Public Consultation before Making Regulations: Section 64A

Almost every instrument described in the preceding topics was issued after a draft had been published and comments invited. That is not a matter of practice but of statute. Section 64A, inserted by the Competition (Amendment) Act, 2023, requires the Commission, before making any regulation, to publish the draft, invite comments for a stated period, consider them, and publish on its website a general statement of its response. It is a small provision with a large effect on how competition regulation is now made in India.

1. What the Section Requires

1. Publication of the draft. The Commission publishes the draft regulation on its website before making it, together with an explanatory note setting out its object and reasons.
2. An opportunity to comment. Comments are invited from the public for the period the section prescribes, which is not less than twenty-one days from the date of publication.
3. Consideration. The Commission must consider the comments received.
4. A general statement of response. The Commission publishes on its website a general statement setting out its response to the comments, so that the public can see which suggestions were accepted, which were not and why.
5. Then making the regulation, which is notified in the ordinary way.

2. Why It Was Introduced

Three reasons account for the provision. The substance of Indian competition regulation is increasingly in delegated legislation rather than in the Act: the thresholds, the computation of transaction value, the penalty base, the cost benchmarks for predation, the settlement discount and the leniency reductions are all in regulations or rules. A statute that leaves so much to the regulator ought to provide for those affected to be heard. Second, competition regulation operates on markets the regulator does not run, and consultation is the mechanism by which it learns how a proposed rule will work in a particular industry. Third, a reasoned response to comments improves the quality of the instrument and gives it a record that supports it if it is challenged.

3. The Provision in Operation

• The Cost of Production Regulations, 2025 were published in draft in February 2025, attracted comments including a complaint that the framework gave no guidance for digital markets, and were notified in May 2025 with a general statement explaining that the framework would remain sector-agnostic and be applied case by case.
• The Recovery of Monetary Penalty Regulations, 2025 followed a draft circulated for comment, and the final text reflected changes made in response.
• The Combination Regulations, 2024 and the accompanying rules were published in draft, and the green channel criteria and the substantial business operations tests were revised before notification.
• The General Regulations, 2024 and the confidentiality amendments of May 2024 were likewise preceded by draft amendments published for comment in February 2024.

4. The Limits of the Section

1. It applies to regulations made by the Commission, not to rules made by the Central Government under Section 63, though in practice those rules have also been circulated in draft.
2. The response is general, not individual. The Commission is not required to answer each comment, only to publish a general statement of its response.
3. Consultation is not consent. The Commission may notify a regulation notwithstanding objections, and the section confers no right to a particular outcome.
4. Non-compliance and its consequences are not stated. The section does not say what follows if a regulation is made without consultation, and the question would fall to be decided on the general principles governing mandatory and directory requirements in delegated legislation.

5. Related Topics and Provisions