2005 Supreme(SC) 118

2005(5) Supreme 155
Supreme Court of India
(Under Article 32 of the Constitution of India)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Brahm Dutt —Petitioner
versus
Union of India —Respondent
Writ Petition (C) No. 490 of 2003
Decided on 20-1-2005
Counsel for the Parties :
For the Petitioner : Mr. R.K. Jain, Senior Advocate, Mr. Rakesh K. Khanna, Mr. Rajiv Singh, Mr. Shashank Shekhar, Mr. Brij Bhushan, Advocates.
For the Respondent : Mr. Vivek K. Tankha, Senior Advocate, Ms. Sandhya Goswami, Mr. Joseph Pookkat, Mr. Hare Krishna Upadhyaya, Mr. Siddharth S. Chouhan, Mr. D.S. Mahra, Advocate (NP) and Mr. P. Parmeswaran, Advocate (NP)/Advocates.
For the Applicants in I.A.Nos. 2-4 : Ms. Reena George and Mr. Sanjeev Kumar, Advocates.

Headnote:The Competition Act, 2002—Section 9—The Competition Commission of India (Selection of Chairperson and Other Members of the Commission) Rules, 2003—Rule 3—Constitution of Committee—Central Government was to nominate one of the members of the Committee to act as Chairperson—Writ challenging Rule 3 and mandamus ­directing Union of India to appoint a person who is or has been a Chief Justice of High Court or a Senior Judge of a High Court—Challenged was based on ground that Competition Commission envisaged by Act was more of judicial body having adjudicatory powers—Counter affidavit that Government was proposing to make certain amendments in the Act and also Rule 3 so as to enable the Chairman and members to be selected by Committee presided over by Chief Justice of India or his nominee—It will be appropriate to postpone a decision on the question after the amendments, if any, to the Act were carried out—Questions regarding validity of enactment and Rule 3 left open.

       Held : We find that the amendments which the Union of India proposes to introduce in Parliament would have a clear bearing on the question raised for decision in the writ petition essentially based on the separation of powers recognized by the Constitution. The challenge that there is usurpation of judicial power and conferment of the same on a non-judicial body is sought to be met by taking 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 as recognized by this Court. In the writ petition the challenge is essentially general in nature and how far that general challenge would be met by the proposed amendments is a question that has to be considered later, if and when, the amendments are made to the enactment. In fact, what is contended by learned counsel for the petitioner is that the prospect of an amendment or the proposal for an amendment cannot be taken note of at this stage. Since, we feel that it will be appropriate to consider the validity of the relevant provisions of the Act with particular reference to Rule 3 of the Rules and Section 8(2) of the Act, after the enactment is amended as sought to be held out by the Union of India in its counter affidavits, we are satisfied that it will not be proper to pronounce on the question at this stage. On the whole, we feel that it will be appropriate to postpone a decision on the question after the amendments, if any, to the Act are carried out and without prejudice to the rights of the petitioner to approach this Court again with specific averments in support of the challenge with reference to the various sections of the Act on the basis of the arguments that were raised before us at the time of hearing. Therefore, we decline to answer at this stage, the challenge raised by the petitioner and leave open all questions to be decided in an appropriate writ petition, in the context of the submission in the counter affidavits filed on behalf of the Union of India that certain amendments to the enactment are proposed and a bill in that behalf would be introduced in Parliament. We may observe that if an expert body is to be created as submitted on behalf of the Union of India consistent with what is said to be the international practice, it might be appropriate for the respondents to consider the creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory. This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this writ petition based on the doctrine of separation of powers recognized by the Constitution. Any way, it is for those who are concerned with the process of amendment to consider that aspect. It cannot be gainsaid that the Commission as now contemplated, has a number of adjudicatory functions as well. Thus, leaving open all questions regarding the validity of the enactment including the validity of Rule 3 of the Rules to be decided after the amendment of the Act as held out is made or attempted, we close this writ petition declining to pronounce on the matters argued before us in a theoretical context and based only on general pleadings on the effect of the various provisions to support the challenge based on the doctrine of separation of powers. (Paras 5 to 7)