Assessing the Need for a New Draft Digital Competition Bill in the Indian Context

This publication was produced under Carnegie India’s Technology and Society Program. Research for this paper was made possible in part by support from Google India Private Limited and Amazon Seller Services Private Limited. For details on the program’s funding, please visit the Carnegie India website. The views expressed in this piece are solely those of the author.

Introduction

There is a very noticeable change ongoing in India’s competition landscape. Over the past five years, since 2019, three committee reports, both at the ministerial and parliamentary levels, have been released.¹ Each of the three committee reports has offered different recommendations, owing to their distinct mandates. For instance, the Competition Law Review Committee (CLRC) Report of 2019 spoke about how the “thrust now is to build an active competitive environment in which businesses can thrive and innovate, keeping pace with new-age developments in digital markets.”² The CLRC had a chance to amend the current Competition Act, 2002 (CA 2002), and include a specific reference to “network effects” but chose not to do so. In the committee’s view, the current CA 2002 was “inclusive in nature” and provided the Competition Commission of India (CCI) with “enough flexibility to consider such factors” while determining anticompetitive conduct.³

On the other hand, the Parliamentary Standing Committee Report on Big Tech companies in 2022 focused on the distinct nature of digital markets (including network effects) when compared to traditional markets. It identified certain practices, called anticompetitive practices (ACPs), that were seen as prevalent in digital markets.

The most recent report, which is called the Committee on Digital Competition Law Report (CDCL Report), came out in February 2024.⁴ It seeks to introduce a new draft digital competition bill (draft DCB) to regulate certain entities that it refers to as systemically significant digital enterprises (SSDEs). The SSDEs are sought to be regulated across a range of nine pre-identified online services called core digital services (CDS). Once notified as SSDEs, the entities in question will be prohibited from conducting nine specific ACPs highlighted under the draft DCB.

Despite the differing recommendations, the scope of digital markets was addressed in all three reports.

From a review of the provisions of the draft DCB, more than two dozen interviews conducted with various stakeholders as a part of this piece, and an analysis of the orders given by the CCI over the last ten years (since 2014), it appears that the digital market cases sought to be tackled by the draft DCB are indeed becoming more prevalent, albeit marginally so. Further details regarding this are provided in Annex A.

However, what is the gap that is sought to be addressed here? Is the existing CA 2002 not sufficient to detect these ACPs? And if it is, then is it not doing so in a timely manner? If timeliness of intervention is a key issue, which is one of the motivations behind ex ante regulation, then have interim relief measures been looked into by the CCI? And lastly, perhaps, out of all the points that need to be looked into, the assertion made by the CDCL that concentration is on the rise in digital/online markets also merits close examination. We shall look at these issues in a sequential manner.

Is There a Detection Gap?

The CDCL Report states that “the CCI should be equipped with appropriate tools for the early detection of anticompetitive conduct.”⁵ However, is the issue the detection of any of the ACPs? The CCI has in the past investigated the ACPs mentioned in the CDCL report. Granted that this may not amount to detecting them, since they are brought before the CCI by third parties in a vast majority of cases. (Moreover, as shown below later, the CCI has only ever taken suo moto cognizance of two digital market cases involving ACPs, one of which it dismissed soon thereafter in a final order).⁶ At the same time, the fact that the CCI has investigated such occurrences in the past does raise the point as to why the competitive malpractices identified as ACPs cannot be remedied through the normal operation of competition law under CA 2002. The existing law under CA 2002 allows for early detection since the CCI has suo moto powers. Therefore, should we be giving the CCI new powers under an ex ante regulatory framework when the existing ones might not have been used optimally?

