INTERVIEW: MR. MANAS KUMAR CHAUDHURI ON META VS. CCI

The RFMLR Editorial Board recently interviewed Mr. Manas Kumar Chaudhuri, Senior Partner, Khaitan and Co. on the Meta vs. CCI ruling.

What pivotal experiences in your legal career have played a crucial role in shaping the course of your professional journey?

Answer: My professional legal journey has been shaped by my teachers, the syllabus of the curriculum of LLB and methods of teaching various subjects of law as was in vogue in Delhi University then. During those days, Indian Universities did not have the 5-year integrated LL.B curriculum, so study of law was mandatorily required to be preceded by at least a 3-year under graduation degree. There was no restriction in having a higher degree than a graduation degree; in fact, I joined LL.B curriculum after completing my post-graduation degree in History. However, the real journey started in 1986 when I wrote the West Bengal State Judicial Services open competitive examination conducted by the State Public Service Commission and got selected and appointed as one of the civil judges of the State of West Bengal of 1986 batch. The legal career which began with the joining of the State Judicial Service, changed paths from time to time to in-house counsel on deputation in a Central PSU to joining the position of Joint Director (Legal) MRTP Commission to Additional Registrar Competition Commission of India and finally settled when I decided to opt for Voluntary Retirement Scheme (VRS) from government job and start private practice of law with focus on Competition Law. I joined private practice of competition law in October 2006 and have been continuing with it until date. During journey with the WBJS, I completed LL.M from Calcutta University and got myself registered with the West Bengal State Bar Council in 1994. Thus, the total legal experience as on date is over 38 years and running.

Meta v. CCI, the Competition Commission of India (“CCI”) for the first time characterised privacy as a significant parameter of competition, acknowledging that control over personal data can itself be a source of market power. Should CCI integrate privacy and data governance standards into the dominance assessment, or would such an expansion risk be overlapping competition enforcement with data regulatory functions, which are separately being addressed under the DPDP Act, 2023?

Answer: The word “control” is extremely important to understand the concept of market competition. When does an enterprise[1] exercise control upon others and why does it do so – must be examined to understand the overall intent of enterprises coupled with the behaviour and/or business conduct of such enterprise while engaging with other stakeholders operating within the same or any other adjacent market. Thus, control and market are the two extremely inseparable facets in understanding the commercial objective of a dominant enterprise. Any enterprise assumes control either by certain unique factors e.g., a State-Owned-Enterprise (SOE), first mover in the relevant market historically or by non-obvious innovation via huge sunk costs in research and development and operationalise such advantage to achieve fair and reasonable commercial gains to firstly, recoup such sunk costs and subsequently to fairly maintain the market share as the first-mover.  Profitability, arising out of higher market share of an innovative first-mover enterprise, cannot per se be questioned under any legislation as unlawful, therefore, any commercial venture of a profitable enterprise continues to attract other enterprises thereby makes the market more competitive and attractive for future investments of new entrants. New entrants provide more choices to other stakeholders – hence prima facie appear pro-competitive practices of newer enterprises and better opportunities for stakeholders.

The dominant enterprise, so long as it continues with such reasonable and fair practices for commercial gains to remain ahead of competitive forces, ensures enhancement of economic efficiencies for other stakeholders, hence not an anti-competitive practice. The Competition Act (the Act)[2] of India defines a dominant enterprise very specifically encompassing all operational business possibilities qua other stakeholders including the end consumers irrespective of whether the enterprise is a traditional or a non-traditional one. Section 4(2)(a) of the Act read with the Explanation[3] below this sub-section is one of the principal statutory mandates to justify “meeting competition defence” subject to robust evidence as may be adduced by a respondent alleged to have been involved in abuse of dominance. Additionally, dominant enterprises if alleged to have committed abuse of such dominant position by leveraging dominance in one relevant market to enter into, or protect, other relevant market in terms of section 4(2)(e), must rebut such allegations by adducing robust evidence since the Act being a Civil Law and is solely based on the maxims of principles of natural justice[4].

Data at times is considered as the new age monetary power of the owners. Thus, if this new age financial power is leveraged unilaterally and wrongfully by any enterprise causing harms to other stakeholders in  – traditional and/or non-traditional markets exclusively or otherwise – with or without consent of the owners, may come within the ambit and scope of the Act at least for investigation into such allegations, if affected persons or enterprises could substantiate such grievances with prima facie evidence. The evidence, requiring forming the prima facie order, must not necessarily enable the agency to take the matter to the hilt and usurp the power of the investigator and in disguise perform the role of the investigator despite being the adjudicator.[5]

