Markets in India are governed by more than one watchdog. A telecom dispute can engage both the Telecom Regulatory Authority of India and the Competition Commission of India; a patent-licensing grievance can touch both the Controller of Patents and the CCI. Section 21 of the Competition Act, 2002 is Parliament's bridge across these overlapping mandates: it lets a statutory authority, faced with an argument that its decision is contrary to the Act, refer that issue to the CCI for an opinion within sixty days. Read with its mirror-image provision, Section 21A, it builds a two-way channel of inter-regulatory consultation. This chapter sets out the bare text, the discretionary architecture of the words "may" and "shall", the decisive gloss of the Supreme Court in CCI v. Bharti Airtel, and the way the provision now sits within the wider turf war between the CCI and sectoral regulators. For the foundations, see the introduction and the Competition Act hub.
Where Section 21 Sits in the Scheme
Section 21 appears in Chapter IV of the Competition Act, 2002 — the chapter that constitutes the Competition Commission of India and defines its duties, powers and functions. Sections 18 to 20 cast on the Commission the substantive mandate to eliminate practices having an appreciable adverse effect on competition, promote and sustain competition, protect consumer interests and ensure freedom of trade. Sections 21 and 21A are the procedural sinews that connect that mandate to the rest of the regulatory state.
The drafting choice is deliberate. India does not have a single super-regulator; it has a competition regulator that operates alongside a constellation of sector-specific bodies — TRAI for telecom, SEBI for securities, the RBI for banking, the Controller of Patents under the Patents Act, 1970, the electricity and petroleum regulators, and many more. Because the same conduct may be both a sectoral question and a competition question, the legislature anticipated friction and provided a statutory mechanism to manage it. Section 21 lets a sectoral authority hand a competition issue to the CCI; Section 21A lets the CCI hand a sectoral issue back. The animating idea — institutional comity rather than jurisdictional combat — runs throughout the Act and informs how the CCI exercises its core powers over anti-competitive agreements and abuse of dominant position.
The Bare Text of Section 21
Section 21, as it now stands after the Competition (Amendment) Act, 2007, reads in substance as follows. Sub-section (1): "Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission." A proviso adds: "Provided that any statutory authority, may, suo motu, make such a reference to the Commission."
Sub-section (2): "On receipt of a reference under sub-section (1), the Commission shall give its opinion, within sixty days of receipt of such reference, to such statutory authority which shall consider the opinion of the Commission and thereafter, give its findings recording reasons therefor on the issues referred to in the said opinion."
Three structural features are worth fixing at the outset. First, the trigger is an issue raised in the course of a proceeding before the statutory authority — Section 21 is not a free-standing complaint route for private parties to the CCI; for that, see Section 19 in the introduction. Second, the reference is to obtain an opinion, not an adjudication. Third, the words shift register between the two sub-sections: the authority "may" refer, but the Commission "shall" give its opinion within sixty days.
"May" Versus "Shall": The Discretionary Architecture
The single most examined word in Section 21 is "may". Sub-section (1) says the statutory authority may make a reference; it is never compelled to. The proviso reinforces this by adding a purely permissive suo motu power. This is a sharp contrast with the mandatory "shall" governing the Commission in sub-section (2), under which the CCI is bound to render its opinion within the sixty-day window once a reference reaches it.
Two consequences follow. The first is that a sectoral regulator can decide a competition-flavoured issue entirely on its own without ever consulting the CCI; the reference is an option, not a precondition to the validity of its order. The second, and more important, is that even after the CCI returns its opinion, that opinion does not bind the referring authority. Sub-section (2) requires the authority only to consider the opinion and then "give its findings recording reasons therefor". The duty is to apply its mind and explain, not to obey. Commentators have consistently read Section 21 as creating a non-binding, consultative opinion rather than a determinative ruling — an architecture that preserves the autonomy of each regulator while encouraging dialogue.
This permissive design is also why Section 21 has been used sparingly in practice: where each regulator is defending its own institutional turf, neither is statutorily forced to invite the other in. The reference mechanism therefore depends heavily on regulatory good faith, a point that the courts would later have to address head-on.
Section 21A: The Mirror in Reverse
Section 21A was inserted by the Competition (Amendment) Act, 2007 to complete the symmetry. It applies where, in the course of a proceeding before the Commission, an issue is raised that a decision the CCI has taken or proposes to take is or would be contrary to a provision of the Act "whose implementation is entrusted to a statutory authority". In that situation the Commission may make a reference of the issue to that statutory authority, and — by the proviso — may do so suo motu.
