harvard University Press 1991)

22
 1215, King John, being the sovereign ruler of England, affixed his signature to the
document known as the Charter.23 The origins of most contemporary Constitutions can
be traced back to the Charter. The Charter imposed restrictions upon the King's exercise
of discretionary authority. The objective of modern constitutions is to safeguard against
the potential abuse of authority by any single branch of government, achieved through
the allocation and distribution of the State's powers among multiple branches. The
principle being referred to herein is that of "Constitutionalism."24

In accordance with the provisions set forth in the Charter, it is stated that the
aforementioned rights shall be safeguarded, including but not limited to the protection
of ecclesiastical privileges, immunity from unlawful incarceration, expeditious access
to the judicial process, and, of paramount significance, the imposition of restrictions on
fiscal impositions and other feudal obligations payable to the sovereign, subject to the
condition that specific types of feudal levies necessitate the consent of the baronial
class.25

The Magna Carta, in relation to merchants, functioned as a seminal legal instrument

that established the basis for what is presently recognised as the concept of "free trade."
Pursuant to the provisions set forth in the Charter, it is hereby established that all
merchants shall be entitled to ingress and egress from England without any form of
harm or apprehension, and shall have the liberty to sojourn or journey within its
borders, whether by land or water, for the express purpose of engaging in trade.
Moreover, said merchants shall be exempt from any illicit demands or levies, and shall
be permitted to conduct their commercial activities in strict accordance with time-
honored and lawful practises.26 Notwithstanding, it is further stipulated that merchants
hailing from a nation with which England was engaged in hostilities shall be deemed
ineligible to avail themselves of said advantage. The treaty sets forth provisions
regarding the apprehension of merchants from enemy nations and the treatment of their

23 AE Dick Howard, ‘Magna Carta Celebrates Its 750th Year’ (1965) 51 American Bar Association Journal 529.
24 AE Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (University of
Virginia Press 2015)
25 Ralph Turner, King John: England’s Evil King (The History Press 2011) 184
26 AE Dick Howard, Magna Carta: Text and Commentary (University of Virginia Press 1964).

23
 merchandise, contingent upon the reciprocal assurance that English traders will be
protected by the hostile nation.

The Charter further standardised the weights and measurements employed in the
commercial exchange of grain throughout the entirety of the Kingdom. Furthermore, it
is worth noting that the aforementioned legislation also served to establish standardised
dimensions for garments and alcoholic beverages, thereby ensuring consistency and
conformity within the respective industries. The Charter, in its provisions, guarantees
the preservation of the longstanding privileges enjoyed by the inhabitants of London,
while also ensuring the unimpeded transportation of goods via both land and sea
routes.27

In accordance with the pronouncement made by Justice Coke, it is to be understood that

monopolies, in general, contravene the provisions set forth in this esteemed charter, as
they infringe upon the fundamental liberties and freedoms of the individuals, thereby
running afoul of the established legal principles of the jurisdiction.

Doctrine of Restraint of Trade

According to Black's Law Dictionary, "restraint of trade" is "a limitation on business

dealings or professional or gainful occupations." 28 Restraint of trade is "a contractual
term that limits a person's right to exercise his trade or carry on his business," as
defined by the Oxford Dictionary of Law. A clause in a partnership or employment
agreement, for instance, may forbid one party from starting up a competing firm for a
certain amount of time after the arrangement expires. Any such provision must be null
and invalid unless the party relying on it can establish that it is not contrary to public
policy and is reasonable as between the parties. Such agreements often make sense and
are thus lawful.29

27 Timothy Sandefur, The Right to Earn a Living: Economic Freedom and the Law (Cato Institute 2010) 21.
28 Bryan A Garner and Henry Campbell Black, Black’s Law Dictionary (St Paul, MN: Thomson/West 2004).
29 Jonathan Law, A Dictionary of Law (OUP Oxford 2015)

24
 The notion originated in the common law. Free commerce is generally protected under
English common law. Any limits placed on this independence are considered
exceptional. Contracts that limit one's ability to engage in lawful commercial or
professional activity are often null and invalid. Commercial stifling violates the
"freedom to contract." A legal expert has referred to this theory as a "strange beast" due
to the fact that it is difficult to determine the grounds on which contracts may be
regarded as limiting the commerce.30 This peculiarity stems from the often commercial
and so convoluted character of contract provisions.

(i) Dyer’s Case (1414)

In the matter of Case31, it is alleged that the defendant, John Dyer, made a binding
commitment to the plaintiff wherein he agreed to refrain from conducting any business
activities within the same geographical area for a duration of six months. The plaintiff
has not provided any consideration in exchange. The Honourable Judge Hull expressed
dissatisfaction with the aforementioned contract and rendered a decision declaring its
invalidity on the grounds that it contravened the established principles of Common
Law. Additionally, it is recommended that the plaintiff be subject to monetary penalties
for engaging in the aforementioned agreement. The concept of restraining commerce
can be traced back to the earliest recorded instance, namely, this particular occurrence.
The present matter pertains to a historical incident that transpired during the 15th
century, thereby resulting in limited availability of pertinent documentation.

(ii) Darcy v. Allen (1599)

The present case, hereinafter referred to as "Case of Monopolies," has garnered

significant attention and infamy. The plaintiff, Edward Darcy, has been duly granted an
exclusive monopoly pertaining to the importation and subsequent sale of playing cards
within the jurisdiction of England. In light of the prevailing societal discord arising from
card games, Her Majesty the Queen has deemed it necessary to bestow upon a singular
30 Stephen A Smith, ‘Reconstructing Restraint of Trade’ (1995) 15 Oxford Journal of Legal Studies 565.
31 2 Hen. V, fol. 5, pl. 26

25
 entity an exclusive privilege over the aforementioned industry, thereby facilitating
streamlined control. However, it is alleged that a certain individual, hereinafter referred
to as Mr. Allen, engaged in the production and commercialization of his own deck of
playing cards. Plaintiff, Darcy, has initiated legal proceedings against Defendant, Allen,
alleging a violation of the Queen's monopoly grant. The court has rendered a decision
wherein it determined that the monopoly grant bestowed by the Queen is in contravention
of individuals' rights to freely associate and possess property. This judicial determination
represents one of the initial rulings wherein it was held that the royal monopoly
contravened the provisions of the constitution.

(iii) East India Company v. Sandys (1684)

The present case, herein referred to as Case 32, raises the fundamental issue of the
constitutional validity of the monopoly held by the East India Company in relation to
trade with the East Indies. The court made a distinction between international commerce
and domestic trade within the United Kingdom. In order to protect the public interest, the
court has rendered a ruling affirming the acceptability of a monopoly within the territory
of the United Kingdom. Under the prevailing market conditions in a foreign jurisdiction,
it would pose considerable challenges to generate a financial gain without the
establishment of a monopolistic position. The aforementioned case is commonly denoted
as the "Great Case against Monopolies."

(iv) Mitchel v. Reynolds (1711)

The "rule of reason" in U.S. antitrust law is sometimes seen as having its origins in this
case.33 The decision settled the question of whether kinds of contractual restrictions are
legal. The following describes the circumstances: Reynolds, a baker, signed a 50-pound
bond to let his bakery to one Mr. Mitchel. If Reynolds were to build a competing bakery

32 35 Car. II. Cited in William Cobbett, Cobbett’s Complete Collection of State Trials (TC Hansard; Published by
R Bagshaw 1811) 373.
33 1 P Wms 181, 24 ER 347 (QB 1711)

26
 in the same area, the bond would be null and invalid. A few time following this
agreement, Reynolds opened his own bakery nearby.

Reynolds argued in court that the deal was illegal because it restricted competition. The
court found this provision to be fair and unusual. The court found that the restriction on
operating the same company in the same geographic area was essential to the agreement.
Mitchel would never have rented the bakery to Reynolds if he had known that Reynolds
was planning to open his own bakery. This decision was the first time a court had found
that some requirements were acceptable enough to not be deemed a hindrance of
commerce.

(v) Mogul Steamship Co. Ltd. v. McGregor, Gow, and Co. (1892)34

The present decision constitutes a significant legal precedent affirming the doctrine of
laissez-faire. In the present scenario, a collective of 55 ship owners convened and reached
a mutual consensus on various matters with the objective of augmenting their respective
revenues. The company has made the determination to extend a 5% discount on shipping
costs solely to exclusive shippers. The party in question actively participated in a
comprehensive pricing conflict with ship owners who were not affiliated with the
collective entity. The inclusion of the company Mogul Steamship Co. was denied within
the group. The individuals comprising the aforementioned group proceeded to dispatch
their respective vessels to the harbour with the intention of engaging in direct competition
with Mogul Steamship Co. This competition was to be achieved by offering more
affordable freight rates upon the arrival of Mogul Steamship Co.'s vessel. The plaintiff,
Mogul Steamship Co., has initiated legal proceedings against the defendant organisation
on grounds of "conspiracy to injure."

The appellate court rendered a decision wherein it was determined that the
aforementioned group did not inflict any physical harm upon Mogul Steamship Co. The
court has determined that the actions undertaken by the association are to be classified as

34 [1892] AC 25.

27
"economic competition" due to their resulting effect of reducing prices for customers.
The ruling has been duly affirmed by the upper house. The aforementioned decision
constituted a pivotal juncture that significantly impacted the trajectory of England's
economy. In the year 1954, the activities pertaining to associations. Pursuant to the
scholarly work authored by Hendrik Zwarensteyn titled "Some Aspects of the
Extraterritorial Reach of the American Antitrust Laws" (Springer Science & Business
Media 2013), it is asserted that the prevailing legal framework in England, and
potentially in other jurisdictions, stands in clear contravention of the established tenets of
Competition Laws.

(vi) Thorsten Nordenfelt Case (1894)

This communication is directed to Maxim Nordenfelt Guns and Ammunition Company

Limited ("Recipient"). It is hereby stated that Thorsten Nordenfelt ("Transferor") has
entered into an agreement wherein he has sold his company, along with all associated
goodwill, to the Recipient for a substantial consideration. It is important to note that this
transaction is subject to a condition, namely that the Transferor shall refrain from
engaging in the same business, in any geographical location, for a period of twenty-five
(25) years, and shall not engage in any form of competition. In the matter at hand,
Thorsten Nordenfelt has been named as the defendant in a legal action initiated by the
corporation on the grounds of alleged breach of contract. The court conducted an
examination into the fairness of the restriction. In its ruling, the court determined that
notwithstanding temporal limitations, competition shall be deemed unrestricted and
permissible in all locations. In light of the substantial settlement awarded to Thorsten
Nordenfelt, it was determined by the court that the imposition of restrictions was
justified.

The concept of restricting commerce was subjected to examination in the present case by
Lord Macnaghten, thereby rendering it of considerable importance. The individual in
question, hereinafter referred to as "the party," did, on a certain date, establish the legal
principle that all members of the general public, collectively referred to as "the public,"

28
 as well as each and every individual person, hereinafter referred to as "the individuals,"
were granted the legal right and entitlement to partake in commerce without any
limitations or restrictions. Moreover, it is important to note that the party in question
explicitly stated that a reasonable limitation shall not result in the nullification or
invalidation of the contractual agreement. The fairness of terms shall be determined
based on their ability to promote the best interests of both the parties involved as well as
the general public.

(vii) ESSO Petroleum Case (1968)

The respondent herein entered into a "solus agreement" 35 for the purchase of petrol from
the appellant. The court, in its ruling, determined that it is incumbent upon it to carefully
consider and weigh the respective interests and requirements of both parties involved in
the contract prior to arriving at a final determination. The interests of the Respondent
were determined to be jeopardised due to the unduly protracted term of the contract,
spanning a period of 25 years. The court has rendered a ruling affirming that the
aforementioned type of agreement would unquestionably exert a deterrent influence on
commercial activities. The Agreement has been declared null and invalid by the Court.

(viii) MRPC Era (1948-1998)

Prior to the year 1948, the United Kingdom was devoid of any codified legislation
pertaining to monopolies or unfair business practises. The demands put forth by the firm
were sufficiently fulfilled by the Common Law foundations. In the year 1948, the Labour
Government, hereinafter referred to as "the Government," enacted the Monopolies and
Restrictive Practises (Inquiry and Control) Act, hereinafter referred to as "the Act."
Following a prolonged period of armed conflict, the Labour Government, having duly
considered the prevailing circumstances, arrived at the determination that the moment
had arrived to facilitate the reintegration of the populace into gainful employment. The
aforementioned rule has been formulated due to its feasibility solely within a competitive
35 “Solus agreement is an agreement where one party is linked only to the other party, especially an agreement
where a retailer buys all his stock from a single supplier.”

29
 economic framework. The Monopolies and Restrictive Practises Commission (MRPC)
was duly constituted with the purpose of conferring upon the Secretary of State the
requisite power to undertake inquiries into matters pertaining to monopolies and
restrictive practises. During the tenure of Margaret Thatcher, the aforementioned plan
underwent several revisions until it was ultimately replaced by the Competition Act of
1980.

Present Status

The present regulatory framework governing the Competition features of the United
Kingdom market is comprised of two legislative enactments, namely the Competition Act
of 1998 and the Enterprise Act of 2002. In the event that a commercial transaction
extends beyond the territorial boundaries of the United Kingdom, it is imperative to
consider the regulations established by the European Commission (EC) as outlined in
Articles 81 and 82. The primary objective of the Competition Act of 1998 was to
harmonise English competition law with the provisions set forth by the European
Community (EC) law.36 Pursuant to Section 60 of the Competition Act, 1998, it is
mandated that in the event of any legal ambiguities, recourse must be sought in European
Community (EC) law for resolution. In accordance with prevailing competition laws, it is
imperative to note that the legal framework in the United Kingdom duly encompasses
three fundamental aspects pertaining to competition matters:

1. Agreements that have the effect of distorting competition,

2. Alleged abuse of dominant position, and
3. Regulation on Merger and Acquisition.

The Competition and Markets Authority (CMA) was duly constituted pursuant to the
provisions of the Enterprise and Regulatory Reform Act of 2013, which effectuated the
amalgamation of the Office of Fair Trading (OFT) and the Competition Commission. The
responsibility for the enforcement of the provisions set forth in the Competition Act of

36 Peter R Willis, The Competition Act 1998: A Guide for Businesses (LLP 2000).

30
 1998 lies with the Competition and Markets Authority (CMA). The effective date of
April 1, 2014 was duly established. It is a well-established fact that diverse industries
possess distinct regulatory bodies.37

United States of America

The Sherman Act, enacted in the United States in 1890, is widely regarded as the
inaugural legislation in the realm of modern competition law. The passage of the
Sherman Act was prompted by the issue of large trusts that exerted significant control
over major industries. The Sherman Act's focus on trusts resulted in the proliferation of
this realm of legal regulation commonly known as antitrust law. 38 Presented herein is a
concise exposition of the historical trajectory of antitrust law in the United States.

(i) Economic and Legal System in 19th Century

During the period encompassing the transition from the 18th century to the 19th century,
it is evident that the agricultural sector played a pivotal role in sustaining and supporting
the overall American economy. The exploration of manufacturing and the establishment
of small enterprises for the purpose of producing finished goods were undertaken. The
law had the effect of impeding competition and inhibiting the emergence of novel ideas.
The law and the courts presumed that market pricing was reasonable and refrained from
intervention. The government engaged in the active promotion and protection of
monopolies.39 Upon a demonstration by a certain individual, namely Mr. Robert Fulton,
of the practical application of steamboats to the government in the year 1807, the
legislative body of the state of New York, known as the New York state legislature,
granted exclusive rights of monopoly to the aforementioned individual's firm.40

37 Like Office of Communications, Office of Rail Regulation, and Office of Water Services etc.
38 Anne Mayhew, Narrating the Rise of Big Business in the USA: How Economists Explain Standard Oil and Wal-
Mart (Routledge 2008) 156.
39 Renée C Rebman, Robert Fulton’s Steamboat (Capstone 2007).
40 Cram101 Textbook Reviews, Study Guide for An Introduction To the American Legal System (Cram101
Textbook Reviews 2014).

31
 The post-War of 1812 political landscape exhibited a propitious environment conducive
to the advancement of industrial expansion.41 The legal system has consistently aligned
itself with business and corporate interests, as evidenced by numerous rulings in their
favour. In furtherance of fostering a climate of robust competition, various states have
enacted recent legislative measures. Pursuant to the previous regulation under antiquated
usury laws, it is hereby acknowledged that interest rates are presently determined by the
free market, thereby responding to the various fluctuations observed within the
economy.42

The construction industry derived financial gain from the implementation of less
stringent regulations. In order to facilitate the growth and advancement of the economy, it
became necessary to undertake the construction of novel canals, trains, roads, and
bridges. In order to provide assistance to construction firms, the government has enacted
a measure to alleviate the stringent liability imposed upon them for injuries sustained in
the course of employment. In furtherance of the public welfare, these corporations were
additionally bestowed with the authority of eminent domain, thereby enabling them to
lawfully appropriate property from private proprietors.43

In a series of recent judicial determinations, the Supreme Court of the United States
rendered decisions in favour of commercial enterprises. In the case of Mc Culloch v.
Maryland, decided by the Supreme Court in 1967, it was held that the Bank of United
States is permitted to engage in its operations in a manner that does not contravene the
provisions of the Constitution and is not susceptible to imposition of State taxes. In the
case of Dartmouth College v. Woodward 44, decided in 1819, it was determined that
corporations were to be recognised as possessing a right to safeguard themselves against
any unwarranted intrusion or intervention by the government. In the seminal case of

41 The American War, 1812-1814 (Osprey Publishing 1990)

42 Daniel Krynicki, History of Money and Usury in America (Independent History & Research Company 2014)
43 Henry Varnum Poor, History of the Railroads and Canals of the United States of America (JH Schultz &
Company 1860).
44 17 U.S. 316

32
 Gibbons v. Ogden45, rendered in the year 1969, the judiciary imposed limitations on the
capacity of governmental entities to confer exclusive privileges upon specific enterprises,
thereby safeguarding the principles of unhindered trade. Indeed, this circumstance served
to further the promotion of trade and competition.

(ii) The Monopoly Trust Problem

The utilisation of trusts was initially contemplated by oil magnate John D. Rockefeller as
a means to amalgamate enterprises and gain a competitive advantage. In the year 1882,
Samuel Dodd, a distinguished attorney, provided legal counsel in the establishment of the
Standard Oil Company trust. This was accomplished through his representation of
various oil enterprises.46 The transfer of shares by the shareholders of a corporation to the
board of directors of said corporation, for the purpose of being held "in trust," shall be
executed in accordance with the legal process herein described, and shall result in the
issuance of trust certificates to the transferring shareholders. The authority to vote on
stock is subsequently delegated to the board of directors. The distribution of profits from
the company to shareholders shall be made in accordance with the terms and conditions
prevailing prior to the execution of the agreement.47

The aforementioned distinctive structure facilitated the amalgamation of forty distinct oil
enterprises into a singular entity, which expeditiously commenced the establishment of
prices with the intent to curtail competition. Several other companies have elected to
adopt this trust approach. Subsequently, there emerged a trust dedicated to the production
and distribution of sugar, another trust focused on the manufacturing of steel, and yet
another trust centred around the production and sale of whisky. The vast majority of the
aforementioned companies were established in the form of trusts. Pursuant to the
prevailing legislation, it was deemed unlawful for a single corporation to possess shares
in another corporation. The trust structure employed herein constituted a lawful and valid

45 17 U.S. 518 (1819)

46 Ida M Tarbell, The History of the Standard Oil Company (Cosimo, Inc 2009)
47 Tim McNeese, The Robber Barons and the Sherman Antitrust Act: Reshaping American Business (Infobase
Publishing 2009) 60.

33
 mechanism for the consolidation of business entities. The possibility of mergers and
amalgamations between companies was not realised until the year 1889, when the state of
New Jersey enacted legislation that granted permission for such transactions to take
place.

The railway trust has been deemed to possess monopolistic characteristics. The freight
rates applicable to railway transportation were deemed to be relatively costly. The effects
of this were felt by the local merchants and farmers. John Hayes, hereinafter referred to
as "the Speaker," currently holds the position of secretary within the Knights of Labour,
an organisation recognised for its affiliation with the Labour Party. The Speaker has
expressed his opposition towards the business elite, specifically targeting the great
corporations and trusts. In his statement, the Speaker asserts that these entities,
possessing substantial capital, machinery, special privileges, and other advantageous
factors, exert an overpowering influence upon the individual. Consequently, the Speaker
contends that the individual is reduced to a mere instrument, devoid of significance, and
utilised solely for the benefit of these entities in their ambitious endeavours, ultimately
resulting in individual profit. The Speaker further likens the individual to an inanimate
piece of machinery, devoid of voice or agency.48

As of the year 1890, substantial trusts had achieved dominance, and legislation
denouncing their existence had been duly enacted in a total of 21 states. Notwithstanding
the foregoing, it is hereby noted that no federal legislation has ever been enacted by the
United States Congress. Several trusts have been subject to lawsuits filed by states
alleging violations of "restraint of trade" laws. Notwithstanding the aforementioned
circumstances, trusts relinquished their reliance on the trust framework and instead
pursued mergers and amalgamations as a means to adhere to the recently enacted
corporate regulations subsequent to the prevailing outcomes of the majority of lawsuits in
favour of the states. Moreover, it is worth noting that the expansive corporate dominion
of these vast trusts transcended jurisdictional boundaries, yet remained devoid of the

48 Michael Tavel Clarke, These Days of Large Things: The Culture of Size in America, 1865-1930 (University of
Michigan Press 2007) 106.

34
 safeguards provided by the antitrust legislation of the various states. It is incontrovertible
that a nationwide federal legislation was necessary.