The proposed authority likely to be set up in India under the Digital Personal Data Protection Act, 2023 (DPDP) would be mandated to enforce the new Act exclusively hence will enjoy a non-obstante type exclusivity but unconnected with the Competition Act. To mitigate overlaps, if any, the only logical remedy seems to harmonise the two separate economic legislations – one which is sector agnostic[6] and the other sectoral. The Parliament of India has been anticipating such complexities in enforcement of overlapping economic legislations and  in April 2023 introduced a new proviso below section 18 of the Competition Act whereby the Competition Commission of India (the CCI) and other sector regulators may enter into Memorandum of Understanding and harmonize overlaps, if any, and ensure operational freedom to each other without resorting to Writ Courts and derail the objectives of economic legislations.  Therefore, privacy or otherwise, if it goes beyond the control of the data fiduciary and distorts any other markets and/or stakeholders – the CCI is not precluded from investigating into such conduct subject to evidence as may be adduced by parties to such adversarial disputes. The Competition Acts and agencies mandated to enforce them, across jurisdictions, face overlaps and remedy such overlaps via harmonisation efforts, which often arise out of several economic laws, are quite common to mitigate unforeseen delays in reaching a finality of overlaps. The most talked about amongst such laws, e.g., is the Intellectual Property Laws – more particularly the Patent Laws. So, the new Act would not be an exception.

So, when and why parts of this response unambiguously indicate that a dominant enterprise intends to reap commercial benefits of its sunk costs or investments at the earliest opportunity and wishes to continue with such behaviour, could be called the market power, for longer period uninterruptedly via controlling the market fairly to meet competition challenges.

The markets controlled by monopolists or monopsonists appear prima facie per se illegal and anti-competitive as per qualitative evidence, yet substantial number of cases end up with exoneration of the monopolists of the allegations on merits based on quantitative evidence.

So, for students of law aspiring to pursue competition law, they must weigh the facts of a given situation of market with other factors and other economic externalities with an aim to outweigh adverse effects, if any, and come to a just and fair conclusion enabling assistance to the younger agencies to help evolve jurisprudence for the greater good of the society.

The National Company Law Appellate Tribunal’s (“NCLAT”) ruling in Meta v. CCI examined whether a platform's access to user data across services could affect competitive conditions in adjacent markets, even where the platform does not hold a dominant position in those markets. More broadly, where dominant platforms accumulate user data in one market and leverage it to strengthen their position in a separate, adjacent market, without any structural transaction attracting merger review, does this suggest a shift under Section 4 of the Competition Act, from traditional market-share indicators toward control over integrated data ecosystems as the operative basis for assessing dominance? If so, does the existing framework address such leveraging among digital platforms, or does it require supplementation?

Answer: NCLAT is the Court of first appeal under the Act. It is prohibited to encourage adducing new evidence than what has already been adduced by parties and considered on merits by the CCI while passing the impugned order. The NCLAT is mandated to act independent of the CCI and in doing so it may agree, disagree, or partially agree with the findings of the CCI.  In the Meta Case the NCLAT partially agreed with the findings of the CCI as it upheld one of the findings of abuse of dominance and the quantum of the penalty as imposed by the CCI but disagreed with the five-year ban for sharing data so collected with other Meta Companies for advertisement purposes. Thus, on parameters of legislative mandate, the Order of the NCLAT cannot be questioned. Parties aggrieved by any order of the NCLAT can prefer appeal on points of law before the Supreme Court of India.[7] The matter is currently sub-judice before the Supreme Court of India.

As regards the issues regarding ability of platform markets to access and use data of other enterprises and leveraging the same to their benefits may not be beyond the scope of assessment by the CCI, subject to corroborative evidence to show interconnectivity with the main allegations, since platforms are enterprises and operate within India. The element of merger review, in the question, appears a bit far-fetched in assessing ex-post facto investigation of abuse of dominance in appeals. Post combination (merger) if the merged entity fails to comply with the competition rules, the CCI is not prohibited to investigate afresh new commercial conducts of such combined entities under its suo motu powers[8] as it gained higher concentration post combination, if any, subject to evidence thereof.

Thus, digital platforms do not form a separate universe qua the traditional markets since the unilateral conduct and resultant control of such enterprises in the relevant digital markets comes within the ambit and scope of the sector agnostic Act. It is reiterated that the Act is based on the principles of natural justice hence allegations and counter allegations must be unambiguously corroborated by robust evidence. Higher market share may not always be an abusive unilateral conduct per se of a dominant enterprise but surely can trigger an investigation. The investigation in terms of the relevant provisions of the Act is intended to be kept at an arm’s length by the adjudicator, the CCI, and unless otherwise proved that the investigating agency has blatantly violated the principles of due process etc., no benefit will accrue to the respondents if the evidence justifies contravention. The orders of the CCI and the NCLAT are subject to the final decision of the Supreme Court of India.

