Abuse Of Dominance Under Indian Competition Law: A Case For Prohibition Of Dominance Per Se
Sean McDonald, School of Law, Narsee Monjee Institute of Management Studies, Bengaluru.
This Article aims to explain the concept of abuse of dominance in the context of Indian Competition law. The Article explores the existing position of abuse of dominance, and explains key concepts related to the dominance such as relevant market, factors affecting dominance and the role and powers of the Competition Commission of India in regulating dominance and prohibiting its abuse. The author further looks at the concept of dominance per se and abuse of dominance through the lens of a recent judgement. As an analysis, the author juxtaposes that the current position of the Competition Act with regards to Section 4 is in contradiction to the stance in the Preamble of the Act that seeks to prevent practices that have an adverse impact on competition and as a result is inadequate in its scope. As a conclusion, the author suggests that given the paradigm shift in sectors such as telecom, internet related and e-commerce, where dominance of certain enterprises are visibly evident, India should look to restrict dominance per se and this can be achieved by proceeding completely to an effect based approach to analysing dominance of an enterprise approach rather than the current form based approach.