From aviation to digital markets: why tighter regulation is needed to curb duopolies

This is Infocus. The Hindu's current affairs podcast. We all go to work, earn a living and spend that money on everyday things that we want and enjoy. But look closer and the pattern starts to emerge. Across many sectors, a small number of companies dominate the market. Concentration by itself isn't necessarily a bad thing. But what happens when there is a destruction? Take aviation for an example. Flight operations were severely impacted when one airline in Indigo had issues. But that's just not limited to aviation. India today is seeing dual police across key sectors. So, economists are also talking about this. In fact, in 2025, the Nobel Prize in Economics was awarded to Joel Markio and Philippe Anion, who highlighted the idea of creative destruction. The notion that competition and destruction drive innovation. They talk about how limited monopoly can help drive innovation. But what happens in the market becomes so concentrated that power is concentrated in the hands of a few. What happens if the dominant player stumbles and there is no credible rivalry to step in? And at what point should the regulators intervene? To answer this question, I have with me Rahul Singh, who is an associate professor at law at the National Law School of India University. Thank you, professor, for joining me today. Thank you, Numerika. It's a pleasure to be here. I just went on a whole triad about what do openly and all are. Why do we even need a competition? I just went on and on about why competition is necessary. But why do we need a competition law in India? That's the most significant question of, I suppose, 2026. And several regulators will have to put their heads together in January and February and figure out and answer to the question. I suppose here is what we can think about as a framework as to what is the analytical framework? That the enforcers, adjudicators should use in order to figure out what is going wrong in sectors after sectors. You took several examples like airline sector, like maybe even the cement as a sector. And these are like otherwise considered as chalk and cheese, not comparable. What combines them and what brings them together is what you rightly mentioned. Either as a question of oligopoly or a duopoly. And therefore, as you rightly said, the first question is then, is there a solution? Can law do something about it? Now, in theory, and you have cited the Nobel Prize, Academics and all, like Joel McHade. And you said that innovation is very important and they are the ones who are also talking about innovation. And that lies at the heart of competition law as well. Now, put simply what does it mean for, for let's say a non specialist listener, right. Let's say the airline example that you took, which happened early December, right. What does innovation mean in airline sector? I mean, one fine morning somebody is trying to catch a flight. And it suddenly announced that it's cancelled. Now, for that person, it may look like it's idiosyncratic, maybe just confined to the person who was trying to catch a flight. And then possibly the moment the person opens any media, I suppose, would have realized that it's a problem all across the country, right. And that means that the problem was more systemic in nature, meaning it was not confined to one consumer. It was impacting multiple consumers, right. At least I suppose the numbers could run into millions in India, because numbers are always high in India. And therefore, I suppose that's where the role of law comes in. Let's say an agency like competition law, which is supposed to look at innovation and all. The idea in theoretical terms would be that what can we do in terms of enforcement so that a consumer is not harmed. Now, what do we mean by harming a consumer? Three things largely to keep it at very simple sort of a level. For a consumer, three wrong approach is very important. First is our price is rising more than they should. That's the first question. The second question is is output reducing more than they should now in the airline example. It's clearly the second wrong, which is involved, which is output is declining and probably in an unexpected manner. I mean, at this stage, it's hard to say whether they violated the law or they did not violate the law. But one can certainly say that the output was reducing in an unexpected fashion. And the third wrong, which the competition agency is supposed to look at is the idea of quality. And quality is measured through, for instance, Joel Maker would say innovation. So in that sense to sum it up, three wrong approach would include looking at impact on prices, looking at impact on output or quantity. And lastly, also looking at quality, what's happening to the quality of products. Now, these three things are supposed to be at the heart of competition law. And this is what the competition agency is also supposed to work on. So what do they actually look what laws define and look into competition in India. We know that there are some what are there. So one is I suppose the competition act itself, which is what is the bulwark of the competition commission of India. The agency with sits in Delhi and all. Now that is a sector agnostic sort of a regulator. It would mean that no, the competition agency will look at not just airline, but maybe other things as well. Like let's set tack issues, cement issues and everything else. Now, besides of course, the sector agnostic competition commission. There