Competition Law

[By Aditya Bhargava] The Author is a student of National Law School of India University, Bengaluru Introduction The Competition Act, 2002 (“the Act”) was enacted to ensure fair competition by prohibiting trade practices that have an appreciable adverse effect on competition (“AAEC”) in India. For this purpose, the Competition Commission of India (CCI or “the Commission”) was established and tasked with the duty to: (i) eliminate practices having an AAEC, (ii) promote and sustain competition, (iii) protect the interests of consumers, and  (iv) ensure freedom of trade carried on by market participants, in India.[1] The investigative wing of the CCI, i.e., the Director General (“DG”), assists it in investigations into anti-competitive practices of enterprise(s). Under Section 19 of the Act, any person aggrieved by the anti-competitive conduct of an enterprise can provide information to the CCI, requesting an investigation. Based on the information, if the Commission is of the prima facie opinion that there exists a potential Section 3 or Section 4 violation, it is required to direct the DG to investigate the matter through a Section 26(1) order. As per the Supreme Court’s judgment in CCI v. SAIL, this order acts as the “Jurisdictional Gateway” for the DG to proceed with the investigation. However, the precise scope of the DG’s investigation remains far from clear, considering conflicting jurisprudence from various courts and the latest 2023 amendments to the Act. The latest question is whether, relying on Excel Corp, the DG can unilaterally extend the inquiry to unnamed parties or reclassify Third Parties as Opposite or Contesting Parties without explicit permission from the CCI and in the absence of a mandatory Section 26(1) order. Currently sub-judice before several High Courts is the question of whether this reclassification is merely procedural or whether it also violates Third Parties’ substantive rights under the Act.  I argue that it is the latter, and it must not be preserved under the guise of procedural efficiency, as suggested by the existing literature. This article contends that the DG’s investigation must be strictly confined to the scope of the Commission’s prima facie order. The legislative history of the Competition Act, 2002, reveals a deliberate departure from the preceding MRTP Act, 1969, by stripping the DG of suo motu powers. This established a two-tiered structure: the CCI as a quasi-judicial body with exclusive discretionary authority, and the DG as its purely investigative arm. This statutory separation of powers has been decisively affirmed by the judiciary, particularly in the recent Bombay High Court’s judgment in Asian Paints Ltd. v. Competition Commission of India, which pointed towards the CCI’s supreme role in forming a prima facie opinion under Section 26(1). Consequently, I argue that the DG cannot unilaterally implead new parties or reclassify third parties as opposite parties, as this would constitute jurisdictional overreach and a back-door attempt to reclaim suo motu powers. Therefore, should an investigation reveal the culpability of a new enterprise, the only legally sound procedure is for the DG to refer the matter back to the Commission and seek explicit permission from the Commission. Only the CCI has the authority to apply its mind and issue a fresh or supplemental Section 26(1) order to expand the inquiry. Furthermore, any party subsequently impleaded must be formally notified of its status as an “Opposite Party” and afforded all attendant procedural and substantive rights. The Statutory Architecture of Sections 26 and 41 read with the General Regulations Section 26 is a carefully crafted provision that must be read alongside Sections 19 and 41. Section 19 empowers the CCI to form a “prima facie opinion” on the basis of information, a reference, or its own knowledge. Once the Commission reaches that opinion, it shall and only then issue an order under Section 26(1) directing the DG “to cause an investigation into the matter”. The phrase “the matter” is significant: textually, it refers to the specific allegations, theories of harm, and named enterprises that gave rise to the Commission’s prima facie satisfaction. Consequently, the Act does not authorise the DG to amend, expand, or substitute “the matter”; it merely authorises the DG to investigate exactly what the Commission has delineated in its Section 26(1) order. Notably, under the Monopolies & Restrictive Trade Practices Act, 1969 (the Competition Act’s predecessor), the DG possessed suo motu powers, powers explicitly removed by the Raghavan Committee in recommending the Competition Act 2002. This legislative history clarifies the intent: the DG’s authority is strictly derivative, and the DG, being an independent office, must operate at an ‘arm’s length’ from the CCI. A clear reading of Section 41, which provides for the powers of the DG, supports this. The Section is triggered only “when so directed by the Commission”. Its subsection (4) distinguishes between (a) “officers, employees and agents of the party being investigated” and (b) “any other person,” and obliges the DG to secure the Commission’s prior approval before examining the latter on oath. The dichotomy created by the subsection presupposes clarity, at every stage, as to who is the party under investigation and who is merely a third‑party information holder. The reason this differentiation is crucial is due to the difference in rights afforded to differently designated parties under the Act.  In particular, classification as an “opposite party” triggers rights such as notice, inspection of records, and participation in proceedings, alongside exposure to penalties and remedial orders, whereas a third party does not enjoy these rights nor bear such liabilities. The General Regulations, in force since 2009 and amended in 2024, reinforce this dichotomy by separating Regulation 24 (joinder of necessary parties) from Regulation 25 (participation of interested persons). Each of these is predicated on an application and a reasoned order of the Commission. Neither empowers the DG to alter party status proprio motu. The Commission’s power under Regulation 20 to “call for information from any person” is investigatory, not adjudicatory. When read alongside Section 36(1), which requires the Commission to be guided by natural justice, the text supports a clear proposition: the identity of

