The Silent Conspiracy: Algorithmic Tacit Collusion And The Evidentiary Void In Section 3 Of The Competition Act, 2002
- IJLLR Journal
- Apr 22
- 1 min read
Anjali Hirwani, LL.M., Gujarat National Law University
ABSTRACT
Section 3 of the Competition Act, 2002 was built to catch cartels, conspiracies formed by human beings who consciously chose to fix prices and harm competition. It was not built for a world where pricing algorithms, deployed independently by competing firms, learn on their own to coordinate prices above competitive levels without any human communication, instruction or intent. This phenomenon ‘algorithmic tacit collusion’ is already present in India's ride-hailing, e-commerce and real estate markets, and the law currently has no adequate response to it.
This paper examines the "accountability gap" that arises when anti-competitive harm occurs without any legally cognizable "agreement" under Section 2(b) of the Act. Drawing on the CCI's Market Study on Artificial Intelligence and Competition, the European Court of Justice's ruling in Eturas, and the United States' ongoing RealPage litigation, the paper argues that India's existing ex post, intent-based enforcement framework is structurally insufficient to address digital cartels that leave no paper trail. A shift from intent-based to functional liability is proposed, alongside a Plus Factors evidentiary standard and ex ante algorithmic transparency obligations.
Keywords: Algorithmic Collusion, Section 3, Competition Act 2002, Artificial Intelligence, Tacit Collusion, Evidentiary Standard, CCI, Plus Factors, Functional Liability.
