Competition law exists to preserve the integrity of free markets, undistorted by anti-competitive conduct. Stronger competition amongst companies, maximizing the no. of customers, is not only confined to India, but also goes beyond the national boundaries due to rapid globalization. Since the initiation of the economic reforms in 1991, economic liberalization has taken root in India and the need for an effective competition regime was felt. Article 38 and 39 of the Constitution of India triggered the Competition law of India. Although the law is still in its developing stage, but it aims at achieving the objective of the state directing its policy towards securing:
- That the ownership and control of material resources of the community are so distributed as best to subserve the common good;
- That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
With the improvement in the rank of India in terms of international trade, the need for protecting the king of the market place i.e. consumer, has increased multifold. The needs must be protected by exploring the scope beyond the border lines of existing competition law. No piece of legislation is perfect, and thus suffers some flaws that must be accorded with the demand of time. Being an important legislation, it has been proved that the competition law is still undernourished with the present market conditions. In this respect, exit of Britain and other trans-national prospects will result in another such challenge to curb the existing flaws in the competition law. Mergers and acquisitions inherently involve cross-border dimensions and multiple competition authorities when merging companies are global operators with a geographical overlap. Understanding the existing flaws will help us delineate the possible gaps and unnecessary overlaps in regulating markets.
Rather than being a political choice, the present economic legal scenario demands to expand the scope of implementation of consumer welfare standard in the competition law. Consumers play a crucial role in making the investment and innovation successful, and hence by extending the linkage between competition law and consumer welfare, widespread benefits can be given to countries with large size and population. Larger is the public acceptance of competition law policy, more understood is its importance, role and substance and lesser are the externalities. Competition law permits only economic analysis of the society and does not take into account the consumer welfare analysis. It would be appropriate to say that consumer welfare is much more related to consumer than to efficiency, and thus there arises the need to analyze such flaws, and thereby bringing in initiatives to curb them in order to increase total social welfare.
Significant efforts have not yet been made to ensure that our jurisdiction adopt common principles and tools for the analysis of anti-competitive conduct, since increasing number of antitrust cases have a cross-border dimension. Global cartels require parallel investigation, but unfortunately our nation has not been able to look into the practices such as big cartels like vitamin cartel, price- fixing behavior and others. Inability to detect such global issues is the result of inefficient leniency programmes, lack of economic tools for proper assessment and investigation and knowledge.
It would not be wrong to say that present notion, that ultimate goal of intervention in the area of antitrust and merger control should be the promotion of consumer welfare and competition as a process, is not the most important value of antitrust policy, and is taken for granted. Utility alone will not work, but when the total welfare turns into consumer welfare, in that sense the competition law will serve to seek towards the end, i.e. competition should be an effective means to generate consumer welfare, and hence competition without efficiency does not deserve protection.
The idea of ‘utilitarian antitrust’ seems to be more appropriate. The fact that competition and welfare are considered in the mainstream of antitrust policy, they shall not be treated as mutually correlated in order to avoid conceptual inconsistencies, and consumer welfare should be the ultimate goal. Free competition is not an end in itself but it is a means to achieve the end. Promoting and sustaining competition regardless of considering the actual consumer welfare will only create the vicious cycle of not achieving the ends but revolving around it. Further in cases when competition does not lead to efficiency, it itself requires the protection, and hence in this way the protection accorded to consumers is felt short.
There may be circumstances where the policy makers are not taking into consideration the consumer welfare because they do not take into account the preferences that drive the behavior of the buyer. The methodology of antitrust legislation is all about surplus and it does not talk about the issues of welfare optimization. Conceptually, it may maximize the consumer surplus, but it cannot maximize the consumer welfare as defined in the terms of economics.
There is no well-planned comprehensive competition compliance program which can be of great benefit to all enterprises irrespective of their size, area of operation, jurisdiction involved, and nature of products supplied or services rendered. Horizons of existing concepts like predatory pricing must be widened as till date the proof of dominance is the pre-requisite for its establishment. There are cases whereby financially sound non-dominant players have tried such practice but were not dealt accordingly at par with the existing competition policy.
Furthermore, the present competition regime is surrounded by the political tussle whereby the business interest is ‘first and foremost’. Indeed, hectic business lobbying has still ensured that the competition law is not implemented with its wings fully opened as that of an albatross around the neck of the industry. Key flaws will include lack of interface with sectoral regulators, insufficient data for economic analysis, trivial focus on capacity building and institutional strengthening of the Competition Commission of India (CCI).
An analysis of the flaws calls for the precautionary measures which forms an exhaustive list and includes improved bi-lateral co-operation among the enforcement agencies across the world, developing standards for regulatory framework for protection of information, adopting multi-lateral tools that will account for the most pressing need of leniency program, exercising investigative power over global cartel and other anti-competitive conduct.
Then only the existing flaws will be suppressed and cured, and the task of the competition law to improve allocative efficiency without impairing productive efficiency will be achieved.
 Oles Andriychuk, The Competition Law Review: Can We Protect Competition Without Protecting Consumers?, Volume 6 Issue 1 pp 77-87 (December 2009),
 Barak Y. Orbach, The Antitrust Consumer Welfare Paradox, Arizona Legal Studies Discussion Paper No. 10/07 (February 2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553226: Retrieved on: 22nd August 2016.