Concerns are rising in policy and industry circles about the exercise to frame a statute on competition aspects of regulating digital markets getting consigned to the backburner. The anxieties have become acute of late because even after an extended term, the 16-member inter-ministerial Committee on Digital Competition Law (CDCL) has been unable to firm up any conclusive report.

“The uncertainty over fate of separate digital competition law can be gauged from the fact that the CDCL has not met even once for over three months and the extended term of end October now having lapsed,” sources in the know said.

Ex-ante framework

Start-ups in India are still pinning their hopes on the government putting in place an ex-ante framework for addressing the anti-competitive conduct of Big Tech in a pre-emptive way that would give them a level-playing field. 

Even digital news publishers — who have been getting a raw deal from Big Tech on revenue sharing for digital news content — are relying on enactment of an ex-ante framework to strengthen their hands and enhance their revenues.

The Corporate Affairs Ministry (MCA) had, on February 6 this year, set up CDCL to frame a draft for the proposed law in three months. However, the Committee has overshot the initial time allocated and the panel’s tenure has been extended several times since May 6. The last extension came a month back when the tenure was extended to end October 2023.

CDCL had been tasked to examine the need for an ex-ante regulatory mechanism for digital markets through a separate legislation. 

The panel was asked to review whether existing provisions in the Competition Act and the Rules and Regulations framed under it are sufficient to deal with the challenges that have emerged from the digital economy. 

Initially, there was lot of controversy over the composition of CDCL with the panel having predominance of representatives from Big Tech and law firms counting Big Tech as their clients. 

Ahead of BRICS International Competition Conference in the capital last month, the Competition Commission of India Chairperson Ravneet Kaur, who is a member of CDCL, said on a specific businessline query: “It is for the government to take a final call on whether a separate digital competition law should be enacted or not.” 

With India slated to go in for general elections sometime in May next year,  the delay has led to a scenario where  the present  government may not be able to  complete the legislative process  before the model code of conduct kicks in. 

Based on the recommendations of the MCA appointed CDCL, the Government will have to figure out if it would want a separate digital competition law in the “whole of government approach” that is set to be adopted for regulation of digital markets, experts said.

In this “whole of government approach” for regulation of digital markets, there is still a possibility that the proposed digital competition law may not see the light of the day and this cannot be ruled out, said experts. 

India is contemplating the enactment of a Digital Competition Act at a time when there is growing concern among policymakers around the world about the power and dominance of tech giants in the digital economy, and the need to ensure a level playing field for all players in the market. 

Growing digital economy

India’s digital economy —which has been growing at frenetic pace in the last decade — is set to surpass the $1-trillion mark in 2025-26.

Competition law experts are still divided on whether India needs a separate Digital competition law or not. Some still contend that it would be premature for India to go in for an ex-ante framework through a separate law to prevent anti- competitive conduct of Big Tech in digital markets.

Indications are that even if the government were to finally go ahead and enact a digital competition law, the proposed framework is unlikely to be entirely patterned on the Digital Markets Act enacted by the EU. This is significant as there has been wide speculation that India’s proposed digital competition law will be based on DMA.