[By Saksham Agrawal] The author is a student of National Law School of India University, Bengaluru. Introduction The CCI’s 2025 Market Study on Artificial Intelligence and Competition (‘2025 Market Study’) marks a decisive moment in India’s evolving engagement with digital markets. For the first time, it confronts not merely the deployment of artificial intelligence (‘AI’) as a business tool but its emergence as a participant in market coordination itself. Pricing algorithms, which were previously appreciated      for their efficiency and quick respons     es     , now act on their own as autonomous economic agents that can create results similar to, and sometimes better than, human collusion. The implications are profound because when coordination no longer requires communication, traditional antitrust concepts begin to fray. The central question that follows is both conceptual and institutional. Can a legal framework built upon human intent, consensus, and “meeting of minds” extend to a world where coordination is computational? This article examines how the 2025 Market Study reframes this problem within India’s competition law regime. It argues that while the study expands regulatory consciousness of algorithmic risks and proposes mechanisms for internal accountability, the Competition Act, in its present form, remains constrained by doctrines that presuppose human agency. The resulting gap is not of enforcement capacity but a gap between how markets now behave and how the law still thinks. However, a purposive interpretation of its wide wording to increase accountability among enterprises deploying pricing algorithms, along with building capacity through technical literacy, may provide solutions to the same. Background Algorithmic collusion refers to the coordination of prices or market conduct achieved through artificial intelligence systems, whether by deliberate human programming or through autonomous machine learning. What distinguishes these mechanisms from conventional cartels is not the outcome they produce, but the process by which they reach it. The Study refers to 4 identified operational forms. These are monitoring algorithms, parallel algorithms, signalling algorithms, and self-learning algorithms. Monitoring algorithms serve as instruments of execution or surveillance, implementing or monitoring agreements that have been consciously formed by human actors. Parallel algorithms or Hub-and-Spoke algorithms involve competitors relying on a common pricing algorithm or platform, enabling indirect coordination of prices through a shared technological intermediary. Signalling algorithms capture situations where firms independently deploy reactive algorithms that adjust to market conditions in similar ways, thereby increasing the likelihood of tacit alignment without explicit agreement. Finally, self-learning algorithms autonomously optimise prices through iterative learning, giving rise to collusive outcomes that occur without human intent, awareness, or participation. The first three categories fit comfortably within the conceptual apparatus of antitrust enforcement: they depend, at some level, on human design or tacit consensus. The fourth does not. It involves coordination without communication. The resulting difficulty is not merely evidentiary but ontological. Competition law has always treated collusion as an act of will, a convergence of minds expressed through behaviour. But when algorithms learn to align independently, what remains of collusion once its human authors disappear? The Competition Act’s framework      Section 3 of the Competition Act prohibits agreements, decisions, and “actions in concert” that cause or are likely to cause an appreciable adverse effect on competition. Its open-textured phrasing reflects deliberate legislative breadth where it captures conduct that may fall short of an explicit contract but nonetheless reveals a common economic design. This elasticity offers interpretive room to address algorithmic coordination. Where enterprises knowingly deploy similar pricing algorithms, or adopt machine-learning systems calibrated to react to market data in comparable ways, the resulting interdependence may constitute an action in concert even in the absence of explicit communication. In theory, then, the statutory language is capacious enough to include technologically mediated coordination within its fold. Yet the structure of Section 3 remains rooted in an anthropocentric model of collusion. It assumes actors capable of intention, decision, and mutual awareness, all attributes that belong to legal persons, not autonomous systems. Self-learning algorithms fracture this premise. They act without instruction, evolve without oversight, and generate patterns of market alignment that no individual firm may have foreseen or even understood.  The law presupposes agency as a precondition for culpability, but in algorithmic markets, agency is diffuse, distributed between code, design, and data. The result is a conceptual disjunction between how the law identifies responsibility and how coordination now occurs.  The 2025 Market Study implies that accountability should remain with the enterprise deploying the system, but the Act provides no clear doctrinal bridge between control and outcome once human intervention ceases. If liability follows control, firms could evade responsibility by distancing themselves from their algorithms’ autonomy. If it follows effect, firms risk sanctions for conduct they neither intended nor could reasonably predict. The absence of an intermediate principle that ties responsibility to foreseeability and design risks creating a zone of regulatory paralysis precisely where control has been surrendered to machines. The Market Study’s Approach The 2025 Market Study acknowledges that algorithmic interaction can generate and sustain supra-competitive pricing even in markets that are neither concentrated nor consciously collusive. What distinguishes such outcomes is not conspiracy but code per se and the capacity of algorithms to observe, infer, and adjust with a speed and precision far beyond human coordination. The study identifies three structural attributes that make algorithmic collusion uniquely resilient. First is its speed, which compresses the interval between detection and retaliation; second, opacity, which obscures causation and intent; and third, interdependence, which ensures that one system’s decision becomes another’s signal. Together, they      create a feedback loop that can stabilise collusive equilibria without any act of human agreement. In response, the study proposes a shift from reactive enforcement to preventive compliance. It recommends that enterprises conduct algorithmic self-audits consisting of systematic reviews of how their AI tools function in practice, documenting design parameters, data inputs, and market outcomes. Firms are encouraged to test algorithms periodically to detect patterns of unintended coordination and to maintain internal documentation explaining how pricing decisions are reached. A second strand of reform concerns hub accountability. Digital platforms and intermediaries that deploy common algorithms

