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https://www.newindianexpress.com/business/2026/Jul/26/avoiding-suo-motu-cases-unless-nobody-is-willing-to-come-forward-cci
We now have to read about competition law sponsored by Amazon from NLU Delhi.
Incredible.
▮▮▮ ▮▮▮ uncle will come here too to give gyan.
It would regularly send proposals to the commission members, the CCI would act on issues where them saw enough merit. This was the scene about 10 years ago. The present day reality of this sarkari wing is just disappointing.
Even back in the day when this entire episode played out, my main concern was how damaging this would be to the CCI’s (already questionable) credibility.
It took CCI years to finally get the PNJ issues in check and now they are drowning under the pressure of their own sarkar.
Too many people wanted their name in the limelight or on a cause title. Google cases come to mind.
Lasting damage.
Nevertheless India has a whole and Indian firms as a whole struggles with the concept of conflict of interest.
Add to that the condition of the competition bar. All they do is call each other names when the rug was pulled from underneath them.
timesofindia.indiatimes.com/home/sunday-toi/all-that-matters/Four-vital-steps-to-fight-corruption/articleshow/8908705.cms
Defendants in the US frequently challenged the structural legitimacy of SEC and FTC administrative law judges, arguing their protection from removal violates Article II of the US Constitution. So to avoid getting bogged down in years of collateral constitutional litigation, the FTC increasingly files its heavy-hitting antitrust and consumer protection cases directly in federal district courts.
The recent conservative-majority US Supreme Court drove this, focusing on reining in the "administrative state", with Big Tech aggressively capitalising on these new legal weapons. The U.S. Supreme Court’s 6-3 conservative majority has indeed carried out what legal scholars call a systemic effort to deconstruct the "administrative state".
By systematically stripping away agencies' independent powers, the US Supreme Court purportedly attempts to shift structural power from unelected regulators directly into the hands of federal judges and the president. This is pushed by unitary executive theory, a constitutional law concept advanced by the Federalist Society, asserting that the president of the United States holds absolute control over the executive branch.
In the United States, this has been the cover for authoritarianism – institutions are viewed as being under attack.
Coming to India, we have a parliamentary system, and we do not have a theory of a unitary executive; the executive draws its powers from the legislature. We have a deliberate dual executive. Yes, we hear rants that we wish we had a presidential system, but we don't. We have Modi pushing for massive centralisation and pretty much undoing the independence of regulators, including the RBI. We just had the Supreme Court rule on the lack of the CJI in the selection committee for the CEC.
Most critically, unlike the US, we do not have state governments with their own antitrust laws that sweep into regulatory space where the federal government withdraws. Instead, we have independent regulators. It is not a new concept. Institutions like the RBI and CAG have operated in this manner for decades. Does India have the judicial strength of the United States? Tribunalisation was an answer to another problem. In India, for the CCI, we had Brahm Dutt and SAIL – the Supreme Court looked into this.
Now, coming to a simple point – the questioning of tribunalisation – it is legitimate, but for one particular regulator to surrender has all the hallmarks of sabotage backed by a law ministry or SG opinion. There are several other regulators who have suo motu powers and adjudicatory powers. SEBI (Section 11 & 11C of the SEBI Act), RERA (Section 35 of the RERA Act), CCPA (Section 10 & 18 of the Consumer Protection Act), etc. So why does one particular regulator commit harakiri before parliament?
On state enforcement, how does that argue against my point? How can procedural fairness be dependant on the number of potential plaintiffs?
If the argument in favour of politically appointed tribunals is the lack of judicial infrastructure how does that justify creating further conflicts of interests in the mechanism?
Lastly, you’re right many other regulators have suo moto powers and the CCI may be placed similarly with all of them. My concern is however more broad based and applies to the moral legitimacy of all such regulatory setups.
You prioritise absolute fairness, as being unfair causes harm, but you forget that doing nothing or being slow is harm too. It is precisely in those scenarios we have developed summary procedures across judicial proceedings right from CPC. In those instances, we forego bits of fairness and reach for speed. Speed is just as much a normative value as fairness. We can argue on equilibrium and balance forever.
You acknowledge other regulators have suo moto powers – to be clear, they adjudicate too. Now rarely does a regulator stake a position against its own legislative mandate, lending a collateral constitutional claim for every litigation it faces. At this point the CCI is advocating for a fairness standard beyond its parent legislation. I see the cynicism in this. If the CCI saw risk, it should have instead said, "We will not take settlements or commitments for the time being" – not abandon its main mandate under Section 19(1).
