Jurisdictional Conflict in Competition Law: CCI vs Sectoral Regulators in India (Part 2)

cci part 2

By – Sakya Singha Chaudhuri and Asmita Narula

Table of Contents

Introduction

In the first part of our article last week, we had touched upon some of the facts of the  conflict between CCI and sectoral regulators. We had also discussed the approach of the court in the CCI – TRAI conflict related to the telecom and broadcasting industry.

In this second part, we examine jurisdictional conflicts in sectors beyond telecom, particularly in copyright, patents, and electricity.

Conflict with the Copyright Board and the Controller of Patents

[Copyright Act, 1957 & Patents Act, 1970]

The Copyright Act and the Patents Act stands on a different footing as compared to the other legislations in view of Section 3(5)(i)(a) and (b) of the Competition Act, which provide that the prohibition to enter into anti-competitive agreements shall not restrict the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights that have been or may be conferred upon him under the Copyright Act and the Patents Act.

Case: M/s HT Media v. Super Cassettes

In this case1, the CCI held that none of the areas covered by Section 3 and 4 of the Competition Act were covered under the Copyright Act and the rights of the person protected under the Copyright Act have been taken care of by Section 3(5) of the Competition Act.

It was further held that the CCI had intended to exercise its jurisdiction only within the four corners of the Competition Act and had no intention to encroach upon the area where the Copyright Board has sole and exclusive jurisdiction. The Copyright Board performs important judicial / quasi-judicial functions but, under no circumstances, can it be said that the Board is tasked with eliminating market practices which have an adverse effect in the market of works protected by the Copyright Act.

An Appeal against the CCI’s Order is pending adjudication before the Appellate Tribunal.2 The decision of CCI exhibits a sense of maturity and clarity in defining the boundaries of the different regulators under their respective statutes and the sense of co-operation and co-ordination that needs to be maintained between them.

Case: Telefonaktiebolaget LM Ericsson (PUBL) – Division Bench View

The jurisdiction of the Controller of Patents has been upheld by the Division Bench of the Delhi High Court in Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India3. Coupled with the decision in Bharti Airtel, the Delhi High Court decision further adds to the conflict jurisprudence. 

Case: Telefonaktiebolaget LM Ericsson (PUBL) – Single Bench View

The Single Bench of the High Court upheld CCI’s jurisdiction in relation to exercise of the rights of the patent holders granted under the Patents Act in Telefonaktiebolaget LM Ericsson (PUBL)4. The case pertains to the demand of excessive royalty fee by the patentee holding the Standard Essential Patents (SEPs) with respect to technologies used in mobile handsets and network stations, which have been accepted as standards to be uniformly accepted and implemented and must be mandatorily followed. Such a patentee is bound to offer the SEPs on fair, reasonable and non-discriminatory terms.

The key take aways from the judgment are as follows:

  1. Section 60 of the Competition Act – Cannot be read to curtail / whittle down the provisions of other statutes and its purpose is to restate that agreements, arrangements, practices and conduct, which may otherwise be legitimate under the general laws, would still be subject to the rigors of the Competition Act.
  1. Section 3(5)(i)(b) – Protects those agreements which impose reasonable conditions and not anti-competitive agreements which impose unreasonable conditions and the question whether a condition is reasonable or not can only be determined by CCI.
  1. Both the statutes are special in nature and operate in their respective fields however, the Patents Act would be a special Act vis-à-vis the Competition Act in so far as patents are concerned.
  1. In case of denial of license on reasonable terms, the only remedy available under the Patents Act would be to approach the Controller for a ‘compulsory license’ on terms settled by it. However, the same does not oust the jurisdiction of the CCI to pass an appropriate order qua the anti-competitive or abuse of dominant position allegations. The two remedies are materially different from each other and are not mutually destructive.

