[Vivek Kumar is a Research Fellow in the Corporate Law and Financial Regulation Vertical at Vidhi Centre for Legal Policy]
In September, the Competition Commission of India (“CCI”) closed its investigation into the allegations of abuse of dominance by Google concerning alleged discriminatory treatment of real-money gaming applications on Google Play and Google Ads. The information was filed before the CCI by Winzo Games, a developer of online real-money games. Interestingly, the decision to close investigations came against the backdrop of the Promotion and Regulation of Online Gaming Act, 2025 (“Online Gaming Act”), which prohibits offering online money gaming services, advertising online money games, and transfer of funds towards payment for any online money gaming service.
While the CCI’s inherent power to recall its orders has been established by the Delhi High Court, it is the first time the CCI has closed an investigation citing the impossibility of imposing corrective measures due to a change in law. While the CCI’s reasoning appears sensible insofar as it prioritises resource allocation over academic inquiry, it overlooks two distinct but relevant questions: (1) whether the absence of corrective measures renders the investigation itself infructuous; and (2) whether any anti-competitive conduct occurred when the underlying market was lawful.
Role of Competition Law
The CCI in its order stated that the “objective of an inquiry by the Commission is remedial and not punitive.” While it may be true that the objective is not primarily punitive, this observation of the CCI does not correctly reflect the realities of the competition law landscape in India. In fact, it underestimates the true extent of the potential that competition law possesses in controlling the economy and ensuring consumer interests are protected.
The Supreme Court in Samir Agrawal v. CCI held that the proceedings before the CCI are in rem proceedings and inquisitorial in nature, meaning such proceedings serve a broader public interest rather than being merely remedial for a single party. In fact, the preamble read with section 18 of the Competition Act, 2002 indicates that the statutory scheme of the Act reflects a broader mandate to “prevent conduct having an adverse effect on competition”. In Excel Crop Care v. CCI, the Supreme Court held that competition law seeks to protect the competitive process itself, rather than safeguarding individual competitors in the market. Interestingly, the judgments also highlight that the role of competition law is not merely to sanction anti-competitive conduct, but also to deter future anti-competitive practices. The last observation is pertinent as deterring an anti-competitive practice inherently involves identification and subsequent condemnation of such practices, which precedes the inquiry into what measures can be taken to address such conduct. In fact, even the finding of a contravention has been found to induce a negative effect in the affected markets, potentially deterring such conduct.
Therefore, antitrust enforcement serves a greater purpose than being primarily corrective, as assumed by the CCI in its order. Accordingly, the reasoning of the CCI that an inquiry into Google’s conduct would simply be an “academic” or “abstract question” whose findings would have no practical consequence reflects an underestimation of competition law itself. While the CCI may prefer different methods for detection and elimination of such practices, it is questionable whether the unavailability of a corrective remedy, by itself, is sufficient to render an otherwise legitimate competition inquiry infructuous or merely academic.
Recall Powers of the CCI
The CCI cited the Delhi High Court’s judgment in Google v. CCI to establish that the CCI does possess powers to recall a prima facie order. However, such powers were not held to be present without important qualifications. The Delhi High Court categorically held that power to review or recall would be exercised only if, without entering into any factual controversy, the CCI finds no merit in the complaint on which the investigation had been ordered. However, and more importantly, the CCI overlooked a significant judgment that discusses the scope of power to recall at length, an examination of which would have given sufficient guidance on how such powers are to be exercised.
In Cadila Healthcare v. CCI, the Delhi High Court again expounded upon such power to recall. While expressing serious misgivings into the reasoning of the bench in the Google v. CCI, the Court further circumscribed the scope of the power. It held that such powers can only be justifiably used in “rare circumstances where the fraud is egregious and does not involve a detailed hearing or where the mistake is of the kind covered by section 38.”
