Lip Service and Liability: Effects Analysis in Indian Competition Law

Introduction

‘Effects analysis’ is one of the most frequently invoked, and least understood, phrases in Indian competition law. Orders of the Competition Commission of India (CCI) and judgments of the National Company Law Appellate Tribunal (NCLAT) are replete with references to ‘foreclosure’, ‘consumer harm’ and ‘qualitative effects’, yet these labels are often deployed without a clear analytical framework, coherent counterfactual, or rigorous economic evidence.[1]

The Supreme Court's 2025 judgment in Competition Commission of India v. Schott Glass India Pvt. Ltd. explicitly mandates an effects-based approach for abuse of dominance cases under Section 4 of the Competition Act, 2002.[2] However, Schott Glass also exposes a deeper structural problem as Indian authorities now recognise that effects analysis is required, but are yet to articulate operational tests and evidentiary standards comparable to those in the European Union, United Kingdom and United States. The result is a system where effects analysis is honoured in rhetoric but thin in substance.

The Statutory Framework and Schott Glass

The Competition Act is drafted in effects-orientated terms, with liability grounded in conduct causing an ‘appreciable adverse effect on competition’ (AAEC). In Schott Glass, the Supreme Court upheld COMPAT's reversal of the CCI's findings, holding that discount schemes cannot be condemned merely because they fall within Section 4(2)'s textual categories, there must be visible and substantial harm to competition. 

Crucially, Schott Glass mandates effects-based analysis and clarifies that competition law targets the abuse of dominance, not its mere possession. Yet the judgment leaves important questions unanswered: it does not lay down a structured, stepwise test for defining counterfactuals, specifying foreclosure thresholds, or allocating evidentiary burdens. Effects analysis is now formally required, but its operational content remains under-specified.

CCI Practice: Form-Based Reasoning Persists

The gap between statutory promise and enforcement practice is most visible in recent digital market cases.

In the 2022 Google Android decision, the CCI found several licensing practices abusive, referring to foreclosure and harm to innovation.[3] However, the analysis leans heavily on structural inferences, for instance, dominance combined with contractual constraints is treated as sufficient to infer likely foreclosure, with limited engagement with empirical evidence. The NCLAT largely upheld these findings, deferring to the CCI's characterisation of ‘qualitative’ evidence rather than insisting on a clearly articulated theory of harm tested against data.[4]

The CCI's 2024 order on WhatsApp's privacy policy found that Meta/WhatsApp had abused its dominance by imposing unfair terms (mandatory acceptance of updated data‑sharing arrangements) and by leveraging dominance in messaging to strengthen Meta’s position in online display advertising.[5] The CCI imposed a penalty of ₹213.14 crore and, significantly, a five‑year ban on data‑sharing between WhatsApp and other Meta entities for advertising purposes. Yet the reasoning displays several hallmarks of lip‑service effects analysis. The CCI did not clearly model the counterfactual: it did not explain how the competitive landscape would likely have evolved absent the impugned policy, and any degradation of privacy was effectively treated as a competitive harm, without an effort to quantify or even qualitatively calibrate the magnitude of that harm, or to assess switching constraints on users. The leveraging finding rested on broad assumptions that greater data access automatically enhances Meta’s competitive advantage in advertising markets, with limited concrete evidence of foreclosure of rival ad intermediaries or demonstrable changes in market structure.

On appeal, the NCLAT set aside the data-sharing ban and leveraging finding whilst upholding the abuse finding.[6] However, the NCLAT, like the CCI, did not meaningfully operationalise how to measure and balance such non‑price harms. The appellate review thus reinforces rather than corrects the core deficit: both bodies speak the language of effects (i.e., consumer choice, non‑price parameters, leveraging) but largely avoid a structured examination of evidence, counterfactuals and the magnitude of harm.

Similarly, the 2025 Android TV settlement appears to have proceeded on the assumption that contractual tying and exclusivity by a dominant firm necessarily produce anticompetitive effects, without a transparent and published effects analysis.[7]

Comparative Lessons

The EU has evolved from form-based to effects-based analysis. In Intel, the Court of Justice of the European Union (CJEU) constrained the use of formal presumptions of illegality and required an assessment of capability to harm competition.[8] In Cartes Bancaires, the CJEU narrowed the category of ‘by object’ restrictions, holding that only conduct revealing a ‘sufficient degree of harm to competition’ by its very nature can be treated as such, requiring examination of actual effects for other restraints.[9]

The UK demonstrates the value of detailed administrative guidance combined with robust appellate scrutiny. The Competition Appeal Tribunal engages deeply with expert evidence and as-efficient competitor analyses, carefully testing regulators’ theories of harm against the economic record.[10] 

In US antitrust law, the rule of reason functions as an embedded effects analysis with a structured burden-shifting framework: plaintiffs must demonstrate substantial anticompetitive effects, defendants may offer pro-competitive justifications, and plaintiffs must then show these are pretextual, less restrictive alternatives exist, or that harms outweigh benefits. 

