CCI v. TRAI: Regulatory Framework for Better Coordination and Interoperability

Abstract

Section 18 of the Indian Competition Act, 2002 (‘Act’) holds the Competition Commission of India (CCI) responsible for promoting and sustaining competition in markets in India. This duty of CCI is reinforced through the twin mirror reflection provisions provided in Sections 21 and 21A of the Act. Evidently, the Act holds robust provisions for inter-regulatory consultation and coordination. However, referring to the annual reports of CCI, it appears that, in the preceding 10 years, no reference has been made by any sectoral regulator to CCI. Thus, even though a robust regulatory architecture of interoperability exists, it is not being used to its optimum potential. This lack of inter-regulatory consultation has often resulted in protracted litigation, of which CCI vs. Bharti Airtel Limited (2019) is a classic example, wherein the apex court highlighted that comity between the sectoral regulator and the market regulator, i.e., CCI, is a crucial aspect of market regulation and must be exercised effectively. In order to strengthen competition in the market, it is essential that both CCI and the Telecom Regulatory Authority of India (TRAI) function in an atmosphere of mutual cooperation and consultation. This paper seeks to critically analyse the legal and regulatory framework, judicial pronouncements, and recent public policy developments in India to support the coordination and consultation framework between TRAI and CCI, while drawing a comparison to international best practices. The paper attempts to bring forth a potential framework to support and enhance the coordination and interoperability between CCI and TRAI in an effective manner.