It is not out of place to mention that Big Tech enterprises have moved Constitutional High Courts across States of India[9] challenging the jurisdiction of the CCI from the early days of institution of inquiries by the CCI but until date none of such challenges has succeeded. We may need to wait and watch the enactment of the Digital Competition Law in India. However, that law, whenever enacted, as of now appears to be implemented by the CCI which will then enjoy concurrent jurisdiction of enforcing ex-post processes of investigation against allegations of abuse of dominance for traditional enterprises and will adopt ex-ante procedure of investigation for digital enterprises for unilateral conducts while appellate authorities remaining the same for both.

In the absence of a globally harmonised law, how can a national competition authority like the CCI effectively regulate the cross-border flow and use of data within a global corporate ecosystem?

Answer: There is no need to adopt or develop a globally uniform rule for investigating and remedying breaches of digital enterprises since the basic economic policies of the countries vastly differ from each other. The Act is a national law of India and operates within the geographical boundaries of India. The adjudicatory processes amongst nations vary too. In India, the entire hierarchy of the adjudication of the Act is structured with statutory exclusivity of the CCI, the NCLAT and the Supreme Court of India. Constitutional High Courts can, however, adjudicate alleged breaches of due process issues independent of the structure of the competition hierarchy. [10] However, the Act has an enabling provision of adopting and enforcing effects doctrine which empowers the CCI to inquire, investigate and pass final orders against overseas enterprises indulging in cross-border anti-competitive practices in India through their either Wholly Owned Subsidiaries (WOS) or partially owned subsidiaries having presence in the Indian markets.[11] The repealed Monopolies and Restrictive Trade Practices Act, 1969 (repealed legislation) did not have this power to investigate cross-border antitrust issues which helped a few enterprises got the benefit of not being investigated from heinous antitrust issues of cartelisation.[12] Besides trust amongst various enforcing agencies, the competition agencies are members of the International Competition Network (the ICN) and via this global network and its various Working Groups, dynamic market-related challenges keep engaging the attention of the ICN for minimising futuristic harms to stakeholders.

Does the Court’s holding in Meta v. CCI, that potential anticompetitive effects alone were sufficient to establish abuse, signal a gradual shift in India towards a precautionary approach, where practices such as default opt-ins, a “take-it-or-leave-it” mechanism, deemed consent through continued use, inter alia, are treated as indicators of competitive harm?

Answer: The jurisprudence evolved thus far in India does not preclude the CCI from investigating alleged breaches of the Act whether practiced by Big Tech and/or any other non-traditional enterprises. The “take-or-pay” or “take-or-leave” condition has already been conclusively adjudicated by the CCI in the matter arising out of allegations of abuse of dominance against a monopolist SOE in the energy sector.[13] However, justification of “take-or-pay” of “take-or-leave” condition in purchase agreement adopted by a monopoly seller upon its customers in energy markets cannot be applied as a binding ratio and adopted in platform and/or digital markets. Each investigation must be assessed and examined on merits based on the very nature of the varying market realities. Mimicking one ratio with another may lead to wrongful conclusions since dependence on the product or services by the end consumers may vary on case-to-case basis. In the energy market the consumers are dependent upon the monopolist seller-enterprises who help them get uninterrupted essential supplies of the product in a demand-supply mismatch market, whereas in digital or platform markets the consumers may prefer, but not become dependent upon, supplies as they still have alternative choices e.g., brick-and-mortar supplies or any other competitive enterprises including alternative platforms. Hence, the CCI needs to be extremely cautious in adopting uniform standards of this specialised condition of “take-or-leave” or “take-or-pay” from markets to markets otherwise intent of the legislation would be repealed by wrong application of standard of evidence.

The Digital Personal Data Protection Rules, 2025, introduce specific standards governing consent and its withdrawal in the context of personal data processing. In light of India's evolving data protection framework, how should competition authorities and regulators approach the oversight of privacy policy changes by dominant platforms. What are your views on dominant digital platforms being potentially subjected to ex ante regulatory scrutiny before they implement significant changes to their data-sharing architecture?

Answer: Harmonisation between the CCI and the existing and future sectoral regulators is the key to mitigate the overlaps and minimise unforeseen litigations. Prior to the amendments of the Act, introduced in April 2023, the CCI and the Sectoral Regulators did meet these challenges without recourse to litigation.[14] With the introduction of the new proviso to section 18 of the Act, it is presumed that the challenges, if any, whenever arise, must be addressed better than ever before. 

In the absence of clear institutional demarcation between the CCI, the Supreme Court's constitutional jurisdiction, and the emerging Data Protection Board of India, does the resulting overlap risk enabling forum-shopping by digital platforms or create fragmented or inconsistent compliance obligations?

