Interview with Kaushal Kumar Sharma, Chairman, KK Sharma Law Offices, former Director General, Competition Commission of India, and a Commissioner of Income Tax, India. par Albina Goosens
Back in July 2009, the Competition Law and Policy Branch (CLB) of the United Nations Conference on Trade and Development (UNCTAD) had its signature conference on competition law, known as Meeting of Intergovernmental Group Experts (IGE) on Competition Law and Policy (CLP), in Salle XII of the United Nations Office in Geneva. The agenda for the meeting had already been circulated. As is the protocol, the UNCTAD secretariat of CLB prepares the brief agenda and all the minutes, etc. in advance. The draft agenda is circulated and it is unusual that the draft agenda is treated as draft in reality. The fact is that the draft agenda, for all practical purposes, is the final agenda and, generally, not many changes are either suggested or accepted.
However, it so happened that a new competition agency in India, from South Asia, had just commenced enforcement of its competition law and was having issues which are usual for any new competition agency relating to capacity building, lack of economic experts, and many other such things. However, the timing of this 2009 IGE Meeting was extremely significant. Coming as it was, in the wake of the economic slowdown, across the world in 2008. On account of a widespread deceleration in economic growth, various countries were following their own model, irrespective of labels, to deal with this economic slowdown, and it was not uncommon when ‘so called’ financial packages or stimuli were being announced, by different countries, to give a booster dose to their respective economies. It was also the time where many big enterprises in the United States of America (USA) were, almost, on the brink of collapse and had to be bailed out by no less than the USA Federal Government, the USA being a capitalist state. Amongst the draft agenda was an issue, which questioned the rationale of giving such support to different economies.
As a special case, a brief presentation of the experiences of the new Indian Competition Agency was requested and granted by the UNCTAD, CLB secretariat. At the end of the presentation, the speaker from India questioned the rationale of the draft agenda and opined that the efficacy of the competition law is not yet fully proven by any of the existing studies and, in absence of any such study, it was not appropriate to pass a judgement about different countries dealing with their own economies in whichever way — economic impetus, stimuli, or whatsoever else. This was even more so, since there was no certainty on the issue of which approach gives better results: industrial policy or competition policy.
This was countered by the team from the USA. Some brief arguments broke out, but the result was that, on insistence of India, it was suggested to change the draft agenda. Following this suggestion, the CLB branch of UNCTAD informed the Meeting of the procedure that, in order to change the draft agenda, a majority is required of at least two thirds of the member nations present and voting.
Maybe, in view of the good circumstances, the next day, at 9.00 AM, a meeting of Member countries was called, and around 40 countries attended and, low and behold!, the agenda was changed. This changed agenda did include a study to assess the efficacy of the enforcement of competition law, or its relationship with the economic development of a country. Seasoned diplomats present informed that this change of agenda was an extremely rare event, and it prompted CLB of UNCTAD to invite Mr. Kaushal Kumar Sharma, the Indian speaker, as a member of the Research Project Partnership (RPP) Platform of CLB & UNCTAD. Mr. Sharma has been attending all the meetings of IGE, regularly, since then.
It was on the occasion of one of such meetings that, in July 2018, on the side lines of IGE 2018, Diva Senior Reporter Albina Goossens, had the opportunity to meet Mr. Kaushal Kumar Sharma, in the precincts of United Nations in Geneva. Mr. Sharma, Chairman, KK Sharma Law Offices, has been a regular attendee of CLB, UNCTAD, IGE proceedings since 2009, in particular in his capacity of one of the few individual members nominated in the RPP Platform of UNCTAD.
Mr. Sharma can you kindly throw some light on your childhood?
KKS. India is known by its fertile lands in its north which, sometimes, are referred to as the food bowl of the country. The plain alluvial lands, between the spread of the rivers Ganga and Yamuna, are considered to be amongst the most fertile lands in the country. It was in this land that I had the privilege to enter the world. I was born in a tiny hamlet near a small town called Hapur — about an hour’s drive from Delhi, the capital of India.
Growing up in the vast stretches of the plain alluvial lands, my earliest schooling was done in the neighbouring town. For some reasons, the economy at that time dictated that a career in engineering or medicine was believed to be good, and my case was no exception. In no time, after passing the basic entrance examination, in vogue at that time for admission to institutes of eminence, I found myself being a student of BE (Mechanical Engineering) in the Indian Institute of Technology, Roorkee (IIT, Roorkee). After having completed a degree in Mechanical Engineering, through the process of a campus interview, I found myself selected by the Tata software conglomerate, where I was recruited as a Graduate Engineering Trainee.
Having worked in my capacity as an Engineer, I realised that, perhaps, there are better ways to make a difference to society than just being an Engineer. This made me try to enter the Indian Civil Service, also known as the Indian Administrative Service (IAS), taking the Civil Services Examination (CSE). While doing so, it was considered appropriate that instead of using the whole time for preparation of the CSE, I also work on enhancing my qualifications. With these thoughts, I got admitted into the Masters of Mechanical Engineering Programme in IIT, Roorkee. My CSE preparations allowed me to enter the Indian Revenue Service, and I also completed my Post Graduate Degree. Briefly before being posted, I attended the Indian Institute of Technology, New Delhi (IIT, Delhi) for about a year as a PhD scholar, but I was unable to complete the PhD Course, because of the requirements of my job.
