Navigating Jurisdictional Overlaps The CCI and Electricity Regulatory Commissions in India
- The Competition and Commercial Law Review
- Mar 15
- 6 min read
[Aayushka Pandey is a third Year Law Student at Hidayatullah National Law University, Raipur]
Introduction
India’s regulatory system often faces overlapping jurisdictions, leading to legal complexities. A notable example is the intersection between the Competition Commission of India (CCI) and Electricity Regulatory Commissions (ERCs), including the Central (CERC) and State (SERCs) regulators. This overlap has led to disputes concerning anti-competitive practices, mergers or acquisitions, as seen in the Torrent Power Limited case which exemplifies such issue where the applicability of the Competition Act, 2002, was challenged against the Electricity Act, 2003. In this article, we discuss about the recent Torrent Power case, examine key judicial developments over the years, and explore the practical impact of jurisdictional conflicts. Additionally, we provide a critical analysis of how these overlaps affect regulatory clarity and enforcement.
The Torrent Power Case: A Microcosm of Jurisdictional Ambiguity
In the Torrent Power Limited case, the company’s acquisition of a 51% stake in Dadra and Nagar Haveli and Daman and Diu Power Distribution Corporation Limited raised concerns under the Competition Act, 2002. Torrent Power stated that the transaction fell exclusively under the jurisdiction of the Electricity Act, 2003 particularly Section 60 which deals with anti-competitive practices within the electricity sector. However, the CCI firmly stated that the issue fell under its jurisdiction, framing the issue as one of broader regulatory scope rather than a mere technicality.
The CCI stated that while the Electricity Act governs technical and operational aspects, the Competition Act addresses market structures, competitive dynamics, and consumer welfare, the matters that extend beyond the confines of any single sector and apply across all industries. The ruling made it clear that competition law acts as a complementary framework which ensures fair play where sector-specific regulations may fall short in addressing structural anti-competitive practices such as abuse of dominance or anti-competitive mergers.
Thus, the CCI’s order in the Torrent Power case not only asserted its jurisdiction but also set a precedent for rethinking jurisdiction in today’s world where industries are increasingly connected and overlapping.
The Crux of Jurisdictional Overlap
The Electricity Act, 2003 under Section 60 empowers ERCs to address anti-competitive conduct in the power sector, while the Competition Act, 2002 empowers the CCI to address anti-competitive conduct in all sectors. This dual mandate is a reason for jurisdictional tension, in that both legislations address areas such as abuse of dominance, anti-competitive agreements and combinations.
The Competition Act, 2002 includes a non-obstante clause (Section 60) asserting that its provisions override any inconsistent laws. However, the Electricity Act, 2003 contains overriding provisions Sections 173 and 174 which explicitly grant primacy to electricity regulators and the Electricity Act, 2003. This suggests that the legislature intended to empower both the CERC/SERCs and the CCI. Established doctrines state that, in cases of conflict between special laws, the later enactment may be given preference. However, as clarified in the order of the Hon’ble Division Bench of the Delhi High Court in the Second Ericsson Judgement, the mere fact that one enactment is subsequent to another does not automatically resolve repugnancy between provisions when both statutes are special laws.
Judicial Interpretations and Enforcement Practices
Courts have long struggled to harmonize these provisions, resulting in inconsistent interpretations. In practice, decisions by the CERC or SERC are binding on the parties involved, whereas the CCI enforces decisions in rem, impacting the broader market. Also, the ERCs specialize in sectoral regulations, but the CCI has considerable experience to assess the complex market dynamics like abuse of dominance and anti-competitive agreements. This observation has led to state that the CCI should have jurisdiction in cases where market assessment is paramount.
This jurisdictional conflict creates regulatory uncertainty. Electricity utilities and power distribution companies often find themselves caught between the contradictory directives, increased compliance costs, delays, and litigation. Such uncertainty might discourage investment and mergers or acquisitions in the electricity sector due to the uncertainty over which regulatory body’s approval is necessary.
