Daily Current Affairs 13.12.2022 (Why is there friction between the government and the judiciary?, Weighing in on the efficacy of female leadership in government, Oct. industrial output contracts 4%, slide seen second time in 3 months, Curbing individualism in public health, Big Tech and the need in India for ex-ante regulation)

Daily Current Affairs 13.12.2022 (Why is there friction between the government and the judiciary?, Weighing in on the efficacy of female leadership in government, Oct. industrial output contracts 4%, slide seen second time in 3 months, Curbing individualism in public health, Big Tech and the need in India for ex-ante regulation)


1. Why is there friction between the government and the judiciary?

What is the trigger for the current conflict? Why did the Supreme Court strike down the law on National Judicial Appointments? What is the government’s grouse against the Collegium system? What was the Constitution (99th Amendment) Act? What is the new CJI planning?

A major confrontation is on between the Union government and the Supreme Court over the former’s resentment towards the Collegium system of appointments and its push to have a dominant say in judicial appointments and transfers. The government has also started airing its grievance against the invalidation of the National Judicial Appointments Commission (NJAC) by the court in 2015. The current round of conflict has two triggers. One is the government’s repeated public criticism of the Collegium system on the ground that it is “opaque”. The other concerns a ping-pong battle between the Collegium and the government over the names being recommended and reiterated for appointment in constitutional courts.

How did the latest bout begin?

On October 17, Law Minister Kiren Rijiju shot a salvo at the Supreme Court Collegium, saying they were “preoccupied” with making judicial appointments when their primary job is delivering justice. Mr. Rijiju’s comments came at the fag end of the 49th Chief Justice of India N.V. Ramana’s tenure, which saw the Collegium recommend 363 names for High Court judgeships and 11 names for the Supreme Court. On November 6, Mr. Rijiju complained again on the lack of accountability of the Collegium system and made references to the court striking down the NJAC law, which gave the government an equal say in appointments, in October 2015. His criticism coincided with Justice D.Y. Chandrachud taking over as top judge on November 9 for a two-year tenure.

Meanwhile, on November 17, Chief Justice Chandrachud agreed to list in due course a writ petition to reconsider the Collegium system. The SC also began its counter-offensive with the CJI advising that the Collegium and the government should work with a sense of “constitutional statesmanship” rather than find fault with each other. On the judicial side, a Bench led by Justice Sanjay Kishan Kaul took cognisance of the government sitting on Collegium recommendations for years together for “undisclosed reasons”. It later went on to link the government’s willingness to “cross some Rubicons” and take on the judiciary by delaying Collegium recommendations to the quashing of the NJAC mechanism.

But the same evening, there were media reports that the government had returned 20 names recommended by the Collegium for High Court judgeships. A few days later, Vice-President Jagdeep Dhankar remarked that a law — without specifically naming the NJAC — passed by Parliament and expressing the will of the people had been “undone” by the court disregarding parliamentary sovereignty.

On December 8, Justice Kaul’s Bench said nobody was stopping the government from bringing a new law on judicial appointments, but till then the Collegium system and its Memorandum of Procedure (MoP) was the “final word”. The Court said that even if a law was enacted in the future, its constitutionality would be duly scrutinised by the Supreme Court.

The parliamentary standing committee on Law and Personnel led by senior BJP leader Sushil Kumar Modi in its report said both the judiciary and the government need to do some “out-of-the-box” thinking to deal with the “perennial” judicial vacancies in High Courts. It said that both institutions were not adhering to the timeline given in the Second Judges case and the MoP.

What is the MoP and what is its current status?

The procedure for appointment of judges to the Supreme Court and the High Courts, in accordance with the Collegium system, was laid down in the MoP prepared in 1998. It states that the initiation of a proposal for appointment of Supreme Court judges vested with the CJI and that of High Court judges with the Chief Justice of the High Courts concerned. The MoP required the Chief Justices of High Courts to initiate the proposals six months prior to vacancies. The Constitution (99th Amendment) Act was passed by Parliament to provide for a National Judicial Commission, which was duly formed by the NJAC Act. On October 12, 2015, the court struck down the NJAC Act and the Constitution Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. However, the court said the 21-year-old Collegium system needed a re-look. The court directed the government to finalise a revised MoP in consultation with the CJI and the Collegium. A revised MoP was sent to the CJI by the government on March 22, 2016 for the response of the Collegium.

