Android case: Setback to Google, Supreme Court refuses to modify its order

In a setback to Google, a Division Bench of the Supreme Court headed by Chief Justice of India Dhananjaya Y. Chandrachud on Friday declined a plea by tech giant to modify its January 19 Order. 

The Supreme Court had vide the said order refused to interfere with the interim order passed by National Company Law Appellate Tribunal (NCLAT) declining to grant stay on the directions issued by the Competition Commission of India (CCI) in Android matter on October 20 last year. 

 The plea for modification was argued by Maninder Singh Senior Counsel representing Google before the CJI led Bench. After a brief hearing, CJI remarked “no clarification” and disposed of the plea. CCI was represented by Advocates Samar Bansal and Manu Chaturvedi.  

The latest SC move to decline plea to modify its order is significant as the entire Android matter is now before NCLAT, which will hear Google’s appeal from February 15-17.

It maybe recalled that for the sake of good order, Google had filed an application before the Supreme Court seeking “modification” of the apex court’s judgement in the Android case, stating that the January 19 ruling did not record the entire extent of Google’s “offer”.

The “modification application” was filed on January 25 to the limited extent of the “offer” that was made by Google on a without prejudice basis.

The SC had on January 19 while rejecting Google plea for stay of NCLAT order, extended the period of compliance by another week, and this period expired on January 26. 

However, on January 25, just a day before the extended deadline to implement CCI’s ten directives expired, Google said in a blogpost that it has informed CCI on how it would comply with CCI directives. 

Tech giant said it was making changes to its platform in India, allowing original equipment manufacturers (OEMs) to li­cence individual Google apps for pre­installation on their devices. Earlier, the apps came pre­installed in the An­droid smartphones/devices for free, but many apps forming part of its GMS could not be uninstalled.

Google on January 25 among other announcements around CCI directives also said that Indian users will now have the option to choose their default search engine via a choice of screens.

Modification application

In its modification application to SC’s January 19 ruling, Google contended that Para 4 (iv) of the judgement— which records the submissions made by Google’s counse — needs to be modified as it has not captured the entire “offer” made by Google for partial compliance of CCI’s ten directions provided in its ruling of October 20 last year. 

In particular, Google has in the modification application highlighted that the judgement has not recorded the counsel submission that “appellant” (Google) would ensure the unbundling of only: (I) Search and Chrome from Play, and (II) Chrome from Search.

Also, the other submission that has not been recorded is “ In terms of the decision of the European Commission dated July 18, 2018, the Appellants would ensure that the Search app pre-installation exclusivity only on portfolio-wide RSAs would not be pursued.

In addition, the judgement does not record that such an offer was made on behalf of Google without prejudice to its submissions as to why the operations of the CCI ruling in Android matter — more particularly in paras 617.1, 617.2 and 617.4 ought to be stayed, the modification application said.

For the sake of good order, these additions need to be made to the SC judgement’s para 4(iv), including the point that such offer was made on a “without prejudice” basis, Google has submitted. 

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