The Forgotten Half Of Section 4: Algorithmic Personalisation And The Limits Of Exploitative Abuse In Indian Competition Law
Divyanshu Chaudhary, O.P. Jindal Global University
ABSTRACT
Indian jurisprudence on abuse of dominance has evolved a monoculture of exclusion. Section 4(2)(a) of the Competition Act, 2002, lists "unfair or discriminatory" conditions and prices as the first prohibition, but the Competition Commission of India has developed its decisional practice almost entirely on exclusionary theories of harm, leaving the exploitative limb largely dormant. This article argues that algorithmic price personalisation by dominant digital platforms exposes that asymmetry as untenable. Personalised pricing affects the consumer and not the rival. It is exploitative abuse in its purest form and falls beyond the exclusionary frame on which the CCI has depended. The article evaluates whether such conduct can be caught by Section 4(2)(a)(ii) through either the “unfair” or the “discriminatory” pricing limb and concludes that both ways are blocked. The investigation into unfair pricing is stalled since there is no competitive standard. The discriminatory pricing method has been narrowed down by the Supreme Court’s 2025 judgment in Competition Commission of India v. Schott Glass India Pvt. Ltd. which demands verification of equivalent transactions. The paper applies the German Facebook decision and the Court of Justice’s judgment in Meta Platforms v. Bundeskartellamt to suggest redefining the investigation to centre around the architecture of extraction rather than a counterfactual price. It concludes that the Commission must either provide the exploitative limb with sufficient conceptual content to the conduct or acknowledge that a legislative category of harm is outside its effective reach.
