‘Tribunalisation’ of India’s Competition Regime
Volume 9 Issue 3-4 (2016)
The 42nd Amendment to the Constitution is often blamed for opening the floodgates for ‘tribunalisation’ in the country. The rapid growth in tribunals following the enactment of this amendment, has been viewed as an attempt by the executive to gain control over judicial functions. This has spurred the judiciary to be cautious in preserving its independence and power of judicial review, and has led it to decide upon the constitutional status of various tribunals. As a result, a rich body of judicial precedents, dealing with the principles of separation of powers and independence of the judiciary, has emerged, which aims at counteracting the use of tribunals by the executive to enfeeble and incapacitate the judiciary. I argue that the latest functionaries that have fallen into the ‘tribunal trap’ are the Competition Commission of India and the Competition Appellate Tribunal. By vesting the Competition Commission of India and the Competition Appellate Tribunal with judicial powers akin to courts under the provisions of the Competition Act, 2002, the legislature necessarily had to also provide for the constitution and functions of the two bodies in a manner akin to courts. By failing to do so, it has infringed upon judicial independence that forms part of the basic structure of our Constitution, and therefore the Competition Act, 2002 is liable to be struck down as unconstitutional.