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COMPETITION LAW PROJECT


ON
COMBATING CARTELS IN INDIA

COURSE INSTRUCTOR: MR J KONDAIAH


4TH YEAR -SEMESTER VIII [2014-19]

UDAY BHANU MISHRA (2014/B.A.L.L.B/054)


HARSHVARDHAN PABRI
ASHWATH JANARDHAN

1|Page
TABLE OF CONTENTS

Cases..........................................................................................................................................3
Background................................................................................................................................5
Basic characteristics of cartels...................................................................................................6
Categories Of Cartels.................................................................................................................8

I. Cartels under Competition Act, 2002..............................................................................8

AGREEMENT: PROOF OF EXISTENCE.............................................................................10

II. BURDEN OF PROOF..................................................................................................10


III. STANDARD OF PROOF..........................................................................................11
IV. Authority of the CCI still inadequate........................................................................12
V. Need for a tougher Anti-Cartel Law..............................................................................13

SUGGESTIVE MEASURES...................................................................................................15
Conclusion................................................................................................................................17
Bibliography.............................................................................................................................18
CASES

Alkali and Chemical Corporation of India Ltd, Calcutta and Bayer (I) Ltd........................15
Builders Association of India vs. Cement Manufacturers Association & Ors........................9
Coal India Limited v. Explosives Manufacture.....................................................................12
DG (IR) v. Modi Alkali & Chemicals Ltd...............................................................................15
India Tyre Dealers’ Federation v. Tyre Manufacturers.........................................................10
ITC Ltd v MRTP Commission................................................................................................15
Neeraj Malhotra v....................................................................................................................11
RRTA Vs. W.H.Smith and Sons Ltd..........................................................................................9
RESEARCH METHODOLOGY

During the study most of the informations used are collected from both primary and
secondary sources and the secondary sources are mostly from ILO website publication like
journals and annual statistical and survey reports. No statistical or mathematical design is
used to establish conclusion. Conclusion is drawn based on analysis of facts from the
collected data

HYPOTHESIS

While the Competition Law is still evolving in India, we often come across Cartelisation
across all market sectors - oil, gas, potash, cement and so on. Cartelisation refers to the
process of forming Cartels which is a group of independent companies engaged in similar
business that join together to fix prices, limit production or share consumers. The
Competition Act, 2002, a part of which came into effect in 2009 prohibits “Cartels”.
However, this prohibition is not sufficed to put deal with the problems that such cartels pose
for the economy and ultimately, the consumers. The paper studies the reasons why the present
competition law in India is not adequately competent in dealing with prohibition of cartels
and penalising the corporations involved in such unfair trade practices. It further discusses
plausible amendments that can be made to the current legislation so as to ensure effective
application of the same by way of comparing the competition laws across different nations.
BACKGROUND

Competition in markets promotes efficiency, encourages innovation, improves quality, boosts


choice, reduces costs and also leads to lower prices of goods and services. Competition
further encourages freedom of trade and prevents abuse of economic power and thereby
promotes economic democracy. Competition espouses the fundamental right to practice any
trade and business guaranteed under the Constitution of India.

Anti-competitive practices such as cartels are impediments which curb the competition in
Indian markets. The Supreme Court of USA has referred to cartels as “the supreme evil of
anti-trust”. Sec 2(c) of the Competition Act, 2002 (the Act) states that "cartel" includes an
association of producers, sellers, distributors, traders or service providers who, by agreement
amongst themselves, limit, control or attempt to control the production, distribution, sale or
price of, or, trade in goods or provision of services.

Cartels have been regarded as anti-competitive agreements wherein the competitors enter into
collusive agreements in order to control prices, production and supply of goods and services
and also control technological advancement in India. Indian markets evidence cartels mainly
in the cement, steel, tyre sectors at the domestic level and in petrol, soda ash, bulk vitamins
etc at the international level. Cartels tend to increase the price of goods and services and
reduce the choice of consumers thereby leading a setback on the consumer’s rights and
choices.1

Under Section 3(3) of the Act, the agreements under which any practice is carried on and
under which any decision is taken shall be presumed to have an appreciable adverse effect on
competition. Cartels can be at the national level or international level. A cartel can be an
export cartel or an import cartel. Cartel agreements may be tie-in agreements, exclusive
supply agreements or exclusive distribution agreements or agreements refusing to deal or
resale price maintenance which has an appreciable adverse effect on competition. There is
need to curb the cartels by effective implementation of Competition Act, 2002.