[By Priyal Jain and Aditi Saxena] The authors are students of Rajiv Gandhi National University of Law, Punjab INTRODUCTION Recently, the Hon’ble Supreme Court, in an appeal filed by CCI challenging the COMPAT’s decision, has exonerated Schott Glass India Pvt Ltd. (hereinafter, “Schott Glass”), the principal domestic manufacturer of neutral USP-I borosilicate glass tubing, from the allegation of abuse of dominant position. The ruling has led to an important development in the Indian Competition Law jurisprudence with respect to abuse of dominance under Section 4 of the Competition Act, 2002 (hereinafter, “Act”). It has made an important shift from form to effect-based approach in the assessment of abuse of dominance, a development that has long taken place in European jurisprudence. This blog delves into the nuances that the Supreme Court decisively reaffirmed with respect to the centrality of effects-based analysis in Indian abuse-of-dominance jurisprudence,underscoring that antitrust intervention under the Act must be premised on rigorous economic evidence of actual or likely competitive harm. Additionally, the authors have delineated the effect-based approach in its more evolved form in the EU and the key takeaways that can lead to a more dynamic approach to abuse of dominance in Indian jurisdiction. APPROACHING ABUSE: ANALYSING THE SUPREME COURT’S APPLICATION OF THE EFFECT BASED STANDARD While the judgment focused on a variety of aspects like volume-based rebates, functional rebates, margin squeeze, tying or bundling, procedural lapse, this analysis primarily focuses on the assessment of all the abovementioned aspects through the effect-based approach undertaken by the Supreme Court. While assessing the rebates provided by Schott Glass, the Hon’ble Court, drawing from the EU’s Article 102 (c) TFEU and British Airways case, examined the technical realities of borosilicate production and commercial justification of the rebates along with the evidence alluding to no foreclosure in the market, rather, an increase in production and imports from the competitors. Instead of relying on a formalistic approach, the Supreme Court scrutinised the margin squeeze allegation by applying the TeliaSonera test of an efficient competitor (“AEC”) and also observed the positive EBITDA, absence of foreclosure effect in the market before exonerating Schott Glass from the said allegation. The court examined the tying accusation by employing the conditions of the Microsoft Corp. case. It noted that although converters were not coerced to buy the two products together, there existed an objective justification in the form of manufacturing efficiency to offer a multi-product volume discount. While the NCLAT in Google LLC v. Competition Commission of India had deployed the effect-based test in assessing the abuse of dominance, the Supreme Court in the instant case has established the essentiality of the same in an inquiry under Section 4 of the Act. However, it is pertinent to note that while the Hon’ble Court has relied on actual evidence, inter alia, sales data and import data, it failed to adequately address how to assess the likely effects of any conduct. The court refrained from delineating a clear framework or any structured guidance for evaluating the potential anticompetitive effects of such conduct in the market, a significant omission considering that abuse of dominance requires a forward-looking economic assessment and not mere reliance on evidence based on historical data. A further intriguing detail of the judgment is that while the court holds that abuse of dominance is a practice that results in, or is likely to result in, an appreciable adverse effect on competition (“AAEC”), it omits to clarify the fact that section 4 does not explicitly mention AAEC. Although it is well within the jurisdiction of the Supreme Court to bring a new development in law, its failure to acknowledge the potential oversight in law, if one is indeed perceived, is concerning. In a country where the competition law is still in its very formative and evolving phase, the rulings of the Supreme Court hold huge significance in shaping the law. However, the amount of clarity brought by this judgment is still in the fog. THE EU’S EFFECTS-BASED TRAJECTORY: A JURISPRUDENTIAL OVERVIEW Since the adoption of the 2008 Guidance Paper on exclusionary abuse of dominance, European case law has developed and deflected away from its prior formalistic approach and the per se prohibitions, whereby the legal nature or form of a conduct seemed to matter more than its effects, to a more economically grounded effects-based approach. For instance, in the Hoffman-La Roche judgment, the CJEU ruled that exclusive dealing and conditional rebates were per se illegal. In other words, whether these conducts produced any anticompetitive actual or potential effects and whether such effects were potentially compensated by efficiencies it created was immaterial. The Guidance Paper stated that the European Commission (hereinafter “EC”) would only intervene against exclusionary conduct by dominant firms if, on the basis of cogent and probative evidence, the allegedly abusive conduct is likely to lead to foreclosure. Since the adoption of the Guidance Paper, economic analysis has played a greater role in Article 102 TFEU cases, as this approach takes into account the conduct of the entity in line with analysing the market dynamics and the mainstream economic reasoning. For instance, in the case of Intel, the Grand Chamber of the Court of Justice indicated that in order to establish the capacity of exclusivity rebates to restrict competition, the Commission must analyse a set of relevant factors, with regard to the specific circumstances of each case. In a similar vein,  in Google Shopping, the General Court broached that, to find an abuse under Article 102 TFEU, the Commission has to take into account “all the relevant circumstances”, including the arguments made by the dominant undertaking disputing the conduct’s capability to have anti-competitive effects. Further, as part of the 2023 amendment to the Guidance Paper, the EC highlighted the effects-based approach to abuse of dominance centred around the standard of “potential effects”, which requires more than hypothetical effects, also excluding the need to prove the existence of actual effects. In line with the principle that EC does not want the implementation of this approach to

