Mr. Manas Kumar Chaudhuri, a law graduate of Delhi University and postgraduate in law from Calcutta University, is currently a Partner in the Competition Law Practice Group at Khaitan & Co. LLP. He is a first-generation lawyer who started his legal journey at the West Bengal State Judiciary in late 1980s and charted his way to the MRTP Commission and later to the CCI as one of the senior legal functionaries in these authorities between 2000 and 2006 respectively. He has been a private practitioner of antitrust/competition law since 2006 until date. In this interview, he shares his experience and expertise in the general scope of the legal field and the specialized nuances of competition law.
1. Please shed some light on your journey transitioning from lower judiciary to a private practice setting, highlighting the key adjustments and adaptations that you faced.
State Judicial Service of West Bengal was a fascinating experience. Every judicial officer in the State Judicial Services must work independent of any real time assistance in judicial work. Hence, independence of judicial work was coupled with an imminent challenge of appeal by parties aggrieved. Therefore, I was always trying to assess each matter carefully, minimising ‘remands’ by appellate court(s) to the maximum extent possible. This process helped me a lot in shaping my future legal journey.
I joined the State Judicial Service in an era when we did not have internet and other facilities for seamless online research. Therefore, most of the research was conducted by me by reading ratios of higher courts and textbooks which, as I look back today, were great ‘learning by doing’ processes. Being a first generation law graduate, much less a practising lawyer, as I opted for open competitive examination conducted by the Public Service Commission, my ignorance of the practice of law became my strongest strength in such adverse circumstances prevailing then as I was expected to perform immediately on successful completion of compulsory departmental examination and the induction training.
I transitioned to in-house counsel in one of the top Central statutory bodies via open competitive examination and subsequently by the same process of open competitive examination moved back to Delhi and joined the MRTP Commission and later the Competition Commission of India in senior legal positions. During the time when I joined the MRTP Commission, recommendations of the Raghavan Committee were being deliberated and inter alia proposals were gaining momentum of dissolving the MRTP Commission and repealing the MRTP Act to be replaced by the Competition Act and the Competition Commission of India respectively.
Surely, adjustments had to be made in respect of these changes in my professional career and since I volunteered to opt for these changes, it was I who had to make all the adjustments. I think I did it well as no adverse observations were ever made by authorities or by clients about my performance in specific roles. I did realise that hands-on knowledge of the law, both as an adjudicator and later as a practising professional lawyer, helped me immensely. It is a unique experience.
2. What made you gravitate towards the field of competition law? What are some promising growth areas within the field that young lawyers should explore?
As stated in the foregoing response, I was not clamouring to take up competition law as a career option, so it came more by default rather than by design. But once I got involved in this new space of law, I found it fascinating as it is a niche area of law that gave me great insight into how businesses are managed on a day-to-day basis by enterprises, and how they need to align with new challenges to minimise risks. Enterprises had to adapt to the new law and comply with it on priority basis as penal consequences of non-compliance could be humungous and entail reputational losses. Since it is a sector-agnostic law, compliance by all enterprises became a buzz word around 2003 and it continues to be so even now amongst the Indian Chambers of Commerce and Industry.
Defining ‘markets’ is the most complicated task which anyone involved in the practice of this law struggles with. With digital markets of late becoming a global competition law phenomenon, defining markets of the digital economy would be an additional challenge. Hence, those who are keen to pursue this law, may like to focus on defining markets.
3. Having engaged in discussions of competition law beyond India’s borders, how do you envision global trends and best practices shaping the evolution of Indian competition law in the coming years?
CCI is an active member of the International Competition Network (ICN) and BRICS Competition Group, therefore, in my view, efforts of converging, subject to the Constitutions of Nation States and their economic policies, have already been initiated, which, from time to time require fine tuning.
Cross-border remediation is one of the key mandates of the global Competition Acts including Indian legislation. Hence, convergence is already in vogue ever since the law came into effect.
4. Some jurisdictions have a practice of instating a mandatory waiting period before a member of a regulatory body like the Competition Commission can switch to private practice before the same body. What are your perspectives on a similar policy for CCI?
The latest amendments to the Competition Act, specifically Section 12, have imposed a prohibition against the Chairperson and other members from taking up any employment for a period of two years after their tenures end. This seems to eliminate the risk of conflict of interests between former adjudicators and their future professional activities.
5. With sectoral regulators like TRAI gaining influence in competition matters, can you illuminate on the potential risks and benefits associated with this trend, particularly regarding jurisdictional overlap with the CCI?
There are no overlapping risks between sectoral regulators and the CCI. Moreover, the potential for this is very less since the Competition Act is sector-agnostic, whereas sectoral regulators are sector-specific and not strictly the adjudicators of disputes. Some decisions of these independent sector regulatory authorities, however, at times do cause unforeseen complexities to enterprises, which should be harmonised by the statutory authorities and the CCI.
6. In light of emerging challenges like big data, digital privacy, and tech platform dominance (as exemplified by the WhatsApp and Google Pay cases), what measures do you believe could strengthen competition law enforcement to effectively address these concerns?
Analysing these challenges, both on real time micro-economic principles and incumbent laws, can resolve most associated complexities. Classical competition law principles encourage innovation with improved quality of product, and provision of services at affordable cost and after-sales services to consumers are to be kept in mind while adopting these newer market dynamics.
Therefore, the core measures which can strengthen the enforcement of law further are ones that would apply these undisputed principles both in traditional and digital economic markets with minor adjustments adopted, whenever becomes a necessity.
7. For competition law enthusiasts eager to stay in step with the latest developments, both domestically and internationally, what resources and practices would you recommend?
Young lawyers, who intend to pursue this law, may like to read on regular basis the OECD Round-table discussions on Competition Law, the ICN Project Reports of various specialised groups, World Bank and United Nations Conference on Trade and Development (UNCTAD) literatures on the subject, besides keeping themselves abreast with the latest ratios of competition authorities including their respective highest appellate authorities.
8. What are some skills that fresh law school graduates must sharpen as they enter firms or legal practice?
Law students must work hard to sharpen their abilities to read the right legal literature of their choice, improve communication skills, and appreciate the challenges which lawyers on the other side may throw up both in adjudicatory and non-adjudicatory functions. Finally, they must read the procedural subordinate regulations including procedural laws which guide the authorities/courts to function on a day-to-day basis.