Case: Monsanto Holdings Pvt. Ltd. v. CCI

In 2020, a Single Bench of the Delhi High Court upheld the jurisdiction of CCI in Monsanto Holdings Pvt. Ltd. and Others v. Competition Commission of India and Others5 relying on the decision in Telefonaktiebolaget LM Ericsson (PUBL).

The Single Bench decisions in Telefonaktiebolaget LM Ericsson (PUBL) and Monsanto Holdings have been set aside by the Division Bench of the Delhi High Court in Telefonaktiebolaget LM Ericsson (PUBL).

The key findings of the Court are as follows:

  1. Court must not automatically uphold the subsequent law as overriding the earlier law when both are special. Court must also not hasten to declare laws as special merely because they deal with a specific subject. It should consider the subject matter in question, intendment of the statutes in respect thereof and whether the scheme and relevant provisions of the two statutes have any indication apropos which the legislature felt that one must override the other, especially when both statutes have a non-obstante clause.
  2. Both the Patents Act and the Competition Act are special laws in their respective fields. Moreover, Chapter XVI of the Patents Act, which was introduced in 2003, pertains to the working of patents, compulsory licences and revocation. It includes anti-competitive agreements and abuse of dominant position explicitly.
  3. CCI’s proposed inquiry in respect of an assertion of patent rights is very similar to one which the Controller may conduct under Chapter XVI. The factors to be considered by the Controller are also similar to those in the Competition Act.
  4. The Competition Act is a general legislation pertaining to anti-competitive agreements and abuse of dominant position generally. The Patents Act is a special statute, and Chapter XVI is a complete code in itself on all issues pertaining to unreasonable conditions in agreements of licensing of patents, abuse of status as a patentee, inquiry in respect thereof and relief that is to be granted therefor.
  5. The legislative intent to vest exclusive domain under the Patent Act is apparent from the introduction of Section 84(6)(iv) by way of amendment to the Patents Act while the Competition Act already stood enacted with Section 3(5)(i)(b). Section 84(6)(iv) provides that while considering the grant of compulsory licence, the Controller shall consider whether the applicant has made efforts to obtain a licence on reasonable terms and conditions, which have been unsuccessful within reasonable time.

The decision of the Division Bench has been challenged before the Supreme Court6 and is pending decision.

In our view, the following aspects may need closer consideration:

  1. The scope of Chapter XVI of the Patents Act is different from that of the Competition Act. Chapter XVI relates to the grant of compulsory license in certain circumstances specified thereunder while the Competition Act aims to deal with and curb anti-competitive conduct and impose penalties for the same.
  2. The relief under the Patents Act is limited to the applicant for the compulsory license. Competition Act relates to distortion in competitive forces in the market. The objective and relief under the Competition Act is market based and broader in scope.
  1. Though the scope of enquiry may be different, the outcome under the two statutes is very different. While any entity other than those covered under the Patents Act, guilty of anti-competitive conduct, would be subject to penal provisions, the wrongdoer covered under the Patents Act, will not be subjected to similar penalties even though guilty of anti-competitive conduct. This differential treatment could not have been the intent of the legislature.
  1. That apart, there is an entire jurisprudence on standard setting organizations and the anti-competitive practices in this regard. The CCI would be better equipped to examine such issues.   

One of the authors had on an earlier occasion discussed about pay-to-delay contracts often entered into by incumbent patent holders with new entrants to delay introduction of new technology and prevent downward price revision of existing products7. Such agreements would fall within the domain of the CCI under the Competition Act.

Conflict with the Electricity Regulatory Commissions

[Electricity Act, 2003]

The position with regard to the jurisdiction of CCI and the Electricity Regulatory Commissions is  evolving. CCI has proceeded on the basis that its jurisdiction does not overlap with that of the Electricity Regulatory Commissions if the provisions of the Competition Act and the Electricity Act are read harmoniously.

Case: Neeraj Malhotra, Advocate v. North Delhi Power Ltd. & Ors.