would be sector specific regulators. Maybe let's say for instance, the DGCA, the director general of civil aviation, right. Or I mean, even more important, possibly let's say the the airport economic regulatory authority of India. The what is called era right now airport economic regulatory authority of India. Their limit would be to look at how the airports themselves are. Let's say Chennai airport or Delhi airport or Bombay airport or Mumbai airport. How are they functioning? Now their limit is much narrower. The moment you are a sector specific regulator, the limit is supposed to supposed to be narrower. And for the competition agency, the idea is to give it a broad limit. But broad in the sense of sectors. But it's also narrow in the sense of they are supposed to focus on price output or quality, which I mentioned earlier. So, how do they check for market dominance? The entire point of anti competition law I'm assuming to check to regulate that one person is one company. Sorry, it's not going to dominate across everyone until unless the government chooses that sector like say the railways. How does the law, how do the laws and how do ministries and agencies like not only BGCA but also the RBI, which we will talk about later in the program, regulate and define what market dominance is. Do they define it? The law defines it. And the way the law defines as of today is more qualitative than quantitative. And the qualitative definition is if you have an entity which has the ability to act independent of market forces, now it is seen as an entity which is in dominant position. Now you can see the entire phrasing is very qualitative in nature and there's a history here. Our older enactment in India, the old MRTP act 1969 law, that law used to have a more quantitative definition like 25% market share. Now very consciously after the liberalization which was achieved in 1991 or so. Very consciously the law itself has moved away from defining a dominant position or a monopoly in a quantitative term. It was a conscious choice made by parliament to move away and give a qualitative definition. It also makes sense logically. I'm not just saying because this is the law. The logical sense is whether you are in dominant position or not. It is always dependent upon who your competitors are. And are they able to let's say for instance enter the market and constrain your behavior. And therefore the idea of giving this flexibility or discussion to the competition agency was that presumably the competition agency will be consisting of experts. And experts in a given situation will be able to figure out whether an entity is in dominant position or not. Now these are all assumptions of course Indian competition agency doesn't really consist of experts unfortunately. But the assumption of the parliament was that the agency would be staffed by experts and on a case by case basis experts would be able to figure out whether an entity is in dominant position or not. Can you tell it in layman's terms so if you said it changes from sector to sector so saying aviation there are only three major players and there are four smaller players. How do we determine if somebody is a dominant player there versus somebody in say food and beverages industry where there are n number of players and there are formal players and there are even larger number of informal players. How do they define what it is that. So let's say aviation is an example right I mean clearly with a 65% of market share. Indigo would be considered to be in dominant position but that's not really a problem and so far as the law is concerned word law says is that you may be in dominant position. But you should not abuse your dominant position right so market share is one of the criteria the reason being that in the aviation sector. The second competitor air India is really at some 10 or 15% or so depends on how we count. But at 15% and it was clear in the December fiasco that the second competitor was not able to let's say enter the market in a timely, likely and sufficient manner to help the consumers like what does that mean. I mean it should have meant that one second of December when the fiasco happened on third December air India should have been able to expand its output and should have been able to constrain indigo's behavior and that did not happen. And therefore this is the job of I mean presumably expert agencies who should be able to look at data and say that given this behavior we believe that you know based on market share plus other factors that we have taken into account. It indicates to us that the entity with the largest market share is in dominant which this is how it will happen in our specific sector like airline which you mentioned similar analysis will be carried out in other sectors as well. To not just look at the market share and ability of that let's say the largest entity but the idea is to move forward and see who is the second largest even third largest by day. Like hypothetical let's say the payment market which you took as an example right now in payment market by the way to be more difficult because both Google pay and phone pay have round about 35% of market shares right round about depends on what kind of transactions we are looking at but round about both of them have comparable plus you can also see that if one entity imagine that Google pay tomorrow tries to reduce quality. Phone pay will be immediately able to enter the market and serve the customers in a timely likely and sufficient manner and if not these two you do have