The Collegium responded with its own revisions on May 25 and July 7 of 2016. There was an additional round of consultation when the government responded to these revisions on August 3, 2016 to which the Collegium sent back comments on March 13, 2017. Incidentally, the government, after a gap of three months, wrote to the Chief Justice of India on July 4, 2017, drawing the latter’s attention to the court’s own judgment in a suo motu contempt case against Calcutta High Court judge, Justice C.S. Karnan, who was sentenced to six months’ imprisonment. Two judges on the Bench, Justices Ranjan Gogoi and J. Chelameswar, had observed that the appointment of Mr. Karnan revealed loopholes in the Collegium system and laid bare the lacunae in making a correct “assessment of the personality” at the time of elevation of people to the Bench. The court did not respond to the letter, according to the government. The Centre said it would finalise the MoP only after receiving inputs from the Supreme Court.

What are the government’s grievances?

The Centre argues that the Collegiums, both at the Supreme Court and High Court levels, are delaying judicial appointments. The NJAC was a good law thwarted by the court.

It says that the High Courts are not making recommendations six months in advance of a vacancy. As on November 30, 2022, there are 332 judicial vacancies in the High Courts out of a total sanctioned strength of 1,108 judges. The High Courts have made 146 (44%) recommendations which are under consideration of the government and the Supreme Court. The High Courts are required to make recommendations for the remaining 186 vacancies (56%). Many High Courts have not made recommendations under the Bar and Service quotas for vacancies in the past one to five years. It said 43 High Court judges are scheduled to retire between December 1, 2022 and May 31, 2023, taking the vacancies up to 229. So far, no recommendations have been received.

The government has complained that the Supreme Court rejects 25% names recommended by the High Courts for judgeships. While making 165 appointments during 2022, 221 recommendations made by the High Courts were processed. The remaining 56 proposals were rejected by the Supreme Court Collegium. Sixty-six fresh proposals of names for judgeships are pending Intelligence Bureau inputs. The delay in the appointment process has affected the timely filling up of vacancies in the High Courts. The Supreme Court itself has six vacancies. Justice Dipankar Datta, whose recommendation was pending with the government for nearly three months, was sworn in as the 28th judge of the Supreme court on December 12.

What is the SC’s response?

The court said the Collegium system, combined with the MoP, is the law as it exists now. The government has either kept Collegium recommendations pending for no apparent reason or it has repeatedly sent back names reiterated by the Collegium. The court accused the government of not appointing persons who are not “palatable” to it.

2. Weighing in on the efficacy of female leadership in government

It is necessary to get rid of inherent biases and perceptions about the effectiveness of women in roles of authority by encouraging measures which will ensure female participation and representation in matters of state and policy


According to government data presented in the Lok Sabha on December 9, women representation in Parliament and most States legislatures is below 15% with 19 Assemblies having less than 10% women lawmakers. In this article dated September 24, 2020, Bhaskar Dutta explains why we need increased female representation in policy making.

What do Germany, Taiwan and New Zealand have in common? These are all countries that have women heading their governments. And although they are located in three different continents, the three countries seem to have managed the pandemic much better than their neighbours. Much along the same lines, a detailed recent study by researchers in the United States reports that States which have female governors had fewer COVID-19 related deaths, perhaps partly because female governors acted more decisively by issuing earlier stay-at-home orders. The authors of the study conclude that women leaders are more effective than their male counterparts in times of crises. There will be several critics who will question the reliability of this conclusion by pointing out deficiencies in the data — admittedly somewhat limited — or the econometric rigour of the analysis. Many will also point out that it is dangerous to make sweeping generalisations based on one study. The point about the danger of making sweeping generalisations is valid. Of course, studies such as these do not establish the superiority of all female leaders over their male counterparts. All female leaders are not necessarily efficient, and there are many men who have proved to be most effective and charismatic leaders. The important takeaway from the recent experience and such studies is the necessity of getting rid of inherent biases and perceptions about female effectiveness in leadership roles.

India’s gram panchayats

Importantly, female leaders also bring something quite different to the table. In particular, they perform significantly better than men in implementing policies that promote the interests of women.

This was demonstrated in another study conducted by Nobel Laureate Esther Duflo and co-author Raghabendra Chattopadhyay, who used the system of mandated reservations of pradhans in gram panchayats to test the effectiveness of female leadership. Their study was made possible by the 1993 amendment of the Indian Constitution, which mandated that all States had to reserve one-third of all positions of pradhan for women. Since villages chosen for the mandated reservations were randomly selected, subsequent differences in investment decisions made by gram panchayats could be attributed to the differences in gender of the pradhans.

