The ‘Perfectionist Aamir Khan’ acts ‘Imperfectly’ with CCI

Swarnim Shrivastava

Aamir Khan, popularly known as the perfectionist actor of Bollywood film industry, has been charged with penalties for infringement of Competition Act, 2002. As the Competition Act of India is civil in nature, there is no room for imprisonment, however penalising in monetary terms is provided for under the Act.

The Competition Commission of India (CCI), on the 15th of October – 2013, decided to initiate recovery proceedings against Aamir Khan and 8 other entities who have failed to pay penalties imposed on them. These penalties, which together amount to Rs. 2.17 Crore, have not been paid despite there being no appeal filed or appeal having been dismissed, the CCI said while publishing a list of these defaulters ((Available at last accessed on October 26, 2013)).

The case goes back to 2010 ((Aamir Khan (Pvt) Ltd v Competition Commission of India (2010) 112 Bom. L.R. 3778 (India).))where the Bombay High Court ruled that the CCI has the jurisdiction to deal with intellectual property matters and can also decide constitutional, legal and jurisdictional issues. Regarding the jurisdiction of the CCI in intellectual property right matters, s.3 (5) (i) of the Competition Act provides for exceptions to IPRs. This provision is to ensure that s.3(1) of the Competition Act does not take away or restrict the right to restrain any infringement of IPRs or the right of any person to impose reasonable conditions for protecting his rights under the IP laws. The Competition Act 2002 overrides any other legislation enforced in India. However, its purpose is not to curtail other laws but to regulate the market ((The judgment of the court was based on ss.60, 61 and 62 of the Competition Act 2002. Section 62 balances the provision under s.60. It says that the Competition Act is in addition to and not in derogation to any other law for the time being in force.)). The CCI is the appropriate forum to decide on all the matters of competition law in India including IPRs.

The film associations have come under the scanner of CCI even before in the famous FICCI multiplex case ((Case no.1 of 2009 (FICCI Multiplex Vs UPDF & Ors.)), where the commission held the activities of the film associations which caused limit in the supply of films to be anti-competitive under Section 3(3)(b) of the Act.

The Commission said, “CCI could initiate prosecution under Section 42(3) of the Competition Act for not complying with the orders of the Commission and follow-up reference to Income Tax Department could be made for action on recovery certificates already issued to these entities ((Id at 1)).”

Section 42 deals with Penalty for Contravention of Orders of Commission. According to this section, if any person, without reasonable clause, fails to comply with the orders or directions of the Commission issued under sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which may extend to Rs. 1,00,000/- per day, during which such non-compliance occurs, subject to a maximum of Rs. 10,00,00,000/- (Rs. Ten Crores), as the Commission may determine, or in case if such person fails to pay fine imposed above, or fails to comply the direction, then there is a provision of imprisonment up to three years or fine up to Rs. 25,00,00,000/- (Rupees twenty-five crore), or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit

Today, the violation of competition law is increasing at an alarming rate. In a developing economy like ours though the legislators have done their best to frame laws which would provide suitable conditions for a fair and perfect competition but still the present act requires some alterations to make it more effective in terms of imposition of penalty under the Competition Act, 2002.