Why antitrust is a jumbo Indian problem

While these investments are a vote of confidence for Jio Platforms and its wide array of digital services—ranging from smartphone apps to online retail—questions have been raised about the potential anti-competitive nature of these deals. Anti-competitive practices represent a range of business practices that lead to the emergence of one or a few dominant firms, which are then able to restrict competition in the industry in a bid to preserve their dominant status.

While the implications of the Jio Platform’s potential dominance are immense, dominance is an endemic feature of many other sectors of the Indian economy. An analysis of 2035 listed companies across 298 industry groups shows that in up to 100, or 33% of all industry groups, there is one single company that controls over 50% of the net sales in the sector. Even with a stricter definition—at 70% of the net sales—there are still 50 or 17% of industries which have a dominant firm, according to data sourced from Capitaline.

Several of these dominant entities are legacy firms which have held sway for a significant period of time, such as ITC for cigarettes. In the automotive sector, there are companies such as Bajaj Auto that dominates the scooters and three-wheeler industry, and Tata Motors, which has the most significant presence in light and heavy commercial vehicles. In metals and mining, Aditya Birla group-owned Hindalco and Vedanta group’s Hindustan Zinc dominate the Aluminium and Zinc industries, respectively. This list also includes public sector undertakings such as the Oil and Natural Gas Corp. that is the country’s largest firm engaged in oil exploration.

How has firm dominance changed over the past 10 years? Data shows that while the number of industries or sectors with dominant firms has declined—as it often does in an expanding economy—the dominant firms’ market cap in their respective industries has increased correspondingly (See chart 1).

The consolidation of market power in these dominant firms means that they are in a position to dictate terms. Similar concentration risks abound India’s newly emerging internet economy too. And these risks are a lot harder to quantify since many of the firms are either unlisted private entities or listed in stock markets outside the country. But estimates indicate that Facebook and Google together mop up 68%of India’s digital ad market revenues, while Amazon and Flipkart serviced 90% of all e-commerce orders during the 2019 festival season period in October.

In the absence of robust anti-competitive regulation, these firms can then potentially misuse their market power to enrich themselves at the expense of competitors and consumers. This also underscores the need for a competent authority to ensure free and fair competition in the marketplace.

Toothless regulator

The Competition Commission of India (CCI) is the statutory body mandated to regulate anti-competitive activity in the country. Based on the Competition Act 2002, the CCI’s stated objectives are to promote and sustain competition in markets, while protecting the interests of consumers and ensuring freedom of trade to all market participants. The CCI started full-fledged operations in 2010, following the repealing of the Monopoly and Restrictive Trade Practices Act, which was in force from 1969 to 2009. Since its inception, till 31 March 2019, the CCI has noted 1008 instances of ‘anti-trust’ matters, meaning, instances of anti-competitive practices. Over 20% of these cases have been in the real estate sector, followed by automobiles at 10%. In the year 2018-19 alone, the CCI received 68 cases related to anti-competitive agreements and abuse of dominant position. It passed prima facie orders in 65 of these cases and completed investigation in 51 instances and imposed penalties to the tune of ₹357.85 crore. However, merely ₹1.41 crore was actually realized as on 31 March 2019. This is because most of the orders of the CCI are under appeal before the National Company Law Appellate Tribunal (NCLAT) or under challenge in the high courts or the Supreme Court.

Over the past 10 years, the CCI has imposed penalties amounting to ₹13,381 crore, but less than 1% of that amount (about ₹127 crore) has been actually realized (See chart 2). Shockingly, ₹66 crore, or over half of this fine amount, has been refunded to the offending parties. In August 2016, the CCI had imposed its largest-ever penalty of over ₹6,700 crore on 11 cement companies and their trade association, Cement Manufacturers Association, for cartelization and fixing prices. Even though this fine was upheld by the NCLAT, the Supreme Court in 2018 stayed this order, directing the companies to pay only 10% of the penalty amount.

The many loopholes

The inability of CCI to consistently adjudicate and enforce punitive measures points to certain lacunae in the provisions of the Competition Act, 2002 from which the CCI derives its authority. In an article published in the Economic and Political Weekly, Aditya Bhattacharjea, a professor at the Delhi School of Economics, argues that even though the 2002 Act represents an improvement from its extremely restrictive predecessor —the MRTP ACT—it remains riddled with loopholes and ambiguities. According to Bhattacharjea, this creates unnecessary legal uncertainty, which favours lawyers and law firms. For instance, the law allows the CCI to leave some leeway for “relative advantage, by way of contribution to the economic development." This may allow large firms to justify their anti-competitive practices in the name of development, he argues.