I mean, think about this objectively: during COVID, the CCI specifically set out public warnings against crisis profiteering, and the threat it used to ensure people did not take advantage of a crisis in a market failure was its suo moto powers under Section 19(1). Removing that power is like a doctor not being able to prescribe medication because he is required to put in writing but he does not have a pen and paper.
On Axon - I know what unitary theory is but you were not making the same point. Your argument on Article II was like Slater v Trump which dealt with the administrative side of FTC (FTC prosecutors have to be accountable to the executive - the unitary theory you speak of). Axon addressed it to some extent but the underlying challenge related primarily to FTC’s judicial side fairness (particularly the fact that FTC commissioners are the prosecutors, judges and appellate authorities in an ALJ setting - read the judgment along with Para 31 bullet 1 of the complaint). This has nothing to do with the unitary theory (though that was also one of the secondary arguments raised).
On constitutional mandate - the CCI didn’t say they won’t take suo moto matters at all. They just said they’ll be judicious on when to intervene. The parental legislation you refer to also vested a large amount of discretion on the Commissioners in exercising their powers. “may” rather than “shall” in Section 19 says it all. As I’m sure yk there’s no minimum annual suo moto investigations requirement anyways. So I really don’t see a problem with the regulator deciding that yk what, maybe I’ll proactively learn from all the fair play criticisms against me while also taking a cue from my international counterparts.
On state enforcement - you clearly took the effort on all other aspects. Would appreciate if you could clarify what you meant because I really don’t see a point here.
We borrowed this form from Europe, where the same question indeed arose – the question is frequent when you do EU competition law 101. Brahm Dutt was exactly on this aspect, which was why we had a well-defined appellate structure, and a legal member was necessary and added to the members of the Commission. Is this enough? No, but the question was asked and dealt with. Is the CCI now saying it is unsure of its constitutional foundations over and above Brahm Dutt when subsequent amendments specifically raised addressed Brahm Dutt? These questions arose in Europe itself, and both ECJ and the EHCR have made decisions in competition law cases on the right to a fair trial.
Second, I spoke about the reason behind the summary procedures in the CPC and why they exist – for speed. To avoid you putting words in my mouth I am re-framing your question again - where else do you find an agency that houses within itself, both the power to "prosecute" in your words (which is take up a case on its own motion and also investigate) and the same body (not same person) also thereafter adjudicates? This point has been asked and answered on this thread already. Nevertheless, here are a few from the top of my head from last week.
I just appeared before the ED a few weeks ago on a FEMA matter – the complaint was filed by the ED, an investigation was done by the ED, and then I was heard by an adjudicating officer, who was also someone within the ED. Just a few days ago I was dealing with Estate officer order issued under Public Premises Act, after the estate division officials of a govt body filed a complaint before the Estate officer, the estate division also conducted the inspection all part of the same body, leading to Estate officer passing an order against a party. The latter act is interesting because your question has been resolved by a Supreme Court ruling. In both these laws there sits a tribunal in the form of SAFEMA for the former or, in the latter, the Principal District Court sits as an appellate body.
Third, none of this is new – like someone else already said. There are so many statutes with the exact same construct. Read the provisions of RERA, CCPA and SEBI already mentioned here. Stop wearing these competition law blinkers and read more Indian laws. RERA, CCPA and SEBI – all these have dedicated appellate authorities. It is solved by having a dedicated appellate authority to deal with any judicial infirmity of any order. Does the competition law have that? Yes. It had a dedicated one. That came through Brahm Dutt. Then it was unwound – not by the CCI, mind you.
What is happening is a clear import of US constitutional theories into the running and operation of Indian regulators, mixing with the recent Indian government moves of nixing independence of statutory bodies. Much of this is at the behest of Big Tech and domestic monopolies in India. So we come back to the important question for you – you said, "The CCI didn’t say they won’t take suo moto matters at all. They just said they’ll be judicious on when to intervene." So its clear the CCI understands it has suo moto power (which it can use judiciously – so discretion within discretion), but it announces a collateral constitutional claim anyone can make in any of their cases? Anyone with litigation muscle will raise this now – like we see many Big Tech already doing.