[By Vashmath Potluri & Shubhranshu] The authors are students of NALSAR University of Law, Hyderabad.   Introduction In August 2025, the Competition Commission of India (“CCI”) launched a consolidated investigation into Google’s conduct in the online display advertising market, acting on complaints by the Alliance of Digital India Foundation (“ADIF”). At issue is Google’s vertical integration across the advertising technology (“Adtech”) stack: it operates the Google Ad Manager (“GAM”), the leading ad exchange (“AdX”), and Display & Video 360 (“DV360”). By simultaneously controlling the infrastructure that runs auctions while also bidding in them, Google occupies a conflicted position that facilitates preferential treatment of its own services. The stakes here are considerable because India’s digital advertising sector has crossed the 1 lakh crore mark with digital media accounting for approximately 46 percent of total ad spend. Within this landscape, Google’s Indian advertising operations reported gross revenues exceeding 31,000 crore in FY 2023–24. Rather than leveraging overt price controls or contractual restrictions, Google’s structural foreclosure stems from engineered defaults, informational gaps and meticulously designed auction mechanics that skew outcomes in its favor. This paper proceeds in two parts. First, it argues that informational asymmetry across the three stages of auction constitutes abuse of dominance under Sections 4(2)(c) & (e) of the Competition Act, 2002 (“Act”). Second, it proposes a three pronged regulatory framework drawing inspiration from European Union Digital Markets Act (“DMA”) and Australian Competition and Consumer Commission (“ACCC”). Allegations Framed as Auction-Stage Foreclosure The complaints before the CCI do not view Google’s conduct as isolated episodes of misconduct but as part of a continuous foreclosure strategy spanning the entire digital advertising stack. This stack is organised around three flagship Google services that occupy each critical layer of the chain. At the publisher end, GAM functions as the ad server through which publishers manage and sell their inventory. AdX operates as the marketplace where that inventory is auctioned in real time to potential buyers. On the advertiser side, DV360 serves as Google’s demand-side platform (“DSP”), enabling advertisers and agencies to place bids across exchanges. Functionally, therefore, GAM connects publishers, DV360 connects advertisers, and AdX sits in between as the auction mechanism. According to ADIF, Google’s integration across these layers allows it to structure auctions in ways that systematically privilege its own services. The tying of GAM to AdX steers publishers using Google’s ad server toward Google’s exchange as the default channel for monetisation. On the demand side, YouTube inventory is made available exclusively through DV360, thereby excluding rival DSPs from premium video placements and further entrenching advertiser reliance on Google’s ecosystem. Auction design features such as “dynamic allocation” and “last look” strengthen this advantage by giving Google’s buying tools preferential opportunities to outbid rivals. To complete the cycle, Google grants its own services access to more detailed reporting data than it makes available to competing intermediaries, thereby reinforcing an informational edge. The following sections set out how these practices operate across the life cycle of an ad auction. Pre-Auction Foreclosure: Tying and Inventory Lock-In DoubleClick for Publishers (“DFP”), now merged into GAM, was Google’s publisher ad server. A publisher ad server helps website and app owners decide which ads appear on their platforms. It receives requests for ad space, selects which advertisers or exchanges can bid, and directs the impressions into an auction. For publishers using DFP/GAM, routing ad requests through AdX became the default, limiting competing exchanges from accessing the full set of impressions. This meant that foreclosure began even before any bids were placed, restricting rivals at the very first stage where bid requests were formed and giving Google an advantage throughout the adtech ecosystem. A similar foreclosure effect occurs with YouTube, India’s largest video advertising platform. Advertisers can only access YouTube inventory through DV360 platform. By requiring the use of DV360, Google effectively prevents rival DSP’s from competing for this critical ad inventory. As a result, both publishers and advertisers are channeled into Google’s ecosystem even before the auction begins, reducing participation opportunities for independent intermediaries and consolidating Google’s control over the digital advertising market. Auction-Stage Foreclosure: Manipulated Auction Mechanics Once bids are received, foreclosure shifts from access restrictions to the mechanics of the auction itself. Because of its structural integration, Google is able to set the rules governing how bids are processed allowing its exchange to operate under terms unavailable to rivals. ADIF highlights practices such as “dynamic allocation” and “last look” as evidence of this imbalance. Under dynamic allocation, AdX is allegedly permitted to adjust its bid in real time against the highest competing offer, ensuring victory without overpayment. The last look feature further strengthens this advantage granting AdX the option to see the highest rival bid before deciding whether to match or exceed it. On the other hand, rivals operate in informational asymmetry compelled to bid without visibility into the competition. The imbalance is reinforced by Google’s refusal to fully support “header bidding”, a publisher-led innovation designed to enable fairer simultaneous auctions across multiple exchanges. Instead, competing exchanges are relegated to sequential or delayed pathways that are inherently less competitive due to latency and technical disadvantages. At this stage, Google is not merely another participant in the auction but also the referee, able to tilt the rules in ways no independent platform can mirror. Post-Auction Foreclosure: Asymmetry of Disclosure The foreclosure does not end with the conclusion of the auction but extends to the reporting and feedback stage where transparency is essential for advertisers and DSP’s to refine their strategies. Google’s DV360 receives highly granular near real-time data including log-level reporting that allows advertisers to optimise future bids with precision. Rival DSPs, however, are relegated to aggregate or delayed reports stripped of critical identifiers. This asymmetry of disclosure compounds the disadvantages faced by non-Google platforms. Without access to detailed feedback, rivals cannot recalibrate effectively, which leads to systematically weaker performance in subsequent auctions. Publishers observing this disparity are nudged to rely increasingly on Google’s demand further entrenching its dominance. Over time, the presence of independent