The CCI enjoys suo moto powers that allow it to take cognizance of any anticompetitive practices on its own as well. Indeed, in March 2021, it had taken stock of the alleged anticompetitive privacy policy change by WhatsApp.⁷ However, this power has been used sparingly, as the number of suo moto orders decided by the CCI in the last ten years (2014–2024) shows below:

When one compares the overall suo moto cases of the CCI with respect to the overall cases decided by the CCI each year, the percentage of cases in which suo moto cognizance was taken is entirely in single digits. It can therefore be inferred that this power has been used sparingly. Furthermore, barring three cases (out of which only two were related to digital markets), all the cases under which the CCI exercised its suo moto powers were related to cartelization.

It is not clear whether the low percentage of cases taken up for suo moto cognizance is a capacity constraint issue, even though it has been known for some time that the CCI is severely understaffed. For instance, a recent Parliamentary Standing Committee on Finance Report of the Ministry of Corporate Affairs related to “Demands for Grants” for 2022–2023 highlighted how out of a total sanctioned strength of 195 for the CCI, sixty-nine positions remain vacant.⁸ Alternatively, it is also clear that the CCI is not hamstrung by any appellate rulings that would circumscribe the utilization of its suo moto powers, unlike the case that may be made for its powers to issue interim relief, as shown later below.

Therefore, as stated earlier, one cannot say looking at the data adduced that there is a detection gap or blind spot here. If anything, the CCI has gone aggressively after anticompetitive practices where it wanted to. For instance, there is a heavy skew toward tackling cartelization in various markets. These types of cases are usually very fact-heavy since a finding of contravention or even suo moto cognizance stems from some convincing or clinching evidence about collusion occurring between the market players. If anything, the overwhelming focus on the legacy markets of paper, railways, oil, and gas shows a prioritization by the CCI toward certain sectors. There is no reason why the CCI cannot direct this focus toward digital markets under the current CA 2002.

Will the Draft DCB “Facilitate Timely and Speedy Redressal of Anticompetitive Conduct”?

The CDCL Report mentions that the CA 2002 was not designed to facilitate timely redressal of anticompetitive conduct by digital enterprises.⁹ However, when one looks at the decisional practice of the CCI in the three cases where final orders were passed, one (Matrimony.com Limited v. Google LLC) has been pending at the appellate level of the National Company Law Appellate Tribunal (NCLAT) for six years, with twenty-four listings of hearings being announced till July 2024; another (Umar Javeed and Ors. v. Google LLC and Anr.) has been pending at the Supreme Court for two years (with the next hearing slated for September 2024); and the third case here (Federation of Hotel & Restaurant Associations of India v. MakeMyTrip India Pvt. Ltd. and Ors.) has been pending at the NCLAT for two years as well, with the next hearing scheduled for September 2024.¹⁰ It is interesting to note that the legislative scheme of the draft DCB provides for the same appellate structure as the CA 2002 in the case of an appeal as well—first to the NCLAT and then further appeals from the NCLAT to the Supreme Court. Therefore, if the purpose is the timely redressal of cases, providing the same procedural apparatus may defeat the purpose of the draft DCB.

If redressal time is the parameter, the procedural apparatus under the European Union’s Digital Markets Act (EU DMA) compares more favorably with India. For instance, the average duration of cases at the EU General Court, which is the first appellate authority, is only around eighteen months.¹¹ Furthermore, any appeals from the EU General Court to the European Court of Justice also do not take much more time, clocking in around sixteen months.¹² On the other hand, the average duration for the European Commission’s adoption of a decision is 4.7 years.¹³ This makes the rationale for an ex ante regime under the EU DMA more attractive when compared to India, where the appeals to NCLAT and the Indian Supreme Court take more time to resolve than the original decision from the CCI itself, as seen from the above cases against Google and MakeMyTrip. On the contrary, the EU procedural apparatus resolves cases more swiftly at the appellate level when compared to the European Commission itself.

Furthermore, if the purpose behind timely redressal is to ensure that the concerned market does not tip in favor of the alleged practitioner of anticompetitive conduct, then interim measures under Section 33 of the CA 2002 can and should be used more often. However, the table in Annex B and the analyses that follow show that interim injunctions are sparingly used as well.