1 Vinod Dhall “Competition Law Today”, Oxford University Press, New Delhi (2007)
BASIC CHARACTERISTICS OF CARTELS

PRICE FIXING : Competitors agree on a pricing structure rather than competing against each
other. This is known as price fixing. It is pertinent to mention about the Vitamins Cartel on
price fixing by the leading producers of vitamins including Roche AG and BASF of
Germany, Rhone-Poulenc of France, Takeda Chemical of Japan formed a cartel dividing up
the world market and price fixing for different types of vitamins during the 1990s. The cartel
operated for over 10 years and was later prosecuted with the help of Rhone-Poulenc which
defected from cartel and cooperated with US authorities. Roche paid fines of US $ 500
million and total fine collected exceeded US $ 1 billion in the US alone. The overcharges
paid by 90 countries importing vitamins were estimated to the tune of US $ 2700 million
during the 1990s. The analysis also revealed that jurisdictions with weak cartel enforcement
regime suffered more. Damage wise, India incurred overcharges of more than US$ 25
million.
SHARING MARKETS: Market sharing occurs when competitors agree to divide or allocate
customers, suppliers or territories among themselves rather than allowing competitive market
forces to work. The Cement cartel practiced by Cement Manufacture’s Association (CMA)
was brought to the notice of the Competition Commission by Builder’s Association of India
(BAI) by filing a complaint based on the Sec 19 of the Competition Act of 2002, against the
Cement Manufacturer’s Association (CMA) and 11 other major cement manufacturing
companies for the alleged violation of the provisions of Section 3 and 4 of the Act (Case
29/2010 before the Competition Commission of India). As per the information in the case
before the Competition Commission of India, the Respondent cement manufacturers indulge
directly or indirectly into restrictive trade practices in an effort to control the price of cement
by limiting the production and indulge in collusive price fixing.

The above mentioned case also states that the Builders Association of India has also
mentioned that ACC cements and Gujarat Ambuja Cements are the leading cement
manufacturers having approximately 21% market share in India. But they have withdrawn
the membership from the CMA. But despite having resigned from the membership, ACC and
Gujarat Ambuja cement have been successful in keeping their prices per bag similar to that of
other cement manufactures. According to the BIA, despite having large capacities, the
opposition parties with sole intention to control supply, produce less cement and increase the
market price of cement deliberately, the large cement manufacturers have set up the cement
manufacturing units at different places in India keeping in view the availability of raw
materials, power, coal, etc and accordingly have different costs of production.2

BID RIGGING : Bid rigging, also referred to as collusive tendering, occurs when two or
more competitors agree that they will not compete genuinely with each other for tenders,
allowing one of the cartel members to ‘win’ the tender. Participants in a bid rigging cartel
may take turns to be the ‘winner’ by agreeing about the way they submit tenders, including
some competitors agreeing not to tender. Bid rigging may be cover bidding, bid suppression,
bid withdrawal, bid rotation or non-conforming bid. The competition regulator has imposed
Rs 317 Crore in penalties on three companies for collusive bidding to supply aluminium
phosphide (ALP) tablets to state-run Food Corporation of India (FCI). After a suo motu probe
into the matter by its investigation wing, the Competition Commission of India (CCI)
concluded that United Phosphorus Limited (UPL), Excel Crop Care and Sandhya Organics
were guilty of the "crudest form of bid rigging" as they repeatedly quoted identical prices for
the FCI tenders for ALP tablets during 2002-2009. The anti-competitive agreement among
the firms inflated FCI's cost of procuring the tablet used to preserve grains, the CCI noted.
The CCI probe also found these companies indulged in collusive bidding in supply of tablets
to other government agencies like central and state warehousing corporations. The CCI has
imposed penalty of 9 % which was the average turnover of each firm for three years (2008-
2011) under the Competition Act, 2002.3

CONTROLLING THE OUTPUT OR LIMITING THE NUMBER OF GOODS AND SERVICES

AVAILABLE TO BUYERS : Output restrictions may also be thought of as supply restrictions.