Sub-section (2) of Section 21A then mirrors Section 21(2): on receipt of the reference the statutory authority "shall give its opinion, within sixty days of receipt of such reference, to the Commission which shall consider the opinion of the statutory authority, and thereafter give its findings recording reasons therefor on the issues referred to in the said opinion." The grammar is identical, the direction reversed. Before this amendment, the original Section 21 had required the Commission, after hearing the parties, merely to give an opinion that the statutory authority would "pass such order... as it deems fit"; the 2007 substitution recast both provisions into the present consider-and-record-reasons form and added the suo motu provisos.
The combined effect is a closed loop of inter-regulatory consultation: Section 21 routes competition questions from sectoral regulators to the CCI, and Section 21A routes sectoral questions from the CCI to the regulators. Crucially, on the Commission's side the power to refer is again only "may" — discretionary — which is precisely the lever the Supreme Court would seize upon in Bharti Airtel.
What Counts as a "Statutory Authority"
The phrase "statutory authority" is the gateway to Section 21, yet the body of the section does not exhaustively define it. In ordinary usage it captures any authority, board, corporation, council, institute or other body corporate established by or under a Central or State Act and entrusted with regulatory functions. The decisive feature is that the body must be a creature of statute exercising a public regulatory function whose proceedings can generate the kind of issue Section 21 contemplates — namely, an argument that the body's decision is contrary to the Competition Act.
In practice the provision has been discussed most often in relation to TRAI (Telecom Regulatory Authority of India Act, 1997), SEBI (SEBI Act, 1992), the RBI (Reserve Bank of India Act, 1934) and the Controller of Patents (Patents Act, 1970). Each of these is a statutory authority capable of both raising and receiving references. The link to the wider scheme matters: many of these bodies regulate markets whose competitive structure the CCI also polices, so the same dispute over, say, a dominant operator's conduct can engage both the sectoral framework and the prohibition on abuse of dominant position. Section 21 supplies the formal channel by which the sectoral body can route the competition limb of such a dispute to the expert competition regulator.
CCI v. Bharti Airtel: The Facts
The leading authority on the interface between the CCI and a sectoral regulator is Competition Commission of India v. Bharti Airtel Ltd., (2019) 2 SCC 521, decided by a two-judge Bench of the Supreme Court (A.K. Sikri and Ashok Bhushan, JJ.) on 5 December 2018. The dispute arose from the entry of Reliance Jio into the telecom market. Jio complained that the incumbent dominant operators — Bharti Airtel, Vodafone and Idea — acting through the Cellular Operators Association of India, had denied it adequate points of interconnection, thereby degrading call completion and stifling a new entrant.
Jio filed information under Section 19(1) of the Competition Act alleging a concerted refusal — conduct that, if proved, would constitute a cartel-type horizontal agreement and an abuse of collective dominance. The CCI, finding a prima facie case, directed an investigation under Section 26(1). The incumbents challenged that order before the Bombay High Court, which set it aside on the ground that the issues — interconnection obligations, quality of service, the meaning of contractual and licence terms — fell squarely within TRAI's domain under the TRAI Act, 1997. The CCI appealed to the Supreme Court.
CCI v. Bharti Airtel: The Holding on Sequencing
The Supreme Court in Bharti Airtel declined to oust the CCI's jurisdiction outright but imposed a temporal ordering. It held that where a dispute in a regulated sector turns on questions requiring the sectoral regulator's specialised expertise — here, whether the incumbents had in fact failed to provide points of interconnection in breach of their licence and TRAI's regulations — TRAI must first decide those "jurisdictional facts". Only after TRAI returns a finding that the operators acted anti-competitively can the CCI's jurisdiction be activated to examine the same conduct through the competition lens and impose consequences under the Act.
The Court thus crafted a "first regulator, follow-on competition" rule: the sectoral regulator exercises primary jurisdiction over the technical facts, and the CCI exercises a follow-on jurisdiction over the competition consequences. The two are complementary rather than mutually exclusive, because the Competition Act is itself a special statute supplying remedies that TRAI cannot grant. Significantly, the Court observed that the statutory scheme of Sections 21 and 21A itself reflects this contemplation of overlap and consultation — where the CCI needs TRAI's input it can make a reference under Section 21A, and where TRAI confronts a competition issue it can refer under Section 21. The provisions were treated as evidence that Parliament foresaw concurrent mandates and built in a mechanism for harmonious working rather than collision.
The Critique: Did Bharti Airtel Undercut Section 21?
Although Bharti Airtel invoked Sections 21 and 21A approvingly, commentators have argued that the judgment in fact bypassed the very mechanism it praised. Section 21 already supplies a route for TRAI to bring competition issues to the CCI, and Section 21A lets the CCI seek TRAI's expert view, both without surrendering jurisdiction to the other. By instead mandating that TRAI must finally determine the jurisdictional facts before the CCI can even begin, the Court arguably substituted a judicially-created sequencing rule for the consultative model Parliament chose.