The finding that emerges from the assessment of Section 33 interim relief cases in Annex B is that this provision is rarely used, even though its invocation by parties has risen manifold over the last few years, particularly from 2019–2020 onwards. During 2022–2023, there was a dip in the otherwise steady trends toward more invocation of Section 33. This may be because the CCI did not have the requisite quorum to decide cases momentarily, given that its then chairman had demitted office in October 2022.¹⁴ Then, the CCI had a quorum between May 2023 and August 2023, when its new chairperson joined in May 2023.¹⁵ However, again, from August 2023 till late September 2023, it had no quorum.¹⁶ Furthermore, the number of interim relief cases involving digital markets has remained steady at one to two cases every year, even though, as seen from above, these cases now increasingly involve practices that are sought to be dealt with by the proposed draft DCB.

Why do Section 33 interim relief cases remain in the range of zero to three every year? In the case of digital/online markets, which are fast-moving and can tip quickly in favor of the incumbent firm, it is essential to consider using interim relief as a way to curb any anticompetitive practices that may be deployed by such a firm.¹⁷ Counterpart antitrust regulators like the EU had also suggested in the past that enforcers “must use all instruments at their disposal where and when appropriate,” since they are “a necessary part of the rule of law.”¹⁸ Below could be some reasons why the CCI has been reluctant to provide interim relief beyond a select few cases.

(a) The standard of review for interim relief cases is higher in India:

Interim relief measures provided under Section 33 have to adhere to a standard provided by the Indian Supreme Court in a 2010 case called the Steel Authority of India Limited (SAIL) case.¹⁹ While considering whether interim relief ought to be granted, the Supreme Court observed that the CCI should intervene if three conditions are satisfied.

1. It should record its satisfaction (which has to be of a much higher degree than the formation of a prima facie view under the CA 2002) in clear terms that an act in contravention of the stated provisions has been committed and continues to be committed or is about to be committed.
2. It is necessary to issue an order of restraint.
3. From the record before the CCI, there is every likelihood that the party to the case would suffer irreparable and irretrievable damage, or there is definite apprehension that it would have an adverse effect on competition (AEC) in the market.²⁰

However, the Supreme Court also observed at the end that the power to issue interim injunctions ought to be used by the CCI “sparingly and under compelling circumstances.”²¹In general, as per a survey of interim measures in other jurisdictions conducted by the Organisation for Economic Co-operation and Development (OECD), interim relief usually requires meeting two key conditions: “(i) the likelihood of success on the merits (fumus boni iuris) and (ii) the urgency to prevent harm (periculum in mora).”²² Therefore, relatively speaking, the Indian Supreme Court’s jurisprudence in the SAIL case above adds another prong (the second condition above) to be satisfied by the CCI, which is that “it is necessary to issue an order of restraint.” What this means is that, on a balance of convenience, would the party against whom interim relief is sought be inconvenienced more than the claimant party if the interim relief is granted?

While this may appear to be a simplistic assessment of facts, often this might be challenging to do. Like other competition regulators, the CCI is usually requested to provide interim relief at the prima facie stage, when it is not in full possession of all facts. While the finding of interim relief is provisional in nature, as the name suggests, it has a heavy bearing, especially in dynamic markets like digital/online markets that evolve quickly. Also, since the director general (DG) investigation that is required to be conducted after a prima facie order would not have been completed at the interim relief stage, whatever facts the CCI may possess would largely be provided by the parties to the case and not its own investigative unit, the office of the DG. Owing to a possible imbalance between the resources available to parties to the dispute, any determination made regarding the rights of the parties based on data provided by the parties themselves could be premature. Indeed, the DG investigation may reveal findings that cause the CCI to subsequently close the case. 

