Home / Opinion / Two minds on antitrust cases are better than one
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To keep markets free and fair and ensure that competition among players works to the benefit of consumers and innovation, an antitrust watchdog needs to be quick on its feet. This may explain reported changes proposed in the Competition (Amendment) Bill, 2022, aimed at making it possible for members of the Competition Commission of India (CCI) to singly examine allegations of anti-competitive behaviour by businesses. As of now, it’s a three-member panel that must judge such cases. On the face of it, this would allow faster disposal of cases, given the CCI’s growing workload. On an average, a three-member panel handles around 245 cases a year and is able to settle only a little over 80 per annum, with the rest spilling over into its backlog column. But the trade-off of such a shift will not be simple. Online, new business models are emerging rapidly and market categories are getting blurred. Technology firms and their overlaps with all kinds of traditional businesses are only going to make it harder to assess market dominance and its abuse, even as the CCI’s role becomes even more important.

The CCI was set up in 2003 under a law that replaced the Monopolies and Restrictive Trade Practices Act of 1969, a piece of legislation from the licence raj era that was out of touch with the reality of rivalry in liberalized India. Drafted on the lines of antitrust laws in the US and other advanced economies, the Competition Act’s aim was to bar anti-competitive practices. The CCI was tasked with busting cartels, vetting mergers and acquisitions that may unfairly tilt a market in favour of big players, and taking up complaints of bullying. In an old industrial framework, this was relatively straightforward. As a market monopoly would typically translate to pricing power, actual prices gave the game away. Dearer cement on account of collusion among its makers, for example, would burden its users and shrink incentives for innovation. In the digital economy, much of this goes for a toss. For one, users of social media networks do not always pay for these services, even if their data enriches platforms and can be misused, so it’s only advertisers and the like that may get financially squeezed. Second, concentration of power on the internet is trickier to regulate, as many big firms are based overseas. Third, while ‘network effects’ coupled with low user sign-up costs can give leaders an unbeatable edge that assures them huge wins in winner-takes-all markets, people’s fast-evolving patterns of app usage could still leave such spaces contestable. Facebook, WhatsApp and Instagram may wield market clout as a trio, for instance, but TikTok has taken away screen time in places like the US. All this complicates the regulatory job.

Across the world, Big Tech companies are facing antitrust scrutiny, even as valid calls arise for the assessment of harm done by market dominance to include new forms of extraction. What’s evident is that judging antitrust cases will get increasingly difficult. In such a scenario, more expertise—and not less—is essential. So is diversity in the views brought to bear. In this light, doing away with plural panels would deprive the process of what we need for well-considered rulings. Two minds, as it is often said, are better than one. The CCI must expand its capacity instead, drawing on as wide a range of legal, business and economic analysis as possible. Sure, solo case examiners may help it clear a mounting pile-up. What’s expedient, however, mustn’t get in the way of what’s just.

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