(iii) The Passing of Sherman Antitrust Act

On or about January 1888, a bill was introduced in the House of Representatives with the
purpose of enacting regulations pertaining to trusts. The Bill was not passed by the House
of Representatives as a result of inadequate support. The legislative responsibility was
assigned to John Sherman, a Republican, who serves as an Ohio Senator and has
previously held the position of Secretary of the Treasury. 49 On the fourth day of
December, in the year 1889, John Sherman duly presented a bill entitled "A bill to
declare unlawful, trusts and combinations in restraint of trade and production." The
measure was duly considered by the Senate Finance Committee subsequent to its
introduction to the chamber. During the aforementioned period spanning from February
to April in the year 1890, the Senate engaged in deliberations pertaining to the Bill, while
also contemplating multiple alterations to the original draught put forth by Sherman. The
Sherman Antitrust Act was duly enacted by the Congress of the United States in the
month of June, in the year of our Lord one thousand eight hundred and ninety. The Act
was signed into law by then-President Benjamin Harrison on July 2, 1890.50

The Sherman Antitrust Act of 1890 consisted of a comprehensive compilation of seven

distinct chapters. Pursuant to Section 1, any contract, combination in the form of trust or
otherwise, or conspiracy, whether among the various States or with foreign countries, that
imposes a restraint on trade or commerce, is hereby declared to be unlawful. The statute
in question explicitly delineated individuals who have committed criminal offences as
individuals who have been convicted of felonies. Furthermore, it established a range of
punitive measures, including but not limited to monetary sanctions of a maximum
amount of $10,000,000 for business entities and $350,000 for natural persons, as well as

49 William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (University
of Chicago Press 1981).
50 Ibid.

35
 custodial sentences of a duration not exceeding three years. The penalties of fines and jail
time, as stated in this section, are similarly addressed in other sections.

The prohibition of monopolisation and attempts to monopolise is established in Section 2.

The issue of the legality of DC combinations was duly examined and discussed in Section
3. Section 4 of the document encompassed a comprehensive examination of the
jurisdiction vested in the courts as well as the duties and obligations imposed upon
solicitors. The authority to hear cases involving violations of the Act was conferred upon
the District Courts, while the authority to initiate lawsuits on behalf of the government
was bestowed upon U.S. Attorneys. Pursuant to Section 6(a) of the aforementioned Act,
it is hereby established that the scope of applicability of this Act extends to combinations
and actions undertaken in the course of trade with foreign nations, provided that said
combinations and actions are found to have a detrimental impact on the economy of the
United States.

The individuals who held positions of authority within the prominent trusts possessed
considerable influence and enjoyed the support of the government. The passage of
antitrust legislation was met with scepticism by numerous individuals. The Antitrust Act
was duly enacted by the House of Representatives in direct response to the burgeoning
public disapproval of trusts.51

(i) The Early Years of Antitrust: 1890-1955

During its nascent stages, the Sherman Antitrust Act was subject to minimal enforcement.
It has been widely held by a multitude of individuals that the Antitrust Act was merely a
facade employed to assuage the growing discontent among the general populace towards
large corporate entities, and it is hereby acknowledged that such belief is accurate. In
pursuance of the objective of actualization, a significant measure was undertaken in the
form of initiating legal proceedings to effectuate the dissolution of the oil trust in the year
1976, the steel trust in the year 1977, and the railway trust in the year 1978.

51 McNeese (n 71).

36
 Upon careful consideration, it has been determined that more stringent enforcement
measures are necessary at this juncture. Henceforth, in the year 1914, the Congress duly
enacted the Federal Trade Commission Act. The aforementioned legislation duly enacted
the establishment of the Federal Trade Commission as the designated governmental
entity entrusted with the duty of enforcing the Antitrust Act. The Clayton Act was duly
enacted into law in the same year by the then-President, Woodrow Wilson. Pursuant to
the provisions set forth in Section 2 of the Act, any form of "discrimination in pricing" is
hereby expressly prohibited. Furthermore, in accordance with the stipulations outlined in
Section 3, any "exclusive dealing agreements" are strictly forbidden. Additionally,
Section 7 of the Act unequivocally prohibits any "mergers and amalgamations that would
adversely affect competition." Lastly, as per the provisions delineated in Section 8, it is
strictly prohibited for a single individual to serve as a director for competing firms.52

The commencement of the "Great Depression" in the United States was officially marked
by the occurrence of the stock market collapse in October 1929. The duration of the Great
Depression exceeded that of any other economic downturn in the annals of United States
history. For a period of ten years, there existed a state of uninterrupted continuity.During
this period, the enforcement of antitrust rules was infrequently observed. During the
aforementioned period, the government maintained a position characterised by active
endorsement of enterprises, with the objective of enhancing the economy.53

The Robinson-Patman Act of 1936 was enacted with the purpose of providing protection
to local establishments. Historically, prominent corporations have engaged in the practise
of underselling smaller entities by offering identical products at lower prices. The
provision of substantial discounts to large consumers resulted in detrimental
consequences for small firms. The Robinson-Patman Act of 1936 expressly proscribed
the employment of both aforementioned tactics.

(ii) Antitrust Enforcement at its height: 1955-1980

52 Peter C Ward, Federal Trade Commission: Law, Practice and Procedure (Law Journal Seminars Press 1986).
53 Pierre Berton, The Great Depression: 1929-1939 (Doubleday Canada 2012).

37
Commencing in the year 1939, the global conflict known as World War II persisted until
the year 1945.Subsequent to the 1950s, the industrial sector commenced a phase of
enduring growth. The business entities have successfully reestablished their previous
level of influence and have once again acquired the ability to cause harm to individuals.
During the 1950s and 1960s, the government intensified its efforts to pursue large
corporations engaged in nationwide price fixing schemes. The prosecution initiated
criminal proceedings that led to the incarceration of members of corporate boards.

Pursuant to its objective of dismantling consolidated enterprises, the government initiated

legal proceedings known as "structural antitrust cases" during the 1960s. The
aforementioned lawsuits filed against AT&T and IBM carry substantial legal
significance. In light of the inherent characteristics of their respective industries, these
companies were perceived by a significant number of individuals as possessing
monopolistic attributes. In the past, the American telecommunications market was subject
to the predominant influence of AT&T. AT&T is the sole entity possessing the requisite
infrastructure. Notwithstanding any contrary provisions, the courts, in their exercise of
jurisdiction, have decreed the compulsory disassembly of the aforementioned entity, with
the primary aim of fostering enhanced efficiency and fostering a climate of healthy
competition. There existed no statutory requirement at that juncture necessitating the
reporting of merger and acquisition activities to the relevant authorities. Henceforth, the
competent authorities and judicial bodies have decreed the dissolution of mergers that,
despite having been successfully executed, would have engendered detrimental
consequences to competition. Consequently, the business world was plunged into a state
of disarray.

In response to the disorder that ensued as a result of the reversal of completed mergers,
the Hart-Scott-Rodino Antitrust Improvements Act (referred to as the HSR Act) was duly
enacted. Pursuant to the applicable legal provisions, it is incumbent upon companies that
are considering a merger with a value surpassing the prescribed statutory minimum to
duly notify both the Department of Justice (DOJ) and the Federal Trade Commission

38
 (FTC). Notice was duly provided to the government, affording it a period of thirty days
within which to articulate any objections it may have. Upon the expiration of said time
frame, it was presumed that the pertinent authorities had duly sanctioned the merger.
Concurrently, it is worth noting that during this period, "class action suits" initiated by
multiple individuals against a corporate entity made their initial appearance. 54 Pursuant to
the provisions of antitrust laws, it is permissible to initiate a class action lawsuit on behalf
of consumers who have suffered harm as a result of the concerted price increases
implemented by two or more businesses. Class action litigation was initially employed in
antitrust actions, but its application has subsequently extended to various other domains
of law, including product liability. In response to the proliferation of class action
lawsuits, there has been a corresponding increase in the number of law firms.55

(iii) Antitrust Enforcement in Reagan Era (1981 to 1992)

During the approximate time period of the mid-1970s, the Chicago School of Economics
emerged as a prominent force within the field of economics, garnering significant
attention and recognition. According to the principles espoused by the Chicago School, it
was maintained that the paramount objective of antitrust legislation ought to be the
provision of advantages to consumers through the facilitation of price reductions. The
proponents of this viewpoint also espoused the belief that minimal government
intervention was appropriate, contending that markets possessed sufficient efficacy to
impose penalties upon those who engaged in anti-competitive behaviour. 56 The actions
undertaken by the Reagan administration were executed in strict adherence to the
aforementioned principles. The suit against IBM, initiated by the Reagan administration,
has been voluntarily dismissed. Additionally, a settlement agreement has been reached
between the Reagan administration and AT&T.57

54 Antitrust Class Actions Handbook (American Bar Association).

55 Deborah R Hensler and others, Class Action Dilemmas: Pursuing Public Goals for Private Gain (Rand
Corporation 2000).
56 Lanny Ebenstein, Chicagonomics: The Evolution of Chicago Free Market Economics (Macmillan 2015).
57 Andrew L Johns, A Companion to Ronald Reagan (John Wiley & Sons 2015) 159.

39
 The funding allocated to antitrust agencies was significantly reduced by the Reagan
administration, while concurrently appointing individuals who espoused the principles of
the Chicago School of Economics to judicial positions. The new administration deemed it
imperative to refrain from excessive interference and instead opt for a collaborative
approach with the companies, as opposed to adopting an adversarial stance against them.
The Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly
formulated and established the "Merger Guidelines" with the objective of furnishing
firms with direction on the proper implementation of strategies to ensure compliance with
antitrust laws.58 In the event that companies engage in a merger that adheres to the
prescribed regulations, they shall not be susceptible to the imposition of fines. In order to
facilitate corporate reorganisation and mitigate the risk of litigation, the relevant
authorities were consulted to evaluate potential antitrust charges.

The extent of the federal government's participation in cases involving price fixing has
diminished as antitrust authorities redirect their attention towards the states and districts.
The exploration of antitrust enforcement at the municipal level was also undertaken. The
aforementioned actions were subject to speculation regarding their potential to
significantly diminish the effectiveness of antitrust laws.59

(iv) The Clinton Administration's Antitrust Enforcement (1993-2000)

During his campaign, Bill Clinton made a commitment to diligently uphold antitrust laws
in the event of his election, which stood in stark contrast to the Reagan administration's
lenient approach. However, there were no changes observed during the initial years. The
antitrust officials engaged in cooperative efforts with the corporations, thereby ensuring
the preservation of the preexisting merger criteria. Antitrust enforcement experienced a
gradual increase during the latter part of the 1990s. Both Microsoft and Intel have been
named as defendants in lawsuits initiated by the government. The Federal Trade
Commission (FTC) employed innovative concepts and principles in its objection to the

58 Ilene Knable Gotts, The Merger Review Process: A Step-by-step Guide to U.S. and Foreign Merger Review
(American Bar Association 2006) 2.
59 Johns (n 86).

40
 contemplated consolidation of Staples and Office Depot. The approval of the
combination between Mobil and Exxon is deemed to be ironic. Approximately ninety
years ago, subsequent to the division of the Standard Oil Trust, these two enterprises
emerged as distinct entities.

(v) The Bush Administration's Antitrust Enforcement Efforts (2001-2009)

During the period spanning from 2001 to 2009, George W. Bush assumed the role of the
43rd President of the United States. Upon assuming office in the year 2001, concerns
arose within the business community regarding the potential diminishment of vigorous
antitrust enforcement due to his espousal of free-market ideology. The initial point of
reference for the individual was the enactment of the Antitrust Modernization
Commission Act (AMCA) in the year 2002.60 The present legislation has been enacted to
establish a committee with the purpose of conducting a comprehensive study on the
necessity of modernising antitrust laws and subsequently furnishing recommendations for
effectuating such updates. According to the findings presented in its report of 2007, the
panel determined that the prevailing antitrust regulations were deemed sufficient and
therefore recommended against any modifications. In light of the fact that the provisions
of the Robinson-Patman Act were found to be in conflict with the fundamental principles
of antitrust law, the report merely recommended the repeal of said provisions.

The government made an attempt to impede the acquisition of "PeopleSoft Company" by

"Oracle Company," however, their efforts proved to be unsuccessful. The Criminal
Penalty Enhancement and Reform Act, hereinafter referred to as the Act, was duly
enacted by the Congress in the month of June, in the year 2004. The Act, in its essence,
served to augment the prospective penalties applicable to individuals and entities alike. In
the year 2008, the recession had pervasive adverse consequences on the economy. 61
Opponents of the free market have advocated for the implementation of additional
regulatory measures in order to ensure the eventual failure of large corporations.
60 Thomas A Hemphill, ‘Modernizing U.S. Antitrust Law: The Role of Technology and Innovation’ (2005) 40
Business Economics 70.
61 Corona Brezina, America’s Recession: The Effects of the Economic Downturn (The Rosen Publishing Group
2011).

41
 (vi) Antitrust During Obama Rule

During the course of the campaign, Barack Obama expressed disapproval of the antitrust
policies implemented by George W. Bush. On the inaugural day of his presidency,
specifically January 20, 2009, President Obama made a solemn commitment to enhance
the rigorous implementation of antitrust laws. The recently appointed antitrust deputy
attorney has made a statement asserting that the deficiencies in antitrust enforcement
during the Bush administration played a role in the occurrence of the 2008 financial
crisis.According to the data provided by the Federal Trade Commission (FTC), it is
evident that the antitrust authorities expressed opposition to a total of 2.61 percent of all
mergers that took place during the Bush administration. Similarly, during the Obama
administration, the antitrust authorities opposed approximately 2.91 percent of all
mergers. The administration led by President Obama exhibits a comparatively more
stringent approach to enforcement when contrasted with the administration under
President Bush.62

Competition Law in India

The field of competition law has recently emerged in the jurisdiction of India. In light of
the occurrence of regime change and the existence of multiple rulers governing
geographically confined territories, it can be observed that ancient India was devoid of a
cohesive and consolidated judicial framework. It is to be duly noted that the British, in
their capacity as colonial rulers, assumed the responsibility of introducing the
contemporary judicial system to the Indian subcontinent. The 1969 Monopolies
Restrictive and Trade Practises Act represents an initial endeavour towards the
implementation of competition policy. The Competition Act of 2002 represents the initial
and all-encompassing legislation in India pertaining to the regulation of competition
policy.

62 Vipal Monga, ‘Obama Antitrust Not Much More Aggressive Than Bush’ (Wall Street Journal, 16 September
2015)

42
 (i) British Period

During the period of British administration in India (1600-1947), it is evident that the
East India Company failed to comply with the principles of free commerce and the rule
of law. Pursuant to their authority, regulations and rules were duly enacted, which
conferred benefits upon the East India Company. It is evident that the prevailing
conditions in the environment were not favourable for the facilitation of unrestricted
commercial activities. The East India Company was granted an exclusive trading
monopoly in India.63 There existed a complete absence of competition. The imposition of
excessive taxes and levies served as a deterrent to the domestic producers. The imposition
of an inequitable tariff by the British authorities upon domestically manufactured salt in
India resulted in adverse consequences for the entire populace of the nation. The "Salt
March" conducted by Mahatma Gandhi in 1930 constituted a form of protest against the
aforementioned matter.64 During the period of British colonial rule in India, no legislative
measures were implemented to foster or promote competition.

(ii) Post-Independence Situation

Upon the attainment of independence by the nation of India in the year 1947, the
inaugural Prime Minister of said nation arrived at the determination that the most
advantageous course of action for the betterment of the country would be the
establishment of a diversified economic structure. The "Industrial Policy Resolution" was
duly promulgated by the Government of India on the 6th day of April, 1948. This
resolution stands as the inaugural pronouncement of the nation's industrial strategy
subsequent to its attainment of independence. 65 In accordance with the resolution, the
government shall allocate preferential treatment to the health and education sectors with
the aim of enhancing the overall quality of life for the populace. 66 The economic state of
India was severely disrupted and destabilised as a direct consequence of the prolonged

63 Emily Erikson, Between Monopoly and Free Trade: The English East India Company, 1600-1757 (Princeton
University Press 2014).
64 Shiri Ram Bakshi, Gandhi and Salt Satyagraha (Vishwavidya Publishers 1981).
65 Industrial Policy Resolution No. 1(3)-44(13)-48 dated April 6, 1948
66 Uma Kapila, Indian Economy Since Independence (Academic Foundation 2008) 34.

43
 period of British rule, compounded by famines, sectarian conflicts, and various other
challenges. The Government encountered significant challenges in its efforts to rectify
the issue.

Pursuant to the industrial policy decision, a planned economic system was duly selected.
In March 1950, the Government issued a Cabinet Resolution establishing the 'Planning
Commission' with the purpose of achieving the aforementioned aim. Effective as of
January 1, 2015, the Niti Ayog assumed the role previously held by the Planning
Commission.67 The Planning Commission has functioned as a formidable policymaking
entity for an extended period of time. The Planning Commission, hereinafter referred to
as "the Commission," duly established and authorised under applicable laws and
regulations, has developed a series of comprehensive strategic plans known as the "Five
Year Plans." These plans serve as formal documents that delineate the Commission's
overarching objectives and corresponding strategies for an extended period of time. The
Planning Commission advocated for the promotion of government-run enterprises.

Effective as of January 26, 1950, the Republic of India is duly governed in accordance
with its newly enacted constitution. The Republic of India has effectively and
satisfactorily accomplished the process of transitioning into a socialist democratic state.
Pursuant to the provisions set forth in Article 19(1)(g) of the Constitution, it is hereby
recognised and safeguarded that individuals possess the inherent entitlement to partake in
any occupation, trade, or business that is deemed lawful. Notwithstanding any other
provision herein, it is within the purview of the State to enact legislation pertaining to
State monopolies, without contravening the sacrosanct principle of freedom of commerce
and industry, as enshrined in Article 19(6)(ii). Part IV of the Constitution sets forth the
Directive Principles of State Policy, which are intended to serve as the foundation for
state policy. The policymaking process was subject to the provisions set forth in Article
39(c), which stipulate that the "State shall formulate a policy aimed at ensuring the
functioning of an economic system that does not lead to the accumulation of wealth."

67 Puja Mehra, ‘NITI Aayog Will Set Policy Agenda’ The Hindu (New Delhi, 1 January 2015)

44
 The 1956 Industrial Policies Resolution meticulously delineated the specific industries
and their corresponding policies. The resolution has duly established categories for
business activities, specifically Schedule-A, Schedule-B, and Schedule-C. It is hereby
stated that no private entities have been duly authorised to engage in the operations
pertaining to the industries as delineated in Schedule-A. The aforementioned group
encompassed heavy industries, including but not limited to military and atomic power
sectors. The oversight of the Schedule-B sectors by the government was extended to
include the limited participation of private companies on the periphery. The industries
enumerated in Schedule-C are devoid of any impediments to entry by private entities.
The resolution underscores the imperative of providing increased support to cottage and
small-scale businesses.68

(iii) Raghavan committee Report

A "High Level Committee on Competition Policy and Law" was established by the
Government of India in October 1999. Mr. S.V.S. Raghavan, a seasoned official and
businessman, oversaw the work of this group. We often refer to this study as the
"Raghavan Committee report." As of May 22, 2000, the government has received the
committee's report.69

The committee noted the benefits of a free market system over a planned economy and
made policy recommendations to the government to foster an atmosphere conducive to
the execution of competition policy.

The committee insisted that the Industries (Developments and Regulation) Act of 1951 be
revised since it was out of step with the modern economic system and no longer served
any useful purpose. It suggested revising the Industrial Disputes Act of 1947 to make it
simpler for employees to leave companies that were no longer profitable. It advocated for
rules-based, nondiscriminatory, and open trade policy.70

68 Bachcha Pathak, Industrial Policy of India: Changing Facets (Deep and Deep Publications 2007) 26.
69 TT Ram Mohan, ‘Competition Policy Dilemmas’ (2000) 35 Economic and Political Weekly 2499.
70 SVS Raghavan, ‘Report of High Level Committee on Competition Policy and Law’ (2000)

45
When it came to the MRTP problem, it advocated for the complete abolition of the
previous law. It suggested that a new law be enacted under the name "Competition Act"
to replace the MRTP Act. It identified the following issues for the new law to address:

1. Contract between Businesses

2. The misuse of authority
3. Consolidation

It was also suggested that a commission called the "Competition Commission of India"
be established under the Act to oversee the administration of the law and the execution of
competition policies.

A table summarising the key distinctions between the MRTP Act of 1969 and the
Competition Act of 2002 is provided below.

46
Passing of Competition Act, 2002

The Competition Bill, 2001 was duly introduced to the Lok Sabha on the 6th day of
August, 2001. The Competition Bill of 2001 is currently under deliberation by the
Standing Committee on Home Affairs of the House of Commons. On the 23rd day of
August in the year 2002, the committee, led by Shri Pranab Mukherjee, duly presented
the 93rd report to the esteemed Chairman of the Rajya Sabha. The aforementioned
legislation shall henceforth be referred to as the Competition Act of 2002. The
Competition Commission of India (CCI) was established on October 14, 2003, pursuant

47
to the enactment of relevant legislation. The Competition Commission of India (CCI) has
been fully operational since May 2009, under the leadership of Shri Dhanendra Kumar.
Pursuant to the notification of all provisions of the Competition Act, 2002.

Pursuant to Section 66 of the Competition Act of 2002, it is hereby declared that the
Monopolies and Restrictive Trade Practises Act of 1969 has been abolished.
Consequently, all pending matters under the aforementioned MRTP Act shall be assumed
and adjudicated by the esteemed Competition Commission of India. The Competition
Commission of India (CCI) exercises jurisdiction over three main categories of
competition, namely anti-competitive agreements (Section 3), abuse of dominance
(Section 4), and combinations (Section 5).

