Saturday, Nov 22, 2003
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By J. Venkatesan
The assurance was given by the Attorney-General, Soli J. Sorabjee, before a Bench of the Chief Justice, V.N. Khare, and Justice S.B. Sinha during the hearing of a petition challenging the Commission headed by a bureaucrat, Deepak Chatterjee.
(Subsequent to the filing of the petition, the Government had revoked Mr. Chatterjee's appointment as Chairman of the Commission).
Earlier, the Bench took exception to the reply filed by the Centre, stating that the experience of the functioning of such bodies abroad had shown that heading of such commissions by persons with relevant experience had been found to be efficacious. The affidavit said: "A number of countries have followed this without in any manner affecting judicial independence or judicial autonomy."
However, the Bench observed that every Act had to be seen in the light of the Indian Constitution and not as to what had happened in America or other countries. "We expected that it will be scrapped before we took up further hearing of the petition challenging the appointment of a bureaucrat to head the Commission," the Bench said. The Judges told Mr. Sorabjee to remove any perception on the Government's part that it was a "turf war". The Attorney-General said that "in a democracy neither the executive takes away the powers of the judiciary nor does the judiciary substitute itself with the executive".
When he assured the court that the Government would delete Section 39 of the Act, the Bench posted the matter for further hearing for December 16. The Bench lauded Mr. Sorabjee's contribution towards upholding the democratic means of governance and recalled the efforts made by him in assisting the court in several matters involving important constitutional questions. Senior advocate R.K. Jain, appearing for petitioner Brahm Dutt, who has challenged the appointment of Commerce Secretary, Deepak Chatterjee as the head of the Commission, said the Government was saying one thing in the affidavit and another in Court.
In its affidavit, the Centre submitted that the competition law provided for appointment of one judicial member to ensure that the Commission was able to adequately discharge some quasi-judicial functions. Similar provisions were also there in respect of appellate tribunals such as the Income Tax Appellate Tribunal and Customs, Excise and Service Tax Appellate Tribunal.
The selection of the chairperson and other members was made by a selection committee comprising the Union Law Minister, Arun Jaitley and two others. It was not correct to state that the Commission was a substitute of the MRTP Act, which was no longer relevant for the country. The Commission "does not exercise only judicial or quasi-judicial functions but also the functions of market regulator and is responsible for competition advocacy". Asserting that Mr. Chatterjee was qualified to be appointed chairperson, the affidavit said that there was no contravention of the law laid down by the apex court in his appointment.
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