The Chatterji Commission

Updated: Nov 5 2003, 05:30am hrs
The Supreme Court has temporarily upheld a public interest litigation challenging Dipak Chatterjis appointment as chairman of the Competition Commission of India (CCI), although hearings will continue and no interim order has been passed. This has stalled the process of bureaucratic reshuffling, since Mr Chatterji will stay on as commerce secretary and the textile and fertiliser secretaries cant move to their desired places either. Prima facie, the apex courts observations may seem harsh: It is a direct encroachment on judicial functioning. It is a direct onslaught on the high courts. Some years later, the government may say that it will replace all the 26 judges of the Supreme Court with bureaucrats. Whether a bureaucrat or judge heads the CCI is irrelevant. The best person should be chosen, irrespective of whether that person is a bureaucrat, a judge, or someone completely from outside. Other countries have counterparts of CCI, usually known as Fair Trade Commissions. These are often headed not by bureaucrats or judges but by economists, since understanding competition and the functioning of markets requires knowledge of economics. There is also no imminent danger of the civil service taking over the Supreme Court and high courts.

More generally, this issue also concerns other regulatory bodies where the selection process is non-transparent. There have been instances where the chairman of the selection committee was a bureaucrat and promptly chose himself as the head regulator. The civil service is prone to hunting for sinecures. It is doubtful that bureaucrats with a dirigiste mindset are best equipped to head regulatory bodies that need to foster markets. In the present instance, the draft CCI Bill had a clearly delineated selection process outlined in Sections 8 and 9. Section 9 stated the Chief Justice would have a role in the selection process. This was watered down and amended by Parliament in November 2002. Chief Justice VN Khares ire should therefore have been directed at the selection process rather than at an assumed threat to the judiciary. Parliament is equally culpable in not having been vigilant enough, although in all fairness, the finance minister did inform the house that selection would be done by a collegium. The April 2003 rules specified that a retired judge, a jurist or a senior advocate would head the selection committee, the collegium having been reduced to a selection committee. The law minister no doubt qualifies as a senior advocate, perhaps even as a jurist. His heading the selection committee may satisfy the letter but not the spirit of the rules. And when he also doubles up as a commerce minister, the outcome is almost certain.