Holding

The Supreme Court held that the relevant market is the film and television industry of West Bengal and that the coordinated boycott by EIMPA and the Coordination Committee constitutes an anti‑competitive agreement under s.3(3)(b) of the Competition Act, 2002.

Summary

The Competition Commission of India (CCI) investigated complaints that the Eastern India Motion Picture Association (EIMPA) and the Coordination Committee of Artists and Technicians of West Bengal Film and Television Investors threatened television channels to stop telecasting a Bengali‑dubbed version of the serial ‘Mahabharat’. The CCI concluded that the coordinated boycott constituted an anti‑competitive agreement under Section 3(3)(b) of the Competition Act, 2002, affecting the film and television industry of West Bengal. The Competition Appellate Tribunal reversed the CCI’s majority view, holding that the relevant market was only the broadcast of the dubbed serial and that the actions did not fall within the Act. On appeal, the Supreme Court examined the definition of the relevant market and the scope of ‘agreement’ under the Act. It held that the relevant market encompassed the entire film and television industry of West Bengal and that the concerted action of EIMPA and the Coordination Committee was an anti‑competitive agreement. Consequently, the Court allowed the CCI’s appeal, finding a violation of Section 3(3)(b) and ordering the appeal allowed.

Issues considered

What is the relevant market for the purpose of assessing the conduct of the Coordination Committee?
Whether the actions of EIMPA and the Coordination Committee amount to an anti‑competitive agreement prohibited under Section 3 of the Competition Act, 2002

Legislation cited

Competition Act, 2002s. 19(3), s. 19(5), s. 19(6), s. 19(7), s. 2(1), s. 2(b), s. 2(r), s. 2(s), s. 3(1), s. 3(3)(b)
Constitution of Indias. Article 19(1)(a)

Subjects

competition lawanti‑competitive agreementrelevant markettrade unionSection 3Consumer welfareTelevision dubbingWest Bengal

Judgment

[2017] 5 S.C.R. 1

COMPETITION COMMISSION OF INDIA A
v.
CO-ORDINATION COMMITTEE OF ARTISTS AND
TECHNICIANS OF W.B. FILM AND TELEVISION AND ORS.
(Civil Appeal No. 6691 of 2014) B
MARCH 07, 2017
[A. K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.)
Competition Act, 2002:
s.3(3)(b) - Violation of- Scope ofjurisdiction of Competition C
Commission of India (CCI) - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Telecasting of serial not
palatable to EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Tech_nicians of West Bengal Film and
TV Investors (Coordination Committee), as in their perception D
dubbing of serials of other language in Bang/a would affect
producers, artists and Technicians of that region _.:Pursuant thereto,
broadcasting channels received letters from EIPA and Coordin"ation
Committee to stop the telecast of the dubbed serial and that non-
compliance would result in non-cooperation from these two bodies
- Respondent No.2 informed CCI about the development and sought · E
action in the matter - Majority view of CCI was that EIMPA and
Coordination Committee imposed/attempted to impose restrictions
on the telecast of dubbed serial and this was in violation ofprovisions
of the Act - However, minority view was that the action and conduct
of both EIMPA and Coordination Committee did not violate any F
provisions of the Act - EIMPA by its conduct accepted the majority
opinion - But, Coordination Committee went on appeal to
Competition Appellate Tribunal, which affirmed the minority view
of CCI - On appeal, held: Both EIMPA and Coordination Committee
acted in a concerted and coordinated manner, together they gave a
call to boycott the competing members - Decision of these two bodies G
reflected collective intent of the members - Thus, the matter could
not have been brushed aside by merely giving it a cloak of trade
unionism - It is clear that acts of Coordination Committee caused
harm to consumers by depriving them from watching the dubbed
serial on TV channel and prevented competing parties ilt pursuing
H
2 SUPREME COURT REPORTS [2017] 5 S.C.R.

A commercial activity-It hindered competition in the market by barring
dubbed TV serials from exhibition on TV channels in the State of
West Bengal - It amounted creation of barriers to the entry of new
content in the said dubbed TV serial - Therefore, such act and
conduct amounted to violation of the provision of s.3(3)(b) of the
Act.
B
s.2(r), (s) - Relevant market - Telecasting of dubbed serial
'Mahabharat' in Bang/a language - Broadcasting channels received
letters from EIMPA(an Association of producers in Eastern India)
and Committee of Artists and Technicians of West Bengal Film and
TV Investors (Coordination Committee) to stop the telecast of dubbed
c serial in that region - Minority view of CCI was that 'relevant market'
was broadcast of T. V. serial and not T. V. industry of West Bengal
and broadcasting of it took place through different broadcasting
services, which is different from production, distribution of films -
Held: Jn the instant case, the geographical market is the State of
D West Bengal and to this extent activities of Coordination Committee
were limited to the said State - Even as per agitators/Coordination
Committee, the said broadcast was going to adversely affect the TV
and Film industry of West Bengal - Thus, the relevant market was
not limited to broadcasting of the Channel but the entire film and
television industry of West Bengal.
E
Trade Unions - Regional T. V. and film industry - Association
of producers in Eastern India (EJMPA) - Committee of Artists and
Technicians of West Bengal Film and TV Investors (Coordination
Committee) - Coordination Committee contended - (i) that dubbing
of serials of other language in Bang/a would affect producers, artists
F and Technicians of that region - (ii) it had nothing to do with the
competition and as a trade union, it had the fimdamental right to
lodge the protest - Held: In instant case, Coordination Committee
(or for that matter even EJMPA) are, in fact, association of
enterprises (constituent members) and these members are engaged
G in production, distribution and exhibition offilms - Matter cannot.
be viewed narrowly by treating Coordinate Committee as a trade
union, ignoring the fact that it is backing the cause of those which
are 'enterprises' - Decision of these two bodies reflected collective
intent of the members - When the members are found to be in the
production, distribution or exhibition line, the matter could not have
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 3
COMMITTEE OF ARTISTS AND TECHNICIANS

been brushed aside by merely giving it a cloak of trade unionism - A
Therefore, the right as professed u/Art.19 by the Coordination
Committee, is not available - Constitution of India - Art.19.
Words and Phrases - 'agreement', 'enterprise', 'person' -
Meaning of - Discussed in terms of s.2(b), s.2(1), s.3 of the
Competition Act, 2002. B
Allowing the appeal, the Court
HELD: What is the 'relevant market' for the purposes of
inquiry into the impugned activity of the Coordination
Committee?
c
1.1 While identifying the relevant market in a given case,
the Competition Commission of India (CCI) is required to look
at evidence that is available and relevant to the case at hand.
The CCI has to define the boundaries of the relevant market as
precisely as required by the circumstances of the case. Where
appropriate, it may conduct its competition assessment on the D
basis of alternative market definitions. Where it is apparent that
the investigated conduct is unlikely to have an adverse effect on
competition or that the undertaking under investigation does not
possess a substantial degree of market power on the basis of any
reasonable market definition, the question of the most appropriate E
market definition can even be left open. [Para 32) [24-C-E)
1.2 The relevant market within which to analyse market
power or assess a given competition concern has both a product
dimension and a geographic dimension. In this context, the
relevant product market comprises all those products which are
F
considered interchangeable or substitutable by buyers because
of the products' characteristics, prices and intended use. The
relevant geographic market comprises all those regions or areas
where buyers would be able or willing to find substitutes for the
products in question. The relevant product and geographic
market for a particular product may vary depending on the nature G
of the buyers and suppliers concerned by the conduct under
examination and their position in the supply chain. [Para 33) [24-
E-G]
1.3 In the instant case, the geographic market is the State
of West Bengal and to this extent there is no quarrel inasmuch H
4 SUPREME COURT REPORTS [2017] 5 S.C.R.

