'No Manifest Error In CCI Findings Against Google' : Supreme Court Affirms NCLAT Order Refusing To Stay CCI Order In Android Dominance Matter

Senior Advocate AM Singhvi, appearing for Google, submitted that the CCI had no right to dictate how Google carried out its business. He stated that if consumers chose Google, it did not establish abuse of dominance. Instead, it just displayed "excellence" and that such excellence was encouraged. His submissions can broadly be categorised as follows–

1. "Android Ecosystem" and the Requirements to protect it

Senior Advocate Singhvi commenced his arguments by elaborating upon the "Android Ecosystem" to contextualise the dispute. He stated that the Android Ecosystem was an open source system with 15,000 smartphone models as opposed to Apple which only had 1 model. He added that there were 1500 global manufacturers or OEMs (Original Equipment Manufacturers) for Androids and 500 million devices just in India. "The Android revolution helps the consumer, the user. This is all because of system we've put in," he said.

To protect the said ecosystem, Dr Singhvi stated that they had a baseline requirement on which more could be added or built upon. However, the baseline requirement remained. He then described to the court the Mobile Application Distribution Agreement (MADA) as a free, voluntary, non exclusive agreement between Google and the OEM.

"Take a screen of a phone. On the screen, the manufacturer will have variety of things. He is allowed to put multiple play stores. On the same screen, you can have additional downloads from the internet. Indians download a lot. All that MADA does is that it says that you can choose what you like but if you have Google, you keep it."

At this juncture, CJI Chandrachud said that this argument was against Google as–

"You lose an open source access. That affects the choice of the consumer. Look at the kind of authority you have in terms of dominance. Data indicates 15000 models, 500 OEMs...When you have that kind of market penetration and you insist upon having your own, is that right?"

However, Dr Singhvi clarified that there existed rival apps for everything. He added–

"Samsung phones have their own play stores. This is not a competition issue. If people choose Google Play Store, that's not abuse of dominance. That's excellence. Your Lordships encourages excellence. Look at the number of people coexisting! It's not for CCI to direct my business. If people like Google better, it's excellence!"

2. No finding of abuse of dominance by CCI

The second submission made by Dr Singhvi was that the CCI had given its orders without any finding of abuse of dominance in the order. He submitted–

"The direction is that a rival Play Store owner should be able to sit inside my play store. Can CCI give a direction like that? User safety- I cannot control. It's like saying that any trespasser can come and sit in your house. How do I ensure safety, prevent malware?...API (Application Program Interface) – it's the software proprietary owned by me. My software shall be supplied to others as per the directions...Users can sideload. All that is required is that there is a pop up warning. Direction says you cannot have pop up warning. So no warning can be given to user about any malware. Finally, OEMs decide that Google is one of the apps. If user decides to uninstall, it cannot be. Direction is that there shall be no restriction on uninstalling."

He stated that the same was done without any finding on abuse of dominance.

3. Directions by CCI not the subject matter of EU directions

He submitted that it had been argued by the CCI that the bulk of directions issued by the CCI were subject matter of EU directions which had already been complied with by Google in Europe. He stated that this was factually and legally wrong and that 90% of directions given by CCI were not given by the EU. He also submitted that the European legislation of DMA (Digital Marketing Act) was not applicable in India and was wholly irrelevant.

4. Order passed with no reasons

Dr Singhvi submitted that there was no logic to the directions passed by the CCI. He submitted that despite noting the urgency of the matter, the NCLAT decided to not take up the matter and hear it only in April when the matter would be rendered infructuous. This, he stated, was without any reasons.

5. Misapplication of Parliamentary Standing Committee

He submitted that the Parliamentary Standing Committee report utilised by CCI had nothing in it and that the one or two comments which were made were at stage of recommendation to legislature and could not be used. He relied upon the judgement in Kalpana Mehta And Ors. vs Union Of India And Ors. (2018) for this argument.