(b) The CCI may have concerns regarding overstepping its mandate while forming a prima facie opinion:

Very often, a Section 33 interim relief finding is made at the prima facie stage under Section 26(1) of the CA 2002. It should be noted that the CCI has been provided cover under the same SAIL case when it comes to prima facie orders. To provide more context here, parties have often challenged the CCI’s prima facie orders in other judicial forums like high courts by claiming rights of natural justice and a right to a hearing at the prima facie stage. The SAIL case had earlier highlighted how the CCI’s prima facie orders are only akin to a “departmental proceeding” since it is essentially issuing a direction to its own departmental wing (the DG office) and does not enter an adjudicatory process while doing so. Despite this, the CCI still, and very often, gives parties a right to a hearing and gives well-reasoned prima facie orders. It is possible that since Section 33 interim relief is often parallel with prima facie orders and such interim relief does affect the rights of parties through either prohibitory or mandatory injunctions, the CCI might very well be hesitant to run against the dicta of the Supreme Court in the SAIL case by entering into what could be perceived as a possible adjudicatory process and not merely a departmental finding.

(c) The third condition under the SAIL case regarding finding AEC in the market is challenging:

The OECD report cited above highlights that various jurisdictions diverge when it comes to the standard of harm required to be shown to claim interim relief. Sometimes, harm to individual firms is required to be shown. However, equally, at times, the harm to the larger competition dynamic is required to be demonstrated. Going by the third condition under the SAIL case for granting interim injunctions, the latter is the case in India and accordingly puts a higher qualitative threshold for CCI to meet when passing interim relief. This is because showing harm to the overall market structure within which the concerned firms operate is more challenging to adduce, as opposed to showing harm caused to an individual player. While this helps in avoiding the risk of false positives, it may also lead to a possible reduction in interim relief orders being issued.

In the end, it appears that the CCI may be straitjacketed due to procedural guardrails imposed by the Indian Supreme Court in the SAIL case when issuing interim measures. However, the same Supreme Court case also gives leeway to the CCI to provide interim relief so long as it can record its satisfaction while doing so. It could do so to explain whether any of the three conditions are met. For instance, one of the conditions for passing interim relief is that the harm caused must be irreparable and irretrievable. Here, it should be noted that the nature of digital markets is such that harm is often irreversible and irreparable. That is, once markets tip, such harm may not be repaired (irreparable) by the final decision on merits or cannot be reversed (irretrievable) even through providing financial compensation. Doing so would not bring back the status quo present at the time of the interim relief proceeding. Therefore, digital markets make it more likely to demonstrate irreparable and irretrievable damage if markets are likely to tip by the time the final order is issued. This ought to make it more worthwhile for the CCI to consider issuing more interim relief. However, it has largely refrained from doing so.

Market Concentration: A Convenient Bogeyman?

One of the key claims of many committees’ reports that have been released by various competition law regulators all over the world has been increasing concentration.²³ It has not been clearly defined in some cases whether this refers to aggregate concentration in the larger economy or whether it refers to the degree of concentration in certain markets that have been identified within the DCB or the EU DMA, as the case may be. There are a few problems with this. Firstly, the claims of increasing concentration have not been substantiated by any data from the CDCL Report. Secondly, even using higher market concentration as a metric of diminishing competition may not always be accurate, as shown by the so-called superstar firm hypothesis described later. Thirdly, calculating concentration, or at least calculating it the way it has been calculated thus far by certain reports (that have been relied on to make the claim of increasing concentration), is fraught with certain challenges. We shall address each of these issues below.

Lack of Any Studies That Show Increasing Concentration

Regarding the CDCL report, it is provided therein that the “draft DCB should apply to a pre-identified list of core digital services (CDS) that are susceptible to concentration.”²⁴ However, no data has been adduced in this regard. Nor has the CDCL relied on any report issued by the CCI in the past to support these statements. For instance, the market study carried out regarding the e-commerce sector by the CCI, whose findings were released in January 2020, did not calculate the concentration levels in the markets in which anticompetitive practices were being looked into. Sure, the CCI e-commerce market study report did refer to increasing concentration, but it summarily claimed that in each of the three markets studied (e-commerce, online travel aggregators, and food-tech platforms), the “market is concentrated with a few large players.”²⁵ Also, it did not undertake an assessment through econometric tools such as the Herfindahl-Hirschman Index (HHI) or the concentration ratio, something which the CCI often otherwise does in its combination cases. This could be due to the fact that in the same e-commerce market study report, the CCI draws a causal link between the very phenomenon of network effects and market concentration.