A as activities of the Committee of Artists and Technicians of West
Bengal Film and TV Investors (Coordination Committee) were
limited to the said State. The dispute is as to whether relevant
market would cover 'broadcast of TV serial' or it would take within
its sweep 'film and TV industry of the State of West Bengal'. TV
B serial in question was produced in Hindi. It was thereafter dubbed
in Bangla. When the two channels decided to broadcast this TV
serial in dubbed form, i.e. in Bangla language, this move was
opposed by the Coordination Committee and EIMPA(an
Association of producers in Eastern India). The Tribunal has
upheld the minority view of CCI in saying that nature of the
C information does not show anything which could even be distinctly
connected with the whole 'film and television industry in the State
of West Bengal'. The information is only against showing the
dubbed serial on the television and it has no relation whatsoever
with production, distribution, etc. of any film or any other material
D on the TV channels. [Para 36) [25-C-F]
1.4 This is a myopic view taken by the Tribunal which
ignores many other vital aspects of this case, most important
being the width of the effect of the aforesaid cause on which the
agitation was led by the Coordination Committee. The effect is
not limited to the telecast or broadcast of the television serial.
E No doubt, the.Coordination Committee was against the 'broadcast
of the television serial 'Mahabharat' on the aforesaid two
channels, in the dubbed form. However, even as per the agitators,
the said broadcast was going to adversely affect the TV and Film
Industry of West Bengal and the alleged purport behind the
F threats was to save the entire TV and Film Industry. [Para 36)
[25-F-H; 26-A)
1.5 The relevant market was, therefore, not limited to the
. broadcasting of the channel but entire film and television industry
of West Bengal. Whether it was the misgiving of the Coordination
G Committee that telecast of dubbed version of 'Mahabharat' is
going to affect Bengali film and television industry or it was a
genuine concern, is not the relevant factor while defining the
'relevant market'. It is the sweep of·the aforesaid action which
is to be considered. Even in the perception of the Coordination
Committee, telecast of Bengali dubbed version of 'Mahabharat'
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 5
COMMITTEE OF ARTISTS AND TECHNICIANS

was going to affect the whole Television and Film Industry. In A
view thereof, it was hardly a matter of debate as to what would be
the relevant market. [Para 37] [26-E-G]
Whether the action and conduct of the Coordination Committee
is covered by the provisions of Section 3 of the Act?
2.1 In the instant case, admittedly the Coordination B
Committee, which may be a 'person' as per the definition
contained in Section 2(1) of the Act, is not undertaking any
economic activity by itself. Therefore, to look into the 'agreement'
of such a 'person', i.e. Coordination Committee, it may not fall
under Section 3(1) of the Act as it is not in respect of any c
production, supply, distribution, storage, acquisition or control
of goods or provision of services. The Coordination Committee,
which is a trade union acting by itself, and without conjunction
with any other, would not be treated as an 'enterprise' or the
kind of 'association of persons' described in Section 3. A trade
union acts as on behalf of its members in collective bargaining D
and is not engaged in economic activity. In such circumstances,
had the Coordination Committee acted only as trade unionists,
things would have been different. Then, perhaps, the view taken
by the Tribunal could be sustained. However, what is lost in
translation by the Tribunal i.e. in applying the aforesaid principle E
of the activity of the trade union, is a very pertinent and significant
fact, which was taken note of by the CCI in its majority opinion.
It is this: The Coordination Committee (or for that matter even
EIMPA) are, in fact, association of enterprises (constituent
members) and these members are engaged in production,
distribution and exhibition of films. EIMPA is an association of F
film producers, distributors and exhibitors, operating mainly in
the ·state of West Bengal. Likewise, the Coordination Committee
is the joint platform of Federation of Senior Technician and
Workers of Eastern India and West Bengal Motion Pictures
Artistes Forum. Both EIMPA as well as the Coordination a
Committee acted in a concerted and coordinated manner. They -
. joined together in giving call of boycott of competing members
i.e. the informant in the instant case and, therefore, matter cannot
be viewed narrowly by treating Coordination Committee as a trade
union, ignoring the fact that it is backing the cause of those which
H
6 SUPREME COURT REPORTS [2017] 5 S.C.R.

A are 'enterprises'. The constituent members of these bodies take
decision relating to production or distribution or exhibition on
behalf of the members who are engaged in the similar or identical
business of production, distribution or exhibition of the films.
Decision of these two bodies reflected collective intent of the
members. 'Vhen some of the members are found to be in the
B
production, distribution or exhibition line, the matter could not
have been brushed aside by merely giving it a cloak of trade
unionism. For this reason, the argument predicated on the right
of trade union under Article 19, as professed by the Coordination
Committee, its also not available. (Para 41) (28-E-H; 29-A-D)
c 2.2 Prohibition on the exhibition of dubbed serial on the
television prevented the competing parties in pursuing their
commercial activities. Thus, the CCI rightly observed that the
protection in the name of the language goes against the interest
of the competition, depriving the consumers of exercising their
D choice. Acts of Coordination Committee definitely caused harm
to consumers by depriving them from watching the dubbed serial
on TV channel; albeit for a brief period. It also hindered
competition in the market by barring dubbed TV serials from
exhibition on TV channels in the State of West Bengal. It
amounted to creating barriers to the entry of new content in the
E
said dubbed TV serial. Such act and conduct also limited the
supply of serial dubbed in Bangla, which amounts to violation of
the provision of Section 3(3)(b) of the Act. [Para 42) [29-D-G)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6691
of 2014.
F
From the Judgment and Order dated 03. 04.2014 ofthe Competition
Appellate Tribunal, New Delhi, in Appeal No. 131 of2012.

A. S. Chandhiok, Sr. Adv., Kanan Singh Chandhiok, Ritesh Kumar,
Ms. Monika Tyagi, Ms. Shristhi Kaul, Vikram Sobti, Avdhesh B., Advs.
G for the Appellant.