A closer reading of these judgments implies that the scope of power to recall is much narrower and more specific than the CCI’s order has presented it to be. These judgments, read together, essentially say that the CCI is justified to exercise its power to recall when, due to some exceptional circumstances, the complaint is rendered without merit, which can be established without going into the factual controversy. In other words, the power to recall can be exercised only when, due to some external factors, such as egregious fraud, the basis of the investigation has itself lost rigour.
Applying these principles to the instant case, the passage of the Online Gaming Act does not demonstrate that the allegations, which were the basis of the prima facie order, have lost merit. The basis of the complaint, which is that Google engaged in potentially anti-competitive conduct which may have had an adverse impact on the competition, still remains intact even after the said change in law which merely changes the legal and remedial circumstances. Therefore, the CCI’s position appears to unusually broaden the scope of recall powers which were intended to be much more precise.
Relevance of Historical Conduct
The CCI’s order also leaves another critical question unanswered: whether Google’s conduct was anti-competitive. This is a question distinct from and precedes the CCI’s central inquiry whether any corrective measures can be imposed. The CCI has inadvertently conflated the two questions, arriving at a conclusion that unavailability of corrective measures render the first inquiry moot.
However, this may not be the correct approach towards potentially anti-competitive conduct. In fact, it goes against the established practice of the CCI. The order in the Uttarakhand liquor case showcases a completely different approach of the CCI towards historical conduct. In this case, the incumbents engaged in anti-competitive conduct leading to denial of market access to the members of the informant association. However, the conduct of the incumbents ceased before the investigations could be started due to a change in excise policy that revoked the exclusive wholesale arrangement. The CCI in its order noted that:
“The directions are given particularly having regard to the fact that the conduct in question as well as the impugned agreement has ceased to exist with effect from 19.04.2016, and all the OPs have ceased to have any role in distribution and supply of IMFL in State of Uttarakhand in the wake of change of liquor policy which operated for a limited period, i.e. 27.04.2015 to 19.04.2016.” [emphasis added]
The CCI not only investigated the conduct but found the incumbents guilty of abuse of dominance, leading to an imposition of a penalty and a direction to desist from indulging in similar conduct. These measures were imposed by the CCI in spite of the fact that all the relevant parties had ceased to have any role in distribution and supply. While it may be argued that the relevant market in this case still survived and the parties may, in future, resort to similar conduct. However, the case in point is that similar to the instant case, the change in policy made corrective measures impractical but the CCI still investigated the conduct and resorted to imposition of penalties and direction to desist. It is to be noted that such measures can be taken by the CCI even in the instant case. Therefore, this order lies in complete juxtaposition with the order in Winzo v Google, despite sharing factual similarities.
Conclusion
This post critiques the closure order of the CCI in Winzo v Google and argues that an annihilation of the relevant market and the impossibility of corrective remedies, arising due to a change in law, cannot be a justification for the closure of the investigation. The mandate of the CCI is broader than being simply corrective and includes the duty to identify and prevent practices having an adverse effect on competition, which can only occur through investigation. This is buttressed by the fact that competition law is designed to serve broader interests of the public and the economy.
Further, the order of the CCI suffers from legal infirmities on two other grounds: first, it misinterprets the scope of its powers to recall an order and, second, it disregards its own practice in previous decisions. While the illegality of the relevant market made it impossible to impose any corrective action, the CCI’s ability to impose a penalty to deter such conduct by Google in any other segment remained intact.
Google’s dominance in the relevant markets remains uncontested and the possibility of similar conduct in other segments cannot be ruled out. In fact, if after investigation, the CCI found Google guilty of abuse of dominance, it could send a signal to other dominant players in similar markets to refrain from similar conduct. In this way, even a finding of contravention, even without any sanctions, can have some utility in promoting competition, instead of being merely “academic”, as stated by the CCI.
While the order merits a review due to legal infirmities, it also reflects a broader and more prevalent concern in Indian competition law, which is judicial incoherence and lack of a broader competition policy. The competition law framework in India may benefit from establishing clear goals to guide the CCI’s functions, ensuring that enforcement remains consistent across industries and sectors.
– Vivek Kumar
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