All that was required was formal guidelines for the initiation of cases. I agree those directly or formerly employed by the CCI should not be parties before the CCI, but why forego the power in this manner? Now let's test what the CCI has foregone on the basis of the CCI website – which is the last suo moto case taken by the CCI? There are two orders, SM 02 and 03 of 2025 (mind you, SM orders include leniency cases too). Before that we had the Meta case. Have a good look yourself. Forget having a quota of SM cases; the CCI has not started much for years. It's docile and atrophying. You really think the CCI was not getting enough information to go on its own motion?
Finally, on state enforcement, in the US, antitrust is not just the prerogative of the federal government alone. Some of the most important cases are being pursued by state AGs in both Texas and California. Even in Europe, competition law enforcement also percolates down to every national agency. This limits institutional capture at a single point, and at the same time there is a multitude of agencies which are constantly reviewing market practices. I know several senior state government officers who have quietly said filing with the CCI did not result in improved behaviour in tenders and have considered action within their own powers. It is precisely the reason why administrative blacklisting has been used more and is seen as far more effective.
In India we have one brow-beaten agency, which remains inaccessible to most, and with a record that invites no one to seriously pursue cases, as remedies, let alone monetary compensation, remain out of sight. Our regulator has been "pro-actively" learning "best practices" now for 20 odd years – perhaps it pays for some to have it in a constant state of learning or speak fecklessly on "light touch" regulation. I guess being reduced to learning also helps when you are routinely underfunded and also understaffed. Maybe that allows you to sleepwalk yourself into a constitutional crisis while you have active cases before you.
Secondly (and maybe I should've brought this up earlier), how is a suo moto mechanism helping with speed anyways? We've discussed extensively on the need for a faster mechanism without even establishing a causal link between the two.
Third - if we are concerned about institutional capture (I echo this concern), won't forcing the CCI to expand its wings further worsen things? My fear is that active suo moto enforcement could further embolden and institutionalise CCI's role in battling for these select few without even waiting for a formality complaint (as they did in cases like Amazon which surprise surprise eventually got reversed).
Fourth - The Meta decision actually reinforced my views against this dual setup. One casual look at the CCI order - the clear logical fallacies, lack of any independent analysis etc. would show the CCI just wanted to rubber stamp its pre-determined infringement mindset without even doing the most basic of work. This is probably why the first rule of natural justice requires no party to be a judge in their own cause. This becomes especially important for an authority which is expected to regulate its own procedure while adhering to natural justice, while being run by politically appointed members who are easy to replace, none of whom have judicial experience.
On state enforcement - I understand your point. However, I don't believe this has a correlation with the merits or demerits of a suo moto mandate. My criticisms would persist even if the Advocate Generals for Maharashtra or Karnataka decide to pursue active antitrust enforcement. Going back to my argument above, if an institution is indeed captured, how is vesting it with further discretionary powers an effective remedy?
Lastly, I completely agree with you on the CCI's abysmal state. And maybe I should clarify, I don't blame suo moto powers for where we are today. The reasons, like you mentioned. are largely the patchy fundamental structure, the lack of adherence to explicit constitutional directions and a perennial lack of funding over the years. I think we just disagree on our underlying fundamental principles. Best to just agree to disagree.
PS: Glad to have had a respectful engaging debate on this platform for a change!
"I'm just fundamentally against a setup that combines investigative and adjudicative powers with the same authority. I'm well aware of the CCPA, SEBI and other such frameworks. My scepticism applies to them equally."
In sum, your constitutional idealism – a version that comes from strict separation of powers, which, by the way, is not even practised across the board here in India among regulators, not even in the EU, since a full review appellate forum is in place – now stands in the way of parties having an effective forum to complain about malevolence in the market.
You place 100% fairness above everything, ignoring practical realities and institutional precedent – to the detriment of the object of the Act.
Why is "suo motu" important? I will give you several, besides chopping off 3 months from the timeline by doing away with preliminary hearings.
First, where there is a power imbalance in the market, there aren't many complainants to go around. If a supplier or vendor filed a CCI complaint, they would often be destroying a market relationship. Having no "suo motu" powers forces market participants to risk their capital to seek a remedy for what they believe is unfair. They barely do. Which is also why the CCI is stuck with forum-shopping cases and Hail Mary passes – the real cases of market abuse will not see the light of day, even with the provision for anonymous informants. Any investigation from an anonymous informant will be rife with writs as well.