They occur when competitors agree to prevent, restrict or limit the volume or type of
particular goods or services available.

2 CUTS International & NLU Jodhpur. „Study of Cartel Case Laws in Select Jurisdictions- Learnings for the
Competition Committion of India‟. April 2008, p. 59
3 Competition Commission of India vs. Steel Authority of India Ltd. and Anr. (2010) 10 SCC 744, Para 1-7
CATEGORIES OF CARTELS

Cartel Members agree on price fixing, total industry output, market shares, allocation of
customers, bid-rigging, setting common sale agencies and allocating territories and division
of profits or combination of these to gain supernormal profits. Given below are the few types
of cartels which are usually practised by enterprises and corporations:

I. Customer Cartels: Customer cartels allocate customers or suppliers to certain


producers.
II. Specialization Cartels: In specialization cartels, members of the cartel assign lines of
product or production techniques among themselves. This is basically a non-price
oriented strategy involving division of labour.
III. Territorial Cartels: Territorial cartels divide market share by allocating the area
geographically.
IV. Quota Cartels: Quota Cartels limit the production output of participating members
and thus artificially creating supply constraint. This leads to price fluctuations andalso
capacity is left with the firm. However in these cartels, there is greater probability of
defection as monitoring is difficult.
V. Price Cartels: In Price Cartels, price is agreed upon among the members and usually
an independent agency is created to monitor the compliance of members and hold
them accountable.
VI. Syndicates: Syndicates usually pose a more united front against firms entering the
market and also punish wayward firms.

I. CARTELS UNDER COMPETITION ACT, 2002

The Competition Act, 2002 promotes free and fair competition in the markets and cartels are
considered as a hindrance to competition. Hence, the Act identifies agreements as cartels,
which are executed for fixing of prices, limiting supply of goods or services or technical
development, sharing the market and bid rigging. Classes of parties to a cartel agreement
under Section 3(3) of the Act are enterprises, association of enterprises, persons or
association of persons and they could act in any combination. Cartels result in super-normal
profits due to arbitrary and unreasonable pricing of goods and services. Cartels being the
most pernicious form of anti-competitive business agreements may or may not be in writing.
Cartels can be an arrangement or understanding and the same is as good as a formal written
agreement. Sometimes an agreement may be called apparently by an insignificant name and
be in effect of an anti-competitive agreement. What is necessary to examine is the effect of
that agreement on competition and not go by its name. Lord Denning in the case of RRTA
Vs. W.H.Smith and Sons Ltd.4 inferred that “People who combine together to keep up the
prices do not shout it from the housetops. They keep quiet. They make their own
arrangements in the cellar where no one can see. They will not put anything into writing nor
even into words. A nod or wink will do.” One of the instances of cartels where there was no
agreement in writing is the cartel arrangement that happened at Siem Reap in Cambodia
which is a very popular tourist town, which houses the famous Angkor Vat temples. There
were three means of transportation from Phnom Penh to Siem Reap – boat, road and air. The
competition between boat companies has been intense and the prices came down from US $
10 to US $ 5. The boaters discussed among themselves and resolved that they will charge US
$ 10 from Khmer nationals and US $ 20-25 from foreigners. They further agreed that they
would not compete with each other and would share their departure schedules. There was no
written agreement and only an understanding and it was decided that it constitutes a cartel
agreement.
Recently in Builders Association of India vs. Cement Manufacturers Association & Ors.
("BAI case") and In Re: Alleged Cartelization by Cement Manufacturers ("Cement case"),
CCI observed that Section 2(b) which defines "agreement" (any arrangement or
understanding or action in concert, whether or not the same is in formal or in writing or
intended to be enforceable by legal proceedings), is wide and will include tacit agreement. In
cartelization, parties are cautious to avoid explicit and direct evidence such as minutes, paper
trails, call records, inevitably mandating an inference to be based on circumstantial evidence
taken as a whole and economic indices. CCI relied on Dyestuff's case where European Court
of Justice observed that, whether there was a concerted action can only be correctly
determined if the evidence considered as a whole and not in isolation, bearing in mind the
peculiar feature of the market in question. It further noted that given the clandestine nature of
cartels, circumstantial evidence is of no less value than direct evidence to prove cartelization.