[By Samyak Deshpande and Vedika Kulkarni] The authors are students of Maharashtra National Law University Mumbai   Introduction Recently, the Hon’ble Supreme Court of India (SC), in  CCI v Schott Glass India, upheld the decision of the Competition Appellate Tribunal (COMPAT), dismissing the appeal filed by the Competition Commission of India (CCI). The Court held that the Director General’s (DG) report was lacking in evidentiary value. To be specific, it was the denial of cross-examination to the affected parties under Section 36 of the Competition Act, 2002 (the Act), a significant procedural lapse putting into question the DG’s entire findings. This shows how such procedural lapses can affect CCI’s decisions’ validity, urging an analysis of the procedure for Indian competition law enforcement. In 2015, the COMPAT had strongly opined that “the time has come for the Commission to lay down guidelines for conducting the investigation/inquiry in consonance with the rules of natural justice.” This came in the Builders Association of India v. Cement Manufacturers’ Association and Others, where the Chairperson of the CCI signed the order without physically attending hearings. The remark pushed for transparency and consistency in the procedure. Yet, nearly a decade later, CCI has issued no formal procedural rules or regulations in this regard. This article highlights the procedural failures of CCI through such cases and analyses the impact of procedural lapses and inconsistent adjudications on businesses. Further it argues that there is an urgent need to implement an enforceable mechanism for procedural fairness within the framework of CCI. The article first outlines the due process requirements under Indian competition law and their role in ensuring fairness. It then analyses key procedural deficiencies, including denial of cross-examination, reliance on incomplete evidence, and delays in adjudication. Thereafter, it subsequently assesses the financial and reputational impact of such lapses on businesses and investor confidence. The discussion concludes by examining international best practices and recommendations, and proposing reforms to embed enforceable due process safeguards within CCI’s framework. Understanding the Due Process Under the CCI (General) Regulations, 2009 (Regulations), the investigation process begins when the CCI forms a prima facie opinion under Regulation 16 of a possible contravention and directs the DG under Regulation 18 to investigate, who then collects evidence and prepares a report for the CCI. Upon receipt of the DG’s report, the CCI may under Regulation 20 invite objections or suggestions from the concerned parties and, if deemed necessary, may direct further investigation. Thereafter, the CCI considers all submissions and evidence on record before passing a final order. The parties are generally afforded an opportunity to be heard in accordance with the procedure established by law. This is the general process followed by CCI. Due process, on the other hand, is the backbone of fair law enforcement, requiring the state to respect principles of natural justice. It goes beyond mere rule-following to ensure that the procedure itself is fair and just. With this foundation in mind, it becomes important to explore how lapses in procedural standards undermine fairness and lead to significant financial and operational consequences for businesses. The Need for Due Process? 1.Lapses in Procedural Standards Despite nominal procedural safeguards under the Act and the Regulations, the CCI’s investigative process suffers from serious procedural flaws that seriously undermine fairness and due process. For example, Regulation 41 allows evidence from informants or 3rd parties to be recorded without the enterprise’s presence, causing concerns of bias. Further, the DG is vested with discretionary authority to permit or deny cross examination of witnesses. When there is no mandatory right to cross-examine, it becomes harder to test the veracity of evidence and ensure a fair trial. In the recent Schott Glass case, the SC noted that despite a clear request for cross-examination, the CCI refused it on the technical ground that no “separate application” had been filed. It made no attempt to assess whether cross-examination was necessary or if its denial would cause prejudice. It was evident that the request was rejected on procedural formality rather than substantive fairness. The Court referred to several precedents that contradicted the CCI’s approach. In Raymond Woollen Mills Ltd. v. Director General (Investigation and Registration) and State of Kerala v. K.T. Shaduli Grocery Dealer, the courts upheld the right to cross-examination as a fundamental aspect of fair procedure. Similarly, in Andaman Timber Industries v. Commissioner of Central Excise, Kolkata, the SC held that denying cross-examination undermined the entire proceeding and vitiated the decision. The Delhi High Court, in Cadila Healthcare Ltd., reinforced this view by holding that when findings rely substantially on oral statements, refusal to permit cross-examination invalidates the decision. It emphasized that discretion to allow or deny cross-examination must be exercised judicially, as was followed by the Schott Glass ruling. Also, the procedural lapses are not limited to just cross-examination but extend beyond the broader rules of fairness and principles of natural justice. There are plenty of matters where the appellate stage revealed such various procedural lapses. To highlight a few, in Google v CCI, the SC held that non-disclosure of key documents violated due process. In Balrampur Chini Mills Ltd. v. CCI, the CCI’s order was overturned primarily due to violations of the principles of natural justice where only three members signed and pronounced the final order despite six members having heard the matter. Further, the parties were not provided an opportunity to be heard after receiving the Supplementary Investigation Report or regarding the quantum of penalty before its imposition. There was also an inordinate delay of 13 months between the conclusion of hearings and the pronouncement of the order, during which the bench composition changed, all of which cumulatively amounted to a breach of the principles of natural justice and procedural fairness. In BCCI v. CCI, CCI was found to have relied on information from the internet public domain materials without giving BCCI an opportunity to respond to that material, thereby violating principles of natural justice. Such procedural lapses in adjudication not only undermine the integrity of the regulatory process