the public sector state on enterprise be be a child right now beam will be able to enter this market in a timely likely and sufficient manner and will be able to serve the customers right from the next hour or so right or maybe next minute. That's because the technology markets work slightly differently in which case in the payment market mainly because let's say the biggest entity has a large market share it will be difficult to suggest that entity A or B is in dominant position at all. So it also works very differently with the case of new pay transactions all companies that use you pay transactions depend upon a technology which is government owned so how will it work that how will market how will house market dominance there because the government owns the government meaning government public sector enterprises own the technology right so why are they not able to become much better than. Google pay and phone pay which both have foreign investment in it by a lot so I think there are market studies report which indicates the reason and I think that's more comes from the behavioral sort of a side of consumer behavior. So the discipline called behavioral economics or behavioral law economics but they suggest is that there is always this so called status code bias so when consumers right now are using you pay to pay something they generally tend to look at a placard or a QR code which is largely sponsored by older players right so either Google pay or phone pay or even pity and because of the status code bias consumers tend to think that they need to make payment through either Google pay or let's say phone pay or pity. But in theory it's possible for you to make payment through any of these or you are through the V map which is owned by the state right you will also notice that the state owned enterprise for some reason which reasons best known to that doesn't really advertise much also doesn't put their logo on the QR code and therefore I suppose it also gives us a sense of how while liberalization has happened and consumer benefits have also occurred. Maybe the state owned enterprise have been slow to the change is what I would say right and it's also I suppose a cautionary tale for them it shows them a mirror as to how all of us need to change from what we used to be to to meet the challenges of the new age the technology I mean I see it in classroom I'm sure you see it in your journalism sector while let's say they are users are very up to date. They are not using the old browsers or even old search engines they have all migrated to something very new I'm not just talking about AI by the way I mean AI is of course everybody talks about AI right they also use new browsers which you can open 20 tabs and the browser will some rise those tabs quite when it's quite amazing the way technology is moving on right now instead of I suppose all of us being you died and let's say lamenting that so many changes are happening right. We should also maybe learn new tricks and try and figure out how the market is changing and respond to consumer needs according. Another issue that public sector enterprises sometimes face is the lack of gateway to the technology like say BSNL didn't get access to 4g technology until very recently when everybody else has even moved on to 5g and some of them are looking into 6g and and satellite telecom so how do you describe how does companies like BSNL like take care if it's like that. Certainly there is an issue I mean the issue is much vast and larger though I mean there is a corporate governance problem in the sense that is the state on entity really an independent entity or is it just being nudged by the government to do certain things right and that's certainly a corporate governance issue like on one hand in theoretical terms a company is supposed to be a separate legal entity and the word of BSNL shouldn't be deciding what is best for them. But unfortunately these are just theories and in practice we know that there is lot of interference right. The second problem could be regulatory capture issues which the discipline of law and economics captures it anyway right the idea of regulatory capture meaning that you know maybe some entities are able to influence the state regulation more than other entities and BSNL might not have an incentive to to influence the regulatory landscape as such. And therefore I mean BSNL as an entity may seem to be hobbled in this so called marketplace where rest of the players are able to get access to newer technology and others are not able to but I would suggest that maybe you know I mean we should not necessarily be so concerned because what's also happening as you see ultimately your satellite based phones spectrum is coming now you can delay it I mean you can delay it by couple of years or so right. You can also put some stringent conditions on the Starlink and satellite based stuff and hope that you know the it will be delayed but that's the future right I mean nobody is going to look at spectrum and maybe a few years is just like your maybe I suppose what what is happening in the search market or what's happening in the cab aggregator market I mean we have all seen the time when the airport cab agencies would charge double or triple or whatever number of times right. But with the applications coming in that ability to influence a particular consumer changed qualitative similarly in the in the telecom sector as well I think the most interesting change today is not so much. That to my mind is not so much that we struggling and