Answer: The Supreme Court of India is the final statutory appellate authority of all the orders which arise out of the NCLAT and other specialised appeal tribunals. Besides such jurisdiction, the Supreme Court of India is the final appeal authority of orders which arise from High Courts of India independent of the NCLAT and the other appeal tribunals. In terms of Article 136 of the Constitution of India, Supreme Court of India additionally enjoys the mandate to adjudicate Special Leave Petition from orders of any courts of India. Article 32 confers the Writ Jurisdiction exclusively upon the Supreme Court of India in disregard to the identical powers enjoyed under Article 226 by High Courts of India. Therefore, there exists an undisputed demarcation of powers which the Supreme Court enjoys between statutory appeals and other appeals including the original jurisdiction conferred upon it by the Constitution of India. One common issue needs to be highlighted about orders passed by the Supreme Court of India on points of law reaching finality is the power of Article 141 of the Constitution which binds all inferior courts and tribunals from further adjudicating on identical issues unless set aside by a larger Bench of the Supreme Court of India. The Supreme Court of India has decided several matters relating to forum shopping and adverse effects of such delaying tactics. Hence, it may be too far-fetched to assume, by way of conjectures and surmises, that every alternative fair and genuine remedy as may be initiated by any party aggrieved must be dismissed at the threshold on grounds of forum shopping.

What is your advice to young professionals and law students who aim to build a career in the field of Competition Law?

Answer: A law graduate, if wishes to pursue and make a professional career in competition law, must read and understand as to how do markets operate. What role does enterprise play in operation of markets.  How important are the roles played by the upstream, midstream and downstream market players within the same business chain or otherwise.  What does the concept of multi-sided market mean in digital market qua the market structure in traditional market! If self-preferencing is a plausible unilateral anti-competitive conduct-based practice of a dominant digital enterprise, then how do authorised distributors differ from it in a non-digital market since authorisation of distributors is a private arrangement between the suppliers and the distributors to keep other competitors away from such arrangement! Large section of end consumers and buyers prefer strong quality control of the Original Equipment Manufacturers (OEMs) in traditional markets hence may willingly opt for “authorised distribution network”. Identically, self-preferencing in the digital markets between digital enterprises on one hand and their multi-sided market operators on the other, must be thoroughly examined via robust evidence to distinguish between consumer preferences and dependences. 

Professor Adam Smith’s quote remains relevant forever which goes as under:

"Conspiracy against the public" appears in The Wealth of Nations (Book I, Chapter X) to warn that members of the same trade often meet—even for fun—only to collude on raising prices and reducing competition

He warned that such gatherings, or any regulation favouring them, are detrimental to consumers. "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices".

This quote of Prof Smith, made in 1773, remained relevant until now and will continue to remain so forever perhaps. 

Thus, industry and consumers are the two most important stakeholders of any trade when intermediaries between them act as facilitators. The roles of facilitators remain important in trade irrespective of whether such trade is traditional or digital. More importantly, the facilitators operating between manufacturers and end consumers run a business of a different kind but aim to maximise profits, independent of manufacturers and end buyers, hence are subject to investigation by the CCI if occasion arises.  Facilitators are dependent on both manufacturers and end buyers; hence they are expected to coordinate with both which at times may be prone to harmful collusion. The new proviso below section 3(3) of the Act, inserted in April 2023 amendment, may provide options to remedy such harmful collusions.

Therefore, in brief, it is advisable that new law graduates must spend time in reading economics of business and apply such knowledge into competition law and policy to assist their clients and adjudicatory authorities without compromising on the ethical standards of the profession. More one innovates in research, better will be for her/him as markets are dynamic and keeping pace with markets will be unavoidable going forward.

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[1] Section 2(h) read with section 2(l) of the Act.

[2] Explanation below Section 4(2) of the Act

[3] For the purpose of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or services referred to in sub-clause (ii) shall not include such condition or price which may be adopted to meet the competition

[4] Section 36(1) read with section 36(2) of the Act.

[5] Martin Burn Ltd vs RN Banerjee (AIR 1958 SC 79)

[6] Competition Act, 2002 (as amended)

[7] Section 53 T which is larger in scope than Section 53 A of the Act

[8] Section 19(1)(a) of the Act

[9] Article 226 of the Constitution of India, 1950

[10] CCI, NCLAT and the office of the Director General constituted under Chapter V of the Act are State Instrumentalities under Article 12 of the Constitution of India

[11] Section 32 of the Act

[12] Haridas Exports vs All India Float Glass Manufacturers Association & Ors (2002) 6 SCC 600 decided on 22 July 2002 [discussed Alkali Manufacturers Association vs ANSAC also]

[13] GAIL vs buyers of PNG/LNG/CNG customers of India [Case Nos 16-20 of 2016 and 45 of 2016 of the CCI]

[14] Section 21 and 21A of the Act