Conclusion

The issue of trade restrictions has posed a challenge for governments throughout history,
dating back to ancient civilizations. The adverse consequences of such repressive policies
have been experienced by citizens for a considerable duration. Various methodologies
were employed in an attempt to resolve the aforementioned matter. The conventional
approach encompassed the enactment of legislation pertaining to price controls and
export restrictions for essential commodities such as food grains. There exists a
prevailing inclination towards reducing substantial government intervention and
embracing a market-driven approach in determining pricing. The concept of "agreements
in restraint of trade" as established in the Common Law of the United Kingdom serves as
the precursor to the current framework of competition law. In the year 1890, the United
States of America enacted the Sherman Antitrust Act, which is widely recognised as the
inaugural and all-encompassing legislation pertaining to antitrust matters worldwide.

The Monopolies Restrictive and Trade Practises Act of 1969 represents the initial
endeavour to operationalize competition policy and fulfil its objectives. The regulatory
authority known as the Competition Commission of India has been established and

48
operational since the year 2009. The Competition Act, hereinafter referred to as "the
Act," was duly enacted and approved in the year 2002.

49
 CHAPTER III

COMPETITION POLICY & ITS INTERNATIONAL DIMENSIONS

The exchange of goods and services between nations has a substantial and enduring
historical background. The exportation of surplus items was solely encouraged by
countries, while regulations were implemented to prohibit the exportation of the
majority of essential goods. The production of products that exhibit greater demand and
value in international markets was accorded priority. Notwithstanding, there persisted
an absence of bona fide freedom and competition in the realm of international trade.
The affluent nations engaged in the exploitation of weaker countries and the conquest
of numerous nations in order to develop markets for their completed products and
acquire inexpensive raw resources.71 During the time period spanning the 17th, 18th,
and 19th centuries, the ideologies of "mercantilism" and "protectionism" gained
considerable popularity. Adam Smith, hereinafter referred to as "the proponent,"
espoused the principles of unfettered and competitive commerce, while vehemently
opposing the aforementioned practises.72

The concept of "comparative advantage" was proposed by Ricardo. The individual held
the belief that it was imprudent for a sovereign state to engage in the production of
goods that could potentially be manufactured in foreign jurisdictions at a lower cost. As
per Ricardo's assertion, it is observed that particular nations possess a comparative
advantage in the manufacturing of specific goods due to factors such as topography and
weather conditions. The declarant posited that the global community would experience
enhanced welfare if nations were to prioritise the exportation of goods in which they
possess a comparative advantage in production. 73 The concept of "comparative
advantage" serves as the foundation for international trade and confers ultimate

71 Martin Phillips and Tim Mighall, Society and Exploitation Through Nature (Routledge 2014) 81.
72 Andrew S Skinner and Thomas Wilson, Essays on Adam Smith (Clarendon Press 1975) 381
73 Stephen S Golub and Chang-Tai Hsieh, ‘Classical Ricardian Theory of Comparative Advantage Revisited’
(2000) 8 Review of International Economics 221.

50
 advantages upon all participating nations. The rectification of disparities between the
supply and demand is achieved through the facilitation of international commerce.

With the increasing interconnectivity of the world, there is a corresponding expansion

of the convergence between international law and domestic jurisdictions. The municipal
law has been subject to the influence of international law, which has, on occasion,
given rise to a dispute.74 The Competition Law in India was duly enacted in the year
2002, in direct response to the process of market liberalisation that took place in the
country in 1991, as well as in fulfilment of its obligations under the General Agreement
on Tariffs and Trade (GATT) and the World Trade Organisation (WTO), both of which
were established in 1994.

In light of the aforementioned circumstances, it is imperative to undertake an

examination of the extent to which international institutions have integrated
competition policy within their various instruments, agreements, and policy documents.
Within the confines of this chapter, our objective shall be to meticulously analyse the
international instruments and other policy texts in order to identify any discernible
indications of Competition Law.

1. International Trade Law

In light of the inherent challenges associated with the enforcement of international law,
Austin posits that the term "positive morality" is a more appropriate designation. 75
Notwithstanding, with the progressive expansion of international commerce in terms of
scope and scale, an increasing number of nations have recognised the imperative of
upholding their international obligations. The establishment of the World Commerce
Organisation (WCO) over the past two decades has resulted in the facilitation of
international trade by granting access to previously restricted economies.

74 Paul Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of
Transnational Law 485.
75 Anthony d’ Amato, ‘Is International Law Really Law’ (1984) 79 Nw. UL Rev. 1293, 2.

51
 The World Trade Organisation (WTO) commenced operations in the year 1995 and has
subsequently played a pivotal role in promoting global trade worldwide. Upon the
culmination of the Uruguay Round in 1994, three agreements were duly negotiated,
namely: the General Agreement on Tariffs and Trade (GATT), the General Agreement
on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).76

The aforementioned treaties collectively establish the fundamental basis for the conduct
of international trade negotiations conducted between sovereign nations. Furthermore,
it is important to note that alongside the World Trade Organisation (WTO), various
regional agreements function as the established structure for global trade. The Havana
Charter, hereinafter referred to as the "Charter," was duly executed in the year 1947. It
is acknowledged that the Charter played a pivotal role in establishing the fundamental
principles and framework that underpin the General Agreement on Tariffs and Trade
(GATT) and the World Trade Organisation (WTO) as they exist in the present day.

2. Havana Charter (1947)

The UN Economic and Social Committee decided in 1946 that an organisation should
be established to facilitate international commerce. On March 24, 1948, 53 nations
signed the Havana Charter that called for the establishment of the International Trade
Organisation (ITO). U.S. officials apparently decided against sending the charter to the
Senate for approval. Since the United States of America refused to ratify the charter,
several other countries followed suit. The deal ultimately failed because of this. The
GATT agreement was being negotiated at around the same time as the Havana Charter,
and many of its provisions ended up there.77

There are nine chapters in the Havana Charter. The Charter's "Restrictive Business
Practises" chapter includes elements of competition policy. Article 46 states, "Each
76 John Croome, Reshaping the World Trading System: A History of the Uruguay Round (DIANE Publishing
1996).
77 Joan Edelman Edelman Spero and Jeffrey A Hart, The Politics of International Economic Relations (Cengage
Learning 2009) 74.

52
 Member shall take appropriate measures and shall cooperate with the Organisation to
prevent, on the part of private or public commercial enterprises, business practises
affecting international trade which restrain competition, limit access to markets, or
foster monopolistic control whenever such practises have harmful effects on the
expansion of production or trade and interfere with the achievement of any of the other
objectives act forth in Article."78

According to Article 46, some of these practises include "fixing prices, terms or
conditions to be observed in dealing with others in the purchase, sale, or lease of any
product; discriminating against particular enterprises; limiting production; preventing
by agreement the development or application of technology or invention whether
patented or unpatented."

An aggrieved member state may file a complaint with the Organisation in accordance
with Article 46, and an inquiry may be conducted in accordance with Article 48. If an
inquiry reveals that a member nation has engaged in a restrictive business practise, that
country will be urged to work with the other members to address the issue.

The Organisation may undertake research on emerging issues including copyright,

trademarks, patents, and markets as per Article 49. On the basis of these exhaustive
investigations, the Organisation is given permission to issue conventions and guidelines
concerning restrictive trade practises. The same Article also gives the Organisation the
green light to host conferences where relevant issues may be discussed and where new
ideas can be generated. The Havana Charter shows foresight in considering future trade
issues, such as Intellectual Property, which was addressed in the TRIPS agreement in
1994.

Article 50 requires members to assist the Organisation in its investigation of restrictive

trade practises by providing information and cooperating with it. According to Article
51, all member states must work together to implement the Organization's proposed

78 Article 46 of Havana Charter, 1948.

53
 solutions. According to Article 52, "No act or omission to act on the part of the
Organisation shall preclude any Member from enforcing any national statute or decree
directed towards preventing monopoly or restraint of trade." The Havana Charter and
the ITO are now part of history since they were never approved by the contracting
countries. The significance of the Havana Charter in the past is emphasised.

3. GATT/WTO

After the collapse of the ITO in 1947, the GATT was signed as a "stop gap
arrangement" to stabilise international trade. It was arranged only as a contract, with no
plans for the formation of any kind of organisation. A secretariat was established for
GATT in subsequent years for operational ease. The 1947 GATT agreement underwent
several revisions.79 On April 15, 1994, 124 nations resolved to form the World Trade
Organisation (WTO) after the Uruguay Round of discussions (which took place
between 1986 and 1994). In January of 1995, the WTO began operating as intended.80

It's important to note that the GATT agreement is now part of the WTO agreement. In
1947, a "strop gap arrangement" called the General Agreement on Tariffs and Trade
(GATT) was hammered out. The GATT rules from 1947 serve as the foundation for
international trade law since they were modified somewhat and agreed upon as GATT
1994, which was then integrated into the WTO agreement. The competitive elements of
the GATT Agreement are explored here.

The preamble of the General Agreement on Tariffs and Trade reads as follows:
"Recognising that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and effective demand, developing the
full use of the resources of the world and expanding the production and exchange of
good.
79 John H Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty Law and Economic Relations
(Cambridge University Press 2000) 17.
80 Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization (Cambridge
University Press 2013) 40

54
 The term "competition" is not used once in the preamble. The phrase "full use of the
resources" suggests that efficiency, a target of the Competition strategy, is the end aim.
The phrase "reciprocal and mutually advantageous arrangements" alludes to the value
of "comparative advantage." A fair playing field is essential for competition to exist,
and this may be achieved by the removal of trade obstacles and discriminatory
treatment.

The World Trade Organisation is based on guiding principles:81

1. Most Favoured Nation Treatment

2. National Treatment
3. Free trade without barriers
4. Predictable policies
5. Competitiveness
6. Benefit for less developed countries

1. Most Favoured Nation Treatment

The Most-Favored Nation (MFN) principle, as enshrined in the rules of the World
Trade Organisation (WTO), mandates that all member states are obligated to extend
identical trade advantages to one another. In the event that a nation chooses to reduce
its tariff, thereby extending a favourable treatment to another nation, it is incumbent
upon said nation to extend the same favourable treatment to all other members of the
World Trade Organisation (WTO). In accordance with Article 1 of the General
Agreement on Tariffs and Trade (GATT), the World Trade Organisation (WTO) trade
system is founded upon the fundamental concept herein elucidated. The inclusion of the
aforementioned provision can be found in Article 4 of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) and Article 2 of the General
Agreement on Trade in Services (GATS). The concept of Most Favoured Nation
81 Mitsuo Matsushita and others, The World Trade Organization: Law, Practice, and Policy (Oxford University
Press 2015) 155.

55
(MFN) treatment is approached in a varying manner within the provisions of each of
these treaties. Notwithstanding, they remain identical in essence. The Most Favoured
Nation (MFN) concept, herein referred to as the "Concept," serves to guarantee that all
countries involved in international commerce are afforded equal treatment and
opportunities.

2. National Treatment

The National Treatment principle is an idea that advocates for equality. The
requirement of "national treatment" in international trade agreements necessitates the
equal treatment of local and imported products. Upon the products' arrival in the
national market, it is imperative that the following criteria be satisfied. The targeted
country reserves the right to impose customs taxes and surcharges at the border, as it
deems appropriate. However, once said fees have been duly settled, the imported items
shall be subject to equal treatment as domestic goods.

The concept of National Treatment is encompassed within Article 3 of the General

Agreement on Tariffs and Trade (GATT), Article 3 of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), and Article 17 of the General
Agreement on Trade in Services (GATS). Subject to the principle of national treatment,
both domestic and foreign enterprises shall be afforded equal opportunities to engage in
competition on a fair and equitable basis.

The present document hereby provides an illustrative depiction of the aforementioned

concept in operation: For the purposes of this discussion, let it be assumed that X
represents a domestic jurisdiction, while Y represents a foreign jurisdiction. X has the
authority to levy customs tax and other associated fees upon P in the event that P is
imported into X's jurisdiction. Notwithstanding any administrative formalities, it is
imperative to regard product P as equivalent to its domestic counterpart.

3. Free trade without barriers

56
 Before the establishment of the General Agreement on Tariffs and Trade (GATT) and
the World Trade Organisation (WTO), international trade was conducted without any
restrictions or regulations. There were no limitations or prohibitions imposed on the
countries eligible to engage in the act of importing. The governments of said countries
have enacted stringent regulations pertaining to the sale of goods within their respective
jurisdictions. It is a universally recognised practise that all nations employ a tariff
system as a means to protect domestic manufacturers. The reduction of tariffs has been
consistently achieved as a result of diligent endeavours undertaken by the General
Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO)
frameworks. The objective of the World Trade Organisation (WTO) system is to
establish a trading environment devoid of barriers. The resolution of these obstacles
will require a period of time exceeding one or two years. During the ministerial
conferences of the World Trade Organisation, the participants engage in negotiations
aimed at the gradual reduction of these barriers.

4. Anti-dumping

The act of exporting products from one country to another at a price below the regular
price, with the specific intention of causing harm to the local industry of the importing
country, is commonly referred to as "dumping" within the realm of international
commerce.82 Pursuant to Article 6 of the General Agreement on Tariffs and Trade
(GATT), it is hereby stipulated that the contracting parties shall acknowledge and
condemn the act of dumping, which involves the introduction of products from one
country into the commerce of another country at a value lower than the normal value of
said products. Such condemnation shall be warranted if the aforementioned act of
dumping causes or poses a material threat of injury to an established industry within the
territory of a contracting party, or significantly hinders the progress of establishing a
domestic industry.

82 Philip Bentley and Aubrey Silberston, Anti-dumping and Countervailing Action: Limits Imposed by Economic
and Legal Theory (Edward Elgar Publishing 2007) 10.

57
The practises of predatory pricing are akin to the act of dumping. In the event that
predatory pricing transpires within the confines of a singular nation, it is imperative to
recognise that solely the laws of said nation shall be applicable. The utilisation of
"predatory pricing" practises in the context of international commerce is commonly
referred to as dumping. Pursuant to Section 4 of the Competition Act of 2002, the act of
engaging in predatory pricing is expressly prohibited as a manifestation of an abuse of a
dominant position. The act of dumping is subject to regulation under both international
World Trade Organisation (WTO) provisions and domestic anti-dumping legislation.

In order to provide additional elucidation and amplification of the provisions set forth
in Article 6 of the General Agreement on Tariffs and Trade (GATT), a legally binding
instrument entitled the "Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994" was duly formulated. The Agreement is
comprised of eight distinct Articles, namely: principles, dumping determination, harm
determination, domestic industry definition, investigation, evidence, interim measures,
and pricing promises. With regard to the legislation pertaining to anti-dumping, it is
imperative that all member states of the World Trade Organisation (WTO) strictly
comply with the prescribed standards.

The regulation of anti-dumping cases in India is governed by the Customs Tariff Act of
1975. The inclusion of anti-dumping and countervailing measures within Sections 9A,
9B, and 9C of the Customs Tariff Act occurred in 1982. However, the official
announcement regarding the enforcement regulations for these aforementioned sections
was not made until 1985. India, upon the culmination of the Uruguay Round
discussions in 1994, affixed its signature to the General Agreement on Tariffs and
Trade (GATT). In order to ensure compliance with the regulations set forth by the
General Agreement on Tariffs and Trade (GATT), the Customs and Tariff Act of 1975
underwent further revision.

Pursuant to Rule 3 of the Anti-dumping Rules and Countervailing Duty Rules, the
Director General of Anti-dumping and Allied Duties (DGAD) in India is duly

58
empowered and authorised to undertake investigations and proffer recommendations
with respect to anti-dumping practises. The authority was established by the Ministry of
Commerce of the Government of India in April 1998.

5. GATS

The service industry bears the responsibility for a significant portion, specifically one-
third, of the total employment opportunities available worldwide. The services industry
constitutes approximately 20% of global trade. During the mid-1980s, a proposal for a
services agreement was put forth in recognition of the increasing significance of the
service sector within the economy. Pursuant to the provisions of the Uruguay Round,
the General Agreement on Trade in Services (GATS) was duly negotiated and
established.16 The present record was created in the month of January in the year 1995.
In contradistinction to the General Agreement on Tariffs and Trade's (GATT) emphasis
on trade of "goods," the General Agreement on Trade in Services (GATS) is
specifically tailored to the trade of "services."

The General Agreement on Trade in Services (GATS) encompasses a broad spectrum

of service sectors, which encompass but are not limited to air transport, financial
services, maritime transport, and telecommunications. The agreement herein promotes
the incremental relaxation of service trade, fosters a climate of openness, and
incorporates a mechanism for the resolution of disputes. The provisions contained
within "Article VIII Monopolies and Exclusive Service Suppliers" as well as "Article
IX Business Practises" of the General Agreement on Trade in Services (GATS)
encompass certain aspects pertaining to competition law.

Competition Law in the European Union

The European Union (EU) is a legally constituted political and economic alliance
comprising twenty-eight sovereign nations situated across the European continent. The
establishment of the European Union occurred subsequent to the conclusion of World

59
 War II. One of the initial actions undertaken was to promote economic cooperation,
premised on the notion that "nations engaging in trade develop a state of economic
interdependence, thereby reducing the likelihood of engaging in conflicts."

The European Coal and Steel Community (ECSC) was established pursuant to the
Treaty of Paris in 1951. The origins of the European Union can be traced back to the
establishment of a community comprising six nations in the year 1929, which marked
its foundation.83 The Treaty of Rome, signed in 1958, witnessed the establishment of
the European Economic Community by six nations. The designation "economic" was
omitted from the nomenclature of the European Union subsequent to the ratification of
the Maastricht Treaty in the year 1992.

The unification of the European Union market has been achieved as a result of the
aforementioned accords. The term "internal market" pertains to the unrestricted
movement of individuals, financial resources, services, and goods within a designated
region, akin to a unified nation. Over the course of an extended duration, the principle
of mutual recognition has played a significant role in dismantling the barriers that exist
between sovereign states. The companies have significantly broadened their global
presence and presently cater to an approximate count of 500 million customers across
over 100 countries. The outcome has led to heightened competition among the
participants in the market. The deficiencies arising from market failures are presently
being absorbed by the large market, courtesy of the internal market. Obstacles continue
to persist in the financial services industry, the energy industry, and the transportation
sector.84

In contrast to the legislative frameworks of other international institutions, it is

noteworthy that European Union (EU) law possesses the characteristic of imposing a
legally binding obligation upon each and every member state. It is important to note
that every member state within the European Union (EU) is bound by the provisions set
83 Martin Dedman, The Origins and Development of the European Union 1945-2008: A History of European
Integration (Taylor & Francis 2010) 51.
84 Wolf Sauter and Harm Schepel, State and Market in European Union Law: The Public and Private Spheres of
the Internal Market Before the EU Courts (Cambridge University Press 2009) 29.

60
forth in both domestic law and EU legislation. Within the realm of European Union
law, it is imperative to acknowledge the existence of two discrete and separate
categories.

1. Pursuant to the principles of primary legislation, specifically treaties, it is hereby

acknowledged and recognised that such legal instruments hold paramount importance
in the realm of law.
2. Pursuant to the legal framework, the present discourse pertains to secondary
legislation, encompassing directives, regulations, and decisions.

The fundamental concepts are ascertainable within treaties, which function as the
primary source of law, whereas the specific matters are addressed and enforced through
directives and regulations. The Treaty on the Functioning of the European Union
(TFEU) encompasses the European Union's provisions pertaining to Competition Law.
The pact is comprised of seven sections. Each component is comprised of multiple
chapters, which in turn contain numerous sections, and within these sections are various
articles.

Schematic representation of the Competition Policies found in TFEU

Article III of the Treaty consists of the provisions pertaining to "Union Policies and
Internal Actions." The subject matter pertaining to "Common Rules on Competition,

61
Taxation, and Approximation of Laws" is duly expounded upon in title VII of Part III.
The subject matter of Title VII, Chapter 1 pertains to the "Rules on Competition." The
regulations governing competition are delineated in Articles 101-109. Chapter 1 is
comprised of two distinct sections. The foregoing section pertains to the initiatives,
whereas the subsequent section pertains to the governmental subsidies.

Pursuant to the provisions set forth in Article 101, it is hereby established that
enterprises shall be prohibited from partaking in any form of anticompetitive conduct
within the internal market, including but not limited to engaging in specific acts,
making certain choices, or engaging in coordinated practises. Examples of potential
legal issues include the restriction of market mechanisms, the sharing of markets, the
discriminatory treatment of trading partners, and the imposition of irrelevant
supplementary obligations. Any conduct that contravenes the stipulations set forth in
these guidelines shall be rendered null and void, effective as of the date of this Article.
The criteria herein exclude activities that enhance the production and distribution of
goods, foster technical or economic progress, and do not lead to the distortion of
competition.
Pursuant to Article 102, the act of "abuse of dominant position" is expressly prohibited
within the confines of the internal market. The Article provides examples of misuse,
including but not limited to, unfair prices, unfair limitations, dissimilar transaction
conditions, and irrelevant supplementary obligations.

The imposition of limitations on access to markets or manufacturing constitutes an

instance of an inequitable restriction. Additionally, it encompasses the cessation of
technological advancement. The methods in question impose significant obstacles upon
consumers. The accessibility of consumables is diminished as a result of manufacturing
restrictions. In circumstances where the supply of a product is restricted, it is
anticipated that there will be an increased demand for said product. Consequently, the
aforementioned items experience an increase in cost. It is imperative that adequate
safeguards be implemented to ensure the protection of consumers against the
employment of such tactics. The actions of dominant actors aimed at impeding

62
competition through the deliberate deceleration of technological advancement may
potentially exert a chilling effect on the overall progress of a society. The
advancements in efficiency and quality of goods resulting from technological
advancements confer advantages upon purchasers. In accordance with the provisions
set forth herein, it is hereby prohibited to impose any limitations or restrictions on the
advancement of technology.