we will only have a two or three and that something we know for last six years now right because of the AGR and Supreme Court issues. The most interesting stuff in telecom would be how will the incumbents respond to a satellite based spectrum right because look I mean just like because you took the UPI example right. I mean for is row the Indian space research agency I suppose a question would be can they also create a digital public infrastructure like being in the telecom set like you recall them in at one point of time and the case is still going on that antics and they was issued right. The at the heart of the dispute is by the way that Davis had promised them a satellite based technology communication while the Indian courts are debating whether there is fraud or not involved in the meanwhile there is an entity which is ready to deliver the exact same product. And we are suggesting today that it's possible to ensure that communication can happen just through the satellites and we don't necessarily need to look at maybe the old age idea of spectrum or even if we are looking at spectrum maybe let's look at it slightly differently in the sense that let's not allocate spectrum on the basis of who can pay AGRs or revenue share maybe some other model in which everybody will have sort of level playing field. The telecom sector already went through such a shake up with the arrival of realized geo couple of years ago before that it was just two players even then and they were they were the ones who price prices are really high when geo came then they crash the prices we were wondering what will happen to the sector and we were and the sector is thriving now isn't it. So not too much of a worry there other than maybe BSN and which government has to do stuff for possibly I think say one way is to mean so it's always hard to predict the market and which which is the direction in which it is going. Let's see at the time let's say 2016 17 and the geo was the disruptor I think that night was qualitatively different from today's time the reason being that just before geo entered the market wasn't really a duopoly was more like an oligopoly or maybe in some context even BSN was stronger right because you not only had it but you also had vote up on an idea which was separate entities. And in several of these telecom market because India defines telecom markets very differently because it's also depends on geography or traditionally it used to define them that manner in several of these smaller telecom circles which were based on geographies. The SNL used to be a very strong contact so there was a time when BSN was doing okay and particularly I suppose in I think Delhi and Mumbai empty NL was also a player besides BSN. And therefore the so called Mahanagar telecom nigham level right and therefore in at least some of these cities you had maybe a multiplayer situation and it was possible in theory for let's say the state on entity to quickly enter the market in a timely likely and sufficient manner. And constrain the behavior of the dominant entity today I think we are at the cusp where I mean a lot has changed from the time Geo's entry happened and we are at the cusp of seeing whether it will emerge either as a duopoly or maybe the entire technology will change. And move towards the spectrum based in which case other entities might have a role to I mean there could be a newer entity altogether maybe is role will be a player in the sector right. Okay so coming back to the original set of questions that I had in mind about how you can regulate them so all these sectors have their own regulators and then the CCI as you have said. How strong are both of them how strong are the regulators for each sector and how strong is CCI by itself right now for these questions I think the best analytical framework is to appreciate that there is a law in the books. And then there is something called law in action now unfortunately India there is a huge difference between the two right so in short when you say how strong is the regulator on books it's a tiger but in action I mean I'm not even sure what to say it's like you know there isn't really much enforcement and there is also I suppose all kinds of pressure on the regulator itself or at least it seems to me otherwise because there isn't really a consistent sort of coherent approach towards. Manoply issues that we see for instance go back to our airline sector because that's where we started right now today of course what you see is that the CCI I mean and the Hindu business line also reported this in a very prominent manner that competition commission of India has issued a press release that they are investigating let's say indigo right now what beats me as somebody who works in the field is why is the agency issuing a press release it should impact issue and order. Right and order saying that you know this is the evidence that we have and these are the problems even in our prime a face a fashion I mean lawyers use prime a face you to me just mean tentative right tentatively this is what we believe might be a problem in the sector and so if we see law in the books the books actually strengthen the competition agencies bar to write sort of a prime a face or tentative order with lot of details. Now what kind of details are we looking at I mean we are not interested so much as to who appeared and who are the party we are interested in what is the reasoning that the agency is given right are they still concerned about consumer half for instance are they looking at impact