Recalibrating Digital Dominance: The Emergence Of A Distinctive Ex Post Competition Regime In India
Ayush Verma, National Law Institute University, Bhopal
Anshika Kaushik, National Law Institute University, Bhopal
Rishi Mudgal, National Law Institute University, Bhopal
ABSTRACT
The regulation of Big Tech in India is increasingly framed through the question of whether the country should adopt an ex ante regime comparable to the European Union's Digital Markets Act (‘DMA’). This framing, however, risks obscuring an important development within Indian competition law: in the absence of a dedicated ex ante digital competition statute, the Competition Commission of India (‘CCI’) has progressively adapted the existing abuse-of-dominance framework to address platform- specific forms of market power. This article examines whether these developments constitute merely transitional enforcement pending legislative reform or the emergence of a distinct model of digital competition governance.
The article argues that Indian digital competition law is developing a form of calibrated ex post enforcement. This model retains the case-specific structure of the Competition Act, 2002 while adapting conventional theories of dominance and abuse to network effects, ecosystem leverage, algorithmic intermediation, data accumulation and cross-market foreclosure. The article demonstrates this development through a doctrinal examination of the CCI's jurisprudence concerning search bias, the Android ecosystem, e-commerce platforms, data-driven conduct and recent settlement practice. It argues that the CCI's approach is characterised not only by an increasing willingness to recognise non-price and ecosystem-based theories of harm, but also by a degree of remedial caution where intervention may affect widely relied-upon digital infrastructure.
The article further contends that India's regulatory trajectory cannot be assessed solely by reference to the DMA. Differences in market structure, institutional capacity and infrastructural dependence affect the relative costs and benefits of ex ante and ex post intervention. The continuing deliberation over the proposed Digital Competition Bill therefore raises a more fundamental question than whether India should replicate the European model: when does case-by-case competition enforcement cease to provide an adequate response to persistent platform power, and what institutional conditions justify a transition towards ex ante regulation? The article concludes by proposing a framework for calibrated digital competition enforcement that combines stronger institutional capacity, disciplined remedial design and a carefully sequenced relationship between the existing Competition Act and any future ex ante digital competition regime.
Keywords: Competition law; Digital competition; abuse of dominance; Big Tech; platform markets; Competition Commission of India; ex post enforcement; ex ante regulation; Digital Markets Act; digital market power; India.