[by Vashmath Potluri and Shubhranshu] The authors are students of NALSAR Hyderabad.   Introduction India’s e-commerce market has rapidly consolidated, with Amazon and Flipkart controlling over 67 percent of the market. While this dominance is often attributed to scale and logistics, the Director General’s (“DG”) 2024 investigation report reveals deeper structural concerns. Both platforms exercise infrastructural control over warehousing, logistics and algorithmic discoverability in ways that consistently privilege select sellers and marginalise unaffiliated rivals. Practices such as exclusive launches, fulfilment-linked visibility boosts and restricted consumer access reflect a broader pattern of selective gatekeeping. However, the Competition Commission of India (“CCI”) continues to assess such conduct under Section 3(4)(c) of the Competition Act, 2002 (“the Act”), treating the platforms as vertically aligned intermediaries. With August 2025 marking one year of the DG report and the CCI’s final order still pending, similar concerns have emerged against quick commerce platforms like Zepto and Blinkit. Therefore, the Amazon–Flipkart case marks a turning point for Indian competition law as it could shape regulatory responses to infrastructural exclusion across platform markets. This article proceeds in two parts. Part I argues for an ex post reclassification of the conduct under Section 3(3)(c), treating selective infrastructural access as a form of horizontal market allocation. This would invoke a per se presumption of appreciable adverse effect on competition (“AAEC”) once coordination is shown. Part II offers a forward-looking, ex ante regulatory framework by drawing from global models such as the EU’s Digital Markets Act (“DMA”) and the UK’s Strategic Market Status regime (“SMS”), it proposes structural and behavioural tools to prevent infrastructural foreclosure at the design stage. Together, these approaches aim to restore open competition in India’s platform market economy. Ex-Post: Establishing Horizontal Market Allocation The DG’s 2024 investigation revealed that the exclusion on Amazon and Flipkart was not incidental; it was embedded in platform design. Both companies consistently privileged a small cohort of sellers, six on Amazon and thirty-three on Flipkart to be precise by providing them early inventory access, algorithmic prioritisation and subsidised warehousing. These advantages were especially visible during exclusive launches, where unaffiliated sellers were systematically denied access to high-demand stock keeping units, despite having similar operational capabilities. The DG’s conclusion that “no seller other than its preferred seller can survive”  highlights that this was not sporadic favouritism but a deliberate exclusionary structure. This exclusionary design is best understood as a form of “Hub-and-Spoke coordination,” with platforms acting as hubs and preferred sellers as spokes. While the sellers may not directly communicate, the platform facilitates alignment through observable and repeatable incentives. In CCI v. Coordination Committee of Artists, the Supreme Court held that tacit arrangements may constitute agreements when reflected in sustained, parallel conduct facilitated by a central structure. Here, algorithmic favouritism and real-time visibility generate constructive knowledge. Sellers observe which behaviours are rewarded, such as integrating with platform logistics or participating in exclusivity, and calibrate their conduct accordingly. This form of indirect alignment, stabilised by the platform and repeated across cycles, supports an inference of agreement under Section 2(b) of the Act. At the centre of this arrangement is infrastructural segmentation. In digital marketplaces, search visibility, fulfilment logistics and promotional tools are not neutral; they are levers that shape competition. While Indian jurisprudence has not yet defined these as standalone markets, international regulators increasingly treat them as critical gatekeeping mechanisms. The European Commission, in its enforcement under the DMA, flagged Apple’s restrictions on interface functionalities, such as preventing developers from linking users to external purchase options, as materially distorting market access even in the absence of total foreclosure. Similarly, the OECD has recognised that platform-controlled tools such as ranking systems, algorithmic design, and fulfilment infrastructure can act as structural barriers by controlling visibility and consumer access. When allocated selectively, particularly during launch cycles, these tools replicate the exclusionary impact of classic market-sharing. Recognising this infrastructural segmentation as a form of horizontal coordination is therefore a doctrinal interpretation grounded in functional realities. In FHRAI v. MakeMyTrip, the CCI held that algorithmic prioritisation of OYO, combined with suppression of competitors, amounted to an exclusionary agreement. The same logic applies here because algorithmic and logistical design choices made by Amazon and Flipkart repeatedly favour the same seller cohort. This enables parallel outcomes among competing sellers, driven not by direct collusion but by their mutual orientation to platform-curated incentives. Such structurally induced alignment occurs “in any other similar way” as contemplated under Section 3(3)(c), fulfilling the evidentiary threshold for coordination even in the absence of a traditional horizontal agreement. Importantly, this interpretation also aligns with the second proviso to Section 3(3), which extends liability to entities that act “in furtherance of” anti-competitive agreements,” even if they are not engaged in “identical or similar trade.” By designing and enforcing exclusionary infrastructures, Amazon and Flipkart move beyond the role of passive intermediaries and become active participants in market segmentation. Classifying their conduct as horizontal market allocation ensures that Indian law can respond effectively to structural exclusion embedded in platform design. Shifting the standard from the rule of reason to Per Se Once Amazon and Flipkart’s conduct is reclassified under Section 3(3)(c) of the Act, the standard of liability undergoes a fundamental shift. Currently assessed under Section 3(4), such conduct requires a “rule-of-reason analysis,” where the CCI must affirmatively demonstrate that an agreement causes or is likely to cause an AAEC. This approach places the evidentiary burden on the regulator. In contrast, Section 3(3) adopts a “per se rule” because once a horizontal agreement with an exclusionary object is established, AAEC is presumed, and the burden shifts to the parties to provide compelling evidence of overriding pro-competitive justifications. This presumption is more than a procedural shortcut; it reflects a structural understanding of platform markets. In these markets, tools like fulfilment access, algorithmic ranking and promotional placement are not ancillary. They define the terms of competition itself because when such tools are selectively allocated to a few preferred sellers, the result is not mere inequality but systemic distortion of competition. The per