Avijit Bhattacharjee, Ms. Upma Shrivastava, Manoj Ghosh, S. K.
Agarwal, A. P. Sinha, M. K. Tiwari, Sudhansu Palo, Advs. for the
Respondents.
H The Judgment of the Court was delivered by
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 7
COMMITTEE OF ARTISTS AND TECHNICIANS

A. K. SIKRI, J. I. This appeal raises an interesting and important A
question oflaw touching upon the width and scope ofjurisdiction of the
Competition Commission of India (for short, the 'CCI') under Section 3
of the Competition Act, 2002 (hereinafter referred to as the 'Act'). Before
we mention the nuances of the issue that has arisen for consideration, it
would be apposite to take stock of the background facts under which B
the issue needs determination, as the factual canvass would provide
clarity of the situation that has led to the dispute between the parties.
Respondent No. 2 herein, Mr. Sajjan Kumar Khaitan, is the proprietor of
Mis. Hart Video having his establishment in Kolkata. He is in the business
of distributing video cinematographic TV serials and telecasting regional
serials in the States of Eastern India, which includes the State of West C
Bengal. Mis. BRTV, Mumbai, which is the producer ofT.V. programmes,
had produced T.V. Serial named 'Mahabharat', original version whereof
was in Hindi. The said BRTV entrusted the sole and exclusive rights of
'Mahabharat' to Mis. Magnum T.V. Serials to dub the Hindi version of
the said serial in Bangla with further rights to exploit its Satellite, Pay D
TV, DTH, IPTV, Video, Cable TV and internet rights till September,
2016. Magnum TV, in turn, appointed Hart Video as the sub-assigner to
dub the said serial 'Mahabharat' in Bangla language, which it did.
Thereafter, for the purposes of telecasting the said dubbed serial, an
agreement was executed for the time slot, on revenue sharing basis,
with Mis. Bengal Media Pvt. Ltd., Kolkata, which is the owner of E
'Channel 1O', as well as with Mis. Calcutta Television Network Private
Ltd., Kolkata, which is the owner of CTVN+ Channel. These two
channels were given hard disks of four episodes of the serial on 2"tl
February, 2011and12'h February, 2011. An advertisement was placed
in Daily Newspapers on 19'h February, 2011 informing the public at large
F
that serial 'Mahabharat' would be telecast in Bangla on Channel 10 at
10.00 a.m. in the morning and on CTVN+ at 10.00 p.m. every Sunday.
2. Certain producers in Eastern India have formed an association
called Eastern India Motion Picture Association (for short, 'EIMPA').
Likewise, the artists and technicians of film and television industry in
West Bengal have formed an association known as 'Committee ofArtists G
and Technicians ofWest Bengal Film and Television Investors (hereinafter
referred to as the 'Coordination Committee').
3. Telecasting of serial 'Mahabharat' in Bangla after dubbing it in
the said language from the original produced Hindi language was not
palatable to EIMPA or the Coordination Committee. In their perception, H
8 SUPREME COURT REPORTS [2017] 5 S.C.R.

A serials produced in other languag~s and shown on the T.V. Channels
after dubbing them in Bangla would affect the producers of that origin
and, in turn, would also adversely affect the artists and technicians
working in West Bengal. The apprehension was that it may deter
production of such serials in Bangla because of the entry of serials
B produced in other languages and shown to the public by dubbing the
same in their language. Because of this reason, on l81h February, 2011
CTVN+ received a letter from the Coordination Committee to stop the
telecast of the dubbed serial 'Mahabharat'. Letter dated l'' March,
2011 to the similar effect was written by EIMPA to CTVN+. Identical
demands were made to this Channel by the Coordination Committee as
C well. It was stated in this letter that such a step was necessary in the
interest of healthy growth of film and television industry in West Bengal.
It was also alleged that for the last thirteen years there was a convention
and practice adopted in the said region not to dub any programme from
other languages in Barigla and telecast them in West Bengal. Threat
was also extended to CTVN+ as well as Channel l 0 that in case the
D
telecast is not stopped, their channels would face non-cooperation from
these two bodies, i.e., EIMPA and the Coordination Committee.
4. When Mr. Sajjan Khaitan (Respondent No. 2), Proprietor of
Mis. Hart Video, came to know of the aforesaid developments and the
threat extended to CTVN+ and Cl)annel 10 and found that these .two
E television channels were going to succumb to those pressures, he informed
the CCI of the aforesaid details and requested the CCI to take action in
the matter, as according to him, the aforesaid act on the part ofEIMPA
as well as the Coordination Committee contravened the provisions of
the Act. Even an interim relief was sought in the nature of direction
F from CCI to CTVN+ and Channel 10 not to yield to the threats ofEIMPA
and Coordination Coinmittee and restart the telecast of the serial which
was stopped since J7•h April, 2011. Hereafter, Respondent No. 2 shall
be described as the 'informant'.
5. The CCI, after receiving the aforesaid information from the
informant formed aprimafacie opinion that acts on the part ofEIMPA
G
and.Coordination Committee were anti-competitive. Accordingly, matter
was assigned to the Director General (DG) for detailed investigation as
per the procedure prescribed in the Act. On investigation, the DG found
that the details contained in the information supplied by the informant
were factually correct. On that basis, he examined the matter in the
H context of provisions contained in the Act.
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 9
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

6. In order to understand with clarity the task undertaken and A
accomplished by the DG, we deem it proper to refer to some of the
relevant provisions of the Act at this stage. Chapter II of the Act deals
with 'prohibition of certain agreements, abuse of dominant position and
·regulation of combinations'. It comprises of Sections 3 to 6. Section 3
deals with anti-competitive agreements and Section 4 prohibits the abuse
B
of dominant position. Section 5, on the other hand, takes care of those
acquisitions and mergers which have the potential to become anti-
competitive or attain dominant position, with threat to abuse the said
position in order to control such acquisition and mergers. Section 6
empowers the CCI to regulate those combinations which are stipulated
under Section 5. Thus, this Chapter deals with three kinds of practices c
which may be anti-competitive, viz., agreements which may tum out to
be anti-competitive; abusive use of dominant position by those enterprises
or groups which enjoy such dominant position as defined in the Act; and
regulations of combination of enterprises by means of mergers or
amalgamations so that they do not become anti-competitive or abuse the
D
dominant position which they can attain.
7. The scheme of this Chapter, therefore, is to ensure fair
competition by prohibiting trade practices which cause appreciable
adverse effects in competition in markets within India. This task of curbing
negative aspects of competition is assigned to CCI. In the present case,
since we are concerned with the issue as to whether EIMPA and/or E
Coordination Committee resorted to any anti-competitive agreement, it
will be apposite to scan through Section 3 of the Act and other provisions
which revolve there around. Section 3 reads as under :
"3. Anti-competitive agreements : (1) No enterprise or association
of enterprises or person or association of persons shall enter into F
any agreement in respect of production, supply, distribution, storage,
acquisition or control of goods or provision of services, which
causes or is likely to cause an appreciable adverse effect on
competition within India.
(2) Any agreement entered into in contravention of the provisions G
contained in subsection ( 1) shall be void.
(3) Any agreement entered into between enterprises or associations
of enterprises or persons or associations of persons or between
any person and enterprise or practice carried on, or decision taken
H
IO SUPREME COURT REPORTS [2017] 5 S.C.R.

