Correction: CCI Regulation on Conduct of Advocates during DG Proceedings Partly Stayed by Madras HC

Earlier this month, a Division Bench of the Madras High Court partially stayed a newly inserted Regulation in the Competition Commission of India (General) Amendment Regulations, 2018 concerning the conduct of advocates during proceedings before the Director General (DG)..The amendment was introduced last month, to allow advocates to accompany parties summoned during an investigation by the DG of the Competition Commission of India (CCI). The regulation in question had also conferred on the CCI powers to debar advocates from appearing before it for misconduct..The newly inserted Regulation 46A of the Competition Commission of India (General) Amendment Regulations, 2018 also laid down the following riders:.a) The Advocate shall not be allowed to accompany such person, unless a request in writing accompanied by a Vakalatnama or Power of Attorney is duly submitted to the DG, prior to commencement of the proceedings..b) The Advocate shall not sit in front of the person so summoned..c) The Advocate shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person, during his examination on oath..Further, sub clause (2) of the new Regulation provides that the CCI may debar Advocates from appearing before the Commission, on a complaint by the DG for misconduct..In the aftermath of the ensuing furore among members of the Bar, PS Amalraj, member of the the Tamil Nadu Advocates’ Association, had moved the Madras High Court challenging these provisions..The petition contended that the said amendment is an assault on the nobility and importance attached to advocates. Particular objection has also been made to sub clause (2) of the new Regulation, with the Association contending that is makes a mockery of the Advocates Act, 1961. The petition states,.“… in the name of an amendment in the form of the Regulations 46-A of the Competition Commission of India (General) Amendment Regulations, 2018 the mandatory statutory provisions from Sections 35 to 48 of the Advocate’s Act, 1961, which it is the Parliamentary enactment are violated and it is the settled position of law that no Regulation can violate the mandatory provisions of the Parent Act…“.Prior to this, the Association had already sent a communication to the President of India, the Prime Minister of India and others, urging that action be taken to annul the Regulation in question..After hearing arguments by Senior Counsel S Prabhakaran on behalf of the petitioner, the the Division Bench of Justices N Kirubakaran and R Pongiappan issued an interim stay only on sub clause (2) of Regulation 46A, which confers on the CCI the power to initiate debarment of lawyers for misconduct. The Bench issued the stay given that this provision appeared to encroach upon the Bar Council’s jurisdiction when it comes to debarment of lawyers..In then order passed on January 4, the Court held,.“It appears that regulation [46A (2)] is contrary to the provisions of the Advocates Act. The only statutory body, “Bar Council of the State” is competent to take any action against advocates, including debarring the advocates from practising….Regulation 46-A (2) of the Competition Commission of India (General) Regulations, 2009 alone is hereby stayed until further orders.”.As regards the other provisions in the new regulations, the Court noted that they were introduced pursuant to the judgment in CCI v Oriental Rubber Industries Private Limited, to ensure that the CCI investigation, including recording of witness evidence, is not vitiated..The new restrictions on interaction with witnesses during DG proceedings, the Court observed, should be interpreted to apply not only to advocates, but also to Chartered Accountants, Cost and Works Accountants, who are empowered to represent witnesses under Regulation 46, apart from Advocates. As noted in the order,.“…Regulation 46A should be understood in such a manner that it would be applicable to all the professionals who have been named in Regulation 46 of the Competition Commission of India (General) Regulations, 2009.”.As such, the Court has not stayed these restrictions..The matter will be be taken up next on February 1, 2019..Note: It was earlier reported that the Madras High Court had issued the interim stay on the whole Regulation 46A of the Competition Commission of India (General) Amendment Regulations, 2018. The High Court has only stayed sub-clause (2) of Regulation 46A. The error is deeply regretted.