Interface with Other Laws

The Competition Act contains two provisions that appear to pull in opposite directions. Section 60 gives the Act effect notwithstanding anything inconsistent in any other law. Section 62 provides that the Act is in addition to, and not in derogation of, any other law. Reconciling them is the key to this topic, and the reconciliation is this: where two statutes can operate together they both apply, and Section 60 comes into play only where they cannot. Sections 21 and 21A supply the machinery for consultation between the Commission and a sectoral regulator.

1. Sections 60 and 62

Section 60 provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 62 provides that the provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

1. The two are not in conflict. Section 62 states the general position: the Act adds a layer of regulation and does not displace other statutes, so a party may be subject to the Competition Act and to a sectoral statute at the same time in respect of the same conduct.
2. Section 60 operates only on inconsistency. Where another law contains a provision that cannot stand with the Act, the Act prevails. Where the two can be obeyed together, there is no inconsistency and Section 60 has nothing to bite on.
3. Neither provision resolves questions of sequence. Which authority should act first, where both have jurisdiction, is a question neither section answers, and it is the question decided in Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521.

2. Sections 21 and 21A

Section 21 provides that where in the course of a proceeding before a statutory authority an issue is raised by any party that a decision the authority has taken or proposes to take is or would be contrary to the provisions of this Act, that authority may make a reference to the Commission, and shall do so if a party so applies; the Commission gives its opinion within sixty days, and the authority then passes such order as it deems fit. Section 21A is the converse: where in the course of a proceeding before the Commission an issue is raised that a decision the Commission has taken or proposes to take is or would be contrary to a provision of a statute whose implementation is entrusted to a statutory authority, the Commission may make a reference to that authority and shall do so if a party so applies.

In both cases the opinion is not binding. The mechanism exists to ensure that neither body acts in ignorance of the other's view, not to transfer the decision. In practice the provisions are used less often than one would expect, and the sequencing question has been worked out through litigation instead.

3. The Sectoral Regulators

• Telecommunications. The Telecom Regulatory Authority of India prescribes tariffs, interconnection terms and quality standards, and licence conditions are enforced by the licensor. Bharti Airtel arose in this field, and the division of labour it lays down applies generally.
• Electricity. The Central and State Electricity Regulatory Commissions determine tariffs, grant licences and regulate transmission and distribution. Much conduct in this sector is prescribed by the regulator, and conduct compelled by a regulatory determination cannot be a contravention, since the enterprise had no autonomy to exercise.
• Banking and payments. The Reserve Bank regulates banks, non-banking financial companies and payment systems, and the scheme of amalgamation of a banking company requires its sanction. Where a transaction requires both that sanction and the Commission's approval, both are obtained, since Section 62 preserves each.
• Securities. The Securities and Exchange Board of India regulates listed companies, takeovers and market intermediaries. A takeover may require compliance with the takeover regulations and notification of a combination, and the two proceed in parallel.
• Insurance. The Insurance Regulatory and Development Authority regulates insurers, products and intermediaries, and approves schemes of amalgamation of insurers.
• Petroleum, ports, aviation and broadcasting each have their own regulator or licensing authority, and the same analysis applies.

4. Intellectual Property

Section 3(5)(i) saves the right to restrain infringement and to impose reasonable conditions necessary for protecting rights under the listed intellectual property statutes; Section 4 contains no equivalent saving. The Patents Act, 1970 contains its own competition-like remedies, principally the voiding of certain restrictive conditions in a licence and the compulsory licensing provisions. Whether those remedies exclude the Commission's jurisdiction in the field of standard essential patents has divided the Delhi High Court: a single judge held in 2016 that the two statutes operate in different fields and that jurisdiction was not ousted, and that view was followed in Monsanto Holdings (P) Ltd. v. Competition Commission of India in 2020, while a Division Bench in 2023 held that the Patents Act, being the special and later enactment, prevails. The matter is before the Supreme Court, and the question should be stated as unsettled. The Copyright Act, 1957 raises the same issue in a milder form, its compulsory licensing provisions and the decision in Entertainment Network (India) Ltd. v. Super Cassettes Industries Ltd., (2008) 13 SCC 30 establishing that the owner has no absolute right to refuse a licence on unreasonable terms.

5. Insolvency

A resolution plan under the Insolvency and Bankruptcy Code, 2016 frequently involves an acquisition that is a combination under Section 5. The proviso to Section 31(4) of the Code requires a resolution applicant whose plan contains such a combination to obtain the approval of the Commission prior to the approval of that plan by the committee of creditors. The sequence matters, because the committee's commercial decision is taken on the footing that the plan can lawfully be implemented.

6. Consumer Protection, Data Protection and Procurement

• Consumer protection. The Consumer Protection Act, 2019 deals with unfair trade practices and defective goods and services, and gives an individual a remedy in compensation. The Competition Act deals with harm to the market and gives no such remedy, compensation lying separately under Section 53N. A consumer cannot be compelled into arbitration by a standard form clause, following Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751, and the two statutes operate together by virtue of Section 62.
• Data protection. The Digital Personal Data Protection Act, 2023 regulates the processing of personal data and creates its own regulator. The Commission's interest in data is different: it examines whether a dominant enterprise has used control of data to exclude rivals, or whether a unilateral worsening of data terms by a dominant enterprise supplying a zero-price service amounts to the imposition of unfair conditions. The two inquiries can coexist, because they ask different questions about the same conduct, and Section 62 preserves both; the risk to be managed is inconsistent remedies rather than overlapping jurisdiction.
• Public procurement. Government procurement is governed by financial rules, manuals and sectoral instructions rather than by a general procurement statute. The Commission's role is twofold: enforcement against bid rigging under Section 3(3)(d), and advocacy under Section 49 directed at tender design, since features such as unnecessary pre-qualification, splitting of contracts and disclosure of estimates make collusion easier.

7. How to Approach an Overlap Question

1. Identify the other statute and the authority it creates, and ask what question that statute assigns to that authority.
2. Ask whether the competition complaint can be decided without deciding that question. If it cannot, Bharti Airtel requires the regulator to go first.
3. Ask whether the conduct complained of was compelled by the other statute or by a regulatory determination. If it was, there is no contravention, because the enterprise exercised no autonomy, and the remedy is advocacy rather than enforcement.
4. Ask whether the two statutes can be complied with together. If they can, Section 62 applies and both operate; if they cannot, Section 60 gives the Competition Act precedence.
5. Consider whether a reference under Section 21 or Section 21A is available, and remember that the opinion is not binding either way.

8. Related Topics and Provisions