Abstract

This paper delves into the evolution of India's competition law framework, tracing its origins from the post-liberalization era to the present discourse surrounding the necessity of ex-ante regulation for digital markets. It highlights the transition from the Monopolies and Restrictive Trade Practices (MRTP) Act, with its limitations rooted in excessive government control and a "per se" approach to market dominance, to the more contemporary Competition Act of 2002, influenced by the Raghavan and Sachar Committees' emphasis on a "rule of reason" approach. The paper critically examines the arguments presented by the Parliamentary Standing Committee on Finance (PSC) and global competition authorities advocating for an ex-ante framework, particularly in the context of rapidly evolving digital markets characterized by network effects and "winner-take-all" dynamics. It evaluates the perceived inadequacies of ex-post enforcement, the challenges faced by regulators, and the identified gaps within existing legal frameworks. Specifically within the Indian context, the paper analyzes the rationale for a Digital Competition Act (DCA). While acknowledging the unique challenges posed by digital markets, it scrutinizes the arguments concerning the timeliness of interventions and the effectiveness of redressal under the current Competition Act. The paper also considers the proactive steps taken by the Competition Commission of India (CCI) in addressing anti-competitive practices in the digital space and the recent amendments to the competition law, including the introduction of the Deal Value Threshold (DVT) and provisions on hub-and-spoke cartels. Ultimately, the paper concludes that while the concerns regarding competition in digital markets warrant serious attention, the Indian context presents a nuanced scenario where the CCI has demonstrated its capacity to intervene. The implementation of an ex-ante framework like the proposed DCA requires careful deliberation, balancing the need for timely action with principles of natural justice and due process. The paper underscores the importance of considering the potential benefits of an ex-ante regime against the backdrop of an evolving and increasingly robust existing competition law framework in India.

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