Can you briefly tell us about your career in the Indian Revenue Service?
KKS. I was fortunate to have bosses who gave me enough freedom to apply my thoughts, while being no less demanding on expecting results. During postings in the various wings of the concerned department, I had a great satisfaction of assisting the country in secure revenues in an extremely innovative and effective manner. Although all my postings were significant, in this connection the time period of 1997–2000 was particularly of great significance. It was the time when I could prove that there were substantial revenue leakages in international transactions, and substantial amounts of tax, which should have been collected while making certain transactions for enterprises abroad, had escaped assessment. For these kinds of payments, as on that date, there was no statutory time limit in the Income Tax Act, 1961. This was put to good use and the innovative additions resulted in a collection of more than Rs. 2,000 crores (USD 416 million) when the total revenue collection by the Government of India was a little more than Rs. 48,000 crores (USD 10.7 billion). Thus nearly three percent of the total revenue collected by the Government of India were contributed because of the efforts of a single officer out of nearly 4000 officers of the Department. In addition to this, there were many such firsts, which gave me tremendous confidence and a belief that even in Government, things are possible if sincerely done and assiduously followed up.
How did you become involved with international organisations?
KKS. The first time I met a representative of UNCTAD was when I was invited to a conference for the European Competition Day in Munich. Yet, it was much later, when representing India in CLB, that the actual connection took place. The first step was the preparation of a presentation explaining the provisions of Indian Competition Law to the August gathering of nations and seek feedback on the difficulties that we encountered. This exercise gave clarity to my thought processes. On account of the peculiar circumstances of the Indian Competition Law, a request was made to give a brief presentation, and this was accepted. Towards the end of the presentation, it was discovered that almost all the nations, whether they are developed or developing, got similar issues. As an example, the shortage or the absence of economists was not only being felt by a young competition agency in India, but everybody and every country was affected by this. The presentation hit a sympathetic cord for developing countries and also resulted in substantial change to the draft agenda which has been referred to earlier.
How did you end up in the architectural team of the Competition Commission of India ?
KKS. By temperament, I always wanted to deal with new competencies. A friend of mine, who used to be a room buddy of mine at one point of time, knew about my inclination for doing something which pertains to a different subject. One fine morning, in November 2006, he called me up when I was posted in the Indian Revenue Service in a small town of Bareilly, and he asked me whether I would be interested in a new subject as I always claimed. The subject in question was known as competition law. As anything new had the potential to excite me I, accordingly, took the chance and visited the office of the then Competition Commission of India (CCI).
However, on seeing the office of the then CCI, I was surprised to discover that it was a very small organisation with no more than three officers and some other support staff. However, the attraction of learning of a new subject was more important than anything else. Very soon, I found myself in the core team responsible for establishing the competition law in India. The preparatory work, such a defining the regulations, was going on. The Commission had an arrangement with various competition authorities to invite their experts and have a knowledge exchange programme. The day, I went to have a look at the office, I remember seeing an Australian gentleman in the conference room who was explaining the issues in competition law in India.
This brief entry into the lecture hall gave me the feeling that, perhaps, I was in the wrong place. Secondly, the apparent complexity of the discourse made me think that if I had to work here, I had to acquire some basic knowledge of both economics and law. I had studied law before. However, economics was slightly new to me and this embarked me on a journey of learning. On this journey, a Masters in Economics was the first step. While the culmination of the journey is the ongoing step of earning a PhD. This could be the last. All these inputs come extremely handy when dealing with the complex matters of antitrust/competition law. It is certain that exposure to such a wide amplitude of knowledge is helpful for a proper appreciation of the law. This came quite handy when I was asked to create a Merger Review Architecture for the country. It was at this point I thought that, perhaps, to make a contribution to the o economy in the society, it may not be necessarily and strictly better to be a part of the set up. It can also be done from outside rather than as a practitioner.
This possibility of being independent and not fettered down by anything else led me to seek a voluntary exit from the Civil Service nearly ten years ahead of my normal date of superannuation and start my own law firm KK Sharma Law Offices.
Being a free bird, it is very much possible to question a wrong interpretation of law, whether in the first stage or elsewhere, before some other authorities.
What is your view on the future of competition law in India ?
KKS. The competition law, unfortunately, is in an early stage and it will not come as a big surprise if we have to wait for 10–15 years before competition law becomes a force to reckon with.
How do you deal with the heavy titles, such as ‘Father of Indian Competition Law’ or ‘Architect of the Indian Merger Review Format’, being bestowed upon you ?
KKS. These labels are all creations of the media. In enjoy my craft and follow whatever assignment is given to me very passionately. I believe, God supports all sincere efforts. The rest is left to the perceptions of the people and I have no role in it.