The friction is real. Under Section 21A the CCI may refer a question to TRAI and then "consider" the opinion without being bound by it; under Bharti Airtel the CCI must wait for TRAI's binding determination on the underlying facts. Critics contend this converts a discretionary, non-binding consultation into a mandatory precondition, narrowing the CCI's autonomy beyond what the text requires. The debate is not academic: it shapes whether the CCI can act swiftly against fast-moving market conduct or must defer to often slower sectoral processes, and it has resurfaced in every subsequent regulated-sector dispute.
The Patents Front: Ericsson and Monsanto
The CCI-versus-sectoral-authority question moved next to intellectual property. In Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India (Delhi High Court, judgment dated 30 March 2016), a Single Judge upheld the CCI's jurisdiction to investigate a standard-essential-patent holder for allegedly imposing unfair and discriminatory FRAND licensing terms on Micromax and Intex, holding that the Patents Act, 1970 and the Competition Act could operate concurrently and that a patentee is an "enterprise" amenable to scrutiny for abuse of dominant position.
That position was reversed on 13 July 2023, when a Division Bench of the Delhi High Court, in the connected matters reported as Monsanto Holdings Pvt. Ltd. v. Competition Commission of India (decided with the Ericsson appeals), held that Chapter XVI of the Patents Act — inserted in 2003, after the Competition Act — is a special and later code governing anti-competitive conditions in patent licences, and that it ousts the CCI's jurisdiction over such patentee conduct. The Controller of Patents, not the CCI, was held to be the competent authority. The Supreme Court subsequently declined to interfere with that conclusion at the SLP stage. For Section 21 purposes the episode is instructive: where the legislature has lodged the relevant power with another statutory authority, the courts may treat that authority's jurisdiction as exclusive rather than as merely a candidate for a Section 21 reference.
Broadcasting and the Reaffirmation of Sequencing
The Bharti Airtel sequencing principle has since been applied beyond telecom. In the broadcasting sector, the Bombay High Court set aside a CCI prima facie order directing investigation against Star and Sony, reasoning that issues bound up with the broadcasting regulatory framework should first engage the sector regulator before the CCI's competition jurisdiction is invoked, expressly relying on the Supreme Court's reasoning in Bharti Airtel. The decision reopened the debate over how far the sequencing rule travels and whether it risks paralysing the CCI in every regulated market.
These successive applications show that Section 21 cannot be read in isolation. The provision supplies the formal consultative channel, but the operative law on when the CCI may act is now layered with judge-made sequencing doctrine. A student answering on Section 21 must therefore present both the statutory mechanism (optional reference, sixty-day non-binding opinion) and the judicial overlay (sectoral regulator first, CCI follow-on) to give a complete picture of the inter-regulator interface.
The Counterweight: CCI's Exclusive Antitrust Mandate
It would be wrong to conclude that sectoral regulators always come first. The Supreme Court has equally emphasised the breadth and distinctiveness of the CCI's antitrust mandate. In Competition Commission of India v. Co-ordination Committee of Artists and Technicians of West Bengal Film and Television, (2017) 5 SCC 17, the Court upheld the CCI's jurisdiction over a trade-association boycott that blocked the telecast of a dubbed serial, confirming that even bodies which look like trade unions fall within the Act when they engage in concerted conduct having an appreciable adverse effect on competition under Section 3. The judgment underscores that no other regulator administers the prohibitions on anti-competitive agreements and abuse of dominance; that competition mandate is the CCI's alone.
The reconciliation is this: where a dispute turns on facts within a sectoral regulator's special competence, that regulator acts first and a Section 21 reference is the formal channel; but where the question is purely one of competition — the existence of a cartel, the foreclosure of rivals — the CCI's jurisdiction is original and exclusive, and there is no sectoral authority with a prior claim. Section 21 governs the overlap zone, not the core of competition law itself.
Procedure, Timeline and Practical Working
Operationally, a Section 21 reference unfolds as follows. An issue is raised before a statutory authority — either by a party in a pending proceeding or, under the proviso, identified by the authority itself — that a decision the authority has taken or proposes to take is or would be contrary to the Competition Act. The authority, exercising its discretion, frames the issue and transmits a reference to the CCI. The CCI is then under a statutory duty to render its opinion within sixty days of receipt. On receiving that opinion, the authority must consider it and pass its own order, recording reasons on the issues covered by the opinion.