on output are they looking at impact on innovation. Now we don't know any of these because there is a press release of two sentences with just says we are doing something but if the parliamentary expectation was that the regulator will consist of experts. Then the law in action should live up to that expectation right the commission needs to also I mean possibly up the anti and try and put up a tentative order which is the mandate under the enactment. To say that you know in tentative fashion this is what the what is the evidence let's say in early December we saw xyz this is how tentatively consumers are getting harm and therefore we are proceeding in the matter otherwise I mean unfortunately to me I mean when in the absence of all of these records. What happens is it gives an indication as if because there was a crisis every regulator in India wants to be seen to be doing something but they are not really very serious about it it's more like a paying lip service to a crisis. Now it might work for some in some context it might work well let know you are you are able to pay lip service and consumers are okay but let's say the moment there is a reduction in quality of the output right and somebody's lived experience and when we say somebody we are talking about millions of passengers right then at some point of time I suppose they will be a distrust which will emerge that why is it that we have so many laws and we have so many laws by the way that parliament thinks that some of them should be repealed. So in that sense there clearly there is a surfeit of laws we have more than what is necessary but then why isn't it that the laws which are there in the books are why are they not being also placed in action and that's the question which I suppose looms large and it becomes quite pertinent given the recent exam. So what is the role of sector wise regulators like RBI for DGCA. Those who only concentrate are there may be the CCI doesn't have the experts required because they are not many experts in that granted field may be will give them the leeway. What happens to the sector wise regulator whose only job is to look at that particular sector what happens where how do we regulate those to ensure that they actually look at the sector and take actions before things go bad. No I mean in theory of course the idea is that the sector specific regulator should be able to behave in a manner which what they call X and T meaning before the event what you are suggesting that even before a problem arises right. But of course I mean these kind of examples show to you that you know nobody's nobody's I suppose remitt is either large enough or nobody's expertise or nobody's crystal ball is so clear that they are able to figure out problems too much in advance right. Which only tells us one thing which is and again the it's a distinction between law in books and law in action. So law in book says that while competition agency will look at let's say abuse of common position. It also says that it must act in consultation with other specific sector specific regulators. So CCI is supposed to talk to reserve bank of India. So also supposed to talk to DGCA and then figure a way out so it's it comes back to the same analytical framework while law in books are sufficient. What we don't see in action is that what is the problem when why can't let's say competition agency have a discussion with DGCA or reserve bank of India. And then maybe get better expertise right. So so if CCI let's say has one expert and DGCA has another or the brain of two experts are bound to be better than one right. And they shouldn't be hesitant in talking with each other and we see this in data protection issue is well right which the data protection regulator is not even set up but at least fortunately in the data protection sector we see competition commission making an effort to reach out to the ministry. Mythic and having some conversation. I think that similar idea of conversation should be extended and law enables it. I mean as it is law cannot prohibit two people from talking to each other right. Similarly to regulators from talking to each other but in fact in competition acts context it enables it there is a specific provision which says talk to each other and find out what could be a problem. And therefore to my mind in some the problem is not so much what is there in the books the parliamentary intent is very clear and right from 2002. I mean and these are issues which are unique to India see in other context we have seen that you know there is a cookie cutter approach CCI might start copying from what EU is doing and stuff but the sector regulator problem is unique to India. And therefore the statute as well in very unique sort of a fashion and that shows that there was an intelligent design of the competition act it enables the competition agency to speak with the sector specific regulators and find the solution which will work for consumer welfare in Indian context. So professor since you started comparing CCI with to the competitions commissions in Europe how do they stand the European Commission seems to be really strong takes a strong approach to antitrust law while compared to the US on the FTC which takes a little softer approach to competition is that is that's my understanding how far is it. See I think there is certainly where there is law there is also an element of politics right now if we dive deeper where exactly is European Union trying to show that they are taking stricter approach against all the so called