Back in July 2009, Competition Law and Policy Branch (CLB) of 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. 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 uncommon and unheard of 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 IGE of 2009 were extremely significant. Coming as it was, in the wake of the economic slowdown, across the world in 2008, on account of widespread deceleration in the economic growth, various countries were following their own model, irrespective of labels, to deal with the economic slowdown and it was not uncommon when the ‘so called’ financial packages or stimuli were being announced, by different countries, to give booster dose to their respective economies. It was also the time where many big enterprises in USA were, almost, on the brink of collapse and had to be bailed out by no less than the Federal Government of United States of America (USA) which is 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 for 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 more true because of no certainty on the issue of which gives better results ; industrial policy or competition policy.
This was countered by the team from USA. Some brief arguments broke out but the result was that, on insistence of India, the draft agenda was suggested to be changed. On this suggestion, the CLB branch of UNCTAD informed of the procedure which requires at least concurrence of 2/3rd member nations present and voting. Only after this, the draft agenda can be changed.
May be, in view of the good circumstances, the very next day, at 9.00 AM, a meeting of different countries were called for and around 40 countries attended and low and behold ! the agenda was changed. The changed agenda did include a study to assess the efficacy of enforcement of competition law or its relationship with the economic development of the country. This was an extremely rare event as informed by seasoned diplomats present there. This prompted CLB of UNCTAD to invite Mr. KK Sharma , the Indian speaker , to be a member of Research Project Partnership (RPP) Platform of CLB & UNCTAD. Mr. Sharma has been attending all the meetings of IGE , regularly, since then.
It was, during one such visits in July, 2018 that, on the side lines of IGE 2018, the Interviewer had an opportunity to catch up with Mr. Kaushal Kumar Sharma, Chairman, KK Sharma Law Offices who has been a regular attendee of CLB, UNCTAD, IGE proceedings from 2009 onwards and who has also been nominated as one of the few individual members of Research Project Partnership (RPP) Platform of UNCTAD. The interview which follows is the result of this introduction which I, Albina, a Senior Reporter of Diva had with him in the precincts of United Nations in Geneva.
Mr. Sharma can you kindly throw some light on your childhood?
Ans. 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 rivers Ganga and Yamuna, is 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 tiny hamlet near a small town called Hapur – not too far from Delhi the capital of India. It may be about an hour’s drive from Delhi.
Growing in the vast stretches of the plain alluvial lands, the earliest schooling was done in the neighbouring town. For some reasons, the economy at that time dictated that the career in engineering and medicine were believed to be good and my case was no exception. In no time, after qualifying 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 Indian Institute of Technology, Roorkee (IIT, Roorkee). After having completed a degree in Mechanical Engineering, through the process of campus interview, I found myself with salt to software conglomerate of Tata’s where I was recruited as Graduate Engineering Trainee.
Having worked in my capacity as an Engineer, I realised that, perhaps, there are better ways to make a difference to the society than just being an Engineer and that drove me for trying into Indian Civil Service, also popularly known as IAS or Civil Service Examination, in India. While doing so, it was considered appropriate that instead of using the whole time for preparations of the Civil Services examination, I also do qualification enhancement. With these thoughts, I got admission into Masters of Mechanical Engineering in IIT, Roorkee. While my preparations gave me an entry into Indian Revenue Service, the Post Graduation Degree also got completed by the end of it. Briefly before being posted, I did attend the Indian Institute of Technology, New Delhi (IIT, Delhi) for about a year as a PhD scholar but the PhD Course, in which I had taken admission, was not completed as the job call beckoned me.
Can you briefly tell about your career in Indian Revenue Service?
Ans. I was fortunate to have bosses who gave me enough freedom to apply my thoughts while being no less demanding on expecting the results. During the postings in various wings of the concerned department, I had a great satisfaction of assisting the country in mopping up revenues in an extremely innovative and effective manner. Though all my postings were significant but, in this connection, the time period of 1997-2000, particularly, was of great significance. It was the time when I could prove that there were the substantial revenue leakages in the international transactions and substantial amount 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 of Government of India was a little more than Rs. 48,000 crores (USD 10.7 billion). Thus nearly three percent of the total revenue or so of the total revenue collection of the Government of India were contributed because of the efforts of the 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 come to connect with international organisations?
Ans. Though, the first time I met an representative of UNCTAD in Munich while having been invited to be a conference for European Competition Day but, it was much later, when representing India in CLB, that the actual connection took place. However, the first step was a preparation of a presentation explaining the provisions of Indian Competition Law to the august gathering of nations and seek feedback on difficulties being felt by us. This exercise gave clarity to my thought processes. On account of the peculiar circumstances of the Indian Competition Law, a request was made for brief presentation which was allowed. Towards the end of the presentation, it was discovered that almost all the nations, whether they are developed or developing, have 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 of the draft agenda which has been referred to in answer to the previous question.
How did you land up in the architectural team of CCI?
Ans. By temperament, I always wanted to deal with new and new competencies. A friend of mine, who used to be room buddy of mine at one point of time, knew about my inclination for doing something which pertains to different subject. One fine morning, in November 2006, he called me up when I was posted in Indian Revenue Service in a small town of Bareilly and asked me whether I would be interested in new subject as were my claims. The subject was known as competition law. Anything new had the potential to excite me and I, accordingly, took a 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 seeing that it was a very small organisation having not more than three officers and 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 like making of the regulations etc. was going on. The Commission had the 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 an Australian gentleman was in the conference room telling the issues in competition law in India.
A 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, it is better that I get a sense of economics and law both. I had done law before. However, economics was slightly new to me and this embarked me on this journey of learning. In this journey, Masters in Economics was the first step. The culmination of this journey is the ongoing step of earning a PhD. This could be the last. All these inputs was extremely handy while dealing with the complex matters of antitrust/ competition law. Now, it is certain that exposure of such a wide amplitude is helpful for 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 contribution to the economy in the society, it may be better to not necessarily and strictly be a part of the set up. It can also be done from outside as well as a practitioner.
This realisation that being independent and not fettered down by anything else led me to seek a voluntary exit nearly ten years ahead my normal date of superannuation and starting my own law firm KK Sharma Law Offices.
Being a free bird, it is very much possible to question wrong interpretation of law whether in the first stage or elsewhere before some other authorities.
What is your view on future of competition law in India?
Ans. The competition law, unfortunately, is in impressionistic stage and it will not be 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 the ‘Architect of Indian Merger Review Format’ being bestowed upon you?
Ans. These are all labels are creations of the media. In enjoy my craft and follow whatever assignment is given to me very passionately. I believe, God also supports all the sincere efforts. Rest is left to the perceptions of the people and I have no role in it.
Can you please give some instances of immense professional satisfaction in your career ?
Ans. Well, that is a very fascinating question. There are times when some assignment is given to you and almost everybody thinks that it is a tough proposition. If you succeed in that assignment, those are indeed great moments in life.
In this respect , I would like to recall some instances.
- When the investigations into hitherto untaxed transfers of money from India to abroad was initiated by me , almost everyone laughed at me. Now, the time is laughing on such persons as nearly 20 % of revenue of Government of India comes from that stream seeds of which were planted by me back in 1997.
- While I was deep into drafting of the Merger Control Architecture for India, business lobby was particular in anticipating that , in India , it was difficult to clear mergers in a time bound manner. The real experience has proved all such fears wrong.
- When I saw my first book “Competition Commission Cases : A Compendium of CCI Cases “ for the first time, that was also an ecstatic moment.