For instance, the e-commerce market study report states:

As a growing number of users makes the platform more valuable, it attracts more users, platforms benefit from a “positive feedback loop,” which can lead to market concentration.²⁶

This is an erroneous understanding of how market concentration is calculated. Market concentration is largely derived by calculating the market shares of enterprises in the concerned market and not based on the presumption that all markets that exhibit network effects have high market concentration.

Market concentration measurement therefore hinges on the firms’ particular market shares in their respective markets. In its e-commerce market study report, the CCI has not calculated any such market shares for the three markets that were being examined. Market shares are essential to calculate the HHI, which has long been relied on by the CCI itself to assess merger/combination cases. The HHI is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (30² + 30² + 20² + 20² = 2,600). Antitrust agencies generally consider markets in which the HHI is between 1,000 and 2,000 points to be moderately concentrated and consider markets in which the HHI is in excess of 2,000 points to be highly concentrated.²⁷

Even when the CCI does calculate market shares while assessing combination cases, these are limited to the relevant market to which the firms belong, and even then, the accuracy of the market shares depends on the data adduced, usually by the parties to the combination themselves. The CCI can, and often does, use certain regulations, such as Regulation 19(3) under the Combination Regulations, to request information from other market participants to determine whether a combination will “cause an appreciable adverse effect on competition” in the relevant markets.²⁸ However, each third-party market player will have their unique incentive to take the position they might adopt regarding the particular combination, and accordingly, their information might be colored by bias.

The issue of concentration is important from the perspective of the competition authorities because a higher degree of concentration is usually claimed to reflect a lower degree of competition. Less competition would, in turn, affect the contestability of markets by players, something that the draft DCB is claiming to address for digital markets. However, again, no market studies or reports have been provided in the Indian context by the CDCL, or for that matter, the earlier Indian Parliamentary Committee Report on Big Tech firms. This is a significant lacuna that does call into question the basis of the fundamental claim that the nine CDS markets are susceptible to concentration and hence candidates for being pre-identified as markets that need to be regulated in an ex ante fashion under the draft DCB. As highlighted in Annex A, the number of cases from digital markets has not increased by a lot. Also, if an argument is made that the CDCL is based on a study of the Indian market—having observed nine CDS and ACPs that are unique to India—it should be noted that the draft DCB does not even limit itself to the CDS identified under its ambit. Rather, it reserves the right to designate other services as CDS as well, which is very similar to the case-by-case approach that it intends to eschew.

The “Superstar Firm” Hypothesis

David Autor et al.’s influential 2017 paper on the rise of superstar firms posited the theory that higher concentration is not always a reflection of diminishing competition.²⁹ The argument put forth by Autor was that “if globalization or technological changes advantage the most productive firms in each industry, product market concentration will rise as industries become increasingly dominated by superstar firms.”³⁰ A more recent paper also backs up these claims by asserting that “concentration increases are positively correlated to productivity and real output growth.”³¹ Indeed, one of the arguments put forth by a recent paper by the National Bureau of Economic Research has been that many of the superstar firms are often employing information technology (IT) in such a significant way that it allows them to “replicate their operations across establishments, markets, and industries,” leading to an increase in their size amid increased market concentration.³²

This is a phenomenon that stems from the fact that most technology firms are asset-light and revenue-heavy. Indeed, the CCI has recognized this in the past since it was not notified of most mergers involving technology firms. This was because they met the CCI’s target exemption rule, under which, if either the asset or revenue figures of the target enterprise were below a particular threshold, then the merger did not need to be notified. The Indian government has since rectified this by allowing for notification of mergers that capture the deal value of the acquisition and not necessarily those that meet the asset and turnover thresholds under the CA 2002 only.

