Amidst a growing tussle between the Centre and Judiciary over power to appoint judges and members of Tribunals and Regulatory Bodies, the Centre has fired a fresh salvo against the Judiciary by keeping the judges away from the zone of consideration itself for the posts of members in Competition Commission of India (CCI).

In a notice issued by the Ministry of Corporate Affairs (MCA) for filling up three posts of members in CCI, the Centre has “invited” applications from “eligible officers in the Central government/State governments/UTs, who are interested and can be spared in the event of selection,” effectively ruling out the candidature of judges for the posts.

The notice has been circulated to only “ministries and departments of the government of India” and “chief secretaries of all State governments/UTs”, keeping the Registrar General(s) of High Courts conspicuously out of the circulation loop.

The last date to apply for the posts is March 9.

Interestingly, Delhi High Court in 2019 in the Mahindra case directed the Centre to ensure that “at all times, during the final hearing, the judicial member is present and participates in the hearing”. The Court also directed the Central government to fill all seven vacancies in CCI.

The Central government, in fact, within months of the Mahindra order, issued an advertisement to appoint a member of CCI from the legal or judicial background and appointed Sangita Dhingra Sehgal, a retired judge of Delhi High Court, as a member of CCI but she did not join.

Thereafter, the Centre did not initiate any step to fill any vacancy leave alone filling all seven vacancies or appointing a member from a legal or judicial background.

Dysfunctional days

The stalemate continues and the CCI is having only two members — short of even a quorum requirement of three for transacting business. As a result of the lack of quorum, CCI has been dysfunctional for about four months, putting various M&A deals on hold.

A retired High Court judge told businessline, “The intent of the government is clear. The retiring or retired judges are not welcome in CCI. Look at the way the bureaucrats in the Ministry of Corporate Affairs have drafted the vacancy advertisement. First, they do not circulate vacancy notifications to High Courts. Then, in the cover note, applications have been invited from Indian nationals whereas the actual notification restricts the candidature to government officials. Why will judges apply in such scenario and demean themselves.”

The retired High Court judge also added, “It is indeed audacious of the Centre to not fill all the seven vacancies despite a specific direction of the Division Bench of the Delhi High Court in the Mahindra case. Neither did the Centre appoint any judicial member. This is a clear case of contempt of the directions of Delhi High Court.” .

“On the one hand Centre does not fill vacancies for long and on the other hand, CCI invokes the doctrine of necessity to overcome statutory mandate. This is ex facie colourable exercise of power and a fraud on the statute,” added another competition law practitioner, on the condition of anonymity, who regularly appears before CCI.

Critics even see the developments as part of regular and larger attempts of the Centre to weaken key regulatory bodies and other institutions by making them crippled by not filling key vacancies.