Unfolding the Layers of Leniency Programme - A Must for Cartel Detection in India

Abstract

This paper discusses, in light of the growth of mushrooming cartels and problems associated with their detection, the concept of leniency programme as contained in the Antitrust Law of India i.e. Competition Act, 2002 (‘Act’). The rhetoric of leniency programme is very much a part of the contemporary discourse of Competition Authorities across the globe, including the Competition Commission of India (‘CCI’). Leniency programme refers to grant of immunity from penalties for violation of antitrust laws in exchange for cooperation with the antitrust enforcement authorities. The first and second part of this paper highlights the concept of cartel and theory and practice of the leniency programme in antitrust enforcement. Third part discusses the legal framework with respect to the cartel detection in India. Next part highlights the pattern and success of leniency programme in United States and EU. Last leg of this paper focuses on the benefits of the successful implementation of leniency programme and concludes with some minor suggestions for providing a kick start to the programme in India.The key point of discussion in the present paper is that weak leniency programmes i.e. one without clear and consistent guidelines, procedures and application can create obstacles for an antitrust enforcer more than it helps. Therefore, what is important is that the Antitrust agencies must remember to treat companies that come to them, appropriately if they want their leniency programmes to be effective and respected. It is submitted that there is still room in the Act to refine the concept of the leniency programme, so as to provide a complete kick start to it.