[By Rishita Chatterjee] The author is a student of Jindal Global Law School, O.P Jindal Global University. Part I: Introduction to India’s Contentious Affair with Standard Essential Patents India’s digital economy is growing at an unseen scale, confirming that rapid technological innovation can have an impactful, lasting leapfrog effect, inducing economic growth even as physical infrastructure continues to lag. As the digital economy goes through this seismic shift, a pertinent question surfaces whether India is equipped for this growth. An important part in India’s digital economy toolbox is Industrial Internet of Things (‘IoT’) – a market that is to surge over 28 Billion USD by 2033 and consequently the connected vehicles market poised to become a USD 27 Billion industry by 2033. This transformation is enabled by a common language of standardized technologies like but not limited to 5G, LTE and Wi-Fi. The critical function of interoperability is safeguarded by a rather intricate framework of Standard Essential Patents (SEPs); however, the enforcement of these patents has proven to be a conundrum for both antitrust and patent regimes. Although not defined under the Patent Act, courts in India ensured robust discourse around it to ensure proper adjudication. In simple terms, a SEP is defined as a patent whose claim encompasses technology that is deemed “indispensable for the implementation of a technical standard”. This invites a very foundational legal tension. On one hand, the patent regime confers upon the patentee a statutory monopoly, including an “exclusionary right” to prevent third parties from utilising the patent. Conversely, the principles of antitrust law are designed to structure the exercise of market power derived from this status, ensuring that essential technology functions within a competitive market framework. It is also crucial to recognise that Indian law and policy on SEPs has been forged almost exclusively in the crucible of telecommunication disputes, a market dominated by a handful of mobile phone giants as licensors and handset manufacturers as the primary licensees. This results in a legal framework tailored to the said industry, however implementing this in the industrial landscape of IoTs and the automative sector places the licensing model in a classic  “square peg in a round hole” conundrum. This paper delves further into this problem, attempting to underscore policy implication, value propositions and the future of India’s regulatory role in the digital economy. Part II: Does India have a ‘Legacy Framework’ for SEPs ? The first leg of SEP litigation in India was dominated by a protracted legal battle between the Swedish telecom giant Ericsson and Indian handset maker Micromax and Intex. In response to SEP proprietors seeking compensation for investments primarily on R&D, Indian courts developed a distinctive equitable remedy of pro tem deposits, which orders a temporary and provisional financial arrangement pending the financial resolution of a dispute. The mechanism secures the patentee’s interest during litigation via a court mandated payment structure. The Delhi High Court pioneered these conditional injunctions, making relief contingent upon securing fair, reasonable and non-discriminatory (‘FRAND’) licensing fee. A reading of the initial Ericsson v Micromax decision shows that the judiciary favors to recognize the complementary, rather than the contradictory nature of the Patents Act, 1970 and the Competition Act, 2002, enabling the Competition Commission of India (‘CCI’) to launch investigations into alleged abuse of dominance by SEP holders. The case further highlights the remedies that are put forth by the respective statutes, while the Patent Act provides for in personam remedies (like compulsory licensing for specific party), the Competition Act provides for in rem remedies (such as market wide cease and desist orders, notably structural remedies). A. Trouble in Paradise? The balance in jurisprudence has been thrown into disarray. The landmark judgment by a Division Bench of the Delhi High Court pertaining to Ericsson and Nokia cases held that the Patents Act of 1970 constitutes a separate and distinct self-content law that effectively trumps the jurisdiction of the Competition Act of 2002 in SEP licensing transactions and the enforcement of patent rights. The judgment, appealable before the Supreme Court of India, has created unprecedented uncertainty. If upheld, it would considerably reduce the adjudicatory function of the CCI, thus challenging the ability of the antitrust regulator to police potentially anti-competitive licensing conduct by dominant SEP owners. Looking back  at the telecommunications conflict, arises a prevalent licensing pattern: the licensing of the end-product, that is, the mobile phone. This approach directly gave rise to the central, and contentious, disagreement regarding the proper royalty base. Two competing principles largely characterize this conflict. The Smallest Saleable Patent Practicing Unit (SSPPU) principle argues that a FRAND royalty must be determined based on the value of the smallest unit that utilizes the patented technology, e.g., the cellular chipset. Supporters of this approach, as established in seminal U.S. case law such as LaserDynamics v. Quanta Computer, argue that this approach avoids the patent owner from appropriating value associated with discrete innovations, branding, and features integrated in the final product. In contrast, the Entire Market Value Rule (EMVR), an approach frequently adopted by SEP owners, argues that the royalty should be derived from the entire retail value of the final device. Supporters of this approach found their position grounded in the argument that the standardized connectivity is the key feature driving the overall market value of the product and consumer demand. Adopting the EMVR route, could potentially inflate end device costs, slowing mass adoption of crucial technologies like 5G. The SSPU principle aligns for India’s national objective of prioritizing widespread digital penetration, encouraging lower licensing costs, fostering affordability and accelerating the very technological integration essential for building infrastructure. B. Bespoke or All-Purpose Competition: The Value Chain Conundrum This legacy design, tailored to smartphone industry, is poorly suited for India’s digital future. A radical redesign of markets is the very first real issue. Telecom wars were a rather concentrated industry of a few dozen industry behemoths around the world. The IoT ecosystem continues to grow, beyond what the infrastructure can handle, and key applications are emerging

