Tripathi, Praveen2025-11-182021https://dans.nls.ac.in/handle/123456789/2550The legal processes are aimed to minimise the social costs arising from the enforcement of the law. It includes transaction costs in the form of “administration cost” and the “error costs”in the decision making. In any law enforcement system, the “error” of adverse decision-making is bound to happen, and the cost arising from such an error is difficult to evaluate due to various unknown factors. These errors result in adverse social costs of enforcing the laws. If the decision-making errors are coupled with defects in the institution and processes associated with the enforcement structure, the cost aggravates. These costs can be minimised with appropriate modification in enforcement structure. Further, not just in case of an erroneous decision, these defects in the processes may also render a ‘just’ decision infructuous. An attempt is made here to study the institutional and enforcement structure under the Competition Act, 2002 to discover the fault lines in the enforcement, giving rise to the adverse social costs. Primarily, a young regulator like the Competition Commission of India must overcome three challenges – (i) spreading the reach of law and bringing geographical inclusivity in its enforcement exercise; (ii) delivery of decision making has to be quick to keep the market forces alive; and (iii) clarity in tools employed for correcting the market failure arising due to anti-competitive conducts. In this connection, this study is based on the premise that - an institutional structure of enforcement under Indian competition law, defined by the geographical location, decision-making process, resource allocation in terms of advocacy and human resource, and enforcement design, does not lead to adequate output to ensure wider detection, quicker response and consistent remedies or sanctions. With this premise, the study assesses CCI’s structure and working in the last decade (2009-2019) through jurisprudential development and empirical data. Evaluation of competition law enforcement in this study is built upon the data collected from 779 orders of CCI relating to the anti-competitive agreement and abuse of dominant power, passed during 2009-2019 and corroborated with CCI’s annual reports, newsletter and relevant literature. The findings suggest that a centralised agency like CCI fails to target enforcement in the appropriate economic region and gets captured by the disputes arising from the proximate geographical location. This results in a disproportionate reach of law and creates a lopsided distribution of geographical workload, causing over-regulation in proximate regions and under regulation in distant regions. The centralised agency’s outreach through advocacy programmes also gets restricted to proximity, thereby depicting unequal resource allocation. Such an irregularity in advocacy programmes creates a lack of awareness in the distant regions resulting in weak detection of anti-competitive activity. Turnaround time in disposing of the cases is an important parameter of evaluating efficiency. CCI’s present standard of the turnaround time for disposing of the cases in the substantial number of cases is beyond the expected reasonable time drawn through the average time taken. This delay is attributed to internal as well as external factors. Internal factors like the legal structure of the enforcement, decision-making process, and human resource availability are identified in the study as prominent reasons for the delay. External factors are linked to collateral writ petitions in the constitutional courts and the appellate authority’s remand orders. The study has also noted Competition Act, 2002 has conferred very wide discretion on CCI for determining penalties and remedies for curing the market. However, the decisional practice demonstrates inconsistencies in the exercise of discretion and creating uncertainty on the content of the law. The detection of fault lines as understood from the study may require modification to enhance the enforcement mechanism’s efficiency. This would include – (i) geographical decentralisation of CCI for greater regional inclusivity; (ii) issuing guidance note for clarifying the content of law to eliminate uncertainties; (iii) introducing greater procedural fairness to reduce the collateral challenge in writ petitions; (iv) introducing guidelines for quantifying penalties; (v) introducing settlement provision for early disposal and restoration of market forces.Thesis