Issue of higher electricity meter readings—DERC vs CCI jurisdiction

In this case8, the CCI referred the issue to the Delhi Electricity Regulatory Commission (DERC) to give an opinion on which regulator has the jurisdiction in cases where the electric meters, which the consumers were required to mandatorily install by the distribution companies, were recording higher readings compared to actual consumption.

The DERC categorically opined that the matters related to electricity tariff have to be decided as per the Electricity Act and the DERC Regulations and thus, the CCI may not be the appropriate forum to deal with such an issue. However, the CCI can look into the specific issues pertaining to accusations of abuse of dominant position.

Case: Open Access Users Association v. Tata Power Delhi Distribution Limited & Ors.

Allegations of discriminatory conditions for open access and market denial

In this case9, the Informant alleged that unfair and discriminatory conditions were being imposed for open access resulting in market access denial, creation of entry barriers, foreclosure of competition, etc.

The CCI held that the charges for open access are to be decided by the State Commission under the Electricity Act as the same essentially relate to the discharge of regulatory functions in respect of tariff fixation.

While coming to this conclusion, the CCI also recognized the overlapping jurisdiction of the Electricity Act with the Competition Act and observed that:

  1. There is no overlap in the jurisdictions exercisable by the CCI and the State Electricity Regulatory Commissions.
  2. While the CCI’s mandate is inter alia to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers, etc. the sectoral regulators have necessary technical expertise to determine access, maintain standard, ensure safety and determine tariff.
  3. Sectoral regulators focus on the dynamics of specific sectors, whereas the CCI has a holistic approach and focuses on functioning of the markets by way of increasing efficiency through competition.
  4. Thus, these distinct roles are complementary and supplementary to each other as they share the common objective of obtaining maximum benefit for the consumers.

Case: Anand Parkash Agarwal v. Dakshin Haryana Bijili Vitran Nigam and Ors.

Issue of higher fuel surcharge and CCI’s competition jurisdiction

In this case10, the issue before the CCI was that monopoly electricity supplier was charging higher fuel surcharge from consumers whose consumption was higher.

The CCI held that differential pricing did not constitute abuse of dominance. The CCI’s decision was challenged by the Informant before the Competition Appellate Tribunal. The Respondent objected to the jurisdiction of the CCI before the Appellate Tribunal.

The Appellate Tribunal held that:

  • The Electricity Act is a latter special statute providing for promotion of competition in the electricity industry and protecting the interest of consumers.
  • It has its own system of addressing the issues of abuse of dominance under Section 60 (market domination) and of imposing monetary penalty under Section 142.

Case: HPCL-Mittal Pipelines Limited v. Gujarat Energy Transmission Corporation Limited & Ors.

Jurisdictional objections citing previous cases—CCI’s rebuttal

Relying on Anand Parkash Agarwal, the jurisdiction of the CCI was challenged in this case11.
However, the CCI however observed that the decision in Anand Parkash Agarwal was only with respect to matters pertaining to electricity tariff.

Relying on the decision in Open Access Users Association, the CCI held that the legislature did not intend to oust its jurisdiction completely by inserting Section 174 and 175 in the Electricity Act.

In Tata Power Company Limited12, the CCI, relying on Arun Mishra and HPCL-Mittal Pipelines Limited, held that a harmonious reading of the two statutes requires that general issues pertaining to competition in the market must be dealt with under the Competition Act.

It is however relevant that in both HPCL-Mittal Pipelines Limited and Arun Mishra, the CCI has relied on the Single Bench decision in Telefonaktiebolaget LM Ericsson (PUBL), which has now been set aside by the Division Bench of the Delhi High Court.

Recent Development: Torrent Power Limited Proceedings (Jan 2025)

The decisions in Tata Power Company Limited, Anand Parkash Agarwal, Neeraj Malhotra and Telefonaktiebolaget LM Ericsson (PUBL) (Division Bench) have been recently considered by the CCI in January 2025 in the proceedings against Torrent Power Limited13. 