Chattopadhyay and Duflo concluded that pradhans invested more in rural infrastructure that served better the needs of their own gender. For instance, women pradhans were more likely to invest in providing easy access to drinking water since the collection of drinking water is primarily, if not solely, the responsibility of women.

In addition to the instrumental importance of promoting more space for women in public policy, this is also an important goal from the perspective of gender equality. The right to vote is arguably the most important dimension of participation in public life. There are others. What proportion of women stand for election to the various State and central legislatures? How many are elected? Perhaps more important, how many women occupy important positions in the executive branch of government?

About suffrage

Independent India can rightly be proud of its achievement in so far as women’s suffrage is concerned. Women were allowed to vote from 1950 onwards and so could participate on an equal footing with men from the first general election of 1951-52. This is in striking contrast to the experience in the so-called “mature democracies” of western Europe and the United States. In the U.S., it took several decades of struggle before women were allowed to vote in 1920. Most countries in Europe also achieved universal suffrage during the inter-war period. Since most able- bodied men went away to the battlefields during the First World War, increasing numbers of women had the opportunity to show that they were adequate substitutes in activities that were earlier the sole preserve of men. This, it is suggested, mitigated the anti-female bias and earned women the right to vote in European countries.

We have had and have charismatic female leaders like Indira Gandhi, Jayalalitha, Mayawati, Sushma Swaraj and Mamata Banerjee among several others. Interestingly, a glaring example of gender stereotyping was the labelling of Indira Gandhi as the “only man in the cabinet”. Apart from these stalwarts, the overall figures are depressing.

The female representation in the current National Democratic Alliance (NDA) government at the Centre is probably not very far from the typical gender composition in Indian central and State governments. Female members make up only about 10% of the total ministerial strength. The underrepresentation of female Ministers in India is also reflected in the fact that Ms. Banerjee is currently the only female Chief Minister.

The underrepresentation of women in Indian legislatures is even more striking. For instance, the 2019 election sent the largest number of women to the Lok Sabha. Despite this, women constitute just over 14% of the total strength of the Lok Sabha. This gives us the dismal rank of 143 out of 192 countries for which data are reported by the Inter-Parliamentary Union. Tiny Rwanda comes out on top with a staggering 60% of seats in its lower house occupied by women.

The women’s Bill languishes

Since women running for elections face numerous challenges, it is essential to create a level-playing field through appropriate legal measures. The establishment of quotas for women is an obvious answer. I have mentioned earlier that mandated reservation for women in gram panchayats was established in all major States since the mid-1990s. Attempts have also been made to extend quotas for women in the Lok Sabha and State Assemblies through a Women’s Reservation Bill. Unfortunately, the fate of this Bill represents a blot on the functioning of the Indian Parliament. The Bill was first presented to the Lok Sabha by the H.D. Deve Gowda government in 1996.

Male members from several parties opposed the Bill on various pretexts. Subsequently, both the NDA and United Progressive Alliance governments have reintroduced the Bill in successive Parliaments, but without any success. Although the Rajya Sabha did pass the bill in 2010, the Lok Sabha and the State legislatures are yet to give their approval — despite the 24 years that have passed since it was first presented in the Lok Sabha.

Steps to reducing prejudice

Of course, there is a simple fix to the problem. The major party constituents of the NDA and UPA alliances can sidestep the logjam in Parliament by reserving say a third of party nominations for women. This will surely result in increasing numbers of women in legislatures and subsequently in cabinets. The importance of this cannot be overestimated. There is substantial evidence showing that increased female representation in policy making goes a long way in improving perceptions about female effectiveness in leadership roles. This decreases the bias among voters against women candidates, and results in a subsequent increase in the percentage of female politicians contesting and winning elections. So, such quotas have both a short-term and long-term impact.

Indeed, voter perceptions about the efficacy of female leadership may change so drastically in the long run that quotas may no longer be necessary!

3. Oct. industrial output contracts 4%, slide seen second time in 3 months

Shrinkage led by significant 5.6% drop in manufacturing output, minimal growth in electricity generation; contraction in capital goods worrying as it suggests private sector investment has not picked up, say economists

India’s industrial output contracted by a sharp 4% in October, the second time in three months that production levels have slid year-on-year, led by a significant 5.6% drop in manufacturing output and minimal growth in electricity generation. Industrial output had grown almost 3.5% in September, as per revised numbers.