India's competition regime lacks this jurisprudential scaffolding, giving the CCI wide discretion but few analytical guardrails. 

Why Lip-Service Effects Analysis is Harmful

The failure to operationalise effects analysis produces concrete costs: over- and under-enforcement; regulatory overreach and chilling effects on investment; legal uncertainty and elevated compliance costs; weak precedents that corrode institutional credibility; and misalignment with global best practices that diminishes India's influence in international debates. 

A Four-Step Framework for India

A practical framework drawing on comparative experience could involve four steps. 

First, define the theory of harm and counterfactual, clearly specifying how conduct is alleged to harm competition and describing what the market would look like absent the challenged conduct. 

Second, assess market power and conditions in light of the theory of harm, considering entry barriers, switching costs, network effects and rivals' ability to reposition. 

Third, examine actual and potential effects with evidence, testing the theory of harm against direct evidence of price, output, quality or innovation changes, or structured indirect evidence including coverage, duration, internal documents and economic modelling.

Fourth, weigh efficiencies, justifications and proportionality of remedies, evaluating whether benefits are real and verifiable and whether less restrictive alternatives exist. 

Conclusion

India stands at an inflection point. Schott Glass is a welcome affirmation that abuse of dominance cannot be established without genuine effects-based analysis. Unless that principle is translated into a clear operational framework, ‘effects analysis’ will remain a slogan rather than a safeguard. By developing a disciplined template suited to Indian conditions, the CCI and courts can move beyond lip service to liability grounded in evidence, strengthening the long-term health of Indian markets and reinforcing the legitimacy of competition enforcement. Notes & References

[1] See, for example: Google LLC & Anr v. Competition Commission of India, Competition Appeal (AT) No. 01 of 2023 (29 March 2023); Federation of Hotel & Restaurant Associations of India and Anr. v. MakeMyTrip India Pvt. Ltd. and Oravel Stays Pvt. Ltd., CCI, Case No. 14 of 2019 (19 October 2022); Umar Javeed & Ors. v. Google LLC & Anr., CCI, Case No. 39 of 2018 (20 October 2022); XYZ v. Alphabet Inc. & Ors., CCI, Case No. 07 of 2020 (25 October 2022); National Restaurant Association of India v. Zomato Limited and Bundl Technologies Pvt. Ltd., CCI, Case No. 16 of 2021 (1 January 2022); Vijay Gopal v. Big Tree Entertainment Pvt. Ltd., CCI, Case No. 46 of 2021 (16 June 2022); Digital News Publishers Association v. Alphabet Inc. & Ors., CCI, Case No. 41 of 2021 (7 January 2022).

[2] Competition Commission of India v. Schott Glass India Pvt. Ltd., Supreme Court, Civil Appeal No. 5843 of 2014 (13 May 2025).

[3] Umer Javed v. Google LLC, CCI, Case No. 39 of 2018 (20 October 2022).

[4] Google LLC & Anr v. Competition Commission of India, NCLAT, Competition Appeal (AT) No.01 of 2023 (29 March 2023).

[5] In Re: Updated Terms of Service and Privacy Policy for WhatsApp users, CCI, Suo Motu Case No. 01 of 2021 (18 November 2024).

[6] WhatsApp LLC v. Competition Commission of India, NCLAT, Competition Appeal No. 1 of 2025 (4 November 2025).

[7] Kshitiz Arya v. Google LLC, CCI, Case No. 19 of 2020 (21 April 2025).

[8] Intel Corporation v. European Commission, Court of Justice of the European Union, Case C-413/14 P (6 September 2017).

[9] Groupement des Cartes Bancaires (CB) v. European Commission, Court of Justice of the European Union, Case C-67/13 P (11 September 2014).

[10] Dr Rachael Kent v. Apple Inc. and Apple Distribution International Ltd, UK CAT, [2025] CAT 67 (23 October 2025). About the Authors Naval Satarawala Chopra, Partner, and Natalia Bilimoria, Knowledge Associate, Shardul Amarchand Mangaldas & Co. The views expressed here are personal.