A by, any association of enterprises or association of persons,
including cartels, engaged in identical or similar trade of goods or
provision of services, which-
(a) directly or indirectly determines purchase or sale prices;
(b) limits or controls production, supply, markets, technical
B development, investment or provision of services;
(c) shares the market or source of production or provision of
services by way of allocation of geographical area of market, or
type of goods or services, or number of customers in the market
or any other similar way;
c
(d) directly or indirectly results in bid rigging or collusive bidding,
shall be presumed to have an appreciable adverse effect on
competition:
Provided that nothing contained in this sub-section shall apply to
D
any agreement entered into by way of joint ventures if such
agreement increases efficiency in production, supply, distribution,
storage, acquisition or control of goods or provision of services.
Explanation.-For the purposes of this sub-section, "bid rigging"
means any agreement, between enterprises or persons referred
to in sub-section (3) engaged in identical or similar production or
E
trading of goods or provision of services, which has the effect of
eliminating or reducing competition for bids or adversely affecting
or manipulating the process for bidding
'
(4) Any agreement amongst enterprises or persons at different
stages or levels of the production chain in different markets, in
F
respect of production, supply, distribution, storage, sale or price
of, or trade in goods or provision of services, including-
(a) tie-in arrangement;
(b) exclusive supply agreement;
G (c) exclusive distribution agreement;
(d) refusal to deal;
(e) resale price maintenance,
shall be an agreement in contravention of sub-section(!) if such
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 11
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

agreement causes or is likely to cause an appreciable adverse · A
effect on competition in India.
Explanation.-For the purposes of this sub-section,-
( a) "tie-in arrangement" includes any agreement requiril}g a
purchaser of goods, as a condition of such purchase, to purchase
some other goods; B
(b) "exclusive supply agreement" includes any agreement
restricting in any manner the purchaser in the course of his trade
from acquiring or otherwise dealing in any goods other than those
of the seller or any other person;
c
(c) "exclusive distribution agreement" includes any agreement to
limit, restrict or withhold the output or supply of any goods or
allocate any area or market for the disposal or sale of the goods;
(d) "refusal to deal" includes any agreement which restricts, or is
likely to restrict, by any method the persons or classes of persons D
to whom goods are sold or from whom goods are bought;
(e) "resale price maintenance" includes any agreement to sell
goods on condition that the prices to be charged on the resale by
the purchaser shall be the prices stipulated by the seller unless it
is clearly stated that prices lower than those prices may be
E
charged.
(5) Nothing contained in this section shall restrict-(i) the right of
any person to restrain any infringement of, or to impose reasonable
conditions, as may be necessary for protecting any of his rights
which have been or may be conferred upon him under-
F
(a) the Copyright Act, 1957 (14ofl957);
(b) the Patents Act, 1970 (39 of 1970);
(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958)
or the Trade Marks Act, 1999 (4 7 of 1999);
G
(d) the Geographical Indications of Goods (Registration and
Protection) Act, 1999 (48 of 1999); (e) the Designs Act, 2000
(16 of2000); \
(f) the Semi-conductor Integrated Circuits Layout-Design Act,
2000 (37 of2000);
H
12 SUPREME COURT REPORTS [2017] 5 S.C.R.

A (ii) the right of any person to export goods from India to the extent
to which the agreement relates exclusively to the production,
supply, distribution or control of goods or provision of services for.
such export."

8. As can be seen from the bare reading of the aforesaid provision,
B sub-section (1) of Section 3 puts an embargo on an enterprise or
association of enterprises or person or association of persons from·
entering into any agreement in respect of production, supply, distribution,
storage, acquisition or control of goods or provisions of services which
causes or is likely to cause an appreciable adverse effect on competition
c within India. Thus, agreements in respect of distribution or provisions of
services, if they have adverse effoct on competition, are prohibited and
treated as void by virtue of sub-section (2). Sub-section (3), with which
we are directly concerned, stipulates four kinds of agreements which
are presumed to have appreciable adverse effect on competition.
Therefore, if a particular agreement comes in any of the said categories,
D it is per se treated as adversely effecting the competition to an appreciable
extent and comes within the mischief of sub-section ( l ). There is no
further need to have actual proof as to whether it has caused appreciable
effect ori competition. Proviso thereto, however, exempts certain kinds
of agreements, meaning thereby if a particular case falls under the
E · pro~iso, then such a presumption would not be applicable.

9. We have already mentioned in brief the contents ofletters which
were written by EIMPA and the Coordination Committee to the Channel
l 0 and CTVN+. The DG was to investigate as to whether this
'agreement' falls within the four comers of Section 3(3)(b) of the Act,
F namely, whether it limits or controls production, .supply, markets, technical
development, investment or provisions of services.

10. Section 2(b) defines 'agreement' and reads as under:

"2(b) "agreement" includes any arrangement or understanding or
action in concert,-
G·
(i) whether or not, such arrangement, understanding or action is
formal or in writing; or
ii) whether or not such arrangement, understanding or action is
intended to be enforceable by legal proceedings;"
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 13
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]
,_,----~·

11. Definitions of certain other expressions and terms which are A
required to be noted are as follows:
"2 (1) "person" includes~
(i) an individual;
(ii) a Hindu .undivided family; B
(iii) a company;
(iv) a firm;
(v) an association of persons or a body of individuals, whether
incorporated or not, in India or outside India; or
c
(vi) any corporation established by or under any Central, State or
Provincial Act or a Government company as defined in section
617 oftheCompanies Act, 1956 (1 ofl956);
(vii) any body corporate incorporated by or under the laws of a
country outside lndia; D
(viii) a co-operative society registered under any law relating to
cooperative societies;
(ix) a local authority;
(x) every artificial juridical person, not falling within any of the E
preceding sub-clauses."
xx xx xx
2(m) "practice" includes any practice relating to the carrying on
of any trade by a person o~ an enterprise;
F
xx xx xx
2(r) "relevant market" means the market which ipay be determined
by the Commission with reference to the relevant product market
or the relevant geographic market or with reference to both the
markets;
G
2(s) "relevant geographic market" means a market comprising
the area in which the conditions of competition °for supply of goods.
or provision of services .or demand of goods or services are
aistinctly homogenous and can be distinguished from the conditions
prevailing in the neighbouring areas;
H
14 SUPREME COURT REPORTS [2017) 5 S.C.R.

A 2(t) "relevant product market" means a market comprising all
those products or services which are regarded as interchangeable
or substitutable by the consumer, by reason of characteristics of
the products or services, their prices and intended use;
2(u) "service" means service of any description which is made
B available to potential users and includes the provision of services
in connection with business of any industrial or commercial matters
such as banking, communication, education, financing, insurance,
chit funds, real estate, transport, storage, material treatment,
processing, supply of electrical or other energy, boarding, lodging,
entertainment, amusement, construction, repair, conveying of news
c or information and advertising;
xx xx xx
2(x) "trade" means any trade, business, industry, profession or
occupation relating to the production, supply, distribution, storage
D or control of goods and includes the provision of any services;"
12. At this stage, we would like to refer to Section 19 of the Act
which permits the CCI to conduct an enquiry into certain kinds of
agreements and dominant position of enterprise. Sub-section (1) of
Section 19 empowers the Commission to inquire into any alleged
E contravention of the provisions contained in sub-section (1) of Section 3
(i.e. anti-competitive agreements) or sub-section ( 1) of Section 4 (i.e.
abuse of dominant position). Sub-section (3) deals with the factors which
have to be kept in mind by the CCI while undertaking an inquiry into
anti-competitive agreements and reads as under:
"19(3) The Commission shall, while determining whether an
F
agreement has an appreciable adverse effect on competition under
section 3, have due regard to all or any of the following factors,
namely:
(a) creation of barriers to new entrants in the market;
G (b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to ctmsumers;

H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 15
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