American companies is there an example where the European Union has taken a strong approach against European companies. So therefore and why not I suppose the reason is because and why US might appear to be relatively softer so US as well as politics right it's not like they are somehow immune from politics we have seen I mean the entire world is now dominated by some kind of a political economy right so in the US context as well there is a political push back that you know the creators the job creators in our own economy other jurisdictions are trying to penalize them. Possibly they are trying to create the so called not tariff barriers in trade language and therefore maybe we should pay them back in the same coin and therefore what is happening is that entire world is trying to draw some sort of a draw bridge right they are closing in instead of opening up the trade it seems like we live in an era where every country is trying to close the waters right and that's a challenge which is a political challenge while there is in theory a world trade organization. We know that the appeal spotty or appellate body at the WTO is not functional and therefore there is no enforcement of the WTO regime as well right and therefore that's a problem which I suppose is by definition international in nature and the leaders of the world at WTO or at other places they need to find a way to ensure that we go back to that era of open trade if not globalization right whatever that might mean. Until that happens each of these jurisdictions will function as if they are functioning in silos and they are trying to enforce a law which may be somehow working for them in the short run. But in the long run I think it's a very myopic view to take because if you keep penalizing let's say only the multinational cooperation then it becomes a clear case of discrimination and the challenge which emerges because of discrimination is not just the WTO channel. The challenge is also because countries like India they have signed bilateral investment treaties so if Amazon thinks that Amazon is being discriminated against they might not use let's say Supreme Court of India. They will just file an arbitration sort of a case under the bilateral investment treaty and then in a few years down the line we will see a similar problem like wood a phone that government of India will get some billions of dollars as a bill and will have to pay. So in the short run in a myopic sense it might look like a great idea that no let's say any country whether India or the EU is able to go after a certain set of entities. But if we don't as a society believe in the rule of law and not just believe meaning we pay a lip service of about it if we do not enforce rule of law in a non discriminatory fashion. So it will come back to bite us and so every thesis has an anti thesis and then there is accordingly a synthesis right. So in the short run it might look like a great idea let's go after some companies right in the long run it comes back to bite us in some form or the other. So I want to come back to the CCF for just a little minute so we say that's a good job according to me when it comes to dealing with mergers and acquisitions and it stops big mergers. If it says that if it feels that it's going to be a market dominance why is it how is it how is it technically strong there but not in other places is it because it's been dealing with mergers and acquisitions for a longer time compared to the other sectors which it's now being pushed into. Now see when this is quite interesting is quite fascinating that let's say your worldview is that CCF does a good job in merger control but of the 16 and 8 cases they have never prohibited a single merger not not one including including in the airline sector in fact when while CCI is putting out a press release saying we will investigate the air India and Mra merger was approved by the competition commission in 2023. September to December you ask couple of years ago right and not a single merger until now has been prohibited not a single one in fact I think I say that you know CCI has achieved a statistical impossible. The reason being a small country like Taiwan which got a competition law only in 2770 right much later than India even Taiwan has prohibited mergers. But not India not until now and therefore I mean the the only thing that they have done is to ask the parties for some voluntary commitments for a certain period of time so there are plenty of those cases but we don't until today we don't have a single example of our prohibition under merger control and that goes back to our law in books versus law in action problem. So law in books says CCI should be able to prohibit mergers right but law in action is that of the 1600 data set cases that we have not a single one I mean we saw we have seen scores of cases where CCI nudges them for voluntary modification and all but I think sector like airline should actually ask us to go backwards and look at these merger decisions. And if you by the way read these merger decisions one of the things which happen in the Air India and Vistara much of those CCI order notices and notes saying that we understand that two new airlines are in the office and they give some name fly 18 or something like now two years of past we don't know what has happened to those so called new entrance right. And based on those idea CCI thought in the Air India and Vistara merger that it's okay to overall permit this much and therefore I mean I would suggest that even in the context of merger review