[By Priyal Jain & Harshita Jindal] The authors are students of Rajiv Gandhi National University of Law.   Introduction Digital platforms have emerged as a focal point of debate in the evolving digital economic landscape, especially in the context of predatory pricing, where determining the cost of services remains an idea that defies consensus. It has again made headlines as the Competition Commission of India (CCI) notified the (Determination of Cost of Production) Regulations, 2025 (hereinafter, “New Cost Regulations”) which replaced its 2009 predecessor. These regulations assume high significance as they try to cater to the changing pricing strategies that have been on the rise with the advent of digital markets. The Indian Competition Watchdog, i.e., CCI, has been using the dual test of assessing predatory pricing as provided in the case of MCX v. NSE, focusing on prices below cost measure and the likelihood of recovering losses incurred. The assessment criteria needs to be outlined with refined discernment as deep discounting, which is done to expand the network of customers by giving heavy discounts and incentives, is a fundamental characteristic of digital markets and often leads to atypical deductions while determining predatory pricing in these markets. Consequently, to regularize the concept of cost, CCI adopted a mechanism based on the Areeda-Turner test, according to which the price of the product should be below Average Variable Cost (“AVC”) to establish predatory pricing. However, jurisprudence laid down in Bharti Airtel and Fast Track Call Cab (Ola case) takes an opposite stance where zero pricing was not a determining factor in accessing predatory pricing. These cases mark differential standpoints taken by CCI in applying cost regulation to e-commerce or digital platforms and create an ambiguous haze around the subject. This blog delves into the implications of the newly introduced cost regulations on the digital marketplace and what dual-edged effect it can create for the future of pricing strategies. Analysis of the New Cost Regulations The CCI in its recently notified New Cost Regulations has brought several changes with respect to the framework of cost determination, which it has also explained through its General Statement, used to assess predatory pricing in any market. The new regulations have amended the definitions of various cost benchmarks like Long Run Average Incremental Cost (“LRAIC”), Average Avoidable Cost (“AAC”), etc., removed the term market value, and introduced Average Total Cost. Moreover, CCI has adopted a sector agnostic, cost based framework allowing for case-by-case assessment of predatory pricing, as proclaimed by the General Statement. Predatory pricing is one of the many pernicious forms of abuse of dominance where a dominant entity, sets the prices of goods/services below the cost of production where an “as-efficient competitor” could not match the prices without incurring significant losses. Such conduct is taken by a dominant enterprise to drive existing market players out of the market, thereby hampering competition. Thus, to establish a case of predatory pricing, establishment of a dominant position in the relevant market, pricing below cost, and intention to reduce or eliminate competitors is essential. To satisfy the pre-requisite of demonstrating pricing below cost, an appropriate measure of determining the cost of the product is imperative, hence, CCI has formulated the Cost Determination Regulations to provide a structured and uniform framework for assessment of the same. The Cost Determination Regulations, elucidate various cost measures like LRAIC, AAC, AVC, etc., although CCI has only been using AVC to examine whether the pricing was below cost or not. However, now with the New Cost Regulations accompanied by the General Statement, CCI has stated that it will examine predatory pricing using other cost measures as well depending upon each case. How will CCI translate its statement into practice is yet to be seen. A Forward Step: Impact of the New Cost Regulations on the Digital Market Digital markets are characterised by certain unique features with respect to their cost and prices due to which the traditional Areeda-Turner or AKZO rule can notbe applied to them. The new regulations have opened a fresh chapter in competition compliance by such industries. CCI has clarified that the case-by-case assessment would enable the consideration of unique features and evolving dynamics of digital markets while evaluating predatory conduct. The cost structure of digital markets, particularly characterised by network effects, is quite different than most other industries since they are distinguished by higher fixed costs, lower variable costs, larger common and joint costs, etc. For instance, Instagram incurred high initial costs in developing the app but it does not incur any additional cost with an increase in the number of users, Netflix incurs costs for acquiring global content, and building algorithms and interface, however, these costs are not tied to any individual subscriber or content piece. Hence, in such a kind of market using the conventional AVC concept contradicts the intended reasoning. In digital markets, relying exclusively on the cost benchmark established in the AKZO rule may allow the pricing strategies to bypass scrutiny as prices can easily be set above AVC and still cause genuine harm to the competition. In various judgments of India as well as European Union (“EU”) , courts have concurred with the above-mentioned rationale. In MCX v NSE, the Director General report stated that since stock exchanges work on the basis of the high level of network externalities and incur huge sunk costs, the use of ATC or LRAIC to assess predation in their cases is more justified. Moreover, in the Qualcomm case, the General Court of EU while endorsing the LRAIC standard, expressed that technologically intensive markets are marked by substantial fixed costs, primarily from R&D, while variable costs remain low and since these fixed costs are closely associated with the specific product sold, LRAIC would be a suitable measure to assess below-cost pricing as it incorporates both fixed and variable costs along with the sunk cost. The European Case of Post Danmark also establishes that in certain cases pricing below AAC and AIC displays evidence of a plan for eliminating competitors