It146;s indeed a turf war

It8217;s not often that the Chief Justice of India issues a denial. But that8217;s exactly what Justice V.N. Khare did last week in the Su...

It8217;s not often that the Chief Justice of India issues a denial. But that8217;s exactly what Justice V.N. Khare did last week in the Supreme Court when he sought to dispel reports that he was engaged in a 8220;turf war8221; with the government over the newly constituted Competition Commission of India CCI. Khare took pains to clarify that his concern was instead to ensure that the CCI8217;s composition did not compromise the independence of the judiciary, which is an inviolable feature of the Constitution. But a closer scrutiny of the case suggests otherwise: that the Constitution is fine, thank you, and the court is only trying to protect its turf.

This is because there appears to be little substance in the observations Justice Khare has been making on the government8217;s decision to appoint a bureaucrat as CCI chairman. He first said the government at this rate might even replace the Supreme Court judges with bureaucrats. The CCI is, in his opinion, a judicial body because it does not just regulate competition but also adjudicates dispute arising from it. When the government pointed out that the CCI8217;s counterparts in other countries were also headed by non-judicial persons, Khare expressed annoyance at the comparison and made no secret of his pre-disposition against the very idea of having anybody other than a judge in that position. In fact, he went to the extent of saying that after the disapproval he voiced in the first hearing, he expected the government to scrap the rules that permitted it to make such an appointment.

But all that the government conceded was an amendment to the manner in which the CCI8217;s orders would be executed. It dug its heels in on the central issue of assuming the discretion to appoint as chairman anybody specialising in subjects concerning the CCI8217;s mandate: international trade, economics, industry and the like. To be sure, law does figure in the subjects listed out in the CCI Act. So, a judge is not barred from this post. The law provides for the possibility of a judge with the requisite experience being appointed. The government8217;s defence is well founded 8212; from the viewpoint of the very Constitution the Chief Justice is invoking.

Justice Khare8217;s objections seem to be based on a misreading of the constitutional concept of separation of powers. Unlike in the US, the Indian Constitution is not too strict about keeping the three organs in water-tight compartments. The overlap between the executive and legislature, for instance, is pretty obvious in a system where there is no separate election for the executive and it is in fact carved out of the legislature. Likewise, there are many areas where the line between the executive and the judiciary is rather blurred.

Notwithstanding Justice Khare8217;s misgivings, the CCI is by no means the first body with adjudicatory powers to be headed by a non-judicial person. A large number of such powers are already being exercised for decades by bureaucrats under the laws pertaining to customs, excise, income tax and companies. Besides, in the wake of economic reforms, the government set up a slew of regulatory bodies with adjudicatory powers. SEBI, for instance, has punitive powers in high value cases even though it is headed by a stock market specialist, who has nothing to do with the judiciary. The CCI is the latest in the series of such reforms-related bodies.

The petition challenging the appointment of a bureaucrat to the CCI glosses over these well-known facts. Instead, it quotes a 1985 Supreme Court judgment which held that the Central Administrative Tribunal CAT should be headed by a retired high court judge since it was set up as a 8216;substitute8217; for the high court. But the substitution argument does not apply any more because the Supreme Court subsequently held in 1997 that the high court was empowered to exercise judicial review over the orders of the CAT. In the same way, the CCI8217;s orders will also be subject to the high court8217;s judicial review. The alleged threat to the independence of the judiciary is clearly a bogey.

Whatever gloss it is given, the controversy smacks of a turf war because, in the ultimate analysis, the government is being asked to amend the rules to ensure that nobody is ever appointed to the CCI without consulting the Chief Justice of India. Given the aggression already displayed by the apex court, such an amendment will in effect ensure that the chairman is always from the judiciary, turfing out specialists from the other fields envisaged by the law. So what if a judge finds himself out of depth in determining hard-core economic issues such as whether a company is abusing its dominance to eliminate competition or whether a product is being offered at a predatory price. He may learn on the job or he may make a mess of it, but he should be a judge. That, it seems, is Justice Khare8217;s bottom line.