Torrent Power Limited, in its reply to a show cause notice issued by CCI, has disputed the jurisdiction of the CCI relying on the decision in Anand Parkash Agarwal.

In dealing with such objections, the CCI has proceeded on the basis that:

  • Electricity Act is a special statute for dealing with electricity matters with focus on the dynamics of the specific sector.
  • The Competition Act is a special statute for regulating competition in the market having a holistic approach focusing on functioning of the markets by increasing efficiency through competition.
  • The legislative intent is clear from the provisions of the two Acts that there is no issue of conflict of jurisdiction that cannot be reconciled by adopting a harmonious construction between the two statutes.
  • Competition Act provides the CCI with the necessary powers and jurisdiction to deal with the regulation of combinations for their overall effects on competition, including in electricity sector; except certain matters like tariff related issues for which the provisions are specifically contained in the Electricity Act.
  • Section 175 of the Electricity Act provides that its provisions are in addition to and not in derogation of any other law for the time being in force.

The Role of Sectoral Regulators vs the CCI

Sectoral regulators are generally required for sectors that are inherently monopolistic in nature due to the nature of the business, the nature of entry barriers to such business, financial viability of multiple competitors, etc.

These are typically heavy duty infrastructural sectors e.g. power, airports, railways, oil and gas, roads and similar projects providing important and essential services to the society. 

Sectoral regulators are set up to ensure that such businesses do not impose unfair price or conditions taking advantage of their monopolistic position.

On the other hand, a market regulator like CCI is required to ensure fair dealing and avoid any malpractices amongst competitors. Monopolies and entities in dominant position are often prone to anti-competitive conduct.

Mere provision in the statute allowing the sector regulator to monitor and address the anti-competitive conduct would be of little effect, unless the regulatory staff are well trained in identifying, investigating and addressing instances of anti-competitive behaviour. This involves complex understanding of market economics at a macro level coupled with understanding of individual business decisions and manoeuvres.

Courts should take into consideration the strength, training and capability of sectoral regulators to address issues related to competition and adverse impact of anti-competitive conduct on markets.   

Conclusion

The jurisdictional conflict between the Competition Commission of India and various sectoral regulators remains a legally intricate and evolving issue. While the Competition Act grants CCI a broad mandate to maintain fair competition, sectoral regulators derive their authority from domain-specific legislation tailored to technical and operational oversight.

As seen in the cases discussed across the Copyright Act, Patents Act, and Electricity Act, courts have adopted varying approaches—sometimes recognizing concurrent jurisdiction, sometimes leaning toward sectoral primacy, and in other instances reinforcing the CCI’s unique mandate. However, a consistent judicial preference has been to harmoniously interpret overlapping statutes to preserve institutional comity and avoid legal vacuum.

Until the Supreme Court settles key pending questions, including those in the Ericsson matter, the landscape will continue to be shaped by case-by-case judicial reasoning. The recent statutory amendments permitting the CCI to formalize cooperation through memoranda of understanding with sectoral regulators may offer a pragmatic path forward—if invoked proactively.

In the final part of this series, we will look at other sectors such as aviation, professional services, and emerging regulatory frontiers to understand how competition law fits within India’s complex regulatory architecture.

FAQs

  1. What is the core issue between the Competition Commission of India (CCI) and sectoral regulators?

    The core issue stems from overlapping mandates. While the CCI has a cross-sectoral role in regulating anti-competitive practices, sectoral regulators are empowered by their respective statutes to govern specific industries. Conflicts arise when the same conduct or entity is subject to both regulatory regimes, raising questions about who has the final say.

  2. How does Section 3(5) of the Competition Act affect copyright and patent regulation?

    Section 3(5) allows copyright and patent holders to impose reasonable conditions necessary for protecting their rights, without falling afoul of the Competition Act’s provisions on anti-competitive agreements. However, it does not shield unreasonable or abusive conditions—such as excessive royalties or market foreclosure—which remain subject to CCI’s scrutiny.