there seems to be a dichotomy there seems to be a vast gap between law in books and law in action. Professor so if they're not doing a great job in mergers they haven't ever been a breaker right they have never ordered a breakdown of a company. So then if CCI is stronger than so it's strong on the books the statute says that you have the power to break up what is what they call divester that is what the law says in practice they have never done it. So if the if it has never actually ever done some of the provisions that it is I love to do how will we how can we say that it's regulating the market. So I think at this stage I think what I would suggest is that we should reframe this entire issue and I would say that like all institutions are under some kind of a stress test right global. So in the US they are under stress test of authoritarianism and all right similarly I think all institutions in India as well they are under some kind of a stress test and it's incumbent upon these institutions to to tell us I suppose as they hold us in these institutions. How are they coping with the stress test that they are undergoing right and this is true not just of the competition commission I mean I suppose being in Delhi they I'm sure they face larger challenges. Well it's true of other regulators as well I mean the reserve bank of India will have to also tell us let's say in the payment sector right or DGCA will have to tell us in the context of aircraft similarly the air I mean in the context of airports is there a constant concentration in the airport market right. Is there just one entity somehow trying to get all the airports right or in the port sector is there just one entity which is somehow trying to get all the ports. And if all institutions are under some kind of a stress test I think all of us in some ways I think media is also under stress test and much of Indian media is seen as a lap doc media. There are barring I mean everybody says that barring maybe three or four newspapers it seems like nobody is independent right similar is about to mean maybe the academic sector everybody seems to be under some kind of a stress test right. There is a pressure in order to say only certain things do only certain things right and there is a cost there is a price that you pay the moment you have a spine the moment you are an independent person right all of us pay that price. And some many things that I would say the competition agency might not like the Reserve Bank of India may not like the DGCA may not like it what is the price that we pay some future consulting opportunity from these agencies they dry up. But we know that that's the price that we need to pay the moment we have a spine similarly free and fair media pays a price of advertisement and stuff like which is what I understand therefore I mean I would say that no the question is really larger. Since all institutions are under some kind of a stress test I think it's incumbent on the competition commission to take indigo case as a challenge and say that while there are certain things on law in books and in the past we may not have taken action. Here is an example where we are willing to change and we are willing to show to the consumers that we will act the moment there is some kind of a reduction in quality and there is some kind of a reduction in innovation. So that gets me to my final set of questions on reform what are some of the huge reforms that are needed to ensure that two things can happen that consumers have the right to choice and investors even the smaller ones can have a fair playing theme. So I think in my mind and the way I had framed for the entire interview because there is a gap between law in books and law in action to my mind the reforms are not really revolutionary by the reforms are pretty incremental to my mind what's that reform I mean firstly we must make effort to start the competition agency only with experts. I don't think there is any place for retired synchios over there right which is worth until now we have seen I mean as a synchios somebody is put over there from bureaucracy or elsewhere right. I don't think these agencies don't need synchios I mean we have now enough experience to move away and leave it to the experts right. Similarly DGCA RBI era all of them need to consciously move away from this synchios based appointments to expertise based point and I won't confine my comment only to the regulators spider. A similar endeavor needs to be made by other stakeholders as well otherwise will be pointless for instance lawyers who appear before these agencies and all right do they have expertise I mean if you look around all the firms which pretend to do competition law none of them have actually studied competition. And therefore I think all stakeholders need to look inward as well while I think for us as a society it's we find it very easy to look outward I think to copy from you copy from us and all but our problems are really uniquely India and therefore the solution also needs to be inward. So other stakeholders in the system as well I mean before you declare yourself to be a competition expert maybe make some effort to learn the discipline and then help the let's say regulator or maybe other stakeholders and all right. And therefore while we say reforms it's clear to me that reforms do not mean changing any part of the legislation because law in books they seem to be pretty sufficient and since what is lacking is law in action. We need sufficient expertise to appreciate what is already available