Pursuant to the provisions set forth in Article 103, it is within the purview of the
Council to establish regulations and directives for the implementation of the
stipulations outlined in Articles 101 and 102. The rules and guidelines shall be
formulated in a manner that aligns with the underlying principles enshrined in Articles
101 and 102. Additionally, said rules and guidelines shall incorporate mechanisms for
the imposition of fines and penalties. Furthermore, it is imperative that all directives or
regulations explicitly elucidate the interplay between the national competition laws and
the obligations stipulated in the Treaty on the Functioning of the European Union
(TFEU).

Subject to the establishment of the directives and regulations pursuant to Article 103, it
is mandated by Article 104 that member states shall administer the provisions
pertaining to Articles 101 and 102 in accordance with their respective national
competition laws.

The Commission's responsibility for the enforcement of the provisions set forth in
Articles 101 and 102 is delineated in Article 105. Pursuant to a member state's request
or acting autonomously, the Commission is entrusted with the responsibility of
examining any potential infringements of Articles 101 and 102. The Commission shall
be entitled to receive cooperation and assistance from the competent authorities within
the Member State. It is the duty of the Commission to diligently arrive at thoroughly
deliberated conclusions. In the event that the parties fail to adhere to the reasoned
decisions, the Commission reserves the right to request that the Member States
undertake the enforcement of said judgements.

63
Pursuant to Article 106, it is unequivocally stipulated that governmental entities and
businesses enjoying special privileges shall also be held accountable to adhere to the
aforementioned regulations. Furthermore, it is imperative that businesses and
organisations operating within this sector refrain from engaging in any unlawful
activities. In order to ensure the unimpeded progress of these public projects, it is
imperative that the regulations be duly enforced.

Articles 107, 108, and 109 are encompassed within Section 2, titled "aids granted by
states." In the event that the assistance provided by a state results in the distortion of
competition, as explicitly set forth in Article 107, it is imperative that such aid be
subjected to a thorough evaluation in accordance with the principles governing the
internal market of the European Union. The distortion of competition is brought about
by the provision of assistance by the state. In the event that the government of a nation
provides subsidies to a particular industry, it follows that said company shall possess
the ability to produce its goods at a reduced cost. The provision of substantial
government support to facilitate the production of goods at significantly reduced prices
may have an adverse impact on analogous industries in foreign jurisdictions. Pursuant
to Article 107, there exist certain exemptions:

The classification of humanitarian assistance encompasses four primary categories,

namely:
(a) assistance provided to individuals affected by natural calamities;
(b) aid extended to individuals exhibiting a significant social disposition;
(c) support rendered to regions characterised by a substandard quality of life; and
(d) assistance allocated towards the preservation of cultural and historical landmarks.

Pursuant to the provisions set forth in Article 108, the Commission bears the
responsibility for the monitoring of European Union State assistance. In the event that
the Commission ascertains that a State assistance programme is incongruous with the
internal market of the European Union, it possesses the requisite authority to terminate

64
said programme. It is imperative that the Commission be duly apprised of any
contemplated assistance sought from each respective state. Pursuant to the provisions
set forth in Article 109, the Council is duly empowered and authorised to promulgate
regulations for the purpose of implementing the provisions outlined in Article 107 and
Article 108.

Conclusion

The Havana Charter encompassed a comprehensive set of provisions pertaining to

competition law. Regrettably, the Havana Charter failed to obtain ratification. Multiple
provisions within the General Agreement on Tariffs and Trade (GATT) of 1948 pertain
to matters concerning competitive policy. The treaties established by the World Trade
Organisation (WTO) incorporate provisions that embody competitive principles.
Notwithstanding the foregoing, it is to be noted that there exists no enforceable
international accord pertaining to the field of competition law. There have been
requests for the establishment of a comparable multinational convention, akin to the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), within
the realm of competition law.

The comprehensive delineation of competition policy regulations can be found within

the provisions of the Treaty on the Functioning of the European Union (TFEU).
Pursuant to the statistics provided by the Organisation for Economic Co-operation and
Development (OECD), it has been observed that there is an upward trend in the
quantity of worldwide mergers and acquisitions. As of the present time, it is noted that
there exist competition legislation in place within 127 nations. Competition laws confer
benefits upon consumers, thereby rendering them an indispensable component of the
legal framework in every jurisdiction.

65
 CHAPTER IV

COMPETITION & CONSUMER WELFARE

The term "consumer" is defined as an individual who engages in the act of making
purchases for personal use.Certain theoretical approaches to competition policy place a
paramount emphasis on the welfare of customers, above and beyond any other
considerations.85 In the context of commercial competition, it is observed that
customers derive advantages in the form of an expanded array of options and reduced
pricing. Competition law, with the objective of safeguarding all market players, is
implemented to guarantee the perpetual availability of superior products and services to
customers. This chapter elucidates the manner in which competition policy
substantiates the realisation of consumers' rights, employing a diverse array of
examples and case studies.
85 Daniel Zimmer, The Goals of Competition Law (Edward Elgar Publishing 2012) 490.

66
 Competition for Consumers : Benefits

In the presence of robust market competition, consumers are afforded numerous

benefits. The absence of robust competition results in significant detriment to
consumers and substantial financial gains for manufacturers. The presence of
competition yields numerous favourable outcomes, encompassing heightened
efficiency and productivity, reduced prices, an expanded assortment of products and
services, as well as the emergence of fresh market participants.86

a. In situations where multiple vendors engage in competition for the patronage of

customers, it is observed that prices have a tendency to decrease due to the ability
of shoppers to engage in comparison shopping and select the most advantageous
transaction. Each vendor is engaged in a competitive endeavour to diminish the
pricing of their respective merchandise in an attempt to surpass the pricing of
their competitors. The increased competition among retailers confers benefits
upon consumers. Pursuant to the terms and conditions set forth herein, it is hereby
acknowledged that customers shall have the ability to acquire said items at
prevailing market rates. A "cartel" is constituted when vendors congregate with
the intention of collectively establishing prices, a practise that is deemed unlawful
due to the existence of antitrust laws.

b. In situations where the market exhibits a limited number of vendors, consumers

are presented with a reduced array of choices to deliberate upon. In the event of
increased competition, customers shall be afforded a wider array of options from
which to select. For example, a limited number of companies were previously
engaged in the exclusive business of mobile phone sales. Currently, a multitude of
mobile phone manufacturers exist, thereby affording consumers the opportunity to
select from a diverse array of models and pricing options. In the absence of
competition, the occurrence of this event would be rendered impossible.
86 Eugène Buttigieg, Competition Law: Safeguarding the Consumer Interest : a Comparative Analysis of US
Antitrust Law and EC Competition Law (Kluwer Law International 2009) 3.

67
 c. In the event that a market demonstrates a state of robustness and soundness, it is
plausible for new entities to enter said market and engage in competition. The
current market participants have the ability to collaborate with the government
machinery, either through legislative means or by utilising bureaucratic authority,
in order to establish trade barriers. Consequently, prospective market participants
will encounter significant difficulties in gaining entry into the market. The market
is invigorated by the introduction of novel innovations by new participants.

d. Enhanced standards of quality and service, In situations where a sole supplier

exists within the market, customers are compelled to rely exclusively on said
supplier. No other market participant can be deemed to adequately fulfil the
requirements of consumers. In contradistinction, in the event that there exists a
surplus of enterprises vying for patronage, a subset thereof shall endeavour to
furnish the utmost level of service and quality attainable.

e. Productivity and efficiency, In the presence of intense competition, enterprises

endeavour to offer the most competitive prices while maintaining the highest
standards of quality. In pursuit of these objectives, the party engages in the
exploration of novel concepts and endeavours to enhance the effectiveness of
their fundamental business approach. The party in question hereby seeks to
enhance their production levels and optimise the utilisation of their available
resources.

Adam Smith on Competition and Consumer

The primary objective of production is the eventual consumption of goods or services.

Consequently, it is imperative to prioritise the needs of producers only to the extent that
such prioritisation is necessary for the utmost benefit of the consumer. Attempting to
furnish evidence for the veracity of the aforementioned maxim would be deemed
frivolous, given its manifestly self-evident nature. Regrettably, pursuant to the

68
 mercantile system, primacy is accorded to production over consumption, with a
preference for safeguarding the interests of producers over those of consumers.

In accordance with the literary work titled "Wealth of Nations," authored by Adam
Smith, it is stated. In the final chapter of his treatise, Smith delineates the deleterious
effects of "mercantilism" on the general populace. The claimant asserts that regulations
were promulgated with the purpose of safeguarding local enterprises by prohibiting the
importation of superior goods at reduced prices. The party contends that the
aforementioned measures impede competition and impose an excessive financial
burden upon consumers.

The petitioner contends that the limitations imposed on the importation of foreign
goods that may compete with domestically produced goods clearly prioritise the
interests of the producer over those of the home-consumer. The cost escalation that is
consistently associated with a monopoly is ultimately in the best interest of consumers.
Therefore, it is equitable for businesses to bear this burden.87

The aforementioned serves to demonstrate that ultimately, consumers derive

advantages from the presence of competition within the marketplace. It is probable that
Adam Smith can be attributed as the initial economist to openly denounce monopolies.
In the year 1776, a period exceeding one hundred and fifty years prior to the formal
recognition of the Consumers' Bill of Rights, he espoused the cause of safeguarding
their interests.

Consumers’ Bill of Rights

During a formal address delivered to the Congress, the esteemed former President of
the United States, John F. Kennedy, articulated his advocacy for the protection and
preservation of consumer rights.88 The individual expressed his views regarding the

87 Adam Smith, The Wealth of Nations (Reprint edition, Bantam Classics 2003) 839.
88 Kennedy, John F, Public Papers of the Presidents of the United States: John F. Kennedy, 1962 (1963) 235.

69
necessity of federal regulations aimed at safeguarding the interests of consumers. The
individual in question delineated four essential consumer protections:

a. The entitlement to safety: the entitlement to safety provides protection to

purchasers against potentially injurious merchandise. One illustrative instance
pertains to consumable items that are deemed safe for ingestion.

b. The entitlement to receive information: customers possess a valid and justifiable

interest in acquiring knowledge regarding the nature and characteristics of the
goods or services they are purchasing. The aforementioned assertion is predicated
upon the fact that the comestible in question is replete with comprehensive details
pertaining to its constituent elements.

c. Freedom of choice, it is imperative that shoppers possess the ability to exercise

their freedom to choose and select from a wide array of options. The objective is
furthered by the presence of additional firms engaging in competition within the
market. In the event that there is an increased number of vendors within the
market, customers are afforded a greater array of options from which to make
their selection.

d. It is imperative that all customers are afforded the guaranteed opportunity to

express their concerns and have said concerns duly addressed. The establishment
of Consumer Forums in India can be traced back to the enactment of the
Consumer Protection Act, 1986. These forums have played a pivotal role in the
resolution of consumer grievances.

International Standards for the Protection of Consumers

The UNGCP, referred to as the United Nations Guidelines for Consumer Protection, is
a significant compilation of principles that delineate the key attributes of legislation
pertaining to consumer protection, as well as the institutions responsible for

70
 enforcement and the systems facilitating redress. These guidelines aim to aid Member
States who express interest in devising and implementing their own domestic and
regional laws, rules, and regulations that align with their unique economic, social, and
environmental conditions.The initial iteration of the United Nations Guidelines for
Consumer Protection (UNGCP)89 was granted approval in the year 1985, and
subsequently underwent revisions and expansions in the year 1999.

The second principle, titled "Promotion and Protection of Consumers' Economic

Interests," states that governments are obligated to develop, enhance, or uphold
measures pertaining to the regulation of restrictive and other abusive business practises
that have the potential to cause harm to consumers. It is imperative for governments to
actively promote and cultivate an environment conducive to robust competition,
thereby ensuring that individuals are afforded ample opportunities to avail themselves
of a diverse array of affordable goods and services.90 The enforcement of competition
laws is imperative in order to accomplish the objectives of addressing "restrictive and
other abusive business practises" and promoting "fair and effective competition".

Consumer Protection Law in India

With the intention of shielding buyers from exploitative sellers, lawmakers enacted the
Consumer Protection Act in 1986. Consumers who have experienced problems as a
result of substandard products or services may turn to the Consumer Forums
established under the Act. There are now consumer forums in every state.

Consumers are promised "choice" under the Act, but the law's remedies are contingent
on the consumers' having previously experienced some kind of loss. There won't be any
more customer options since the market won't be stimulated. More rivals are needed,
and competition in the market must be protected by a competition legislation, for this to
happen.

89 Preamble of the United Nations Guidelines for Consumer Protection, 1985

90 Ibid

71
 Draft National Consumer Policy

Currently, India is deficient in possessing an all-encompassing National Consumer

Policy. The Ministry of Consumer Affairs, through its official website, presents a
preliminary rendition of the National Consumer Policy dated November 6, 2009. 91 The
Draught hereby declares its objective to guarantee that consumers are charged equitable
prices for products, services, and innovations of superior quality. The attribution of the
increasing competition and its subsequent effects on consumers to the phenomenon of
globalisation is duly acknowledged.

The subject matter of the second principle of the proposed National Consumer Policy
Draught pertains to competition. It is contended that the interest of the industry is
aligned with that of an empowered consumer, as the latter possesses the ability to
compel manufacturers to offer a wider array of choices. This, in turn, serves as an
impetus for companies to enhance their development and foster a more competitive
environment. The proposition that the availability of competitive markets facilitates the
provision of goods and services at the most affordable prices is widely recognised. The
profitability of consumers is enhanced when businesses engage in competitive practises
to secure their patronage. However, it is imperative for shoppers to possess adequate
information and receive proper education in order to effectively navigate and maximise
the benefits of a competitive market. In light of the foregoing, it is imperative that the
regulatory framework, competition policy, and consumer policy operate in concert.92

The Draught further mandates the dissolution of monopolies and the promotion of
competition through governmental supervision. The resolution of any disputes arising
from the implementation of the policy shall be governed by the provisions set forth in
the Consumer Protection Act of 1986. Pursuant to the provisions set forth in the
Competition Act of 2002, it is imperative to ensure the promotion and facilitation of
competition. The significance of distinct sectoral regulators and collaboration among

91 ‘National Consumer Policy’ <consumeraffairs.nic.in/consumer/sites/default/files/userfiles/ncp.doc>.

92 Ibid

72
 diverse regulatory agencies is duly recognised. The petitioner expresses the expectation
that the Government will expeditiously grant approval to the aforementioned proposal.

Interface between Competition and Consumer Policies

The OECD paper titled "The Interface between Competition and Consumer Policies"
acknowledges in its review that the shared objective of consumer policy and
competition policy is the enhancement of consumer welfare.93

The report commences by acknowledging that competition policy and consumer policy
share a mutual objective, as follows: "Competition policy adopts a supply-side
perspective when examining a market, with the aim of guaranteeing that consumers are
afforded the broadest feasible selection of goods and services at the most competitive
prices." The objective of competition policy is to address practises that have
detrimental effects on both consumers and businesses, including but not limited to
anticompetitive mergers, monopolistic practises, and restrictive agreements (such as
cartels). Consumer policy, as an economic strategy from the demand-side, endeavours
to enhance the efficacy of the market by endowing individuals with the ability to make
judicious choices regarding the acquisition of goods and services, thereby promoting
informed decision-making. The domain of consumer policy encompasses matters
pertaining to the asymmetry of information between buyers and sellers, misleading
advertising practises, and inequitable contractual clauses.94

Furthermore, it is duly noted in the paper that there exist further differentiations
between the aforementioned programmes, as it explicitly states, "Consumer policy
exhibits a greater degree of heterogeneity compared to competition policy." The
objective at hand encompasses not only the facilitation of seamless market operations,
but also encompasses, by way of example, the cessation and rectification of fraudulent
activity, as well as the safeguarding of customers from goods that may pose potential
harm. Consumer policy enforcement is typically more widely distributed in the
93 ‘The Interface Between Competition and Consumer Policies’ (OECD 2008).
94 Ibid

73
majority of instances. Instances of unfair competition are infrequently encountered and
possess a wide-ranging impact, thereby affecting entire industries. The prevalence of
consumer litigation has been steadily rising, frequently encompassing a distinct policy
or procedure implemented by a specific company.

The study hereby acknowledges that the aforementioned distinctions are capable of
being reconciled. Various industries, including but not limited to professions, financial
services, retail energy, and mobile telecommunications, have exhibited a greater
inclination towards embracing competition due to the prevailing global inclination
towards deregulation, as stated in the report. The prevalence of information asymmetry
between sellers and purchasers is a frequent occurrence within these recently
competitive marketplaces. The most effective approach to address this issue is through
the coordination of competition and the implementation of consumer protections.
Electronic commerce is an area that exhibits promising potential for enhancing
competition. However, concerns arise regarding the possibility that certain customers
may lack sufficient knowledge to fully capitalise on its benefits.

E-commerce, Competition and Consumers

The analysis conducted by the OECD recognises the potential for electronic commerce
to bridge the divide between online and offline marketplaces. The term "electronic
commerce" pertains to the activity of engaging in the "purchase and sale of goods or
services through electronic systems utilising electronic methods." The utilisation of said
channels for the purpose of placing an order is permissible, however, it is not obligatory
for the user to employ the internet for the purposes of payment or delivery. Any
collective entity possessing access to the internet and exhibiting an intention to engage
in the exchange of goods or services is eligible to partake in electronic commerce.
Orders that are submitted via the internet, an extranet, or an electronic data exchange
system shall be duly accounted for. The ordering procedure is indicative of the
category. Orders placed via telephone, facsimile, or manually typed electronic mail
shall not be encompassed within the scope of this provision.

74
The convenience associated with conducting business transactions through online
platforms represents but one among the myriad benefits it affords. The proliferation of
online marketplaces has engendered a climate of competitive pricing and convenience,
thereby posing a formidable challenge to the continued viability of brick-and-mortar
establishments. The provision of precise and reliable product descriptions is a service
that e-commerce websites extend to consumers. The expeditious transportation of
goods is a significant advantage associated with conducting commercial transactions
over the internet. The customers have derived substantial benefits from the utilisation of
electronic commerce websites.

OECD E-Commerce Consumer Protection Guidelines

The "Guidelines on Consumer Protection in the Context of E-Commerce" were

officially published by the Organisation for Economic Co-operation and Development
(OECD) in the year 2000. These rules shall be exclusively applicable to the "business
to consumer" approach. Herein, we delineate the report's overarching concepts:

a. In order to ensure parity between online shoppers and those who engage in
traditional brick-and-mortar retail transactions, it is imperative to establish the
following unequivocal condition: a. Consequently, the implementation of such
measures will likely incentivize shoppers to avail themselves of digital
marketplaces.

b. Pursuant to applicable laws and regulations, it is incumbent upon businesses

involved in electronic commerce to conduct themselves in a manner that is fair
and devoid of any deceptive advertising or marketing practises. b. It is imperative
that the manner in which they conduct their business is characterised by honesty
and transparency.

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 c. Full Disclosures Made Online It is imperative that e-commerce websites furnish
comprehensive and pertinent information regarding their physical whereabouts,
merchandise and services, as well as transactions.

d. Following the completion of a purchase, it is imperative that the customer be duly

prompted on the website to affirm their selections. The buyer shall be entitled to
exercise the right to terminate the transaction prior to the submission of payment.

e. The ease and security of the payment process are of utmost significance when
conducting online transactions.

f. The website shall include information pertaining to the applicable legislation and
the requisite conditions for the resolution of disputes. The availability of
alternative dispute resolution mechanisms shall be ensured.

The protection of privacy is a paramount concern for all enterprises, with particular
emphasis on e-commerce establishments.

It is imperative that the government and consumer advocacy organisations collaborate

in order to enhance public consciousness and provide education regarding the potential
hazards inherent in online shopping, as well as the strategies available to minimise such
risks.

This chapter undertakes an examination of the correlation between competition and

consumer welfare, as evidenced by reports from international bodies. The enhancement
of market competition, as explicitly articulated in the majority of consumer protection
instruments, would yield advantageous outcomes for consumers. In the context of
commercial competition, it is observed that consumers derive advantages in the form of
reduced pricing and increased availability of choices.

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 CHAPTER V

COMPETITION POLICY & LAW IN INDIA

In order to adequately address the regulation of competition in India, it is imperative to

engage in a comprehensive examination of the policies and legal framework that
govern this subject matter. The present analysis pertains to the examination and
evaluation of the economic policy, industrial strategy, and Raghavan Committee report
as they pertain to the period of independent India. This chapter provides a discussion on
the Competition Act of 2002, which serves as the principal legislation governing
competition.

Economic Policy during Independence

Upon the attainment of independence by India in the year 1947, the inaugural prime
minister of the nation, in his wisdom, deemed it appropriate to adopt a composite
economic framework.95 The "Industrial Policy Resolution" was duly promulgated by
the Government of India on the 6th day of April, 1948. This resolution, being the
inaugural pronouncement on industrial strategy subsequent to the nation's attainment of
independence, holds significant import. The resolution stipulates that the allocation of
government resources shall be directed towards the enhancement of the health and
education sectors, with the objective of ameliorating the overall standard of living for
95 Industrial Policy Resolution No. 1(3)-44(13)-48 dated April 6, 1948.

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 the populace.96 The economic condition of India was severely disrupted as a result of
the governance by the British, occurrences of famines, sectarian conflicts, and various
other challenges. The Government was faced with a challenging endeavour in its efforts
to enhance the prevailing circumstances.

Pursuant to the industrial policy decision, a planned economic system was duly
selected. In March 1950, the Government issued a Cabinet Resolution which
established the 'Planning Commission' with the purpose of achieving the
aforementioned aim. As of January 1, 2015, the Planning Commission has been
renamed as Niti Ayog.97 Throughout the course of its existence, the Planning
Commission has consistently assumed a critical and influential position in the
formulation and development of governmental policies. The Planning Commission,
hereinafter referred to as "the Commission," duly established a series of comprehensive
plans known as the "Five Year Plans," hereinafter referred to as "the Plans," which
meticulously delineated the Commission's overarching objectives and strategic
approaches for an extended period of time. The Commission on Planning and
Development advocated for the promotion of government-operated enterprises.

