Open Access Research Article

EX-ANTE REGULATION VS. INNOVATION DYNAMICS: A CRITICAL ANALYSIS OF SYSTEMICALLY SIGNIFICANT DIGITAL ENTERPRISES (SSDES) UNDER INDIA’S DRAFT DIGITAL COMPETITION BILL

Author(s):
RIYA ARYA SHUBH GAURAV SAMRAGYEE ROY
Journal IJLRA
ISSN 2582-6433
Access Open Access
Volume 3
Issue 7
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Abstract

Abstract India’s competition law has, since the Competition Act 2002 came into force, rested on an ex-post model: the Competition Commission of India (CCI) intervenes only after an anti-competitive agreement under Section 3 or an abuse of dominance under Section 4 has been established through a full, effects-based inquiry. The Draft Digital Competition Bill 2024, released alongside the Report of the Committee on Digital Competition Law, proposed a decisive departure from that model by allowing the CCI to designate large platforms as Systemically Significant Digital Enterprises (SSDEs) and to subject them to a list of behavioural obligations in advance of any proven harm, most notably a prohibition on self-preferencing. The draft was withdrawn in 2025 after intense opposition, but a recalibrated version is now being prepared on the basis of a government-commissioned market study, which makes this a critical moment to evaluate the design choices at stake. This paper asks whether SSDE designation risks chilling platform innovation, or whether it is a necessary tool to curb self-preferencing that ex-post enforcement has failed to address in time. Drawing on doctrinal analysis of Sections 3 and 4, the CCI’s major digital cases, the text of the Draft Bill, the European Union’s Digital Markets Act (DMA) and the economic literature on competition and innovation, the paper argues that the dichotomy is a false one. The evidence from India’s own enforcement record shows that ex-post tools are too slow for markets that tip, but the evidence from the DMA’s early years shows that rigid, uniform obligations impose real costs on product design and launch decisions. The paper concludes that India should adopt a calibrated model: narrow and nationality-neutral designation, a rebuttable presumption against self-preferencing with a structured objective-justification defence, participative compliance, and built-in review and sunset mechanisms, delivered through a specialised digital markets unit within the CCI.

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Authors: RIYA ARYA, SHUBH GAURAV & SAMRAGYEE ROYRegistration ID: 1013257 | Published Paper ID: IJLRA13257, IJLRA13258 & IJLRA13259Year: Oct-2026 | Volume: 3 | Issue: 7Approved ISSN: 2582-6433 | Country: Delhi, IndiaPage No.: 131-154

Article Information

EX-ANTE REGULATION VS. INNOVATION DYNAMICS: A CRITICAL ANALYSIS OF SYSTEMICALLY SIGNIFICANT DIGITAL ENTERPRISES (SSDES) UNDER INDIA’S DRAFT DIGITAL COMPETITION BILL

Authors: RIYA ARYA, SHUBH GAURAV, SAMRAGYEE ROY

  • Journal IJLRA
  • ISSN 2582-6433
  • Volume 3
  • Issue 7
Citation Download Paper Full Details Search on Google Search on Google Scholar

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International Journal for Legal Research and Analysis

  • AbbreviationIJLRA
  • ISSN2582-6433
  • AccessOpen Access
  • LicenseCC 4.0

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