The Index of Industrial Production (IIP) stood at 129.6 in October, its lowest level since September 2021. with manufacturing output slipping to its lowest mark since June 2021.

Crisil chief economist Dharmakirti Joshi said the IIP decline of 4% was “the sharpest since August 2020. While an unfavourable base was partly responsible, activity declined sequentially as well”.

Mining output grew 2.5%, while electricity generation rose just 1.2%.

Production declined in four of six sub-sectors, led by consumer durables as well as consumer non-durables that shrank a sharp 15.3% and 13.4% respectively from year-earlier levels.

Intermediate goods and capital goods also contracted year-on-year, by 2.8% and 2.3%, respectively, while primary goods grew 2%. Infrastructure / construction goods output rose a mere 1% in October, but was 0.7% below September 2022 levels.

Bank of Baroda chief economist Madan Sabnavis said the contraction in capital goods over a 1.6% decline seen last October was disappointing; it suggested private sector investment had not picked up. The continued slide in consumer durables and non-durables was also a let-down as the festival month of October would have typically lent buoyancy, he noted.

Index of Industrial Production

  • The Index of Industrial Production (IIP) is an index which shows the growth rates in different industry groups of the economy in a stipulated period of time.
  • More formally, it chooses a basket of industrial products — ranging from the manufacturing sector to mining to energy, creates an index by giving different weight to each sector and then tracks the production every month.
  • Finally, the index value is compared to the value it had in the same month last year to figure out the economy’s industrial health.
  • The IIP number measures the industrial production for the period under review, usually a month, as against the reference period.

Who releases Index of Industrial Production or IIP data?

  • The IIP is estimated and published on a monthly basis by the Central Statistical Organisation (CSO) .
  • As an all India index, it gives general level of industrial activity in the economy.

IIP base year/ Reference Period

  • The IIP base year was changed to 2011-12 from 2004-05 in the year 2017.
  • The earlier base years were 1937, 1946, 1951, 1956, 1960, 1970, 1980-81, 1993-94 and 2004-05.

Where is IIP data sourced from?

  • The CSO uses secondary data to reach the monthly IIP number.
  • The data is sourced from various agencies in different ministries or departments of the government.
  • The Department of Industrial Policy and Promotion (DIPP)is the source for the major chunk of data for the calculation.

Who uses IIP data?

  • The factory production data (IIP) is used by various government agencies such as the Ministry of Finance, the Reserve Bank of India (RBI), private firms and analysts, among others for analytical purposes.
  • The data is also used to compile the Gross Value Added (GVA) of the manufacturing sector in the Gross Domestic Product (GDP) on a quarterly basis.

Calculation of IIP:

IIP is a composite indicator that measures the growth rate of industry groups classified under,

  1. Broad sectors, namely, Mining, Manufacturing and Electricity
  2. Use-based sectors, namely Primary/Basic Goods, Capital Goods, Intermediate Goods, Consumer durables etc.

Core Industries in IIP

  • The main or the key industries constitute the core sectors of an economy.
  • In India, there are eight sectors that are considered the core sectors.
  • The eight industries have a combined share of 40.27 per cent in the Index of Industrial Production (IIP), which gives the growth rates of different industry groups in a specified period.
  • The eight-core sectors of the Indian economy are electricity, steel, refinery products, crude oil, coal, cement, natural gas and fertilizers.
  • These sectors have a major impact on the Indian economy and significantly affect most other industries as well.
  • The Office of Economic Adviser, Department for Promotion of Industry and Internal Trade releases Index of Eight Core Industries (ICI).

The Eight Core Industries in decreasing order of their Weightage:

Refinery Products> Electricity> Steel> Coal> Crude Oil> Natural Gas> Cement> Fertilizers

4. Editorial-1: Curbing individualism in public health

A failure to examine and interpret public health problems from a population perspective is leading to ineffective and unsustainable solutions as far as complex public health problems are concerned. This is obvious for problems such as undernutrition, for which individualist solutions such as micronutrient supplementation and food fortification have been proposed as solutions in lieu of sustainable approaches such as a strengthening of the Public Distribution System, supplementary nutrition programmes, and the health services. Similar is the case with chronic disease control, wherein early diagnosis and treatment is the most popular solution, with little scope for solutions that can modify health behaviours (through organised community action). There is a strong tendency in public health to prioritise individual-oriented interventions over societal oriented population-based approaches, also known as individualism in public health.