(i) Constitution and Economic Policy

The effective date of India's new constitution was January 26, 1950. India, henceforth
referred to as the "State," has achieved complete independence and is presently
recognised as a sovereign socialist democratic nation. Pursuant to the provisions set
forth in Article 19(1)(g) of the Constitution, individuals are afforded protection for their
entitlement to participate in "any lawful occupation, trade, or business." Pursuant to the
provisions of Article 19(6)(ii), it is hereby stipulated that the freedom of commerce and
enterprise shall not serve as a basis for the prohibition of State monopolies. Part IV of
the Constitution delineates the Directive Principles of State Policy, which are intended
to serve as the fundamental principles guiding state policy. In order to forestall the
concentration of wealth in the hands of a privileged few, it is mandated that the "State
96 Uma Kapila, Indian Economy Since Independence (Academic Foundation 2008) 34.
97 Puja Mehra, ‘NITI Aayog Will Set Policy Agenda’ The Hindu (New Delhi, 1 January 2015)

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 shall formulate a policy that guarantees the functioning of the economic system"
(Article 39(c)). The policy decisions were made in strict adherence to the
aforementioned stipulations.

(ii) Industrial Policy

The Industrial Policy Resolution of 1956 meticulously delineated the various industries
to be bolstered and the corresponding policies to be enacted. The resolution designates
Schedule-A, Schedule-B, and Schedule-C as the prescribed categories for business
types. It is hereby declared that no private entities have been duly authorised to engage
in the operations pertaining to the industries as enumerated in Schedule-A. The
aforementioned group encompassed heavy industries such as military and atomic
power, among others. The oversight of the Schedule-B sectors by the government was
extended to include the limited participation of private companies on the periphery. The
sectors enumerated in Schedule-C were deemed open to private investment and
operation. The resolution herein referred to as "the Resolution" hereby mandates an
increased focus on micro and cottage enterprises.

(iii) MRTP Act, 1969

Pursuant to the enactment of the Monopolies Restrictive and Trade Practises Act, 1969
(MRTP), which took effect on December 27, 1969. 98 The legislation in question finds
its Constitutional foundation in Article 39(c), which imposes an obligation upon the
state to undertake necessary measures in order to prevent the accumulation of economic
power.99 While the legislation in question does not possess the same breadth as the
Sherman Act, it stands as the initial enactment within Indian law to specifically tackle
matters pertaining to competition policy. The Monopolies and Restrictive Trade
Practises Act (MRTPA) was enacted with the following objectives:

98 AN Oza, ‘Monopolies and Restrictive Trade Practices Act’ (1970) 5 Economic and Political Weekly 413.
99 Yash Vyas, ‘The Constitutional Basis for Government Regulation of Concentration of Economic Power,
Monopolies and Restrictive Trade Practices: The Indian Case’ (1992) 25 Verfassung und Recht in Übersee / Law
and Politics in Africa, Asia and Latin America 37.

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 (1) the prevention of the concentration of economic power to the detriment of the
general public;
(2) the regulation and control of monopolies;
(3) the prohibition of monopolistic trade practises;
(4) the prohibition of restrictive trade practises; and
(5) the prohibition of unfair trade practises.100

Section 66 of the Competition Act, 2002, following nine revisions, ultimately rendered
the Act obsolete. The aforementioned changes of utmost significance transpired in the
years 1984 and 1991. Pursuant to the objective of protecting consumers against
deceptive marketing practises, regulations pertaining to "unfair commercial practises"
were introduced in the year 1984. The 1991 modification resulted in the complete
omission of Chapter III.101

Pursuant to the provisions set forth in the aforementioned Act, it is hereby stated that a
comprehensive enumeration of nine distinct chapters is contained therein. Chapter I of
the document pertained to the preliminary provisions, Chapter II established the MRTP
Commission, Chapter IV addressed monopolistic trade practises, Chapter V dealt with
restrictive trade practises and unfair trade practises, Chapter VI controlled certain
restrictive trade practises, Chapter VII addressed the MRTP Commission's authority to
obtain information and appoint inspectors, and Chapter VIII concluded with the final
provisions. Chapters III and IV of the legislation established significant anti-monopoly
provisions.

Chapter III of the Act pertained to the matter of "concentration of economic power." It
sought to ascertain the degree to which businesses exert influence over the trajectory of
the economy. Periodic updates regarding the threshold value were duly furnished.
Pursuant to applicable regulations, companies meeting the aforementioned criteria are
obligated to duly disclose their current status to the federal government. It is imperative

100 Preamble to the Monopolies and Restrictive Trade Practices Act, 1969.
101 JC Sandesara, ‘Restrictive Trade Practices in India, 1969-91: Experience of Control and Agenda for Further
Work’ (1994) 29 Economic and Political Weekly 2081.

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 that such businesses obtain prior authorization from the federal government for any
proposed mergers or acquisitions. In the event that it is ascertained that the operations
of said businesses are detrimental to the public interest, the federal government may
potentially compel their dissolution.

Chapter 4 of the aforementioned document pertained to the examination and analysis of

monopolistic commercial practises. The term "monopolistic trade practises" is legally
defined in Section 2(i) as actions that impede or limit the production and distribution of
goods and services, thereby causing artificially high prices. It has been asserted that the
aforementioned actions have a deleterious impact on society, and it is contended that
the federal government possesses the requisite jurisdiction to curtail such activities.

Liberalisation of 1991
On December 31, 1990, India experienced the adverse effects of a worldwide economic
crisis. The foreign currency reserves of the Republic of India have been depleted. In the
aforementioned time period, it is duly noted that India, in its pursuit of securing foreign
exchange reserves, engaged in the act of pledging a total of 47 tonnes of gold to the
Bank of England and an additional 20 tonnes of gold to the Union Bank of Switzerland.
Pursuant to the terms of the agreement between the International Monetary Fund (IMF)
and the Republic of India, the latter has undertaken the commitment to grant access to
its domestic market to international businesses.102

The subsequent statements have been extracted from a report delineating the
progression of India's economic system: In the year 1991, the nation faced a near
bankruptcy as a result of a Balance of Payments matter. In consideration of a rescue
provided by the International Monetary Fund, India was subjected to economic changes
and the devaluation of its currency, the rupee. The aforementioned nadir functioned as
the catalyst for imperative modifications aimed at liberating the economy and restoring
its functionality. The liberalisation of the economy was achieved by means of

102 Bimal Jalan, India’s Economic Crisis: The Way Ahead (Oxford University Press 1991) 3.

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 eliminating trade and investment barriers, fostering private sector entrepreneurship and
competitiveness, and gradually embracing the concept of globalisation.103

The present discourse concerns the historical backdrop pertaining to the 1991
amendments made to the Monopolies and Restrictive Trade Practices (MRTP) Act,
whereby Chapter III, encompassing matters pertaining to the concentration of economic
power, was duly eliminated. Notwithstanding the foregoing, it is evident that the
prevailing MRTP Act is manifestly ill-suited to the present circumstances. Domestic
companies were compelled to confront adversaries hailing from foreign jurisdictions.
The manufacturing sector in India was found to be ill-equipped to handle the sudden
and significant transition. In light of prevailing circumstances, it is imperative to enact a
modernised legislation pertaining to competition. Notwithstanding, it was not until the
year 1999 that the government deigned to contemplate the matter at hand.

Raghavan committee Report

The Government of India, in October 1999, established a committee known as the
"High Level Committee on Competition Policy and Law." The oversight of this group's
work was conducted by Mr. S.V.S. Raghavan, an experienced official and businessman.
The study in question is commonly referred to as the "Raghavan Committee report."
The committee, on the 22nd day of May, in the year 2000, duly presented its findings to
the government.104

Upon careful examination, the committee has determined that the free market system
exhibits superiority over the planned economy. In light of this finding, the committee
hereby presents a series of recommendations to the government, aimed at enhancing the
environment conducive to the implementation of competition policy. The committee
hereby asserts its insistence upon the revision of the Industries (Developments and
Regulation) Act of 1951, as it is deemed incongruous with the contemporary economic
framework and has ceased to fulfil any meaningful objective. It is hereby proposed that

103 ‘India Report’ (Astair Research 2004)

<http://www.iptu.co.uk/content/pdfs/india%20related%20article/india_independance_day.pdf>.
104 TT Ram Mohan, ‘Competition Policy Dilemmas’ (2000) 35 Economic and Political Weekly 2499.

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 the Industrial Disputes Act of 1947 be subjected to revision in order to facilitate a
streamlined process for employees to disengage from companies that have ceased to be
financially viable. The advocacy was for trade policies that are open,
nondiscriminatory, and governed by established rules.105

With respect to the matter of the MRTP problem, it has been proposed that the
complete elimination of the aforementioned law is advisable. It is hereby proposed that
a new legislative measure be enacted, herein referred to as the "Competition Act," with
the intention of superseding the existing MRTP Act. The present proposal seeks to
address the subsequent matters:

1. Business contracts.
2. Alleged Misuse of Power and Authority
3. Mergers

Furthermore, it has been proposed that, in accordance with the provisions of the
aforementioned Act, a commission be duly constituted under the appellation
"Competition Commission of India" for the purpose of supervising the implementation
and enforcement of the Competition Act and its associated regulations.

Overview of Competition Act, 2002

The whole length of the Competition Act, 2002 is 10 sections. In this chapter, we
define some of the words used throughout the Act and discuss its scope and application.
The "prohibition of certain agreements, abuse of dominant position, and regulation of
combinations" is the focus of Chapter II. The Competition Commission of India is
established and its membership is outlined in Chapter III. The "duties, powers and
functions of commission" are discussed in Chapter IV. The "duties of director general"
are discussed at length in Chapter V. Penalties for violations of the Act are outlined in
Chapter VI. Discussion of "competition advocacy" takes place in Chapter 7. Topics

105 SVS Raghavan, ‘Report of High Level Committee on Competition Policy and Law’ (2000)

83
 related to "finance, accounts, and audit" are discussed in Chapter VIII. The
"competition appellate tribunal" was established in Chapter VIII-A, a new addition
made possible by the 2007 Act of Amendments. The various clauses are grouped
together in Chapter IX.

Objectives of Competition Act, 2002

The Competition Act of 2002 consists of a total of ten chapters. 106 This section shall
provide a comprehensive description of the scope and applicability of the Act, as well
as a clarification of various terms employed therein. Chapter II of the document
pertains to the "Prohibition of Certain Agreements, Abuse of Dominant Position, and
Regulation of Combinations." Chapter III of the present document establishes the
Competition Commission of India, herein referred to as the Commission, and outlines
the composition of its membership. The definition of the "duties, powers, and functions
of the commission" can be found in Chapter IV. Chapter V of the aforementioned
document provides a comprehensive exposition of the "duties of the director general."
Chapter VI of the aforementioned document explicitly delineates the repercussions
associated with the violation of the law. The subject matter of "competition advocacy"
is expounded upon in Chapter 7. Chapter VIII of this document delves into matters
pertaining to finance, accounts, and audit. Pursuant to the provisions set forth in
Chapter VIII-A, the establishment of the "competition appellate tribunal" was
effectuated by virtue of the Act of Amendments of 2007. Chapter IX hereby compiles
and consolidates the various provisions.

The regulatory entity known as the Competition Commission of India was established
by the Competition Act, 2002 with the objective of promoting and safeguarding
competition in India. Pursuant to its conferred powers, the Commission is vested with
expansive authority to conduct inquiries and investigations into matters pertaining to
violations of the fundamental principles of fair competition within the marketplace.
Furthermore, it is intended to serve as an advocate for the promotion and preservation
106 Although the last chapter is “Chapter IX Miscellaneous”, one extra chapter, namely “Chapter VIII-A” was
added through the Amendment Act of 2007. Hence there are totally ten chapters in the Act.

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of competitiveness. The Commission has been duly tasked with the responsibility of
conducting inquiries and investigations into instances of abuse of dominant position
that possess the capacity to impede market competition.

Anti Competitive Practices Explained

Chapter II of the aforementioned document encompasses four distinct sections that

pertain to the identification and examination of three specific types of anticompetitive
behaviour. The subject matter of "anti competitive agreements" is duly addressed and
regulated under the provisions of Section 3. Similarly, the issue of "abuse of dominant
position" is appropriately dealt with in Section 4. Furthermore, the regulation of
combinations is comprehensively covered in Sections 5 and 6.

Pursuant to the provisions set forth in Section 3, any agreements that have the effect of
restraining competition are explicitly prohibited. Pursuant to the initial provision of
Section 3, it is impermissible for any business or collective of businesses to partake in
an arrangement that results in a significant detrimental impact on competition within
the jurisdiction of India. Pursuant to Clause 2, it is hereby declared that all agreements
as delineated in Clause 1 shall be rendered null and void. Clause 3 delineates the
various manifestations of agreements that exert a substantial adverse impact on
competition. Pursuant to Clause 4, any agreements entered into between businesses that
exhibit substantial disparities in their respective production levels, and which result in a
detrimental effect on competition, shall be deemed impermissible and prohibited. The
term "vertical agreements" pertains to contractual arrangements of this nature. The
aforementioned agreement between a book publisher and a paper mill serves as an
illustrative instance. Subject to the stipulations established in Clause 5, the present
matter is contingent upon the prerequisites that the proprietors of intellectual property
rights consider essential for the adequate safeguarding of their rights.

Section 4 pertains to the subject matter of "abuse of dominant position." The initial
clause of this provision hereby prohibits any business or organisation from engaging in

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the abuse of their dominant position. Clause 2 enumerates five distinct manifestations
of dominance abuse. The five cases are herein enumerated:

Firstly, it is necessary to determine the fairness or discriminatory nature of a condition

imposed on the sale of a product or service. In instances where disparate pricing is
applied to identical products or services based on an individual's identity or
characteristics. Predatory pricing is a form of pricing that can be classified as
discriminatory pricing.

In situations where quotas are imposed on the production of goods or provision of

services. In instances where constraints are imposed upon the advancement of a
product's scientific and technological aspects.

Thirdly, in the event that said methods result in the company being prohibited from
accessing specific markets.

The aforementioned business practise pertains to the act of conditioning the acceptance
of a contract upon the acceptance of obligations that are not directly related to the
principal transaction.

In instances where a company leverages its dominant position within a particular

market to engage in the entry or protection of another market.

Within this section, it is imperative to acquire an understanding of the precise

definitions pertaining to three fundamental concepts, namely dominant position,
predatory price, and group. The definition of a dominant position in India is as follows:
"A position of strength, which is held by an enterprise in the relevant market in India,
that allows it to operate independently of the prevailing market forces in the relevant
market, and has the ability to influence its competitors, consumers, or the relevant
market in its favour."

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The term "predatory price" refers to the act of selling products or providing services at
a price lower than the cost of production or provision, as may be governed by
applicable regulations, with the intention of reducing competition or eliminating
competitors.

Pursuant to Section 4, the term "group" shall bear the definition as expounded upon in
Section 5. The term "group" is defined in the elucidation of Section 5 as follows: a
collection of two or more enterprises that possess the ability, either directly or
indirectly, to exercise twenty six percent or more of the voting rights in the other
enterprise; or appoint over fifty percent of the members of the board of directors in the
other enterprise; or exert control over the management or affairs of the other enterprise.

The term "combination" is broadly defined in Section 5. The combination referred to as

"acquisition of one or more enterprises by one or more persons or merger or
amalgamation of enterprises" is recognised as a combination as defined in Section 5.
Section 6 shall be invoked in the event that a specific amalgamation of categories is in
existence. Section 6 pertains to the subject matter of the regulation of combinations. It
is stipulated that no individual or entity shall engage in any form of collaboration that
results in or has the potential to result in a significant detrimental impact on
competition within the relevant market in India. Any such collaboration shall be
deemed null and void. Pursuant to the aforementioned rule, it is incumbent upon all
parties involved in a premeditated merger or acquisition to provide prior notification to
the Competition Commission of India (CCI) no less than 30 days in advance. In the
event that the CCI fails to take action within a period of two hundred and ten days
subsequent to the receipt of the notification, it shall be presumed that the combination
has become effective without delay. The Competition Commission of India (CCI)
possesses the requisite authority to intervene and prohibit a merger or acquisition in the
event that it determines such action would result in an adverse effect on competition.

Establishment of the Commission

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Chapter III of the Competition Act, 2002 pertains to the subject matter of the
"Competition Commission of India". This chapter encompasses provisions that
establish the commission and delineate the process by which the crucial positions
within the commission are appointed. This chapter encompasses Sections 7 through 17.
Section 7 pertains to the establishment of the commission. Pursuant to Clause 1 of
Section 7, it is hereby provided that the Central Government is empowered to establish
a commission for the purpose of overseeing the implementation and operation of this
Act. Said commission shall be officially referred to as the "Competition Commission of
India." Pursuant to the provisions set forth in Clause 2 of Section 7, the Commission is
hereby bestowed with the legal status of a body corporate, thereby rendering it subject
to the stipulations and requirements as prescribed by the Act. Section 8 pertains to the
composition of the Commission. Pursuant to Section 8, it is hereby provided that the
commission shall be under the leadership of a single individual, referred to as the
Chairperson. The number of additional members shall be limited to a range of two to
six. The aforementioned provision further stipulates that the individuals comprising the
membership, as well as the Chairperson, must possess a commendable level of integrity
and possess substantial expertise in the areas of economics, finance, public policy,
industry, management, accountancy, and competition policy. A selection committee
shall be duly constituted for the purpose of appointing the Chairperson and members of
the Commission. The aforementioned matter is elucidated in Section 9. Pursuant to the
aforementioned provision, it is hereby stipulated that the selection committee shall be
comprised of a total of five members. Pursuant to the aforementioned provision, it is
hereby stipulated that out of the total of 5 individuals, precisely two shall possess
expertise in the specific domain of business, commerce, law, and related disciplines.

The remaining three members shall consist of the Chief Justice of India or an individual
appointed by the Chief Justice of India (in the capacity of chairperson), the Secretary
within the Ministry of Law and Justice, and the Secretary within the Ministry of
Corporate Affairs. The procedures and conditions governing the operation of the
selection committee and its terms shall be delineated in the rules promulgated by the
Central Government. Pursuant to Section 10, the duration of the members' tenure, as

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well as that of the Chairperson, shall be established at a period of 5 years. The
extension of this term may be exercised at the discretion of the Central Government.
The prescribed age of retirement for the aforementioned positions is set at sixty-five
years. In the event of the demise, dismissal, or voluntary departure of any member or
the Chairperson, the selection and appointment process for the vacant position shall be
conducted in accordance with the provisions outlined in Section 8 and 9. In the event
that the position of the Chairperson becomes vacant as a result of death, resignation, or
any other circumstance, it shall be necessary for the senior most member to assume the
role of acting Chairperson in order to fulfil the duties and responsibilities until such
time as the vacancy is properly filled. The provisions pertaining to the resignation,
removal, and suspension of the Chairperson and members are encompassed within the
purview of Section 11. The Chairperson and members shall have the authority to tender
their resignation to the Central Government, and it shall be incumbent upon them to
retain their respective positions for a duration of three months commencing from the
date of resignation. In the event that any member or the Chairperson expresses a desire
to vacate their office prior to the completion of a three-month term, it shall be necessary
for the Central Government to grant permission for such departure. Pursuant to Section
11, it is hereby provided that a member or Chairperson may be subject to removal
under specific circumstances. The following grounds are as follows:

1. The term "insolvency" refers to a financial state in which an individual or entity is

unable to meet their financial obligations and liabilities.
2. Engaging in concurrent remunerative occupation while occupying a position of
authority.
3. Found guilty of a transgression that impugns his moral character.
4. Acquisition of a financial interest that would create a conflict with the proper
discharge of duties on the board of the Commission.
5. The commission of acts constituting abuse of one's position and engaging in
conduct contrary to the public interest.
6. The presence of physical or mental incapacity. In the event that a member or the
Chairperson necessitates removal, it is incumbent upon the Central Government

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to initiate a reference to the Supreme Court for the purpose of conducting an
inquiry.

It is only upon the recommendation of the Supreme Court that the removal may
be effectuated. In order to uphold principles of equity, Section 12 mandates that
any individual who assumes the role of member or Chairperson of the
Commission shall refrain from accepting any form of employment from an
enterprise that was involved in the aforementioned proceeding before the
Commission. Furthermore, it is stipulated that any form of employment under the
Central Government, State Government, or any local authority shall be exempted
from the provisions of this rule. Pursuant to the provisions set forth in Section 13,
it is hereby established that the Chairperson shall possess the authority of
overseeing, directing, and maintaining control over all administrative affairs
pertaining to the Commission. Subject to the condition that the Chairperson may,
at their discretion, assign certain powers pertaining to the administrative affairs of
the Commission to any other Member or officer of the Commission. Henceforth,
it is imperative to acknowledge the utmost significance of the office of the
Chairperson within the Commission. Pursuant to Section 14, it is stipulated that
the particulars pertaining to salary and allowances shall be prescribed by the
Central Government. Pursuant to Section 15, the Commission shall afford
protection to all proceedings conducted therein. Pursuant to Section 16, the
present provision outlines the prescribed procedure for the appointment of the
Director General. The appointment of the Director General is made with the
specific objective of conducting an inquiry into potential violations of the
provisions outlined in the Act. Additionally, the Director General is entrusted
with the responsibility of performing various administrative functions. Several
officials are hereby appointed to provide assistance to the Director General. The
individuals in question operate within the parameters of the Director General's
authority and oversight. The Director General and the officials subordinate to him
shall possess exemplary integrity and possess substantial expertise in the domains
of public administration, business, economics, law, and investigation. In

90
accordance with Section 17 of the Act, provisions are made for the appointment
of a secretary, as well as experts and professionals, to aid in the effective
implementation and operation of the aforementioned legislation. The
determination of salaries and allowances for the aforementioned experts and
professionals shall be prescribed by the Central Government. The qualifications
necessary for these experts and professionals shall be duly notified by means of
regulations.