Judicial precedents remain divided between upholding sectoral regulator primacy and affirming the jurisdiction of the CCI. For example, in Anand Prakash Agarwal v. Dakshin Haryana Bijli Vitran Nigam Limited, the Competition Appellate Tribunal (COMPAT) held that the Electricity Act overrides the Competition Act in case of conflict, as per Section 174. The appellant's argument that Section 60 of the Competition Act gives it priority was rejected. Since, the Electricity Act, 2003 is a later and more specific law, it prevails. In cases of Shri Neeraj Malhotra v. North Delhi Power Ltd., on the contrary, the CCI established its jurisdiction over competition matters even in regulated sectors, insisting that sectoral regulators’ and the CCI’s jurisdictions are complementary, not conflicting. The conflicting orders of the Delhi High Court in different cases of Ericsson created more confusion: earlier orders upheld the jurisdiction of the CCI, while subsequent orders insisted on sectoral legislation’s primacy in cases of inconsistency.
Critical Analysis: The Need for Clarity
From a critical standpoint, the overlapping jurisdictions undermine regulatory efficiency by fostering forum shopping, inconsistent rulings, and prolonged litigation. The Electricity Act, unlike the Competition Act, does not contain detailed provisions defining what constitutes a combination, the procedure for assessing combinations, the factors for delineating relevant markets, or the criteria for ascertaining adverse effects on competition, nor does it prescribe remedial orders for combinations that may harm competition. In contrast, the Competition Act serves as a complete code in this regard, providing specific mechanisms for assessment. The Electricity Act merely contains a general provision allowing the issuance of directions by the appropriate commission for non-compliance with the law and “enters into any agreement or abuses its dominant position or enters into a combination which is likely to cause or causes an adverse effect on competition in electricity industry”, which cannot be interpreted as a complete code for regulating combinations. While the jurisdictional overlap creates uncertainty and deters investment, the principle of harmonious construction should guide the resolution of these conflicts, recognizing that both the Electricity Act and the Competition Act aim to foster competitive markets through different, yet complementary, mechanisms. The CCI’s expertise in assessing market dynamics and anti-competitive behaviors across sectors complements the ERCs’ focus on technical regulation and sector-specific compliance.
Although some argue that the Electricity Act, as a later and special statute, should override the Competition Act, such an argument overlooks the fact that competition law is designed to operate horizontally across all sectors, including regulated industries. The non-obstante clauses in both Acts should not be interpreted as creating mutual exclusivity but rather as delineating clear boundaries for concurrent jurisdiction. The most effective solution to these jurisdictional conflicts is legislative clarification that explicitly defines the authority of each regulatory body, thereby eliminating ambiguity and providing clear guidance to stakeholders. In the absence of such legislative reform, detailed guidelines issued by relevant authorities could help demarcate jurisdictional boundaries with precision, preventing overlapping authority and reducing conflicts. An additional approach would involve sectoral regulators referring matters to the CCI when competition issues arise; however, again, without clear referral guidelines, this process can be time-consuming and inefficient. Establishing standardized referral mechanisms with defined thresholds and timelines would streamline inter-regulatory cooperation and foster a more predictable regulatory environment.
As per the author, the Competition Act vests the CCI with the jurisdiction to regulate anti-competitive practices, abuse of dominance, and combinations through well-defined guidelines and regulations applicable across all sectors, including the electricity market. In contrast, the Electricity Act primarily empowers sectoral regulators to oversee industry-specific matters such as tariff setting, access regulation, and service standards, without providing a comprehensive framework for assessing competition concerns.
Thus, the two Acts can be harmoniously construed so that neither renders the other redundant. While the Electricity Act is designed to address the operational and technical aspects of the electricity sector, the Competition Act adopts a broader market-based approach focusing on ensuring competition in the market. Given this distinction, the CCI is best positioned to address competition-related concerns, while the Electricity Regulatory Commissions should focus on sector-specific regulatory functions. By acknowledging these complementary roles, regulatory conflicts can be minimized, and both statutes can operate effectively in tandem.
Until legislative reforms are introduced, cooperation between regulators is crucial. Provisions for inter-agency consultations already exist under Sections 21, 21A, and 62 of the Competition Act, promoting the spirit of complementarity rather than conflict. Strengthening these mechanisms can enhance India’s regulatory system.
Conclusion
The jurisdictional conflict between the CCI and ERCs highlights the issue of overlapping regulation in India's dynamic legal system. As sectoral regulation is offered by ERCs, protection of market competition is ensured by the CCI, maintaining a delicate balance between specialist regulation and more overarching regulation of competition. Judicial precedents remain inconsistent, adding to regulatory uncertainty. To address this challenge, a clear framework is needed to define each regulator’s scope in a manner that encourages cooperation rather than the conflict. An ordered approach, perhaps through legislative reforms or cooperation between regulators, would provide certainty, reducing compliance burden, delays, and investment risk.

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