Some provisions of Competition Act, 2002 notified

It's been almost 7 years since the Competition Act was passed by the Parliament. The move to pass the Act, appears to be in hurry, especially in view of the obligations which India undertook to be in compliant with WTO norms and raising its status among the "legally civilized nations". Still, the whole Act is not in force. The Government of India on 15th May 2009 notified that the central government hereby appoints the 20th May 2009 as the day on which section 3,10,13,15,16,19,20,21,25,26,28,31,33,34,35,36,38,39,43 and section 53 B, 53N,53O,53P,53Q,53R,53S,53T,53U of the Act shall come into force.

It is to be seen how well the Competition Commission is handeled by the Authorities. It appears from the new items published in the National newspapers and CCI websites that CCI is on the process of filling the post at various levels.

Of these sections important thing that emerges is that- atleast the body CCI would come into force alnog with its tribunal for resolution of disputes and carrying out day to day function specially pertaining to regulating the anti-competitive agreements. In my view there is still a long way to go. CCI is now just like a plant of gram, just erupted out of the soil. It stil need lot of nourishment and this nourishment it will get from it's own able and competent Chairman and officers.

Anyway , let's see how it goes....All the thumbs up to CCI!

It can look to SEBI for the way how SEBI have functioned independently over a period of almost 20 years. Government was wise enough to appoint wish persons at the top in SEBI, Government should also continue the same with CCI.

Some observations

During the last week , I was in Trayambekeshwar, a place devoted for Lord Shiva's Jyotirlinga; Shanisignapur, a place devoted to Lord Shani and Shiridi, a place devoted to Sai Baba.

As regards, the first image (taken from Trayambekshwar) , I ran through the Articles 25 to 28 of the Constitution of India. If we read Art. 25(1) with Art. 26(2)(b), we would find that any religious institution has the right to restrict the other religion people from entering the premesis of the Hindu Temple. As per Honorable SC in the case of Venkataramanna Devaru v. State of Mysore (AIR 1958 SC 255) IT WAS HELD THAT:- "...Hence, a right of religious denominition under Art. 26 (2)(b) e.g., to ex-communicate a member on religious grounds, cannot be taken away or restricted. On the ground that it would affect civil rights of such members, including the rights of benefecial care or enjoyment of denominational propertirs.

As regards, second image, it was clarified by the Honorable SC in the case of Sarup Singh v. State of Punjab (1959 sc 860) that:- Each religious denominition or organisation enjoys complete autonomy in the matter of deciding as to what tites and ceremonies are essential according to the tenats of the religion they hold. So if in a case a woman is not allowed to enter the platform of the Lord Shani temple, it may not be arbitrary or violative of Art. 14 or may not hinder any of the rights of a woman under Art. 25 of the Constitution, if in a case the rites of the pooja, for Lord Shani prescribes that the woman are not allowd to enter the platform for pleasing and worshipping the diety.

As regards the third images is concerned, it is taken from a place ner Shiridi, where it is prevelant that a Buffalo, Ox etc., would churn and walk around the sugar cane mill (grinding mill), a person would keep inserting the sugar cane from one side and ollect the sugar cane juice in the pot.

Do you think it is 'ruelty'to the animal as per the Prevention of cruelty against the Animal Act 1963?

Drug makers consolidating in India

This is in reference to the public announcement by Pfizer Inc., to raise its shareholding in its Indian arm Pfizer Ltd., from 41.23% to 75%.This decision comes a fortnight after Swiss drug multinational Novartis AG announced its plan to raise its share holding in Indian subsidiary Novartis India Ltd to 90%, from the current 51%, through a tender offer to public shareholders.
Offlately, it has been observed that the pharmaceutical corporations are now in a mood for consolidating its shareholdings, especiallly when the share prices are all time low due to financial turmoil. This consolodation would pave the way for these corporations to delist there shares from the stock exchanges and would have a free hand over the affairs of the corporations away from stock exchange and SEBI interferences.

Why the firms would like to consolidate their shareholdings?

· The growth potential the Indian economy offers is huge with about INR 55,000 Crores in the market and every prudent businessman would like to have the most of this growth opportuinity.
· Ceratin issues related to Transfer pricing (arms length and other types of transactions) as per section 90- 94 of the Income Tax Act, 1961.
· There would be synergy in working and there would be proper management control and there would be no Board room clashes or deadlocks (as the foreign firms want to increase their holdings beyond 74% as under Indian corporate law an investor with at least 26% stake can block any special resolution).
· The corporations are getting their shares for so cheap , then why not have it. They know the maket is not properly valuing there shares at this time so its bettre to go for buy-back.
· There is transfer of technolgy from the more developed and modern laboratories of these MNC’s and definitely these MNC’s would not like to share this with the other Indian counterparts.

Rule of law v Rule of nudity in contemporary art

Law relating to depiction of obscenity and contemporary modern art was discussed in the recent Delhi High Court decision (decided on 8th May 2008) concerning the obscene paintings of Hindu Goddessess by legendry artist M.F.Hussain. The court opined:-"In a free and democratic society , tolerance is vital. This is true especially in large and complex societies like ours where people with varied beliefs and interests mingle."

The court heavily relied on the concept of modern contemporary art and accepted the fact that -nudity is one its part. The court should have explained this in better manner in their judgement.

In my opinion there is no denying the fact that nudity is one of the important facet of modern contemporary art, but it should not in any manner hit the public sentiments as to social customs and ethos , religious practices, moral and cultural aptitude of the contemporary society viewed from the eyes of a reasonable and average man of society regardless of caste, color or creed.

The court also posed an issue- whether disputes such as these are pillar to post an information age where our laws does not adequetly protect creative people? The Judge (S.K.Koul J.) clearly misjudged this issue. Our laws are well drafted and adequate for the modern artists. They are nowhere hindering their progress. These 'arts' cannot overprogress and in turn take the society back to hobesian era.

There are various sentiments involved as to goddessess in India. She is treated as the mother in the Hindu household and no Hindu or for that matter a person of any faith would like to see the nude portrait of her/his mother. Every freedom should function under the rule of law. Nude depection in modern art cannot and should not trangress over the religious and personal sentiments of the people.

If contemporary modern art is like that, be it like that, it can depict nudity, nobody stops it from, but it should in no way corrupt the morals of the society, it should be in harmony with the thought process of the society. The courts have no power to legalise the act or art which is per se illegal or ulawful. The court should protect the rule of law and not make the wrong law. The Judge in the present case have committed the gross error. He has mis interpreted the legislative intent under section 292 of Indian Penal Code,1860 too. The aggrieved party in my opinion should now approach the honorable Supreme Court and hope that the SC upheld the rule of law and not the rule of nudity in contemporary modern art.

About me - Tarun Mathur

I am Mumbai based corporate and competition lawyer.  I obtained my education from the New York University School of Law, New York and National Law University, Jodhpur. 

Stints with a leading Indian law firms (Amarchand Mangaldas and Trilegal) provided me the required skill sets around transactional lawyering including merger and acquisitions, equity and debt financing, drafting of agreements and due-diligence etc.

Regulatory experience at SEBI and CCI gave me experience around securities laws (policy matters and litigations), capital markets and competition laws. 

You may contact me at ktarunmathur@gmail.com