The finding of how tech firms can often have high productivity amid increasing concentration may have resonance with how the CCI has looked at cases as well, or when one looks at the orders of the former Competition Appellate Tribunal (COMPAT). For instance, in the CCI case involving cab aggregator firm Uber (Case No. 96/2015), an appeal was made to the COMPAT regarding the fact that the CCI prima facie order was wrongly provided, closing the case. While overturning the CCI prima facie order, the COMPAT order did note that new markets can often bring “phenomenal efficiency improvements” that “replace existing business models.”³³ Indeed, after the case was remanded back to the CCI for fresh determination, both the CCI and the DG office found no case to be made out against Uber. While finally dismissing this case, the CCI observed (citing its findings in another case involving another cab aggregator firm, Ola) that “data on the record shows that the taxi industry grew exponentially after the emergence of platform-based models (as much as 1,900 percent), which can be attributed to the strategies adopted by app-based taxi operators.”³⁴

Challenges Involved in Accurately Calculating the Market Concentration

One of the challenges with accurately calculating market concentration figures is determining which products to include in this market. So far, a lot of the reports that have been relied upon to claim that market concentration is increasing have been based on industry classification codes.³⁵ Both the sources cited here rely upon either the North American Industry Classification System (NAICS) or the U.S. Census Bureau, which is based on NAICS. The problem with this is that industry-wide classification systems are not products that are substitutes for each other, as they ideally should be in a relevant market, which is the actual metric under which competition authorities evaluate market power. Rather, such systems are a collective market of goods within the same sector and are defined nationally. Doing so may not be the appropriate geographic delineation when it comes to competition law assessment.

For example, under the National Industrial Classification Code (NIC Code) of India, the same industry classification code 6312 deals with all web portals, regardless of the market that they operate in.³⁶ Indeed, the NIC Code states that it “does not draw the distinction according to the… type of technology” of economic units.³⁷ Therefore, the usage of these metrics under industry classification systems is not very informative regarding the actual concentration in the market, since the market itself does not include items that are substitutable with each other. Other reports from jurisdictions such as the United Kingdom have also adopted the same industry classification code approach and would be prone to the same drawbacks highlighted here.³⁸

That being said, it is rather challenging to adduce data on tech firms in order to calculate market shares and accordingly derive HHI. As mentioned above, the narrative of increasing concentration by various reports has very often been the rationale underlying calls for more ex ante regulation. However, tech firms have played little to no role in dispelling this notion. Very often, the data that can be used to calculate accurate HHI vests with these tech firms. Since many of these firms are often privately held (at least in sectors in India such as online travel aggregators and food aggregator/food delivery platforms), such data lies with the private equity firms and other shareholders that finance them.

Even in publicly traded companies, the data regarding revenue attributable to a particular online market activity may not be readily available in their consolidated financial statements. This problem may be further compounded if the online market activity in question is conducted by a multi-sectoral firm, where it is hard to classify the revenues accruing from various streams of economic activity. Lastly, while trying to pull out sales data from the Prowess database of the Centre for Monitoring Indian Economy, we referred to the “gross sales” metric to find out the overall revenue of a firm. However, the Prowess database defines sales as follows:

A sale transaction necessarily involves a buyer, a seller, a product or service, and the exchange of cash or other non-cash considerations… This data field captures all regular income generated by companies from clearly identifiable sale of goods and from non-financial services. Regular income would essentially mean that which excludes income of prior periods and income from extraordinary transactions. Clearly identifiable sources of income would mean that the ambiguous other income has been excluded. If the company provides a break-up of other income, then the constituents for which data is available are posted appropriately. However, if there is an entry for other income that is not described any further, it is an ambiguous entry and is therefore excluded from sales.³⁹ (emphasis added)

Therefore, there would be challenges if one were to use a database with the caveats seen above. For a multiproduct technology company like Alphabet, getting a clear breakup of income may be challenging under other databases, especially for something like advertisement revenue, and may be classified as ambiguous income. This could involve revenue from advertisements run through the use of certain keywords against which search advertisements are bought by others, revenue from advertisements on YouTube, and advertising revenue accruing from other Android apps, among other sources. How does one segment the advertising income in such a case, where a firm’s advertising revenue is derived from various sources?