Duties, Powers and Functions of Commission

The mandates, authorities, and responsibilities of the Commission are delineated

in Chapter IV of the Act. The functions of the Commission, as well as the extent
of its inquiry into anti-competitive agreements and combinations, the conduct of
Commission meetings, jurisdiction, issuance of orders, authority to grant
compensation, and other procedural aspects are comprehensively delineated.
Chapter IV of the aforementioned document encompasses sections 18 through 40.
Pursuant to the provisions of the 2007 Amendment Act, it is hereby declared that
Articles 23, 24, 25, 34, and 37 have been eliminated.

Pursuant to Section 18 of the applicable legislation, it is hereby stipulated that the

Commission shall bear the responsibility of eradicating practises that have a
detrimental impact on competition, fostering and maintaining competition,
safeguarding the welfare of consumers, and guaranteeing the unimpeded conduct
of trade by other market participants within the boundaries of India.

Pursuant to Section 32 of the applicable legislation, the Commission is

empowered to investigate and examine occurrences that transpire beyond the
territorial boundaries of India, yet possess a discernible influence on the
competitive landscape within the nation. Pursuant to the aforementioned
objective, Section 18 of the Act confers upon the Commission the requisite
authority to establish cooperative relationships with its counterparts in foreign

91
 jurisdictions. Notwithstanding any other provision herein, it is hereby stipulated
that the Commission shall be required to obtain the requisite approval from the
Central Government prior to executing any agreement of such nature. On
December 1, 2014, a Memorandum of Understanding (MoU) was executed
between the Commission and the Competition Bureau of Canada for the purpose
of effectuating the aforementioned regulation. 107 On the 19th day of May in the
year 2016, the nations comprising BRICS (Brazil, India, Russia, China, and South
Africa) entered into a legally binding memorandum of agreement.

Section 19 provides a comprehensive account of the examination pertaining to

anticompetitive agreements and the abuse of dominating positions. 108 Pursuant to
Clause 1, the Commission retains the authority to commence an investigation
either "suo motu" (of its own accord) or "upon receipt of a complaint or
information from consumers, trade associations, or reference by State and Central
Governments."

The criteria for determining the presence of an anticompetitive impact in India are
set forth in Clause 3. The criteria for the classification of a business as holding a
"dominant position" are delineated in Clause 4. In order to assess the "abuse of
dominant position" as outlined in Clause 5, it is imperative to duly consider the
relevant geographic market and relevant product market, as they pertain to
determining whether a market qualifies as a "relevant market." The criteria for
determining the relevant geographic market and relevant product market are set
forth in Clauses 6 and 7, respectively.

Section 20 of the aforementioned document pertains to the "inquiry into

combination by Commission." Pursuant to the initial provision, the Commission
is empowered to conduct an investigation into any combination subsequent to the
receipt of information under Section 5 or upon obtaining information
independently. Upon the elapse of a period of one year subsequent to the effective
107 International Cooperation, http://www.cci.gov.in/international-cooperation (last visited 27.07.2023).
108 Sec. 4 of Competition Act, 2002

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date of the combination, the aforementioned provision explicitly stipulates that no
investigation shall be initiated. The criteria for the analysis of potential harm to
competition in India resulting from a merger or acquisition are delineated in
Section 4.

The regulations pertaining to the conduct of the Commission's meetings are

delineated in Section 22. The Commission shall convene at specified intervals and
designated locations, ensuring strict adherence to appropriate procedures
throughout. It is incumbent upon the Chair to assume responsibility for the
proceedings. In the event that the Chairperson is unavailable, it shall be the
responsibility of the most senior member to assume control. All questions shall be
resolved through the process of a simple majority vote. In the event of a tie, it
shall be deemed that the Chairperson is entitled to cast an additional vote.

The procedure for inquiry under Section 19 is delineated in Section 26. Upon
receipt of information pursuant to Section 19, the Commission shall have the
authority to initiate an investigation by the Director General, should it determine
the existence of merit in the matter, as stipulated in Clause 1. In the event that the
Commission, in accordance with Clause 2, determines that there is no basis for
further investigation, it shall have the authority to issue an order terminating the
inquiry. Subsequently, the Commission shall be required to furnish a copy of said
order to the parties who have provided information pursuant to Section 19. The
Director General shall assume the responsibility of conducting any investigations
as may be requested by the Commission, and shall duly submit a report of
findings to the Commission within a time frame as determined by the
Commission. Upon receipt thereof, the Commission shall duly disseminate the
report to the relevant parties necessitating access thereto.

In the event that the Director General reports that there is no basis for additional
action, the Commission shall extend an invitation to interested parties to register
any necessary objections. In the event that the Commission, subsequent to its

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examination of the objections, concludes that further examination is necessary, it
reserves the right to make a formal request to the Director General to undertake an
investigation of the matter. In the event that the investigation uncovers evidence
of a violation of the Act, it shall be incumbent upon the commission to initiate an
inquiry into the matter.

Section 27 pertains to the "orders by Commission subsequent to an inquiry into

agreements or abuse of dominant position." In the event that the Commission,
subsequent to conducting an investigation, arrives at the conclusion that a
business has contravened Section 3 or Section 4 of the Act, the Commission is
empowered to pursue the remedies delineated within this section. The
Commission possesses the requisite authority to issue an order mandating the
cessation of unlawful practises by the company that is engaging in abusive
conduct due to its dominant market position. Pursuant to its statutory mandate, the
Commission possesses the requisite jurisdiction to interdict any commercial
enterprise from engaging in an arrangement that is deemed to be anti-competitive
in nature.

The Commission may impose a monetary penalty. Any company found to have
violated the provisions outlined in Section 3 or Section 4 shall be obligated to
remit the corresponding monetary penalty. The maximum amount of the fine shall
not surpass ten percent (10%) of the company's average revenue over a period of
three (3) years. In the event that a company engages in repeated violations of
Section 3, it is possible that the prescribed penalty shall amount to no less than
three times the annual earnings. The present action is undertaken with the purpose
of halting the ongoing practises of the companies in violation.

Pursuant to its statutory mandate, the Commission possesses the requisite

authority to issue an order compelling the aforementioned companies to effectuate
amendments to their existing agreements, thereby ensuring compliance with
applicable legal provisions. In the event that breaches are identified, the

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Commission may, in addition, impose an obligation upon the companies to bear
the costs associated with the investigation. Furthermore, the Commission reserves
the authority to issue any other order or directive that it deems appropriate. The
Commission has been duly vested with expansive authority, thereby affording it
the requisite latitude to promulgate any directives it deems appropriate.

Pursuant to the provisions set forth in Section 28, the Commission is vested with
the requisite authority to effectuate the dissolution of a company that possesses a
position of market dominance. Pursuant to the provisions set forth in this clause,
the Commission reserves the authority to initiate appropriate measures aimed at
dismantling a company as a means to mitigate the potential abuse of monopoly
power. Pursuant to its statutory mandate, the Commission possesses the requisite
authority to effectuate the division of a business entity, as well as to effectuate
modifications to existing contractual arrangements, alterations to the ownership
structure of shares, dissolution of a corporate entity, or the establishment of a
novel corporate entity. In the event of a business split, it is hereby stipulated that
any worker who has been laid off as a direct consequence thereof shall be
precluded from initiating a claim seeking compensation for any resulting
damages.

The inquiry approach for certain combinations is delineated in Sections 29, 30,
and 31. The Commission is granted extraterritorial jurisdiction pursuant to
Section 32, a provision that is distinct and exceptional in nature. In instances
where there is a reasonable belief that there has been a significant negative impact
on competition within India, the Commission is vested with the power to initiate
an inquiry into occurrences that have taken place beyond the territorial boundaries
of India. The remaining sections between Section 33 and Section 39 address the
matters pertaining to the authority to issue interim orders, the authority to compel
presence before the Commission, and the Commission's competence to oversee its
own process and implementation of orders. The obligations and responsibilities
pertaining to the position of Director General are comprehensively expounded

95
upon within the confines of Chapter V. Section 41 shall be deemed as the sole and
exclusive provision contained within the confines of this chapter. Pursuant to
Section 41, the Director General is duly empowered to provide assistance to the
Commission in its inquiry into potential violations of the Act. Pursuant to the
authority vested in the Director General, he or she is duly empowered to issue
subpoenas and preside over hearings in a manner akin to that of a judicial officer.

Penalties

The penalties for noncompliance with orders and instructions issued by the
Commission are delineated in Chapter VI of the Act. Pursuant to Section 42, the
Commission is empowered to initiate an inquiry for the purpose of determining
compliance with its directives. In the event of non-compliance with the directives
issued by the Commission, the Commission is vested with the power to impose a
monetary penalty of up to 10 crores of rupees, or alternatively, one lakh rupees
per day. In the event that an individual fails to adhere to the aforementioned order
or fails to remit the specified payment, said individual may be subject to
imprisonment for a duration not exceeding three years, as decreed by the Chief
Metropolitan Magistrate of Delhi.

In the year 2007, an amendment was enacted that introduced Section 42-A, which
imposes an obligation for financial restitution upon businesses that fail to comply
with directives issued by the Commission, for the benefit of the victims.
Illustration: In the event that the Commission issues an order against company P
for engaging in anticompetitive behaviour by abusing its dominant market
position, and subsequently advises company P to cease all such abusive practises,
it is incumbent upon company P to adhere to the directives provided. In the event
that Firm P fails to comply with the directives and persists in engaging in
anticompetitive practises, thereby resulting in financial detriment to Firm Q, Firm
Q shall be entitled to pursue legal remedies to recover the damages it has suffered

96
as a direct result of Firm P's anticompetitive behaviour. The aforementioned
compensation shall be the responsibility of company P.

Failure to report Section 6 combinations in accordance with the provisions set

forth in Section 43-A may result in the imposition of a penalty by the
Commission, equivalent to 1% of your annual revenue. In the event that an
individual or entity provides deceptive or inaccurate information pertaining to
particular combinations, as outlined in Section 6, said individual or entity shall be
subject to a monetary penalty ranging from fifty thousand to one million rupees,
as stipulated under Section 44. Pursuant to Section 45 of the applicable
regulations, this provision pertains to instances wherein violations occur with
respect to the orders issued by the Commission, specifically those that mandate
the provision or omission of certain information. In the event of such a violation,
it is possible that a monetary penalty of up to one crore may be imposed.

Pursuant to the provisions set forth in Section 46, the Commission possesses the
requisite authority to exercise its discretion in imposing a penalty of reduced
magnitude. The task of locating trustworthy information pertaining to cartels may
present a considerable challenge. The aforementioned circumstance arises from
the customary absence of written documentation pertaining to anti-competitive
agreements. The agreement entered into by businesses with the intention of
restricting price increases is typically informal and lacks written or documented
evidence. The aforementioned development serves to augment the complexity of
the Commission's undertaking. The following provision serves as a mechanism to
facilitate the acquisition of additional knowledge by the Commission pertaining to
cartels. The penalty imposed on a participant of a cartel by the Commission may
be subject to reduction if said individual furnishes the Commission with
comprehensive and accurate information pertaining to the cartel. An individual
who terminates their cooperation prior to the conclusion of the investigation shall
be deemed ineligible for the mitigated penalty.

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All fines that are remitted to the Commission pursuant to Section 47 shall be duly
transferred and deposited into the Consolidated Fund of India. The entity referred
to as the "Consolidated Fund of India" serves as the designated depository for all
federal and state taxes, as well as other revenues, as explicitly outlined in Article
266 of the Indian Constitution. Withdrawals from this fund shall be prohibited
unless expressly authorised by statute.

Competition Advocacy

The topic of "Competition Advocacy" is expounded upon in Chapter 7. The

comprehensive compilation of pertinent details regarding Competition Advocacy
can be found in a singular location: Pursuant to Section 49 of the applicable
statute, it is hereby stated that the following provisions shall govern and apply.
Pursuant to Clause 1, the Central Government and the State Governments are
authorised to solicit the formal opinion of the Commission in relation to measures
that have an impact on competition. Pursuant to its obligations, the Commission
shall render a ruling within a period of sixty days subsequent to the receipt of said
request. Neither the Central Government nor the State Governments shall be
obligated to adhere to the guidance provided in clause 2. The Commission has a
legal duty to advance and foster competition through the methods delineated in
Clause 3.

Finance, Accounts and Audit

The sections enumerated as 50, 51, 52, and 53 are contained within Chapter VIII,
bearing the title "Finance, Accounts, and Audit." Pursuant to Section 50, it is
within the purview of the Central Government to allocate financial resources to
the Commission through the enactment of appropriate legislation. The funds shall
be utilised by the Commission for the purpose of covering administrative costs
and fulfilling its obligations as mandated by the Act.

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Pursuant to Section 51, it is mandated that the establishment of the "Competition
Fund" shall be required, and all donations made to the Commission, fees collected
by the Commission, and any interest accrued from these funds shall be obligated
to be deposited therein. Pursuant to Section 47, the monetary penalties imposed
by the Commission are directed to be deposited into the "Consolidated Fund of
India." The payment of the wages of the members and employees of the
Commission shall be sourced from the Competition Fund. The formation of a
Committee is the duty and obligation of the Commission Chair. Pursuant to the
provisions set forth in the Act, it is hereby established that the Commission shall
undertake the fulfilment of its objectives through the establishment of a
Committee, which shall be vested with the responsibility of allocating funds as
deemed necessary.

Pursuant to the provisions set forth in Section 52, it is mandatory for the
Commission to maintain precise and comprehensive records of all transactions
pertaining to the Competition Fund. Additionally, the Commission is obligated to
furnish an annual statement of accounts. The financial accounts of the
Commission shall be subject to review by the Comptroller and Auditor General of
India. The Commission shall assume responsibility for the financial obligations
arising from the audit conducted by the Comptroller and Auditor General.
Pursuant to the elucidation provided in Section 52, it is hereby established that the
Comptroller and Auditor General (CAG) of India is devoid of any entitlement to
peruse or obtain access to the orders promulgated by the Commission. The CAG,
hereinafter referred to as the authorised entity, is duly empowered and authorised
to conduct a comprehensive examination of all documents held by the
Commission, without limitation, encompassing financial records and accounting
books. The audit conducted by the Comptroller and Auditor General (CAG) shall
be received by the Central Government. Pursuant to Section 53, it is incumbent
upon the Commission to periodically make public its operations and any records
pertaining to financial matters. The Central Government, in turn, bears the
responsibility of presenting the audit papers before Parliament. The Commission

99
is obligated to transmit annual reports, in the prescribed format, to the Central
Government. All documentation that is submitted to the Federal Government shall
be made available to Congress. The purpose of these regulations is to prohibit any
form of obscure financial transactions or improper administration within the
Commission.

Conclusion

The establishment of the Competition Commission of India, herein referred to as

the Commission, was mandated by the Competition Act, 2002, with the primary
objective of promoting and safeguarding competition within the territory of India.
Pursuant to its conferred powers, the Commission is vested with expansive
authority to conduct inquiries and examinations into matters pertaining to
violations of the "spirit of competition" within the marketplace. The proponent is
required to additionally advocate for the promotion of "competition" within the
marketplace. The commission has been duly entrusted with the responsibility to
conduct an inquiry and investigation into cases pertaining to the abuse of
dominant position, which possess the capacity to impede competition. In the
subsequent chapter, an analysis is conducted to examine and juxtapose the legal
precedents pertaining to the misuse of dominating position in the jurisdictions of
the United States and India.

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 CHAPTER VI

ROLE OF JUDICIARY IN DEALING THE ABUSES OF

DOMINANCE UNDER THE COMPETITION ACT, 2002 : USA &
INDIA

The substantive content of this study is encompassed within the confines of this
particular chapter. The analysis and comparison of the provision on Abuse of Dominant
Position in India with its counterpart in the United States is undertaken in a critical
manner within this chapter. The term "Dominant Position" has been expanded to
encompass the concept of "Monopoly" in a broader context. In a market characterised
by monopolistic conditions, a singular entity exclusively engages in operations. The
term "dominant position" implies, nonetheless, that the company under consideration is
not the sole entity of its kind within the market.

The present analysis commences by scrutinising the precise delineation of the term
"Abuse of Dominant Position" (hereinafter referred to as "ADP") and the divergent
judicial interpretations of Section 4 of the Indian Competition Act, 2002. The present
discourse encompasses the examination of pertinent markets, the assessment of market
dominance, and the scrutiny of potential instances of market power abuse. The
utilisation of case studies serves the purpose of elucidating the various manifestations
of abuse and the concept of pertinent market within the context of this discourse.

The investigation of Section 2 of the Sherman Antitrust Act in the United States shall
be undertaken as a secondary subject matter. The Indian legal doctrine known as
"Abuse of Dominant Position" may be analogously juxtaposed with the

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"Monopolisation Provision" of the United States. The present analysis undertakes a
dissection of various instances wherein the Monopolisation clause has been employed.

In the third instance, a comparison is drawn between the concept of "Monopolisation in

the USA" and "Abuse of Dominant Position in India." This comparison serves to
illustrate the similarities and distinctions between Indian law and American law.

Abuse of Dominant Position in India

In India, the matter of "abuse of dominant position" is specifically dealt with in Section
4 of the Competition Act, 2002. The issue of abuse of dominance was not explicitly
dealt with in the aforementioned statute, namely the Monopolies and Restrictive Trade
Practises Act of 1969. The formal recognition of this feature is established for the first
time under the Competition Act. The aforementioned clause bears resemblance to EU
Article 102, which effectively proscribes the engagement in "abuse of dominant
position" within the confines of the EU internal market. The legal system of India has
duly incorporated and adhered to prevailing international norms and standards.

Statutory Foundation

The provisions set forth in the Competition Act of 2002, the following sections shall be
invoked for the purpose of determining the criteria for identifying instances of abuse of
a dominant position (ADP):

List of provisions connected to “abuse of dominant position”

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Abuse of dominant position

The topic of "abuse of dominant position" is addressed in Section 4. Two subsections

may be found in Section 4. Certain terms and conditions are defined and explained. As
stated in subsection (1) of section 4, "no enterprise or group shall abuse its dominant
position."

According to Section 2(h), a "enterprise" is a "person or Government department

engaged in business activity." The term does not include government actions that are
properly classified as sovereign functions. For instance, this concept include any
government agency or department that conducts commercial operations. However, this
concept would not apply to a government agency whose primary mission is the control
of nuclear weapons.

For the purposes of subsection (1), the circumstances under which dominant position
abuse occurs are enumerated in subsection (2) of Section 4. It enumerates the following
five forms of abuse:

a. practises that are biassed or unjust

b. confines or bounds

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 c. restriction of trade

d. Contracts with Contingencies

e. using a dominating position to enter a new market

a. practises that are biassed or unjust

It's unclear how directly or indirectly the unfair or discriminating condition is being
enforced. Injustice comes in two forms: overt and covert. To begin, a situation in which
purchasing or selling goods or services is subject to unfair or discriminatory terms.
Second, charging different prices for different groups of people. Predatory pricing is a
kind of discriminatory pricing. The meaning of "predatory price" is elaborated upon as
well. Discriminatory pricing or terms that are implemented to stimulate market entry
are excused under this provision.

b. limits or restrictions

Both upper and lower bounds are discussed. The first step is to reduce output of
whatever it is you're making. A cement factory that has the potential to produce 100
bags of cement per day can, for example, produce just 50 bags per day in order to
increase demand and prices. Second, "restraining the advancement of science or
technology in connection with products or services to the detriment of customers."
Generally speaking, the general populace benefits from advances in science and
technology. Legal prohibitions on this kind of innovation are looked down upon
because of the harm they do to the general populace.

c. restriction of trade

Anyone who wants to launch a company must do it in the marketplace. A local farmer,
for instance, would have to go to the closest market in order to sell his wares. The

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farmer won't be able to sell his goods if he can't get them to market. Distance to market
reduces potential earnings. Having access to customers is essential for every company.
A company is engaging in abusive behaviour if it engages in activities that might result
in the company being denied entry to a market.

d. Contracts with Contingencies

Contracts facilitate the conduct of business transactions. Free willed assent is the basis
for contract formation. "makes conclusion of contracts subject to acceptance by other
parties of supplementary obligations which, by their nature or according to the
commercial usage, have no connection with the subject of such contracts" is an
example of abusive business practises.

e. using a stronghold to break into a market

There were moments when the company ruled its niche market. It may utilise its
dominating position to either penetrate new markets or defend existing ones. Under
Section 4, this is also regarded to be inappropriate. Case studies illuminating the many
forms of abuse are shown and addressed further on.

Section 4's Explanation Appendix Defines the Following Terms

a. Dominant position

b. Predatory price

c. Group

For the purposes of this definition, "dominant position" refers to "the position of
strength, enjoyed by an enterprise, in the relevant market, in India, that enables it to -
operate independently of competitive forces prevailing in the relevant market or affect

105
 its competitors or consumers or the relevant market in its favour." Dominance in a
relevant market must be shown.

In economics, a "predatory price" is a selling price for a product or service that is so

high that it drives out or significantly hinders competitors. The price must be lower than
the production or acquisition price. Prices must be determined in accordance with rules
established by the Competition Commission of India. The term "group" has the same
meaning as set out in Section 5(b) of the Competition Act, 2002.

Cost Estimation

The Competition Commission of India may establish rules for calculating the "cost"
referred to in the definition of "predatory pricing" (Section 64 of the Competition Act,
2002). The Competition Commission of India (Determination of Cost of Production)
Regulations, 2009, were issued by the Commission in accordance with the authority
granted.109 The term "total cost" is defined as "actual cost of production" in the
legislation, which includes things like:

a. Total amount spent on raw materials

a. Wages and salaries paid directly

c. Direct expenses

d. Operating costs

e. Quality control cost

f. Expenses incurred for R&D

109 Competition Commission of India, Notification No. L-3(5) Reg-Cost/2009-10/CCI, dated August 20, 2009,
published in the Gazette of India, Extraordinary, Part III, Section 4, dated 20th August, 2009, pp. 3-4, No. 146.