  3. What was the significance of the Ericsson case in determining CCI’s jurisdiction?

    The Ericsson case highlighted the jurisdictional tension between the CCI and the Controller of Patents. While the Single Bench upheld CCI’s jurisdiction to examine royalty demands for Standard Essential Patents (SEPs), the Division Bench later held that the Patents Act provides a complete code for such issues. The case is now pending before the Supreme Court, and its final ruling will likely clarify the extent of CCI’s authority in patent-related disputes.

  4. Can both the Patents Act and the Competition Act apply simultaneously?

    Yes, courts have acknowledged that both can apply, provided their provisions are harmonized. While the Patents Act governs the grant and regulation of patents, the Competition Act deals with anti-competitive conduct. However, if both statutes contain non-obstante clauses, courts assess legislative intent, subject matter, and scope to decide which prevails in a given context.

  5. How has the CCI approached conflicts with the Electricity Regulatory Commissions?

    The CCI has generally adopted a cooperative and harmonizing approach. It has acknowledged that tariff-related matters fall within the exclusive domain of electricity regulators, while competition issues like abuse of dominance or denial of market access can still be examined by the CCI, especially when the Electricity Act does not provide explicit remedies.

  6. What was the outcome of the Torrent Power case in 2025?

    In the Torrent Power case, the CCI reiterated that both the Electricity Act and the Competition Act can coexist. It held that while tariff matters are for electricity regulators, CCI retains jurisdiction over combinations and market conduct that affect competition. The case reinforced the idea of harmonious construction between sector-specific laws and the Competition Act.

  7. Are sectoral regulators equipped to handle anti-competitive conduct?

    Not always. While they have deep technical expertise, sectoral regulators may lack institutional capacity or investigative frameworks to handle complex anti-competitive behaviour. The CCI, by design, is better suited to assess market distortions, dominance, and cartelization across industries.

  8. Why is there a need for judicial clarity in such jurisdictional conflicts?

    Ambiguities in legislation and conflicting judicial interpretations have led to regulatory overlaps and legal uncertainty. Clear judicial pronouncements are essential to demarcate the boundaries of jurisdiction, ensure regulatory efficiency, and prevent forum shopping or conflicting decisions.

  9. How do courts decide which law prevails when both the Competition Act and a sectoral law apply?

    Courts examine the nature of both statutes—whether they are general or special laws—and interpret their non-obstante clauses, objectives, and schemes. The law deemed more specific to the issue at hand usually prevails, unless the legislature’s intent to prioritize one statute is clearly evident.

  10. What are pay-to-delay agreements, and why do they concern the CCI?

    Pay-to-delay agreements occur when a patent holder pays a generic competitor to postpone entering the market. These deals delay price competition, keeping drug prices high and limiting consumer choice. The CCI views such arrangements as potentially anti-competitive, as they undermine market dynamics and consumer welfare.

References

  1. 2014 SCC OnLine CCI 120
  2. TA(AT) No. 35/2017 (NCLAT)
  3. (2023) 3 HCC (Del) 284
  4. 2016 SCC OnLine Del 1951
  5. 2020 SCC OnLine Del 598
  6. SLP (C) No. 25026/2023
  7. https://health.economictimes.indiatimes.com/news/pharma/reverse-payment-deals-in-patent-disputes-and-its-impact-on-competition/52024742
  8. Case No. 6/2009, Order dated 11.05.2011
  9. Case No. 91/2024, Order dated 29.09.2015
  10. Appeal No. 33/2016, Judgment dated 16.02.2017
  11. Case No. 39/2017, Order dated 31.01.2018
  12. Combination Registration No. C-2021/03/824, Order dated 17.03.2022
  13. Proceedings under Section 43A of the Competition Act, Order dated 14.01.2025

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