to us as a tool and then accordingly maybe reshap in our tools for the problems of the day and it's incumbent on all stakeholders including I suppose universities and academics like me and to make sure that we are up to the challenge to to live up to the challenge of the modern day world and also maybe solve the problems of today. So what are some of the concrete steps that the government should do in the in this year and the year. So I think one concrete thing is that's at the competition agency. I think government should become a party to the indigo dispute and it's possible the law permits it and government should become an active party before it meaning that they need to put a representation. Instead of showing away from it say governments have a tendency to think that competition commission is my creation why should I go and say anything before the competition commission right and therefore I'm suggest in concrete terms government should become an active party and EGCA should say through their lawyers and maybe others say that this is the problem that we have seen these are the actions that we have taken and if it is somehow falling short of let's say a competition problem. These are the other ways that competition commission can maybe remedial the issue the second concrete thing which is from the CCI I would say CCI needs to revisit that air India with Saramaja. What about in general for all sectors what are some of the reforms that should happen so in 2023 the parliament has amended the competition act in a very drastic manner. In fact after the 2023 amendment it's not the same competition that the character of Indian competition act itself has undergone a massive change and therefore I think it may be it may not be a good idea to keep amending a law in fact as we see in other sectors let's say as a comparator I would say if we look at insolvency and bankruptcy code right too many amendments right from 2016 some seven eight set of amendments. So while on the face it might look like a very good idea that no there is a problem and therefore we keep amending the legislation. But in fact too many amendments leads to other set of problems then stakeholders at no point of time they get a sense of what exactly is the law because we don't know whether it has changed. And therefore I mean I would in fact contrary to I suppose the milieu of the day because most people suggest amendments. And you see there is a problem legally the moment you amend the legislation it's it's a tacit tacit sort of a admission that the law in the books is not sufficient right. Well just in 2023 you have amended the enactment and some of those legislations in fact they are effective only from 2024 or so given those set of amendments I think we shouldn't really rush to amending the legislation. In all context of legislation we should give some time to the stakeholders to figure the amendments for themselves right. Otherwise if we keep amending the challenge will be what exactly is the law and in fact it creates a problem the moment it goes for appeal and the Supreme Court one party will take the argument that the moment you have amended the legislation it means that at the time when the problem happened or at the time when the violation took place it was not an issue. And since laws generally should not be retrospective generally I mean constitution prohibits it only for criminal laws but even in the context of civil laws there is a presumption of prospective application. And therefore it then it creates a newer problem for the higher courts then Supreme Court has to see oh is this amendment general just a procedural amendment or is it a substantive amendment. Now we can all of those issues if only we stick with what we have just done as a society 2023 look I mean I can I can take two different views on the 2023 amendment many of them may not make any sense at all right. But at the same time can you just tell us what the 2023 amendment is so in 2023 for instance let's say something which would be pertinent to our example right. Let's say the CCI's ability to maybe review some of these cases right. And the enactment doesn't say only for technology sector while we so called size of transaction test or what India calls the deal value threshold. The the assumption in the in the let's say assumption otherwise in terms of chatter was that it's for technology. So to say that no CCI should be able to review larger number of much right. But finally when parliament passed that amendment it does not say only for technology sector which means it relates to all sectors it would mean airline sector as well right. So CCI's ability to engage in a merger review that was supposed to have been enhanced through the 2023 amendment right. Now if we see the airline sector example the question would be even after the enhancement while the law in books says the powers are enhanced what is really happening as a law in action right. And therefore while there is an amendment in 2023 I would say that no this this is something which CCI should take as a case in point as a challenge and say that no my powers have increased and therefore this is how I'm going to exercise the path. Thank you so much professor for spending your time and helping us understand what competition law in India is all about. Thank you very much Neveda. Thank you. This episode was edited and produced by Jude Francis Weston. If you liked it do subscribe to Infocus by the Hindu on Spotify Apple podcasts or wherever you get your podcasts from. Thank you for listening. [Music]