Conclusion

The research presented here raises multiple questions regarding the suboptimal usage of otherwise effective powers under the CA 2002, the lack of any assessment regarding concentration, and the challenges involved for independent researchers in doing so. It also brings forth the multiple caveats to be kept in mind when it comes to interpreting increasing concentration numbers. Collectively, the findings suggest taking a closer look at doing more with what already exists under the legislative scheme of the CA 2002.

Granted that the cases involving ACPs have increased, even if marginally so, and that these cases ought to be prioritized by the CCI, given how quickly the digital markets can tip. However, could the CCI be doing more with what it already has, as opposed to taking on a whole new legislative scheme under the draft DCB, which has similar provisions related to interim orders, appeals, and suo moto cognizance? Could the setting up of a new regime for the treatment of digital market cases by SSDEs lead to the same outcomes due to the bottlenecks identified in this article? Only once there is clarity on how the existing legislative scheme under the CA 2002 does not work should there be calls for an ex ante regulatory regime.

Annex A

Annex B

For 2014–2015, Section 33 was invoked by the informant party in Case No. 42/2014. Here, it was held that there was no prima facie contravention observed by the CCI, and accordingly, it was held that the prayer for interim measure relief also did not stand. This case involved procurement issues in the railway market and did not involve the digital/online market.

For 2015–2016, Section 33 was invoked by the informant party in five instances: Case No. 101/2015, Case No. 69/2015, Case No. 78/2015, Case No. 41/2015, and Case No. 06/2015. Again, there was no prima facie contravention observed by the CCI in all cases except Case No. 06/2015, and accordingly, it was held that the prayer for interim measure relief also did not stand. In Case No. 06/2015 involving Ola Cabs, the CCI did give a prima facie finding of contravention but did not grant the interim measure under Section 33 that was asked for by the informant regarding predatory pricing. A “Dissent Note” by Member Augustine Peter did, however, grant the interim injunction under Section 33. Barring Case No. 06/2015, none of these cases involved digital/online markets.

For 2017–2018, Section 33 was invoked by the informant party in Case No. 35/2017. Here, it was held that there was no prima facie contravention observed by the CCI, and accordingly, it was held that the prayer for interim measure relief also did not stand. This case dealt with the automotive market.

For 2018–2019, Section 33 was invoked by the informant party in Case No. 16/2019 (even though a prima facie contravention was found in this case, the Section 33 interim measure was not even considered by the CCI, perhaps because “no separate application had been filed in this regard” by the informant party).⁴⁰ It was also invoked by the informant party in four other instances, in Case No. 25/2018, Case No. 33/2018, Case No. 36/2018, and Case No. 12/2018, where no interim measure relief was provided since no prima facie contravention was found by CCI in these cases. None of these involved digital/online market issues and were largely concerned with procurement/bid rigging issues.

For 2019–2020, Section 33 was invoked by the informant party in eight instances: in Case No. 23/2019, Case No. 29/2019, Case No. 30/2019, Case No. 04/2019, Case No. 18/2019, Case No. 12/2019, Case No. 10/2019, and Case No. 26/2019. In all cases except Case No. 30/2019, no prima facie contravention was observed by the CCI, and accordingly, it was held that the prayer for interim measure relief also did not stand. Although a prima facie contravention was found under Case No. 30/2019, it is not known whether a Section 33 interim measure relief was granted, since the CCI said that it would deal with the issue separately. However, no Section 33 order can be found on the CCI website regarding this specific case. None of these cases dealt with digital/online markets, save for Case No. 23/2019. However, this particular case was regarding a challenge to a merger/acquisition case in online markets cleared earlier by the CCI.

