Samir Agrawal v. Competition Commission of India, (2021) 3 SCC 136

The decision is cited for two quite different propositions. The first is procedural and is now the settled law on standing: any person may supply information to the Commission, and an informant need not be personally aggrieved, because proceedings before the Commission are in rem. The second is substantive: the allegation that ride-hailing platforms had enabled a cartel among drivers by setting fares algorithmically was not made out on the evidence, because there was no agreement among the drivers themselves.

1. The Allegation

An independent practitioner filed information alleging that the two principal ride-hailing platforms operated algorithms that determined the fare for every trip, so that drivers using a platform charged prices set centrally rather than competing with one another. The case was put as a hub and spoke arrangement: the drivers were the spokes, the platform the hub, and the algorithm the mechanism by which prices were aligned. The Commission found no prima facie case, and the appellate tribunal agreed, adding that the informant had no locus standi because he was neither a consumer of the service in the relevant sense nor otherwise aggrieved.

2. The Holding on Standing

1. Any person may inform. Section 19(1)(a) permits the Commission to inquire on receipt of any information from any person, consumer or their association or trade association. The expression any person is to be read widely.
2. No requirement of injury. An informant need not be a person aggrieved, need not have suffered personal loss, and need not be a consumer or a competitor.
3. The reason. Proceedings before the Commission are in rem. They are directed at the effect of conduct on the market and on the public interest in competition, not at the vindication of a private right. The informant is not in the position of a plaintiff, and the jurisdiction of the Commission does not depend on his standing.
4. The consequence. The appellate tribunal's finding on locus was set aside, though the dismissal of the information on the merits was upheld.

3. The Holding on Algorithmic Pricing

• No agreement among the drivers. The drivers did not communicate with one another and did not coordinate. Section 3 requires an agreement, arrangement, understanding or action in concert, and none was established between the spokes.
• No rim. In a hub and spoke arrangement it is the understanding among the competitors, the rim of the wheel, that converts a series of vertical relationships into a horizontal arrangement. Without it there is no cartel, however centrally the prices are set.
• The platform's pricing is vertical in character. A platform setting the price at which services are supplied through it is fixing the terms of its own service, which falls to be examined under Section 3(4) or, if the platform is dominant, under Section 4, not under Section 3(3).

4. The Position after the Amendment of 2023

The decision was given before the amendment which added to Section 3(3) a provision presuming an enterprise not engaged in identical or similar trade to be a party to such an agreement where it actively participates in furthering it. That amendment addresses the position of the hub, and it removes the textual argument that a platform cannot be within Section 3(3) because it is not in the same trade as the users. It does not remove the requirement of a rim: active participation in furthering an agreement presupposes an agreement among the competitors, and where there is none the amendment does not create one. The genuinely open question, of independent algorithms learning to sustain supra-competitive prices without any communication at all, remains outside Section 3 and is the subject of the debate on ex ante digital regulation.

5. Related Topics and Provisions