March, 2005

A writ petition was filed in the Supreme Court (Brahm Dutt v. Union of India) , challenging the validity of Rules 3 and 4(3) of the Competition Commission of India (Selection of Chairperson and Other Members of the Commission) Rules, 2003 and seeking a writ of mandamus against the Union of India to appoint a person who was or had been a Chief Justice of High Court or a Senior judge of High Court in India as the chairman of the new Commission. The challenge was essentially based on the principles of separation of powers recognized by the Constitution of India.

The Union of India took the stand that an Appellate Authority would be constituted and that body would essentially be a judicial body conforming to the concept of separation of judicial powers.

During the pendency of the writ petition the Union of India filed two additional affidavits stating that Government was proposing to make certain amendments to the 2002 Act and Rule 3 of the Rules to enable the chairman and members to be selected by a committee presided over by Chief Justice of India or his nominee. In view of this the Supreme Court suggested that if an expert body was to be created, it might be appropriate for Union of India to consider creation of two separate bodies, one with expertise that was advisory and regulatory and the other adjudicatory followed up by an appellate body as contemplated by the proposed amendment as this would meet the challenge sought to be raised in the writ petition.