Second, it is a vicious cycle of the first; no suo motu powers for the CCI encourages impunity for those who do have market power, knowing they have commercial leverage over those who would complain. This isn't new – a simple study of cartel dynamics should explain this. Members in a cartel are not equal. The CCI recently realised this in a set of orders that identified a ringleader. Imagine the number of SMEs in India stuck with one-sided clauses. The MSME Act protects invoices and receivables; Section 3(4) of the CCI was supposed to protect their options. Go to dealer negotiations and see what life-and-death powers people have over someone else's blood and sweat.
Third, the CCI carries a big stick, which was somewhat curbed by Excel Corp and by guidelines that emerged from Ramana's decision. Now you have Big Tech, which is out to shape and size that stick. The stick is being moved from deterrence to a cost of doing business – something manageable. By removing suo motu, you reduce the number of times the stick can potentially hit you, making the CCI risk for management "manageable". Go inside a sales and marketing team and watch the befuddlement when you tell them you cannot talk to competitors. Then go watch the management conversation with them where they "price" the CCI risk.
Finally, there is a brief window for market censure when the risks are not fully realised by the company under investigation and when affected parties are sufficiently motivated not to self-censor. If the CCI were to open a suo motu case and then allow interim order hearings, there would be a window for a party to take advantage before single-party threats and incentives hit back. The CCI fails to realise how parties under investigation can affect the investigation as it drags on in the Indian political economy. Lawyers know this – we all adjourn till the roster changes or till the government and government pleader change.
You reduce institutional capture to just discretion that affects the final outcome of the case. Your concerns exist; I don't deny them. Like how the CCI will now use its discretion in the settlement and commitments regime, which cannot be challenged before an appellate forum. However, throughout the world, the biggest discretion that antitrust enforcers with finite resources face is "prioritisation". Not HOW they analyse a market or WHY they analyse in a particular manner, but WHICH markets they look at and WHEN they focus on them. Discretion is actually far greater in the WHICH and WHEN than the HOW and WHY. The HOW and WHY will be heard by an appellate court. Which and when will not. Further, "WHICH" matters because it determines which resources are applied, and "WHEN" determines how early a problem is diagnosed (leading to ex-ante or post-facto questions).
On Meta, specialised regulatory bodies like the CCI were granted powers to regulate their own procedures and to act as civil courts, but they remain fully subject to writ jurisdiction. The judicial branch could review the bias. Meta elected it, used it and lost it. Too many parties have been abusing the Bharti judgment, in my view, treating it as a case establishing regulatory walled gardens. It does not. Thankfully, there is a High Court decision now stating so. Bodies like the CCI with civil court powers – this was, firstly, meant to be enabling, not stifling; and second, due process was to follow. Instead, over time, tribunals have adopted the worst traits of civil courts and their trappings, with prolonged delays. I will grant you that institutional design is a problem, but so is institutional ossification.
Justice Thomas explicitly questioned the constitutionality of the FTC’s entire structure on Article II grounds. He noted that combining prosecutorial and adjudicative powers in an agency that is insulated from presidential control raises severe constitutional problems. By doing this, Thomas showed that you cannot separate the "fairness" of the ALJ setting from the "unitary theory" of executive oversight.
The primary claim in Axon was that FTC ALJs are insulated with "for-cause" removal protections, the Kangaroo court aspect was add-on.
Axon had three issues:
(1) The clearance process used to determine whether the FTC or DOJ will review a merger violates due process,
(2) The fact that the FTC combines investigatory, prosecutorial, adjudicative, and appellate functions within a single agency violates due process, and
(3) The dual-layer of protection given to FTC ALJs violates the Appointments Clause of Article II of the Constitution.
So there is a lot of mish-mash in the preceding discussion here. Point 2 is different from Point 3. Connected in some way, meh, debatable. Quoting the judgement: "The Commission knows a good deal about competition policy, but nothing special about the separation of powers. For that reason, “agency adjudications are generally ill-suited to address structural constitutional challenges” - like those maintained here." So all Axon says is that agencies lack the specific expertise to decide structural constitutional questions like the separation of powers.
Coming to India, Axon definitely influenced litigation in India, but some of Axon's questions have been posed even before Axon in India though Axon itself rising from the merger control side. In India, most of the cases are on the enforcement side.