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 g. Packaging cost

h. Operating costs in accounting and management

If a business disagrees with the price set by the Commission, it may ask the agency to
convene a panel of experts to review the case.

Inquiry

In Section 19, we learn about the investigation of cartels and dominating market
positions.110 According to Clause 1, the Commission may launch an investigation "suo
motu" or after receiving a complaint or piece of information from consumers, trade
groups, or a referral from State or Central Governments.

The criteria for establishing whether an agreement has an anticompetitive impact in

India are laid forth in Clause 3. The criteria for classifying a business as holding a
"dominant position" are laid forth in Clause 4. In assessing whether a market is a
"relevant market" for evaluating the "abuse of dominant position," consideration must
be given to both the "relevant geographic market" and the "relevant product market," as
stated in Clause 5. Relevant geographic market and relevant product market criteria are
defined in Clauses 6 and 7.

Inquiry Procedure Per Section 19

"Procedure for inquiry under Section 19" is provided in Section 26. If the Commission
receives information under Section19 and believes there is validity to the issue, it may
ask the Director General to conduct an investigation under Clause 1. If the Commission
concludes that there is no basis for an inquiry, it may issue an order closing the matter
and transmit a copy to the parties who submitted information under Section 19. The
Director General is responsible for conducting investigations and submitting reports on

110 Sec. 4 of Competition Act, 2002.

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his or her findings to the Commission within a time frame determined by the
Commission. Upon receipt, the Commission will share the report with those who need
to see it.

The Commission shall invite the affected parties to submit objections if they have any
if the Director General reports that there is no cause for further action. If the
Commission, upon reviewing the objections, determines that additional inquiry is
warranted, it may request that the Director General conduct such an investigation. If
there is evidence of Act violation, the commission must open a formal investigation.

Inquiry findings and Commission orders

The "orders by Commission after inquiry into agreements or abuse of dominant

position" are the subject of Section 27. If the Commission investigates and determines
that a business has violated Section 3 or Section 4 of the Act, the Commission may take
the steps outlined in this section. The business engaging in dominant position abuse
may be ordered to cease its illegal practises by the Commission. The Commission has
the authority to stop any business from proceeding with an anti-competitive
arrangement.

The Commission has the power to fine offenders. Each company that broke Section 3
or Section 4 will have to pay the fine. The fine may not exceed 10% of the company's
three-year average revenue. If businesses consistently break the terms of Section 3, they
may be subject to a penalty equal to three times their yearly earnings. This action is
taken to stop the violating companies from continuing their practises.

Companies may be required by the Commission to amend their contracts in order to

meet the requirements of the Act. In cases where breaches are discovered, the
Commission may also require companies to cover the expenses of the investigation. A
"such other order or issue or such directions as it may deem fit" may be issued by the

108
Commission as well. The Commission's authority in this area is broad, and it may issue
such instructions as it sees suitable.

Business unit that has a dominating market share.

The Commission has the authority under Section 28 to break up a company that has a
dominating market position. This clause allows the Commission to take action to break
up a company that is engaging in abusive conduct. Business division is a very unusual
practise. The Commission has the authority to make changes to contracts, share
ownership, liquidate a company, or form a new company for the purpose of dividing an
operation. A worker laid off as a result of a business split will be unable to file a claim
for damages.

Methods for Identifying Power Abuse

The three basic stages that are followed by the Competition Commission of India in
determining misuse of dominant position are as follows.

a. Market Segmentation and Targeting

b. Establishing who's in charge

c. Recognising Abusive Behaviour

The philosophy behind the relevant market and dominating position is explained in the
next section. Then, we examine the relevant market and dominant position case laws
from throughout the world and across industries. Following this, we use specific
situations to talk about various forms of abuse.

Market That Matters

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 The first step in establishing abuse of dominant position is identifying the relevant
market. In this case, we need to classify the market as one of two types:

a. The sector of the market in which the company has a monopoly

b. The industry or market in which the company engages in anti-competitive or abusive

practises

There are instances when the two markets are equivalent. A company that dominates
the market in Karnataka, for instance, may engage in abusive practises in the
neighbouring state of Tamil Nadu. A market is "a place or institution where buyers and
sellers of a good or asset meet," according to the Oxford English Dictionary. For certain
products, a physical market remains the primary distribution channel. For instance,
seafood or livestock markets. The market may also be a group of dealers who do
business via the phone and internet using established norms and protocols.4 Section 4 is
concerned with two distinct markets: those for specific products and those for specific
regions. According to subsection 2(r), the relevant market may be determined by
considering either the product market or the geographical market, or by considering
both.

Market Size by Geography

A "relevant geographic market" is one "comprising the area in which competition for
supply of goods or provision of services or demand for goods or services is distinctly
homogenous and can be distinguished from conditions prevailing in the neighbouring
areas".111

Market Product

111 Section 2(s) of Competition Act, 2002

110
 Relevant product market means "a market consisting of all those products or services
which are regarded as interchangeable or substitutable by the consumer, due to
characteristics of the products or services, their prices, and their intended use."112

Dominant Position

In succinct terms, a dominant position can be defined as a "position of strength, which

an enterprise enjoys"113, thereby granting its possessor the ability to undertake either of
the following actions:

a) function autonomously;

b) influence rivals or customers in its favour.

Business entities that are not subject to the competitive forces prevailing in the market
possess the liberty to establish and implement pricing strategies at their own discretion
for the goods and services they offer. The aforementioned subject matter possesses the
capacity to yield substantial profits. The pursuit of profit maximisation through the
imposition of restrictions on product functionality is a viable course of action. In a
particular jurisdiction, it is worth noting that X stands as the sole entity engaged in the
manufacturing of televisions within its industry. The customers are compelled to
purchase televisions exclusively from this company, thereby granting it the authority to
establish pricing at its discretion. Consequently, the business exercises its own
discretion in making decisions. New entrants Y and Z are anticipated to engage in
competitive behaviour by reducing prices and enhancing features on television sets,
with the objective of attracting and capturing a larger share of the consumer market.
Business X shall be required to depend on alternative sources in order to make
determinations regarding pricing and features. In light of the increased presence of new

112 Section 2(t) of Competition Act, 2002

113 Section 4(2)(a) of Competition Act, 2002

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 competitors, it will be necessary to take appropriate action by implementing a reduction
in prices.

In the case of Belaire Owner's Association v. DLF Ltd.114, the Competition

Commission has provided a definition for the term "position of strength." According to
their definition, a position of strength refers to a heightened level of power possessed
by an enterprise. This level of power enables the enterprise to freely employ pricing or
non-pricing strategies in order to counteract downward pressures on its profits from
competitors. Additionally, it allows the enterprise to attract and retain consumers, as
well as establish a market environment that discourages potential competition from
both rival enterprises and products.

In the case of MCX Stock Exchange Ltd. v. National Stock Exchange of India 115, the
Commission explicitly stated that the term "strong hand" cannot be regarded as an
objective attribute that can be quantified using a predetermined mathematical index or
equation. The analysis of the Indian economy necessitates the consideration of various
factors, which should be thoroughly examined. These factors include relevant facts, a
comprehensive interpretation of seemingly disparate figures or information, and their
practical application. The issue at hand pertains to the determination of whether a
particular player within a designated market possesses distinct comparative advantages
over its competitors in relation to financial resources, technical capabilities, brand
value, historical legacy, and other relevant factors. These advantages enable said player
to undertake actions that would significantly affect its competitors, but which said
competitors would either be unable to replicate or encounter substantial difficulties in
doing so over an extended period of time. The rationale for this proposition stems from
the potential for a dominant entity to exert undue influence over its competitors,
compelling them to adopt a course of action that would confer advantages upon the
dominant entity while simultaneously inflicting harm upon its rivals in the perception
of the market and clientele.

114 2011 Comp LR 239 (CCI).

115 Case No. 13 of 2009, decided on 23 June 2011.

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 In the matter of market penetration and barriers to entry, it is necessary to analyse the
prevailing circumstances and factors that impact the ability of new entrants to establish
a foothold in the market. This analysis aims to ascertain the extent to which existing
market players have established a dominant position and the potential obstacles that:

Cases on Dominant Position and Relevant Market

The following are several notable instances wherein the concepts of Dominant Position
and Relevant Market are referenced. The researcher has chosen significant instances
from various market sectors due to the substantial number of cases adjudicated by the
Competition Commission. The present document presents a case study wherein the
primary focus lies on the computation of market share and the establishment of a
dominant position.

Information Technology Sector

The ruling of the commission in the matter of In Re Three D Integrated Solutions v.

Verifone116, it has been determined that the pertinent product market in this instance
pertained to the "market for point-of-sale terminals." Furthermore, the relevant
geographical market was identified as the entirety of India, as a result of the
comparable market entry barriers and the presence of a uniform currency throughout
the nation. The market pertaining to point of sale terminals in India was determined to
be the most pertinent market. The aforementioned company was found to possess a
market share ranging from 70% to 80% in the pertinent market. Upon completion of the
sale, customers were subject to the vendor's sole discretion for bug fixes and any
additional enhancements. Upon careful evaluation of all relevant factors, it has been
ascertained that the aforementioned business entity holds a position of dominance.

Health / Hospital

116 2015 Comp LR 464 (CCI)

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 In the matter of Mr. Ramakant Kini v. Dr. L.H. Hiranandani Hospital, Powai,
Mumbai117, the Commission was tasked with determining whether the hospital had
engaged in an abuse of its dominant position by imposing excessively high fees for its
maternity services. Upon conducting an initial investigation, the Director General
(hereinafter referred to as "DG") has ascertained that the pertinent geographical market
pertains to the "provision of maternity services by super speciality hospitals" within a
radius spanning from 0 to 12 kilometres. Based on the aforementioned metric, it is
determined that the hospital possessed a market share of 63%. The determination was
made by the CCI that it was necessary to expand the geographic reach of the market.
Furthermore, it is contended in the report that mere possession of market share does not
suffice as a conclusive indicator of leadership. The dominant position of the institution
was ultimately acknowledged.

Automobile Sector

In the case of Shamshek Kararia v. Honda Siel118, the Commission examined the
pertinent market to be assessed for the purpose of determining the prevailing position,
with the aim of resolving the matter concerning the Original Equipment Manufacturers
(OEM) of vehicles. The Commission has observed that the auto industry can be
delineated into two discrete markets, namely the primary market for the initial sale of
vehicles and the secondary market for parts and accessories. The automotive
aftermarket is bifurcated into two discrete sectors, namely vehicle maintenance and
repair, and the commerce of replacement components. The Original Equipment
Manufacturer (OEM) contends that it is appropriate to consider solely the market for a
single car. The Commission has determined that the sub-market referred to as
"automobile parts" is the relevant market for the purpose of establishing dominance.
This determination is based on the absence of any substitutes or competitors within the
industry. It has come to light that each automaker possesses a monopoly over the
market for vehicle components. Therefore, the preeminent status was duly established.

117 2014 Comp LR 263 (CCI)

118 2014 Comp LR 1 (CCI)

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 Media, Movies and Entertainment

The issue presented before the Commission in the case of Kansan News v. Fast Way
Transmission119 pertained to the alleged misuse of a dominating position by the cable
TV operator. In the process of ascertaining a victor, the Director General (DG) duly
considered the distinct nature of the cable television industry and the Direct-to-Home
(DTH) market.

In the matter of Ajay Devgn Films v. Yash Raj Films 120, the party bringing the
complaint, hereinafter referred to as the "Complaining Party," namely Ajay Devgn
Films, alleges that the defendant, hereinafter referred to as the "Defendant," namely
Yash Raj Films, engaged in the abuse of its dominant position. Pursuant to the
aforementioned tip, it has come to light that the counterparty in question has engaged in
conduct that contravenes Section 4 of the Competition Act. Said conduct involves the
act of bundling two distinct films together. According to the source, it has been alleged
that the target engaged in the unauthorised distribution of copies of the films Jab Tak
Hai Jaan and Ek Tha Tiger, both of which are considered to be commercially
successful. Pursuant to the terms of the agreement, the exhibitors were granted the
opportunity to acquire Ek Tha Tiger in consideration for their purchase of Jab Tak Hai
Jaan. The complainant contends before the Commission that the two aforementioned
films, which have received the majority of screenings, would establish a position of
dominance, thereby resulting in the inadequate allocation of screenings for the
complainant's film, Son of Sardar. The Commission identified the target market as the
film industry in India. As of the present order's date, it is duly noted that in the year
2011, an estimated total of 107 Hindi films were released. Similarly, in the current year
of 2012, approximately 95 films have been released, as per the available information. In
stark contrast, the opposing party has only achieved a meagre range of two to four film
releases per year. Upon careful consideration of the presented evidence, the
Commission has arrived at the determination that the competing party in question does
not possess market dominance.
119 MANU/CO/0063/2012
120 2012 Comp. LR 1099 (CCI)

115
 In the matter of H.T. Media Ltd. v. Super Cassettes 121, the party known as H.T. Media
Ltd., hereinafter referred to as the reporting party, is an FM radio station. The reporting
party alleges that the defendant, Super Cassettes, hereinafter referred to as the
respondent, is engaged in the ownership of the T-Series audio label. The reporting party
asserts that the respondent has been engaging in the abuse of its monopoly power by
unreasonably demanding excessive licence payments from various In conducting its
analysis of the relevant market, the Commission duly considers a comprehensive array
of realities within the music industry. The regulations governing copyright protection
within the music industry establish that exclusive financial benefits derived from a
musical composition or song shall be reserved solely for the original composer or
songwriter. The owner is hereby granted the authority to licence and assign the rights to
distribute the music. The transfer of ownership or licence shall be subject to the
condition precedent of the payment of a royalty fee. The VAS channel is utilised by
record companies for the purpose of distributing their music via radio, television, and
other platforms. The aforementioned services encompass mobile networks and the
internet.

The facilitation of consumer access constitutes a prominent aspect of radio's principal

marketing advantages. Nonetheless, FM radio stations are compelled to depend
predominantly on commercial advertisements for the acquisition of their financial
resources. It is of utmost importance to distinguish the government-operated All India
Radio (AIR) from commercial FM stations. In the present case, it has been reported that
the source predominantly engaged in the listening of Bollywood music. After careful
deliberation and taking into account the relevant factors, the Commission has
determined that the appropriate market for analysis is the market for licencing music to
private FM radio stations for broadcast. Given that uniform rules and regulations
govern FM radio stations across the entirety of India, it follows that the entire nation is
deemed a singular market.

121 MANU/CO/0080/2014

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 Upon careful examination, the Commission has reached the determination that the
Opposing Party, namely Super Cassettes, possesses a dominant position in the relevant
market. This conclusion is drawn based on the fact that Super Cassettes receives no less
than 50% of the licencing fees pertaining to FM channels. The opposing party
generated an annual revenue of Rs. 400 crores from the portion of music broadcasted
on the FM networks, accounting for a range of 25-60%. The opposing party's rivals
contributed only twenty-five percent of the total amount. The opposing party, in a
similar manner, incorporated 58% of the top 100 songs currently present in the
industry. The Commission's deliberations were significantly influenced by the fact that
each song is distinct and lacks a viable substitute. Based on the aforementioned
evidence, the Commission has determined the existence of a dominant position and has
consequently arrived at said conclusion. The Commission, in addition to its previous
orders, hereby directs the opposing party to remit a monetary penalty in the amount of
Rs. 2.83 crores, dispatch a written notice of cessation and desistance, and modify the
inequitable provisions governing the operations of the radio FM stations.

Energy Sector

In the matter of Maharashtra State Power Generation Company Ltd. v. Mahanandi

Coalfields Ltd. and Coal India Ltd.122, the Commission was faced with the task of
determining whether Coal India Limited (CIL) engaged in the misuse of its market
dominance. In light of the nationalisation of coal mines in 1973, it has been duly
observed by the Commission that Coal India Limited (CIL) has maintained a legislative
monopoly. Due to the unsuitability of the imported coal for utilisation in Indian power
plants, coupled with the unavailability of viable alternatives such as gas or oil, no other
recourse was available. Given that the uniform policy is applicable throughout the
entirety of India, it is deemed appropriate to consider the entire nation as the pertinent
geographical market.

122 2013 Comp LR 910 (CCI)

117
 Pursuant to the principles of customary international law (CIL), it is hereby established
that the federal government, along with its numerous agencies and departments,
possesses absolute jurisdiction and control over the operations of the aforementioned
company. The act of nationalisation resulted in the transformation of the venture into a
non-profit entity. Upon thorough examination and evaluation of all available evidence,
the Commission has arrived at the determination that CIL, hereinafter referred to as the
party in question, possesses a monopoly over the market. This monopoly has been
established as a direct consequence of legal requirements.

In the matter of Maharashtra State Power Generation Company Ltd. v. Mahanandi

Coalfields Ltd. and Coal India Ltd. 123, the Commission was tasked with determining
whether Coal India Limited (CIL) engaged in the misuse of its market dominance. In
light of the nationalisation of coal mines in 1973, it has been duly observed by the
Commission that Coal India Limited (CIL) has maintained a legislative monopoly. Due
to the unsuitability of the imported coal for utilisation in Indian power plants and the
unavailability of gas or oil as alternative energy sources, no viable options were
present. Given that the identical policy is uniformly applicable throughout the entirety
of India, it is deemed appropriate to designate the entire nation as the pertinent
geographical market.

Pursuant to the principles of customary international law (CIL), it is hereby established

that the federal government, along with its numerous agencies and departments,
possesses full and absolute jurisdiction over the operations of the aforementioned
company. The act of nationalisation resulted in the transformation of the venture into a
non-profit entity. Upon thorough examination and evaluation of all available evidence,
the Commission has reached a definitive conclusion that CIL, herein referred to as the
party in question, possesses an undeniable monopoly over the market. This
monopolistic control is primarily attributed to legal requirements that have been
imposed.

123 Case No. 19 of 2010, decided on 12 August, 2011

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 Flats / Real Estate

In the case of Belaire Owners Association v. DLR Ltd. 124, various factors were taken
into account in assessing the presence of a dominant position held by the opposing
entity, DLF Ltd., within the construction industry. The determination of the appropriate
market was made after careful consideration of various factors, including but not
limited to customer preferences, financial capabilities, range of services offered, and
geographical proximity. The selection of the city of Gurgaon, presently referred to as
Gurugram, as the target market was predicated upon its close proximity to Delhi and
the absence of any viable alternatives. The relevant market, as identified, pertains to the
services of a developer/builder in relation to high-end residential accommodation in
Gurgaon.

Upon conducting an analysis to ascertain the relevant market, the Commission

proceeded to examine whether the opposing party possessed a dominant position. Upon
conducting an analysis of the market share, assets, and proximity to competitors of the
rival party, it has been determined that the rival indeed possesses a position of
dominance.

The Commission, in response to the other party's abusive behaviour towards

consumers, asserts that the imposition of these (unfair) clauses without consequence,
the callous disregard for consumer rights demonstrated through the cancellation of
allotments and forfeiture of deposits, and the intentional tactic of obscuring the terms
and withholding pertinent information regarding the ultimate specifications,
dimensions, placement, etc. of the residential unit, cannot be deemed as equitable. The
events that have transpired thus far in relation to the project serve as additional
substantiation that DLF Ltd enticed and entrapped consumers through deceptive
solicitations and assurances.

124 MCX Stock Exchange Ltd. v. National Stock Exchange of India, Case No. 13 of 2009, decided on 23 June,
2011.

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 In this particular instance, the Commission imposed a fine of Rs. 630 crore upon the
aforementioned company. The losing party duly lodged an appeal with the Competition
Appellate Tribunal, followed by a subsequent appeal to the Supreme Court. DLF is
hereby mandated to remit the imposed penalty as decreed by both entities, which have
duly endorsed the Commission's ruling. The present ruling shall function as a
cautionary notice to all real estate professionals who engage in market exploitation.

Stock Exchange

Large corporations require significant financial resources. Companies operating within

these specified sectors frequently engage in the practise of procuring capital from a
diverse array of investors, who in turn acquire ownership interests in the form of
"stocks" or "shares" in the aforementioned entity. The Initial Public Offering (IPO)
represents the inaugural issuance of shares by a company that is publicly traded. Stock
exchanges facilitate the execution of transactions between buyers and sellers with
respect to the aforementioned shares. The stock market is comprised of investors, stock
brokers, and other intermediaries. The stock market functions as an intermediary,
facilitating transactions between individuals seeking to buy and sell shares. The stock
markets, being a constituent part of the financial markets, encounter various challenges
in a manner akin to other markets, as is customary. The purpose of utilising the MCX
Stock Exchange instance is to analyse and evaluate the intricacies associated with
market competition.125

Upon discovering that the National Stock Exchange (NSE) was engaging in abusive
practises within the currency derivatives (CD) market, the MCX Stock Exchange Ltd.
(MCX SE) duly notified the Competition Commission of India (CCI). The National
Stock Exchange (NSE) has implemented a policy whereby commissions on currency
derivatives trades have been eliminated. With respect to the MCX SE, it can be argued
that the aforementioned conduct constitutes an abuse of dominant position.
Preliminarily, it was incumbent upon the Competition Commission of India (CCI) to

125 SEBI – “Securities and Exchange Board of India” is the regulator of Stock Markets in India.

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undertake an evaluation of the relevant market in question and ascertain whether the
National Stock Exchange (NSE) held a position of dominance therein.