(e) improvements in production or distribution of services; of goods A
or provision
(t) promotion of technical, scientific and economic development
·by means of production or distribution of goods or provision of
services.
13. Since the appreciable adverse effect on competition has to be B
seen in the context of'relevant market' as defined under Section 2(r) of
the Act (already reproduced above), sub-section (5) of Section 19
stipulates that in order to determine whether a market constitutes a
'relevant market' for the purposes of this Act, CCI shall have due regard
to the 'relevant geographic market', and 'relevant product market'. The c
factors which are to be taken into account while determining relevant
geographic market are mentioned in sub-section (6) of Section 19.
Likewise, the factors which are to be taken into consideration while
determining the relevant product market are stipulated in sub-section (7)
of Section 19.
D
14. Having noticed the relevant provisions postulating the scheme
qua prohibited anti-competitive agreements, on the basis of which
investigation is to be made by the DG, the first aspect was to determine
as to what would be the 'relevant market'. The DG, in his report submitted
to the CCI, opined that in the instant case 'relevant market' would be
the 'film and television industry of West Bengal'. He further recorded E
that the Coordination Committee consisted of persons or association of
persons who were dealing with identical market of film making. In his
opinion any agreement ofjoint action taken by the constituents, being in
the nature of horizontal agreement, could be examined under the provisions
of Section 3(3) of the Act. The impugned action of the Coordination F
Committee and EIMPA threatening non-cooperation in case telecast of
the serials was not stopped and holding demonstrations as well as
organising strike, which resulted in actually stopping the telecast of the
serial by Channel l 0 (though CTVN+ continued to telecast), amounted
to restricting its commercial exploitation and was, therefore, unjustified.
He found that following conduct of the Coordination Committee G
specifically contravened the provisions of the Act:
"a. Act of the Co-ordination Committee writing a letter on
18.02.2011 to CCTVN Plus Channel asking it to stop the
telecasting of Mahabharata serial.
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16 SUPREME COURT REPORTS [2017] 5 S.C.R.

A b. Further, act of the Co-ordination Committee writing a letter on
01.03.2011 to Channel 10 and letters on 11.03.2011, 12.03.2011
and 14.03.2011 to CTVN Plus Channel asking them to stop the.
telecast of Mahabharata serial.
c. Observance of one-day work stoppage on 07.04.2011 against
B telecast of the Mahabharata serial by the members of all the
constituents of Co-ordination Committee and demonstration on
the same day from 11.00AM to 02;00PM at Rani Rasoni Road in
Kolkata.
d. The Co-ordination Committee approached Shri Mithun
c Chakraborty, the leading actor of Indian Film Industry and the
Chief Adviser of Channel 10 and finally succeeded in getting the
telecast of Mahabharata stopped by Channel 10."
15. The DG concluded that the action on the part of Coordination
Committee had resulted in foreclosure of competition by hindering entry
D into the market. The DG also held that by not allowing the dubbed
version of the serial, the Coordination Committee foreclosed the business
opportunities for the businessmen engaged in the production, distribution,
and exhibition, telecast of such programmes.·The DG, therefore,
concluded that the actions on the part of EIMPA and Coordination
Committee were in violation of the provisions of Section 3(3)(b) of the
E Act, since they restricted and controlled the market and supply of dubbed
versions of serials on the Television Channels through collective intent
of all the constituents/associations coming together on one platform.
16. Certain fundamental objections were taken by the Coordination
Committee as well as Ellv1,PA touching upon the jurisdiction of the DG
F to inquire into the matter as according to them the inquiry was beyond
the scope of the Act. In nutshell, it was argued:
(a) The Coordination Committee comprised of artists and
technicians of West Bengal Film and T.V. Industry and consisted of
West Bengal Motion Picture Artists' Forum and Federation of Cine
G Technicians and Workers of Eastern India only. The other members like
WATP, ATA and EIMPA were not in the Coordination Committee. It
was, in fact, a trade union of the artisans and technicians under the
Trade Union Act. Therefore, the Coordination Committee was not an
'enterprise'.
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 17
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.] .

Likewise, it was not a 'person or 'association of persons' who A
were in the business of production, supply and distribution or providing
services etc. Therefore, their act would not fall under Section 3( l) of
-~ the Act.
(b) It was argued that the Coordination Committee was not in a
position to control production programming marketing and uplinking of B
any serial in the satellite channel and, therefore, provisions of the Act
would not apply to it.
(c) According to the Coordination Committee, the action which
they had taken was in the form of an agitation against the telecast of
Hindi serial after dubbing the same into Bangla in order to safeguard the c
interest of its members. It was their constitutional right to lodge such
protests under Article 19(l)(a) of the Constitution of India.
17. The DG, however, did not get convinced with the aforesaid
defence put by the Coordination Committee and found that the agitation
of the Coordination Committee was uncalled for inasmuch as there was D
a huge potential oflocal film artists, and the industry was not likely to
suffer on account of the dubbed serials shown on the said channels. He
also found the industry of television channels in Bangla was growing by
leaps and bounds and, therefore, argument of the Coordination Committee
was not based on facts. Thus, their action was held to be unjustified, as
it had resulted in foreclosure on competition by entering into the market E
as well as foreclosure of business opportunities for the businessmen
engaged in the production, distribution and exhibition/telecast of such
programmes. This, according to him, came within the mischief of Section
3(3)(b) of the Act.
18. Against the aforesaid report of the DO, being adverse to the F
Coordination Committee as well as EIMPA, both of them preferred their
objections before the CCI. These objections were almost on the same
lines which were taken before the DO and, therefore, it is not necessary
to repeat the same at this stage inasmuch as we would be turning to the
stand of the Coordination Committee at the appropriate stage, in any 0
case.
19. The CCI, after scanning through those objections, formulated
two questions which according to it fell for consideration. These
are:
18 SUPREME COURT REPORTS [2017] 5 S.C.R.

A Issue 1
Whether EIMPA and Co-ordination Committee imposed/attempted
to impose restrictions on the telecast of dubbed serial 'Mahabharat'?
Issue 2
B Whether the act and conduct of imposing restrictions on telecast
of the said serial is in violation of provisions of the Act?
20. The CCI gave a fractured verdict on the aforesaid issues. As
per the majority, the complainant was able to give clinching evidence
thereby proving both the issues. The majority held that Channel IO
c stopped the telecast of serial as a direct consequence of the threats
extended to it by EIMPA as well as Coordination Committee through
their various letters coupled with the agitations and demonstration held
by them. In this manner, pressures were exerted on both Channel 10
and CTVN+ not to telecast the dubbed serial, though as far as CTVN+
is concerned it did not succumb to such a pressure. But Channel 10
D gave in by discontinuing the telecast of the serial. In t~is manner, first
issue was decided in the affirmative.
Taking up the second issue, the majority members held that since
the Coordination Committee was not an 'enterprise', question ofbreach
of Section 4 did not arise. However, the activities of the Coordination
E Committee fell within the ambit of Section 3 of the Act and violated that
provision since it had adverse effect on competition. It accepted that
the Coordination Committee (and for that matter even EIMPA) were
trade unions. Notwithstanding, they were not exempted from the purview
of the Act. Qua the Coordination Committee specifically, the CCI was
influenced by the fact that even when bodies like WATP, ATA and EIMPA
F
were not members of the Coordination Committee, still it was found that
the Coordination Committee takes the measures in consultation with
these associations and, therefore, the Coordination Committee must be
deemed to be comprised of all the five members.
21. Judicial member in the CCI put discordant note as he differed
G
from the majority opinion. According to him, first mistake committed by
the DG was that he did not identify the 'relevant market' correctly.
According to him, 'relevant market' was 'broadcast of TV serial' and
not 'Film and TV Industry of West Bengal' as found by the DG. After
identifying the relevant market as broadcast of TV serials, learned
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 19
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