Recent evidence

Two of the most recent public health programmes of the Government bear testimony to this: as a nationwide publicly-funded insurance scheme, the Pradhan Mantri Jan Arogya Yojana (PMJAY) falls under Ayushman Bharat. It is the largest health insurance scheme in the country covering hospitalisation expenses for a family for ₹5 lakh a year. The goal is to ensure ‘free’ curative care services for all kinds of hospitalisation services so that there is no financial burden to the beneficiary. What is not talked about in the entire scheme is the need for hospitalisation services per year for any population.

Instead, every individual is given an assurance that if there is a need for hospitalisation expenses, the scheme will cover the expenses, highlighting the risk/probability of every individual facing hospitalisation in a year. This is an individualistic response to the problem of hospitalisation expenditure faced by populations. This becomes obvious when one examines the data on annual hospitalisation across populations.

Data from the National Sample Survey Organisation (75th round) show that on an average, only 3% of the total population in India had an episode of hospitalisation in a year (from 1% for Assam to 4% for Goa and 10% for Kerala — the need also a function of availability).

The proportion hovers around 3%-5% across most Indian States. Ideally, the Government needs to ensure health-care facilities to only 3%-5% of the population to cover all the hospitalisation needs of a population. This is population-based health-care planning. Instead, giving an assurance to every individual without ensuring the necessary health-care services to the population is not really helping in a crisis. This was evident in an evaluation of publicly-funded insurance schemes, which points to the low proportion of population that benefited from the scheme annually. The assurance of a service remains an unfulfilled promise when more than 90% of those who were given the promise do not need hospitalisation in the near future. From an individualist perspective, any individual can be at risk for hospitalisation anytime but from a population perspective, one can confidently argue that each year, the maximum proportion of population in need of hospitalisation will be in the range of 5% of the total population.

The approach to vaccination for COVID-19 has been similar, wherein, unlike other vaccinations, it was evident that a COVID-19 vaccine cannot prevent people from getting the disease but only reduce hospitalisation and deaths in the event of contracting COVID-19. It was also evident that around 20% of the total COVID-19 positive cases needed medical attention, with around 5% needing hospitalisation and around 1%-2% needing intensive care (ICU) or ventilator support. To effectively manage COVID-19, what was needed was to have primary, secondary, and tertiary health-care facilities to manage the above proportion of cases.

This is what a population-based approach to epidemic would be focusing on. Instead, by focusing on a vaccination programme for the entire population, it is again an assurance and a promise to every individual that even if you get COVID-19, you will not need hospitalisation and not die. Even after the entire crisis, not much is talked about in terms of the grossly inadequate health-care infrastructure to ensure the necessary primary, secondary and tertiary care services for COVID-19 patients, in turn leading to many casualties.

Instead, the entire focus has been on the success story — that every individual is protected from hospitalisation and death achieved through vaccine coverage. Most of the deaths due to COVID-19 are a reflection of the failure to offer ventilator and ICU support services to the 1%-2% in desperate need of it. Curative care provisioning is never planned at an individual level as epidemiologically, every individual will not necessarily need curative care every time. The morbidity profile of a population across age groups is an important criterion used to plan the curative care needs of a population. There are large-scale data that points to this need and can be estimated across populations. What it means is that for population-level planning, the need of the population as a single unit needs to be considered.

Determinants of individualism

There are at least three reasons for the dominance of individualism in public health. All these operate in combination and, hence, can be detrimental to public health practice. The first is the dominance of biomedical knowledge and philosophy in the field of public health with a misconception that what is done at an individual level, when done at a population level, becomes public health. This is despite the contrasting philosophy and approaches of clinical medicine and public health and the evidence that support the latter and must be based on population characteristics and economic resources. Related to this is the second aspect of ‘visibility’ of health impacts among the general public. Health effects are more visible and appear convincing at the individual level, wherein improvements at the population level will be clear only after population-level analysis; this needs a certain level of expertise and orientation about society — an important skill required for public health practitioners.

The public, and to a large extent, those public health experts who take individual experiences at face value, will make the same mistake of judging a population’s characteristics based on individual experiences; popularly known as atomistic fallacy in public health. Third, and the most important influence of all, is the market’s role and the effect of consumerism in public health practice. The beneficiaries for a programme become the maximum when 100% of the population is targeted. On the contrary, from a population perspective, the actual beneficiary will reduce to only 5%-10% in case of hospitalisation services and 20% of those affected with COVID-19 for treatment needs. Instead of making efforts to supply evidence of the actual prevalence of public health problems, market forces would prefer to cast a wide net and cover 100% of beneficiaries. Propagating individualism has always been a characteristic feature of a consumerist society as every individual can then be a potential ‘customer’ in the face of risk and susceptibility. All forms of individualistic approaches in public health need to be resisted to safeguard its original principles of practice, viz. population, prevention, and social justice.