For 2020–2021, Section 33 was invoked by the informant party in twelve instances: in Case No. 17/2020, Case No. 20/2020, Case No. 33/2020, Case No. 31/2020, Case No. 26/2020, Case No. 45/2020, Case No. 50/2020, Case No. 40/2020, Case No. 02/2021, Case No. 14/2019 clubbed with Case No. 1/2020, Case No. 39/2021, and the CCI itself took suo moto cognizance under Case No. 1/2021. Except in Case No. 14/2019 clubbed with Case No. 1/2020, Case No. 20/2020, and Suo Moto Case No. 01/2021, all other cases were dismissed as having no prima facie contravention of the CA 2002, and accordingly, no ground to impose interim measures was there. Interestingly, in the three cases where interim measures were allowed, two involved major online market players and dealt with certain practices such as exclusive tie-ups, platform neutrality, and data collection/usage policies.

For 2021–2022, Section 33 was invoked by the informant party in eighteen instances, in Case No. 51/2020, Cases No. 34, 37, and 38 of 2020 (clubbed together), Case No. 06/2021, Case No. 03/2021, Case No. 35/2019, Case No. 08/2020, Case No. 12/2020, Case No. 11/2020, Case No. 10/2021, Case No. 16/2020, Case No. 19/2021, Case No. 11/2022, Case No. 09/2022, Case No. 29/2020, Case No. 08/2021, Case No. 03/2022, Case No. 42/2020, and Case No. 34/2021. Except in Case No. 03/2021, 19/2021, and Case No. 11/2020, where Section 33 interim measure relief was provided by CCI, in all other cases it was denied. Interestingly, only one case involved online/digital markets. The case (Case No. 29/2020) involved Amazon and also involved issues of platform neutrality and deep discounting. However, the case was dismissed because sufficient evidence was not placed before the CCI.

For 2022–2023, Section 33 was invoked by the informant party in six instances: in Case No. 25/2021, Case No. 46/2021, Case No. 18/2022, Case No. 16/2022, Case No. 33/2022, and Case No. 19/2022. Here, it appears no interim measure was granted by the CCI in any of these cases. Save for Case No. 46/2021, where a prima facie contravention was found, all other cases had no prima facie contravention of the CA 2002, and accordingly, there was no need to look into interim relief. However, regarding Case No. 46/2021, the only case that involved online/digital markets, it is unclear whether the CCI provided interim relief since it stated that the issue of interim relief will be “dealt with separately,” and that case cannot be found on the CCI website.⁴¹

For 2023–2024, Section 33 was invoked by the informant party in fifteen instances, in Case No. 04/2023, Case No. 39/2022, Case No. 15/2023, Case No. 05/2023, Case No. 11/2023, Case No. 23/2023, Case No. 21/2023, Case No. 24/2023, Case No. 40/2022, Case No. 38/2022, Case No. 31/2023, Case No. 22/2023, Case No. 36/2023, Case No. 28/2023, and Case No. 37/2022 clubbed with both Case No. 17/2023 and Case No. 27/2023. Almost all these cases, barring Case No. 37/2022 clubbed with Cases No. 17/2023 and 27/2023, saw the CCI giving an order finding no prima facie contravention. In Case No. 37/2022 clubbed with Cases No. 17/2023 and 27/2023, which involved Google’s policies of in-app purchases and paid apps, while the CCI found a prima facie contravention by Google that merited further investigation by the DG office, it did not see the case as being fit for interim relief. According to the commission, the relief asked for—restraining Google completely from collecting any fee from its app store—was not proportionate and could have had “unintended consequences.”⁴²

Note: All tables in this article have been prepared by the author using data compiled from the Competition Commission of India’s website.

Acknowledgments

The author would like to thank Aadya Gupta, Kavya Palavalasa, and Madhuvanti Gia Mukherji for their invaluable and generous research assistance, and Tanushree Baijal and Rebekah A. Awungshi for their editorial guidance.