member opined that broadcast of TV serials took place either by way of A
Direct to Home Services (DTH) or through Cable and, therefore,
broadcasting service is altogether a separate market, different from
production, exhibition and distribution of films. Insofar as the two
channels, namely, CTVN+ and Channel 10 are concerned, they were in
the market for telecasting programmes for the viewers of the DTH B
category or Cable TV category and were not in production, distribution
or exhibition of dubbed films. According to the minority view, since the
offending parties, i,e., Coordination Committee and EIMPA, were not
active in the relevant market of broadcast of dubbed TV serials, there
was no question of any violation of any provisions of the Act. It was
further held that Section 3 of the Act does not take into its fold coercive C
actions taken by workers' union affecting the various facets or products
or service market, affecting production, distribution and supply of goods
or services. It was accepted that, as a matter of fact, the Coordination
Committee as well as EIMPA had put pressure on these channels from
broadcasting the dubbed TV serial in question through various means. D
However, it could not be treated as an economic pressure. It was an act
of trade union putting such pressures which was outside the domain of
the Act and not an 'agreement' amongst the enterprises, active in the
same relevant market, which resulted in discontinuing the telecast of
dubbed serials. Further, the TV channels were at liberty to ignore such
coercive facts. Th,e minority opinion went to the extent of expressing E
that right to hold dharnas, boycotts, strikes etc. was fundamental right of
any trade union guaranteed under Article I 9(1)(a) of the Constitution
which could not be taken away by the Act, unless it is shown that the
offending parties were involved in economic activities in the same
'relevant market' and they had entered into an 'agreement' which finds
F
foul with the provisions of Section 3 of the Act.
22. Significantly, it is only the Coordination Committee which
preferred the appeal before the Competition Appellate Tribunal
(hereinafter referred to as the 'Tribunal'). EIMPA, by its conduct,.
accepted the majority decision of the CCI. It is for this reason the Tribunal
did not go into the issue with reference to EIMPA. It discussed the G
stand of the Coordination Committee and deliberated itself confining to
the activities of the Coordination Committee to find out whether majority
view of CCI was correct in law. By the impugned judgment, it has held
otherwise thereby setting aside the majority view and accepting the
H
20 SUPREME COURT REPORTS [2017] 5 S.C.R.

A minority opinion of the CCI resulting into allowing the appeal of the
Coordination Committee and liolding that there is no contravention of
Section 3 of the Act which could not even be invoked on the facts of this
case. In the first place, the Tribunal has affirmed the opinion of the
dissenting member of the CCI on the question of 'relevant market' by
holding that it was not the 'Film and Television Industry in the State of
B
West Bengal', but the relevant market was the 'telecasting of the dubbed
serial on television in West Bengal'. Thereafter, the Tribunal took note
of the provisions of Section 3(3) of the Act and concluded that the
Coordination Committee was not trading in any groups, or provisions of
any services, much less by the persons engaged in identical or similar
c trade or provisions of services. Therefore, it could not be said that there
was any 'agreement' as envisaged in Section 3 entered into. According
to the Tribunal, Section 3(3)(b) of the Act applies to the competitors who
would be in the same line of commercial activity and by their agreement
tend to restrict the competition. No evidence to this effect was available
in the instant case. It was merely a protest of the Coordination Committee
D
voicing its grievance for the benefit of its members and even if such a
move on the part of the Coordination Committee was wrong and even if
its agitation was influenced by foul play in projecting that exhibiting dubbed
TV serial would affect their prospects of getting further work, that by
itself would not become a competition issue covered by the Act.
E 23. Challenging the aforesaid view of the Tribunal, Mr. Chandhiok,
learned senior advocate appearing for the CCI, referred to the various
provisions of the Act and also extensively read out from the exercise
undertaken by the DG and the majority view of the CCI. His submission
was that exercise undertaken by the DG and approved by the CCI in its
F majority decision was correct in law. He questioned the manner in which
'relevant market' has been assigned limited sphere as, according to him,
the matter related to film and television industry of the State of West
Bengal and the concerted action of the Coordination Committee was to
obviously effect the competitiveness in the entire film and television
industry of the State ofWest Bengal. He also read out various definitions
G from the Act, which we have already reproduced above. His submission
was that the definition of 'agreement' contained in Section 2(b) had a
much wider connotation and any such agreement which was anti-
competitive in nature between persons or association of persons was hit
by Section 3.
H
COMPETITION COMMISSION OF .INDIA v. C,0-0RDINATION 21
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

24. Learned counsel appearing for the Coordination Committee, A
on the other hand, heavily relied upon the impugned judgment and
submitted that the conclusion drawn therein was correct in law as the
Coordination Committee,·which was in the nature ofa trade union, and
not in the business of production, supply, distribution, storage, acquisition
or control of g?ods or provision of services, could not be covered within
B
the scope of Section 3 of the Act. He also submitted that the action on
the part of the Coordination Committee had nothing to do with the
competition and it was the fundamental right of the Coordination
Committee, as a trade union, to lodge legitimate protest. He submitted
that even if in this protest the Coordination Committee had exceeded the
limits, that may be an action actionable under any other law but would c
not fall within the domain of Competition Law.
25. We have given our due consideration to the respective
submissions and have minutely gone through the orders passed by various
authorities, glimpse whereof is already reflected above.
26. Two fundamental aspects which need determination are: D

(i) What is the 'relevant market' for the purposes of inquiry into
the impugned activity of the Coordination Committee? and
(ii) Whether the action and conduct of the Coordination Committee
is covered by the provisions of Section 3 of the Act? E
27. Before we discuss the aforesaid questions, it would be
necessary to clear the air on some of the fundamental aspects relating
to the Act.
28. The Competition Act of2002, as amended in 2007 and 2009,
deals with anti-trust issues, viz. regulation of anti-competitive agreements, F
abuse of dominant position and a combination or acquisition falling within
the provisions of the said Act. Since the majority view of the CCI also
accepted that the impugned activities of the Coordination Committee did
not amount to abuse of dominant position, and it treated the same as
anti-c·ompetitive having appreciable adverse effect on competition, our
G
discussion would be focused only on anti-competitive agreements.
Section 3 of the Act is the relevant section in this behalf. It is intended
to curb or prohibit certain agreements. Therefore, in the first instance, it
is to be found out that there existed an 'agreement' _which was entered
into by enterprise or association of enterprises or person or association
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22 SUPREME COURT REPORTS [2017] 5 S.C.R.