4 [1969] 3 All ER 1065


AGREEMENT: PROOF OF EXISTENCE

In order to prove the existence of a cartel, it is first essential that the existence of an
agreement be proved by the alleging/investigating body. However, the term “agreement” is
very widely defined under the Act to include any arrangement or understanding or action in
concert, whether or not such arrangement, understanding, or action in concert is formal or in
writing; or whether or not the same is intended to be enforceable by legal proceedings.5
Accordingly, evidence of an agreement is neither necessary nor will it, in general
circumstances, be readily available as such conspiracies are often hatched in secrecy. To a
great extent, circumstantial evidence such as market trends, along with the conduct of the
alleged cartel members and the profit and business motives fuelling a potential cartel must be
relied on to infer the existence of an agreement.
In fact, the CCI in its order in the case of All India Tyre Dealers’ Federation v. Tyre
Manufacturers6 (“Tyre Case”), has held that the existence of an explicit agreement is not
required and the same can be inferred from the intention or conduct of parties. Further, in the
case of conspiracy, proof of a formal agreement may not be available and can be established
by circumstantial evidence alone.

II. BURDEN OF PROOF

Once the existence of an agreement tending to give rise to a cartel-like situation is


established, the burden of proof shifts upon the alleged cartel members to prove that either:

I. there is no such agreement; or


II. that the agreement is not one that has the intent to or has the effect of performing any
of the actions mentioned in sections (i) to (iv) below; or
III. that the agreement does not cause an appreciable adverse effect on competition in
India. Section 3(3) of the Act provides that agreements entered into or practices
carried on or decisions taken by persons or associations of persons (including
cartels), engaged in identical or similar trade of goods or provision of services (i.e.
horizontal agreements) which: directly or indirectly determine purchase or sales
prices; limit or control production, supply, markets, technical development,
investment, or the provision of services;
IV. allocate markets in terms of the geographical area of the market, type of goods or
services, number of customers in the market, etc.; or

5 Section 2(b) of the Act.


6 RTPE No. 20/2008.
V. directly or indirectly result in bid-rigging or collusive bidding, are presumed to have
an AAEC in the relevant market in India unless such agreements are entered into by
way of joint ventures which increase efficiency in production, supply, distribution,
storage, acquisition or control of goods, or provision of services.

Therefore, the burden is on the parties (proposing to enter into such arrangement) to
prove that the arrangement does not cause, or is not likely to cause, an AAEC in the relevant
market in India.

III. STANDARD OF PROOF

Neither the Act nor any accompanying regulations provide guidance in relation to the
standard of proof in regard to investigations and enquiries relating to contraventions of
Section 3. Nevertheless, this question has been dealt with by the CCI in cases under Section 3
of the Act. As cartels have been categorized as a civil offense under the Act, the standard of
proving the violation “beyond reasonable doubt” does not apply to Section 3 violations. The
CCI has also acknowledged the fact that, given the very nature of a cartel, it is difficult to
obtain ”‘well documented” proof. Hence, in the absence of evidence of a written agreement,
the CCI has held that reliance can be placed on other sources of credible circumstantial
evidence. For instance, in relation to bid-rigging, identical pricing in bids despite varying cost
structures of the parties, and common entries in the visitors’ register for all of the three parties
when submitting bids, were held to be sufficient evidence to establish the existence of an
understanding between the parties.
Interestingly, the approach adopted by CCI towards the requisite standard of proof required to
sustain an allegation of cartelization has changed over the course of the various cartel cases
investigated and adjudicated upon by the CCI. In its order in the case of Neeraj Malhotra v.
Deutsche Post Bank Home Finance Ltd. & Ors the CCI noted that: The word “agreement”
for the purposes of the Act has wide connotations as defined under Section 2(b). However, it
is imperative that existence of such an “agreement” is unequivocally established. The
European Court of Justice has clearly laid down this principle with respect to infringements
of Article 81 (1) of the EC Treaty in... Compagnie Royale Asturienne des Mines SA and
Rheinzink GmbH v. Commission wherein that Commission has said that precise and coherent
proof must be produced by the party or authority alleging infringement7.
However, in Neeraj Malhotra, while the majority preferred a “meeting of minds” or concerted
approach, the minority was satisfied with the factual existence of a common (though not

7 Decision dated 2 December 2010 in Case No. 5/2009. The case related to levying of pre-payment penalties on
homeowners for foreclosure of loans, thereby engaging in alleged cartelization.
“concerted”) approach. Thereafter, the CCI in its decision in In re: Sugar Mills8 required that:

I. There must be evidence of the fact that the alleged cartel participants met and decided
to take concerted action;
II. Such concerted action must have been implemented; and
III. There must be conclusive evidence of meeting of minds.