The sixty-day clock is the only hard temporal constraint and binds only the Commission; there is no outer limit on when the authority must make a reference, nor any compulsion to make one at all. Because the opinion is advisory, the authority may, after recording reasons, depart from it. This is what makes Section 21 a soft-coordination tool rather than a transfer-of-jurisdiction provision: it channels expertise without re-allocating decision-making power. Its under-use in practice — regulators rarely refer — has prompted recurring calls for memoranda of understanding between the CCI and sectoral bodies to operationalise the consultation that Sections 21 and 21A envisage.
Exam Pointers and Common Traps
For judiciary and CLAT-PG candidates, a few precision points carry disproportionate marks. First, never conflate Section 21 with Section 21A: Section 21 is reference by a statutory authority to the CCI; Section 21A is reference by the CCI to a statutory authority. Second, be exact on the verbs — the authority "may" refer (discretionary), the Commission "shall" opine within sixty days (mandatory), and the recipient must "consider" the opinion and record reasons (the opinion is non-binding). Third, attach the right case: CCI v. Bharti Airtel, (2019) 2 SCC 521 for the sectoral-regulator-first / CCI-follow-on principle in telecom; the Ericsson/Monsanto Delhi High Court line (2016 Single Judge, 2023 Division Bench) for patents and the Controller of Patents; and Co-ordination Committee of Artists, (2017) 5 SCC 17 for the breadth of the CCI's exclusive antitrust mandate.
A frequent trap is to describe the CCI's opinion under Section 21 as binding — it is not. Another is to forget that the suo motu power in the proviso lets the authority initiate a reference even where no party has raised the issue. Round off any answer by situating the provision within the larger architecture of the Act alongside the substantive prohibitions and the institutional design discussed in the Competition Act hub.
Frequently asked questions
What is the difference between Section 21 and Section 21A of the Competition Act, 2002?
Section 21 allows a statutory authority to refer to the CCI an issue, raised in its own proceedings, that a decision it has taken or proposes to take is contrary to the Act; the CCI must give its opinion within sixty days. Section 21A is the reverse: it allows the CCI to refer to a statutory authority an issue that a CCI decision may be contrary to a provision whose implementation is entrusted to that authority, and the authority must opine within sixty days. Both were recast and the suo motu provisos added by the Competition (Amendment) Act, 2007.
Is the CCI's opinion under Section 21 binding on the statutory authority?
No. Section 21(2) requires the statutory authority only to consider the CCI's opinion and then "give its findings recording reasons therefor". The duty is to apply its mind and explain its conclusion, not to follow the opinion. The reference mechanism is consultative, not determinative; the authority retains full power to decide otherwise after recording reasons.
Is a statutory authority obliged to make a reference under Section 21?
No. The word used is "may" — the reference is purely discretionary. A statutory authority can decide a competition-flavoured issue without ever consulting the CCI, and the proviso's suo motu power is equally permissive. Only the CCI's duty to opine within sixty days, once a reference is received, is mandatory ("shall").
What did the Supreme Court hold in CCI v. Bharti Airtel about Sections 21 and 21A?
In CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521 (decided 5 December 2018), the Court held that in a regulated sector the sectoral regulator (TRAI) must first decide the jurisdictional facts requiring its expertise, after which the CCI exercises a follow-on jurisdiction over the competition consequences. It treated Sections 21 and 21A as evidence that Parliament contemplated overlapping mandates and built in a consultation mechanism, though critics argue the sequencing rule effectively bypassed that very mechanism.
How does Section 21 interact with intellectual property regulators like the Controller of Patents?
In Telefonaktiebolaget LM Ericsson v. CCI (Delhi HC, 30 March 2016) a Single Judge upheld concurrent CCI jurisdiction over patentee conduct, but a Division Bench in Monsanto Holdings Pvt. Ltd. v. CCI (13 July 2023) held that Chapter XVI of the Patents Act, 1970 is a special, later code that ousts the CCI in favour of the Controller of Patents; the Supreme Court declined to interfere. Where the legislature has lodged the power exclusively in another authority, the courts may treat that jurisdiction as exclusive rather than as a candidate for a Section 21 reference.
Does the CCI have exclusive jurisdiction over any competition matters despite Section 21?
Yes. Section 21 governs only the overlap zone with sectoral regulators. The core antitrust prohibitions — anti-competitive agreements under Section 3 and abuse of dominance under Section 4 — are administered by the CCI alone. In CCI v. Co-ordination Committee of Artists and Technicians of W.B. Film and Television, (2017) 5 SCC 17, the Supreme Court affirmed the breadth of this mandate, upholding CCI jurisdiction over a trade-association boycott as a Section 3 contravention.