A of persons. Thereafter, it needs to be determined as to whether such an
agreement is anti-competitive agreement within the meaning of the Act.
Once it is found to be so, other provisions relating to the treatment that
needs to be given thereto get attracted.
29. While inquiring into any alleged contravention, whether by the
B Commission or by the DG, and determining whether any agreement has
an appreciable adverse effect on competition under Section 3, factors
which are to be taken into consideration are mentioned in sub-section
(3) of Section 19, which are as follows:
"19. Inquiry into certain agreements and dominant position
C ·of enterprise. -
xx xx xx
(3) The Commission shall, while determining whether an agreement
has an appreciable adverse effect on competition under section 3,
have due regard to all or any of the following factors, namely:-
D
(a) creation of barriers to new entrants in the market;
(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to consumers;
E
(e) improvements in production or distribution of goods or
provision of services;
(f) promotion of technical, scientific and economic development
by means of production or distribution of goods or provision of
F services.
xx xx xx"
30. The word 'market' used therein has reference to 'relevant
market'. As per sub-section (5) of Section 19, such relevant market can
be relevant geographic market or relevant product market. The factors
G which are to be kept in mind while determining the relevant geographic
market are stipulated in sub-section (6) of Section 19 and the factors
which need to be considered while determining the relevant product
market are prescribed in sub-section (7) of Section 19. These two sub-
sections read as under:
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 23
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

"(6) The Commission shall, while determining the "relevant A
geographic market', have due regard to all or any of the following
factors, namely:-
(a) regulatory trade barriers;
(b) local specification requirements;
B
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;
c
(g) consumer preferences;
(h) need for secure or regular supplies or rapid after-sales
services.
(7) The Commission shall, while determining the "relevant product
market", have due regard to all or any of the following factors, D
namely:-
(a) physical characteristics or end-use of goods;
(b) price of goods or service;
(c) consumer preferences; E
(d) exclusion of in-house production;
( e) existence of specialised producers;
(f) classification of industrial products."
It is for this reason, the first and foremost aspect that needs F
determination is: "What is the relevant market in which competition is
effected?"
31. Market definition is a tool to identify and define the boundaries
of competition between firms. It serves to establish the framework within
. which competition policy is applied by the Commission. The main purpose G
of market definition is to identify in a systematic way the competitive
constraints that the undertakings involved face. The objective of defining
a market in both its product and geographic dimension is to identify those
actual competitors of the undertakings involved that are capable of
H
24 SUPREME COURT REPORTS [2017] 5 S.C.R.

A constraining those undertakings behaviour and of preventing them from
behaving independently of effective competitive pressure.
Therefore, the purpose of defini~g the 'relevant market' is to
assess with identifying in a systematic way the competitive constraints
that undertakings face when operating in a market. This is the case in
B particular for determining if undertakings are competitors or potential
competitors and when assessing the anti-competitive effects of conduct
in a market. The concept of relevant market implies that there could be
an effective competition between the products which form part ofit and
this presupposes that there is a sufficient degree of interchangeability
between all the products forming part of the same market insofar as
c specific use of such product is concerned.
32. While identifying the relevant market in a given case, the CCI
is required to look at evidence that is available and relevant to the case
at hand. The CCI has to define the boundaries of the relevant market as
pr.ecisely as required by the circumstances of the case. Where
D appropriate, it may conduct its competition assessment on the basis of
alternative market definitions. Where it is apparent that the investigated
conduct is unlikely to have an adverse effect on competition or that the
undertaking under investigation does not possess a substantial degree of
market power on the basis of any reasonable market definition, the
E que~tion of the most appropriate market definition can even be left open.

33. The relevant market within which to analyse market power or
assess a given competition concern has both a product dimension and a
geographic dimension. In this context, the relevant product market
comprises all those products which are considered interchangeable or
F substitutable by buyers because of the products' characteristics, prices. -
and intended use. The relevant geographic market comprises all those
regions or areas where buyers would be able or willing to find substitutes
for the products in question. The relevant product and geographic market
for a particular product may vary depending on the nature of the buyers
and suppliers concerned by the conduct under examination and their
G position in the supply chain. For example, ifthe questionable conduct is
concerned at the wholesale level, the relevant market has to be defined
from the perspective of the wholesale buyers. On the other hand, ifthe
concern is to examine the conduct at the retail level, the relevant market
needs to be defined from the perspective of buyers of retail products.
H
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 25
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

34. It is to be borne in mind that the process of defining the relevant A
market starts by looking into a relatively narrow potential product market
definition. The potential product market is then expanded to include
those substituted products to which buyers would tum in the face of a
price increase above the competitive price. Likewise, the relevant
geographic market can be defined using the same general process as B
that used to define the relevant product market.
35. Bearing in mind the.aforesaid considerations, we concur with
the conclusion of the Tribunal. It is the notion of 'powerover the market'
which is the key to analysing many competitive issues. Therefore, it
becomes necessary to understand what is meant by the relevant market.
This concept is an economic one. c
36. In the instant case, the geographic market is the State ofWest
Bengal and to this extent there is no quarrel inasmuch as activities of the
Coordination Committee were limited to the said State. The dispute is
as to whether relevant market would cover 'broadcast of TV serial' or
it would take within its sweep 'film and TV industry of the State ofWest D
Bengal'. TV serial in question was produced in Hindi. It was thereafter
dubbed in Bangla. When the two channels, namely CTVN+ and Channel
10, decided to broadcast this TV serial in dubbed form, i.e. in Bangla
lar~guage, this move was opposed by the Coordination Committee and
EIMPA. The Tribunal has upheld the minority view of CCI in saying E
that nature of the information does not show anything which could even
be distinctly connected with the whole 'film and television industry in the
State of West Bengal'. The information is only against showing the
dubbed serial on the television and it has no relation whatsoever with
production, distribution, etc. ofany film or any other material on the TV
channels. F
We feel that this is a myopic view taken by the Tribunal which ·
ignores many other vital aspects of this case, most important being the
width of the effect of the aforesaid cause on which the agitation was led
by the Coordination Committee. The effect is not limited to the telecast
or broadcast of the television serial. No doubt, the Coordination G
Committee was against the 'broadcast of the television serial
'Mahabharat' on the aforesaid two channels, in the dubbed form.
However, even as per the agitators, the said broadcast was going to
adversely affect the TV and Film Industry ofWest Bengal and the alleged ·
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26 SUPREME COURT REPORTS [2017] 5 S.C.R.

A purport behind the threats was to save the entire TV and Film Industry.
The Coordination Committee itself mentioned so in its letter dated February
18, 2012 as under:
"We came to know that you are publicizing in your channel that
Bengali dubbed version of "Mahabharat" will be telecasted in
B your channel, shortly this is for your kind information that the
whole TV and Film Industry had fought back ruthlessly
against telecast of Bengali dubbed versions of Hindi serials
in DD-1 slot in 1997 and since that agitation DD National Network
has stopped telecasting any Bengali dubbed version of Hindi
programs. At the same time, it is to be noted that the film industry
C was also successful iri debarring the release of Bengali dubbed
version of Hindi Movie "Luv Kush" produced by Mr. Dilip
Kankaria of Deluxe Films in the year 1997.
We have done this to stop withering away of the prestigious
and internationally acclaimed Bengali Film and Television
D Industry, thereby creating job for artistes, workers and
allied people associated with this industry.
Hence we would request you to stop telecast of dubbed Bengali
version of"Mahabharat" in your channel.
(emphasis added)"
E 37. The relevant market was, therefore, not limited to the
broadcasting of the channel but entire film and television industry of
West Bengal. Whether it was the misgiving of the Coordination
Committee that telecast of dubbed version of' Mahabharat' is going to
affect Bengali film and television industry or it was a genuine concern, is
not the relevant factor while defining the 'relevant market''. It is the
F sweep of the aforesaid action which is to be considered. Even in the
perception of the Coordination Committee, telecast of Bengali dubbed ..
version of 'Mahabharat' was going to affect the whole Television and
Film Industry. In view thereof, it was hardly a matter of debate as to
what would be the relevant market.
G 1
It may be observed that majority view of CCI has rejected the plea of the Coordination
Committee as well as EIMPA that allowing the dubbed film will take away jobs from
Bengali artistes according to CCI: "If the Bengali films and TV serials are preferred over
the non-Bengali content as a result of competitive process, ultimately the Bengali
artists will get benefited. The protectionist policies which are being followed will not
come to the aid of Bengali artistes, if on content they cannot compete. Such policies are
H anti-thesis of the principles of free market."
COMPETITION COMMISSION OF INDIA v. co:oRDINATION '27
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.J

