Cartel Enforcement in India: Standard and Burden of Proof

Posted by D. Daniel Sokol

Cyril Shroff & Nisha Kaur Uberoi (Amarchand & Mangaldas & Suresh A. Shroff & Co.) describe Cartel Enforcement in India: Standard and Burden of Proof

ABSTRACT: The CCI has initiated various competition advocacy programs with a special focus on cartelization. The leniency program is being actively publicized in order to encourage cartel members to turn informants and discourage cartels. Increased public awareness, it is believed, will encourage people to report instances of cartelization and other anticompetitive practices.

Further, the Competition Amendment Bill, 2012, proposes to permit search and seizure powers to the Director General (“DG”), i.e. the investigation officer under the Act, similar to those provided under the Code of Criminal Procedure, 1973, after obtaining proper authorization from the Chairperson of the CCI. The proposed amendment would make it easier for the DG to swiftly conduct dawn raids and investigations in relation to matters before the CCI, without the procedural requirement of approaching a judicial authority for approval. Although there have been no dawn raids to date, once empowered by amendments to the Act the CCI is expected to actively use its dawn raid powers for cartel investigations, creating a fear of quicker detection among cartel members.

Given the initiatives discussed above, and the increased seriousness with which both the Government and the industry is viewing the scope and need for an effective competition regulator in India, it is clear that the CCI will continue to have full support in its use of deterrence and public awareness to combat the evil effects of cartels having an effect on the markets in India.