The most significant challenges that the CCI will encounter in the future, however, are in new emerging spheres such as telecom, internet and big-technology. In these spheres, the CCI’s functions also overlap with those of regulatory bodies such as the Telecom Regulatory Authority of India (Trai). To assess and ensure competition in these spheres, CCI will require staff with specialized knowledge in technology as well as an understanding of modern industrial economics.

In the case of Reliance Jio, the company has had several run-ins with both Trai and the CCI ever since it announced its disruptive entry into the market in September 2016. The incumbent telecom entities—Airtel, Vodafone and Idea—filed objections against Jio, alleging that its aggressive tariffs amounted to ‘predatory pricing’. Both Trai and CCI, however, ruled in favour of Jio, arguing that since it was new player and not a dominant firm, its tariffs could not be deemed as anti-competitive.

According to Smriti Parsheera, technology policy researcher at the National Institute of Public Finance and Policy, the distinguishing feature of internet and telecom markets is the accruing of ‘network effects’, a phenomenon whereby a product or service gains additional value as more people use it. In an article titled Challenges of Competition and Regulation in the Telecom Sector in the Economic and Political Weekly, Parsheera argues that there can be situations where large internet firms and technology companies can pose anti-competitive challenges due to their dominance arising from network effects. This is precisely the potential risk posed by Jio Platforms. In fact, the investment from Facebook in Jio Platforms was under review by CCI for potential misuse of user data, but the deal was eventually approved on the 22 June. CCI concluded that the deal was pro-competitive, benefits consumers, small and local micro-businesses and “takes forward the vision of digital India".

The network effects emerging from the Jio-Facebook merger are immense. Facebook has 241 million active users in India on its social networking site, and over 400 million WhatsApp users. With Jio having 388 million subscribers, the combined entity would be a veritable tech behemoth. With further investment from Intel as well as Google, whose Android operating system powers the majority of the 500 million smartphone users in India, Jio’s dominance will only be enhanced. Several commentators have noted that Jio Platforms is all set to become all the FAANG (Facebook, Amazon, Apple, Netflix, Google) companies rolled into one for the Indian market, while also becoming a significant global player. Bloomberg noted that Jio had secured over 50.7% of all global telecom deals this year till the 18th of June.

What are the implications for the consumers and competitors? Jio’s entry saw tariff wars that greatly reduced prices and benefited the consumers at great detriment to its competitors. The expansion of Jio platforms might portend similar benefits for consumers in the short-haul. However, the longer-term ramifications are uncertain. The concentration of such clout in India’s digital economy in a single entity might eventually influence or even restrict the choices of consumers. In the run-up to the Jio deal, Facebook floated a new wholly-owned subsidiary called “Jaadhu Holdings, Llc" in March 2020. The entire investment was routed through Jaadhu, and Facebook was able to able to declare that Jaadhu “is not engaged in any business in India or anywhere in the world", therefore denying any plausible collusion. As tech giants become more creative to skirt anti-competition arrangement, CCI will have to become savvier. One of the places the CCI can look to for a precedent is the European Commission and the US federal trade commission, which has set a really high bar in negotiating with tech giants.

Global action

Since 2010, the European Commission has launched three anti-trust investigations against Google, related to Google Shopping, AdSense and the Android operating system. Google has been found guilty regarding the latter two and has been fined over €8 billion. From 2010 to 2019, the European Commission has imposed fines amounting to €16.2 billion against cartels alone. Google’s parent Alphabet is also currently under an anti-trust investigation by the US justice department for its advertising clout, while Facebook is the subject of an anti-trust investigation by the federal trade commission. On the other hand, the favourable track record of Jio in terms of its own brush with anti-competition law in India would have certainly encouraged Google and Facebook’s investment.

With India’s Atmanirbhar policy tilt, the country is looking to create globally competitive firms. For this, there might be a temptation to have a permissive outlook on domestic monopolies and allow them to scale up. However, this policy is fraught with peril and Indian consumers, as well as the economy, may end up paying a heavy price in the long-run. The draft Competition (Amendment) bill, 2020, currently before the Parliament, has taken a few steps to empower CCI by bestowing it with regulatory functions, while also mandating guidelines for the settlement of penalties by offending parties. But whether India’s economic sphere will tilt overwhelmingly in favour of long-term consumer interest and fair marketplace competition is still an open question.

Arjun Srinivas is with www.howindialives.com, which is a database and search engine for public data.