38. With this we advert to the central issue that bogs the parties, A
namely, whether the activities in which the Coordination Committee
indulged in can be treated as 'agreement' for the purpose of Section 3 of
the Act. ' '
39. At the outset, it may be noticed that the entities which are
roped in, whose agreements can be offending, are enterprise or association B
of enterprises or person or association ofpersons or where the agreement
' is between any person and an enterprise. The expression 'enterprise'
may refer to any entity, regardless of its legal status or the way in which,
it was financed and, therefore, it may include natural as well as legal
persons. This statement gets further strengthened as the agreement
entered into by a 'person' or 'association of persons' are also included c
and when it is read with the definition of'person' mentioned in Section
2(1) of the Act. Likewise, definition of'agreement' under Section 2(b) is
also very widely worded. Not only it is inclusive, as the word 'includes'
therein suggests that it is not exhaustive, but also any arrangement or
understanding or even action in concert is termed as 'agreement'. It is D
irrespective of the fact that such arrangement or understanding is formal
or informal and the same may be oral as well and it is not necessary that
the same is reduced in writing or whether it is intended to be enforceable
by legal proceedings or not. Therefore, the Coordination Committee would
be covered by the definition of 'person'. However, what is important is
that such an 'agreement', referred to in Section 3 of the Act has to E
relate to an economic activity which is central to the concept of
Competition Law. Economic activity, as is generally understood, refers
to any activity consisting of offering products in a'. market regardless ,of
whether the activities are intended to earn a profit. Some examples may .
•11''
be given which would not be covered by Section 3(3) of the Act. An F
individual acting as a final consumer is not an enterprise or a person
envisaged, as he is not carrying on an economic activity. We may also
mention that the European Union Competition Law recognises that an
entity carrying on an activity that has an exclusively social function and
is based on the principle of solidarity is not likely to be treated as carrying
on an economic activity so as to qualify the expressions used in Section 3. G
The reason is obvious. The 'agreement' or 'concerted practice' is the
means through which enterprise or association of enterprises or person
or association of persons restrict competition. These concepts translate
the objective of Competition Law to have economic operators determine
their commercial policy independently. Competition Law is aimed at H
28 SUPREME. COURT REPORTS [2017] 5 S.C.R.

A frowning upon the activities of those undertakings (whether natural
persons or legal entities) who, while undertaking their economic activities,
indulge in practices which effect the competition adversely or take .
advantage of their dominant position.
40. The notion of enterprise is a relative one. The functional
B approach and the corresponding focus on the activity, rather than the
form of the entity may result in an entity being considered an enterprise
when it engages in some activities, but not when it engages in others.
The relativity of the concept is most evident when considering activities
carried out by non-profit-making orgapisations or public bodies. These
entities may at times operate in their charitable or public capacity but
C .may be considered as undertakings when they engage in commercial
activities. The economic nature of an activity is often apparent when
the entities offer goods and services in the marketplace and when the
activity could, potentially, yield profits. Thus, any entity, regardless of its
form, constitutes an 'enterprise' within the meaning of Section 3 of the
D Act when it engages in economic activity. An economic activity includes
any activity, whether or noi profit making, that involves economic trade.
41. In the instant case, admittedly the Coordination Committee,
which may be a 'person' as per the definition contained in Section 2(1) of
the Act, is not undertaking any economic activity by itself. Therefore, if
we were to look into the 'agreement' of such a 'person', i.e. Coordination
E
Committee, it may not fall under Section 3( I) of the Act as it is not in
respect of any production, supply, distribution, storage, acquisition or
control of goods or provision of services. The Coordination Committee,
which is a trade union acting by itself, and without conjunction with any
other, would not be treated as an 'enterprise' or the kind of'association
F of persons' described in Section 3. Atrade union acts as on behalfofits
members in collective bargaining and is not engaged in economic activity.
In such circumstances, had the Coordination Committee acted only as
trade unionists, things would have been different. Then, perhaps, the
view taken by the Tribunal could be sustained. However, what is lost in
G translation by the Tribunal i.e. in applying the aforesaid principle of the
activity of the trade union, is a very pertinent and significant fact, which
was taken note of by the DG as well as the CCI in its majority opinion.
It is this: The Coordination Committee (or for that matter even EIMPA)
are, in fact, association of enterprises (constituent members) and these
members are engaged in production, distribution and exhibition of films.
H EIMPA is an association of film producers, distributors and exhibitors,
COMPETITION COMMISSION OF INDIA v. CO-ORDINATION 29
COMMITTEE OF ARTISTS AND TECHNICIANS [A. K. SIKRI, J.]

operating mainly in the State ofWest Bengal. Likewise, the Coordination A
Committee is the joint platform of Federation of Senior Technician and
Workers of Eastern India and West Bengal Motion Pictures Artistes
Forum. Both EIMPA as well as the Coordination Committee acted in a
concerted and coordinated manner. They joined together in giving call
of boycott of competing members i.e. the informant in the instant case
B
and, therefore, matter cannot be viewed narrowly by treating Coordination
Committee as a trade union, ignoring the fact that it is backing the cause
of those which are 'enterprises'. The constituent members of these bodies
take decision relating to production or distribution or exhibition on behalf
of the members who are engaged in the similar or identical business of
production, distribution or exhibition of the films. Decision of these two C
bodies reflected collective intent of the members. When some of the
members are found to be in the production, distribution or exhibition line,
the matter could not have been brushed aside by merely giving it a cloak
of trade unionism. For this reason, the argument predicated on the right
of trade union under Article 19, as professed by the Coordination
D
Committee, is also not available.
42. When the lenses of the reasoning process are duly adjusted
with their focus on the pictµre, the picture gets sharpened and haziness
disappears. One can clearly view that prohibition on the exhibition of
dubbed serial on the television prevented the competing parties in pursuing
their commercial activities. Thus, the CCI rightly observed that the E
protection in the name of the language goes against the interest of the
competition, depriving the consumers of exercising their choice. Acts of
'Coordination Committee definitely caused harm to consumers by depriving
them from watching the dubbed serial on TV channel; albeit for a brief
period. It also hindered competition in the market by barring dubbed TV F
serials from exhibition on TV channels in the State of West Bengal. It
an:iounted to creating barriers _to the entry of new content in the said
dubbed TV serial. Such act and .conduct also limited the supply of serial
dubbed in Bangla, which amounts to violation of the provision of Section
3(3)(b) of the Act.
G
43. Resultantly, the instant appeal of CCI stands allowecj.
No costs.

Ankit Gyan Appeal allowed.