The Supreme Court has suggested that the Centre can split the functions of the Competition Commission of India, envisaged in the Competition Act 2002, to avoid going against guidelines laid out in the Constitution.
"It will be appropriate for the government to consider the creation of two separate bodies, one with expertise that is advisory and regulatory, and the other adjudicatory," says the judgement delivered by a Bench headed by Chief Justice RC Lahoti last Thursday, the copy of which was available on Monday.
The judgement adds that there can be an appellate body as proposed by the government during the hearing of the case last year.
The dual-body plan will go a long way in meeting the challenge made in the petitions against the Act, based on the separation of powers recognised by the Constitution.
The government had promised amendments to the Act in the face of arguments that the commission was packed with bureaucrats and judges had virtually no place there, except as experts in law.
This was against the concept of separation of powers and several judgements dealing with the constitution of tribunals. The Supreme Court had laid down in those judgements that tribunals and similar bodies that performed adjudicatory functions should be headed by judges.
The government's reply was that a panel like the Competition Commission was an expert body and it performed few adjudicatory functions. Judges have no expertise in modern economic practices. Therefore, experts had been given the dominant role, officials said, adding that this was an international trend.
The government insisted till the last day of the hearing that the chairman of the commission should be an expert in the field and need not be a judge.
Faced with this deadlock, the court has merely "postponed" its decision and "declined to answer the questions at this stage", awaiting the government's next move.
Till the issues are resolved, the MART Commission will continue to function.
Turf war
The judgement: The Supreme Court has said the government should consider the creation of two separate bodies, one with expertise that is advisory and regulatory, and the other adjudicatory. The separation of powers will not challenge constitutional norms
What is the panel all about
The Competition Commission is entrusted with the task of checking monopolistic trade practices. It will replace the Monopolies and Restrictive Trade Practices Commission.
The judiciary's view: The judiciary feels that tribunals and similar bodies that perform adjudicatory functions should be headed by judges
The government's view: The government holds that a panel like the Competition Commission is an expert body and it performs few adjudicatory functions
