2018 (6) TMI 1086 - HC - Law of Competition

Individuals Can Have Lawyers Present During CCI Investigations, Court Affirms Right to Legal Representation.

The court determined that individuals summoned for investigation by the Competition Commission of India (CCI) have the right to be represented by an ... Whether a person summoned for investigation (and whose statement may be recorded) has the right to be represented by an advocate merely because the Authority investigating is empowered to take evidence? - Section 30 of the Advocates Act. Held that:- Section 30 provides a right both to the advocate to the practice, and to the litigant to engage the services of an advocate - Since the rule is that advocates must have the right of practice under Section 30 of the Advocates Act, necessarily, any exception to this rule cannot be lightly presumed and must be specifically provided under the statute. Since competition law in our country is in a nascent stage, the Commission, COMPAT and the Supreme Court have often relied on foreign jurisprudence and the position of EU antitrust laws and US in order to interpret the provisions of the Competition Act. Adopting a similar approach, it can be seen that both the US and the EU (or EC) allow parties to be represented by legal counsels at the investigation stage as well - Since the DG’s powers are so far-reaching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. Since the DG’s powers are so far-reaching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. The DG shall ensure that the counsel does not sit in front of the witness; but is some distance away and the witness should be not able to confer, or consult her or him. The Court does not deem it necessary or appropriate to say more on this aspect of the matter, leaving it to the Commission to decide the appropriate course. Appeal dismissed. Issues Involved:1. Right to be represented by an advocate during investigation.2. Interpretation of Section 30 of the Advocates Act, 1961.3. Provisions of the Competition Act, 2002 and related regulations.4. Applicability of foreign antitrust laws and practices.5. Concerns regarding the efficacy of investigations.Issue-wise Detailed Analysis:1. Right to be represented by an advocate during investigation:The primary issue addressed is whether a person summoned for investigation by the Competition Commission of India (CCI) has the right to be represented by an advocate. The CCI argued that the right to practice under Section 30 of the Advocates Act, 1961 is not absolute and can be restricted 'by law for the time being in force.' They contended that the Competition Act impliedly prohibits advocates from appearing before the Director General (DG) during investigations, as Section 35 of the Act and the Competition Commission of India (General) Regulations, 2009 provide for legal representation before the Commission but not before the DG.2. Interpretation of Section 30 of the Advocates Act, 1961:Section 30 of the Advocates Act, 1961, grants advocates the right to practice before any tribunal or person legally authorized to take evidence. The court noted that this right is well entrenched and that any restriction on this right must be specifically provided under the statute. The court emphasized that the DG, being authorized to record evidence under Section 36(2) of the Competition Act, falls under Section 30(ii) of the Advocates Act, thus allowing advocates to practice before the DG.3. Provisions of the Competition Act, 2002 and related regulations:The court examined the provisions of the Competition Act and related regulations to determine if there was any express restriction on advocates representing parties during DG investigations. The court found no such restriction in the Act or the regulations. The court also considered the argument that the absence of a specific provision for legal representation before the DG implies a prohibition, but rejected this, stating that restrictions on the right to practice must be clearly stipulated.4. Applicability of foreign antitrust laws and practices:The court looked at antitrust laws in the US and the EU, noting that both jurisdictions allow parties to be represented by legal counsel during investigations. The court cited US law (15 U.S.C. § 1312) and the European Court of Justice's decision in Hoechst v. Commission, which recognized the right to legal representation during preliminary inquiries. The court used these examples to support the argument that the right to legal representation should not be denied during DG investigations.5. Concerns regarding the efficacy of investigations:The CCI expressed concerns that allowing advocates to accompany parties during investigations could hinder the investigation process. The court acknowledged these concerns but suggested that the DG could prescribe appropriate procedures to ensure that the presence of an advocate does not interfere with the investigation. The court recommended that the DG could allow advocates to accompany parties but restrict their interaction during the questioning to prevent any undue influence on the witness.Conclusion:The court concluded that the right to be represented by an advocate during DG investigations is supported by the provisions of the Advocates Act and the Competition Act. The court dismissed the appeal but allowed the DG to prescribe procedures to manage the presence of advocates during investigations to ensure that the investigation process is not hindered. The court emphasized that any restriction on the right to practice must be explicitly stated in the legislation.