5. Editorial-2: Big Tech and the need in India for ex-ante regulation

The Indian anti-trust body, the Competition Commission of India (CCI)’s move, in October, to impose a penalty of ₹1,337.76 crore on Google for abusing its dominant position in the android mobile device ecosystem, has forced us, once again, to rethink the market power of Big Tech companies. When India established the CCI under the Indian Competition Act 2002, it was to protect and promote competition in markets, and prevent practices that hinder competition. However, it did not account for the network effect of Big Tech companies as a force to reckon with. As their market dominance increased rather exponentially, the European Union, the United States, and even Australia realised their market-distorting abilities and moved to transform their competition law. The EU’s Digital Market Act and “gatekeepers” who will enforce rules and regulations ex-ante to foresee anti-competitive practices is an example. As for India, the Competition (Amendment) Bill, and its proposed amendments, partially address these issues. India should have used this as a chance to overhaul its competition law, especially when the Bill is due to be passed in Parliament’s winter session.

Market dominance issue

In any free economy, market dominance is natural. But things get hazy when it is abused to prevent competition. As the CCI says, the intent of Google’s business was to make users on its platforms abide by its revenue-earning service, i.e., an online search to directly affect the sale of their online advertising services. Thus, network effects, along with a status quo bias, created significant entry barriers for competitors to enter or operate in the markets concerned. While the competition laws address that anomaly, they are too slow to respond in complex technical sectors. By the time an order is passed, the dominant player has gained an edge — as in the case of Google. Thus, in this context, there is an urgent need for ex-ante legislation to prevent market failures and mitigate possible anti-competitive conduct.

Predatory pricing entails the lowering of prices that forces other firms to be out competed. Amazon and Flipkart were accused of deep discounting and creating in-house brands to compete with local sellers. Only recently, the CCI raided their offices in an anti-competition probe, leading to Amazon being forced to cut its ties with Cloudtail. Thus pricing plays a fundamental role in defining the position of any digital platform in the marketplace. It is essential to establish an ex-ante framework to ensure a level playing field for local sellers. The Government’s Open Network for Digital Commerce (ONDC) platform is a reliable option for these small players.

A crucial aspect of self-preferencing beyond the search algorithms is the bundling of services, especially with pre-installed apps, where the manufacturers eliminate competition without the consumer’s consent. Apple is facing heat in the U.S. and Europe over pre-installed apps after Russia forced Apple to provide third-party apps at the time of installation. So, Indian competition laws need to be vigilant through an ex-ante framework.

Use of data, issue of consumer protection

While the data economy has evolved, we have not dealt with its regulation as effectively. There is sensitive data stored on these platforms (financial records, phone location, and medical history). Big corporations have asserted ownership of the right to use or transfer this data without restriction.

While one might attribute it to efficiency barriers, the greed for data is a motivation. Further, the storage and collection of women’s and children’s data need to be dealt with more cautiously to build a safe digital place.

Finally, market distortion can also lead to poorer quality of services, data monopoly, and stifle innovation. For a consumer, there is a need to establish harmony of the Competition law with the new Consumer Protection Act 2020 and e-commerce rules. The new law should include a mechanism to ensure fair compensation for consumers who face the brunt of the anti-competitive practices of the Big Techs. This should ensure that the penalties and restrictions being imposed on companies also ensure proportionate compensation for consumer losses.

In the digital age

With India now on the cusp of a digital transformation, it is essential that the country has a level-playing field to ensure a fair opportunity for new-age start-ups and Micro, Small and Medium Enterprises. The Competition Act of 2000, was largely constituted to deal with the physical marketplace. There is an urgent need to contextualise the law to the digital marketplace and devise new provisions with adequate ex-ante legislation. The EU has already noted this need through the Digital Markets Act. It is time that similar legislation is adopted in India.

It is equally important to contextualise India’s reality. Kirana stores competing with e-retailers such as Big Basket is an example of unfair competition between legacy businesses and their digital counterparts. In such a setting, bulldozing through an EU-based approach to competition might not be the best way for Indian marketplace interests in protecting the local digital economy. Thus, India needs a new ex-ante-based framework that promotes competition by ensuring a level-playing field for the big, the small, the old and the new.

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