(1) Meta (Facebook) & WhatsApp - Meta argued that because the privacy policy was already scrutinized by the Supreme Court and High Courts under data privacy laws, the CCI had no business launching a simultaneous suo motu antitrust probe. Predates Axon in the SCOTUS.
(2) Global Fragrance & Ingredient Manufacturers - IFF moved the Delhi High Court to halt the probe, asserting that procedural overreach by the Director General (DG) and the CCI violated basic tenets of natural justice. Post-Axon in the SCOTUS. The only one here.
(3) JioStar (Formerly Star India) - JioStar bypassed the agency's primary process and appealed directly to the High Courts using Bharti Airtel Judgment on sectoral regulator precedence. Predates Axon in the SCOTUS.
(4) Auto Parts Case - Effectively expanded a single consumer complaint into a sweeping suo motu-style industry-wide probe, penalising 14 car manufacturers. Predates Axon in the SCOTUS.
(5) Amazon and Flipkart Sellers - An alliance of associated sellers filed 24 separate writ petitions across multiple state High Courts stalling any progress in the cases. Half of it predates Axon in the SCOTUS. Another batch is after Axon.
So it's not like something new was dramatically found when Axon came out in SCOTUS. It's just that parties decided to target the weakness in the regulatory state more head-on using writ jurisdiction. The CCI had long lived with it. European law allowed for it. American ideas of separation of powers did not. Now India has become a test case. The CCI hit by writs across the board has suffered.
https://caselaw.findlaw.com/court/us-9th-circuit/2108762.html
Originally, the DG and CCI were separate. Just like the EU Commissioners and DG Comp. They ended the Bhikaji Cama place separation and the power to appoint went to the CCI from the Central Government. The structural absorption of the DG created the first problem. It was solving for a lack of competition law knowledge and a loss of institution memory with the DG staffed by rotating officers.
The original separation was meant to mimic the independent prosecutor model. There was a reason the CCI could not originally close matters and why 26(8) had to be interpreted creatively. It removed discretionary power from the CCI. The matters before it were in rem. The college of commissioners were speaking to the market.
The CCI secretary ran the administrative side and the DG office ran the investigative side. Constantly rotated out and the DG office ran out of depth, while the secretary became a rubber stamp. There were 7 members, the "right-sizing" made the chairman / chairwoman way too powerful on the administrative side while solving quorum and constant natural justice issues.
Then there was a dedicated appellate forum which was dismantled. Early on, the Supreme Court in Brahm Dutt noted that since the CCI acts as a judge and issues heavy penalties, it must feature judicial independence. This forced the government to create a separate appellate body, the COMPAT.
The government also responded with judicial members as well. Now the lack of a proper judicial member as mandated continues to haunt the CCI. The current "judicial member's" ties are known. The fact that no retired judge has walked into the CCI for nearly a decade speaks volumes. The judiciary doesnt see eye to eye on the government on this issue anymore.
Then in Mahindra & Mahindra v. CCI the Delhi High Court, which by all accounts is in decline did a u-turn. By legally labeling CCI an administrative body, the courts systematically lowered the constitutional bar for strict separation of powers. Combined with the erasure of the COMPAT all this reduced the quality of immediate, independent judicial checks on the CCI's consolidated powers.
Because the CCI dictates the opening of investigations, controls the DG, and now has total discretion to accept or reject settlements or issue global turnover penalties, it wields massive leverage. A company is often forced to settle with the "investigator" to avoid being crushed by the same entity acting as "judge." This permenantly casts a shadow on the CCI's settlement and commitment regime.
The completely myopic manner in which the CCI grew also was made worse when the CCI never passed enough interim measures. Being an appealable order, the CCI never strengthened its legal wing enough to sit and defend interim orders hard enough fearing the defense of pre-judgement. This was down to the administrative side weakness.
The institution has lost balance but blaming this on suo moto powers is something else. That was always within the original mandate of section 19. The problem was someone wanted to make the CCI controllable. Someone wanted the CCI being capable of turning around and fine 200 crores while asking to review the same markets, acceptable. Someone wanted the CCI to look away when needed from the various monopolies it by itself fostered.
Such structural issues that come with combining concentrated executive power and declining state capacity by serial underfunding allowed competition law to be converted from an independent body with a market protection mandate into a tool for consolidating autocratic control. Where have we seen this before?