However, the CCI diluted this standard of proof in its subsequent orders. For instance, in
Builders Association of India v. Cement Manufacturers' Association & Ors6 (“Cement
Case”), the CCI held that, in the absence of direct evidence, existence of a cartel can be
concluded on the basis of circumstantial evidence alone. In addition to establishing price
parallelism by taking into consideration the increased cement prices, timed after two
meetings of the Cement Manufacturers’ Association (“CMA”), the CCI considered various
other “plus” factors to establish cartelization in the cement industry, such as decrease in
capacity utilization, production, and dispatch parallelism, etc. In the In Re: suo‐motu case
against LPG cylinder manufacturers case9 the CCI held that cartelization not being a criminal
offense, the test for proof to be employed should be the “balance of probabilities” and
“liaison of intention” test, which can be established with the support of indirect and
circumstantial evidence.

IV. AUTHORITY OF THE CCI STILL INADEQUATE

Going by the literal construction of the statute, Authority of the CCI is enormous when it
comes to penalising firms engaged in anti-competitive agreements or arrangements.
However, it can be inferred from the lack of requisite action on part of the Commission
against the cartels in the past that powers conferred in the Act amount to an empty gesture.
However, it is also to be noted that the CCI has in fact exercised its power judiciously and
made orders against the collusive agreements and actions at several instances. The most
remarkable of these is the order of the CCI in Coal India Limited v. Explosives Manufacture
Welfare10, where the India‟s antitrust watchdog, fined ten explosives companies a total of
60,00,000 rupees rigging bids put out by Coal India Limited (CIL). The CCI imposed a fine
on the explosives manufacturers representing three per cent of their average three-year
turnover. Enforcement by the Commission ought to follow on the same lines.
It is not a problem peculiar to Indian Competition Law, as regards to its Irish counter-part, it
has been stated that even after a decade of its enactment the existence of sufficient statutory

8 Case No. 1 of 2010.


9 Case No 3 of 2011
10 Judgment of the Competition Appellate Tribunal in Case No. 6/2011 available at
http://compat.nic.in/upload/PDFs/aprilordersApp2013/18_04_13.pdf
sanctions is irrelevant absent a willingness of Irish judges to impose them, and the absence of
meaningful sanctions makes the Cartel Immunity Programme less successful because the
benefit of immunity is reduced.11 Therefore, to avert such dismal scenario, there is an urgent
need of reforms so as to fulfil the object and purpose of the legislation.

V. NEED FOR A TOUGHER ANTI-CARTEL LAW

The first question that arises in the domain of cartels is what the general nature and legal
basis of cartel prohibition is; civil or criminal? While India and European Union have civil
penalties for cartels, UK, Australia and U.S. believe in criminal penalty for the grave offence
of cartelization. In fact, Australia has some of the toughest cartel laws in the world and
adopted criminal liability on account of the Dawson review of 2003 that suggested criminal
sanctions for cartel conduct although subject to resolution of a number of issues. The MRTP
Act, 1969 had no provisions regarding the mechanisms for avoiding cartels. Hence the
Competition Commission was not empowered to punish the organisations and enterprises
indulging in cartels. The MRTP Commission had no provision for avoiding cartels and hence
there were trucking cartels which practiced eliminating competition in the market. It was a
common scenario in the trucking industry where the freight rates were fixed without liberty to
the members of the Truck Operators Union to negotiate freight rates individually. The
M.R.T.P. Commission passed ‘Cease & Desist’ order against Bharatpur Truck Operators
Union and Goods Truck Operators Union, Faridabad vide order dated 13.12.1989 in RTP
Enquiry No.13.13.1987 and Rohtak Public Goods Motor Union vide order dated 25.8.1984 in
RTP Enquiry No.250/10983. As the MRTP Act was devoid of any penalty provision, no fines
could be imposed on the Truck Operators Union which indulged in cartel.
Keeping in mind the hindrance caused in ascertaining cartels and also the absence of penalty
provisions in the MRTP Act, provisions were introduced by enacting the Competition Act,
2002 which provides for penalty under Section 27 of the Act. The Commission currently
imposes penalty under Section 27 of the Act, based on the profits made or the turnover of
cartel, whichever is higher. The Act empowers the Commission to impose upon every
producer, seller, distributor, trader or service provider who indulges in cartels, a penalty
equivalent to three times of the amount of the profits made out of such agreement by the
cartel or 10% of the average of the turnover of the cartel for the last preceding three financial
years, whichever is higher.
The Commission under Section 27 of the Act has the power to pass inter alia any or all of the
following orders:

11 Calvani Terry, Kaethe M. Carl, The Competition Act 2002, ten years later: lessons from the Irish experience
of prosecuting cartels as criminal offences, J Antitrust Enforcement (2013),
I. direct the parties to a cartel agreement to discontinue and not to re-enter such
agreement.
II. direct the enterprises concerned to modify the agreement.
III. direct the enterprises concerned to abide by such other orders as the Commission may
pass and comply with the directions, including payment of costs, if any; and pass
such other order or issue such directions as it may deem fit.

The criminal liability structure acts as deterrent but the absence of same in India is a major
drawback and hence cartelization is evidently dominant in India. Under the existing penalty
regime in India, corporations and enterprises involved in cartels can only be imposed with
pecuniary fines as envisaged in the Act, which most of the enterprises/corporations pay and
continue to indulge in cartelization in Indian markets. Penalties fail to act as deterrents to
members of cartel. Australia’s recent introduction of criminal penalties for cartel activities
has reported an increase in leniency applications ever since the new law came into force. On
the contrary, Indian law, in its current form, has not attracted many leniency applications ever
since the inception of the Act. There is, therefore, a compelling need to scrutinize the current
penalty regime to further deter cartels.
SUGGESTIVE MEASURES

First of all, the approach of the Commission in determining the existence of a cartel is
fallacious as it considers “price parallelism” as a valid defence, if sufficient evidence is not
found on the record. There have been instances where the DG (IR) and the MRTPC have tried
to investigate cartels on suspicion of price rises or submission of collusive tenders in various
industries such as tyre industry, sugar mills, yarn producers, plywood manufacturers, cement
manufacturers, etc. However, they were not successful in proving the existence of a cartel as
because the evidence collected did not go beyond price parallelism. Hence they were
not able to provide direct or indirect evidence, such as an agreement or meeting of minds to
prove the existence of a cartel.
DG (IR) v. Modi Alkali & Chemicals Ltd12. is one such example where the MRTPC had to
suo moto take up further enquiry as the report of the DG did not have an evidence to go
beyond price parallelism. Further, the position on price parallelism and collusion is the same
in India. In ITC Ltd v MRTP Commission13, it was held that three essential factors have to be
identified to establish the existence of a cartel, namely agreement by way of concerted action
suggesting conspiracy, the fixing of prices, and the intent to gain a monopoly or
restrict/eliminate competition. Establishing the existence of cartel through this approach is tad
complicated and therefore, there is a need to simplify the process so that collusive firms do
not get away with clandestine cartel activities. The Alkali and Chemical Corporation of
India Ltd, Calcutta and Bayer (I) Ltd14, was decided on the same lines.
Secondly, there is a need to reform the procedure for investigation. A mechanism is to be
devised in such a manner that no suspicious instance would go unnoticed or unaddressed. The
fact that India‟s commercial market is vast and the stakes are high considering the big MNC
Corporations and Government Companies involved therein. As cartelisation is one of the core
issues of competition law, it is imperative that misdemeanour and malpractices should be
visited by criminal sanctions as well. To create deterrence against the mischief sought to be
corrected, a provision to impose criminal penalty for forming cartels could be formulated. For
instance, Section 138 of Negotiable Instruments Act, 188129 which was inserted for
increasing the severity of punishment as well as speedy disposal. As a result, it has enhanced
the credibility of cheques.

