Undaunted by the Supreme Court’s stinging criticism that it was encroaching into its domain, the Government today said that Commerce Secretary Dipak Chatterjee was ‘‘the most appropriate person’’ to be appointed as chairman of the newly constituted Competition Commission of India (CCI).Chief Justice V N Khare, hearing a PIL against the appointment—which is on hold now—had taken a strong swipe at the Government saying that it might replace judges with bureaucrats in the apex court.In an oblique response to that, the Government said Chatterjee’s appointment was ‘‘not an affront to the judiciary but more a recognition of the necessity of having regulatory functions performed by persons with exposure to the field of activity which they are supposed to regulate.’’In its counter-affidavit to the PIL, the Government strongly defended the provision made in the CCI Act to allow a non-judicial person to head the regulatory body that will replace a vestige of the socialist phase, the Monopolies and Restrictive Trade Practices Commission (MRTPC).The cause of the controversy is that while the MRTPC has always been headed by a retired high court judge, the very first chairman selected for the CCI has turned out to be a bureaucrat.The counter affidavit—due to be heard tomorrow—contains an array of arguments to ‘‘demonstrate that the functions of the CCI and the MRTPC are widely different and the composition of one can have no bearing on the composition of the other.’’The Government has, however, glossed over one serious infirmity in the CCI Act pointed out by the Supreme Court in the earlier hearing on October 30. Justice Khare took exception to Section 39 of the CCI Act, which requires a high court to help execute the CCI’s orders. To be sure, the Government denied that Section 39 gives the CCI ‘‘powers equivalent’’ to the high court. ‘‘Section 39 is merely to provide a method of executing the Commission’s orders and does not have the effect sought to be imputed by the petitioner,’’ it added.The Government is clearly on the defensive on this provision. Unless the Government agrees to the deletion of high court from Section 39, the court may well accept the contention of the petitioner, advocate Brahm Dutt, that the CCI has to be headed by a judge because it is a ‘‘substitute’’ for the high court.The Government faces this risk despite all the evidence it marshalled to show that the CCI ‘‘does not exercise judicial functions alone but has a wide range of regulatory duties’’ which require expertise in different aspects of commerce, economics and administration. ‘‘The adjudicatory function is not the main function but a supplement to the regulatory mechanism,’’ it said.Denying that there was any ‘‘by-passing of the judiciary,’’ the Government said that it would be of ‘‘great advantage’’ if the CCI chairman has ‘‘an exposure to the market mechanism in an administrative capacity.’’ Even so, the CCI Act has provided for the possibility of a judge having such an experience and, therefore, stated that the chairman could also be from the judiciary.As for its adjudicatory functions, the law has taken care to ensure that every bench of the CCI will have at least one judicial member. The Government points out that this is a greater safeguard than what has been provided in the corresponding law of the UK where the chairman can constitute a bench without a single judicial member.
