Sunday, Nov 02, 2003
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Nowhere in the world, sources here say, are these kind of regulatory agencies headed by retired judges. The functions of such anti-trust regulatory authorities are not of judicial weightage of evidence but rather to consider whether there is abuse of dominance by one player or another, and the fairness or otherwise of mergers and acquisitions as well as of competition in the market. None of these have judicial functions, it is stressed, and the regulators being appointed are in line with the demands of the new liberalised economic regime. Besides, it is pointed out, the existing regulatory agencies such as the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority and the Telecom Regulatory Authority of India are all headed either by economists, corporate executives or by those with administrative experience.
Even the eminent jurist, Fali S. Nariman, who headed the committee to review the Convergence Bill, is of the view that there is no need to appoint a retired judge to head the Competition Commission. He told The Hindu that these are all regulatory bodies set up under the new regime with the object of resolving the dispute and not for adjudicating the dispute. "Only if there is an adjudicatory mechanism, the services of a retired or a judicial member is necessary. In the fields of telecom, convergence and competition, you need specialists in the respective areas to resolve the issues quickly", he said.
Law Ministry sources say it was probably for this reason that the parliamentary Standing Committee, which examined the original Competition Commission Bill, altered a provision for keeping the Chief Justice or his nominee as a member of the selection committee for the chairperson and members of the Commission. Under the rules framed subsequently, a four-member committee was charged with the responsibility of selecting the chairperson and members. The committee was to consist of a person from the field of law who has been a retired judge of the Supreme Court or a High Court or a retired chairperson of a tribunal or a distinguished jurist or a senior advocate for at least five years. It was also to comprise a professional each from the field of international trade and accountancy with an experience of 25 years or more nominated by the Union Government. Further, under the rules, the Government was to nominate one of the members of the committee to act as the chairperson.
The Supreme Court had expressed serious concern yesterday over the decision to appoint a bureaucrat as the chairman of the Commission describing it as a direct attempt to encroach upon the judiciary. It had questioned how a judicial function could be discharged by a retired bureaucrat while the Attorney-General, Soli Sorabjee, assured that the Commission would not discharge its judicial functions till further court orders.
The petitioner, Brahm Dutt, had submitted that the Commission, which was to replace the Monopolies and Restrictive Trade Practices Commission (MRTPC) had always been headed by a retired Chief Justice of a High Court.
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