Thirdly, Leniency policy regulations15 can be instrumental in facilitating investigation in such


cases. Although, Lesser Penalty Regulations were enacted in 2009 but the full potential of
12 2002 CTJ 459 (MRTPC)
13 (1999) 46 Comp Cases 619
14 RTPE 21 of 1981 order dated 3/7/1984.
15 (Lesser Penalty) Regulations, 2009 of the Competition Commission of India available at
http://www.cci.gov.in/images/media/Regulations/regu_lesser.pdf
such regulations is yet to be realised. The suspected parties ought to be informed of their
option to request for leniency as this would simplify the process of evidence collection

Lastly, CCI should take the initiative and invite exchange of information for feedback and
positive changes. Since there are some information exchange platforms that can yield pro
competitive outcomes, there might also a need for CCI to take a lead in calling for necessary
amendments to ensure that, as is the case in other jurisdictions, only those information
exchange arrangements that have an appreciable adverse effect on competition are prohibited.
Since competition law is still in the infant stage, there can be several other changes to keep
pace with time and to ensure perfect competition.
CONCLUSION

Competition law is in its nascent stage in India. We have to look at its functioning in other
countries and gain from their experience. However, like every country India has its own
peculiar problems. Considering, the ultimate beneficiaries of the Act being consumers and the
sheer ever-growing market size of India, the implementation of its provisions in its true spirit
will substantially benefit its economy too. Therefore, there is a need to study and devise an
indigenous method to address these peculiar issues. As the law is still in its embryonic stage,
both the law and institutions, implementing it, have to be nurtured with due care and
diligence.

Cartels being anti-competitive agreements are having an adverse effect on competition and
this indirectly affects the markets and also the consumers. Though the Competition Act, 2002
contains provisions relating to defining cartels, provisions laying down penalty for
organisations indulging in cartels, it is difficult for the Competition Authorities to ascertain
cartels. The Competition Authorities are facing difficulties to differentiate between practices
that lead to free and fair competition and practices that lead to cartels. The thin line of
difference between these aspects is not always clear and hence even though cartels prevail in
certain areas, the competition authorities are unable to categorize those practices as cartels.
As provided under Section 18 of the Act, it is the duty of the Commission to eliminate
practices having adverse effect on competition, promote and sustain competition, protect the
interests of consumers and ensure freedom of trade carried on by other participants, in
markets in India. The Commission should involve the participation of general public in
descrying cartels to avoid cartels effectively. This can be done by creating awareness among
the general public and informing them about the authorities before whom such matter can be
placed for adjudication.
BIBLIOGRAPHY

Articles;

 Richard Wish “Control of Cartels and other Anti-Competitive Agreements”, Vinod


Dhall “Competition Law Today- Concepts, Issues and the Law in Practice”, Oxford
University Press, New Delhi (2007)
 Amit Sanduja “Report on leniency programme : A key to detect cartels”
http://cci.gov.in/images/media/ResearchReports/leniencyproject_amitsanduja1103200
8_20080715104637.pdf
 Deepika and others, “ Cartel in Cement Industry in India: Is there enough evidence”
(October 2012) http://amrita.edu/asb/pdfs/workingpaper/Working-Paper-No.133.pdf
 Krati Menon “Control of Cartels and other Anti-Competitive Agreements”
Competition Law today, Oxford University Press (2007)
 G.R.Bhatia “Combating Cartel in markets- Issues and Challenges”,
 P.Sathyanarayana Prasad “Competition Law and Cartels, The Icfai University Press,
Hyderabad (2007)

Books

 Dr.H.K.Saharay, “Textbook on Competition Law” Universal Law Publishing Co.,


New Delhi (2012).
 Saumya Jhambekar, “Competition Assesment of Leniency Policies and Introduction
to Market System and Amnesty Plus”

SITES’

 http://www.iitk.ac.in/infocell/announce/convention/papers/Industrial%20Economics%
20%20Environment,%20CSR-01-Ritu%20Raj%20Arora,%20Runa%20Sarkar.pdf
 http://ijlljs.in/wp-content/uploads/2016/02/Cartelization-in-Indian-Competitve-
Market.pdf