The author is managing partner of New Delhi Law offices (South) and can be contacted at ranjeevdubey@yahoo.co.in

When the Supreme Court took exception to a bureaucrat being appointed as the chairperson of the Competition Commission (while hearing the public interest litigation Brahm Dutt vs Union of India), some saw it as a turf war between the judiciary and the bureaucracy. After all, the Competition Commission (CC) replaced the Monopolies and Restrictive Trade Practices Commission which was headed by a judge. Was it legal to appoint a bureaucrat to the post?

Section 8 of the Competition Act 2002 states that its chairperson shall (1) be an ex-High Court judge, or, (2) be capable of being a High Court judge, or, (3) either has knowledge of or 15 years' experience of international trade, economics, law, finance, management, administration or in any other matter.... The net is cast so wide that the appointment of a respected bureaucrat is compliant with this act.

What then is Brahm Dutt's grievance? The petition argues that since the Supreme Court has held in the S.P. Sampath Kumar case that a tribunal constituted as a substitute for the High Court must be a 'worthy successor', we must have a chief or a senior High Court judge for chairman. I must disagree.

The Sampath case dealt with appointments to the Administrative Tribunal exercising judicial powers where judicial training was invaluable. Here, we are dealing with an independent regulator with a different mandate to meet our larger civic objectives. The CC is not a 'substitute tribunal' for a High Court. Courts may have performed regulatory functions, but judges can't be regulators. By this logic, since it takes the Supreme Court to control diesel smoke and the Delhi High Court to introduce the conditional access system for cable TV, shouldn't they take over the country's administration?

The real issue is not legality, but legislative objectives. As a potentially liberal civil society, why do we want the CC? Even from a narrower 'constructionist' viewpoint, what does the Competition Act itself want from the CC?

Section 18 states that the CC must "eliminate practices having adverse effect on competition, promote and sustain competition, protect the consumers' interests and ensure freedom of trade".
To achieve these, the chairperson must know how (a) markets work,

(b) producers distort competition, and (c) to keep the market ticking. He should understand acquisition and control of market reach and share, cross-border cost arbitrage, predatory price models.... Who is going to deliver all this: a bureaucrat, a judge or someone else?

With respect, I would not say that bureaucrats have shown any skill at dealing with issues of competition. The best bureaucrats manage conflict better than they spearhead change.

What about the judiciary? Call me a classicist, but I think a good judge deliberately withdraws from society to gain objectivity. It is not desirable that we compel judges to be agents of change. The best judges make brilliant evaluators, but do they make the best regulators?

If we make a judge a regulator, we may introduce an adversarial form of evaluative regulation. But regulation is about anticipation, proactive action and pre-emption. Given that the Commission shall exercise judicial functions, each bench can and should have a judge sitting on it. So the chairman's choice rests on what we think is the nature of the Commission: administrative, judicial or regulatory. The CC is about regulation. Regulation is about change induction and management and must be done by one who understands 'trading' in future.

Such a person should have built a successful business and a track record of comprehending and navigating commercial environs, else... we need an Ambani, a Premji. Since several industrialists are resigning their narrow corporate roles and seeking larger goals, we may find such a person. With tongue firmly in cheek, let me add that it wouldn't hurt much if, in the process, we set an ex-thief to catch a thief!