The Delhi High Court refused to provide immediate relief to the Alliance of Digital India Foundation (ADIF), which had filed a petition seeking suspension of Google’s new user choice billing system. The court is set to hear the plea on Wednesday, April 19, a week after Justice Pratibha Singh recused herself from hearing the plea without citing a reason. The HC has directed the involved parties to submit additional evidence before it by Tuesday evening.
The ADIF sought directions from the HC for the Competition Commission of India (CCI) to adjudicate on the matter before April 26 or put the implementation of the new billing system in abeyance until the competition watchdog reaches a consensus on the complaint that alleges flouting of antitrust norms by Google. The new system will take effect later this month and will require app developers to pay a commission of 11-26%, as opposed to the previous range of 15%-30%.
During the hearing, Justice Tushar Rao Gedela noted a conflict of commercial interest and sought clarification as to why the ADIF could not challenge the new billing policy after its implementation. Abir Roy, the ADIF counsel, argued that the new billing system mandates the submission of transaction data of users to Google, including those who opt for third-party payment options. Roy cited the CCI’s antitrust ruling from October last year, arguing that Google could use all the data flowing into its system post-April 26 to push its own apps.
Roy also sought an urgent hearing before the competition watchdog in the matter, citing a recent move by the CCI that allows it to clear M&A deals without quorum. In its plea, the ADIF alleged that there is no quorum at the regulator and that Google is taking advantage of the institutional lacunae.
The CCI, represented by additional solicitor general N Venkataraman, argued that the watchdog is taking up M&A cases as per the Competition Act, which requires resolution of such matters within 210 days of firms filing a notice. Responding to the charge of lack of quorum, the ASG submitted that the Competition Act provides for no proceeding of the watchdog to be rendered invalid on account of any vacancy or effect in the constitution of the commission.
Google contended that the competition watchdog is not empowered to issue an interim stay on the implementation of the user choice billing policy. Citing Section 42 of the Competition Act, Google’s counsel Sandeep Sethi contended that there is no provision for entertaining an interim plea once an enquiry has led to a final order.
At the heart of the matter is the ADIF’s claim that Google’s new user choice billing norms are a ‘cloaked version’ of the previous regime and are an attempt by the tech major to circumvent the CCI’s antitrust directions. The plea also claims that the new system projects a ‘hoax of giving liberty to app developers to opt for third-party payment processors’, while the market remains vulnerable to abuse of dominant position by Google.
The proceedings also saw the court pull up the government on the matter of non-appointment of a full-time CCI chairperson. Justice Gadela called on the Centre to expedite the nomination process to prevent the HC from entertaining such matters due to lack of quorum at the regulator.