The report of the Securities and Exchange Board of India (SEBI), as referenced in the
present case, was duly considered by the Competition Commission of India (CCI) in its
determination of the relevant market. It is hereby proposed that the currency derivatives
market be regarded as a separate and distinct entity within the scope of this study. The
CCI has determined that there exists no viable substitute for currency derivatives. In
light of the aforementioned circumstances, it has been determined by CCI that the
relevant market pertains to the provision of "stock exchange services within the
currency derivatives segment in India."

In deliberating upon its determination regarding the dominant position, the Commission
duly took into account the prevailing state of the market. In the pertinent market, there
exist three stock exchanges. The entities referred to are the National Stock Exchange
(NSE), the Multi Commodity Exchange of India (MCX-SE), and the Bombay Stock
Exchange. It has been determined that the aforementioned three companies have sought
to exercise control over a substantial portion of the market and wield a considerable
degree of influence. The NSE, hereinafter referred to as the "Company," exerted
significant market dominance in the majority of other categories. In the wholesale debt
market, it is noted that the National Stock Exchange (NSE) exercised control over
approximately 90% of the industry. The entity in question held a monopoly within the
futures and options market. The entity known as NSE maintains a presence in a total of
1,486 cities across the globe. In contrast to its competitors, such as the Bombay Stock
Exchange (BSE), which operated solely within limited jurisdictions, namely
Maharashtra and Gujarat. After careful consideration of the relevant factors, the
Competition Commission of India (CCI) has determined that National Stock Exchange
(NSE) holds a dominant position within the industry. The determination was made that
NSE's choice to waive fees for the trading of currency derivatives constituted an abuse
of NSE's market dominance.

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 Transportation / Cab Services

Numerous corporate and public entities are engaged in a competitive pursuit of

dominance within the transportation industry. The emergence of "radio taxis" signifies
a new and distinctive trend within the transportation sector. In this article, we shall
discuss the matter of Fast Track Call Cab Pvt. Ltd. and others v. ANI Technologies
Pvt. Ltd.126, which was resolved in July 2017.

In the present litigation, the plaintiffs, Fast Track Call Cab Pvt. Ltd. and Meru Travel
Solutions Pvt. Ltd.127, have proffered evidence pursuant to Section 19(1)(a) of the
Competition Act, 2002, alleging that ANI Technologies has engaged in the abuse of its
dominant market position. ANI Technologies operates "Ola Cabs," an online taxi
service that can be accessed through a smartphone application.

Prior to delving into the specifics of the case at hand, it is advisable to conduct a
comprehensive examination of the foundational principles governing the taxi industry,
as well as the recent modifications that have been implemented. Such an exploration
would prove advantageous in providing a contextual understanding of the matter at
hand. In accordance with the traditional framework of the taxi industry, a taxi agency
shall possess either direct ownership of a fleet of vehicles or shall have established
contractual arrangements with individual taxi drivers for the purpose of facilitating the
dispatching of taxis to clients. In the year two thousand and eleven, a notable shift
occurred wherein individuals began employing telephonic devices and paging systems
to secure the services of taxicabs. The industry has been significantly altered by the
emergence of online cab aggregators, including Ola and Uber. The aforementioned
businesses have employed the software in order to develop practical mobile
applications. Upon downloading the software onto her mobile device, the user shall be
entitled to access the functionality therein, which includes the ability to identify and
locate nearby taxicabs within her vicinity. The drivers, herein referred to as the
individuals operating motor vehicles for the purpose of transportation services, are
126 Case No. 6 and 74 of 2015, decided on 19/07/2017.
127 Ibid

122
required to download the designated application and ensure their preparedness to
engage in work activities. The taxi drivers and riders are connected through the
utilisation of a smartphone application.

The business paradigm in question has proven advantageous to both taxi drivers and
riders alike. The utilisation of technology is being employed to rectify the existing
disparity between supply and demand. Notwithstanding, the traditional taxi operators
have initiated an assault on this operational framework due to their apprehension of
potential customer attrition to the contemporary taxi service providers.

In the present case, the complainants have duly filed material with the Competition
Commission of India (CCI) through multiple petitions, alleging that Ola Cabs has
engaged in the abuse of its dominant position in the market. Pursuant to the information
provided by the tipsters, it has been alleged that Ola Cabs, hereinafter referred to as the
"Company," has purportedly engaged in predatory pricing practises, as delineated under
Section 4(2)(a)(ii) of the Competition Act, 2002. The Company is alleged to have
offered substantial discounts to its clientele and provided incentives to taxi drivers,
thereby potentially falling within the ambit of predatory pricing. The Commission has
determined that it shall direct the Director General (DG) to conduct a simultaneous
investigation into the aforementioned complaints, as they pertain to the identical entity,
Ola Cabs, and have been lodged by the same individuals acting as informants. Pursuant
to the preliminary evidence indicating a substantial market presence of Ola Cabs, an
investigation was initiated into the operations of the aforementioned company.

The inquiry was concluded on November 24, 2016, and subsequently, the Director
General filed a report. The decision of the Commission was rendered on the basis of the
report submitted by the Director General. Ola Cabs asserted that they do not function as
a taxi aggregator, but rather as a technology enterprise solely offering essential software
services. Upon careful examination, the Commission has reached a determination that
all products and services that have the potential to serve as viable alternatives to radio
taxi services fall within the scope and jurisdiction of Section 2(1) of the Competition

123
Act of 2002. Furthermore, pursuant to the relevant legislation, app makers operating in
Delhi and Karnataka were obligated to obtain licences as radio taxi services. Upon
careful examination and analysis, the Commission has reached the determination that
the product market in question shall be referred to as "radio taxi services."

The Commission has duly noted that transport falls under the purview of the State List
as stipulated in the Indian Constitution, thereby establishing India as a potentially
pertinent market.

The Commission engaged in a discussion regarding the subject matter of "competitive

constraint." It appeared to suggest that a fresh entrant, Uber, had entered the market
subsequent to Ola and was exhibiting superior performance in terms of market share
expansion. The Commission perceived this as a constraint on the alleged monopoly
power of Ola Cabs.

The present research provides further elucidation on the underlying concept of

"Network Effects." The occurrence of market phenomena commonly referred to as
"network effects" arises when a sole entity, through the accumulation of a substantial
network, progressively exerts heightened influence and control over the market. The
telecommunications industry has experienced what are commonly referred to as
"network effects." The presence of a substantial customer base within the telephone
industry by an established business may pose significant challenges for a prospective
entrant seeking to penetrate the market.

In the event that a substantial quantity of drivers were to be registered on Ola's

platform, individuals would exhibit a preference for utilising said platform as a means
of securing transportation services. In a manner akin to the preference exhibited by taxi
drivers for the Ola platform, owing to its well-established clientele. Notwithstanding
the adverse circumstances, Uber's user base experienced growth. The Commission cited
the absence of "exclusivity" within this market. In an alternative formulation, it is worth
noting that both the drivers and the riders were not contractually obligated to

124
exclusively utilise any particular application. Taxi riders and drivers have the right to
utilise multiple platforms without incurring any additional charges. The aforementioned
facts serve to establish that Ola Cabs does not possess a monopoly over the taxi
industry. Upon conducting a thorough investigation, the Commission has determined
that the allegations regarding Ola's market dominance lack merit.

Conclusion

It is widely held that monopolies are detrimental to both commercial enterprises and the
broader societal framework. The present viewpoint, notwithstanding, posits that a
"dominant position" (as referred to in Indian Law) or "monopoly power" (as referred to
in US Law) does not possess inherent harm if it is employed to promote innovation and
competition. In the present chapter, an examination is conducted to compare the
monopolistic power laws of the United States and India, with a focus on elucidating the
similarities and contrasts that exist between the aforementioned jurisdictions.

Upon examination of the prevailing pattern within the United States, it becomes evident
that the government frequently contests judicial endeavours aimed at dismantling
monopolistic entities. The antitrust regulators in India have exercised prudence and
refrained from proposing any corporate divisions thus far. Numerous instances of
abusive conduct, as determined by American courts, have been incorporated into Indian
law as illustrative instances of dominance abuse.

CHAPTER VII

125
 CONCLUSION & SUGGESTIONS

Findings

Throughout history, governmental entities have encountered considerable challenges in

their endeavours to curtail monopolistic or other forms of anti-competitive business
practises. The adverse consequences of such repressive policies have been experienced
by the populace for a considerable duration. Various methodologies were employed in
an attempt to resolve the matter at hand. The conventional methodology encompassed
the enactment of legislation that instituted price controls and export quotas for essential
food items such as grain. There exists a prevailing inclination whereby governments
assume a passive role and defer to the market in determining pricing. The legal doctrine
of "agreements in restraint of trade" in the United Kingdom serves as the precursor to
modern competition law. The Sherman Antitrust Act of 1890, enacted in the United
States, stands as the inaugural and all-encompassing legislation pertaining to antitrust
matters on a global scale. The Monopolies Restrictive and Trade Practises Act of 1969
may be regarded as the initial endeavour to operationalize competition policy and
accomplish its objectives. The Competition Commission of India (CCI), hereinafter
referred to as "the Authority," was established in the year 2009, pursuant to the relevant
legislative provisions. The Competition Act, hereinafter referred to as "the Act," was
duly enacted and approved in the year 2002.

The vitality of any economy is contingent upon the presence of free trade and
competition, thus necessitating the establishment of competition law grounded in
philosophical and jurisprudential principles. The vitality and prosperity of any
community are contingent upon the functioning and presence of commerce. It is
imperative that no restrictions be imposed upon this particular enterprise. In the
broadest interpretation, free trade is comprehended. Upon the removal of trade
restrictions, it is observed that prices experience a decline, thereby resulting in
advantageous outcomes for consumers. The principles of free trade, the market

126
mechanism, and competition hold significant value and are esteemed by philosophers,
economists, and legal theorists alike. However, it is important to note that the market
system has the potential to be subject to manipulation, thereby resulting in the
possibility of market collapse. Henceforth, it is imperative that government regulation
be deemed indispensable. The oversight of such nature by the government should be
carried out by agencies that are neutral and impartial. Governments shall intervene in
the regulation of markets solely in instances where there exists a possibility for misuse.
In the pursuit of formulating competition legislation that is efficacious, governments
ought to employ these principles as a foundational framework.

In consideration of the matter at hand, it is pertinent to address the global scope of

competition law. The Havana Charter contained comprehensive provisions pertaining
to the aforementioned matter. Regrettably, it is to be noted that no nations affixed their
signatures to the Havana Charter. The GATT of 1948 encompasses various provisions
pertaining to competitive policy. The treaties established by the World Trade
Organisation (WTO) incorporate provisions that embody competitive principles.
However, it is important to note that a legally enforceable international agreement
pertaining to competition law does not currently exist. There have been numerous
appeals for the establishment of an analogous international convention to the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) within
the realm of competition law, specifically designated as Convention 232. The
provisions pertaining to competition policy are delineated in subsequent sections of the
Treaty on the Functioning of the European Union (TFEU). According to statistics
provided by the Organisation for Economic Cooperation and Development (OECD),
there is a notable increase in merger and acquisition (M&A) activity across various
sectors. As of the present composition, it is noted that a total of 127 nations have duly
enacted legislation pertaining to the prevention of monopolistic practises. The benefits
derived by consumers from competition laws render them an indispensable component
of the legal framework of any given nation.

127
The fourth nexus between competition law and consumer protection lies in the
acknowledgment that increased market competition confers advantages upon
consumers. The presence of competition fosters a reduction in pricing and an increase
in the availability of choices for consumers.

The Raghavan Committee report serves as the fundamental basis for India's
Competition Policy. The Committee has identified multiple provisions of industrial law
that warrant revision to effectively address the requirements of the market economy. A
proposed piece of legislation has been put forth to regulate market competition.

As a result, the passage of the Competition Act of 2002 ensued. Pursuant to the
provisions of the Competition Act, the establishment of the Competition Commission is
mandated for the purpose of supervising and regulating market practises. The
aforementioned provision prohibits any conduct that is deemed anti-competitive and
establishes the framework for the advancement and encouragement of competition. The
commission shall assume the role of the responsible entity tasked with the interrogation
and execution of inquiries pertaining to allegations of abuse of dominant position.

Analysis of Power Abuse in Two Contexts:

It is widely accepted that monopolies, in accordance with prevailing beliefs, have

detrimental effects on both commercial enterprises and the broader societal fabric. The
present viewpoint, notwithstanding, posits that a "dominant position" (as referred to in
Indian Law) or "monopoly power" (as referred to in US Law) does not possess inherent
harm if it is employed to promote innovation and competitiveness. The anti-monopoly
provisions delineated in Indian law, specifically Section 233, and American law,
specifically Section 233, exhibit similarities as well as certain distinctions.

Upon examination of the prevailing pattern within the United States, it becomes
apparent that the government frequently contests judicial endeavours aimed at
dismantling monopolistic entities. The Indian antitrust regulators have exercised

128
prudence and refrained from proposing any company divisions thus far. Numerous
instances of abusive conduct, as identified and adjudicated by American courts, have
been duly incorporated into Indian legislation as illustrative instances of dominance
abuse. The following table presents a comparative analysis of the "abuse of dominant
position" in India and the "monopolisation" in the United States.

129
130
Testing of Hypotheses

Hypothesis - 1

1. Whether India's current laws against "abuse of dominant position" aim to

increase market competition, productivity, and new ideas?

Upon careful examination and evaluation, it has been ascertained that the
aforementioned premise is indeed accurate and valid. Pursuant to a comprehensive
examination of Section 4 of the Indian Competition Act, 2002 and the judicial
pronouncements rendered in relation thereto, it is ascertained that monopolistic
business practises do not contravene the laws of India. The Commission has

131
consistently underscored the importance of promoting competition, efficiency, and
innovation in the majority of the cases addressed in Chapter 6.

2. To examine the rules regarding "abuse of dominant position" whether it is

essentially the same in India and the United States, notwithstanding minor
differences in terminology and expression.

Upon careful examination and evaluation, it has been ascertained that the
aforementioned premise is duly validated and proven to be accurate. As previously
expounded upon in Chapter 6, an examination of the "abuse of dominant position"
provision outlined in Section 4 of the Indian Competition Act, 2002, and the
corresponding "monopolisation" clause set forth in Section 2 of the Sherman's Act in
the United States has been conducted, revealing notable parallels. Within the
jurisdiction of the United States, there exists a concise provision that expressly
prohibits the improper utilisation of monopolistic authority. The cases adjudicated
pursuant to this section delineate the precise manifestations of abuse that were endured.
The Indian provision incorporates a compilation of the "particular abusive practises" as
delineated in United States jurisprudence. The laws of the United States and India bear
resemblance in purpose, albeit diverging in verbiage.

3. To interpret the judicial concepts of India "abuse of dominant position" are

identical with the United States.

The hypothesis is confirmed to be correct. In the United States, the Federal Trade
Commission (FTC) uses the local court system as its primary enforcement method. The
Competition Commission operates as a regulatory organisation and has enforcement
authority in India. The Competition Appellate Tribunal hears the appeals. The next step
is for the appeals to be heard by the higher courts. The hypothesis is confirmed to be
correct. Antitrust legislation in the United States has been around for over a century.
The growth of computer technology, industrialisation, and global conflicts are only

132
some of the market changes that American antitrust law has seen. The antitrust
regulators have to adapt to new threats every decade. Litigation involving the
dissolution of huge firms presented a significant challenge to antitrust regulators. The
Indian antitrust regulators need to take these lessons to heart. The Indian antitrust
regulators must to be prepared to meet the emerging challenges of the market.

SUGGESTIONS

The undersigned hereby presents the following recommendations for consideration in

the formulation of policies:

1. In order to initiate the process, it is imperative that a legislative measure be

enacted to establish a "National Competition Policy." The purpose of this policy
statement is to serve as a guiding principle for other industries to adopt in
formulating policies that promote competitiveness.
2. It is imperative for the Competition Commission of India to engage the services
of additional personnel possessing robust technical and commercial expertise. The
aforementioned professionals shall provide the Commission with their expertise
in order to effectively address the technical and commercial obstacles that lie
ahead.
3. It is imperative that a Memorandum of Understanding (MOU) be established
between the Competition Commission and entities such as Consumer Forums and
anti-corruption agencies. In the event that a matter arises which falls beyond the
scope of the Commission's jurisdiction, it may exercise its authority to delegate
the corresponding responsibilities to one of the alternative entities.
4. It is recommended that the government establish dedicated judicial tribunals with
jurisdiction over matters pertaining to commercial litigation, including but not
limited to appeals originating from the Competition Commission. It is anticipated
that additional cases originating from the Commission may be subject to appeal in
the foreseeable future. The aforementioned judges shall possess the requisite
capacity to adjudicate intricate matters pertaining to business.

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 5. It is imperative that the Competition Commission establish and maintain
communication channels with its counterparts in foreign jurisdictions. The
aforementioned facilitates the exchange of information and serves to discourage
any anti-competitive behaviour that may occur across national boundaries.

Implications for Future Research

The findings of this study contribute the subsequent information to the existing corpus
of knowledge in this particular domain:

1. Chapter 2 of this document undertakes an examination of the origins of

Competition Law. In doing so, it conducts research into the Hammurabi code as
well as the Vedic texts originating from India.
2. In Chapter 3, the philosophical components of Competition Law and the
competition features in jurisprudence have been duly acknowledged and
examined.
3. In accordance with Chapter 5, the empirical research presented herein establishes
the manner in which shoppers have derived financial gains from the competitive
nature of online marketplaces.
4. In Chapter 7, a presentation is made regarding the comparison of monopolistic
businesses in the United States and India. The present study constitutes a
significant contribution to the existing body of literature pertaining to competition
law.

Limitations on Research Activities

Thisresearch exclusively focuses on the examination of the antitrust laws of India and
the United States. Furthermore, it is important to note that the scope of this research is
limited to the examination and comparison of the treatment of monopolistic firms
specifically within the jurisdictions of the United States and India. The exclusion of
supplementary antitrust concepts, including anticompetitive agreements and

134
combinations, has been implemented in this analysis. The American cases herein
presented represent the most consequential decisions rendered within the preceding
century. The focus of the discussion pertains to the occurrences that transpired in India
during the period from 2009, which marks the commencement of operations by the
Competition Commission of India, to 2017. Inclusion in our study was limited to
antitrust lawsuits in India and the United States that encompassed substantial legal
inquiries, disregarding the numerous other cases that were not of such nature.

The subject matter under consideration presents ample opportunities for further
investigation and analysis. In consideration of the matter at hand, namely the issue of
inequitable pricing practises affecting farmers, it is prudent to undertake an
examination with a particular emphasis on agricultural markets. In the foreseeable
future, the technology known as "artificial intelligence" shall be employed for the
purpose of making significant business determinations. The Competition Commission
shall encounter supplementary challenges consequent to this circumstance. It is
conceivable that in subsequent periods, researchers may direct their attention towards
this matter as well. In light of the ongoing expansion of our economy, it is anticipated
that the resolution of abuse of dominance cases within the next five years will yield
significant ramifications. It is of great interest to observe the manner in which the
Commission has evolved its conception of abuse of authority subsequent to a period of
five years.

In conclusion, it is important to consider the following points.

1. In accordance with the statement made by the esteemed English author George
Orwell, it is posited that while all animals possess an inherent equality, it is to be
acknowledged that certain animals may possess a higher degree of equality than
others. The aforementioned proposition is equally applicable to individuals.
Notwithstanding the constitutional guarantee of equal protections to all
individuals, the persistence of inequality is evident due to socioeconomic
disparities. There exists a disparity in the distribution of wealth, whereby certain

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 individuals possess an excessive amount of monetary resources, while others are
burdened by an insufficient amount. The accumulation of wealth leads to the
acquisition of further wealth, as per the counsel provided by Kautilya. It is
asserted that an individual residing in a state of extreme destitution shall
perpetually encounter insurmountable obstacles in their pursuit of establishing a
business entity, thereby enduring perpetual challenges in achieving financial
stability. It is the established affluent individuals who initiate the formation of
corporations that subsequently yield substantial wealth. The impact of large
corporations on small businesses is frequently adverse. There exists a potentiality
wherein the presence of large corporations may have adverse effects on
consumers.
2. The user requests that the aforementioned text be modified. Inquiring as to the
feasibility of an individual who diligently applies themselves and possesses
innovative concepts attaining success. The antitrust laws provide a basis for
cautious optimism. The primary objective of Competition Law is to promote and
foster competition, thereby facilitating the proliferation of innovative concepts
and approaches. Competition regulators duly impose sanctions upon sizable
corporations that endeavour to unlawfully exploit their dominant market position.
Pursuant to the provisions set forth in the legislation, growth shall be authorised
solely for those entities that can substantiate their possession of originality and
exceptional commercial acumen. Notwithstanding the aforementioned statement,
the implementation of the legislation is a task of greater complexity.
3. It is often observed that assuming a position of authority tends to engender a sense
of complacency and indolence among individuals. The profits of a dominant firm
frequently experience growth to the detriment of new products, customers, and
other firms. The continued prevalence of dominant corporations poses a potential
threat to the integrity of the "free market" ideology. The explicit prohibition of
dominant firms is not prescribed by law in either the United States or India. In the
event that dominant enterprises endeavour to exploit the market, competition
regulators shall intervene. It is imperative to duly recognise that Competition Law

136
 is subject to inherent limitations in its capacity to effectuate social and economic
transformation.
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STATUTES / INSTRUMENTS REFERRED

Indian Statutes
Competition Act, 2002.
Consumer Protection Act, 1986.
Monopolies Restrictive and Trade Practices Act, 1969.
Industries (Developments and Regulation) Act, 1951.
Industrial Disputes Act, 1947.

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International Instruments

General Agreement of Tariffs and Trade (GATT) (1947).

General Agreement on Trade in Services (GATS) (1995).
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (1994).
Havana Charter (1947).
Treaty on the Functioning of the European Union (2007).
Universal Declaration of Human Rights (1948).

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